[Federal Register Volume 72, Number 97 (Monday, May 21, 2007)]
[Notices]
[Pages 28558-28577]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-9421]



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Part II





United States Sentencing Commission





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Sentencing Guidelines for the United States Courts; Notices

  Federal Register / Vol. 72, No. 97 / Monday, May 21, 2007 / Notices  

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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of submission to Congress of amendments to the 
sentencing guidelines effective November 1, 2007.

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

DATES: The Commission has specified an effective date of November 1, 
2007, for the amendments set forth in this notice.

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

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is 
an independent agency in the judicial branch of the United States 
Government. The Commission promulgates sentencing guidelines and policy 
statements for federal sentencing courts pursuant to 28 U.S.C. 994(a). 
The Commission also periodically reviews and revises previously 
promulgated guidelines pursuant to 28 U.S.C. 994(o) and generally 
submits guideline amendments to Congress pursuant to 28 U.S.C. 994(p) 
not later than the first day of May each year. Absent action of 
Congress to the contrary, submitted amendments become effective by 
operation of law on the date specified by the Commission (generally 
November 1 of the year in which the amendments are submitted to 
Congress).
    Notice of proposed amendments was published in the Federal Register 
on January 30, 2007 (see 72 FR 4372). The Commission held a public 
hearing on the proposed amendments in Washington, DC, on March 20, 
2007. On May 1, 2007, the Commission submitted these amendments to 
Congress and specified an effective date of November 1, 2007.

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

Ricardo H. Hinojosa,
Chair.

1. Compassionate Release

    Amendment: The Commentary to Sec.  1B1.13 captioned ``Application 
Notes'' is amended in Note 1 by striking subdivision (A) and inserting 
the following:

    ``(A) Extraordinary and Compelling Reasons.--Provided the 
defendant meets the requirements of subdivision (2), extraordinary 
and compelling reasons exist under any of the following 
circumstances:
    (i) The defendant is suffering from a terminal illness.
    (ii) The defendant is suffering from a permanent physical or 
medical condition, or is experiencing deteriorating physical or 
mental health because of the aging process, that substantially 
diminishes the ability of the defendant to provide self-care within 
the environment of a correctional facility and for which 
conventional treatment promises no substantial improvement.
    (iii) The death or incapacitation of the defendant's only family 
member capable of caring for the defendant's minor child or minor 
children.
    (iv) As determined by the Director of the Bureau of Prisons, 
there exists in the defendant's case an extraordinary and compelling 
reason other than, or in combination with, the reasons described in 
subdivisions (i), (ii), and (iii).''.

    The Commentary to Sec.  1B1.13 is amended by striking 
``Background'' and all that follows through the end of ``statute.'' and 
inserting the following:

    ``Background: This policy statement implements 28 U.S.C. 
994(t).''.

    Reason for Amendment: This amendment modifies the policy statement 
at Sec.  1B1.13 (Reduction in Term of Imprisonment as a Result of 
Motion by Director of Bureau of Prisons) to further effectuate the 
directive in 28 U.S.C. 994(t). Section 994(t) provides that the 
Commission ``in promulgating general policy statements regarding the 
sentence modification provisions in section 3582(c)(1)(A) of title 18, 
shall describe what should be considered extraordinary and compelling 
reasons for sentence reduction, including the criteria to be applied 
and a list of specific examples.'' The amendment revises Application 
Note 1(A) of Sec.  1B1.13 to provide four examples of circumstances 
that, provided the defendant is not a danger to the safety of any other 
person or to the community, would constitute ``extraordinary and 
compelling reasons'' for purposes of 18 U.S.C. 3582(c)(1)(A).

2. Transportation

    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,''.
    Section 2B1.1(b) is amended by striking subdivision (11) and 
inserting the following:

    ``(11) If the offense involved an organized scheme to steal or 
to receive stolen (A) vehicles or vehicle parts; or (B) goods or 
chattels that are part of a cargo shipment,

[[Page 28559]]

increase by 2 levels. If the offense level is less than level 14, 
increase to level 14.''.

    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.  ''.
    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 (e.g., an auto theft ring or 'chop shop') to 
steal or to receive stolen (A) vehicles or vehicle parts; or (B) 
goods or chattels that are part of a cargo shipment. For purposes of 
this subsection, 'vehicle' means motor vehicle, vessel, or aircraft. 
A 'cargo shipment' includes cargo transported on a railroad car, 
bus, steamboat, vessel, or airplane.''.

    Section 2B2.3(b)(1) is amended by striking ``secured'' each place 
it appears and inserting ``secure''; and by inserting ``or a seaport'' 
after ``airport''.
    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 ``secured'' before ``government'' and inserting ``secure''; 
and 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, 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. 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''.

    Reason for Amendment: This amendment implements various provisions 
of the USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. 
109-177 (the ``PATRIOT Reauthorization Act'') and the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
for Users, Pub. L. 109-59 (``SAFETEA-LU''). The PATRIOT Reauthorization 
Act created several new offenses and increased the scope of or penalty 
for several existing offenses. SAFETEA-LU also created two new 
offenses. This amendment references both the new statutes and those 
with increased scope and penalties to existing guidelines. The 
amendment also provides a corresponding amendment to Appendix A 
(Statutory Index). The Commission concluded that referencing the new 
offenses to existing guidelines was appropriate because the type of 
conduct criminalized by the new statutes was adequately addressed and 
penalized by the guidelines.
    Section 307(c) of the PATRIOT Reauthorization Act directed 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. This amendment responds to the 
directive by revising the enhancement at subsection (b)(11) of Sec.  
2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses 
Involving Stolen Property; Property Damage or Destruction; Fraud and 
Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments 
Other than Counterfeit Bearer Obligations of the United States). The 
amendment expands the scope of this enhancement to cover cargo theft 
and adds a reference to the receipt of stolen vehicles or goods to 
ensure application of the enhancement is consistent with the scope of 
18 U.S.C. Sec.  659 and 2313. The Commission determined that the two-
level increase, and the minimum offense level of 14, appropriately 
responds to concerns regarding the increased instances of organized 
cargo theft operations.

3. Terrorism

    Amendment: The Commentary to Sec.  2A1.1 captioned ``Statutory 
Provisions'', as amended by Amendment 2 of this document, is further 
amended by inserting ``2282A,'' after ``2199,''.
    The Commentary to Sec.  2A1.2 captioned ``Statutory Provisions'', 
as amended by Amendment 2 of this document, is further amended by 
inserting ``2282A,'' after ``2199''.
    The Commentary to Sec.  2B1.1 captioned ``Statutory Provisions'', 
as amended by Amendment 2 of this document, is further amended by 
inserting ``2282A, 2282B,'' after ``2113(b),''.

[[Page 28560]]

    The Commentary to Sec.  2B1.5 captioned ``Statutory Provisions'' is 
amended by inserting ``554,'' before ``641,''.
    Chapter Two, Part D, Subpart One, is amended by adding at the end 
the following new guideline and accompanying commentary:

``Sec.  2D1.14. Narco-Terrorism

    (a) Base Offense Level:
    (1) The offense level from Sec.  2D1.1 (Unlawful Manufacturing, 
Importing, Exporting, or Trafficking (Including Possession with 
Intent to Commit These Offenses); Attempt or Conspiracy) applicable 
to the underlying offense, except that Sec.  2D1.1(a)(3)(A), 
(a)(3)(B), and (b)(11) shall not apply.
    (b) Specific Offense Characteristic
    (1) If Sec.  3A1.4 (Terrorism) does not apply, increase by 6 
levels.

Commentary

    Statutory Provision: 21 U.S.C. 960a.''

    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''.
    The Commentary to Sec.  2K1.3 captioned ``Statutory Provisions'' is 
amended by inserting ``, 2283'' after ``1716''.
    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,''; in subsection (a)(2) by 
striking ``or'' the last place it appears; by redesignating subsection 
(a)(3) as subsection (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; 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'', 
as amended by Amendment 2 of this document, is further 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.  2M5.2 captioned ``Statutory Provisions'' is 
amended by inserting ``18 U.S.C. 554;'' before ``22 U.S.C. 2778, 
2780.''.
    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 inserting ``2283, 2284,'' after ``18 U.S.C. ``; and by 
striking the period at the end and inserting ``; 50 U.S.C. 1701, 
1705.''.
    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' has the meaning given 
that term in 31 CFR 594.513.''.

    Section 2M6.1 is amended in the heading by striking ``Production, 
Development, Acquisition, Stockpiling, Alteration, Use, Transfer, or 
Possession of'' and inserting ``Activity Involving''.
    The Commentary to Sec.  2M6.1 captioned ``Statutory Provisions'', 
as amended by Amendment 2 of this document, is further amended by 
inserting ``2283,'' before ``2291,''.
    The Commentary to Sec.  2Q2.1 captioned ``Statutory Provisions'' is 
amended by inserting ``Sec.  '' before ``545'' and 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''.
    The Commentary to Sec.  2X1.1 captioned ``Statutory Provisions'' is 
amended by inserting ``, 2282A, 2282B,'' after ``2271,''.
    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,''.
    Chapter Two, Part X is amended by adding at the end the following 
new subpart, 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. 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. 554(a); 
or
    (3) 8, if the defendant was convicted under 18 U.S.C. 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.''.

    Chapter Five, Part K is amended by adding at the end the following 
new policy statement and accompanying commentary:

``Sec.  5K2.24. Commission of Offense While Wearing or Displaying 
Unauthorized or Counterfeit Insignia or Uniform (Policy Statement)

    If, during the commission of the offense, the defendant wore or 
displayed an official, or counterfeit official, insignia or uniform 
received in violation of 18 U.S.C. 716, an upward departure may be 
warranted.

Commentary

    Application Note:
    1. Definition.--For purposes of this policy statement, `official 
insignia or uniform' has the meaning given that term in 18 U.S.C. 
716(c)(3).''.

    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--(Border tunnels and passages)--2X7.1''.
18 U.S.C. 554--(Smuggling goods from the United States)--2B1.5, 
2M5.2, 2Q2.1''.

    Appendix A (Statutory Index), as amended by Amendment 2 of this 
document, is further amended by inserting after the line referenced to 
18 U.S.C. 2281 the following:

``18 U.S.C. 2282A--2A1.1, 2A1.2, 2B1.1, 2K1.4, 2X1.1
18 U.S.C. 2282B--2B1.1, 2K1.4, 2X1.1
18 U.S.C. 2283--2K1.3, 2M5.3, 2M6.1
18 U.S.C. 2284--2M5.3, 2X2.1, 2X3.1''.

    Appendix A (Statutory Index) is amended in the line referenced to 
18 U.S.C. 2339 by inserting ``2M5.3,'' before ``2X2.1'';
by inserting after the line referenced to 21 U.S.C. 960(d)(7) the 
following:

``21 U.S.C. 960a--2D1.14''.

by inserting after the line referenced to 50 U.S.C. 783(c) the 
following:


[[Page 28561]]


``50 U.S.C. 1701--2M5.1, 2M5.2, 2M5.3
50 U.S.C. 1705--2M5.3'';

and by striking the line referenced to 50 U.S.C. App. Sec.  1701.

