[Federal Register Volume 74, Number 88 (Friday, May 8, 2009)]
[Notices]
[Pages 21750-21761]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-10737]



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Part II





United States Sentencing Commission





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Sentencing Guidelines for United States Courts; Notice

  Federal Register / Vol. 74, No. 88 / Friday, May 8, 2009 / 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, 2009.

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

DATES: The Commission has specified an effective date of November 1, 
2009, for the amendments set forth in this notice.

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

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is 
an independent agency in the judicial branch of the United States 
Government. The Commission promulgates sentencing guidelines and policy 
statements for federal sentencing courts pursuant to 28 U.S.C. 994(a). 
The Commission also periodically reviews and revises previously 
promulgated guidelines pursuant to 28 U.S.C. 994(o) and generally 
submits guideline amendments to Congress pursuant to 28 U.S.C. 994(p) 
not later than the first day of May each year. Absent action of 
Congress to the contrary, submitted amendments become effective by 
operation of law on the date specified by the Commission (generally 
November 1 of the year in which the amendments are submitted to 
Congress).
    Notice of proposed amendments was published in the Federal Register 
on January 27, 2009 (see 74 FR 4802). The Commission held a public 
hearing on the proposed amendments in Washington, DC, on March 17-18, 
2009. On May 1, 2009, the Commission submitted these amendments to 
Congress and specified an effective date of November 1, 2009.

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

Ricardo H. Hinojosa,
Acting Chair.
    1. Amendment: Section 2B1.1(b) is amended by redesignating 
subdivisions (15) and (16) as subdivisions (16) and (17); and by 
inserting after subdivision (14) the following:

    ``(15) If (A) the defendant was convicted of an offense under 18 
U.S.C. 1030, and the offense involved an intent to obtain personal 
information, or (B) the offense involved the unauthorized public 
dissemination of personal information, increase by 2 levels.''.

    Section 2B1.1(b) is amended in subdivision (16), as redesignated by 
this amendment, by striking ``(I)'' after ``involved''; by striking ``; 
or (II) an intent to obtain personal information'' after ``security''; 
and by striking ``(i)'' after ``(5)(A)''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 1 by inserting after the paragraph that begins `` 
`Foreign instrumentality' '' the following:
    `` `Means of identification' has the meaning given that term in 
18 U.S.C. 1028(d)(7), except that such means of identification shall 
be of an actual (i.e., not fictitious) individual, other than the 
defendant or a person for whose conduct the defendant is accountable 
under Sec.  1B1.3 (Relevant Conduct).'';

and by inserting after the paragraph that begins `` `National cemetery' 
'' the following:

    `` `Personal information' means sensitive or private information 
involving an identifiable individual (including such information in 
the possession of a third party), including (i) medical records; 
(ii) wills; (iii) diaries; (iv) private correspondence, including e-
mail; (v) financial records; (vi) photographs of a sensitive or 
private nature; or (vii) similar information.''.

    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 3(C) in subdivision (i) by inserting ``, copied,'' 
after ``taken''; by redesignating subdivisions (ii) through (v) as 
subdivisions (iii) through (vi); and by inserting after subdivision (i) 
the following:

    ``(ii) In the case of proprietary information (e.g., trade 
secrets), the cost of developing that information or the reduction 
in the value of that information that resulted from the offense.''.

    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 4 by adding at the end the following:

    ``(E) Cases Involving Means of Identification.--For purposes of 
subsection (b)(2), in a case involving means of identification 
`victim' means (i) any victim as defined in Application Note 1; or 
(ii) any individual whose means of identification was used 
unlawfully or without authority.''.

    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 9(A) by striking the paragraph that begins `` `Means of 
identification' ''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 13 by striking ``(15)'' and inserting ``(16)'' each 
place it appears; by striking the paragraph that begins `` `Personal 
information' ''; and by inserting ``(A)'' before ``(iii)'' each place 
it appears.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 14 by striking ``(b)(16)'' and inserting ``(b)(17)'' 
each place it appears.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 19(B) by striking ``(15)'' and inserting ``(16)(A)''.
    The Commentary to Sec.  2B1.1 captioned ``Background'' is amended 
by inserting after the paragraph that begins ``Subsection 
(b)(14)(B)(i)'' the following:

    ``Subsection (b)(15) implements the directive in section 209 of 
Public Law 110-326.'';

and in the paragraph that begins ``Subsection (b)(15)'' by striking 
``(15)'' and inserting ``(16)'' each place it appears.
    The Commentary to Sec.  2H3.1 captioned ``Application Notes'' is 
amended in Note 4 by striking ``Definitions.--For purposes of 
subsection (b)(2)(B):'' and inserting ``Definitions.--For purposes of 
this guideline:''; and by inserting after the paragraph that begins `` 
`Interactive computer service' '' the following:

    `` `Means of identification' has the meaning given that term in 
18 U.S.C. Sec.  1028(d)(7), except that such means of identification 
shall be of an actual (i.e., not fictitious) individual, other than 
the defendant or a person for whose conduct the defendant is 
accountable under Sec.  1B1.3 (Relevant Conduct).
    `Personal information' means sensitive or private information 
involving an identifiable individual (including such information in 
the possession of a third party), including (i) medical records; 
(ii) wills; (iii) diaries; (iv) private correspondence, including e-
mail; (v) financial records; (vi) photographs of a sensitive or 
private nature; or (vii) similar information.''.

    The Commentary to Sec.  2H3.1 captioned ``Application Notes'' is 
amended in Note 5(i) by inserting ``personal information, means of 
identification,'' after ``offense involved''; and by inserting a comma 
before ``or tax''.
    The Commentary to Sec.  3B1.3 captioned ``Application Notes'' is 
amended in Note 2(B) by inserting ``, transfer, or issue'' after ``in 
order to obtain''.
    Reason for Amendment: This multi-part amendment responds to the 
directive in section 209 of the Identity

[[Page 21751]]

Theft Enforcement and Restitution Act of 2008, Title II of Public Law 
110-326 (the ``Act''), and addresses other related issues arising from 
case law. Section 209(a) of the Act directed the Commission to--review 
its guidelines and policy statements applicable to persons convicted of 
offenses under sections 1028, 1028A, 1030, 2511, and 2701 of title 18, 
United States Code, and any other relevant provisions of law, in order 
to reflect the intent of Congress that such penalties be increased in 
comparison to those currently provided by such guidelines and policy 
statements.
    The Act further required the Commission, in determining the 
appropriate sentence for the above referenced offenses, to consider the 
extent to which the guidelines and policy statements adequately account 
for 13 factors listed in section 209(b) of the Act.
    In response to the congressional directive, the amendment increases 
penalties provided by the applicable guidelines and policy statements 
by adding a new enhancement and a new upward departure provision. In 
addition, the amendment expands both the definition of ``victim'' and 
the factors to be considered in the calculation of loss; each of these 
expansions may, in an appropriate case, increase penalties in 
comparison to those provided prior to the amendment.
    First, the amendment adds a new two-level enhancement in Sec.  
2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses 
Involving Stolen Property; Property Damage or Destruction; Fraud and 
Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments 
Other than Counterfeit Bearer Obligations of the United States). The 
new enhancement, which addresses offenses involving personal 
information, is at subsection (b)(15). An existing enhancement, which 
addresses offenses under 18 U.S.C. 1030 (i.e., computer crimes), was at 
subsection (b)(15) but has been redesignated as subsection (b)(16).
    The new enhancement for offenses involving personal information 
applies if (A) the defendant was convicted of an offense under 18 
U.S.C. 1030 and the offense involved an intent to obtain personal 
information, or (B) the offense involved the unauthorized public 
dissemination of personal information. The ``(A)'' prong of the new 
personal information enhancement had been a prong of the existing 
computer crime enhancement, but the tiered structure of that 
enhancement was such that if a computer crime involved both an intent 
to obtain personal information and another harm (such as an intrusion 
into a government computer, an intent to cause damage, or a disruption 
of a critical infrastructure), only the greatest applicable increase 
would apply. The amendment responds to concerns that a case involving 
those other harms is different in kind from a case involving an intent 
to obtain personal information. Moving the intent to obtain personal 
information prong out of the computer crime enhancement and into the 
new enhancement ensures that a defendant convicted under section 1030 
receives an incremental increase in punishment if the offense involved 
both an intent to obtain personal information and another harm 
addressed by the computer crime enhancement. The ``(B)'' prong of the 
new personal information enhancement ensures that any defendant, 
regardless of the statute of conviction, receives an additional 
incremental increase in punishment if the offense involved the 
unauthorized public dissemination of personal information. This prong 
accounts for the greater harm to privacy caused by such an offense.
    Second, the amendment amends the Commentary to Sec.  2B1.1 to 
provide that, for purposes of the victims table in subsection (b)(2), 
an individual whose means of identification was used unlawfully or 
without authority is considered a ``victim.'' The Commentary to Sec.  
2B1.1 in Application Note 1 defines ``victim'' in pertinent part to 
mean ``any person who sustained any part of the actual loss determined 
under subsection (b)(1)''. An identity theft case may involve an 
individual whose means of identification was taken and used but who was 
fully reimbursed by a third party (e.g., a bank or credit card 
company). Some courts have held that such an individual is not counted 
as a ``victim'' for purposes of the victims table at Sec.  2B1.1(b)(2). 
See United States v. Kennedy, 554 F.3d 415 (3d Cir. 2009) (discussing 
various cases addressing this issue, including United States v. 
Armstead, 552 F.3d 769 (9th Cir. 2008); United States v. Abiodun, 536 
F.3d 162 (2d Cir. 2008); United States v. Connor, 537 F.3d 480 (5th 
Cir. 2008); United States v. Icaza, 492 F.3d 967 (8th Cir. 2007); 
United States v. Lee, 427 F.3d 881 (11th Cir. 2005); and United States 
v. Yagar, 404 F.3d 967 (6th Cir. 2005)). The Commission determined that 
such an individual should be considered a ``victim'' for purposes of 
subsection (b)(2) because such an individual, even if fully reimbursed, 
must often spend significant time resolving credit problems and related 
issues, and such lost time may not be adequately accounted for in the 
loss calculations under the guidelines. The Commission received 
testimony that the incidence of data breach cases, in which large 
numbers of means of identification are compromised, is increasing. This 
new category of ``victim'' for purposes of subsection (b)(2) is 
appropriately limited, however, to cover only those individuals whose 
means of identification are actually used.
    Third, the amendment makes two changes to Application Note 3(C) 
regarding the calculation of loss. The first change specifies that the 
estimate of loss may be based upon the fair market value of property 
that is copied. This change responds to concerns that the calculation 
of loss does not adequately account for a case in which an owner of 
proprietary information retains possession of such information, but the 
proprietary information is unlawfully copied. The amendment recognizes, 
for example, that a computer crime that does not deprive the owner of 
the information in the computer nonetheless may cause loss inasmuch as 
it reduces the value of the information. The amendment makes clear that 
in such a case the court may use the fair market value of the copied 
property to estimate loss. The second change adds a new provision to 
Application Note 3(C) specifying that, in a case involving proprietary 
information (e.g., trade secrets), the court may estimate loss using 
the cost of developing that information or the reduction in the value 
of that information that resulted from the offense. The new provision 
responds to concerns that the guidelines did not adequately explain how 
to estimate loss in a case involving proprietary information such as 
trade secrets.
    Fourth, the amendment moves the definitions of ``means of 
identification'' and ``personal information'' to Application Note 1, 
and clarifies that for information to be considered ``personal 
information,'' it must involve information of an identifiable 
individual.
    Fifth, the amendment amends Sec.  2H3.1 (Interception of 
Communications; Eavesdropping; Disclosure of Certain Private or 
Protected Information) to provide that an upward departure may be 
warranted in a case in which the offense involved personal information 
or means of identification of a substantial number of individuals. As a 
conforming change, in Application Note 4 the amendment adds definitions 
of ``means of identification'' and ``personal information'' that are 
identical to the definitions of those terms in Sec.  2B1.1. The 
departure provision responds to concerns that the guideline may not

