[Federal Register Volume 73, Number 91 (Friday, May 9, 2008)]
[Notices]
[Pages 26924-26936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-10370]



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Part V





United States Sentencing Commission





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Sentencing Guidelines for United States Courts; Notice

  Federal Register / Vol. 73, No. 91 / Friday, May 9, 2008 / 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, 2008.

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

DATES: The Commission has specified an effective date of November 1, 
2008, for the amendments set forth in this notice.

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

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is 
an independent agency in the judicial branch of the United States 
Government. The Commission promulgates sentencing guidelines and policy 
statements for federal sentencing courts pursuant to 28 U.S.C. Sec.  
994(a). The Commission also periodically reviews and revises previously 
promulgated guidelines pursuant to 28 U.S.C. Sec.  994(o) and generally 
submits guideline amendments to Congress pursuant to 28 U.S.C. Sec.  
994(p) not later than the first day of May each year. Absent action of 
Congress to the contrary, submitted amendments become effective by 
operation of law on the date specified by the Commission (generally 
November 1 of the year in which the amendments are submitted to 
Congress).
Notice of proposed amendments was published in the Federal Register on 
January 28, 2008 (see 73 FR 4931). The Commission held a public hearing 
on the proposed amendments in Washington, D.C., on March 13, 2008. On 
May 1, 2008, the Commission submitted these amendments to Congress and 
specified an effective date of November 1, 2008.

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

Ricardo H. Hinojosa,
Chair.

1. Introduction to Chapter One

    Amendment: Chapter One is amended in the heading by inserting 
``Introduction,'' before ``Authority and General''; and by striking 
Part A, including the Editorial Note, in its entirety and inserting:
``PART A--INTRODUCTION AND AUTHORITY
Introductory Commentary
    Subparts 1 and 2 of this Part provide an introduction to the 
Guidelines Manual describing the historical development and evolution 
of the federal sentencing guidelines. Subpart 1 sets forth the original 
introduction to the Guidelines Manual as it first appeared in 1987, 
with the inclusion of amendments made occasionally thereto between 1987 
and 2000. The original introduction, as so amended, explained a number 
of policy decisions made by the United States Sentencing Commission 
(`Commission') when it promulgated the initial set of guidelines and 
therefore provides a useful reference for contextual and historical 
purposes. Subpart 2 further describes the evolution of the federal 
sentencing guidelines after the initial guidelines were promulgated.
    Subpart 3 of this Part states the authority of the Commission to 
promulgate federal sentencing guidelines, policy statements, and 
commentary.
1. ORIGINAL INTRODUCTION TO THE GUIDELINES MANUAL
    The following provisions of this Subpart set forth the original 
introduction to this manual, effective November 1, 1987, and as amended 
through November 1, 2000:
1. Authority
    The United States Sentencing Commission (`Commission') is an 
independent agency in the judicial branch composed of seven voting and 
two non-voting, ex officio members. Its principal purpose is to 
establish sentencing policies and practices for the federal criminal 
justice system that will assure the ends of justice by promulgating 
detailed guidelines prescribing the appropriate sentences for offenders 
convicted of federal crimes.
    The guidelines and policy statements promulgated by the Commission 
are issued pursuant to Section 994(a) of Title 28, United States Code.
2. The Statutory Mission
    The Sentencing Reform Act of 1984 (Title II of the Comprehensive 
Crime Control Act of 1984) provides for the development of guidelines 
that will further the basic purposes of criminal punishment: 
Deterrence, incapacitation, just punishment, and rehabilitation. The 
Act delegates broad authority to the Commission to review and 
rationalize the federal sentencing process.
    The Act contains detailed instructions as to how this determination 
should be made, the most important of which directs the Commission to 
create categories of offense behavior and offender characteristics. An 
offense behavior category might consist, for example, of `bank robbery/
committed with a gun/$2500 taken.' An offender characteristic category 
might be `offender with one prior conviction not resulting in 
imprisonment.' The Commission is required to prescribe guideline ranges 
that specify an appropriate sentence for each class of convicted 
persons determined by coordinating the offense behavior categories with 
the offender characteristic categories. Where the guidelines call for 
imprisonment, the range must be narrow: The maximum of the range cannot 
exceed the minimum by more than the greater of 25 percent or six 
months. 28 U.S.C. Sec.  994(b)(2).
    Pursuant to the Act, the sentencing court must select a sentence 
from within the guideline range. If, however, a particular case 
presents atypical features, the Act allows the court to depart from the 
guidelines and sentence outside the prescribed range. In that case, the 
court must specify reasons for departure. 18 U.S.C. Sec.  3553(b). If 
the court sentences within the guideline range, an appellate court may 
review the sentence to determine whether the guidelines were correctly 
applied. If the court departs from the guideline range, an appellate 
court may review the reasonableness of the departure. 18 U.S.C. Sec.  
3742. The Act also abolishes parole, and substantially reduces and 
restructures good behavior adjustments.
    The Commission's initial guidelines were submitted to Congress on 
April 13, 1987. After the prescribed period of Congressional review, 
the guidelines took effect on November 1, 1987, and apply to all 
offenses committed on or after that date. The Commission has the 
authority to submit guideline amendments each year to Congress between 
the beginning of a regular Congressional session and May 1. Such 
amendments automatically take effect

[[Page 26925]]

180 days after submission unless a law is enacted to the contrary. 28 
U.S.C. Sec.  994(p).
    The initial sentencing guidelines and policy statements were 
developed after extensive hearings, deliberation, and consideration of 
substantial public comment. The Commission emphasizes, however, that it 
views the guideline-writing process as evolutionary. It expects, and 
the governing statute anticipates, that continuing research, 
experience, and analysis will result in modifications and revisions to 
the guidelines through submission of amendments to Congress. To this 
end, the Commission is established as a permanent agency to monitor 
sentencing practices in the federal courts.
3. The Basic Approach (Policy Statement)
    To understand the guidelines and their underlying rationale, it is 
important to focus on the three objectives that Congress sought to 
achieve in enacting the Sentencing Reform Act of 1984. The Act's basic 
objective was to enhance the ability of the criminal justice system to 
combat crime through an effective, fair sentencing system. To achieve 
this end, Congress first sought honesty in sentencing. It sought to 
avoid the confusion and implicit deception that arose out of the pre-
guidelines sentencing system which required the court to impose an 
indeterminate sentence of imprisonment and empowered the parole 
commission to determine how much of the sentence an offender actually 
would serve in prison. This practice usually resulted in a substantial 
reduction in the effective length of the sentence imposed, with 
defendants often serving only about one-third of the sentence imposed 
by the court.
    Second, Congress sought reasonable uniformity in sentencing by 
narrowing the wide disparity in sentences imposed for similar criminal 
offenses committed by similar offenders. Third, Congress sought 
proportionality in sentencing through a system that imposes 
appropriately different sentences for criminal conduct of differing 
severity.
    Honesty is easy to achieve: The abolition of parole makes the 
sentence imposed by the court the sentence the offender will serve, 
less approximately fifteen percent for good behavior. There is a 
tension, however, between the mandate of uniformity and the mandate of 
proportionality. Simple uniformity--sentencing every offender to five 
years--destroys proportionality. Having only a few simple categories of 
crimes would make the guidelines uniform and easy to administer, but 
might lump together offenses that are different in important respects. 
For example, a single category for robbery that included armed and 
unarmed robberies, robberies with and without injuries, robberies of a 
few dollars and robberies of millions, would be far too broad.
    A sentencing system tailored to fit every conceivable wrinkle of 
each case would quickly become unworkable and seriously compromise the 
certainty of punishment and its deterrent effect. For example: A bank 
robber with (or without) a gun, which the robber kept hidden (or 
brandished), might have frightened (or merely warned), injured 
seriously (or less seriously), tied up (or simply pushed) a guard, 
teller, or customer, at night (or at noon), in an effort to obtain 
money for other crimes (or for other purposes), in the company of a few 
(or many) other robbers, for the first (or fourth) time.
    The list of potentially relevant features of criminal behavior is 
long; the fact that they can occur in multiple combinations means that 
the list of possible permutations of factors is virtually endless. The 
appropriate relationships among these different factors are exceedingly 
difficult to establish, for they are often context specific. Sentencing 
courts do not treat the occurrence of a simple bruise identically in 
all cases, irrespective of whether that bruise occurred in the context 
of a bank robbery or in the context of a breach of peace. This is so, 
in part, because the risk that such a harm will occur differs depending 
on the underlying offense with which it is connected; and also because, 
in part, the relationship between punishment and multiple harms is not 
simply additive. The relation varies depending on how much other harm 
has occurred. Thus, it would not be proper to assign points for each 
kind of harm and simply add them up, irrespective of context and total 
amounts.
    The larger the number of subcategories of offense and offender 
characteristics included in the guidelines, the greater the complexity 
and the less workable the system. Moreover, complex combinations of 
offense and offender characteristics would apply and interact in 
unforeseen ways to unforeseen situations, thus failing to cure the 
unfairness of a simple, broad category system. Finally, and perhaps 
most importantly, probation officers and courts, in applying a complex 
system having numerous subcategories, would be required to make a host 
of decisions regarding whether the underlying facts were sufficient to 
bring the case within a particular subcategory. The greater the number 
of decisions required and the greater their complexity, the greater the 
risk that different courts would apply the guidelines differently to 
situations that, in fact, are similar, thereby reintroducing the very 
disparity that the guidelines were designed to reduce.
    In view of the arguments, it would have been tempting to retreat to 
the simple, broad category approach and to grant courts the discretion 
to select the proper point along a broad sentencing range. Granting 
such broad discretion, however, would have risked correspondingly broad 
disparity in sentencing, for different courts may exercise their 
discretionary powers in different ways. Such an approach would have 
risked a return to the wide disparity that Congress established the 
Commission to reduce and would have been contrary to the Commission's 
mandate set forth in the Sentencing Reform Act of 1984.
    In the end, there was no completely satisfying solution to this 
problem. The Commission had to balance the comparative virtues and 
vices of broad, simple categorization and detailed, complex 
subcategorization, and within the constraints established by that 
balance, minimize the discretionary powers of the sentencing court. Any 
system will, to a degree, enjoy the benefits and suffer from the 
drawbacks of each approach.
    A philosophical problem arose when the Commission attempted to 
reconcile the differing perceptions of the purposes of criminal 
punishment. Most observers of the criminal law agree that the ultimate 
aim of the law itself, and of punishment in particular, is the control 
of crime. Beyond this point, however, the consensus seems to break 
down. Some argue that appropriate punishment should be defined 
primarily on the basis of the principle of `just deserts.' Under this 
principle, punishment should be scaled to the offender's culpability 
and the resulting harms. Others argue that punishment should be imposed 
primarily on the basis of practical `crime control' considerations. 
This theory calls for sentences that most effectively lessen the 
likelihood of future crime, either by deterring others or 
incapacitating the defendant.
    Adherents of each of these points of view urged the Commission to 
choose between them and accord one primacy over the other. As a 
practical matter, however, this choice was unnecessary because in most 
sentencing decisions the application of either philosophy will produce 
the same or similar results.