    Reason for Amendment: This amendment implements the USA PATRIOT 
Improvement and Reauthorization Act of 2005 (the ``PATRIOT 
Reauthorization Act''), Pub. L. 109-177, and the Department of Homeland 
Security Appropriations Act, 2007 (the ``Homeland Security Act''), Pub. 
L. 109-295.
    First, the amendment addresses section 122 of the PATRIOT 
Reauthorization Act, which created a new offense at 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 (as 
defined in section 212(a)(3)(B) of the Immigration and Nationality Act) 
or terrorism (as defined in section 140(d)(2) of the Foreign Relations 
Authorization Act, Fiscal Years 1988 and 1989 (This act is made up of 
separate parts divided by fiscal year)). The penalty is not less than 
twice the statutory 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 five years.
    The amendment creates a new guideline at Sec.  2D1.14 (Narco-
Terrorism) because an offense under 21 U.S.C. 960a differs from basic 
drug offenses because it involves trafficking that benefits terrorist 
activity. The guideline also provides that the base offense level is 
the offense level determined under Sec.  2D1.1 (Unlawful Manufacturing, 
Importing, Exporting, or Trafficking (Including Possession with Intent 
to Commit These Offenses); Attempt or Conspiracy) for the underlying 
offense, except that the ``mitigating role cap'' in Sec.  
2D1.1(a)(3)(A) and (B) and the two-level reduction for meeting the 
criteria set forth in subdivisions (1)-(5) of subsection (a) of Sec.  
5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in 
Certain Cases) shall not apply. The Commission determined that these 
exclusions are appropriate to reflect that this is not a typical drug 
offense, in that an individual convicted under this provision must have 
had knowledge that the person or organization receiving the funds or 
support generated by the drug trafficking ``has engaged or engages in 
terrorist activity * * * or terrorism * * *.'' The guideline also 
contains a specific offense characteristic that provides a six-level 
increase if the adjustment in Sec.  3A1.4 (Terrorism) does not apply. 
This six-level increase fully effectuates the statute's doubling of the 
minimum punishment for the underlying drug offense, while avoiding 
potential double counting with the 12-level adjustment at Sec.  3A1.4. 
The amendment also provides a corresponding reference for the new 
offense to Sec.  2D1.14 in Appendix A (Statutory Index).
    Second, the amendment responds to the directive in 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. Section 551(c) of the Homeland Security Act directed 
the Commission to promulgate or amend the guidelines to provide for 
increased penalties for persons convicted of offenses under 18 U.S.C. 
554 and required the Commission to consider a number of factors. 
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 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 otherwise would have 
been applicable had the unlawful activity not made use of the tunnel or 
passage.
    The amendment creates a new guideline at Sec.  2X7.1 (Border 
Tunnels and Subterranean Passages) for convictions under 18 U.S.C. 554. 
The new guideline provides that a conviction under 18 U.S.C. 554(a) 
receives a base offense level 16, which is commensurate with certain 
other offenses with statutory maximum terms of imprisonment of 20 years 
and ensures a sentence of imprisonment. A conviction under 18 U.S.C. 
554(c) will receive a four-level increase over the offense level 
applicable to the underlying smuggling offense, which ensures that the 
seriousness of the underlying offense is the primary measure of offense 
severity. The four-level increase also satisfies the directive's 
instruction to account for the aggravating nature of the use of a 
tunnel or subterranean passage to breach the border to accomplish the 
smuggling offense and effectuates the statute's doubling of the 
statutory maximum penalty. A conviction under 18 U.S.C. 554(b) receives 
a base offense level of 8, which reflects the less aggravated nature of 
this offense.
    Third, the amendment addresses other new offenses created by the 
PATRIOT Reauthorization Act. Based on an assessment of similar offenses 
already covered by the relevant guidelines, the amendment provides as 
follows:
    (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 (Theft 
of, Damage to, or Destruction of, Cultural Heritage Resources; Unlawful 
Sale, Purchase, Exchange, Transportation, or Receipt of Cultural 
Heritage Resources), 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 
United States navigable waters, is referenced to Sec. Sec.  2A1.1 
(First Degree Murder), 2A1.2 (Second Degree Murder), 2B1.1 (Larceny, 
Embezzlement, and Other Forms of Theft; Offenses Involving Stolen 
Property; Property Damage or Destruction; Fraud and Deceit; Forgery; 
Offenses Involving Altered or Counterfeit Instruments Other than 
Counterfeit Bearer Obligations of the United States), 2K1.4 (Arson; 
Property Damage by Use of Explosives), and 2X1.1 (Attempt, 
Solicitation, or Conspiracy (Not Covered by a Specific Offense 
Guideline)). The 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.
    (C) The new offense in 18 U.S.C. 2283 pertaining to transporting 
biological and

[[Page 28562]]

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 or 
For a Terrorist Purpose), and 2M6.1 (Unlawful Production, Development, 
Acquisition, Stockpiling, Alteration, Use, Transfer, or Possession of 
Nuclear Material, Weapons, or Facilities, Biological Agents, Toxins, or 
Delivery Systems, Chemical Weapons, or Other Weapons of Mass 
Destruction; Attempt or Conspiracy). The new offense in 18 U.S.C. 2284 
pertaining to transporting terrorists is referenced to Sec. Sec.  2M5.3 
(Providing Material Support or Resources to Designated Foreign 
Terrorist Organizations or For a Terrorist Purpose), 2X2.1 (Aiding and 
Abetting), and 2X3.1 (Accessory After the Fact).
    (D) 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 amendment makes conforming 
changes to the background commentary of Sec.  2E4.1 (Unlawful Conduct 
Relating to Contraband Cigarettes) and expands the headings of Chapter 
Two, Part E, Subpart 4 and Sec.  2E4.1 to include smokeless tobacco.
    (E) The Patriot Reauthorization 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' imprisonment. The amendment references 50 U.S.C. 1705 to Sec.  
2M5.3 and modifies the heading of the guideline to include ``specially 
designated global terrorist''.
    Fourth, the amendment sets forth the statutory references in 
Appendix A (Statutory Index) for the new offenses. Appendix A is 
amended to provide a parenthetical description for the two statutory 
references to 18 U.S.C. 554 created by the PATRIOT Reauthorization Act.
    Fifth, the amendment implements a directive in section 1191(c) of 
the Violence Against Women and Department of Justice Reauthorization 
Act of 2005, Pub. L. 109-162. The Act directed 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 which is 
not covered by the guidelines, see Sec.  1B1.9 (Class B or C 
Misdemeanors and Infractions); however, the amendment creates a new 
policy statement at Sec.  5K2.24 (Commission of Offense While Wearing 
or Displaying Unauthorized or Counterfeit Insignia or Uniform) 
providing that an upward departure may be warranted if, during the 
commission of the offense, the defendant wore or displayed an official, 
or counterfeit official, insignia or uniform received in violation of 
18 U.S.C. 716.

4. Sex Offenses

    Amendment: Chapter Two, Part A, Subpart Three, is amended in the 
heading by adding at the end ``AND OFFENSES RELATED TO REGISTRATION AS 
A SEX OFFENDER''.
    Section 2A3.1(a) is amended by striking ``30'' and inserting the 
following:

    ``(1) 38, 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''; and by adding at the end the following subdivision:

    ``(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. 2241(a) or (b), do not apply 
subsection (b)(1).''.

    The Commentary to Sec.  2A3.1 is amended by striking ``Background'' 
and all that follows through the end of ``abduction.''.
    Section 2A3.3(a) is amended by striking ``12'' and inserting 
``14''.
    The Commentary to Sec.  2A3.3 captioned ``Application Notes'' is 
amended in Note 1 by striking `` `Minor' means an individual who had 
not attained the age of 18 years.'' 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 captioned ``Application Notes'' is 
amended by adding at the end the following:

    ``4. Inapplicability of Sec.  3B1.3.--Do not apply Sec.  3B1.3 
(Abuse of Position of Trust or Use of Special Skill).''.

    The Commentary to Sec.  2A3.3 is amended by striking ``Background'' 
and all that follows through the end of ``year.''.
    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)'' after ``Sec.  2244''.
    The Commentary to Sec.  2A3.4 captioned ``Background'' is amended 
by striking ``Enhancements are provided'' and all that follows through 
the end of ``sixteen years.''.
    Chapter Two, Part A, Subpart Three, is amended by adding at the end 
the following new guidelines and accompanying commentaries:

``Sec.  2A3.5. Failure To Register as a Sex Offender

    (a) Base Offense Level (apply the greatest):
    (1) 16, if the defendant was required to register as a Tier III 
offender;
    (2) 14, if the defendant was required to register as a Tier II 
offender; or
    (3) 12, if the defendant was required to register as a Tier I 
offender.
    (b) Specific Offense Characteristics
    (1) (Apply the greatest):
    If, while in a failure to register status, the defendant 
committed--
    (A) a sex offense against someone other than a minor increase by 
6 levels;
    (B) a felony offense against a minor not otherwise covered by 
subdivision (C), increase by 6 levels; or
    (C) a sex offense against a minor, increase by 8 levels.
    (2) If the defendant voluntarily (A) corrected the failure to 
register; or (B) attempted to register but was prevented from 
registering by uncontrollable circumstances and the defendant did 
not contribute to the creation of those circumstances, decrease by 3 
levels.

Commentary

    Statutory Provision: 18 U.S.C. 2250(a).
    Application Notes:
    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.

[[Page 28563]]

    `Sex offense' has the meaning given that term in 42 U.S.C. 
16911(5).
    ``Tier I offender',``tier II offender', and ``tier III offender' 
have the meaning given those terms in 42 U.S.C. 16911(2), (3) and 
(4), respectively.
    2. Application of Subsection (b)(2).--
    (A) In General.--In order for subsection (b)(2) to apply, the 
defendant's voluntary attempt to register or to correct the failure 
to register must have occurred prior to the time the defendant knew 
or reasonably should have known a jurisdiction had detected the 
failure to register.
    (B) Interaction with Subsection (b)(1).--Do not apply subsection 
(b)(2) if subsection (b)(1) also applies.

Sec.  2A3.6. Aggravated Offenses Relating to Registration as a Sex 
Offender

    If the defendant was convicted under--
    (a) 18 U.S.C. 2250(c), the guideline sentence is the minimum 
term of imprisonment required by statute; or
    (b) 18 U.S.C. 2260A, the guideline sentence is the term of 
imprisonment required by statute.
    Chapters Three (Adjustments) and Four (Criminal History and 
Criminal Livelihood) shall not apply to any count of conviction 
covered by this guideline.

Commentary

    Statutory Provisions: 18 U.S.C. 2250(c), 2260A.
    Application Notes:
    1. In General.--Section 2250(c) of title 18, United States Code, 
provides a mandatory minimum term of five years' imprisonment and a 
statutory maximum term of 30 years' imprisonment. The statute also 
requires a sentence to be imposed consecutively to any sentence 
imposed for a conviction under 18 U.S.C. 2250(a). Section 2260A of 
title 18, United States Code, provides a term of imprisonment of 10 
years that is required to be imposed consecutively to any sentence 
imposed for an offense enumerated under that section.
    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).
    3. Inapplicability of Chapter Two Enhancement.--If a sentence 
under this guideline is imposed in conjunction with a sentence for 
an underlying offense, do not apply any specific offense 
characteristic that is based on the same conduct as the conduct 
comprising the conviction under 18 U.S.C. 2250(c) or Sec.  2260A.
    4. Upward Departure.--In a case in which the guideline sentence 
is determined under subsection (a), a sentence above the minimum 
term required by 18 U.S.C. 2250(c) is an upward departure from the 
guideline sentence. A departure may be warranted, for example, in a 
case involving a sex offense committed against a minor or if the 
offense resulted in serious bodily injury to a minor.''.

    Section 2G1.1(a) is amended by striking ``14'' and inserting the 
following:

    ``(1) 34, if the offense of conviction is 18 U.S.C. 1591(b)(1); 
or
    (2) 14, otherwise.''.
    Section 2G1.1(b)(1) is amended by inserting ``(A) subsection 
(a)(2) applies; and (B)'' after ``If''.
    The Commentary to Sec.  2G1.1 is amended by striking 
``Background'' and all that follows through the end of ``Minor).''.

    Section 2G1.3(a) is amended by striking ``24'' and inserting the 
following:

    ''(1) 34, if the defendant was convicted under 18 U.S.C. 
1591(b)(1);
    (2) 30, if the defendant was convicted under 18 U.S.C. 
1591(b)(2);
    (3) 28, if the defendant was convicted under 18 U.S.C. 2422(b) 
or Sec.  2423(a); or
    (4) 24, otherwise.''.

    Section 2G1.3(b) is amended by striking subdivision (4) and 
inserting the following:

    ``(4) If (A) the offense involved the commission of a sex act or 
sexual contact; or (B) subsection (a)(3) or (a)(4) applies and the 
offense involved a commercial sex act, increase by 2 levels.''.

    Section 2G1.3(b)(5) is amended by inserting ``(A) subsection (a)(3) 
or (a)(4) applies; and (B)'' after ``If''.
    The Commentary to Sec.  2G1.3 captioned ``Statutory Provisions'' is 
amended by striking ``2422(b),''.
    The Commentary to Sec.  2G1.3 is amended by striking ``Background'' 
and all that follows through the end of ``Minor).''.
    The Commentary to Sec.  2G2.5 captioned ``Statutory Provisions'' is 
amended by inserting ``Sec.  '' after ``18 U.S.C. Sec.  ''; and by 
inserting ``, 2257A'' after ``2257''.
    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: 35
    (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.
    (4) If a computer or an interactive computer service was used in 
furtherance of the offense, increase by 2 levels.

Commentary

    Statutory Provision: 18 U.S.C. 2252A(g).
    Application Notes:
    1. Definitions.--For purposes of this guideline:
    `Computer' has the meaning given that term in 18 U.S.C. 
1030(e)(1).
    `Interactive computer service' has the meaning given that term 
in section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. 
230(f)(2)).
    `Minor' means (A) an individual who had not attained the age of 
18 years; (B) an individual, whether fictitious or not, who a law 
enforcement officer represented to a participant (i) had not 
attained the age of 18 years; and (ii) could be provided for the 
purposes of engaging in sexually explicit conduct; or (C) an 
undercover law enforcement officer who represented to a participant 
that the officer had not attained the age of 18 years.
    2. 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)(2) applies, do not apply Sec.  
3B1.3 (Abuse of Position of Trust or Use of Special Skill).
    3. Application of Subsection (b)(3).--For purposes of subsection 
(b)(3), `conduct described in 18 U.S.C. 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.''.

    Section 2G3.1(b) is amended by striking subdivision (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 source code of a Web site, increase by 2 
levels.''.

    The Commentary to Sec.  2G3.1 captioned ``Statutory Provisions'' is 
amended by inserting ``, 2252C'' after ``2252B''.