[[Page 21752]]

adequately account for the rare wiretapping offense that involves a 
substantial number of victims.
    Sixth, the amendment clarifies Application Note 2(B) of Sec.  3B1.3 
(Abuse of Position of Trust or Use of Special Skill). The first 
sentence of Application Note 2(B) specifies that an adjustment under 
Sec.  3B1.3 shall apply to a defendant who exceeds or abuses his or her 
authority to ``obtain'' or ``use'' a means of identification. The 
second sentence then provides, as an example of such a defendant, an 
employee of a state motor vehicle department who exceeds or abuses his 
or her authority by ``issuing'' a means of identification. To make the 
two sentences consistent, the amendment clarifies the first sentence so 
that it expressly applies not only to obtaining or using a means of 
identification, but also to issuing or transferring a means of 
identification.
    Finally, the amendment makes several technical changes. In 
particular, it corrects several places in the Guidelines Manual that 
erroneously refer to subsection ``(b)(15)(iii)'' of Sec.  2B1.1; the 
reference should be to subsection (b)(15)(A)(iii) (redesignated by the 
amendment as (b)(16)(A)(iii)). Also, it conforms a statutory reference 
in Sec.  2B1.1(b)(15)(A)(ii) (redesignated by the amendment as 
(b)(16)(A)(ii)), which refers to 18 U.S.C. 1030(a)(5)(A)(i); the Act 
redesignated this statute as 18 U.S.C. 1030(a)(5)(A).
    The Commission determined that certain factors listed in the 
directive are adequately accounted for by existing provisions in the 
Guidelines Manual. See, e.g., Sec. Sec.  2B1.1(b)(1), (b)(9)(C), 
(b)(13), (b)(16) (as redesignated by the amendment); 2B2.3(b)(1), 
(b)(3); 2B3.2(b)(3)(B); 2H3.1(b)(1)(B); and 3B1.4 (Using a Minor To 
Commit a Crime)).
    2. Amendment: Section 2D1.1(a) is amended by redesignating 
subdivision (3) as subdivision (5); and by inserting after subdivision 
(2) the following:

    ``(3) 30, if the defendant is convicted under 21 U.S.C. 
841(b)(1)(E) or 21 U.S.C. 960(b)(5), and the offense of conviction 
establishes that death or serious bodily injury resulted from the 
use of the substance and that the defendant committed the offense 
after one or more prior convictions for a similar offense; or
    (4) 26, if the defendant is convicted under 21 U.S.C. 
841(b)(1)(E) or 21 U.S.C. 960(b)(5), and the offense of conviction 
establishes that death or serious bodily injury resulted from the 
use of the substance; or''.

    Section 2D1.1(c)(5) is amended by inserting ``700,000 or more units 
of Schedule III Hydrocodone;'' after the line referenced to ``Schedule 
I or II Depressants''.
    Section 2D1.1(c)(6) is amended by inserting ``At least 400,000 but 
less than 700,000 units of Schedule III Hydrocodone;'' after the line 
referenced to ``Schedule I or II Depressants''.
    Section 2D1.1(c)(7) is amended by inserting ``At least 100,000 but 
less than 400,000 units of Schedule III Hydrocodone;'' after the line 
referenced to ``Schedule I or II Depressants''.
    Section 2D1.1(c)(8) is amended by inserting ``At least 80,000 but 
less than 100,000 units of Schedule III Hydrocodone;'' after the line 
referenced to ``Schedule I or II Depressants''.
    Section 2D1.1(c)(9) is amended by inserting ``At least 60,000 but 
less than 80,000 units of Schedule III Hydrocodone;'' after the line 
referenced to ``Schedule I or II Depressants''.
    Section 2D1.1(c)(10) is amended by inserting ``At least 40,000 but 
less than 60,000 units of Schedule III Hydrocodone;'' after the line 
referenced to ``Schedule I or II Depressants''; and by inserting ``or 
Hydrocodone'' after ``(except Ketamine''.
    Section 2D1.1(c)(11) is amended by inserting ``At least 20,000 but 
less than 40,000 units of Schedule III Hydrocodone;'' after the line 
referenced to ``Schedule I or II Depressants''; and by inserting ``or 
Hydrocodone'' after ``(except Ketamine''.
    Section 2D1.1(c)(12) is amended by inserting ``At least 10,000 but 
less than 20,000 units of Schedule III Hydrocodone;'' after the line 
referenced to ``Schedule I or II Depressants''; and by inserting ``or 
Hydrocodone'' after ``(except Ketamine''.
    Section 2D1.1(c)(13) is amended by inserting ``At least 5,000 but 
less than 10,000 units of Schedule III Hydrocodone;'' after the line 
referenced to ``Schedule I or II Depressants''; and by inserting ``or 
Hydrocodone'' after ``(except Ketamine''.
    Section 2D1.1(c)(14) is amended by inserting ``At least 2,500 but 
less than 5,000 units of Schedule III Hydrocodone;'' after the line 
referenced to ``Schedule I or II Depressants''; and by inserting ``or 
Hydrocodone'' after ``(except Ketamine''.
    Section 2D1.1(c)(15) is amended by inserting ``At least 1,000 but 
less than 2,500 units of Schedule III Hydrocodone;'' after the line 
referenced to ``Schedule I or II Depressants''; and by inserting ``or 
Hydrocodone'' after ``(except Ketamine''.
    Section 2D1.1(c)(16) is amended by inserting ``At least 250 but 
less than 1,000 units of Schedule III Hydrocodone;'' after the line 
referenced to ``Schedule I or II Depressants''; and by inserting ``or 
Hydrocodone'' after ``(except Ketamine''.
    Section 2D1.1(c)(17) is amended by inserting ``Less than 250 units 
of Schedule III Hydrocodone;'' after the line referenced to ``Schedule 
I or II Depressants''; and by inserting ``or Hydrocodone'' after 
``(except Ketamine''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 10(E) in the subdivision captioned ``Schedule III 
Substances (except ketamine)'' by inserting in the heading ``and 
hydrocodone'' after ``(except ketamine''; and in the sentence that 
begins ``***Provided'' by inserting ``(except ketamine and 
hydrocodone)'' after ``Schedule III substances''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 10(E) by inserting after the subdivision captioned 
``Schedule III Substances (except ketamine)'' the following 
subdivision:

    ``Schedule III Hydrocodone****

1 unit of Schedule III hydrocodone = 1 gm of marihuana
    ****Provided, that the combined equivalent weight of all 
Schedule III substances (except ketamine), Schedule IV substances 
(except flunitrazepam), and Schedule V substances shall not exceed 
999.99 kilograms of marihuana.''.

    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 10(E) in the subdivision captioned ``Schedule IV 
Substances (except flunitrazepam)'' by inserting an additional asterisk 
after ``****'' each place it appears.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 10(E) in the subdivision captioned ``Schedule V 
Substances'' by inserting an additional asterisk after ``*****'' each 
place it appears.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 10(E) in the subdivision captioned ``List I Chemicals 
(relating to the manufacture of amphetamine or methamphetamine)'' by 
inserting an additional asterisk after ``******'' each place it 
appears.
    Section 2D3.1 is amended in the heading by striking ``Schedule I'' 
and inserting ``Scheduled''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 21 U.S.C. 841(g) the following:

``21 U.S.C. 841(h) 2D1.1''.