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    In its initial set of guidelines, the Commission sought to solve 
both the practical and philosophical problems of developing a coherent 
sentencing system by taking an empirical approach that used as a 
starting point data estimating pre-guidelines sentencing practice. It 
analyzed data drawn from 10,000 presentence investigations, the 
differing elements of various crimes as distinguished in substantive 
criminal statutes, the United States Parole Commission's guidelines and 
statistics, and data from other relevant sources in order to determine 
which distinctions were important in pre-guidelines practice. After 
consideration, the Commission accepted, modified, or rationalized these 
distinctions.
    This empirical approach helped the Commission resolve its practical 
problem by defining a list of relevant distinctions that, although of 
considerable length, was short enough to create a manageable set of 
guidelines. Existing categories are relatively broad and omit 
distinctions that some may believe important, yet they include most of 
the major distinctions that statutes and data suggest made a 
significant difference in sentencing decisions. Relevant distinctions 
not reflected in the guidelines probably will occur rarely and 
sentencing courts may take such unusual cases into account by departing 
from the guidelines.
    The Commission's empirical approach also helped resolve its 
philosophical dilemma. Those who adhere to a just deserts philosophy 
may concede that the lack of consensus might make it difficult to say 
exactly what punishment is deserved for a particular crime. Likewise, 
those who subscribe to a philosophy of crime control may acknowledge 
that the lack of sufficient data might make it difficult to determine 
exactly the punishment that will best prevent that crime. Both groups 
might therefore recognize the wisdom of looking to those distinctions 
that judges and legislators have, in fact, made over the course of 
time. These established distinctions are ones that the community 
believes, or has found over time, to be important from either a just 
deserts or crime control perspective.
    The Commission did not simply copy estimates of pre-guidelines 
practice as revealed by the data, even though establishing offense 
values on this basis would help eliminate disparity because the data 
represent averages. Rather, it departed from the data at different 
points for various important reasons. Congressional statutes, for 
example, suggested or required departure, as in the case of the Anti-
Drug Abuse Act of 1986 that imposed increased and mandatory minimum 
sentences. In addition, the data revealed inconsistencies in treatment, 
such as punishing economic crime less severely than other apparently 
equivalent behavior.
    Despite these policy-oriented departures from pre-guidelines 
practice, the guidelines represent an approach that begins with, and 
builds upon, empirical data. The guidelines will not please those who 
wish the Commission to adopt a single philosophical theory and then 
work deductively to establish a simple and perfect set of 
categorizations and distinctions. The guidelines may prove acceptable, 
however, to those who seek more modest, incremental improvements in the 
status quo, who believe the best is often the enemy of the good, and 
who recognize that these guidelines are, as the Act contemplates, but 
the first step in an evolutionary process. After spending considerable 
time and resources exploring alternative approaches, the Commission 
developed these guidelines as a practical effort toward the achievement 
of a more honest, uniform, equitable, proportional, and therefore 
effective sentencing system.
4. The Guidelines' Resolution of Major Issues (Policy Statement)
    The guideline-drafting process required the Commission to resolve a 
host of important policy questions typically involving rather evenly 
balanced sets of competing considerations. As an aid to understanding 
the guidelines, this introduction briefly discusses several of those 
issues; commentary in the guidelines explains others.
(a) Real Offense vs. Charge Offense Sentencing
    One of the most important questions for the Commission to decide 
was whether to base sentences upon the actual conduct in which the 
defendant engaged regardless of the charges for which he was indicted 
or convicted (`real offense' sentencing), or upon the conduct that 
constitutes the elements of the offense for which the defendant was 
charged and of which he was convicted (`charge offense' sentencing). A 
bank robber, for example, might have used a gun, frightened bystanders, 
taken $50,000, injured a teller, refused to stop when ordered, and 
raced away damaging property during his escape. A pure real offense 
system would sentence on the basis of all identifiable conduct. A pure 
charge offense system would overlook some of the harms that did not 
constitute statutory elements of the offenses of which the defendant 
was convicted.
    The Commission initially sought to develop a pure real offense 
system. After all, the pre-guidelines sentencing system was, in a 
sense, this type of system. The sentencing court and the parole 
commission took account of the conduct in which the defendant actually 
engaged, as determined in a presentence report, at the sentencing 
hearing, or before a parole commission hearing officer. The 
Commission's initial efforts in this direction, carried out in the 
spring and early summer of 1986, proved unproductive, mostly for 
practical reasons. To make such a system work, even to formalize and 
rationalize the status quo, would have required the Commission to 
decide precisely which harms to take into account, how to add them up, 
and what kinds of procedures the courts should use to determine the 
presence or absence of disputed factual elements. The Commission found 
no practical way to combine and account for the large number of diverse 
harms arising in different circumstances; nor did it find a practical 
way to reconcile the need for a fair adjudicatory procedure with the 
need for a speedy sentencing process given the potential existence of 
hosts of adjudicated `real harm' facts in many typical cases. The 
effort proposed as a solution to these problems required the use of, 
for example, quadratic roots and other mathematical operations that the 
Commission considered too complex to be workable. In the Commission's 
view, such a system risked return to wide disparity in sentencing 
practice.
    In its initial set of guidelines submitted to Congress in April 
1987, the Commission moved closer to a charge offense system. This 
system, however, does contain a significant number of real offense 
elements. For one thing, the hundreds of overlapping and duplicative 
statutory provisions that make up the federal criminal law forced the 
Commission to write guidelines that are descriptive of generic conduct 
rather than guidelines that track purely statutory language. For 
another, the guidelines take account of a number of important, commonly 
occurring real offense elements such as role in the offense, the 
presence of a gun, or the amount of money actually taken, through 
alternative base offense levels, specific offense characteristics, 
cross references, and adjustments.
    The Commission recognized that a charge offense system has 
drawbacks of its own. One of the most important is the potential it 
affords prosecutors to influence sentences by increasing or decreasing 
the number of counts in an