[[Page 28564]]

    The Commentary to Sec.  2G3.1 captioned ``Application Notes'' is 
amended in Note 2 by inserting ``or Sec.  2252C'' after ``2252B''.
    Section 2J1.2(b) is amended in subdivision (1) by striking 
``greater'' and inserting ``greatest''; by redesignating subdivisions 
(A) and (B) as subdivisions (B) and (C), respectively; by inserting 
before subdivision (B), as redesignated by this amendment, the 
following:

    ``(A) If the (i) defendant was convicted under 18 U.S.C. 1001; 
and (ii) statutory maximum term of eight years' imprisonment applies 
because the matter relates to sex offenses under 18 U.S.C. 1591 or 
chapters 109A, 109B, 110, or 117 of title 18, United States Code, 
increase by 4 levels.'';

and by striking subdivision (C), as redesignated by this amendment, and 
inserting the following:

    ``(C) If the (i) defendant was convicted under 18 U.S.C. 1001 or 
1505; and (ii) statutory maximum term of eight years' imprisonment 
applies because the matter relates to international terrorism or 
domestic terrorism, increase by 12 levels.''.

    The Commentary to Sec.  2J1.2 captioned ``Statutory Provisions'' is 
amended by striking ``when the statutory maximum'' and all that follows 
through ``applicable,'' and inserting the following:

    ``(when the statutory maximum term of eight years' imprisonment 
applies because the matter relates to international terrorism or 
domestic terrorism, or to sex offenses under 18 U.S.C. 1591 or 
chapters 109A, 109B, 110, or 117 of title 18, United States 
Code),''.

The Commentary to Sec.  2J1.2 captioned ``Application Notes'' is 
amended in Note 2(B) by striking ``(b)(1)(B)'' and inserting 
``(b)(1)(C)''.
    The Commentary to Sec.  2J1.2 captioned ``Application Notes'' is 
amended in Note 4 by inserting ``or a particularly serious sex 
offense'' after ``face)''.
    The Commentary to Sec.  2J1.2 captioned ``Application Notes'' is 
amended in Note 5 by inserting ``(B)'' after ``Subsection (b)(1)'' each 
place it appears; and by inserting ``(B)'' after ``under subsection 
(b)(1)''.
    Section 3D1.2(d) is amended by inserting as a new line ``Sec.  
2A3.5;'' before the line that begins ``Sec. Sec.  2B1.1''; and by 
inserting ``(except Sec.  2A3.5)'' after ``Chapter Two, Part A''.
    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. 1591;'' after 
``individual;''; and by striking ``(iii)'' after ``through'' and 
inserting ``(iv)''.
    The Commentary to Sec.  4B1.5 captioned ``Background'' is amended 
by striking the first and second sentences and inserting: ``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.''.
    Section 5B1.3(a)(9) is amended by inserting ``(A) in a state in 
which the requirements of the Sex Offender Registration and 
Notification Act (see 42 U.S.C. 16911 and 16913) do not apply,'' before 
``a defendant convicted''; by inserting ``(Pub. L. 105-119, Sec.  
115(a)(8), Nov. 26, 1997)'' after ``4042(c)(4)''; by inserting ``or'' 
after ``student;'' and by adding at the end the following:

    ``(B) in a state in which the requirements of Sex Offender 
Registration and Notification Act apply, a sex offender shall (i) 
register, and keep 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; (ii) 
provide information required by 42 U.S.C. 16914; and (iii) keep 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 probation 
officer in the lawful discharge of the officer's supervision 
functions.''.

    Section 5B1.3 is amended by adding at the end the following:

Commentary

    Application Note:
    1. Application of Subsection (b)(9)(A) and (B).--Some 
jurisdictions continue to register sex offenders pursuant to the sex 
offender registry in place prior to July 27, 2006, the date of 
enactment of the Adam Walsh Act, which contained the Sex Offender 
Registration and Notification Act. In such a jurisdiction, 
subsection (b)(9)(A) will apply. In a jurisdiction that has 
implemented the requirements of the Sex Offender Registration and 
Notification Act, subsection (b)(9)(B) will apply. (See 42 U.S.C. 
16911 and 16913.)''.

    The Commentary to Sec.  5D1.2 captioned ``Application Notes'' is 
amended by striking Note 1 and inserting:

    ``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 inserting ``(A) in a state in 
which the requirements of the Sex Offender Registration and 
Notification Act (see 42 U.S.C. 16911 and 16913) do not apply,'' before 
``a defendant''; by inserting ``(Pub. L. 105-119, Sec.  115(a)(8), Nov. 
26, 1997)'' after ``4042(c)(4)''; by inserting ``or'' after 
``student;'' and by adding at the end the following:

    ``(B) in a state in which the requirements of Sex Offender 
Registration and Notification Act apply, a sex offender shall (i) 
register, and keep 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; (ii) 
provide information required by 42 U.S.C. 16914; and (iii) keep 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.''.


[[Page 28565]]


    Section 5D1.3 is amended by adding at the end the following:

``Commentary

    Application Note:
    1. Application of Subsection (b)(7)(A) and (B).--Some 
jurisdictions continue to register sex offenders pursuant to the sex 
offender registry in place prior to July 27, 2006, the date of 
enactment of the Adam Walsh Act, which contained the Sex Offender 
Registration and Notification Act. In such a jurisdiction, 
subsection (b)(7)(A) will apply. In a jurisdiction that has 
implemented the requirements of the Sex Offender Registration and 
Notification Act, subsection (b)(7)(B) will apply. (See 42 U.S.C. 
16911 and 16913.)''.

    Appendix A (Statutory Index) is amended in the line referenced to 
18 U.S.C. 1001 by striking ``when the statutory'' and all that follows 
through ``applicable'' and inserting the following:

    ``(when the statutory maximum term of eight years' imprisonment 
applies because the matter relates to international terrorism or 
domestic terrorism, or to sex offenses under 18 U.S.C. 1591 or 
chapters 109A, 109B, 110, or 117 of title 18, United States Code)''.

    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''--

    Reason for Amendment: This amendment responds to the Adam Walsh 
Child Protection and Safety Act of 2006 (the ``Adam Walsh Act''), Pub. 
L. 109-248, which contained a directive to the Commission, created new 
sexual offenses, and enhanced penalties for existing sexual offenses. 
The amendment implements the directive by creating two new guidelines, 
Sec. Sec.  2A3.5 (Criminal Sexual Abuse and Offenses Related to 
Registration as a Sex Offender) and 2A3.6 (Aggravated Offenses Relating 
to Registration as a Sex Offender). It further addresses relevant 
provisions in the Adam Walsh Act by making changes to Chapter Two, Part 
A, Subpart 3 (Criminal Sexual Abuse) and Part G (Offenses Involving 
Commercial Sex Acts, Sexual Exploitation of Minors, and Obscenity), 
Sec.  2J1.2 (Obstruction of Justice), Sec.  3D1.2 (Groups of Closely 
Related Counts), Sec.  4B1.5 (Repeat and Dangerous Sex Offender Against 
Minors), Sec.  5B1.3 (Conditions of Probation), Sec.  5D1.2 (Term of 
Supervised Release), Sec.  5D1.3 (Conditions of Supervised Release) and 
Appendix A (Statutory Index).
    First, section 206 of the Adam Walsh Act amended 18 U.S.C. 2241(c) 
to add a new mandatory minimum term of imprisonment of 30 years for 
offenses related to the aggravated sexual abuse of a child under 12 
years old, or of a child between 12 and 16 years old if force, threat, 
or other means was used. In response to the new mandatory minimum for 
these offenses, the amendment increases the base offense level at Sec.  
2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse) 
from level 30 to level 38. The base offense level of 30 has been 
retained for all other offenses. At least one specific offense 
characteristic applied to every conviction under 18 U.S.C. 2241(c) 
sentenced under Sec.  2A3.1 in fiscal year 2006. Accordingly, the 
mandatory minimum 360 months' imprisonment is expected to be reached or 
exceeded in every case with a base offense level of 38.
    The amendment provides a new application note that precludes 
application of the specific offense characteristic at Sec.  2A3.1(b)(1) 
regarding conduct described in 18 U.S.C. 2241(a) or (b) 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. 2241(a) or (b) 
(force, threat, or other means). The amendment also precludes 
application of the specific offense characteristic for the age of a 
victim at Sec.  2A3.1(b)(2) if the defendant was convicted under 
section 2241(c). The heightened base offense level of 38 takes into 
account the age of the victim. These instructions, therefore, avoid 
unwarranted double counting.
    Second, section 207 of the Adam Walsh Act increased the statutory 
maximum term of imprisonment under 18 U.S.C. 2243(b) from 5 years to 15 
years for the sexual abuse of a person in official detention or under 
custodial authority. In response to increased penalty, the amendment 
increases the base offense level from 12 to 14 in Sec.  2A3.3 (Criminal 
Sexual Abuse of a Ward or Attempt to Commit Such Acts). The amendment 
also adds a new definition of ``minor'' consistent with how this term 
is defined elsewhere in the guidelines manual. In addition, the 
amendment includes an application note precluding application of Sec.  
3B1.3 (Abuse of Position of Trust or Use of Special Skill) for these 
offenses because an abuse of position of trust is assumed in all such 
cases and, therefore, is built into the base offense level.
    Third, section 206 of the Adam Walsh Act created a new subsection 
at 18 U.S.C. 2244. Section 2244(a)(5) provides a penalty of any term of 
years if the sexual conduct would have violated 18 U.S.C. 2241(c) had 
the contact been a sexual act. Section 2241(c) conduct involves the 
aggravated sexual abuse of a child under 12 years old or of a child 
between 12 and 16 years old if force, threat, or other means was used, 
as defined in 18 U.S.C. 2241(a) and (b). Prior to the Adam Walsh Act, 
the penalty for offenses involving children under 12 years old was 
``twice that otherwise provided,'' and the penalty for sexual contact 
involving behavior described in 18 U.S.C. 2241 was a statutory maximum 
term of imprisonment of 10 years.
    The amendment addresses this new offense by increasing the minimum 
offense level in the age enhancement in subsection (b)(1) of Sec.  
2A3.4 (Abusive Sexual Contact or Attempt to Commit Abusive Sexual 
Contact) from level 20 to level 22.
    Fourth, section 141 of the Adam Walsh Act created a new offense 
under 18 U.S.C. 2250(a) for the failure to register as a sex offender. 
The basic offense carries a statutory maximum term of imprisonment of 
10 years. Section 141 also included a directive to the Commission that 
when promulgating guidelines for the offense, to consider, among other 
factors, the seriousness of the sex offender's conviction that gave 
rise to the requirement to register; relevant further offense conduct 
during the period for which the defendant failed to register; and the 
offender's criminal history.
    The amendment creates a new guideline, Sec.  2A3.5 (Failure to 
Register as a Sex Offender), to address the directive. The new 
guideline provides three alternative base offense levels based on the 
tiered category of the sex offender: level 16 if the defendant was 
required to register as a Tier III offender; level 14 if the defendant 
was required to register as a Tier II offender; and level 12 if the 
defendant was required to register as a Tier I offender.
    The amendment also provides two specific offense characteristics. 
First, subsection (b)(1) provides a tiered enhancement to address 
criminal conduct committed while the defendant is in a failure to 
register status. Specifically, Sec.  2A3.5(b)(1) provides a six-level 
increase if, while in a failure to register status, the defendant 
committed a sex offense against an adult, a six-level increase if the 
defendant committed a felony offense against a minor, and an