    Reason for Amendment: This amendment responds to the Ryan Haight 
Online Pharmacy Consumer Protection Act of 2008, Public Law 110-425 
(the ``Act'').
    The Act amended the Controlled Substances Act (21 U.S.C. 801 et 
seq.) to

[[Page 21753]]

create two new offenses involving controlled substances, increased the 
statutory maximum terms of imprisonment for all Schedule III and IV 
controlled substance offenses and for second and subsequent Schedule V 
controlled substance offenses, and added a sentencing enhancement for 
Schedule III controlled substance offenses in a case in which ``death 
or serious bodily injury results from the use of such substance''. The 
Act also included a directive to the Commission that states:
    The United States Sentencing Commission, in determining whether to 
amend, or establish new, guidelines or policy statements, to conform 
the Federal sentencing guidelines and policy statements to this Act and 
the amendments made by this Act, should not construe any change in the 
maximum penalty for a violation involving a controlled substance in a 
particular schedule as being the sole reason to amend, or establish a 
new, guideline or policy statement.
    First, the amendment addresses the sentencing enhancement added by 
the Act, which applies when the offense involved a Schedule III 
controlled substance and death or serious bodily injury resulted from 
the use of such substance. The statutory enhancement provides a maximum 
term of imprisonment of 15 years, or 30 years if the violation is 
committed after a prior conviction for a felony drug offense. See 21 
U.S.C. 841(b)(1)(E), 960(b)(5). The amendment addresses the statutory 
enhancement by amending Sec.  2D1.1 (Unlawful Manufacturing, Importing, 
Exporting, or Trafficking (Including Possession with Intent to Commit 
These Offenses); Attempt or Conspiracy) to provide two new alternative 
base offense levels at subsections (a)(3) and (a)(4) for offenses 
involving Schedule III controlled substances in which death or injury 
results that are comparable to the alternative base offense levels at 
subsections (a)(1) and (a)(2) for offenses involving Schedule I and II 
controlled substances in which death or injury results. To reflect the 
harms involved in these offenses and the criminal histories of repeat 
drug offenders, the alternative base offense levels are set at level 30 
if the defendant committed the offense after one or more prior 
convictions for a similar offense and level 26 otherwise.
    Second, the amendment modifies the Drug Quantity Table in Sec.  
2D1.1 to increase the maximum base offense level for offenses involving 
Schedule III hydrocodone from level 20 to level 30, without modifying 
any other offense level. The amendment extends the Drug Quantity Table 
for Schedule III hydrocodone offenses to level 30 using the existing 
marihuana equivalency (i.e., 1 pill of Schedule III hydrocodone = 1 
gram of marihuana). The Commission determined that a maximum base 
offense level of 30 is appropriate for Schedule III hydrocodone 
offenses because of data and testimony indicating a relatively high 
prevalence of misuse (when compared to other, non-marihuana drugs of 
abuse), an increasing number of emergency room visits involving this 
drug, and the very large volume of hydrocodone pills illicitly 
distributed, either over the Internet or in specialized pain clinics.
    Finally, the amendment addresses the two new offenses created by 
the Act. The first new offense, at 21 U.S.C. 841(h), prohibits the 
delivery, distribution, or dispensing of controlled substances over the 
Internet without a valid prescription. The applicable statutory maximum 
term of imprisonment depends on the controlled substance involved. The 
amendment amends Appendix A (Statutory Index) to reference 21 U.S.C. 
841(h) to Sec.  2D1.1 because distribution of a controlled substance is 
an element of the offense. That guideline also is appropriate because 
it includes an enhancement at subsection (b)(6) that provides a two-
level increase in a case in which ``a person distributes a controlled 
substance through mass-marketing by means of an interactive computer 
service'' (e.g., sale of a controlled substance by means of the 
Internet).
    The second new offense, at 21 U.S.C. 843(c)(2)(A), prohibits the 
use of the Internet to advertise for sale a controlled substance and 
has a statutory maximum term of imprisonment of four years. Offenses 
under 21 U.S.C. 843(c) already are referenced in Appendix A (Statutory 
Index) to Sec.  2D3.1 (Regulatory Offenses Involving Registration 
Numbers; Unlawful Advertising Relating to Schedule I Substances; 
Attempt or Conspiracy). The amendment modifies the title of that 
guideline to indicate that it covers any scheduled controlled 
substance.
    3. Amendment: Section 2D1.1(b)(2) is amended by striking ``or'' 
before ``(B)''; and by inserting ``a submersible vessel or semi-
submersible vessel as described in 18 U.S.C. 2285 was used, or ``(C)'' 
after ``(B)''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 8 in the paragraph that begins ``Note, however'' by 
striking ``(B)'' and inserting ``(C)''.
    Chapter Two, Part X, Subpart 7 is amended in the heading by adding 
at the end ``AND SUBMERSIBLE AND SEMI-SUBMERSIBLE VESSELS''.
    Chapter Two, Part X, Subpart 7 is amended by adding at the end the 
following guideline and accompanying commentary:

    ``Sec.  2X7.2. Submersible and Semi-Submersible Vessels
    (a) Base Offense Level: 26
    (b) Specific Offense Characteristic
    (1) (Apply the greatest) If the offense involved--
    (A) a failure to heave to when directed by law enforcement 
officers, increase by 2 levels;
    (B) an attempt to sink the vessel, increase by 4 levels; or
    (C) the sinking of the vessel, increase by 8 levels.
    Commentary
    Statutory Provision: 18 U.S.C. 2285.
    Application Note:
    1. Upward Departure Provisions.--An upward departure may be 
warranted in any of the following cases:
    (A) The defendant engaged in a pattern of activity involving use 
of a submersible vessel or semi-submersible vessel described in 18 
U.S.C. 2285 to facilitate other felonies.
    (B) The offense involved use of the vessel as part of an ongoing 
criminal organization or enterprise.
    Background: This guideline implements the directive to the 
Commission in section 103 of Public Law 110-407.''.

    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. 2284 the following:

``18 U.S.C. 2285 2X7.2''.

    Reason for Amendment: This amendment responds to the Drug 
Trafficking Vessel Interdiction Act of 2008, Public Law 110-407 (the 
``Act''). The Act created a new offense at 18 U.S.C. 2285 making it 
unlawful to operate, attempt or conspire to operate, or embark in an 
unflagged submersible or semi-submersible vessel in international 
waters with the intent to evade detection. Section 103 of the Act 
directed the Commission to amend the guidelines, or promulgate new 
guidelines, to provide adequate penalties for persons convicted of 
offenses under 18 U.S.C. 2285 and included a list of circumstances for 
the Commission to consider.
    First, the amendment amends Sec.  2D1.1 (Unlawful Manufacturing, 
Importing, Exporting, or Trafficking (Including Possession with Intent 
to Commit These Offenses); Attempt or Conspiracy) by expanding the 
scope of the specific offense characteristic at subsection (b)(2) to 
apply if a submersible or semi-submersible vessel was used in a drug 
importation offense. The Commission determined that a drug importation 
offense involving the use of a

[[Page 21754]]

submersible or semi-submersible vessel poses similar risks and harms as 
a drug importation offense involving an unscheduled aircraft (which 
subsection (b)(2) already covers). The amendment also makes a 
conforming change to a reference in Application Note 8.
    Second, the amendment creates a new guideline at Sec.  2X7.2 
(Submersible and Semi-Submersible Vessels) for the new offense at 18 
U.S.C. 2285. The new guideline provides a base offense level of 26 and 
includes a tiered specific offense characteristic and upward departure 
provisions to address certain aggravating circumstances listed in the 
directive. Public testimony indicates that submersible and semi-
submersible vessels to date have been used for the purpose of 
transporting drugs. Such conduct receives a minimum offense level of 26 
under Sec.  2D1.1(b)(2), discussed above, regardless of the type or 
quantity of drug involved in the offense. The Commission determined 
that a base offense level of 26 in Sec.  2X7.2 for an offense under 
section 2285 would be appropriate to promote proportionality.
    The specific offense characteristic in Sec.  2X7.2 provides a two-
level enhancement for failing to heave to, a four-level enhancement for 
attempting to sink the vessel, and an eight-level enhancement for 
sinking the vessel; the greatest applicable enhancement applies. 
Offenses involving such conduct are more serious because they create 
greater risk of harm to the crew of the illegal vessel and the 
interdicting law enforcement personnel, particularly in a case in which 
the illegal vessel is sunk and its crew must be rescued. In addition, 
sinking the vessel destroys evidence of illegal activity. The upward 
departure provisions provide that an upward departure may be warranted 
if the defendant engaged in a pattern of activity involving the use of 
a submersible or semi-submersible vessel, or if the offense involved 
the use of the vessel as a part of an ongoing criminal organization or 
criminal enterprise.
    Third, the amendment amends Appendix A (Statutory Index) to 
reference 18 U.S.C. 2285 to Sec.  2X7.2.
    4. Amendment: Section 2A6.1(b) is amended by redesignating 
subdivision (5) as subdivision (6); by inserting after subdivision (4) 
the following:

    ``(5) If the defendant (A) is convicted under 18 U.S.C. 115, (B) 
made a public threatening communication, and (C) knew or should have 
known that the public threatening communication created a 
substantial risk of inciting others to violate 18 U.S.C. 115, 
increase by 2 levels.'';

and in subdivision (6), as redesignated by this amendment, by 
striking ``and (4)'' and inserting ``(4), and (5)''.

    The Commentary to Sec.  2A6.1 captioned ``Background'' is amended 
by adding at the end the following:

    ``Subsection (b)(5) implements, in a broader form, the directive 
to the Commission in section 209 of the Court Security Improvement 
Act of 2007, Public Law 110-177.''.

    Appendix A (Statutory Index) is amended in the line referenced to 
18 U.S.C. 1513 by inserting ``2A1.1, 2A1.2, 2A1.3, 2A2.1, 2A2.2, 2A2.3, 
2B1.1,'' before ``2J1.2''.
    Reason for Amendment: This amendment responds to the Court Security 
Improvement Act of 2007, Public Law 110-177 (the ``Act''), and other 
related issues.
    First, the amendment responds to the directive in section 209 of 
the Act, which required the Commission to review the guidelines 
applicable to threats punishable under 18 U.S.C. 115 (Influencing, 
impeding, or retaliating against a Federal official by threatening or 
injuring a family member) that occur over the Internet, and determine 
``whether and by how much that circumstance should aggravate the 
punishment pursuant to section 994 of title 28, United States Code.'' 
The directive further required the Commission to consider the number of 
such threats made, the intended number of recipients of such threats, 
and whether the initial senders of such threats were acting in an 
individual capacity or as part of a larger group.
    The amendment implements the directive by amending Sec.  2A6.1 
(Threatening or Harassing Communications; Hoaxes; False Liens) to 
provide a new two-level enhancement for a case in which the defendant 
is convicted under 18 U.S.C. 115, made a public threatening 
communication, and knew or should have known that the public 
threatening communication created a substantial risk of inciting others 
to violate 18 U.S.C. 115. The Commission determined that the policy 
concerns underlying the directive regarding threats occurring over the 
Internet apply equally to threats made public by other means (e.g., 
radio, television broadcast) and that the response to the directive 
therefore should be technology neutral. The threat guideline, Sec.  
2A6.1, adequately accounts for offenses involving multiple threats and 
multiple victims through the existing specific offense characteristic 
at subsection (b)(2) and the upward departure provision in Application 
Note 4.
    Second, the amendment amends Appendix A (Statutory Index) to add 
references for 18 U.S.C. 1513 (Retaliating against a witness, victim, 
or an informant) to Sec. Sec.  2A1.1 (First Degree Murder), 2A1.2 
(Second Degree Murder), 2A1.3 (Voluntary Manslaughter), 2A2.1 (Assault 
with Intent to Commit Murder; Attempted Murder), 2A2.2 (Aggravated 
Assault), 2A2.3 (Minor Assault), and 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), in addition to Sec.  2J1.2 
(Obstruction of Justice). The additional references more adequately 
reflect the range of conduct covered by 18 U.S.C. 1513, including 
killing or attempting to kill a witness, causing bodily injury to a 
witness, and damaging the tangible property of a witness. In addition, 
18 U.S.C. 1512 (Tampering with a witness, victim, or an informant), 
which covers a similar range of conduct, including killing or 
attempting to kill a witness and using physical force against a 
witness, is referenced to the same Chapter Two, Part A guidelines.
    5. Amendment: Section 2H4.1(a) is amended by striking ``(Apply the 
greater)'' after ``Offense Level''; and by striking subdivision (2) and 
inserting the following:

    ``(2) 18, if (A) the defendant was convicted of an offense under 
18 U.S.C. 1592, or (B) the defendant was convicted of an offense 
under 18 U.S.C. 1593A based on an act in violation of 18 U.S.C. 
1592.''.
    The Commentary to Sec.  2H4.1 captioned ``Statutory Provisions'' 
is amended by inserting ``, 1593A'' after ``1592''.

    The Commentary to Sec.  2H4.1 captioned ``Application Notes'' is 
amended by adding at the end the following:

    ``4. In a case in which the defendant was convicted under 18 
U.S.C. 1589(b) or 1593A, a downward departure may be warranted if 
the defendant benefitted from participating in a venture described 
in those sections without knowing that (i.e., in reckless disregard 
of the fact that) the venture had engaged in the criminal activity 
described in those sections.''.

    Section 2L1.1(b) is amended by striking subdivision (8) and 
inserting the following:

    ``(8) (Apply the greater):
    (A) If an alien was involuntarily detained through coercion or 
threat, or in connection with a demand for payment, (i) after the 
alien was smuggled into the United States; or (ii) while the alien 
was transported or harbored in the United States, increase by 2 
levels. If

[[Page 21755]]

the resulting offense level is less than level 18, increase to level 
18.
    (B) If (i) the defendant was convicted of alien harboring, (ii) 
the alien harboring was for the purpose of prostitution, and (iii) 
the defendant receives an adjustment under Sec.  3B1.1 (Aggravating 
Role), increase by 2 levels, but if the alien engaging in the 
prostitution had not attained the age of 18 years, increase by 6 
levels.''.

    The Commentary to Sec.  2L1.1 captioned ``Application Notes'' is 
amended in Note 6 by inserting ``(A)'' after ``(b)(8)''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. 1350 the following:

``18 U.S.C. 1351 2B1.1'';

and by inserting after the line referenced to 18 U.S.C. 1592 the 
following:

``18 U.S.C. 1593A2H4.1''.

    Reason for Amendment: This amendment responds to the William 
Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, 
Public Law 110-457 (the ``Act''), which included a directive to the 
Commission and created two new offenses.
    First, the amendment responds to the directive in section 222(g) of 
the Act. It directed the Commission to--
    review and, if appropriate, amend the sentencing guidelines and 
policy statements applicable to persons convicted of alien harboring to 
ensure conformity with the sentencing guidelines applicable to persons 
convicted of promoting a commercial sex act if--
    (1) the harboring was committed in furtherance of prostitution; and
    (2) the defendant to be sentenced is an organizer, leader, manager, 
or supervisor of the criminal activity.
    The amendment amends Sec.  2L1.1 (Smuggling, Transporting, or 
Harboring an Unlawful Alien) to provide an alternative prong to the 
enhancement at subsection (b)(8), which covers cases in which an alien 
was involuntarily detained through coercion or threat, or in connection 
with a demand for payment. The new alternative prong, at subsection 
(b)(8)(B), applies in a case in which the defendant was convicted of 
alien harboring, the alien harboring was for the purpose of 
prostitution, and the defendant receives an adjustment under Sec.  
3B1.1 (Aggravating Role). In such a case, a two-level increase applies, 
but if the alien engaging in the prostitution had not attained the age 
of 18 years, a six-level increase applies. Because this is an 
alternative enhancement, it does not apply if the enhancement for 
coercion at Sec.  2L1.1(b)(8)(A) is greater.
    The amendment also amends Application Note 6 to provide that, while 
an adjustment under Sec.  3A1.3 (Restraint of Victim) does not apply in 
a case that receives an enhancement under Sec.  2L1.1(b)(8)(A), such an 
adjustment may apply in a case that receives an enhancement under Sec.  
2L1.1(b)(8)(B).
    Second, the amendment responds to a new offense created by the Act, 
18 U.S.C. 1351 (Fraud in foreign labor contracting). The new offense 
has a statutory maximum term of imprisonment of five years. Because 
this new offense has fraud as an element, the amendment references this 
new offense in Appendix A (Statutory Index) to 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).
    Third, the amendment responds to another new offense created by the 
Act, 18 U.S.C. 1593A (Benefitting financially from peonage, slavery, 
and trafficking in persons). This new offense applies when a person has 
knowingly benefitted financially from participating in a venture that 
has engaged in a violation of 18 U.S.C. 1581(a), 1592, or 1595(a), 
knowing or in reckless disregard of the fact that the venture has 
engaged in such violation. The amendment amends Appendix A (Statutory 
Index) to reference 18 U.S.C. 1593A to Sec.  2H4.1 (Peonage, 
Involuntary Servitude, and Slave Trade) because that guideline covers 
the relevant underlying statutes, 18 U.S.C. 1581(a) and 1592. The 
amendment also amends Sec.  2H4.1 to provide that a defendant convicted 
of 18 U.S.C. 1593A receives the same base offense level as if the 
defendant were convicted of committing the underlying violation. 
Accordingly, if the defendant was convicted under section 1593A under 
circumstances in which the defendant benefitted from participation in a 
venture that engaged in a violation of 18 U.S.C. 1592, the defendant 
would receive the same base offense level, 18, as if the defendant had 
been convicted of 18 U.S.C. 1592. If the defendant was convicted under 
section 1593A under circumstances in which the defendant benefitted 
from participation in a venture that engaged in a violation of 18 
U.S.C. 1581(a), the defendant would receive the same base offense 
level, 22, as if the defendant had been convicted of 18 U.S.C. 1581(a).
    The amendment also amends the Commentary to Sec.  2H4.1 to provide 
that a downward departure may be warranted in a case in which the 
defendant is convicted under 18 U.S.C. 1589(b) or 1593A if the 
defendant benefitted from participating in a venture described in those 
sections in reckless disregard of the fact that the venture had engaged 
in the criminal activities described in those sections. This downward 
departure provision recognizes that a defendant who commits such an 
offense in reckless disregard of the fact that the venture engaged in 
such criminal activities may be less culpable than a defendant who acts 
with knowledge of that fact.
    Finally, the amendment makes a technical change to Sec.  2H4.1(a) 
by striking the phrase ``(Apply the greater)''.
    6. Amendment: Section 2B5.1(b)(2)(B) is amended by inserting ``(ii) 
genuine United States currency paper from which the ink or other 
distinctive counterfeit deterrent has been completely or partially 
removed;'' after ``paper;''; and by striking ``or (ii)'' and inserting 
``or (iii)''.
    The Commentary to Sec.  2B5.1 captioned ``Application Notes'' is 
amended in Note 1 by inserting after the paragraph that begins 
``Definitions.--'' the following:

    `` `Counterfeit' refers to an instrument that has been falsely 
made, manufactured, or altered. For example, an instrument that has 
been falsely made or manufactured in its entirety is `counterfeit', 
as is a genuine instrument that has been falsely altered (such as a 
genuine $5 bill that has been altered to appear to be a genuine $100 
bill).''.

    The Commentary to Sec.  2B5.1 captioned ``Application Notes'' is 
amended by striking Note 3; and by redesignating Note 4 as Note 3.
    Appendix A (Statutory Index) is amended in the line referenced to 
18 U.S.C. 474A by striking ``2B1.1,''; and in the line referenced to 18 
U.S.C. 476 by striking ``2B1.1,''.
    Reason for Amendment: This amendment amends Sec.  2B5.1 (Offenses 
Involving Counterfeit Bearer Obligations of the United States) to 
clarify guideline application issues regarding the sentencing of 
counterfeiting offenses involving ``bleached notes.'' A bleached note 
is genuine United States currency stripped of its original image 
through the use of solvents or other chemicals and then reprinted to 
appear to be a note of higher denomination. The amendment responds to 
concerns expressed by federal judges and members of Congress regarding 
which guideline should apply to offenses involving bleached notes.
    Courts in different circuits have resolved differently the question 
of whether an offense involving bleached notes should be sentenced 
under Sec.  2B5.1 or Sec.  2B1.1 (Larceny,

[[Page 21756]]