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indictment. Of course, the defendant's actual conduct (that which the 
prosecutor can prove in court) imposes a natural limit upon the 
prosecutor's ability to increase a defendant's sentence. Moreover, the 
Commission has written its rules for the treatment of multicount 
convictions with an eye toward eliminating unfair treatment that might 
flow from count manipulation. For example, the guidelines treat a 
three-count indictment, each count of which charges sale of 100 grams 
of heroin or theft of $10,000, the same as a single-count indictment 
charging sale of 300 grams of heroin or theft of $30,000. Furthermore, 
a sentencing court may control any inappropriate manipulation of the 
indictment through use of its departure power. Finally, the Commission 
will closely monitor charging and plea agreement practices and will 
make appropriate adjustments should they become necessary.
(b) Departures
    The sentencing statute permits a court to depart from a guideline-
specified sentence only when it finds `an aggravating or mitigating 
circumstance of a kind, or to a degree, not adequately taken into 
consideration by the Sentencing Commission in formulating the 
guidelines that should result in a sentence different from that 
described.' 18 U.S.C. Sec.  3553(b). The Commission intends the 
sentencing courts to treat each guideline as carving out a `heartland,' 
a set of typical cases embodying the conduct that each guideline 
describes. When a court finds an atypical case, one to which a 
particular guideline linguistically applies but where conduct 
significantly differs from the norm, the court may consider whether a 
departure is warranted. Section 5H1.10 (Race, Sex, National Origin, 
Creed, Religion, and Socio-Economic Status), Sec.  5H1.12 (Lack of 
Guidance as a Youth and Similar Circumstances), the third sentence of 
Sec.  5H1.4 (Physical Condition, Including Drug or Alcohol Dependence 
or Abuse), the last sentence of Sec.  5K2.12 (Coercion and Duress), and 
Sec.  5K2.19 (Post-Sentencing Rehabilitative Efforts) list several 
factors that the court cannot take into account as grounds for 
departure. With those specific exceptions, however, the Commission does 
not intend to limit the kinds of factors, whether or not mentioned 
anywhere else in the guidelines, that could constitute grounds for 
departure in an unusual case.
    The Commission has adopted this departure policy for two reasons. 
First, it is difficult to prescribe a single set of guidelines that 
encompasses the vast range of human conduct potentially relevant to a 
sentencing decision. The Commission also recognizes that the initial 
set of guidelines need not do so. The Commission is a permanent body, 
empowered by law to write and rewrite guidelines, with progressive 
changes, over many years. By monitoring when courts depart from the 
guidelines and by analyzing their stated reasons for doing so and court 
decisions with references thereto, the Commission, over time, will be 
able to refine the guidelines to specify more precisely when departures 
should and should not be permitted.
    Second, the Commission believes that despite the courts' legal 
freedom to depart from the guidelines, they will not do so very often. 
This is because the guidelines, offense by offense, seek to take 
account of those factors that the Commission's data indicate made a 
significant difference in pre-guidelines sentencing practice. Thus, for 
example, where the presence of physical injury made an important 
difference in pre-guidelines sentencing practice (as in the case of 
robbery or assault), the guidelines specifically include this factor to 
enhance the sentence. Where the guidelines do not specify an 
augmentation or diminution, this is generally because the sentencing 
data did not permit the Commission to conclude that the factor was 
empirically important in relation to the particular offense. Of course, 
an important factor (e.g., physical injury) may infrequently occur in 
connection with a particular crime (e.g., fraud). Such rare occurrences 
are precisely the type of events that the courts' departure powers were 
designed to cover--unusual cases outside the range of the more typical 
offenses for which the guidelines were designed.
    It is important to note that the guidelines refer to two different 
kinds of departure. The first involves instances in which the 
guidelines provide specific guidance for departure by analogy or by 
other numerical or non-numerical suggestions. The Commission intends 
such suggestions as policy guidance for the courts. The Commission 
expects that most departures will reflect the suggestions and that the 
courts of appeals may prove more likely to find departures 
`unreasonable' where they fall outside suggested levels.
    A second type of departure will remain unguided. It may rest upon 
grounds referred to in Chapter Five, Part K (Departures) or on grounds 
not mentioned in the guidelines. While Chapter Five, Part K lists 
factors that the Commission believes may constitute grounds for 
departure, the list is not exhaustive. The Commission recognizes that 
there may be other grounds for departure that are not mentioned; it 
also believes there may be cases in which a departure outside suggested 
levels is warranted. In its view, however, such cases will be highly 
infrequent.
(c) Plea Agreements
    Nearly ninety percent of all federal criminal cases involve guilty 
pleas and many of these cases involve some form of plea agreement. Some 
commentators on early Commission guideline drafts urged the Commission 
not to attempt any major reforms of the plea agreement process on the 
grounds that any set of guidelines that threatened to change pre-
guidelines practice radically also threatened to make the federal 
system unmanageable. Others argued that guidelines that failed to 
control and limit plea agreements would leave untouched a `loophole' 
large enough to undo the good that sentencing guidelines would bring.
    The Commission decided not to make major changes in plea agreement 
practices in the initial guidelines, but rather to provide guidance by 
issuing general policy statements concerning the acceptance of plea 
agreements in Chapter Six, Part B (Plea Agreements). The rules set 
forth in Fed. R. Crim. P. 11(e) govern the acceptance or rejection of 
such agreements. The Commission will collect data on the courts' plea 
practices and will analyze this information to determine when and why 
the courts accept or reject plea agreements and whether plea agreement 
practices are undermining the intent of the Sentencing Reform Act. In 
light of this information and analysis, the Commission will seek to 
further regulate the plea agreement process as appropriate. 
Importantly, if the policy statements relating to plea agreements are 
followed, circumvention of the Sentencing Reform Act and the guidelines 
should not occur.
    The Commission expects the guidelines to have a positive, 
rationalizing impact upon plea agreements for two reasons. First, the 
guidelines create a clear, definite expectation in respect to the 
sentence that a court will impose if a trial takes place. In the event 
a prosecutor and defense attorney explore the possibility of a 
negotiated plea, they will no longer work in the dark. This fact alone 
should help to reduce irrationality in respect to actual sentencing 
outcomes. Second, the guidelines create a norm to which courts will 
likely refer when they decide whether, under Rule 11(e), to accept or 
to reject a plea agreement or recommendation.

[[Page 26928]]

(d) Probation and Split Sentences
    The statute provides that the guidelines are to `reflect the 
general appropriateness of imposing a sentence other than imprisonment 
in cases in which the defendant is a first offender who has not been 
convicted of a crime of violence or an otherwise serious offense. * * 
*' 28 U.S.C. Sec.  994(j). Under pre-guidelines sentencing practice, 
courts sentenced to probation an inappropriately high percentage of 
offenders guilty of certain economic crimes, such as theft, tax 
evasion, antitrust offenses, insider trading, fraud, and embezzlement, 
that in the Commission's view are `serious.'
    The Commission's solution to this problem has been to write 
guidelines that classify as serious many offenses for which probation 
previously was frequently given and provide for at least a short period 
of imprisonment in such cases. The Commission concluded that the 
definite prospect of prison, even though the term may be short, will 
serve as a significant deterrent, particularly when compared with pre-
guidelines practice where probation, not prison, was the norm.
    More specifically, the guidelines work as follows in respect to a 
first offender. For offense levels one through eight, the sentencing 
court may elect to sentence the offender to probation (with or without 
confinement conditions) or to a prison term. For offense levels nine 
and ten, the court may substitute probation for a prison term, but the 
probation must include confinement conditions (community confinement, 
intermittent confinement, or home detention). For offense levels eleven 
and twelve, the court must impose at least one-half the minimum 
confinement sentence in the form of prison confinement, the remainder 
to be served on supervised release with a condition of community 
confinement or home detention. The Commission, of course, has not dealt 
with the single acts of aberrant behavior that still may justify 
probation at higher offense levels through departures.*

    \*\ Note: Although the Commission had not addressed `single acts 
of aberrant behavior' at the time the Introduction to the Guidelines 
Manual originally was written, it subsequently addressed the issue 
in Amendment 603, effective November 1, 2000. (See Supplement to 
Appendix C, amendment 603.)
(e) Multi-Count Convictions
    The Commission, like several state sentencing commissions, has 
found it particularly difficult to develop guidelines for sentencing 
defendants convicted of multiple violations of law, each of which makes 
up a separate count in an indictment. The difficulty is that when a 
defendant engages in conduct that causes several harms, each additional 
harm, even if it increases the extent to which punishment is warranted, 
does not necessarily warrant a proportionate increase in punishment. A 
defendant who assaults others during a fight, for example, may warrant 
more punishment if he injures ten people than if he injures one, but 
his conduct does not necessarily warrant ten times the punishment. If 
it did, many of the simplest offenses, for reasons that are often 
fortuitous, would lead to sentences of life imprisonment--sentences 
that neither just deserts nor crime control theories of punishment 
would justify.
    Several individual guidelines provide special instructions for 
increasing punishment when the conduct that is the subject of that 
count involves multiple occurrences or has caused several harms. The 
guidelines also provide general rules for aggravating punishment in 
light of multiple harms charged separately in separate counts. These 
rules may produce occasional anomalies, but normally they will permit 
an appropriate degree of aggravation of punishment for multiple 
offenses that are the subjects of separate counts.
    These rules are set out in Chapter Three, Part D (Multiple Counts). 
They essentially provide: (1) When the conduct involves fungible items 
(e.g., separate drug transactions or thefts of money), the amounts are 
added and the guidelines apply to the total amount; (2) when 
nonfungible harms are involved, the offense level for the most serious 
count is increased (according to a diminishing scale) to reflect the 
existence of other counts of conviction. The guidelines have been 
written in order to minimize the possibility that an arbitrary casting 
of a single transaction into several counts will produce a longer 
sentence. In addition, the sentencing court will have adequate power to 
prevent such a result through departures.
(f) Regulatory Offenses
    Regulatory statutes, though primarily civil in nature, sometimes 
contain criminal provisions in respect to particularly harmful 
activity. Such criminal provisions often describe not only substantive 
offenses, but also more technical, administratively-related offenses 
such as failure to keep accurate records or to provide requested 
information. These statutes pose two problems: First, which criminal 
regulatory provisions should the Commission initially consider, and 
second, how should it treat technical or administratively-related 
criminal violations?
    In respect to the first problem, the Commission found that it could 
not comprehensively treat all regulatory violations in the initial set 
of guidelines. There are hundreds of such provisions scattered 
throughout the United States Code. To find all potential violations 
would involve examination of each individual federal regulation. 
Because of this practical difficulty, the Commission sought to 
determine, with the assistance of the Department of Justice and several 
regulatory agencies, which criminal regulatory offenses were 
particularly important in light of the need for enforcement of the 
general regulatory scheme. The Commission addressed these offenses in 
the initial guidelines.
    In respect to the second problem, the Commission has developed a 
system for treating technical recordkeeping and reporting offenses that 
divides them into four categories. First, in the simplest of cases, the 
offender may have failed to fill out a form intentionally, but without 
knowledge or intent that substantive harm would likely follow. He might 
fail, for example, to keep an accurate record of toxic substance 
transport, but that failure may not lead, nor be likely to lead, to the 
release or improper handling of any toxic substance. Second, the same 
failure may be accompanied by a significant likelihood that substantive 
harm will occur; it may make a release of a toxic substance more 
likely. Third, the same failure may have led to substantive harm. 
Fourth, the failure may represent an effort to conceal a substantive 
harm that has occurred.
    The structure of a typical guideline for a regulatory offense 
provides a low base offense level (e.g., 6) aimed at the first type of 
recordkeeping or reporting offense. Specific offense characteristics 
designed to reflect substantive harms that do occur in respect to some 
regulatory offenses, or that are likely to occur, increase the offense 
level. A specific offense characteristic also provides that a 
recordkeeping or reporting offense that conceals a substantive offense 
will have the same offense level as the substantive offense.
(g) Sentencing Ranges
    In determining the appropriate sentencing ranges for each offense, 
the Commission estimated the average sentences served within each 
category under the pre-guidelines sentencing system. It also examined 
the sentences specified in federal statutes, in the parole guidelines, 
and in other relevant, analogous sources. The Commission's

[[Page 26929]]