[[Page 28566]]

eight-level increase if the defendant committed a sex offense against a 
minor. Second, Sec.  2A3.5(b)(2) provides a three-level decrease if the 
defendant voluntarily corrected the failure to register or voluntarily 
attempted to register but was prevented from registering by 
uncontrollable circumstances, and the defendant did not contribute to 
the creation of those circumstances. The reduction covers cases in 
which (1) the defendant either does not attempt to register until after 
the relevant registration period has expired but subsequently 
successfully registers, thereby correcting the failure to register 
status, or (2) the defendant, either before or after the registration 
period has expired, attempted to register but circumstances beyond the 
defendant's control prevented the defendant from successfully 
registering. An application note specifies that the voluntary attempt 
to register or to correct the failure to register must have occurred 
prior to the time the defendant knew or reasonably should have known a 
jurisdiction had detected the failure to register. The application note 
also provides that the reduction does not apply if the enhancement for 
committing one of the enumerated offenses in Sec.  2A3.5(b)(1) applies.
    Additionally, the amendment adds Sec.  2A3.5 to the list of 
offenses that are considered groupable under Sec.  3D1.2(d) because the 
failure to register offense is an ongoing and continuous offense.
    Fifth, section 141 of the Adam Walsh Act created two new aggravated 
offenses relating to the registration as a sex offender. Section 141 of 
the Act created 18 U.S.C. 2250(c), which carries a mandatory minimum 
term of imprisonment of 5 years and a statutory maximum term of 
imprisonment of 30 years if a defendant commits a crime of violence 
while in a failure to register status, with the sentence to be 
consecutive to the punishment provided for the failure to register. 
Section 702 of the Adam Walsh Act created a new offense at 18 U.S.C. 
2260A that prohibits the commission of various enumerated offenses 
while in a failure to register status. The penalty for this offense is 
a mandatory term of imprisonment of 10 years to be imposed 
consecutively to the underlying offense.
    The amendment creates a new guideline at Sec.  2A3.6 (Aggravated 
Offenses Relating to Registration as a Sex Offender) to address these 
new offenses. The new guideline provides that for offenses under 
section 2250(c), the guideline sentence is the minimum term of 
imprisonment required by statute, and for offenses under section 2260A, 
the guideline sentence is the term of imprisonment required by statute. 
Chapters Three and Four are not to apply. This is consistent with how 
the guidelines treat other offenses that carry both a specified term of 
imprisonment and a requirement that such term be imposed consecutively. 
See Sec. Sec.  3D1.1 (Procedure for Determining Offense Level on 
Multiple Counts) and 5G1.2 (Sentencing on Multiple Counts of 
Conviction).
    The guideline includes an application note that provides an upward 
departure stating that a sentence above the minimum term required by 
section 2250(c) is an upward departure from the guideline sentence. An 
upward departure may be warranted, for example, in a case involving a 
sex offense committed against a minor or if the offense resulted in 
serious bodily injury to a minor.
    Sixth, section 208 of the Adam Walsh Act added a new mandatory 
minimum term of imprisonment of 15 years under 18 U.S.C. 1591(b)(1) for 
sex trafficking of an adult by force, fraud, or coercion. In response, 
the amendment provides a new base offense level of 34 in Sec.  2G1.1 
(Promoting a Commercial Sex Act or Prohibited Sexual Conduct with an 
Individual Other than a Minor) if the offense of conviction is 18 
U.S.C. 1591(b)(1), but retains a base offense level of 14 for all other 
offenses. In addition, the amendment limits application of the specific 
offense characteristic at Sec.  2G1.1(b)(1) that applies if the offense 
involved fraud or coercion only to those offenses receiving a base 
offense level of 14. Offenses under 18 U.S.C. 1591(b)(1) necessarily 
involve fraud and coercion and, therefore, such conduct is built into 
the heightened base offense level of 34. This limitation thus avoids 
unwarranted double counting.
    Seventh, section 208 of the Adam Walsh Act added a new mandatory 
minimum term of imprisonment of 15 years under 18 U.S.C. 1591(b)(1) for 
sex trafficking of children under 14 years of age and added a new 
mandatory minimum term of imprisonment of 10 years and increased the 
statutory maximum term of imprisonment from 40 years to life under 18 
U.S.C. 1591(b)(2) for sex trafficking of children who had attained the 
age of 14 years but had not attained the age of 18 years. Further, the 
Adam Walsh Act increased the mandatory minimum term of imprisonment 
from 5 years to 10 years and increased the statutory maximum term of 
imprisonment from 30 years to life under both 18 U.S.C. 2422(b), for 
persuading or enticing any person who has not attained the age of 18 
years to engage in prostitution or any sexual activity for which any 
person can be charged with a criminal offense, and 18 U.S.C. 2423(a), 
for transporting a person who has not attained the age of 18 years in 
interstate or foreign commerce, with the intent that the person engage 
in prostitution, or in any sexual activity for which any person can be 
charged with a criminal offense.
    In response, the amendment provides alternative base offense levels 
in Sec.  2G1.3 (Promoting a Commercial Sex Act or Prohibited Sexual 
Conduct with a Minor; Transportation of Minors to Engage in a 
Commercial Sex Act or Prohibited Sexual Conduct; Travel to Engage in 
Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Sex 
Trafficking of Children; Use of Interstate Facilities to Transport 
Information about a Minor) based on the statute of conviction and the 
conduct described in that conviction. For convictions under 18 U.S.C. 
1591(b)(1), the base offense level is 34. For convictions under 18 
U.S.C. 1591(b)(2), the base offense level is 30.
    The amendment further provides a base offense level of 28 for 
convictions under 18 U.S.C. Sec.  2422(b) and 2423(a). The two-level 
enhancement for the use of a computer at Sec.  2G1.3(b)(3) applied to 
95 percent of offenders convicted under 18 U.S.C. 2422(b) and sentenced 
under Sec.  2G1.3 in fiscal year 2006. In addition, the two-level 
enhancement for the offense involving a sexual act or sexual contact at 
Sec.  2G1.3(b)(4) applied to 95 percent of offenders convicted under 18 
U.S.C. 2423(a) and sentenced under this guideline in fiscal year 2006. 
With application of either enhancement, the mandatory minimum term of 
imprisonment of 120 months will be reached in the majority of 
convictions under 18 U.S.C. 2422(b) and 2423(a), before application of 
other guidelines adjustments.
    Further, the amendment addresses the interaction of two specific 
offense characteristics with the alternative base offense levels. 
First, every conviction under 18 U.S.C. 1591 necessarily involves a 
commercial sex act. With the base offense levels being determined based 
on the statute of conviction, the amendment clarifies that Sec.  
2G1.3(b)(4)(B), which provides a two-level enhancement if the offense 
involved a commercial sex act, does not apply if the defendant is 
convicted under 18 U.S.C. 1591. Second, the amendment precludes 
application of the age enhancement in Sec.  2G1.3(b)(5) if the base 
offense level is determined under subsection (a)(1) of Sec.  2G1.3 for 
a conviction under 18 U.S.C. 1591(b)(1). The base offense level 
provided by subsection (a)(1) of Sec.  2G1.3 takes into

[[Page 28567]]

account the age of the victim and, therefore, limitations on 
application of subsections (b)(4)(B) and (b)(5) of Sec.  2G1.3 avoid 
unwarranted double counting.
    Eighth, section 503 of the Adam Walsh Act created a new section, 18 
U.S.C. 2257A, adopting new recordkeeping obligations for the production 
of any book, magazine, periodical, film, videotape, or digital image 
that contains a visual depiction of simulated sexually explicit 
conduct. Section 2257A has a statutory maximum of one year imprisonment 
for the failure to comply with the recordkeeping requirements and a 
statutory maximum term of imprisonment of five years if the violation 
was to conceal a substantive offense that involves either causing a 
minor to engage in sexually explicit conduct for the purpose of 
producing a visual depiction or trafficking in material involving the 
sexual exploitation of a minor. The new offense is similar to 18 U.S.C. 
2257, which is referenced to Sec.  2G2.5 (Recordkeeping Offenses 
Involving the Production of Sexually Explicit Materials; Failure to 
Provide Required Marks in Commercial Electronic Mail). Accordingly, the 
amendment refers the new offense to Sec.  2G2.5.
    Ninth, section 701 of the Adam Walsh Act created a new offense in 
18 U.S.C. 2252A(g) that prohibits engaging in child exploitation 
enterprises, defined as violating 18 U.S.C. 1591, 1201 (if the victim 
is a minor), chapter 109A (involving a minor victim), chapter 110 
(except for 18 U.S.C. 2257 and 2257A), or chapter 117 (involving a 
minor victim), 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 amendment creates a new guideline at Sec.  2G2.6 (Child 
Exploitation Enterprises) to cover this new offense. The guideline 
provides a base offense level of 35 and four specific offense 
characteristics. The Commission anticipates these offenses typically 
will involve conduct encompassing at least one of the specific offense 
characteristics, resulting in an offense level of at least level 37. 
Thus, the mandatory minimum term of imprisonment of 240 months 
typically is expected to be reached or exceeded, before application of 
other guideline adjustments.
    Tenth, section 206 of the Adam Walsh Act increased the statutory 
maximum term of imprisonment from 4 years to 10 years under 18 U.S.C. 
2252B(b) for knowingly using a misleading domain name with the intent 
to deceive a minor into viewing material harmful to minors on the 
Internet. In addition, section 703 of the Act created a new section, 18 
U.S.C. 2252C, that carries a statutory maximum term of imprisonment of 
10 years for knowingly embedding words or digital images into the 
source code of a Web site with the intent to deceive a person into 
viewing material constituting obscenity. Section 2252C(b) carries a 
statutory maximum term of imprisonment of 20 years for knowingly 
embedding words or digital images into the source code of a Web site 
with the intent to deceive a minor into viewing material harmful to 
minors on the Internet.
    In response to the new offense, the amendment expands the scope of 
subsection (b)(2) of Sec.  2G3.1 (Importing, Mailing, or Transporting 
Obscene Matter; Transferring Obscene Matter to a Minor; Misleading 
Domain Names) by adding to this enhancement ``embedded words or digital 
images into the source code on a Web site.''
    Eleventh, section 141 of the Adam Walsh Act added a new provision 
in 18 U.S.C. 1001 that carries a statutory maximum term of imprisonment 
of 8 years for falsifying or covering up by any scheme or making 
materially false or fraudulent statements or making or using any false 
writings or documents that relate to offenses under chapters 109A, 
109B, 110, and 117, and under section 1591 of chapter 77. The amendment 
adds a new specific offense characteristic at subsection (b)(1)(A) of 
Sec.  2J1.2 (Obstruction of Justice) enhancing the offense level by 
four levels if the defendant was convicted under 18 U.S.C. 1001 and the 
statutory maximum term of 8 years' imprisonment applies because the 
matter relates to sex offenses. The amendment also added language to 
Application Note 4 stating an upward departure may be warranted under 
the guideline in a case involving a particularly serious sex offense.
    Twelfth, section 206 of the Adam Walsh Act added 18 U.S.C. 1591 to 
the list of offenses for which a defendant is to be sentenced to life 
under 18 U.S.C. 3559(e)(2)(A). The amendment adds 18 U.S.C. 1591 to the 
list of instant offenses of convictions that are covered sex crimes 
under Sec.  4B1.5.
    Thirteenth, section 141 of the Adam Walsh Act amended 18 U.S.C. 
3563 and 3583. The amendment adds a new subdivision to (a)(9) of Sec.  
5B1.3 and to (a)(7) of Sec.  5D1.3 to require a defendant to comply 
with the new registration requirements provided by the Adam Walsh Act. 
The amendment also modifies the language in Sec. Sec.  5B1.3(a)(9) and 
5D1.3(a)(7) relating to defendants convicted of a sexual offense 
described in 18 U.S.C. 4042(c)(4). Not all states have implemented the 
new requirements, continuing to register sex offenders pursuant to the 
sex offender registry in place prior to July 27, 2006, the date of 
enactment of the Adam Walsh Act. Thus, it is necessary to maintain the 
language in the guidelines providing for conditions of probation and 
supervised release for those offenders.
    Fourteenth, section 141 of the Act amended 18 U.S.C. 3583(k), which 
provides that the authorized term of supervised release for any offense 
under enumerated sex offenses is any term of years or life. In 
response, the amendment adds offenses under chapter 109B and sections 
1201 and 1591 of title 18 United States Code or 18 U.S.C. Sec.  1201 
and 1591 to the definition of sex offense under Sec.  5D1.2(b)(2) for 
which the length of the term of supervised release shall be not less 
than the minimum term of years specified for the offense and may be up 
to life.
    Finally, the amendment provides a definition of ``minor'' in 
relevant guidelines that is consistent with how this term is defined 
elsewhere in the guidelines. Outdated background commentary also is 
deleted by this amendment.

5. Corrections to Sec. Sec.  2B1.1 and 2L1.1

    Amendment: Section 2B1.1(b)(13)(C) is amended by striking 
``(b)(12)(B)'' and inserting ``(b)(13)(B)''.
    Section 2L1.1(b)(1) is amended by striking ``(a)(2)'' and inserting 
``(a)(3)''.
    Reason for Amendment: This amendment corrects typographical errors 
in subsection (b)(13)(C) of Sec.  2B1.1 (Larceny, Embezzlement, and 
Other Forms of Theft; Offenses Involving Stolen Property; Property 
Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving 
Altered or Counterfeit Instruments Other than Counterfeit Bearer 
Obligations of the United States) and subsection (b)(1) of Sec.  2L1.1 
(Smuggling, Transporting, or Harboring an Unlawful Alien).
    The typographical error to Sec.  2B1.1(b)(13)(C) stems from 
redesignations made to Sec.  2B1.1 in 2004 when the Commission added a 
new subsection (b)(7) in response to the Controlling the Assault of 
Non-Solicited Pornography and Marketing Act of 2003 (``CAN-SPAM Act''), 
Pub. L. 108-187. (USSG App. C Amendment 665) (November 1, 2004).
    The typographical error in Sec.  2L1.1(b)(1) stems from 
redesignations

[[Page 28568]]

made to Sec.  2L1.1 in 2006 when the Commission added a new subsection 
(a)(1) for aliens who are inadmissible for national security related 
reasons. (USSG App. C Amendment 692) (November 1, 2006).
    The Commission has determined that this amendment should be applied 
retroactively because (A) the purpose of the amendment is to correct 
typographical errors; (B) the number of cases involved is minimal even 
given the potential change in guideline ranges (i.e., ensuring 
application of the maximum increase of 8 levels in Sec.  
2B1.1(b)(13)(C) and providing correct application of the three-level 
reduction in Sec.  2L1.1(b)(1)); and (C) the amendment would not be 
difficult to apply retroactively. These factors, combined, meet the 
standards set forth in the relevant background commentary to Sec.  
1B1.10 (Reduction in Term of Imprisonment as a Result of Amended 
Guideline Range).