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). Compare United 
States v. Schreckengost, 384 F.3d 922 (7th Cir. 2004) (holding that 
bleached notes should be sentenced under Sec.  2B1.1), and United 
States v. Inclema, 363 F.3d 1177 (11th Cir. 2004) (same), with United 
States v. Dison, 2008 WL 351935 (W.D. La. Feb. 8, 2008) (applying Sec.  
2B5.1 in a case involving bleached notes), and United States v. Vice, 
2008 WL 113970 (W.D. La. Jan. 3, 2008) (same).
    The amendment resolves this issue by providing that an offense 
involving bleached notes is sentenced under Sec.  2B5.1. The amendment 
does so by deleting Application Note 3 and revising the definition of 
``counterfeit'' to more closely parallel relevant counterfeiting 
statutes, including 18 U.S.C. 471 (Obligations or securities of the 
United States) and 472 (Uttering counterfeit obligations or 
securities). It establishes a new definition at Application Note 1 
providing that counterfeit ``refers to an instrument that has been 
falsely made, manufactured, or altered.'' Under the new definition, 
altered instruments are treated as counterfeit and sentenced under 
Sec.  2B5.1. Technological advances in counterfeiting, such as 
bleaching notes, have rendered obsolete the previous distinction in the 
guidelines between an instrument falsely made or manufactured in its 
entirety and a genuine instrument that is altered.
    The amendment also adds a prong to the enhancement at subsection 
(b)(2)(B) to cover a case in which the defendant controlled or 
possessed genuine United States currency paper from which the ink or 
other distinctive counterfeit deterrent has been completely or 
partially removed. Blank or partially blank bleached notes are similar 
to counterfeiting paper in how they are involved in counterfeiting 
offenses. Accordingly, this new prong ensures that an offender who 
controlled or possessed blank or partially blank bleached notes is 
subject to the same two-level enhancement as an offender who controlled 
or possessed ``counterfeiting paper similar to a distinctive paper'', 
as subsection (b)(2)(B)(i) already provides.
    Finally, the amendment amends Appendix A (Statutory Index) by 
striking the reference to Sec.  2B1.1 for two offenses that do not 
involve elements of fraud. Specifically, the amendment deletes the 
reference to Sec.  2B1.1 for offenses under 18 U.S.C. 474A (Deterrents 
to counterfeiting of obligations and securities) and 476 (Taking 
impressions of tools used for obligations or securities).
    7. Amendment: The Commentary to Sec.  2A3.2 captioned ``Application 
Notes'' is amended in Note 3(B) in the paragraph that begins ``Undue 
Influence'' by adding at the end ``The voluntariness of the minor's 
behavior may be compromised without prohibited sexual conduct 
occurring.''; by inserting after the paragraph that begins ``Undue 
Influence'' the following:

    ``However, subsection (b)(2)(B)(ii) does not apply in a case in 
which the only `minor' (as defined in Application Note 1) involved 
in the offense is an undercover law enforcement officer.'';

and in the paragraph that begins ``In a case'' by striking ``, for 
purposes of'' and all that follows through ``sexual conduct'' and 
inserting ``that subsection (b)(2)(B)(ii) applies''.

    The Commentary to Sec.  2A3.2 captioned ``Background'' is amended 
by striking ``two-level'' and inserting ``four-level'' each place it 
appears.
    The Commentary to Sec.  2G1.3 captioned ``Application Notes'' is 
amended in Note 3(B) in the paragraph that begins ``Undue Influence'' 
by adding at the end ``The voluntariness of the minor's behavior may be 
compromised without prohibited sexual conduct occurring.''; by 
inserting after the paragraph that begins ``Undue Influence'' the 
following:

    ``However, subsection (b)(2)(B) does not apply in a case in 
which the only `minor' (as defined in Application Note 1) involved 
in the offense is an undercover law enforcement officer.'';

and in the paragraph that begins ``In a case'' by striking ``, for 
purposes of'' and all that follows through ``sexual conduct'' and 
inserting ``that subsection (b)(2)(B) applies''.

    Reason for Amendment: This amendment addresses a circuit conflict 
regarding application of the undue influence enhancement at subsection 
(b)(2)(B)(ii) of Sec.  2A3.2 (Criminal Sexual Abuse of a Minor Under 
the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such 
Acts) and at subsection (b)(2)(B) of Sec.  2G1.3 (Promoting a 
Commercial Sex Act or Prohibited Sexual Conduct with a Minor; 
Transportation of Minors to Engage in a Commercial Sex Act or 
Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or 
Prohibited Sexual Conduct with a Minor; Sex Trafficking of Children; 
Use of Interstate Facilities to Transport Information about a Minor). 
The undue influence enhancement applies if ``a participant otherwise 
unduly influenced the minor to engage in prohibited sexual conduct.'' 
The Commentary to both guidelines states that in determining whether 
the undue influence enhancement applies, ``the court should closely 
consider the facts of the case to determine whether a participant's 
influence over the minor compromised the voluntariness of the minor's 
behavior.'' The Commentary also provides for a rebuttable presumption 
of undue influence ``[i]n a case in which a participant is at least 10 
years older than the minor.''
    In both guidelines, the term ``minor'' is defined to include ``an 
individual, whether fictitious or not, who a law enforcement officer 
represented to a participant * * * could be provided for the purposes 
of engaging in sexually explicit conduct'' or ``an undercover law 
enforcement officer who represented to a participant that the officer 
had not attained'' the age of majority.
    Three circuits have expressed different views on two issues: first, 
whether the undue influence enhancement can apply in a case involving 
attempted sexual conduct; and second, whether the undue influence 
enhancement can apply in a case in which the only minor involved is a 
law enforcement officer. Compare United States v. Root, 296 F.3d 1222, 
1234 (11th Cir. 2002) (holding that the undue influence enhancement in 
Sec.  2A3.2 can apply in instances of attempted sexual conduct, 
including a case in which the only ``victim'' involved in the case is 
an undercover law enforcement officer), and United States v. Vance, 494 
F.3d 985, 996 (11th Cir. 2007) (holding that the undue influence 
enhancement in Sec.  2G1.3 can apply in a case in which the minor is 
fictitious), with United States v. Mitchell, 353 F.3d 552, 554, 557 
(7th Cir. 2003) (holding that the undue influence enhancement in Sec.  
2A3.2 ``cannot apply in the case of an attempt where the victim is an 
undercover police officer'', and suggesting that it cannot apply in any 
case in which ``the offender and victim have not engaged in illicit 
sexual conduct''), and United States v. Chriswell, 401 F.3d 459, 469 
(6th Cir. 2005) (holding that the undue influence enhancement in Sec.  
2A3.2 ``is not applicable in cases where the victim is an undercover 
agent representing himself to be a child under the age of sixteen'' but 
leaving open the possibility that it can apply in other instances of 
attempted sexual conduct).
    The amendment resolves the first issue by providing that the undue

[[Page 21757]]

influence enhancement can apply in a case involving attempted sexual 
conduct. Specifically, the amendment amends the Commentary in 
Sec. Sec.  2A3.2 and 2G1.3 to provide that ``[t]he voluntariness of the 
minor's behavior may be compromised without prohibited sexual conduct 
occurring.''
    The amendment resolves the second issue by providing in the 
Commentary to Sec. Sec.  2A3.2 and 2G1.3 that the undue influence 
enhancement does not apply in a case in which the only ``minor'' 
involved in the offense is an undercover law enforcement officer. The 
Commission determined that the undue influence enhancement should not 
apply in a case involving only an undercover law enforcement officer 
because, unlike other enhancements in the sex offense guidelines, the 
undue influence enhancement is properly focused on the effect of the 
defendant's actions on the minor's behavior.
    The amendment also makes a stylistic change to the language in the 
Commentary of both Sec. Sec.  2A3.2 and 2G1.3, and makes a technical 
change to the Background of Sec.  2A3.2.
    8. Amendment: Section 2B1.1(b)(6) is amended by striking ``or'' 
after ``damage to,''; and by inserting ``or trafficking in,'' after 
``destruction of,''.
    The Commentary to Sec.  2B1.1 captioned ``Background'' is amended 
in the paragraph that begins ``Subsection (b)(6)'' by inserting ``and 
the directive to the Commission in section 3 of Public Law 110-384'' 
after ``105-101''.
    Section 2G2.1(b)(6) is amended by inserting ``or for the purpose of 
transmitting such material live'' after ``explicit material''.
    The Commentary to Sec.  2G2.1 captioned ``Application Notes'' is 
amended in Note 1 in the paragraph that begins ```Distribution' means'' 
by inserting ``transmission,'' after ``production,''; and by inserting 
after the paragraph that begins ```Interactive computer service''' the 
following:
    `` `Material' includes a visual depiction, as defined in 18 U.S.C. 
2256.''.
    The Commentary to Sec.  2G2.1 captioned ``Application Notes'' is 
amended in Note 4 by inserting ``or for the purpose of transmitting 
such material live'' after ``explicit material'' each place it appears; 
and in subdivision (B) by striking ``purpose'' after ``for such'' and 
inserting ``purposes''.
    Section 2G2.2(a)(1) is amended by striking ``or'' after 
``2252(a)(4),''; and by inserting ``, or Sec.  2252A(a)(7)'' after 
``2252A(a)(5)''.
    Section 2G2.2(b)(6) is amended by inserting ``or for accessing with 
intent to view the material,'' after ``material,''.
    Section 2G2.2(c)(1) is amended by inserting ``or for the purpose of 
transmitting a live visual depiction of such conduct'' after ``such 
conduct''.
    The Commentary to Sec.  2G2.2 captioned ``Application Notes'' is 
amended in Note 1 in the paragraph that begins ```Distribution' means'' 
by inserting ``transmission,'' after ``production,''; by inserting 
after the paragraph that begins `` `Interactive computer service' '' 
the following:

    `` `Material' includes a visual depiction, as defined in 18 
U.S.C. 2256.''; and

in the paragraph that begins `` `Sexual abuse or exploitation' '' by 
inserting ``accessing with intent to view,'' after ``possession,''.

    The Commentary to Sec.  2G2.2 captioned ``Application Notes'' is 
amended in Note 2 by inserting ``access with intent to view,'' after 
``possess,''.
    The Commentary to Sec.  2G2.2 captioned ``Application Notes'' is 
amended in Note 4(B)(ii) by striking ``recording'' and inserting 
``visual depiction'' each place it appears.
    The Commentary to Sec.  2G2.2 captioned ``Application Notes'' is 
amended in Note 5(A) by inserting ``or for the purpose of transmitting 
live any visual depiction of such conduct'' after ``such conduct''.
    The Commentary to Sec.  2G2.2 captioned ``Application Notes'' is 
amended by redesignating Note 6 as Note 7; and by inserting after Note 
5 the following:

    ``6. Cases Involving Adapted or Modified Depictions.--If the 
offense involved material that is an adapted or modified depiction 
of an identifiable minor (e.g., a case in which the defendant is 
convicted under 18 U.S.C. 2252A(a)(7)), the term `material involving 
the sexual exploitation of a minor' includes such material.''.