Supplementary Report on the Initial Sentencing Guidelines (1987) 
contains a comparison between estimates of pre-guidelines sentencing 
practice and sentences under the guidelines.
    While the Commission has not considered itself bound by pre-
guidelines sentencing practice, it has not attempted to develop an 
entirely new system of sentencing on the basis of theory alone. 
Guideline sentences, in many instances, will approximate average pre-
guidelines practice and adherence to the guidelines will help to 
eliminate wide disparity. For example, where a high percentage of 
persons received probation under pre-guidelines practice, a guideline 
may include one or more specific offense characteristics in an effort 
to distinguish those types of defendants who received probation from 
those who received more severe sentences. In some instances, short 
sentences of incarceration for all offenders in a category have been 
substituted for a pre-guidelines sentencing practice of very wide 
variability in which some defendants received probation while others 
received several years in prison for the same offense. Moreover, 
inasmuch as those who pleaded guilty under pre-guidelines practice 
often received lesser sentences, the guidelines permit the court to 
impose lesser sentences on those defendants who accept responsibility 
for their misconduct. For defendants who provide substantial assistance 
to the government in the investigation or prosecution of others, a 
downward departure may be warranted.
    The Commission has also examined its sentencing ranges in light of 
their likely impact upon prison population. Specific legislation, such 
as the Anti-Drug Abuse Act of 1986 and the career offender provisions 
of the Sentencing Reform Act of 1984 (28 U.S.C. Sec.  994(h)), required 
the Commission to promulgate guidelines that will lead to substantial 
prison population increases. These increases will occur irrespective of 
the guidelines. The guidelines themselves, insofar as they reflect 
policy decisions made by the Commission (rather than legislated 
mandatory minimum or career offender sentences), are projected to lead 
to an increase in prison population that computer models, produced by 
the Commission and the Bureau of Prisons in 1987, estimated at 
approximately 10 percent over a period of ten years.
(h) The Sentencing Table
    The Commission has established a sentencing table that for 
technical and practical reasons contains 43 levels. Each level in the 
table prescribes ranges that overlap with the ranges in the preceding 
and succeeding levels. By overlapping the ranges, the table should 
discourage unnecessary litigation. Both prosecution and defense will 
realize that the difference between one level and another will not 
necessarily make a difference in the sentence that the court imposes. 
Thus, little purpose will be served in protracted litigation trying to 
determine, for example, whether $10,000 or $11,000 was obtained as a 
result of a fraud. At the same time, the levels work to increase a 
sentence proportionately. A change of six levels roughly doubles the 
sentence irrespective of the level at which one starts. The guidelines, 
in keeping with the statutory requirement that the maximum of any range 
cannot exceed the minimum by more than the greater of 25 percent or six 
months (28 U.S.C. Sec.  994(b)(2)), permit courts to exercise the 
greatest permissible range of sentencing discretion. The table overlaps 
offense levels meaningfully, works proportionately, and at the same 
time preserves the maximum degree of allowable discretion for the court 
within each level.
    Similarly, many of the individual guidelines refer to tables that 
correlate amounts of money with offense levels. These tables often have 
many rather than a few levels. Again, the reason is to minimize the 
likelihood of unnecessary litigation. If a money table were to make 
only a few distinctions, each distinction would become more important 
and litigation over which category an offender fell within would become 
more likely. Where a table has many small monetary distinctions, it 
minimizes the likelihood of litigation because the precise amount of 
money involved is of considerably less importance.
5. A Concluding Note
    The Commission emphasizes that it drafted the initial guidelines 
with considerable caution. It examined the many hundreds of criminal 
statutes in the United States Code. It began with those that were the 
basis for a significant number of prosecutions and sought to place them 
in a rational order. It developed additional distinctions relevant to 
the application of these provisions and it applied sentencing ranges to 
each resulting category. In doing so, it relied upon pre-guidelines 
sentencing practice as revealed by its own statistical analyses based 
on summary reports of some 40,000 convictions, a sample of 10,000 
augmented presentence reports, the parole guidelines, and policy 
judgments.
    The Commission recognizes that some will criticize this approach as 
overly cautious, as representing too little a departure from pre-
guidelines sentencing practice. Yet, it will cure wide disparity. The 
Commission is a permanent body that can amend the guidelines each year. 
Although the data available to it, like all data, are imperfect, 
experience with the guidelines will lead to additional information and 
provide a firm empirical basis for consideration of revisions.
    Finally, the guidelines will apply to more than 90 percent of all 
felony and Class A misdemeanor cases in the federal courts. Because of 
time constraints and the nonexistence of statistical information, some 
offenses that occur infrequently are not considered in the guidelines. 
Their exclusion does not reflect any judgment regarding their 
seriousness and they will be addressed as the Commission refines the 
guidelines over time.
2. CONTINUING EVOLUTION AND ROLE OF THE GUIDELINES
    The Sentencing Reform Act of 1984 changed the course of federal 
sentencing. Among other things, the Act created the United States 
Sentencing Commission as an independent agency in the Judicial Branch, 
and directed it to develop guidelines and policy statements for 
sentencing courts to use when sentencing offenders convicted of federal 
crimes. Moreover, it empowered the Commission with ongoing 
responsibilities to monitor the guidelines, submit to Congress 
appropriate modifications of the guidelines and recommended changes in 
criminal statutes, and establish education and research programs. The 
mandate rested on congressional awareness that sentencing is a dynamic 
field that requires continuing review by an expert body to revise 
sentencing policies, in light of application experience, as new 
criminal statutes are enacted, and as more is learned about what 
motivates and controls criminal behavior.
    This statement finds resonance in a line of Supreme Court cases 
that, taken together, echo two themes. The first theme is that the 
guidelines are the product of a deliberative process that seeks to 
embody the purposes of sentencing set forth in the Sentencing Reform 
Act, and as such they continue to play an important role in the 
sentencing court's determination of an appropriate sentence in a 
particular case. The Supreme Court alluded to this in Mistretta v. 
United States, 488 U.S. 361 (1989), which upheld the

[[Page 26930]]

constitutionality of both the federal sentencing guidelines and the 
Commission against nondelegation and separation of powers challenges. 
Therein the Court stated:

    Developing proportionate penalties for hundreds of different crimes 
by a virtually limitless array of offenders is precisely the sort of 
intricate, labor-intensive task for which delegation to an expert body 
is especially appropriate. Although Congress has delegated significant 
discretion to the Commission to draw judgments from its analysis of 
existing sentencing practice and alternative sentencing models, * * * 
[w]e have no doubt that in the hands of the Commission `the criteria 
which Congress has supplied are wholly adequate for carrying out the 
general policy and purpose' of the Act.

Id. at 379 (internal quotation marks and citations omitted).
    The continuing importance of the guidelines in federal sentencing 
was further acknowledged by the Court in United States v. Booker, 543 
U.S. 220 (2005), even as that case rendered the guidelines advisory in 
nature. In Booker, the Court held that the imposition of an enhanced 
sentence under the federal sentencing guidelines based on the 
sentencing judge's determination of a fact (other than a prior 
conviction) that was not found by the jury or admitted by the defendant 
violated the Sixth Amendment. The Court reasoned that an advisory 
guideline system, while lacking the mandatory features that Congress 
enacted, retains other features that help to further congressional 
objectives, including providing certainty and fairness in meeting the 
purposes of sentencing, avoiding unwarranted sentencing disparities, 
and maintaining sufficient flexibility to permit individualized 
sentences when warranted. The Court concluded that an advisory 
guideline system would `continue to move sentencing in Congress' 
preferred direction, helping to avoid excessive sentencing disparities 
while maintaining flexibility sufficient to individualize sentences 
where necessary.' Id. at 264-65. An advisory guideline system continues 
to assure transparency by requiring that sentences be based on 
articulated reasons stated in open court that are subject to appellate 
review. An advisory guideline system also continues to promote 
certainty and predictability in sentencing, thereby enabling the 
parties to better anticipate the likely sentence based on the 
individualized facts of the case.
    The continuing importance of the guidelines in the sentencing 
determination is predicated in large part on the Sentencing Reform 
Act's intent that, in promulgating guidelines, the Commission must take 
into account the purposes of sentencing as set forth in 18 U.S.C. Sec.  
3553(a). See 28 U.S.C. Sec. Sec.  994(f), 991(b)(1). The Supreme Court 
reinforced this view in Rita v. United States, 127 S. Ct. 2456 (2007), 
which held that a court of appeals may apply a presumption of 
reasonableness to a sentence imposed by a district court within a 
properly calculated guideline range without violating the Sixth 
Amendment. In Rita, the Court relied heavily on the complementary roles 
of the Commission and the sentencing court in federal sentencing, 
stating:

    [T]he presumption reflects the nature of the Guidelines-writing 
task that Congress set for the Commission and the manner in which the 
Commission carried out that task. In instructing both the sentencing 
judge and the Commission what to do, Congress referred to the basic 
sentencing objectives that the statute sets forth in 18 U.S.C. Sec.  
3553(a). * * * The provision also tells the sentencing judge to `impose 
a sentence sufficient, but not greater than necessary, to comply with' 
the basic aims of sentencing as set out above. Congressional statutes 
then tell the Commission to write Guidelines that will carry out these 
same Sec.  3553(a) objectives.