6. Miscellaneous Laws

    Amendment: 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;''.
    The Commentary to Sec.  2E3.1 captioned ``Statutory Provisions'' is 
amended by inserting ``; 31 U.S.C. 5363'' after ``1955''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 31 U.S.C. 5332 the following:

``31 U.S.C. 5363--2E3.1'';

and by inserting after the line referenced to 38 U.S.C. 787 the 
following:

``38 U.S.C. 2413--2B2.3''.

    Reason for Amendment: This amendment addresses two new offenses, 38 
U.S.C. 2413, which was created by the Respect for America's Fallen 
Heroes Act, Pub. L. 109-228, and 31 U.S.C. 5363, which was created by 
the Security and Accountability for Every Port Act of 2006, Pub. L. 
109-347.
    The new offense at 38 U.S.C. 2413 prohibits certain demonstrations 
at Arlington National Cemetery and at cemeteries controlled by the 
National Cemetery Administration and provides a statutory maximum 
penalty of imprisonment of not more than one year, a fine, or both. The 
amendment references convictions under 38 U.S.C. 2413 to Sec.  2B2.3 
(Trespass) and expands the scope of the two-level enhancement at Sec.  
2B2.3(b)(1) for trespass offenses that occur in certain locations to 
include trespass at Arlington National Cemetery or a cemetery under the 
control of the National Cemetery Administration. The Commission 
determined that the need to protect the final resting places of the 
nation's war dead and the need to discourage violent confrontations at 
the funerals of veterans who are killed in action justifies expanding 
the scope of the enhancement to cover such conduct.
    The new offense at 31 U.S.C. 5363 prohibits acceptance of any 
financial instrument for unlawful Internet gambling and provides a 
statutory maximum term of imprisonment of five years. The amendment 
references convictions under 31 U.S.C. 5363 to Sec.  2E3.1 (Gambling 
Offenses).

7. Repromulgation of Emergency Amendment on Intellectual Property

    Amendment: The amendment to Sec.  2B5.3, effective September 12, 
2006 (see Appendix C amendment 682), is repromulgated with the 
following changes:
    Section 2B5.3(b)(3) is amended by inserting ``(A)'' before 
``offense involved'' and by inserting ``; or (B) defendant was 
convicted under 17 U.S.C. 1201 and 1204 for trafficking in 
circumvention devices'' after ``items''.
    The Commentary to Sec.  2B5.3 captioned ``Statutory Provisions'' is 
amended by inserting ``Sec.  '' after ``17 U.S.C. ``; and 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.--For purposes of 
this guideline:'' the following paragraph:

    `` `Circumvention devices' are devices used to perform the 
activity described in 17 U.S.C. Sec.  1201(a)(3)(A) and 
1201(b)(2)(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 Sec.  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. Sec.  1201 and 1204 in which the 
defendant used a circumvention device. 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.''.

    The Commentary to Sec.  2B5.3 captioned ``Application Notes'' is 
amended in Note 3 by striking ``shall'' and inserting ``may''.
    The Commentary to Sec.  2B5.3 captioned ``Application Notes'' is 
amended in Note 4 by striking ``Upward'' before ``Departure''; by 
inserting ``or overstates'' after ``understates''; and by striking ``an 
upward'' each place it appears and inserting ``a''; and by adding at 
the end the following:

    ``(C) The method used to calculate the infringement amount is 
based upon a formula or extrapolation that results in an estimated 
amount that may substantially exceed the actual pecuniary harm to 
the copyright or trademark owner.''.

    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 17 U.S.C. 506(a) the following new lines:

``17 U.S.C. 1201--2B5.3
17 U.S.C. 1204--2B5.3''.

    Reason for Amendment: This amendment re-promulgates as permanent 
the temporary, emergency amendment (effective Sept. 12, 2006) that 
implemented the emergency directive in section 1(c) of the Stop 
Counterfeiting in Manufactured Goods Act, Pub. L. 109-181 (2006). 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.''
    In carrying out [the directive], the United States Sentencing 
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).

[[Page 28569]]

    The amendment adds 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.
    In addition to re-promulgating the emergency amendment, the 
amendment responds to the directive by addressing violations of 17 
U.S.C. 1201 and 1204 involving circumvention devices. The amendment 
addresses circumvention devices in two ways. First, the 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 
used a circumvention device and thus obtained unauthorized access to a 
copyrighted work. Such an offense would involve an identifiable 
copyrighted work. Accordingly, consistent with the existing rules in 
Sec.  2B5.3, the ``retail value of the infringed item'' would be used 
for purposes of determining the infringement amount. The amendment adds 
subsection (viii) to Application Note 2(A), and explains that 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. If the defendant violated 17 U.S.C. 1201 
and 1204 by conduct that did not include use of a circumvention device, 
Application Note 2(B) would apply by default. Thus, as it does in any 
case not otherwise covered by Application Note 2(A), the infringement 
amount would be determined by reference to the value of the infringing 
item, which in these cases would be the circumvention device.
    Second, the amendment expands the sentencing enhancement in Sec.  
2B5.3(b)(3) to include convictions under 17 U.S.C. 1201 and 1204 for 
trafficking in circumvention devices. Prior to the amendment, Sec.  
2B5.3(b)(3) provided 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 in a manner that enables 
others to infringe the copyright or trademark. The Commission 
determined that trafficking in circumvention devices similarly enables 
others to infringe a copyright and warrants greater punishment.
    The amendment also strikes language in Application Note 3 mandating 
an adjustment under Sec.  3B1.3 (Abuse of Position of Trust or Use of 
Special Skill) in every case in which the defendant de-encrypted or 
otherwise circumvented a technological security measure to gain initial 
access to an infringed item. Instead, the note indicates that 
application of the adjustment may be appropriate in such a case because 
the Commission determined that not every case involving de-encryption 
or circumvention requires the level of skill contemplated by the 
special skill adjustment.
    Finally, the amendment modifies Application Note 4 to address 
downward departures. The addition of this language recognizes that in 
some instances the method for calculating the infringement amount may 
be based on a formula or extrapolation that overstates the actual 
pecuniary harm to the copyright or trademark owner. This language is 
analogous to departure language in Sec.  2B1.1 (Larceny, Embezzlement, 
and Other Forms of Theft; Offenses Involving Stolen Property; Property 
Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving 
Altered or Counterfeit Instruments Other than Counterfeit Bearer 
Obligations of the United States) and thus promotes consistency between 
these two economic crime guidelines.

8. Drugs

    Amendment: Section 2D1.1(b) is amended by redesingating 
subdivisions (8) and (9), as subdivisions (10) and (11), respectively; 
by redesignating subdivisions (5) through (7) as subdivisions (6) 
through (8), respectively; by inserting after subdivision (4) the 
following:

    ``(5) If the defendant is convicted under 21 U.S.C. 865, 
increase by 2 levels.'';


and by inserting after subdivision (8), as redesignated by this 
amendment, the following:


    ``(9) If the defendant was convicted under 21 U.S.C. 
841(g)(1)(A), increase by 2 levels.''.

    Section 2D1.1(b) is amended in subdivision (10), as redesignated by 
this amendment, by striking ``greater'' and inserting ``greatest''; by 
redesignating subdivision (C) as subdivision (D); and by striking 
subdivision (B) and inserting the following:

    ``(B) If the defendant was convicted under 21 U.S.C. 860a of 
distributing, or possessing with intent to distribute, 
methamphetamine on premises where a minor is present or resides, 
increase by 2 levels. If the resulting offense level is less than 
level 14, increase to level 14.
    (C) If--
    (i) the defendant was convicted under 21 U.S.C. 860a of 
manufacturing, or possessing with intent to manufacture, 
methamphetamine on premises where a minor is present or resides; or
    (ii) the offense involved the manufacture of amphetamine or 
methamphetamine and the offense created a substantial risk of harm 
to (I) human life other than a life described in subdivision (D); or 
(II) the environment, increase by 3 levels. If the resulting offense 
level is less than level 27, increase to level 27.''.

    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 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

[[Page 28570]]

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 section captioned ``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 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 20 in subdivision (A) by striking ``(b)(8)(B) or (C)'' 
and inserting ``(b)(10)(C)(ii) or (D)''; and in subdivision (B) by 
striking ``(b)(8)(C)'' and inserting ``(b)(10)(D)''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 21 by striking ``(9)'' each place it appears and 
inserting ``(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)''.
    The Commentary to Sec.  2D1.1 captioned ``Background'' is amended 
in the ninth paragraph by striking ``(b)(8)'' and inserting 
``(b)(10)''; and in the last paragraph by striking ``(b)(8)(B) and 
(C)'' and inserting ``(b)(10)(C)(ii) and (D)''.
    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:

``21 U.S.C. 841(g)--2D1.1'';

by inserting after the line referenced to 21 U.S.C. 860 the following:

``21 U.S.C. 860a--2D1.1'';

and by inserting after the line referenced to 21 U.S.C. 864 the 
following:

``21 U.S.C. 865--2D1.1, 2D1.11''.

    Reason for Amendment: This amendment responds to the new offenses 
created by the USA PATRIOT Improvement and Reauthorization Act of 2005 
(the ``PATRIOT Reauthorization 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 amendment addresses section 731 of the PATRIOT 
Reauthorization Act, which created a new offense at 21 U.S.C. 865. The 
new offense provides a mandatory consecutive sentence of 15 years' 
imprisonment for smuggling of methamphetamine or its precursor 
chemicals into the United States by a person enrolled in, or acting on 
behalf of someone or some entity enrolled in, any dedicated commuter 
lane, alternative or accelerated inspection system, or other 
facilitated entry program administered by the federal government for 
use in entering the United States. The amendment refers

[[Page 28571]]

the new offense to both Sec. Sec.  2D1.1 (Unlawful Manufacturing, 
Importing, Exporting, or Trafficking (Including Possession with Intent 
to Commit These Offenses); Attempt or Conspiracy) and 2D1.11 
(Unlawfully Distributing, Importing, Exporting or Possessing a Listed 
Chemical; Attempt or Conspiracy), and 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. The Commission determined that a two-
level enhancement is appropriate because such conduct is analogous to 
abusing a position of trust, which receives a two-level adjustment 
under Sec.  3B1.3 (Abuse of Position of Trust or Use of Special Skill).
    Second, the amendment modifies Sec.  2D1.1 to address the new 
offense in 21 U.S.C. 841(g) (Internet Sales of Date Rape Drugs) created 
by the Adam Walsh Act. This offense, which is punishable up to 
statutory maximum term of imprisonment of 20 years, 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 amendment provides a new two-level enhancement in Sec.  
2D1.1(b)(9) that is tailored to focus on the more serious conduct 
covered by the new statute, specifically conviction under 21 U.S.C. 
841(g)(A), which covers individuals who know or have reasonable cause 
to believe the drug would be used in the commission of criminal sexual 
conduct.
    Third, the amendment eliminates the maximum base offense level of 
level 20 for ketamine offenses. Ketamine is a Schedule III controlled 
substance. The Drug Quantity Table at Sec.  2D1.1(c) provides a maximum 
offense level of 20 for most Schedule III substances because such 
substances are subject to a statutory maximum term of imprisonment of 5 
years. If a defendant is convicted under 21 U.S.C. 841(g) for 
distributing ketamine, however, the defendant is subject to a statutory 
maximum term of imprisonment of 20 years. Accordingly, the amendment 
modifies the Drug Quantity Table in order to allow for appropriate 
sentencing of 21 U.S.C. 841(g) offenses involving larger quantities of 
ketamine that correspond to offense levels greater than level 20. This 
approach is consistent with how other drug offenses with a statutory 
maximum term of imprisonment of 20 years are penalized and with how 
other date rape drugs are penalized. The amendment also provides a 
marihuana equivalency in Application Note 10 for ketamine (1 unit of 
ketamine = 1 gram of marihuana).
    Fourth, the amendment adds to Sec.  2D1.1, Application Note 10, a 
new drug equivalency 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 drug 
equivalency is 1 ml of BD or GBL equals 8.8 grams of marihuana. The 
Commission has received testimony that both substances are at least 
equipotent as GHB, which is punished at the same marihuana equivalency.
    Fifth, the amendment addresses the new offense in 21 U.S.C. 860a 
(Consecutive sentence for manufacturing or distributing, or possessing 
with intent to manufacture or distribute, methamphetamine on premises 
where children are present or reside), created by the PATRIOT 
Reauthorization Act. The new offense provides that a term of not more 
than 20 years' imprisonment is to be imposed, in addition to any other 
sentence imposed, for manufacturing, distributing, or possessing with 
the intent to manufacture or distribute, methamphetamine on a premises 
where a minor is present or resides. The amendment modifies Sec.  
2D1.1(b)(8)(C) to provide a two-level increase (with a minimum offense 
level of 14) if the defendant is convicted under 21 U.S.C. 860a 
involving the distribution or possession with intent to distribute 
methamphetamine and a three-level increase (with a minimum offense 
level of 27) if the defendant is convicted under 21 U.S.C. 860a 
involving the manufacture or possession with intent to manufacture 
methamphetamine.
    To account for the spectrum of harms created by methamphetamine 
offenses, and to address the specific harms created by 21 U.S.C. 860a, 
the amendment builds on the ``substantial risk enhancement.'' This 
multi-tiered enhancement was added to Sec.  2D1.1 in 2000 in response 
to the Methamphetamine Anti-Proliferation Act of 2000, Pub. L. 106-310, 
Title XXXVI. See USSG App. C (Amendments 608 and 620 (effective Dec. 
12, 2000, and Nov. 1, 2001, respectively)). Prior to this amendment, 
the first tier provided a two-level increase for basic environmental 
harms, such as discharging hazardous substances into the environment. 
The second tier provided a three-level increase, and a minimum offense 
level of 27, for the substantial risk of harm to the life of someone 
other than a minor or an incompetent. The final tier provided a six-
level increase and a minimum offense level of 30 for the substantial 
risk of harm to the life of a minor or incompetent or the environment.
    The Commission determined that distributing, or possessing with the 
intent to distribute, methamphetamine on a premises where a minor is 
present or resides presents a greater harm than discharging a hazardous 
substance into the environment, but is a lesser harm than the 
substantial risk of harm to adults or to the environment created by the 
manufacture of methamphetamine. Therefore, the amendment adds a new 
tier to the enhancement in the new subdivision (b)(10)(B) in order to 
account for this conduct. A defendant convicted under 21 U.S.C. 860a 
for distributing, or possessing with the intent to distribute, 
methamphetamine on a premises where a minor is present or resides will 
receive a two-level enhancement, with a minimum offense level of 14.
    To address the overlap of conduct covered by the enhancement for 
the substantial risk of harm to the life of a minor and the new offense 
of manufacturing, or possessing with the intent to manufacture, 
methamphetamine on a premises where a minor is present or resides, a 
three-level enhancement and a minimum offense level of level 27 will 
apply 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 offense which creates a substantial 
risk of harm to the life of a minor, a six-level enhancement and a 
minimum offense level of level 30 will apply.
    Sixth, the amendment updates Appendix A (Statutory Index) to 
include references to the new offenses created by the PATRIOT 
Reauthorization and Adam Walsh Acts.