    Chapter Two, Part H, Subpart 4 is amended in the heading by 
striking ``AND'' after ``SERVITUDE,''; and by adding at the end ``, AND 
CHILD SOLDIERS''.
    Section 2H4.1 is amended in the heading by striking ``and'' after 
``Servitude,''; and by adding at the end ``, and Child Soldiers''.
    The Commentary to Sec.  2H4.1 captioned ``Statutory Provisions'' is 
amended by inserting ``, 2442'' before the period at the end.
    The Commentary to Sec.  2H4.1 captioned ``Application Notes'' is 
amended in Note 1 by adding at the end the following:

    `` `Peonage or involuntary servitude' includes forced labor, 
slavery, and recruitment or use of a child soldier.''.

    Chapter Two, Part N is amended in the heading by inserting 
``CONSUMER PRODUCTS,'' after ``PRODUCTS,''.
    Chapter Two, Part N, Subpart 2 is amended in the heading by 
striking ``AND'' after ``DRUGS,''; and by adding at the end ``, AND 
CONSUMER PRODUCTS''.
    Section 2N2.1 is amended in the heading by striking ``or'' after 
``Cosmetic,''; and by adding at the end ``, or Consumer Product''.
    Section 5B1.3(a) is amended in subdivision (2) by striking ``(B) 
give notice'' and all that follows through ``or area,'' and inserting 
``(B) work in community service, or (C) both, unless the court has 
imposed a fine, or''; and by striking the paragraph that begins ``Note: 
Section 3563(a)(2)''.
    Section 5B1.3(e)(1) is amended by adding at the end ``See Sec.  
5F1.1 (Community Confinement).''.
    Section 5B1.3(e)(6) is amended by adding at the end ``See Sec.  
5F1.8 (Intermittent Confinement).''.
    Section 5C1.1(c)(2) is amended by striking the asterisk after 
``confinement''.
    Section 5C1.1(d)(2) is amended by striking the asterisk after 
``confinement''.
    The Commentary to Sec.  5C1.1 captioned ``Application Notes'' is 
amended in Note 3(C) in the first sentence by striking the asterisk 
after ``confinement''.
    The Commentary to Sec.  5C1.1 captioned ``Application Notes'' is 
amended in Note 4(B) in the first sentence by striking the asterisk 
after ``confinement''.
    The Commentary to Sec.  5C1.1 captioned ``Application Notes'' is 
amended in Note 6 by striking the asterisk after ``confinement''.
    The Commentary to Sec.  5C1.1 captioned ``Application Notes'' is 
amended by striking the paragraph that begins ``*Note:'' and the 
paragraph that begins ``However,''.
    Section 5D1.3(e)(1) is amended by striking the asterisk after 
``Confinement''; and by striking the paragraph that begins ``*Note: 
Section 3583(d)'' and the paragraph that begins ``However,''.
    Section 5D1.3(e) is amended by adding at the end the following:

    ``(6) Intermittent Confinement
    Intermittent confinement (custody for intervals of time) may be 
ordered as a condition of supervised release during the first year 
of supervised release, but only for a violation of a condition of 
supervised release in accordance with 18 U.S.C. 3583(e)(2) and only 
when facilities are available. See Sec.  5F1.8 (Intermittent 
Confinement).''.

    Section 5F1.1 is amended by striking the asterisk after 
``release.''; and by striking the paragraph that begins

[[Page 21758]]

``*Note: Section 3583(d)'' and the paragraph that begins ``However,''.
    Chapter Five, Part F is amended by adding at the end the following 
guideline and accompanying commentary:

    ``Sec.  5F1.8. Intermittent Confinement
    Intermittent confinement may be imposed as a condition of 
probation during the first year of probation. See 18 U.S.C. 
3563(b)(10). It may be imposed as a condition of supervised release 
during the first year of supervised release, but only for a 
violation of a condition of supervised release in accordance with 18 
U.S.C. 3583(e)(2) and only when facilities are available. See 18 
U.S.C. 3583(d).
    Commentary
    Application Note:
    1. `Intermittent confinement' means remaining in the custody of 
the Bureau of Prisons during nights, weekends, or other intervals of 
time, totaling no more than the lesser of one year or the term of 
imprisonment authorized for the offense, during the first year of 
the term of probation or supervised release. See 18 U.S.C. 
3563(b)(10).''.

    Chapter Seven, Part A, Subpart 2(b) is amended in the paragraph 
that begins ``With the exception'' by striking ``With the exception'' 
and all that follows through ``sentence of probation.'' and inserting 
``The conditions of supervised release authorized by statute are the 
same as those for a sentence of probation, except for intermittent 
confinement. (Intermittent confinement is available for a sentence of 
probation, but is available as a condition of supervised release only 
for a violation of a condition of supervised release.)''; and by 
striking the paragraph that begins ``*Note: Section 3583(d)'' and the 
paragraph that begins ``However,''.
    The Commentary to Sec.  7B1.3 captioned ``Application Notes'' is 
amended by striking Note 5 and inserting the following:

    ``5. Intermittent confinement is authorized as a condition of 
probation during the first year of the term of probation. 18 U.S.C. 
3563(b)(10). Intermittent confinement is authorized as a condition 
of supervised release during the first year of supervised release, 
but only for a violation of a condition of supervised release in 
accordance with 18 U.S.C. 3583(e)(2) and only when facilities are 
available. See Sec.  5F1.8 (Intermittent Confinement).''.

    Section 8D1.3(b) is amended by striking ``, (2) notice to victims'' 
and all that follows through ``or area,'' and inserting ``or (2) 
community service, unless the court has imposed a fine, or''; and by 
striking the paragraph that begins ``Note:''.
    Appendix A (Statutory Index) is amended by inserting before the 
line referenced to 2 U.S.C. 437g(d) the following:

``2 U.S.C. 192 2J1.1, 2J1.5
2 U.S.C. 390 2J1.1, 2J1.5'';

by inserting after the line referenced to 7 U.S.C. 87b the following:

``7 U.S.C. 87f(e) 2J1.1, 2J1.5'';

by inserting after the line referenced to 8 U.S.C. 
1375a(d)(3)(C),(d)(5)(B) the following:

``10 U.S.C. 987(f) 2X5.2'';

by inserting after the line referenced to 12 U.S.C. 631 the following:

``12 U.S.C. 1818(j) 2B1.1
12 U.S.C. 1844(f) 2J1.1, 2J1.5
12 U.S.C. 2273 2J1.1, 2J1.5
12 U.S.C. 3108(b)(6) 2J1.1, 2J1.5
12 U.S.C. 4636b 2B1.1
12 U.S.C. 4641 2J1.1, 2J1.5'';

by inserting after the line referenced to 15 U.S.C. 78ff the following:

``15 U.S.C. 78u(c) 2J1.1, 2J1.5
15 U.S.C. 80a-41(c) 2J1.1, 2J1.5'';

by inserting after the line referenced to 15 U.S.C. 80b-6 the 
following:

``15 U.S.C. 80b-9(c) 2J1.1, 2J1.5'';

by inserting after the line referenced to 15 U.S.C. 714m(c) the 
following:

``15 U.S.C. 717m(d) 2J1.1, 2J1.5'';

by inserting after the line referenced to 15 U.S.C. 1176 the following:

``15 U.S.C. 1192 2N2.1
15 U.S.C. 1197(b) 2N2.1
15 U.S.C. 1202(c) 2N2.1
15 U.S.C. 1263 2N2.1'';

by inserting after the line referenced to 15 U.S.C. 1990c the 
following:

``15 U.S.C. 2068 2N2.1'';

by inserting after the line referenced to 16 U.S.C. 773g the following:

``16 U.S.C. 825f(c) 2J1.1, 2J1.5'';

by inserting after the line referenced to 18 U.S.C. 115(b)(4) the 
following:

``18 U.S.C. 117 2A6.2'';

in the line referenced to 18 U.S.C. 2280 by inserting ``2A6.1,'' after 
``2A4.1,'';
in the line referenced to 18 U.S.C. 2332a by inserting ``2A6.1,'' 
before ``2K1.4'';
by inserting after the line referenced to 18 U.S.C. 2425 the following:

``18 U.S.C. 2442 2H4.1'';

in the line referenced to 26 U.S.C. 7210 by inserting ``, 2J1.5'' after 
``2J1.1'';

by striking the line referenced to 33 U.S.C. 506;

in the line referenced to 33 U.S.C. 1227(b) by inserting ``, 2J1.5'' 
after ``2J1.1'';

in the line referenced to 42 U.S.C. 3611(f) by inserting ``, 2J1.5'' 
after ``2J1.1'';

by inserting after the line referenced to 47 U.S.C. 223(b)(1)(A) the 
following:

``47 U.S.C. 409(m) 2J1.1, 2J1.5'';

in the line referenced to 49 U.S.C. 14909 by inserting ``, 2J1.5'' 
after ``2J1.1'';

in the line referenced to 49 U.S.C. 16104 by inserting ``, 2J1.5'' 
after ``2J1.1'';

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

``50 U.S.C. App. 527 (e)2X5.2''.