Id. at 2463 (emphasis in original). The Court concluded that `[t]he 
upshot is that the sentencing statutes envision both the sentencing 
judge and the Commission as carrying out the same basic Sec.  3553(a) 
objectives, the one, at retail, the other at wholesale,' id., and that 
the Commission's process for promulgating guidelines results in `a set 
of Guidelines that seek to embody the Sec.  3553(a) considerations, 
both in principle and in practice.' Id. at 2464.
    Consequently, district courts are required to properly calculate 
and consider the guidelines when sentencing, even in an advisory 
guideline system. See 18 U.S.C. Sec.  3553(a)(4), (a)(5); Booker, 543 
U.S. at 264 (`The district courts, while not bound to apply the 
Guidelines, must * * * take them into account when sentencing.'); Rita, 
127 S. Ct. at 2465 (stating that a district court should begin all 
sentencing proceedings by correctly calculating the applicable 
Guidelines range); Gall v. United States, 128 S. Ct. 586, 596 (2007) 
(`As a matter of administration and to secure nationwide consistency, 
the Guidelines should be the starting point and the initial 
benchmark.'). The district court, in determining the appropriate 
sentence in a particular case, therefore, must consider the properly 
calculated guideline range, the grounds for departure provided in the 
policy statements, and then the factors under 18 U.S.C. Sec.  3553(a). 
See Rita, 127 S. Ct. at 2465. The appellate court engages in a two-step 
process upon review. The appellate court `first ensure[s] that the 
district court committed no significant procedural error, such as 
failing to calculate (or improperly calculating) the Guidelines range * 
* * [and] then consider[s] the substantive reasonableness of the 
sentence imposed under an abuse-of-discretion standard[,] * * * 
tak[ing] into account the totality of the circumstances, including the 
extent of any variance from the Guidelines range.' Gall, 128 S. Ct. at 
597.
    The second and related theme resonant in this line of Supreme Court 
cases is that, as contemplated by the Sentencing Reform Act, the 
guidelines are evolutionary in nature. They are the product of the 
Commission's fulfillment of its statutory duties to monitor federal 
sentencing law and practices, to seek public input on the operation of 
the guidelines, and to revise the guidelines accordingly. As the Court 
acknowledged in Rita:

    The Commission's work is ongoing. The statutes and the Guidelines 
themselves foresee continuous evolution helped by the sentencing courts 
and courts of appeals in that process. The sentencing courts, applying 
the Guidelines in individual cases may depart (either pursuant to the 
Guidelines or, since Booker, by imposing a non-Guidelines sentence). 
The judges will set forth their reasons. The Courts of Appeals will 
determine the reasonableness of the resulting sentence. The Commission 
will collect and examine the results. In doing so, it may obtain advice 
from prosecutors, defenders, law enforcement groups, civil liberties 
associations, experts in penology, and others. And it can revise the 
Guidelines accordingly.

    Id. at 2464; see also Booker, 543 U.S. at 264 ([`T]he Sentencing 
Commission remains in place, writing Guidelines, collecting information 
about actual district court sentencing decisions, undertaking research, 
and revising the Guidelines accordingly.'); Gall, 128 S. Ct. at 594 
(`[E]ven though the Guidelines are advisory rather than mandatory, they 
are, as we pointed out in Rita, the product of careful study based on 
extensive empirical evidence derived from the review of thousands of 
individual sentencing decisions.').

[[Page 26931]]

    Provisions of the Sentencing Reform Act promote and facilitate this 
evolutionary process. For example, pursuant to 28 U.S.C. Sec.  994(x), 
the Commission publishes guideline amendment proposals in the Federal 
Register and conducts hearings to solicit input on those proposals from 
experts and other members of the public. Pursuant to 28 U.S.C. Sec.  
994(o), the Commission periodically reviews and revises the guidelines 
in consideration of comments it receives from members of the federal 
criminal justice system, including the courts, probation officers, the 
Department of Justice, the Bureau of Prisons, defense attorneys and the 
federal public defenders, and in consideration of data it receives from 
sentencing courts and other sources. Statutory mechanisms such as these 
bolster the Commission's ability to take into account fully the 
purposes of sentencing set forth in 18 U.S.C. Sec.  3553(a)(2) in its 
promulgation of the guidelines.
    Congress retains authority to require certain sentencing practices 
and may exercise its authority through specific directives to the 
Commission with respect to the guidelines. As the Supreme Court noted 
in Kimbrough v. United States, 128 S. Ct. 558 (2007), `Congress has 
shown that it knows how to direct sentencing practices in express 
terms. For example, Congress has specifically required the Sentencing 
Commission to set Guideline sentences for serious recidivist offenders 
`at or near' the statutory maximum.' Id. at 571; 28 U.S.C. Sec.  
994(h).
    As envisioned by Congress, implemented by the Commission, and 
reaffirmed by the Supreme Court, the guidelines are the product of a 
deliberative and dynamic process that seeks to embody within federal 
sentencing policy the purposes of sentencing set forth in the 
Sentencing Reform Act. As such, the guidelines continue to be a key 
component of federal sentencing and to play an important role in the 
sentencing court's determination of an appropriate sentence in any 
particular case.
3. AUTHORITY
    Sec.  1A3.1. Authority.
    The guidelines, policy statements, and commentary set forth in this 
Guidelines Manual, including amendments thereto, are promulgated by the 
United States Sentencing Commission pursuant to: (1) Section 994(a) of 
title 28, United States Code; and (2) with respect to guidelines, 
policy statements, and commentary promulgated or amended pursuant to 
specific congressional directive, pursuant to the authority contained 
in that directive in addition to the authority under section 994(a) of 
title 28, United States Code.''.
    Reason for Amendment: This amendment sets forth the introduction to 
the Guidelines Manual as it first appeared in 1987, with the inclusion 
of amendments occasionally made thereto between 1987 and 2000, in 
Subpart 1 of Chapter One. In 2003, the introduction was moved to an 
editorial note. (See USSC, Guidelines Manual, Supplement to Appendix C, 
Amendment 651.) This amendment removes the introduction from the 
editorial note to Subpart 1 of Chapter One, representing the original 
introduction as it first appeared in 1987, as amended by Amendments 67, 
68, 307, 466, 534, 538, 602, and 603.
    The amendment also supplements the original introduction with an 
updated discussion of the role of the guidelines, their evolution, and 
Supreme Court case law, and redesignates Sec.  1A1.1 (Authority) as 
Sec.  1A3.1.

2. Court Security Improvement Act of 2007

    Amendment: Section 2A6.1 is amended in the heading by adding at the 
end ``; False Liens''.
    Section 2A6.1(b) is amended by striking subdivision (2) and 
inserting the following:
    ``(2) If (A) the offense involved more than two threats; or (B) the 
defendant is convicted under 18 U.S.C. Sec.  1521 and the offense 
involved more than two false liens or encumbrances, increase by 2 
levels.''.
    The Commentary to Sec.  2A6.1 captioned ``Statutory Provisions'' is 
amended by inserting ``1521,'' after ``1038,''.
    The Commentary to Sec.  2A6.1 captioned ``Application Notes'' is 
amended by redesignating Notes 2 and 3 as Notes 3 and 4, respectively; 
and by inserting after Note 1 the following:
    ``2. Applicability of Chapter Three Adjustments.--If the defendant 
is convicted under 18 U.S.C. Sec.  1521, apply Sec.  3A1.2 (Official 
Victim).''.
    The Commentary to Sec.  2A6.1 captioned ``Application Notes'' is 
amended in Note 4, as redesignated by this amendment, by striking 
subdivision (B) and inserting the following:
    ``(B) Multiple Threats, False Liens or Encumbrances, or Victims; 
Pecuniary Harm.--If the offense involved (i) substantially more than 
two threatening communications to the same victim, (ii) a prolonged 
period of making harassing communications to the same victim, (iii) 
substantially more than two false liens or encumbrances against the 
real or personal property of the same victim, (iv) multiple victims, or 
(v) substantial pecuniary harm to a victim, an upward departure may be 
warranted.''.
    Section 2H3.1(b) is amended by striking ``Characteristic'' and 
inserting ``Characteristics''; and by adding at the end the following:
    ``(2) (Apply the greater) If--
    (A) The defendant is convicted under 18 U.S.C. Sec.  119, increase 
by 8 levels; or
    (B) The defendant is convicted under 18 U.S.C. Sec.  119, and the 
offense involved the use of a computer or an interactive computer 
service to make restricted personal information about a covered person 
publicly available, increase by 10 levels.''.
    The Commentary to Sec.  2H3.1 captioned ``Statutory Provisions'' is 
amended by inserting ``119,'' before ``1039,''.
    The Commentary to Sec.  2H3.1 captioned ``Application Notes'' is 
amended by redesignating Note 3 as Note 5 and inserting after Note 2 
the following:
    ``3. Inapplicability of Chapter Three (Adjustments).--If the 
enhancement under subsection (b)(2) applies, do not apply Sec.  3A1.2 
(Official Victim).
    4. Definitions.--For purposes of subsection (b)(2)(B):
    `Computer' has the meaning given that term in 18 U.S.C. Sec.  
1030(e)(1).
    `Covered person' has the meaning given that term in 18 U.S.C. Sec.  
119(b).
    `Interactive computer service' has the meaning given that term in 
section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. Sec.  
230(f)(2)).
    `Restricted personal information' has the meaning given that term 
in 18 U.S.C. Sec.  119(b).''.
    Appendix A (Statutory Index) is amended by inserting after the line 
reference to 18 U.S.C. Sec.  115(b)(4) the following:
    ``18 U.S.C. Sec.  119 2H3.1''; and
    By inserting after the line reference to 18 U.S.C. Sec.  1520 the 
following:
    ``18 U.S.C. Sec.  1521 2A6.1''.
    Reason for Amendment: This amendment responds to two new offenses 
created by the Court Security Improvement Act of 2007 (the ``Act''), 
Public Law 110-177.
    First, the amendment addresses section 201 of the Act, which 
created a new offense at 18 U.S.C. Sec.  1521 prohibiting the filing 
of, attempts, or conspiracies to file any false lien or encumbrance 
against the real or personal property of officers or employees of the 
United States Government, on account of that individual's performance 
of official duties. The offense is punishable by a statutory maximum 
term of imprisonment of ten years. The amendment references the new 
offense to Sec.  2A6.1 (Threatening or Harassing Communications; 
Hoaxes), and expands