9. Cocaine Base Sentencing

    Amendment: Section 2D1.1(c)(1) is amended by striking ``1.5 KG or 
more of Cocaine Base'' and inserting ``4.5 KG or more of Cocaine 
Base''.
    Section 2D1.1(c)(2) is amended by striking ``At least 500 G but 
less than 1.5 KG of Cocaine Base'' and inserting ``At least 1.5 KG but 
less than 4.5 KG of Cocaine Base''.

[[Page 28572]]

    Section 2D1.1(c)(3) is amended by striking ``At least 150 G but 
less than 500 G of Cocaine Base'' and inserting ``At least 500 G but 
less than 1.5 KG of Cocaine Base''.
    Section 2D1.1(c)(4) is amended by striking ``At least 50 G but less 
than 150 G of Cocaine Base'' and inserting ``At least 150 G but less 
than 500 G of Cocaine Base''.
    Section 2D1.1(c)(5) is amended by striking ``At least 35 G but less 
than 50 G of Cocaine Base'' and inserting ``At least 50 G but less than 
150 G of Cocaine Base''.
    Section 2D1.1(c)(6) is amended by striking ``At least 20 G but less 
than 35 G of Cocaine Base'' and inserting ``At least 35 G but less than 
50 G of Cocaine Base''.
    Section 2D1.1(c)(7) is amended by striking ``At least 5 G but less 
than 20 G of Cocaine Base'' and inserting ``At least 20 G but less than 
35 G of Cocaine Base''.
    Section 2D1.1(c)(8) is amended by striking ``At least 4 G but less 
than 5 G of Cocaine Base'' and inserting ``At least 5 G but less than 
20 G of Cocaine Base''.
    Section 2D1.1(c)(9) is amended by striking ``At least 3 G but less 
than 4 G of Cocaine Base'' and inserting ``At least 4 G but less than 5 
G of Cocaine Base''.
    Section 2D1.1(c)(10) is amended by striking ``At least 2 G but less 
than 3 G of Cocaine Base'' and inserting ``At least 3 G but less than 4 
G of Cocaine Base''.
    Section 2D1.1(c)(11) is amended by striking ``At least 1 G but less 
than 2 G of Cocaine Base'' and inserting ``At least 2 G but less than 3 
G of Cocaine Base''.
    Section 2D1.1(c)(12) is amended by striking ``At least 500 MG but 
less than 1 G of Cocaine Base'' and inserting ``At least 1 G but less 
than 2 G of Cocaine Base''.
    Section 2D1.1(c)(13) is amended by striking ``At least 250 MG but 
less than 500 MG of Cocaine Base'' and inserting ``At least 500 MG but 
less than 1 G of Cocaine Base''.
    Section 2D1.1(c)(14) is amended by striking ``Less than 250 MG of 
Cocaine Base'' and inserting ``Less than 500 MG of Cocaine Base''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 10 in the first paragraph by inserting before ``The 
Commission has used the sentences'' the following:

    ``Use of Drug Equivalency Tables.--
    (A) Controlled Substances Not Referenced in Drug Quantity 
Table.--'';

by striking ``(A)'' before ``Use'' and inserting ``(i)''; by striking 
``(B)'' before ``Find'' and inserting ``(ii)''; and by striking ``(C)'' 
before ``Use'' and inserting ``(iii)'';
in the second paragraph by striking ``The Drug Equivalency Tables also 
provide'' and inserting the following:

    ``(B) Combining Differing Controlled Substances (Except Cocaine 
Base).--The Drug Equivalency Tables also provide'';

and by adding at the end the following:

    ``To determine a single offense level in a case involving 
cocaine base and other controlled substances, see subdivision (D) of 
this note.''.

    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 10 in the subdivision captioned ``Examples:'' by 
striking ``Examples:'' and inserting the following:

    ``(C) Examples for Combining Differing Controlled Substances 
(Except Cocaine Base).--'';

and by redesignating examples ``a.'' through ``d.'' as examples (i) 
through (iv), respectively.

    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 10 by inserting after example (iv), as redesignated by 
this amendment, the following:

    ``(D) Determining Base Offense Level in Offenses Involving 
Cocaine Base and Other Controlled Substances.--
    (i) In General.--If the offense involves cocaine base (`crack') 
and one or more other controlled substance, determine the base 
offense level as follows:
    (I) Determine the combined base offense level for the other 
controlled substance or controlled substances as provided in 
subdivision (B) of this note.
    (II) Use the combined base offense level determined under 
subdivision (B) of this note to obtain the appropriate marihuana 
equivalency for the cocaine base involved in the offense using the 
following table:

------------------------------------------------------------------------
            Base offense level                  Marihuana  equivalency
------------------------------------------------------------------------
38........................................  6.7 kg of marihuana
36........................................  6.7 kg of marihuana
34........................................  6 kg of marihuana.
32........................................  6.7 kg of marihuana.
30........................................  14 kg of marihuana.
28........................................  11.4 kg of marihuana.
26........................................  5 kg of marihuana.
24........................................  16 kg of marihuana.
22........................................  15 kg of marihuana.
20........................................  13.3 kg of marihuana.
18........................................  10 kg of marihuana.
16........................................  10 kg of marihuana.
14........................................  10 kg of marihuana.
12........................................  10 kg of marihuana.
------------------------------------------------------------------------

    (III) Using the marihuana equivalency obtained from the table in 
subdivision (II), convert the quantity of cocaine base involved in 
the offense to its equivalent quantity of marihuana.
    (IV) Add the quantity of marihuana determined under subdivisions 
(I) and (III), and look up the total in the Drug Quantity Table to 
obtain the combined base offense level for all the controlled 
substances involved in the offense.
    (ii) Example.--The case involves 1.5 kg of cocaine, 10 kg of 
marihuana, and 20 g of cocaine base. Pursuant to subdivision (B), 
the equivalent quantity of marihuana for the cocaine and the 
marihuana is 310 kg. (The cocaine converts to an equivalent of 300 
kg of marihuana (1.5 kg x 200 g = 300 kg), which when added to the 
quantity of marihuana involved in the offense, results in an 
equivalent quantity of 310 kg of marihuana.) This corresponds to a 
base offense level 26. Pursuant to the table in subdivision (II), 
the base offense level of 26 results in a marihuana equivalency of 5 
kg for the cocaine base. Using this marihuana equivalency for the 
cocaine base results in a marihuana equivalency of 100 kg (20 g x 5 
kg = 100 kg). Adding the quantities of marihuana of all three 
controlled substances results in a combined quantity of 410 kg of 
marihuana, which corresponds to a combined base offense level of 28 
in the Drug Quantity Table.''.

    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 10 by striking ``DRUG EQUIVALENCY TABLES'' and 
inserting the following:

    ``(E) Drug Equivalency Tables.--'';

and in the subdivision captioned ``Cocaine and Other Schedule I and II 
Stimulants (and their immediate precursors)'' by striking ``1 gm of 
Cocaine Base (`Crack') = 20 kg of marihuana''.

    Reason for Amendment: The Commission identified as a policy 
priority for the amendment cycle ending May 1, 2007, ``continuation of 
its work with the congressional, executive, and judicial branches of 
the government and other interested parties on cocaine sentencing 
policy,'' including reevaluating the Commission's 2002 report to 
Congress, Cocaine and Federal Sentencing Policy. As a result of the 
Anti-Drug Abuse Act of 1986, Pub. L. 99-570, 21 U.S.C. 841(b)(1) 
requires a five-year mandatory minimum penalty for a first-time 
trafficking offense involving 5 grams or more of crack cocaine, or 500 
grams of powder cocaine, and a ten-year mandatory minimum penalty for a 
first-time trafficking offense involving 50 grams or more of crack 
cocaine, or 5,000 grams or more of powder cocaine. Because 100 times 
more powder cocaine than crack cocaine is required to trigger the same 
mandatory minimum penalty, this penalty structure is commonly referred 
to as the ``100-to-1 drug quantity ratio.''
    To assist the Commission in its consideration of Federal cocaine 
sentencing policy, the Commission received statements and heard expert 
testimony from the Executive Branch, the Federal judiciary, defense

[[Page 28573]]

