United States Sentencing Commission Public Meeting Minutes

January 13, 2009

Acting Chair Ricardo H. Hinojosa called the meeting to order at 11:35 a.m. in the

Commissioners’ Conference Room.

The following Commissioners were present:

! Judge Ricardo H. Hinojosa, Acting Chair

! William B. Carr, Jr., Vice Chair

! Judge Ruben Castillo, Vice Chair

! Judge William K. Sessions, III, Vice Chair

! Dabney L. Friedrich, Commissioner

! Beryl A. Howell, Commissioner

! Jonathan J. Wroblewski, Commissioner Ex Officio

The following Commissioner was not present:

! Edward F. Reilly, Jr., Commissioner Ex Officio

The following staff participated in the meeting:

! Judith Sheon, Staff Director

! Ken Cohen, General Counsel

The Acting Chair called for a motion to adopt the minutes of the November 20, 2008, public

meeting. Commissioner Howell made the motion to adopt the minutes, with Vice Chair Castillo

seconding the motion. Hearing no further discussion, the Acting Chair called for a vote and the

motion was adopted by voice vote.

Acting Chair Hinojosa reported that he resigned as Chair of the Commission effective January 2,

2009. Prior to the effective date of his resignation, he delegated the duties of the Chair of the

Commission to an Acting Chair to be selected by the Commission, and the Commission selected

him to be the Acting Chair pending the nomination and confirmation of a new Chair. 

Acting Chair Hinojosa announced that Michael E. Horowitz’s term as a member of the

Commission has expired. The Acting Chair and other commissioners expressed their

appreciation for Mr. Horowitz’s service on the Commission. Mr. Horowitz stated that it was an

honor to have served on the Commission.

Acting Chair Hinojosa reported that William B. Carr, Jr., has been appointed as a Vice Chair to

the Commission and welcomed him to the Commission. The Acting Chair noted it was Vice

Chair Carr’s first public meeting, having been confirmed in November 2008.

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The Staff Director announced that the Commission will hold its Annual National Seminar on the

Federal Sentencing Guidelines on June 10-12, 2009, in New Orleans, LA. Ms. Sheon also noted

that the Commission has added several new publications to its webpage, including Overview of

Federal Criminal Cases, Fiscal Year 2007 and Changing Face of Federal Criminal Sentencing:

Seventeen Years of Growth in the Federal Sentencing Caseload.

Acting Chair Hinojosa called on Mr. Cohen to inform the Commission on possible votes to

publish in the Federal Register a set of proposed guideline amendments and issues for public

comment.

Mr. Cohen stated that the first proposed amendment, attached hereto as Exhibit A, would

implement the Identity Theft Restitution and Enforcement Act of 2008 (“the Act”), Title II of

Pub. L. 110–326, and other related issues arising from case law. The Act includes a directive to

the Commission to study 13 factors relevant to identity theft offenses. The proposed amendment

includes options to amend §§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), 2H3.1 (Interception of Communications; Eavesdropping; Disclosure of

Certain Private or Protected Information), and 3B1.3 (Abuse of Position of Trust or Use of

Special Skill) to account for various factors listed in the directive. The proposed amendment also

includes several issues for comment regarding what amendments to the guidelines may be

appropriate in light of the Act. Mr. Cohen advised the commissioners that a motion to publish

the proposed amendment would be in order, with a 60-day comment period, and with the staff

being authorized to make technical and conforming changes if needed.

Acting Chair Hinojosa called for a motion as suggested by Mr. Cohen. Vice Chair Castillo made

a motion to publish the proposed amendment, with Commissioner Howell seconding. Hearing

no discussion, the Acting Chair called for a vote and the motion was adopted with the Acting

Chair noting that at least three commissioners voted in favor of the motion.

Mr. Cohen stated that the next proposed amendment, attached hereto as Exhibit B, would

implement the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 (the “Act”), Pub.