[[Page 26932]]

the heading of Sec.  2A6.1 accordingly. The Commission determined that 
referencing offenses under 18 U.S.C. Sec.  1521 to Sec.  2A6.1 is 
appropriate because the harassment and threatening of an official by 
the filing of fraudulent encumbrances is analogous to conduct covered 
by other statutes referenced to this guideline.
    The amendment also makes a number of modifications to Sec.  2A6.1 
to address specific harms associated with violations of 18 U.S.C. Sec.  
1521. Specifically, the amendment expands the scope of the two-level 
enhancement at subsection (b)(2) to apply if the defendant is convicted 
under 18 U.S.C. Sec.  1521 and the offense involved more than two false 
liens or encumbrances, and also provides an upward departure provision 
that may apply if the offense involved substantially more than two 
false liens or encumbrances against the real or personal property of 
the same victim. These modifications reflect the additional time and 
resources required to remove multiple false liens or encumbrances and 
provide proportionality between such offenses and other offenses 
referenced to this guideline that involve more than two threats.
    The amendment also provides an upward departure provision that may 
apply if the offense involved substantial pecuniary harm to a victim. 
The upward departure provision reflects the increased seriousness of 
those offenses that result in substantial costs.
    In addition, the amendment adds a new application note specifying 
that if the defendant is convicted under 18 U.S.C. Sec.  1521, the 
adjustment under Sec.  3A1.2 (Official Victim) shall apply. The 
addition of this note clarifies that the official status of the victim 
is not taken into account in the base offense level.
    Second, the amendment addresses section 202 of the Act, which 
created a new offense at 18 U.S.C. Sec.  119 prohibiting the public 
disclosure of restricted personal information about a federal officer 
or employee, witness, juror, or immediate family member of such a 
person, with the intent to threaten or facilitate a crime of violence 
against such a person. The offense is punishable by a statutory maximum 
term of imprisonment of five years.
    The amendment references the new offense to Sec.  2H3.1 
(Interception of Communications; Eavesdropping; Disclosure of Certain 
Private or Protected Information). The Commission determined that 
referencing offenses under 18 U.S.C. Sec.  119 to Sec.  2H3.1 is 
appropriate because the prohibited conduct is analogous to conduct 
covered by other statutes referenced to this guideline.
    The amendment also creates a two-pronged enhancement at subsection 
(b)(2), the greater of which applies. The first prong, at subsection 
(b)(2)(A), is an eight-level enhancement applicable if the defendant is 
convicted under 18 U.S.C. Sec.  119. A corresponding application note 
provides that Sec.  3A1.2 shall not apply in such cases. Thus, the 
enhancement at subsection (b)(2)(A) accounts for the official victim 
adjustment under Sec.  3A1.2 that would otherwise apply in many 
offenses under 18 U.S.C. Sec.  119. Incorporating the official victim 
adjustment into subsection (b)(2)(A) was appropriate because the 
adjustment in Sec.  3A1.2 does not apply to some individuals, such as 
witnesses and jurors, who are covered by 18 U.S.C. Sec.  119. The 
enhancement at subsection (b)(2)(A) also reflects the intent to 
threaten or facilitate a crime of violence, which is an element of an 
offense under 18 U.S.C. Sec.  119. The cross reference at subsection 
(c)(1) will apply, however, if the purpose of the offense was to 
facilitate another offense and the guideline applicable to an attempt 
to commit that other offense results in a greater offense level.
    The second prong, at subsection (b)(2)(B), is a ten-level 
enhancement applicable if the defendant is convicted under 18 U.S.C. 
Sec.  119 and the offense involved the use of a computer or an 
interactive computer service to make restricted personal information 
about a covered person publicly available. This greater enhancement 
accounts for the more substantial risk of harm posed by widely 
disseminating such protected information via the Internet.

3. Repromulgation of the Emergency and Disaster Assistance Fraud 
Amendment

    Amendment: Section 2B1.1, effective February 6, 2008 (see USSC 
Guidelines Manual Supplement to the 2007 Supplement to Appendix C, 
Amendment 714), is repromulgated with the following changes:
    Section 2B1.1(b) is amended by striking subdivision (16); by 
redesignating subdivisions (11) through (15) as subdivisions (12) 
through (16), respectively; by inserting after subdivision (10) the 
following:
    ``(11) If the offense involved conduct described in 18 U.S.C. Sec.  
1040, increase by 2 levels. If the resulting offense level is less than 
level 12, increase to level 12.'';
    In subdivision (12), as redesignated by this amendment, by 
inserting ``resulting'' before ``offense level''; and
    In subdivision (14), as redesignated by this amendment, by striking 
``(b)(13)(B)'' and inserting ``(b)(14)(B)''.
    The Commentary to Sec.  2B1.1 captioned ``Statutory Provisions'' is 
amended by inserting ``1040,'' before ``1341-1344,''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 3 by striking subdivision (A)(v)(IV).
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 10 by striking ``(b)(11)'' and inserting ``(b)(12)'' 
each place it appears.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 11 by striking ``(b)(13)(A)'' and inserting 
``(b)(14)(A)'' each place it appears.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 12 by striking ``(b)(13)(B)'' and inserting 
``(b)(14)(B)''; by striking ``(b)(13)(B)(i)'' and inserting 
``(b)(14)(B)(i)''; and by striking ``(b)(13)(B)(ii)'' and inserting 
``(b)(14)(B)(ii)''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 13 by striking ``(b)(14)'' and inserting ``(b)(15)'' 
each place it appears; by striking ``(b)(14)(iii)'' and inserting 
``(b)(15)(iii)'' each place it appears; and by striking ``(b)(13)(B)'' 
and inserting ``(b)(14)(B)'' each place it appears.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 14 by striking ``(b)(15)'' and inserting ``(b)(16)'' 
each place it appears.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended by striking Note 15 in its entirety; and by redesignating Notes 
16 through 20 as Notes 15 through 19, respectively.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 19, as redesignated by this amendment, by striking 
``(b)(14)(iii)'' and inserting ``(b)(15)(iii)''; and by adding at the 
end the following:
    ``(D) Downward Departure for Major Disaster or Emergency Victims.--
If (i) the minimum offense level of level 12 in subsection (b)(11) 
applies; (ii) the defendant sustained damage, loss, hardship, or 
suffering caused by a major disaster or an emergency as those terms are 
defined in 42 U.S.C. Sec.  5122; and (iii) the benefits received 
illegally were only an extension or overpayment of benefits received 
legitimately, a downward departure may be warranted.''.
    The Commentary to Sec.  2B1.1 captioned ``Background'' is amended 
by inserting after the paragraph that begins ``Subsection (b)(10)(C)'' 
the following: ``Subsection (b)(11) implements the directive in section 
5 of Public Law 110-179.''.

[[Page 26933]]

    The Commentary to Sec.  2B1.1 captioned ``Background'' is amended 
in the paragraph that begins ``Subsection (b)(12)(B)'' by striking 
``(b)(12)(B)'' and inserting ``(b)(13)(B)'';
    In the paragraph that begins ``Subsection (b)(13)(A)'' by striking 
``(b)(13)(A)'' and inserting ``(b)(14)(A)'';
    In the paragraph that begins ``Subsection (b)(13)(B)(i)'' by 
striking ``(b)(13)(B)(i)'' and inserting ``(b)(14)(B)(i)'';
    In the paragraph that begins ``Subsection (b)(14)'' by striking 
``(b)(14)'' and inserting ``(b)(15)''; and
    By striking ``(b)(14)(B)'' and inserting ``(b)(15)(B)''; and
    By striking the paragraph that begins ``Subsection (b)(16) 
implements''.
    Reason for Amendment: This amendment re-promulgates as permanent 
the temporary, emergency amendment (effective Feb. 6, 2008) that 
implemented the emergency directive in section 5 of the ``Emergency and 
Disaster Assistance Fraud Penalty Enhancement Act of 2007,'' Public Law 
110-179 (the ``Act''). The directive, which required the Commission to 
promulgate an amendment under emergency amendment authority by February 
6, 2008, directed that the Commission forthwith shall--

promulgate sentencing guidelines or amend existing sentencing 
guidelines to provide for increased penalties for persons convicted of 
fraud or theft offenses in connection with a major disaster declaration 
under section 401 of the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act (42 U.S.C. 5170) or an emergency declaration 
under section 501 of the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act (42 U.S.C. 5191) . * * *
    Section 5(b) of the Act further required the Commission to--
    (1) Ensure that the sentencing guidelines and policy statements 
reflect the serious nature of the offenses described in subsection (a) 
and the need for aggressive and appropriate law enforcement action to 
prevent such offenses;
    (2) Assure reasonable consistency with other relevant directives 
and with other guidelines;
    (3) Account for any aggravating or mitigating circumstances that 
might justify exceptions, including circumstances for which the 
sentencing guidelines currently provide sentencing enhancements;
    (4) Make any necessary conforming changes to the sentencing 
guidelines; and
    (5) Assure that the guidelines adequately meet the purposes of 
sentencing as set forth in section 3553(a)(2) of title 18, United 
States Code.
    The emergency amendment addressed concerns that disaster fraud 
involves harms not adequately addressed by 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) by (1) adding a 
two-level enhancement if the offense involved fraud or theft involving 
any benefit authorized, transported, transmitted, transferred, 
disbursed, or paid in connection with a declaration of a major disaster 
or an emergency; (2) modifying the commentary to the guideline as it 
relates to the calculation of loss; and (3) providing a reference to 
Sec.  2B1.1 in Appendix A (Statutory Index) for the offense at 18 
U.S.C. Sec.  1040 (Fraud in connection with major disaster or emergency 
benefits) created by the Act.
    This amendment repromulgates the temporary, emergency amendment as 
permanent, with the following changes. First, the amendment expands the 
scope of the two-level enhancement to include all conduct described in 
18 U.S.C. Sec.  1040. Thus, the amendment expands the scope of the 
enhancement to include fraud or theft involving procurement of property 
or services as a contractor, subcontractor or supplier, rather than 
limiting it to the conduct described in the emergency directive. The 
limited emergency amendment authority did not permit the Commission to 
include such conduct in the enhancement promulgated in the emergency 
amendment. However, the directive in section 5 of the Act covers all 
``fraud or theft offenses in connection with a major disaster 
declaration'' and, therefore, expansion of the scope of the enhancement 
to apply to all conduct described in 18 U.S.C. Sec.  1040 is 
appropriate.
    Second, the amendment modifies the enhancement to include a minimum 
offense level of 12. The Commission frequently adopts a minimum offense 
level in circumstances in which, as in these cases, loss as calculated 
by the guidelines is difficult to compute or does not adequately 
account for the harm caused by the offense. The Commission studied a 
sample of disaster fraud cases and compared those cases to other cases 
of defrauding government programs. This analysis supported claims made 
in testimony to the Commission that the majority of the disaster fraud 
cases resulted in probationary sentences because the amount of loss 
calculated under subsection (b)(1) of Sec.  2B1.1 had little impact on 
the sentences. The Commission also received testimony and public 
comment identifying various harms unique to disaster fraud cases. For 
example, charitable institutions may have a more difficult time 
soliciting contributions because fraud in connection with disasters may 
erode public trust in these institutions. Moreover, the pool of funds 
available to aid legitimate disaster victims is adversely affected when 
fraud occurs. Further, the inherent tension between the imposition of 
fraud controls and the need to provide aid to disaster victims quickly 
makes it difficult for relief agencies and charitable institutions to 
prevent disaster fraud. All of these factors provide support for a 
minimum offense level.
    Third, the amendment adds a downward departure provision that may 
apply in a case in which the minimum offense level applies, the 
defendant is a victim of a major disaster or emergency, and the 
benefits received illegally were only an extension or overpayment of 
benefits received legitimately. This provision recognizes that a 
defendant's legitimate status as a disaster victim may be a mitigating 
factor warranting a downward departure in certain cases involving 
relatively small amounts of loss.
    Fourth, the amendment deletes certain commentary relating to the 
definition of loss that was promulgated in the emergency amendment. 
Specifically, the emergency amendment added subdivision (IV) to 
Application Note 3(A)(v) of Sec.  2B1.1 providing that in disaster 
fraud cases, ``reasonably foreseeable pecuniary harm includes the 
administrative costs to any federal, state, or local government entity 
or any commercial or not-for-profit entity of recovering the benefit 
from any recipient thereof who obtained the benefit through fraud or 
was otherwise ineligible for the benefit that were reasonably 
foreseeable.'' The amendment deletes this provision because of concerns 
that administrative costs might be difficult to determine or in some 
instances could over-represent the harm caused by the offense.
    Finally, the amendment makes conforming changes to the guideline 
and the commentary.