practitioners, state and local law enforcement representatives, medical 
and treatment experts, academicians, social scientists, and interested 
community representatives at hearings on November 14, 2006, and March 
20, 2007. The Commission also received substantial written public 
comment on Federal cocaine sentencing policy throughout the amendment 
cycle.
    During the amendment cycle, the Commission updated its analysis of 
key sentencing data about cocaine offenses and offenders; reviewed 
recent scientific literature regarding cocaine use, effects, 
dependency, prenatal effects, and prevalence; researched trends in 
cocaine trafficking patterns, price, and use; surveyed the state laws 
regarding cocaine penalties; and monitored case law developments.
    Current data and information continue to support the Commission's 
consistently held position that the 100-to-1 drug quantity ratio 
significantly undermines various congressional objectives set forth in 
the Sentencing Reform Act and elsewhere. These findings will be more 
thoroughly explained in a forthcoming report that will present to 
Congress, on or before May 15, 2007, a number of recommendations for 
modifications to the statutory penalties for crack cocaine offenses. It 
is the Commission's firm desire that this report will facilitate prompt 
congressional action addressing the 100-to-1 drug quantity ratio.
    The Commission's recommendation and strong desire for prompt 
legislative action notwithstanding, the problems associated with the 
100-to-1 drug quantity ratio are so urgent and compelling that this 
amendment is promulgated as an interim measure to alleviate some of 
those problems. The Commission has concluded that the manner in which 
the Drug Quantity Table in Sec.  2D1.1 (Unlawful Manufacturing, 
Importing, Exporting, or Trafficking (Including Possession with Intent 
to Commit These Offenses); Attempt or Conspiracy) was constructed to 
incorporate the statutory mandatory minimum penalties for crack cocaine 
offenses is an area in which the Federal sentencing guidelines 
contribute to the problems associated with the 100-to-1 drug quantity 
ratio.
    When Congress passed the 1986 Act, the Commission responded by 
generally incorporating the statutory mandatory minimum sentences into 
the guidelines and extrapolating upward and downward to set guideline 
sentencing ranges for all drug quantities. The drug quantity thresholds 
in the Drug Quantity Table are set so as to provide base offense levels 
corresponding to guideline ranges that are above the statutory 
mandatory minimum penalties. Accordingly, offenses involving 5 grams or 
more of crack cocaine were assigned a base offense level (level 26) 
corresponding to a sentencing guideline range of 63 to 78 months for a 
defendant in Criminal History Category I (a guideline range that 
exceeds the five-year statutory minimum for such offenses by at least 
three months). Similarly, offenses involving 50 grams or more of crack 
cocaine were assigned a base offense level (level 32) corresponding to 
a sentencing guideline range of 121 to 151 months for a defendant in 
Criminal History Category I (a guideline range that exceeds the ten-
year statutory minimum for such offenses by at least one month). Crack 
cocaine offenses for quantities above and below the mandatory minimum 
threshold quantities were set accordingly using the 100-to-1 drug 
quantity ratio.
    This amendment modifies the drug quantity thresholds in the Drug 
Quantity Table so as to assign, for crack cocaine offenses, base 
offense levels corresponding to guideline ranges that include the 
statutory mandatory minimum penalties. Accordingly, pursuant to the 
amendment, 5 grams of cocaine base are assigned a base offense level of 
24 (51 to 63 months at Criminal History Category I, which includes the 
five-year (60 month) statutory minimum for such offenses), and 50 grams 
of cocaine base are assigned a base offense level of 30 (97 to 121 
months at Criminal History Category I, which includes the ten-year (120 
month) statutory minimum for such offenses). Crack cocaine offenses for 
quantities above and below the mandatory minimum threshold quantities 
similarly are adjusted downward by two levels. The amendment also 
includes a mechanism to determine a combined base offense level in an 
offense involving crack cocaine and other controlled substances.
    The Commission's prison impact model predicts that, assuming no 
change in the existing statutory mandatory minimum penalties, this 
modification to the Drug Quantity Table will affect 69.7 percent of 
crack cocaine offenses sentenced under Sec.  2D1.1 and will result in a 
reduction in the estimated average sentence of all crack cocaine 
offenses from 121 months to 106 months, based on an analysis of cases 
sentenced in fiscal year 2006 under Sec.  2D1.1 involving crack 
cocaine.
    Having concluded once again that the 100-to-1 drug quantity ratio 
should be modified, the Commission recognizes that establishing federal 
cocaine sentencing policy ultimately is Congress's prerogative. 
Accordingly, the Commission tailored the amendment to fit within the 
existing statutory penalty scheme by assigning base offense levels that 
provide guideline ranges that include the statutory mandatory minimum 
penalties for crack cocaine offenses. The Commission, however, views 
the amendment only as an interim solution to some of the problems 
associated with the 100-to-1 drug quantity ratio. It is neither a 
permanent nor a complete solution to those problems. Any comprehensive 
solution to the 100-to-1 drug quantity ratio requires appropriate 
legislative action by Congress.

10. Technical Amendments

    Amendment: Section 2D1.11(a) is amended by striking ``(e)'' after 
``under subsection'' 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)''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. 930 the following:

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

and by striking the following:

``18 U.S.C. 3147--2J1.7''.

    Chapter Three, Part D is amended in the Introductory Commentary in 
the first paragraph by inserting after the first sentence the 
following:

    ``These rules apply to multiple counts of conviction (A) 
contained in the same indictment or information; or (B) contained in 
different indictments or informations for which sentences are to be 
imposed at the same time or in a consolidated proceeding.''.

    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; or (B) contained in different indictments or 
informations for which sentences are to be imposed at the same time 
or in a consolidated proceeding.''.

    Reason for Amendment: This amendment makes various technical and 
conforming changes to the guidelines.
    First, the amendment corrects typographical errors in subsection 
(a) of Sec.  2D1.11 (Unlawfully Distributing, Importing, Exporting or 
Possessing a Listed Chemical; Attempt or Conspiracy) and Application 
Note 14 of

[[Page 28574]]

Sec.  2K2.1 (Unlawful Receipt, Possession, or Transportation of 
Firearms or Ammunition; Prohibited Transactions Involving Firearms or 
Ammunition).
    Second, the 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).
    The amendment adopts the reasoning of recent case law 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 amendment provides clarifying language in the 
Introductory Commentary of Chapter Three, Part D, as well as in Sec.  
3D1.1 (Procedure for Determining Offense Level on Multiple Counts). The 
language is the same as that provided in *5G1.2 (Sentencing on Multiple 
Counts of Conviction).

11. Repromulgation of Emergency Amendment on Pretexting

    Amendment: The amendments to Sec.  2H3.1 and Appendix A, effective 
May 1, 2007 (see 72 FR 20576 (April 25, 2007)), are repromulgated with 
the following changes:
    Section 2H3.1 is amended in the heading by striking ``Tax Return 
Information'' and inserting ``Certain Private or Protected 
Information''.
    Section 2H3.1(a) is amended by striking subdivision (2) and 
inserting the following:

    ``(2) 6, if the offense of conviction has a statutory maximum 
term of imprisonment of one year or less but more than six 
months.''.

    Section 2H3.1(b)(1) is amended by inserting ``(A) the defendant is 
convicted under 18 U.S.C. 1039(d) or (e); or (B)'' after ``If''.
    The Commentary to Sec.  2H3.1 captioned ``Statutory Provisions'' is 
amended by inserting ``8 U.S.C. 1375a(d)(3)(C), (d)(5)(B);'' before 
``18 U.S.C.''; by inserting ``Sec.  1039, 1905,'' after ``18 U.S.C.''; 
and by inserting ``42 U.S.C. 16962, 16984'' after ``7216;''.
    The Commentary to Sec.  2H3.1 captioned ``Application Notes'' is 
amended by striking Note 1; by redesignating Note 2 as Note 1; and by 
adding at the end the following:

    ``2. Imposition of Sentence for 18 U.S.C. 1039(d) and (e).--
Subsections 1039(d) and (e) of title 18, United States Code, require 
a term of imprisonment of not more than 5 years to be imposed in 
addition to any sentence imposed for a conviction under 18 U.S.C. 
1039(a), (b), or (c). In order to comply with the statute, the court 
should determine the appropriate `total punishment' and divide the 
sentence on the judgment form between the sentence attributable to 
the conviction under 18 U.S.C. 1039(d) or (e) and the sentence 
attributable to the conviction under 18 U.S.C. 1039(a), (b), or (c), 
specifying the number of months to be served for the conviction 
under 18 U.S.C. 1039(d) or (e). For example, if the applicable 
adjusted guideline range is 15-21 months and the court determines a 
`total punishment' of 21 months is appropriate, a sentence of 9 
months for conduct under 18 U.S.C. 1039(a) plus 12 months for 18 
U.S.C. 1039(d) conduct would achieve the `total punishment' in a 
manner that satisfies the statutory requirement.
    3. Upward Departure.--There may be cases in which the offense 
level determined under this guideline substantially understates the 
seriousness of the offense. In such a case, an upward departure may 
be warranted. The following are examples of cases in which an upward 
departure may be warranted:
    (i) The offense involved confidential phone records information 
or tax return information of a substantial number of individuals.
    (ii) The offense caused or risked substantial non-monetary harm 
(e.g. physical harm, psychological harm, or severe emotional trauma, 
or resulted in a substantial invasion of privacy interest) to 
individuals whose private or protected information was obtained.''.

    The Commentary to Sec.  2H3.1 is amended by striking ``Background'' 
through the end of ``and 7216.''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 8 U.S.C. 1328 the following:

``8 U.S.C. 1375a(d)(3)(C), (d)(5)(B)2H3.1'';

by inserting after the line referenced to 18 U.S.C. 1038 the following:

``18 U.S.C. 1039--2H3.1''and

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''.

    Reason for Amendment: This amendment addresses several offenses 
that pertain to unauthorized access or disclosure of private or 
protected information. Specifically, this amendment pertains to (A) the 
re-promulgation of the emergency amendment that implemented the 
directive in section 4 of the Telephone Records and Privacy Protection 
Act of 2006, Pub. L. 109-476 (the ``Telephone Records Act''); (B) 
offenses involving improper use of a child's fingerprints under 42 
U.S.C. 16984 and 16962; and (C) various other offenses related to 
private or protected information.
    This amendment re-promulgates as permanent the temporary emergency 
amendment (effective May 1, 2007) that implemented the directive in 
section 4 of the Telephone Records Act. The amendment refers the new 
offense at 18 U.S.C. 1039 to Sec.  2H3.1 (Interception of 
Communications; Eavesdropping; Disclosure of Tax Information). The 
Commission concluded that disclosure of telephone records is similar to 
the types of privacy offenses referenced to this guideline. In 
addition, this guideline includes a cross reference, instructing that 
if the purpose of the 18 U.S.C. 1039 offense was to facilitate another 
offense, the guideline applicable to an attempt to commit the other 
offense should be applied, if the resulting offense level is higher. 
The Commission concluded that operation of the cross reference would 
capture the harms associated with the aggravated forms of this offense 
referenced at 18 U.S.C. 1039(d) or (e). The amendment also expands the 
scope of the existing three-level enhancement in the guideline to 
include cases in which the defendant is convicted under 18 U.S.C. 
1039(d) or (e). Thus, in a case in which the cross reference does not 
apply, application of the enhancement will capture the increased harms 
associated with the aggravated offenses. Finally, the amendment expands 
the upward departure note to include tax return information of a 
substantial number of individuals.
    Section 153 of the Adam Walsh Child Protection and Safety Act of 
2006, Pub. L. 109-248 (the ``Adam Walsh Act''), added a new offense at 
42 U.S.C. 16962, which provides a statutory maximum term of 
imprisonment of 10 years for the improper release of information 
obtained in fingerprint-based checks for the background check of either 
foster or adoptive parents or of individuals employed by, or 
considering employment with, a private or public educational agency. 
Additionally, section 627 of the Adam Walsh Act added a new Class A 
Misdemeanor offense at 42 U.S.C. 16984 prohibiting the use of a child's 
fingerprints for any purpose other than providing those fingerprints to 
the child's parent or legal guardian. This amendment references both 
offenses to Sec.  2H3.1, providing a base offense level of 9 under 
Sec.  2H3.1(a)(1) if the defendant was convicted of violating 42 U.S.C. 
16962, and a base offense level of 6 if the defendant was convicted of 
violating 42 U.S.C. 16984.
    Finally, this amendment implements the Violence Against Women and 
Department of Justice Reauthorization Act of 2005, Pub. L. 109-162 
(``VAWA''). VAWA included the International Marriage Broker Regulation 
Act of 2005 (``IMBRA''), which requires marriage brokers to keep

[[Page 28575]]

private information gathered in the course of their business 
confidential. New offenses at 8 U.S.C. Sec.  1375a(d)(3)(C) and 
1375a(d)(5)(B) involve invasions of protected privacy interests and, as 
such, are referenced to Sec.  2H3.1.
    The Commission concluded that referencing these new offenses to 
Sec.  2H3.1 was appropriate because each of the new offenses is similar 
to the types of privacy offenses referenced to this guideline.

12. Criminal History

    Amendment: Section 4A1.1(f) is amended by striking ``was considered 
related to another sentence resulting from a conviction of a crime of 
violence'' and inserting ``was counted as a single sentence''; and by 
striking the last sentence.
    The Commentary to Sec.  4A1.1 captioned ``Application Notes'' is 
amended in Note 6 by striking the first paragraph and inserting the 
following:

    ``Sec.  4A1.1(f). In a case in which the defendant received two 
or more prior sentences as a result of convictions for crimes of 
violence that are counted as a single sentence (see Sec.  
4A1.2(a)(2)), one point is added under Sec.  4A1.1(f) for each such 
sentence that did not result in any additional points under Sec.  
4A1.1(a), (b), or (c). A total of up to 3 points may be added under 
Sec.  4A1.1(f). For purposes of this guideline, `crime of violence' 
has the meaning given that term in Sec.  4B1.2(a). See Sec.  
4A1.2(p).'';

and in the second paragraph by striking ``that were consolidated for 
sentencing and therefore are treated as related.'' and inserting ``. 
The sentences for these offenses were imposed on the same day and are 
counted as a single prior sentence. See Sec.  4A1.2(a)(2).''.

    Section 4A1.2(a) is amended in the heading by striking ``Defined''; 
and by striking subdivision (2) and inserting the following:

    ``(2) If the defendant has multiple prior sentences, determine 
whether those sentences are counted separately or as a single 
sentence. Prior sentences always are counted separately if the 
sentences were imposed for offenses that were separated by an 
intervening arrest (i.e., the defendant is arrested for the first 
offense prior to committing the second offense). If there is no 
intervening arrest, prior sentences are counted separately unless 
(A) the sentences resulted from offenses contained in the same 
charging instrument; or (B) the sentences were imposed on the same 
day. Count any prior sentence covered by (A) or (B) as a single 
sentence. See also Sec.  4A1.1(f).
    For purposes of applying Sec.  4A1.1(a), (b), and (c), if prior 
sentences are counted as a single sentence, use the longest sentence 
of imprisonment if concurrent sentences were imposed. If consecutive 
sentences were imposed, use the aggregate sentence of 
imprisonment.''.