L. 110–465. The Act, in relevant part, amends the Controlled Substances Act (21 U.S.C. § 801

et seq.) to create two new offenses involving controlled substances, amends the statutory

penalties for Schedule III, IV, and V controlled substance offenses, and adds a sentencing

enhancement for Schedule III controlled substance offenses where “death or serious bodily injury

results from the use of such substance.” The proposed amendment includes options to amend

§§2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession

with Intent to Commit These Offenses); Attempt or Conspiracy) and 2D3.1 (Regulatory Offenses

Involving Registration Numbers; Unlawful Advertising Relating to Schedule I Substances;

Attempt or Conspiracy) to account for the new offenses and changes to the statutory penalties. 

The proposed amendment also includes several issues for comment. Mr. Cohen advised the

commissioners that a motion to publish the proposed amendment would be in order, with a

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60-day comment period, and with the staff being authorized to make technical and conforming

changes if needed.

Acting Chair Hinojosa called for a motion as suggested by Mr. Cohen. Commissioner Howell

made a motion to publish the proposed amendment, with Vice Chair Carr seconding. Hearing no

discussion, the Acting Chair called for a vote and the motion was adopted with the Acting Chair

noting that at least three commissioners voted in favor of the motion.

Mr. Cohen stated that the next proposed amendment, attached hereto as Exhibit C, would

implement the Drug Trafficking Vessel Interdiction Act of 2008 (the “Act”), Pub. L. 110–407. 

The Act creates a new offense at 18 U.S.C. § 2285 (Operation of Submersible Vessel or

Semi-Submersible Vessel Without Nationality), which prohibits the use of a submersible or

semi-submersible vessel in international waters that is not registered with any nation’s maritime

authority. The proposed amendment amends §§2D1.1 (Unlawful Manufacturing, Importing,

Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt

or Conspiracy) to include a sentencing enhancement for the use of a submersible or semisubmersible vessel in drug trafficking. The proposed amendment also creates a new guideline at

§2X7.2 (Submersible and Semi-Submersible Vessels) for the new offense at 18 U.S.C. § 2285. 

Three issues for comment also are included. Mr. Cohen advised the commissioners that a motion

to publish the proposed amendment would be in order, with a 60-day comment period, and with

the staff being authorized to make technical and conforming changes if needed.

Acting Chair Hinojosa called for a motion as suggested by Mr. Cohen. Vice Chair Sessions

made a motion to publish the proposed amendment, with Vice Chair Castillo seconding. Hearing

no discussion, the Acting Chair called for a vote and the motion was adopted with the Acting

Chair noting that at least three commissioners voted in favor of the motion.

Mr. Cohen stated that the proposed issues for comment, attached hereto as Exhibit D, concern the

Court Security Improvement Act of 2007 (the “Act”), Public L. 110–177. The Commission

responded to the two new offenses created by the Act during the amendment cycle ending May 1,

2008 (see USSG Supp. to App. C, Amendment 718). The three issues for comment are outlined

regarding what additional amendments may be appropriate in light of the Act. Mr. Cohen

advised the commissioners that a motion to publish the proposed issues for comment would be in

order, with a 60-day comment period, and with the staff being authorized to make technical and

conforming changes if needed.

Acting Chair Hinojosa called for a motion as suggested by Mr. Cohen. Commissioner Howell

made a motion to publish the proposed issues for comment, with Commissioner Friedrich

seconding. Hearing no discussion, the Acting Chair called for a vote and the motion was adopted

with the Acting Chair noting that at least three commissioners voted in favor of the motion.

Mr. Cohen stated that the next proposed issues for comment, attached hereto as Exhibit E,

concern the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008

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(the “Act”), Public L. 110–177. The Act creates two new federal offenses, amends a number of

federal statutes, and contains a directive to the Commission relating to certain alien harboring

offenses. The three issues for comment are outlined regarding what amendments to the

guidelines may be appropriate in light of the Act. Mr. Cohen advised the commissioners that a

motion to publish the proposed issues for comment would be in order, with a 60-day comment

period, and with the staff being authorized to make technical and conforming changes if needed.