    Reason for Amendment: This multi-part amendment responds to 
miscellaneous issues arising from legislation recently enacted and 
other miscellaneous guideline application issues.
    First, the amendment amends Appendix A (Statutory Index) to include 
offenses created by the Housing and Economic Recovery Act of 2008, 
Public Law 110-289, and other offenses similar to those offenses, as 
follows:
    (1) The new offense at 12 U.S.C. 4636b is referenced to Sec.  2B1.1 
(Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving 
Stolen Property; Property Damage or Destruction; Fraud and Deceit; 
Forgery; Offenses Involving Altered or Counterfeit Instruments Other 
than Counterfeit Bearer Obligations of the United States). The similar 
existing offense at 12 U.S.C. 1818(j) is also referenced to Sec.  
2B1.1. These offenses are similar to economic crimes and are best 
accounted for by Sec.  2B1.1.
    (2) The new offense at 12 U.S.C. 4641 is referenced to Sec.  2J1.1 
(Contempt) and Sec.  2J1.5 (Failure to Appear by Material Witness); 
similar existing offenses (2 U.S.C. 192, 390; 7 U.S.C. 87f(e); 12 
U.S.C. 1844(f), 2273, 3108(b)(6); 15 U.S.C. 78u(c), 80a-41(c), 80b-
9(c), 717m(d); 16 U.S.C. 825f(c); 26 U.S.C. 7210; 33 U.S.C. 1227(b); 42 
U.S.C. 3611; 47 U.S.C. 409(m); 49 U.S.C. 14909, 16104) are also 
referenced to Sec.  2J1.1 and Sec.  2J1.5. Contempt offenses can 
involve a range of conduct. The Commission determined that referencing 
these offenses to both Sec.  2J1.1 and Sec.  2J1.5 will best account 
for the range of conduct involved. Another similar offense, 33 U.S.C. 
506, is deleted from Appendix A (Statutory Index) because it has been 
repealed.
    Second, the amendment amends Appendix A (Statutory Index) to 
include offenses upgraded from misdemeanors to felonies by the Consumer 
Product Safety Improvement Act of 2008, Public Law 110-314. These 
offenses (15 U.S.C. 1192, 1197(b), 1202(c), 1263, 2068) are referenced 
to Sec.  2N2.1 (Violations of Statutes and Regulations Dealing With Any 
Food, Drug, Biological Product, Device, Cosmetic, or Agricultural 
Product). These offenses cover a range of conduct (from paperwork 
violations

[[Page 21759]]

to making or selling a nonconforming product) and a range of mental 
states (from strict liability to knowing, willful, or intentional 
misconduct). The Commission determined that these offenses are similar 
to offenses referenced to Sec.  2N2.1, which has provisions to account 
for aggravating and mitigating circumstances that may be involved in 
such offenses. Technical and conforming changes are also made to 
indicate that Sec.  2N2.1 covers consumer product safety offenses.
    Third, the amendment amends Appendix A (Statutory Index) to include 
an offense created by the Veterans' Benefits Improvement Act of 2008, 
Public Law 110-389. The new offense, 50 U.S.C. App. Sec.  527(e), is a 
Class A misdemeanor and, accordingly, is referenced to Sec.  2X5.2 
(Class A Misdemeanors (Not Covered by Another Specific Offense 
Guideline)). The amendment also references 10 U.S.C. 987(f), a similar 
Class A misdemeanor, to Sec.  2X5.2.
    Fourth, the amendment amends Appendix A (Statutory Index) to 
include an offense created by the Violence Against Women and Department 
of Justice Reauthorization Act of 2005, Public. Law 109-162. The 
offense, 18 U.S.C. 117, covers domestic assault by a person with two or 
more prior convictions for domestic assault offenses. It is similar to 
the offenses referenced to Sec.  2A6.2 (Stalking or Domestic Violence) 
and, therefore, is referenced to that guideline.
    Fifth, the amendment amends Appendix A (Statutory Index) to include 
an offense created by the Child Soldiers Accountability Act of 2008, 
Public Law 110-340. The offense, 18 U.S.C. 2442, is referenced to Sec.  
2H4.1 (Peonage, Involuntary Servitude, and Slave Trade). The offenses 
currently indexed to Sec.  2H4.1 include five offenses that relate to 
illegal use of an individual's labor and have the same statutory 
maximum term of imprisonment as the new child soldiers offense (20 
years imprisonment or, if death results, life). Likewise, Sec.  2H4.1 
has provisions to account for aggravating and mitigating circumstances 
that may be involved in a child soldiers offense. Technical and 
conforming changes are also made to indicate that Sec.  2H4.1 applies 
to the new offense.
    Sixth, the amendment makes changes throughout the Guidelines Manual 
to reflect the amendments made by the Judicial Administration and 
Technical Amendments Act of 2008, Public Law 110-406, to the probation 
and supervised release statutes (18 U.S.C. 3563, 3583). The changes 
include a new guideline for intermittent confinement at Sec.  5F1.8 
(Intermittent Confinement) that parallels the statutory language, as 
well as technical and conforming changes. These changes conform the 
Guidelines Manual to reflect what Congress has provided.
    Seventh, the amendment responds to the Let Our Veterans Rest in 
Peace Act of 2008, Public Law 110-384, which directed the Commission to 
review and, if appropriate, amend the guidelines to ``provide adequate 
sentencing enhancements'' for any offense involving ``desecration, 
theft, or trafficking'' in a veteran's grave marker. There is a 
specific offense characteristic at subsection (b)(6) of Sec.  2B1.1 for 
damage, destruction, or theft of a veteran's grave marker. The 
amendment amends this specific offense characteristic so that it also 
covers trafficking in a veteran's grave marker.
    Eighth, the amendment makes changes in the child pornography 
guidelines, Sec.  2G2.1 (Sexually Exploiting a Minor by Production of 
Sexually Explicit Visual or Printed Material; Custodian Permitting 
Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors 
to Engage in Production) and Sec.  2G2.2 (Trafficking in Material 
Involving the Sexual Exploitation of a Minor; Receiving, Transporting, 
Shipping, Soliciting, or Advertising Material Involving the Sexual 
Exploitation of a Minor; Possessing Material Involving the Sexual 
Exploitation of a Minor with Intent to Traffic; Possessing Material 
Involving the Sexual Exploitation of a Minor), so that they reflect the 
amendments made to the child pornography statutes (18 U.S.C. 2251 et 
seq.) by the Effective Child Pornography Prosecution Act of 2007, 
Public Law 110-358, and the PROTECT Our Children Act of 2008, Public 
Law 110-401. The changes relate primarily to cases in which child 
pornography is transmitted over the Internet. Under the amendment, 
where the guidelines refer to the purpose of producing a visual 
depiction, they will also refer to the purpose of transmitting a live 
visual depiction; where the guidelines refer to possessing material, 
they will also refer to accessing with intent to view the material. The 
amendment also amends the child pornography guidelines so that the term 
``distribution'' includes ``transmission'', and the term ``material'' 
includes any visual depiction, as now defined by 18 U.S.C. 2256 (i.e., 
to include data which is capable of conversion into a visual image that 
has been transmitted by any means, whether or not stored in a permanent 
format). These changes conform the child pornography guidelines to 
reflect what Congress has provided.
    Ninth, the amendment amends Appendix A (Statutory Index) so that 
the threat guideline, Sec.  2A6.1 (Threatening or Harassing 
Communications; Hoaxes; False Liens), is included on the list of 
guidelines to which 18 U.S.C. 2280 and 2332a are referenced. A person 
may be charged and convicted of committing such an offense by threat. 
In such a case, Sec.  2A6.1 may be the most appropriate guideline.
    Tenth, the amendment addresses subsection (a)(7) of 18 U.S.C. 
2252A, a new child pornography offense created by the PROTECT Our 
Children Act of 2008, Public Law 110-401. The offense makes it unlawful 
to knowingly produce with intent to distribute, or to knowingly 
distribute, ``child pornography that is an adapted or modified 
depiction of an identifiable minor.'' A violator is subject to a 
maximum term of imprisonment of 15 years. This offense is already 
referenced in Appendix A (Statutory Index) to the child pornography 
distribution guideline, Sec.  2G2.2, by virtue of the fact that all 
offenses under section 2252A(a) are referenced to that guideline. The 
Commission determined that the distribution guideline is the 
appropriate guideline for this offense because distribution is a 
required element of this offense, in that the offender must either 
distribute the material or produce it with intent to distribute. The 
distribution guideline also has provisions to account for aggravating 
and mitigating circumstances that may be involved in these offenses. 
The amendment provides a base offense level of 18 for this offense, 
which is four levels lower than the base offense level for other child 
pornography distribution offenses referenced to Sec.  2G2.2. The 
Commission determined that the lower base offense level was appropriate 
for this offense because, unlike for other child pornography 
distribution offenses, the process of creating the image does not 
involve the sexual exploitation of a child, and Congress provided a 
lower penalty structure for this offense (a maximum term of 
imprisonment of 15 years, and no mandatory minimum term of 
imprisonment) than for other child pornography distribution offenses 
(typically, a maximum term of imprisonment of 20 years and a mandatory 
minimum of 5 years). The lower base offense level also accounts for the 
fact that the enhancements at subsections (b)(3) (for distribution) and 
(b)(6) (for use of a computer) will likely apply in these cases. 
Finally, to ensure that Sec.  2G2.2 treats material involving an 
adapted or modified image in the same

[[Page 21760]]