    Section 4A1.2(c)(1) is amended by striking ``at least one'' and 
inserting ``more than one''; by striking ``Fish and game violations''; 
and by striking ``Local ordinance violations (excluding local ordinance 
violations that are also criminal offenses under state law)''.
    Section 4A1.2(c)(2) is amended by inserting ``Fish and game 
violations'' as a new line before the line referenced to 
``Hitchhiking''; and by inserting ``Local ordinance violations (except 
those violations that are also violations under state criminal law)'' 
as a new line before the line referenced to ``Loitering''.
    The Commentary to Sec.  4A1.2 captioned ``Application Notes'' is 
amended by striking Note 3 and inserting the following:

    ``3. Upward Departure Provision.--Counting multiple prior 
sentences as a single sentence may result in a criminal history 
score that underrepresents the seriousness of the defendant's 
criminal history and the danger that the defendant presents to the 
public. In such a case, an upward departure may be warranted. For 
example, if a defendant was convicted of a number of serious non-
violent offenses committed on different occasions, and the resulting 
sentences were counted as a single sentence because either the 
sentences resulted from offenses contained in the same charging 
instrument or the defendant was sentenced for these offenses on the 
same day, the assignment of a single set of points may not 
adequately reflect the seriousness of the defendant's criminal 
history or the frequency with which the defendant has committed 
crimes.''.

    The Commentary to Sec.  4A1.2 captioned ``Application Notes'' is 
amended in Note 12 by striking ``Local Ordinance Violations.'' and 
inserting the following:

    ``Application of Subsection (c).--
    (A) In General.--In determining whether an unlisted offense is 
similar to an offense listed in subdivision (c)(1) or (c)(2), the 
court should use a common sense approach that includes consideration 
of relevant factors such as (i) a comparison of punishments imposed 
for the listed and unlisted offenses; (ii) the perceived seriousness 
of the offense as indicated by the level of punishment; (iii) the 
elements of the offense; (iv) the level of culpability involved; and 
(v) the degree to which the commission of the offense indicates a 
likelihood of recurring criminal conduct.
    (B) Local Ordinance Violations.--'';

by striking ``Sec.  4A1.2(c)(1)'' after ``violations in'' and inserting 
``Sec.  4A1.2(c)(2)''; and by inserting at the end the following:

    ``(C) Insufficient Funds Check.--`Insufficient funds check,' as 
used in Sec.  4A1.2(c)(1), does not include any conviction 
establishing that the defendant used a false name or non-existent 
account.''.

    The Commentary to Sec.  4A1.2 captioned ``Application Notes'' is 
amended by striking Note 13.
    The Commentary to Sec.  4B1.2 captioned ``Application Notes'' is 
amended in Note 1 in the paragraph that begins ``A violation of 18 
U.S.C. 924(c)'' by inserting ``sentences for the'' before ``two 
prior''; and by striking ``treated as related cases'' and inserting 
``counted as a single sentence''.
    The Commentary to Sec.  2L1.2 captioned ``Application Notes'' is 
amended in Note 4(B) by striking ``considered `related cases', as that 
term is defined in Application Note 3'' and inserting ``counted as a 
single sentence pursuant to subsection (a)(2)''.
    Reason for Amendment: This amendment addresses two areas of the 
Chapter Four criminal history rules: The counting of multiple prior 
sentences and the use of misdemeanor and petty offenses in determining 
a defendant's criminal history score. In November 2006 the Commission 
hosted round-table discussions to receive input on criminal history 
issues from federal judges, prosecutors, defense attorneys, probation 
officers, and members of academia. In addition, the Commission gathered 
information through its training programs, the public comment process, 
and comments received during a public hearing of the Commission in 
March 2007. This amendment addresses two issues that were raised during 
this process.
    First, the amendment addresses the counting of multiple prior 
sentences. The Commission has heard from a number of practitioners 
throughout the criminal justice system that the ``related cases'' rules 
at subsection (a)(2) of Sec.  4A1.2 (Definitions and Instructions for 
Computing Criminal History) and Application Note 3 of Sec.  4A1.2 are 
too complex and lead to confusion. Moreover, a significant amount of 
litigation has arisen concerning application of the rules, and circuit 
conflicts have developed over the meaning of terms in the commentary 
that define when prior sentences may be considered ``related.'' For 
example, the commentary provides that prior sentences for offenses not 
separated by an intervening arrest are to be considered related if the 
sentences resulted from offenses that were consolidated for sentencing. 
In determining whether offenses were consolidated for sentencing, some 
courts have required that the record reflect a formal order of 
consolidation, while others have not. Compare, e.g., United States v. 
Correa, 114 F.3d 314, 317 (1st Cir. 1997) (order required) with

[[Page 28576]]

United States v. Huskey, 137 F.3d 283, 288 (5th Cir. 1998) (order not 
required).
    The amendment simplifies the rules for counting multiple prior 
sentences and promotes consistency in the application of the guideline. 
The amendment eliminates use of the term ``related cases'' at Sec.  
4A1.2(a)(2) and instead uses the terms ``single'' and ``separate'' 
sentences. This change in terminology was made because some have 
misunderstood the term ``related cases'' to suggest a relationship 
between the prior sentences and the instant offense. Prior sentences 
for conduct that is part of the instant offense are separately 
addressed at Sec.  4A1.2(a)(1) and Application Note 1 of that 
guideline.
    Under the amendment, the initial inquiry will be whether the prior 
sentences were for offenses that were separated by an intervening 
arrest (i.e., the defendant was arrested for the first offense prior to 
committing the second offense). If so, they are to be considered 
separate sentences, counted separately, and no further inquiry is 
required.
    If the prior sentences were for offenses that were not separated by 
an intervening arrest, the sentences are to be counted as separate 
sentences unless the sentences (1) were for offenses that were named in 
the same charging document, or (2) were imposed on the same day. In 
either of these situations they are treated as a single sentence.
    The amendment further provides that in the case of a single 
sentence that comprises multiple concurrent sentences of varying 
lengths, the longest sentence is to be used for purposes of applying 
subsection (a), (b) and (c) of Sec.  4A1.1 (Criminal History Category). 
In the case of a single sentence that comprises multiple sentences that 
include one or more consecutive sentences, the aggregate sentence is to 
be used for purposes of applying Sec.  4A1.1(a), (b), and (c).
    Instances may arise in which a single sentence comprises multiple 
prior sentences for crimes of violence. In such a case, Sec.  4A1.1(f) 
will apply. Consistent with Sec.  4A1.1(f) and Application Note 6 to 
Sec.  4A1.1, additional criminal history points will be awarded for 
certain sentences that otherwise do not receive points because they 
have been determined to be part of a single sentence. For example, if a 
defendant's criminal history contains two robbery convictions for which 
the defendant received concurrent five-year sentences of imprisonment 
and the sentences are considered a single sentence because the offenses 
were not separated by an intervening arrest and were imposed on the 
same day, a total of 3 points would be added under Sec.  4A1.1(a). An 
additional point would be added under Sec.  4A1.1(f) because the second 
sentence was for a crime of violence that did not receive any points 
under Sec.  4A1.1(a), (b), or (c).
    The amendment also provides for an upward departure at Application 
Note 12(A) to Sec.  4A1.1 if counting multiple prior sentences as a 
single sentence would underrepresent the seriousness of the defendant's 
criminal history and the danger that the defendant presents to the 
public.
    Second, the amendment addresses the use of misdemeanor and petty 
offenses in determining a defendant's criminal history score. Sections 
4A1.2(c)(1) and (2) govern whether and when certain misdemeanor and 
petty offenses are counted. Section 4A1.2(c)(1) lists offenses that are 
counted only when the prior sentence was a term of probation of at 
least one year or a term of imprisonment of at least 30 days. Section 
4A1.2(c)(2) lists offenses that are never counted toward the 
defendant's criminal history score. The amendment responds to concerns 
that (1) some misdemeanor and petty offenses counted under the 
guidelines involve conduct that is not serious enough to warrant 
increased punishment upon sentencing for a subsequent offense; (2) the 
presence of a prior misdemeanor or petty offense in a rare case can 
affect the sentence in the instant offense in a way that is greatly 
disproportionate to the seriousness of the prior offense (such as when 
such a prior offense alone disqualifies a defendant from safety valve 
eligibility); and (3) jurisdictional differences in defining 
misdemeanor and petty offenses can result in inconsistent application 
of criminal history points for substantially similar conduct.
    To evaluate these concerns, the Commission conducted a study of 
misdemeanor and petty offenses and the criminal history rules that 
govern them, particularly Sec.  4A1.2(c)(1). The Commission examined a 
sample of 11,300 offenders sentenced in fiscal year 2006 to determine 
the type of misdemeanor and petty offenses counted in the criminal 
history score, the frequency with which they occurred, and the 
particular guideline provisions that caused them to be counted. In 
addition, the Commission examined a sample of offenders sentenced in 
1992 who were subsequently released from imprisonment and monitored for 
two years for evidence of recidivism. (See U.S. Sentencing Commission, 
Measuring Recidivism: The Criminal History Computation of the Federal 
Sentencing Guidelines (2004) for additional information concerning this 
sample.) Furthermore, the Commission examined how state guidelines 
treat minor offenses.
    The results of these analyses led the Commission to make three 
modifications to Sec.  4A1.2(c)(1) and (2). First, the amendment moves 
from Sec.  4A1.2(c)(1) to Sec.  4A1.2(c)(2) two classes of offenses: 
fish and game violations and local ordinance violations (except those 
violations that are also violations under state criminal law). Second, 
the amendment changes the probation criterion at Sec.  4A1.2(c)(1) from 
a term of ``at least'' one year to a term of ``more than'' one year. 
Finally, the amendment resolves a circuit conflict over the manner in 
which a non-listed offense is determined to be ``similar to'' an 
offense listed at Sec.  4A1.2(c)(1) and (2).
    Fish and game violations were moved from Sec.  4A1.2(c)(1) to Sec.  
4A1.2(c)(2) so that they will not be counted in a defendant's criminal 
history score. Fish and game violations generally do not involve 
criminal conduct that is more serious than the offense of conviction, 
and the relatively minor sentences received by fish and game offenders 
in the fiscal year 2006 study suggest that these offenses are not 
considered to be among the more serious offenses listed at Sec.  
4A1.2(c)(1).
    In addition, local ordinance violations (except those that are also 
violations of state law) were moved from Sec.  4A1.2(c)(1) to Sec.  
4A1.2(c)(2) so that they also will not be counted in a defendant's 
criminal history score. Similar to fish and game violations, local 
ordinance violations generally do not represent conduct criminalized 
under state law. Moreover, these offenses also frequently received 
minor sentences. The exception in this amendment for violations that 
are also criminal violations under state law will ensure that only the 
more serious prior criminal conduct will continue to be included in the 
criminal history score.
    Section 4A1.2(c)(1)(A) is amended to provide that the offenses 
listed at Sec.  4A1.2(c)(1) will be counted ``only if (A) the sentence 
was a term of probation of more than one year or a term of imprisonment 
of at least thirty days, or (B) the prior offense was similar to the 
instant offense'' (emphasis added). The Commission received comment 
that some sentences of a one-year term of probation constitute a 
default punishment summarily imposed by the state sentencing authority, 
particularly in those instances in which the probation imposed lacked a 
supervision component or was imposed in lieu of a fine or to enable the 
payment of a fine.

[[Page 28577]]

The Commission determined that prior misdemeanor and petty offenses 
that receive such a relatively minor default sentence should not be 
counted for criminal history purposes.
    The amendment resolves a circuit conflict over the manner in which 
a court should determine whether a non-listed offense is ``similar to'' 
an offense listed at Sec.  4A1.2(c)(1) or (2). Some courts have adopted 
a ``common sense approach,'' first articulated by the Fifth Circuit in 
United States v. Hardeman, 933 F.2d 278, 281 (5th Cir. 1991). This 
common sense approach includes consideration of all relevant factors of 
similarity such as ``punishments imposed for the listed and unlisted 
offenses, the perceived seriousness of the offense as indicated by the 
level of punishment, the elements of the offense, the level of 
culpability involved, and the degree to which the commission of the 
offense indicates a likelihood of recurring criminal conduct.'' Id. See 
also United States v. Martinez-Santos, 184 F.3d 196, 205-06 (2d Cir. 
1999) (adopting Hardeman approach); United States v. Booker, 71 F.3d 
685, 689 (7th Cir. 1995) (same). Other courts have adopted a strict 
``elements'' test, which involves solely a comparison between the 
elements of the two offenses to determine whether or not the offenses 
are similar. See United States v. Elmore, 108 F.3d 23, 27 (3d Cir. 
1997); United States v. Tigney, 367 F.3d 200, 201-02 (4th Cir. 2004); 
United States v. Borer, 412 F.3d 987, 992 (8th Cir. 2005). This 
amendment, at Application Note 12(A), adopts the Hardeman ``common 
sense approach'' as a means of ensuring that courts are guided by a 
number of relevant factors that may help them determine whether a non-
listed offense is similar to a listed one.

 [FR Doc. E7-9421 Filed 5-11-07; 11:54 am]
BILLING CODE 2211-01-P