Acting Chair Hinojosa called for a motion as suggested by Mr. Cohen. Vice Chair Carr made a

motion to publish the proposed issues for comment, with Commissioner Howell seconding. 

Hearing no discussion, the Acting Chair called for a vote and the motion was adopted with the

Acting Chair noting that at least three commissioners voted in favor of the motion.

Mr. Cohen stated that the next proposed amendment, attached hereto as Exhibit F, is a multi-part

amendment responding to miscellaneous issues arising from legislation recently enacted and

other miscellaneous guideline application issues. The proposed amendment also includes one

issue for comment. Mr. Cohen advised the commissioners that a motion to publish the proposed

amendment would be in order, with a 60-day comment period, and with the staff being

authorized to make technical and conforming changes if needed.

Acting Chair Hinojosa called for a motion as suggested by Mr. Cohen. Vice Chair Sessions

made a motion to publish the proposed amendment, with Vice Chair Castillo seconding. Hearing

no discussion, the Acting Chair called for a vote and the motion was adopted with the Acting

Chair noting that at least three commissioners voted in favor of the motion.1

Mr. Cohen stated that the next proposed amendment, attached hereto as Exhibit G, includes three

possible options to address a circuit conflict regarding the undue influence enhancement at

§§2A3.2(b)(2)(B)(ii) (Criminal Sexual Abuse of a Minor Under the Age of Sixteen Year

(Statutory Rape) or Attempt to Commit Such Acts) and 2G1.3(b)(2)(B) (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 proposed amendment

also includes one issue for comment. Mr. Cohen advised the commissioners that a motion to

publish the proposed amendment would be in order, with a 60-day comment period, and with the

staff being authorized to make technical and conforming changes if needed.

Acting Chair Hinojosa called for a motion as suggested by Mr. Cohen. Vice Chair Carr made a

motion to publish the proposed amendment, with Commissioner Howell seconding. Hearing no

discussion, the Acting Chair called for a vote and the motion was adopted with the Acting Chair

noting that at least three commissioners voted in favor of the motion.

Commissioner Howell abstained from the vote on Part K of the proposed amendment. 1

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Mr. Cohen stated that the next proposed amendment, attached hereto as Exhibit H, clarifies

Application Note 1 in §3C1.3 (Commission of Offense While on Release) regarding how the

court is to determine the applicable guideline range. Mr. Cohen advised the commissioners that

a motion to publish the proposed amendment would be in order, with a 60-day comment period,

and with the staff being authorized to make technical and conforming changes if needed.

Acting Chair Hinojosa called for a motion as suggested by Mr. Cohen. Commissioner Howell 

made a motion to publish the proposed amendment, with Vice Chair Castillo seconding. Hearing

no discussion, the Acting Chair called for a vote and the motion was adopted with the Acting

Chair noting that at least three commissioners voted in favor of the motion.

Mr. Cohen stated that the next proposed amendment, attached hereto as Exhibit I, clarifies

guideline application issues regarding the sentencing of counterfeiting offenses involving

“bleached notes.” Bleached notes are genuine United States currency stripped of its original

image through the use of solvents or other chemicals and then reprinted to appear to be notes of

higher denomination than intended by the Treasury. Courts in different circuits have resolved

differently the question of whether offenses involving bleached notes should be sentenced under

§2B5.1 (Offenses Involving Counterfeit Bearer Obligations of the United States) or §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

proposed amendment resolves this issue to provide that offenses involving bleached notes are to

be sentenced under §2B5.1. Mr. Cohen advised the commissioners that a motion to publish the

proposed amendment would be in order, with a 60-day comment period, and with the staff being

authorized to make technical and conforming changes if needed.