4. Honest Leadership and Open Government Act of 2007

    Amendment: The Commentary to Sec.  2C1.1 captioned ``Statutory 
Provisions'' is amended by inserting ``227,'' after ``226,''.

[[Page 26934]]

    Appendix A (Statutory Index) is amended by inserting after the line 
reference to 18 U.S.C. Sec.  226 the following:
    ``18 U.S.C. Sec.  227 2C1.1''.
    Reason for Amendment: This amendment responds to the Honest 
Leadership and Open Government Act of 2007, Public Law 110-81 (``the 
Act''). The Act created a criminal offense at 18 U.S.C. Sec.  227 
prohibiting a member or employee of Congress from influencing or 
attempting to influence, on the basis of political affiliation, 
employment decisions or practices of a private entity. The offense is 
punishable by a 15-year statutory maximum term of imprisonment.
    The amendment modifies Appendix A (Statutory Index) to reference 
offenses under 18 U.S.C. Sec.  227 to Sec.  2C1.1 (Offering, Giving, 
Soliciting, or Receiving a Bribe; Extortion Under Color of Official 
Right; Fraud Involving the Deprivation of the Intangible Right to 
Honest Services of Public Officials; Conspiracy to Defraud by 
Interference with Governmental Functions) because this guideline covers 
similar offenses.

5. Animal Fighting Prohibition Enforcement Act of 2007

    Amendment: Section 2E3.1 is amended in the heading by adding at the 
end ``; Animal Fighting Offenses''.
    Section 2E3.1(a) is amended by inserting ``(Apply the greatest)'' 
after ``Level:''; by redesignating subdivision (2) as subdivision (3); 
and by inserting after subdivision (1) the following:
    ``(2) 10, if the offense involved an animal fighting venture; or''.
    The Commentary to Sec.  2E3.1 captioned ``Statutory Provisions'' is 
amended by inserting ``7 U.S.C. Sec.  2156;'' before ``15 U.S.C. 
Sec. Sec.  ''.
    The Commentary to Sec.  2E3.1 is amended by adding at the end the 
following:
    ``Application Notes:
    1. Definition.--For purposes of this guideline: `Animal fighting 
venture' has the meaning given that term in 7 U.S.C. Sec.  2156(g).
    2. Upward Departure Provision.--If the offense involved 
extraordinary cruelty to an animal that resulted in, for example, 
maiming or death to an animal, an upward departure may be warranted.''.
    The Commentary to Sec.  2X5.2 captioned ``Statutory Provisions'' is 
amended by striking ``7 U.S.C. Sec.  2156;''.
    Appendix A (Statutory Index) is amended in the line reference to 7 
U.S.C. Sec.  2156 by striking ``2X5.2'' and inserting ``2E3.1''.
    Reason for Amendment: This amendment implements the Animal Fighting 
Prohibition Enforcement Act of 2007, Public Law 110-22 (the ``Act''). 
The Act amended the Animal Welfare Act, 7 U.S.C. Sec.  2156, to 
increase penalties for existing offenses and to create a new offense. 
Specifically, the Act increased penalties for criminal violations of 7 
U.S.C. Sec.  2156 from a one-year statutory maximum term of 
imprisonment to a three-year statutory maximum term of imprisonment. 
The penalties are set forth in section 49 of title 18, United States 
Code. In addition, the Act created an offense at 7 U.S.C. Sec.  2156(e) 
making it unlawful to ``sell, buy, transport, or deliver in interstate 
or foreign commerce a knife, a gaff, or any other sharp instrument 
attached, or designed or intended to be attached, to the leg of a bird 
for use in an animal fighting venture.'' This new offense also carries 
a three-year statutory maximum term of imprisonment.
    Because 7 U.S.C. Sec.  2156 is now a felony offense, the amendment 
deletes the reference of 7 U.S.C. Sec.  2156 to Sec.  2X5.2 (Class A 
Misdemeanors) in Appendix A (Statutory Index), and deletes the listing 
of 7 U.S.C. Sec.  2156 from the statutory provisions listed in the 
commentary to Sec.  2X5.2. The amendment references offenses under 7 
U.S.C. Sec.  2156 to Sec.  2E3.1 (Gambling Offenses) as the legislative 
history and public comment indicate that such offenses often involve 
gambling. Accordingly, the amendment expands the title of Sec.  2E3.1 
to include animal fighting offenses.
    The amendment also creates a new alternative base offense level at 
Sec.  2E3.1(a)(2) that provides a base offense level of level 10 if the 
offense involved an ``animal fighting venture,'' which is defined in 
Application Note 1 as having the meaning given that term in 7 U.S.C. 
Sec.  2156(g), i.e., ``any event which involves a fight between at 
least two animals and is conducted for purposes of sport, wagering, or 
entertainment.'' The alternative base offense level reflects the 
increased harm, i.e., cruelty to animals, resulting from offenses under 
7 U.S.C. Sec.  2156(g) that is not associated with offenses that 
typically receive a base offense level of level 6 under the guideline. 
Additionally, the amendment adds an instruction to apply the greatest 
applicable base offense level at Sec.  2E3.1(a) because an offense 
involving an animal fighting venture may also involve conduct covered 
by subsection (a)(1) and, therefore, should receive the higher base 
offense level provided by that subsection.
    The amendment also provides an upward departure provision that may 
apply if an offense involves extraordinary cruelty to an animal that 
resulted in, for example, maiming or death to an animal.

6. Immigration

    Amendment: The Commentary to Sec.  2L1.2 captioned ``Application 
Notes'' is amended in Note 1 by striking subdivision (B)(iii) and 
inserting the following:
    ``(iii) `Crime of violence' means any of the following offenses 
under federal, state, or local law: Murder, manslaughter, kidnapping, 
aggravated assault, forcible sex offenses (including where consent to 
the conduct is not given or is not legally valid, such as where consent 
to the conduct is involuntary, incompetent, or coerced), statutory 
rape, sexual abuse of a minor, robbery, arson, extortion, extortionate 
extension of credit, burglary of a dwelling, or any other offense under 
federal, state, or local law that has as an element the use, attempted 
use, or threatened use of physical force against the person of 
another.'';
    And in subdivision (B)(iv) by inserting ``, or offer to sell'' 
after ``dispensing of''.
    The Commentary to Sec.  2L1.2 captioned ``Application Notes'' is 
amended by adding at the end the following:
    ``7. Departure Consideration.--There may be cases in which the 
applicable offense level substantially overstates or understates the 
seriousness of a prior conviction. In such a case, a departure may be 
warranted. Examples: (A) In a case in which subsection (b)(1)(A) or 
(b)(1)(B) does not apply and the defendant has a prior conviction for 
possessing or transporting a quantity of a controlled substance that 
exceeds a quantity consistent with personal use, an upward departure 
may be warranted. (B) In a case in which subsection (b)(1)(A) applies, 
and the prior conviction does not meet the definition of aggravated 
felony at 8 U.S.C. Sec.  1101(a)(43), a downward departure may be 
warranted.''.
    Reason for Amendment: This amendment addresses certain discrete 
issues that have arisen in the application of Sec.  2L1.2 (Unlawfully 
Entering or Remaining in the United States). The amendment reflects 
input the Commission has received from federal judges, prosecutors, 
defense attorneys, and probation officers at several roundtable 
discussions and public hearings on the operation of Sec.  2L1.2.
    First, the amendment clarifies the scope of the term ``forcible sex 
offense'' as that term is used in the definition of ``crime of 
violence'' in Sec.  2L1.2, Application Note 1(B)(iii). The amendment 
provides that the term

[[Page 26935]]