manner as it treats material involving any other form of child 
pornography, the amendment provides a new Application Note to Sec.  
2G2.2 to clarify that, if the offense involved material that is an 
adapted or modified depiction of an identifiable minor, the term 
``material involving the sexual exploitation of a minor'' includes such 
material.
    9. Amendment: The Commentary to Sec.  3C1.3 captioned ``Application 
Note'' is amended in Note 1 by striking ``as adjusted'' and inserting 
``including, as in any other case in which a Chapter Three adjustment 
applies (see Sec.  1B1.1 (Application Instructions)), the adjustment 
provided''; and by adding at the end ``Similarly, if the applicable 
adjusted guideline range is 30-37 months and the court determines a 
`total punishment' of 30 months is appropriate, a sentence of 24 months 
for the underlying offense plus 6 months under 18 U.S.C. 3147 would 
satisfy this requirement.''.
    Reason for Amendment: This amendment clarifies Application Note 1 
in Sec.  3C1.3 (Commission of Offense While on Release). Section 3C1.3 
(formerly Sec.  2J1.7, see Appendix C to the Guidelines Manual, 
Amendment 684) provides a three-level adjustment if the defendant is 
subject to the statutory enhancement at 18 U.S.C. 3147--that is, if the 
defendant has committed the underlying offense while on release. 
Application Note 1 to Sec.  3C1.3 states that, in order to comply with 
the statute's requirement that a consecutive sentence be imposed, the 
sentencing court must ``divide the sentence on the judgment form 
between the sentence attributable to the underlying offense and the 
sentence attributable to the enhancement.''
    The Second and Seventh Circuits have held that, according to the 
terms of Application Note 2 to Sec.  2J1.7 (now Application Note 1 to 
Sec.  3C1.3), a sentencing court cannot apportion to the underlying 
offense more than the maximum of the guideline range absent the three-
level adjustment. See United States v. Confredo, 528 F.3d 143 (2d Cir. 
2008); United States v. Stevens, 66 F.3d 431 (2d Cir. 1995); United 
States v. Wilson, 966 F.2d 243 (7th Cir. 1992).
    The amendment clarifies that the court determines the applicable 
guideline range for a defendant who committed an offense while on 
release and is subject to the enhancement at 18 U.S.C. 3147 as in any 
other case. Therefore, under ordinary guideline application principles, 
only one guideline range applies to such a defendant. See Sec.  1B1.1 
(Application Instructions) (instructing the sentencing court to, in 
this order: (1) Determine the offense guideline applicable to the 
offense of conviction (the underlying offense); (2) determine the base 
offense level and specific offense characteristics, and follow other 
instructions in Chapter Two; (3) apply adjustments from Chapter Three; 
and, ultimately, (4) ``[d]etermine the guideline range in Part A of 
Chapter Five that corresponds to the offense level and criminal history 
category determined above''). At that point, the court determines an 
appropriate ``total punishment'' using that applicable guideline range, 
and then divides the total sentence between the underlying offense and 
the section 3147 enhancement as the court considers appropriate.
    10. Amendment: Section 2B5.3(b)(5) is amended by inserting ``death 
or'' after ``risk of''; and by striking ``13'' and inserting ``14'' 
each place it appears.
    Reason for Amendment: This amendment responds to the Prioritizing 
Resources and Organization for Intellectual Property Act of 2008, 
Public Law 110-403, which added two sentencing enhancements to 
violations of 18 U.S.C. 2320 (Trafficking in counterfeit goods or 
services). Under those sentencing enhancements, if the offender causes 
or attempts to cause serious bodily injury, the statutory maximum term 
of imprisonment is increased from 10 years to 20 years; if the offender 
causes or attempts to cause death, the statutory maximum is increased 
to any term of years (or to life).
    The amendment amends Sec.  2B5.3 (Criminal Infringement of 
Copyright or Trademark) at subsection (b)(5) to clarify that the 
enhancement in that subsection, which applies when the offense involved 
the risk of serious bodily injury, also applies when the offense 
involved the risk of death. This brings the language of that 
enhancement back into parallel with the corresponding enhancement in 
subsection (b)(13) of Sec.  2B1.1 (Larceny, Embezzlement, and Other 
Forms of Theft; Offenses Involving Stolen Property; Property Damage or 
Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or 
Counterfeit Instruments Other than Counterfeit Bearer Obligations of 
the United States). The Commission envisioned, when it added the 
enhancement to Sec.  2B5.3, that paralleling the fraud guideline would 
promote proportionality. See Appendix C to the Guidelines Manual, 
Amendment 590 (``The Commission determined that this kind of 
aggravating conduct in connection with infringement cases should be 
treated under the guidelines in the same way it is treated in 
connection with fraud cases; therefore, this enhancement is consistent 
with an identical provision in the fraud guideline.''). Accordingly, 
the amendment also increases the minimum offense level in Sec.  
2B5.3(b)(5) from level 13 to level 14, bringing it back into parallel 
with the minimum offense level in Sec.  2B1.1(b)(13).
    11. Amendment: The Commentary to Sec.  1B1.8 captioned 
``Application Notes'' is amended in Note 3 by striking ``(e)(6) 
(Inadmissibility of Pleas,'' and inserting ``(f) (Admissibility or 
Inadmissibility of a Plea,''.
    The Commentary to Sec.  2G2.1 captioned ``Statutory Provisions'' is 
amended by inserting ``(a)-(c), 2251(d)(1)(B)'' after ``2251''.
    The Commentary to Sec.  2G2.2 captioned ``Statutory Provisions'' is 
amended by inserting ``(a)-(b)'' after ``2252A''.
    The Commentary to Sec.  2G2.2 captioned ``Application Notes'' is 
amended in Note 1 in the paragraph that begins `` `Sexual abuse'' by 
inserting ``(a)-(c), Sec.  2251(d)(1)(B)'' after ``2251''.
    The Commentary to Sec.  2G2.3 captioned ``Background'' is amended 
by striking ``twenty'' and inserting ``thirty''.
    Section 2G3.1(c)(1) is amended by inserting ``Soliciting,'' after 
``Shipping,''; and by striking ``Traffic) or Sec.  2G2.4 (Possession of 
Materials Depicting a Minor Engaged in Sexually Explicit Conduct), as 
appropriate.'' and inserting ``Traffic; Possessing Material Involving 
the Sexual Exploitation of a Minor).''.
    The Commentary to Sec.  2J1.1 captioned ``Application Notes'' is 
amended in Note 3 by striking ``(7)'' and inserting ``(8)''.
    The Commentary to Sec.  4B1.2 captioned ``Application Notes'' is 
amended in Note 1 in the paragraph that begins ``Unlawfully possessing 
a listed'' by striking ``(d)'' and inserting ``(c)''.
    The Commentary to Sec.  5C1.2 captioned ``Application Notes'' is 
amended in Note 8 by striking ``(c)(1), (3)'' and inserting ``(f), 
(i)''.
    The Commentary to Sec.  5D1.2 captioned ``Background'' is amended 
by striking ``(b)'' and inserting ``(c)''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. 2251(a),(b) the following:

``18 U.S.C. 2251(c) 2G2.1'';

in the line referenced to 18 U.S.C. 2251(c)(1)(A) by striking ``(c)'' 
and inserting ``(d)'';

in the line referenced to 18 U.S.C. 2251(c)(1)(B) by striking ``(c)'' 
and inserting ``(d)'';


[[Page 21761]]


in the line referenced to 18 U.S.C. 2252A by inserting ``(a), (b)'' 
after ``2252A'';

by inserting before the line referenced to 18 U.S.C. 2252B the 
following:

``18 U.S.C. 2252A(g) 2G2.6'';

and in the line referenced to 42 U.S.C. 3611(f) by striking ``(f)'' and 
inserting ``(c)''.

    Reason for Amendment: This multi-part amendment makes various 
technical and conforming changes to the guidelines.
    The amendment addresses several cases in which the Guidelines 
Manual refers to a guideline, or to a statute or rule, but the 
reference has become incorrect or obsolete. First, it makes technical 
changes in Sec.  1B1.8 (Use of Certain Information) to address the fact 
that provisions that had been contained in subsection (e)(6) of Rule 11 
of the Federal Rules of Criminal Procedure are now contained in 
subsection (f) of that rule. Second, it makes a technical change in 
Sec.  2J1.1 (Contempt), Application Note 3, to address the fact that 
the provision that had been contained in subsection (b)(7)(C) of Sec.  
2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses 
Involving Stolen Property; Property Damage or Destruction; Fraud and 
Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments 
Other than Counterfeit Bearer Obligations of the United States)) is now 
contained in subsection (b)(8)(C) of that guideline. Third, it makes a 
technical change in Sec.  4B1.2 (Definitions of Terms Used in Section 
4B1.1), Application Note 1, to address the fact that the offense that 
had been contained in subsection (d)(1) of 21 U.S.C. 841 is now 
contained in subsection (c)(1) of that section. Fourth, it makes 
technical changes in Sec.  5C1.2 (Limitation on Applicability of 
Statutory Minimum Sentences in Certain Cases), Application Note 8, to 
address the fact that subsections (c)(1) and (c)(3) of Rule 32 of the 
Federal Rules of Criminal Procedure are now contained in subsections 
(f) and (i) of that rule. Fifth, it makes a technical change to the 
Commentary in Sec.  5D1.2 (Term of Supervised Release) to address the 
fact that the provision that had been contained in subsection (b) of 
Sec.  5D1.2 is now contained in subsection (c) of that guideline. 
Sixth, it makes a technical change in Appendix A (Statutory Index) to 
address the fact that the offense that had been contained in subsection 
(f) of 42 U.S.C. 3611 is now contained in subsection (c) of that 
section.
    The amendment also resolves certain technical issues that have 
arisen in the Guidelines Manual with respect to child pornography 
offenses. First, it makes technical changes to the Commentary in Sec.  
2G2.1 (Sexually Exploiting a Minor by Production of Sexually Explicit 
Visual or Printed Material; Custodian Permitting Minor to Engage in 
Sexually Explicit Conduct; Advertisement for Minors to Engage in 
Production) to more accurately indicate which offenses under 18 U.S.C. 
2251 are referenced to Sec.  2G2.1. Second, it makes technical changes 
to the Commentary in Sec.  2G2.2 (Trafficking in Material Involving the 
Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, 
Soliciting, or Advertising Material Involving the Sexual Exploitation 
of a Minor; Possessing Material Involving the Sexual Exploitation of a 
Minor with Intent to Traffic; Possessing Material Involving the Sexual 
Exploitation of a Minor) to address the fact that offenses under 18 
U.S.C. 2252A(g) are now covered by Sec.  2G2.6 (Child Exploitation 
Enterprises) (see Appendix C to the Guidelines Manual, Amendment 701), 
while offenses under section 2252A(a) and (b) continue to be covered by 
Sec.  2G2.2. Third, it makes a technical change to the Commentary in 
Sec.  2G2.3 (Selling or Buying of Children for Use in the Production of 
Pornography) to address the fact that the statutory minimum sentence 
for a defendant convicted under 18 U.S.C. 2251A is now 30 years 
imprisonment. Fourth, it makes technical changes in subsection (c)(1) 
of Sec.  2G3.1 (Importing, Mailing, or Transporting Obscene Matter; 
Transferring Obscene Matter to a Minor; Misleading Domain Names) to 
address the fact that Sec.  2G2.4 no longer exists, having been 
consolidated into Sec.  2G2.2 effective November 1, 2004 (see Appendix 
C to the Guidelines Manual, Amendment 664). Fifth, it makes a technical 
change in Appendix A (Statutory Index) to address the fact that the 
offenses that had been contained in subsections (c)(1)(A) and (c)(1)(B) 
of 18 U.S.C. 2251 are now contained in subsections (d)(1)(A) and 
(d)(1)(B) of that section. In doing so, it also provides the 
appropriate reference for the offense that is now contained in 
subsection (c) of that section. Sixth, it makes a technical change in 
Appendix A (Statutory Index) to address the fact that offenses under 
section 2252A(g) are now covered by Sec.  2G2.6, while offenses under 
section 2252A(a) and (b) continue to be covered by Sec.  2G2.2.

[FR Doc. E9-10737 Filed 5-7-09; 8:45 am]
BILLING CODE 2211-01-P