Acting Chair Hinojosa called for a motion as suggested by Mr. Cohen. Vice Chair Sessions 

made a motion to publish the proposed amendment, with Commissioner Howell seconding. 

Hearing no discussion, the Acting Chair called for a vote and the motion was adopted with the

Acting Chair noting that at least three commissioners voted in favor of the motion.

Mr. Cohen stated that the next proposed amendment, attached hereto as Exhibit J, is a multi-part

amendment that makes various technical and conforming changes to the guidelines. Mr. Cohen

advised the commissioners that a motion to publish the proposed amendment would be in order,

with a 60-day comment period, and with the staff being authorized to make technical and

conforming changes if needed.

Acting Chair Hinojosa called for a motion as suggested by Mr. Cohen. Commissioner Howell

made a motion to publish the proposed amendment, with Commissioner Friedrich seconding. 

Hearing no discussion, the Acting Chair called for a vote and the motion was adopted with the

Acting Chair noting that at least three commissioners voted in favor of the motion.

Acting Chair Hinojosa called on Mr. Cohen to inform the Commission on a possible vote to

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adopt a new charter for the Commission’s Practitioners Advisory Group and the publication of a

solicitation for applications for membership on the Practitioners Advisory Group.

Mr. Cohen stated that a motion was in order to adopt the proposed new charter for the

Commission’s Practitioners Advisory Group and for the publication of a solicitation for

membership on Practitioners Advisory Group. Mr. Cohen stated that a 60-day period for

accepting applications would be appropriate.

Acting Chair Hinojosa called for a motion as suggested by Mr. Cohen. Commissioner Howell

made a motion to adopt the proposed motion, with Vice Chair Carr seconding. Commissioner

Howell thanked the past and present members of the Practitioners Advisory Group for their

service to the Commission. Hearing no further discussion, the Acting Chair called for a vote and

the motion was adopted with the Acting Chair noting that at least four commissioners voted in

favor of the motion.

Acting Chair Hinojosa noted that the Sentencing Reform Act of 1984 was enacted twenty-five

years ago and that to mark the event, the Commission will hold several regional hearings to hear

the views of judges, practitioners, and other interested parties on federal sentencing. The first

such regional hearing will be held February 10-11, 2009, in Atlanta, GA. 

Acting Chair Hinojosa asked if there was any further business before the Commission. Exofficio Commissioner Wroblewski stated that the Department of Justice fully supports the

Commission’s work and believes that the Commission is fulfilling all of its responsibilities. 

The Acting Chair asked if there was any further business before the Commission and hearing

none, asked if there was a motion to adjourn the meeting. Commissioner Howell made a motion

to adjourn, with Commissioner Friedrich seconding. The Acting Chair called for a vote on the

motion, and the motion was adopted by voice vote. The meeting was adjourned at 12:15 p.m.

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EXHIBIT A

PROPOSED AMENDMENT: IDENTITY THEFT

Synopsis of Proposed Amendment: This proposed amendment addresses the Identity Theft

Restitution and Enforcement Act of 2008 (the “Act”), Title II of Pub. L. 110–326, and other

related issues arising from case law. The Act contains a directive to the Commission at section

209. Section 209(a) of the Act directs 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 offenses that are the subject of the directive in section 209 of the Act, and the

guidelines to which they are referenced, are as follows:

(1) 18 U.S.C. § 1028 (fraud and related activity in connection with identification

documents, authentication features, and information) makes it unlawful to engage

in fraud and related activity in connection with "identification documents" (e.g.,

government-issued documents such as drivers’ licenses) or "authentication

features" (i.e., features used on such documents to determine whether such

documents are authentic, such as watermarks or holograms). A violator is

subject to a fine under title 18, United States Code, and imprisonment. The

statutory maximum term of imprisonment varies from 1 year to 30 years,

depending on the circumstances of the offense. For example, the statute provides

imprisonment up to 30 years (if terrorism is involved); 20 years (if a drug

trafficking crime or a crime of violence is involved, or if the violator is a repeat

offender); and 15 years, 5 years, and 1 year, in other specified circumstances.