``forcible sex offense'' includes crimes ``where consent to the conduct 
is not given or is not legally valid, such as where consent to the 
conduct is involuntary, incompetent, or coerced.'' The amendment makes 
clear that forcible sex offenses, like all offenses enumerated in 
Application Note 1(B)(iii), ``are always classified as `crimes of 
violence,' regardless of whether the prior offense expressly has as an 
element the use, attempted use, or threatened use of physical force 
against the person of another,'' USSC, Guideline Manual, Supplement to 
Appendix C, Amendment 658. Application of the amendment, therefore, 
would result in an outcome that is contrary to cases excluding crimes 
in which ``there may be assent in fact but no legally valid consent'' 
from the scope of ``forcible sex offenses.'' See, e.g., United States 
v. Gomez-Gomez, 493 F.3d 562, 567 (5th Cir. 2007) (holding that a rape 
conviction was not a forcible sex offense because it could have been 
based on assent given in response to a threat ``to reveal embarrassing 
secrets'' or after ``an employer threatened to fire a subordinate''); 
United States v. Luciano-Rodriguez, 442 F.3d 320, 322-23 (5th Cir. 
2006) (holding that a conviction for a sexual assault was not a 
forcible sex offense because it could have been based on assent when 
``the actor knows that as a result of mental disease or defect the 
other person is at the time of the sexual assault incapable either of 
appraising the nature of the act or of resisting it,'' when ``the actor 
is a public servant who coerces the other person to submit or 
participate,'' or when ``the actor is a member of the clergy or is a 
mental health service provider who exploits the emotional dependency 
engendered by their position''); United States v. Sarmiento-Funes, 374 
F.3d 336, 341 (5th Cir. 2004) (holding that a conviction for sexual 
assault was not a forcible sex offense because it could have been based 
on assent that is ``the product of deception or a judgment impaired by 
intoxication'').
    Second, the amendment clarifies that an ``offer to sell'' a 
controlled substance is a ``drug trafficking offense'' for purposes of 
subsection (b)(1) of Sec.  2L1.2 by adding ``offer to sell'' to the 
conduct listed in Application Note 1(B)(iv).
    Finally, the amendment addresses the concern that in some cases the 
categorical enhancements in subsection (b) may not adequately reflect 
the seriousness of a prior offense. The amendment adds a departure 
provision that may apply in a case ``in which the applicable offense 
level substantially overstates or understates the seriousness of a 
prior conviction.'' The amendment provides two examples of cases that 
may warrant such a departure. The first example suggests that an upward 
departure may be warranted in a case in which ``subsection (b)(1)(A) or 
(b)(1)(B) does not apply and the defendant has a prior conviction for 
possessing or transporting a quantity of a controlled substance that 
exceeds a quantity consistent with personal use.'' The second example 
suggests that a downward departure may be warranted in a case in which 
``subsection (b)(1)(A) applies, and the prior conviction does not meet 
the definition of aggravated felony at 8 U.S.C. Sec.  1101(a)(43).''

7. Miscellaneous Food and Drug Offenses

    Amendment: Section 2N2.1 is amended by redesignating subsection (b) 
as subsection (c) and inserting after subsection (a) the following:
    ``(b) Specific Offense Characteristic
    (1) If the defendant was convicted under 21 U.S.C. Sec.  331 after 
sustaining a prior conviction under 21 U.S.C. Sec.  331, increase by 4 
levels.''.
    The Commentary to Sec.  2N2.1 captioned ``Application Notes'' is 
amended in Note 2 by striking ``(b)(1)'' and inserting ``(c)(1)''; and 
by striking ``(b)(2)'' and inserting ``(c)(2)''.
    The Commentary to Sec.  2N2.1 captioned ``Application Notes'' is 
amended in Note 3 by striking ``Death'' and inserting ``The offense 
created a substantial risk of bodily injury or death;''; by inserting 
``death,'' before ``extreme''; and by inserting ``from the offense'' 
after ``resulted''.
    Reason for Amendment: This amendment makes two changes to Sec.  
2N2.1 (Violations of Statutes and Regulations Dealing With Any Food, 
Drug, Biological Product, Device, Cosmetic, or Agricultural Product) to 
address offenses under the Federal Food, Drug, and Cosmetic Act, 21 
U.S.C. Sec. Sec.  301 et seq. (the ``FDCA'') and the Prescription Drug 
Marketing Act of 1987, Public Law 100-293 (the ``PDMA''). First, the 
amendment adds a specific offense characteristic at subsection (b)(1) 
of Sec.  2N2.1 that provides a four-level enhancement for repeat 
violations of the FDCA. First time violations of the FDCA, absent 
fraud, carry a maximum term of imprisonment of one year. 21 U.S.C. 
Sec.  333(a)(1). In contrast, second or subsequent violations of the 
FDCA carry a maximum term of imprisonment of three years. 21 U.S.C. 
Sec.  333(a)(2). The Commission determined based on public comment and 
testimony that an enhancement is appropriate to account for the 
increased statutory maximum penalties provided for second or subsequent 
FDCA violations.
    Second, the amendment expands the upward departure provision at 
Application Note 3(A) of Sec.  2N2.1 to include an offense that created 
a substantial risk of bodily injury or death. Public comment and 
testimony indicated that Sec.  2N2.1 may not adequately account for the 
substantial risk of bodily injury or death created by certain offenses. 
The PDMA, for example, includes certain offenses that may create such 
risks, such as the re-importation into the United States of any 
previously exported prescription drug, except by the drug's 
manufacturer; the sale or purchase of any prescription drug sample or 
coupon; and the wholesale distribution of prescription drugs without 
the necessary state or federal licenses. 21 U.S.C. Sec.  353(c), (d), 
(e). Thus, the amendment expanded the scope of the upward departure 
provision to address such risks.

8. Technical Amendment

    Amendment: The Commentary to Sec.  2E4.1 captioned ``Application 
Note'' is amended in Note 1 by inserting ``and local'' before 
``excise''; and by striking ``tax'' and inserting ``taxes''.
    The Commentary to Sec.  2E4.1 captioned ``Background'' is amended 
by inserting ``and local'' before ``excise''.
    Section 2X7.1 is amended in subsection (a) by striking ``554'' and 
inserting ``555'' each place it appears.
    The Commentary to Sec.  2X7.1 captioned ``Statutory Provision'' is 
amended by striking ``554'' and inserting ``555''.
    Section 3C1.4 is amended by striking ``3559(f)(1)'' and inserting 
``3559(g)(1)''.
    Appendix A (Statutory Index) is amended by striking both line 
references to 18 U.S.C. Sec.  554 and inserting the following:
    ``18 U.S.C. Sec.  554 2B1.5, 2M5.2, 2Q2.1
    18 U.S.C. Sec.  555 2X7.1'';
    In the line reference to 18 U.S.C. Sec.  1091 by striking ``2H1.3'' 
and inserting ``2H1.1'';
    In the line reference to 18 U.S.C. Sec.  1512(a) by inserting ``, 
2A2.2, 2A2.3, 2J1.2'' after ``2A2.1''; and
    In the line reference to 18 U.S.C. Sec.  1512(b) by striking 
``2A1.2, 2A2.2,''.
    Reason for Amendment: This amendment makes various technical and 
conforming changes to the guidelines.
    First, the amendment addresses section 121 of the USA PATRIOT 
Improvement and Reauthorization Act of 2005, Public Law 109-177, which 
expanded the definition of ``contraband cigarette'' in subsection (2) 
of 18 U.S.C. Sec.  2341 to include the failure to pay local

[[Page 26936]]

cigarette taxes. The amendment reflects this statutory change by 
expanding the scope of Application Note 1 of Sec.  2E4.1 (Unlawful 
Conduct Relating to Contraband Cigarettes and Smokeless Tobacco) to 
include local excise taxes within the meaning of ``taxes evaded.'' The 
amendment also amends the background commentary to Sec.  2E4.1 to 
include local excise taxes.
    Second, the amendment implements technical corrections made by 
section 553 of Public Law 110-161 by changing the statutory references 
in Sec.  2X7.1 (Border Tunnels and Subterranean Passages) from ``18 
U.S.C. Sec.  554'' to ``18 U.S.C. Sec.  555,'' and by amending Appendix 
A (Statutory Index) to refer violations of 18 U.S.C. Sec.  555 to Sec.  
2X7.1.
    Third, the amendment addresses a statutory redesignation made by 
section 202 of the Adam Walsh Child Protection and Safety Act of 2006, 
Public Law 109-248, by changing statutory references in Sec.  3C1.4 
(False Registration of Domain Name) from ``18 U.S.C. Sec.  3559(f)(1)'' 
to ``18 U.S.C. Sec.  3559(g)(1).''
    Fourth, the amendment addresses statutory changes to 18 U.S.C. 
Sec.  1512 (Tampering with a witness, victim, or an informant) made by 
the 21st Century Department of Justice Appropriations Act, Public Law 
107-273, by deleting in Appendix A the references to Sec. Sec.  2A1.2 
(Second Degree Murder) and 2A2.2 (Aggravated Assault) for violations of 
18 U.S.C. Sec.  1512(b), and adding those guidelines as references for 
violations of 18 U.S.C. Sec.  1512(a). The amendment also adds a 
reference to Sec.  2J1.2 (Obstruction of Justice) for a violation of 18 
U.S.C. Sec.  1512(a) to reflect the broad range of obstructive conduct, 
including the use of physical force against a witness, covered by that 
subsection.
    Fifth, the amendment changes the reference in Appendix A for 
offenses under 18 U.S.C. Sec.  1091 (Genocide) from Sec. 2H1.3 (Use of 
Force or Threat of Force to Deny Benefits or Rights in Furtherance of 
Discrimination; Damage to Religious Real Property), which no longer 
exists as a result of a guideline consolidation (see USSC, Guidelines 
Manual, Appendix C, Amendment 521), to Sec.  2H1.1 (Offenses Involving 
Individual Rights).

[FR Doc. E8-10370 Filed 5-8-08; 8:45 am]
BILLING CODE 2211-01-P