Offenses under 18 U.S.C. § 1028 are referenced in Appendix A of the Guidelines

Manual (Statutory Index) to §§2B1.1 (Theft, Property Destruction, and Fraud),

2L2.1 (Trafficking in a Document Relating to Naturalization), and 2L2.2 (Fraudulently

Acquiring Documents Relating to Naturalization). 

(2) 18 U.S.C. § 1028A (aggravated identity theft) makes it unlawful to transfer,

possess, or use a "means of identification" (i.e., a name or number used to identify

a specific individual, such as a social security number) of another person during

and in relation to another felony (such as a fraud or an immigration violation). A

violator is subject to a mandatory consecutive term of imprisonment of 2 years or,

if the other felony was a terrorism offense, 5 years.

Offenses under 18 U.S.C. § 1028A are referenced in Appendix A (Statutory Index)

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to §2B1.6 (Aggravated Identity Theft).

(3) 18 U.S.C. § 1030 (fraud and related activity in connection with computers)

provides for several offenses as follows: 

(A) 18 U.S.C. § 1030(a)(1) makes it unlawful to retain national security

information after having obtained it by computer without authority, or to

disclose such information to a person not entitled to receive it. A violator

is subject to a fine under title 18, United States Code, and imprisonment

up to 10 years (for a first offense) or 20 years (for a repeat offender).

Offenses under 18 U.S.C. § 1030(a)(1) are referenced in the Statutory

Index to §2M3.2 (Gathering National Defense Information).

(B) 18 U.S.C. § 1030(a)(2) makes it unlawful to obtain by computer, without

authority, information of a financial institution or of a federal agency. A

violator is subject to a fine under title 18, United States Code, and

imprisonment of up to 1 year (for a first offense), 5 years (for an offense

involving valuable information, an offense for purposes of commercial

advantage or financial gain, or an offense in furtherance of another crime

or tort), or 10 years (for a repeat offender).

Offenses under 18 U.S.C. § 1030(a)(2) are referenced in the Statutory

Index to §2B1.1 (Theft, Property Destruction, and Fraud).

(C) 18 U.S.C. § 1030(a)(3) makes it unlawful to access, without authority, a

nonpublic computer of a federal agency. A violator is subject to a fine

under title 18, United States Code, and imprisonment of up to 1 year (for a

first offense) or 10 years (for a repeat offender).

Offenses under 18 U.S.C. § 1030(a)(3) are referenced in the Statutory

Index to §2B2.3 (Trespass).

(D) 18 U.S.C. § 1030(a)(4) makes it unlawful to access a "protected

computer" (i.e., a computer of a financial institution or a federal agency)

without authority and, by means of doing so, further an intended fraud

and obtain a thing of value. A violator is subject to a fine under title 18,

United States Code, and imprisonment of up to 5 years (for a first offense)

or 10 years (for a repeat offender).

Offenses under 18 U.S.C. § 1030(a)(4) are referenced in the Statutory

Index to §2B1.1 (Theft, Property Destruction, and Fraud).

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(E) 18 U.S.C. § 1030(a)(5) makes it unlawful to use a computer to cause

damage to a "protected computer" (i.e., a computer of a financial

institution or a federal agency). A violator is subject to a fine under title

18, United States Code, and imprisonment of up to 1 year, 5 years, 10

years, 20 years, or life, depending on the circumstances.

Offenses under 18 U.S.C. § 1030(a)(5) are referenced in the Statutory

Index to §2B1.1 (Theft, Property Destruction, and Fraud).

(F) 18 U.S.C. § 1030(a)(6) makes it unlawful to traffic in any password or

similar information through which a computer may be accessed without

authorization, if the trafficking affects interstate or foreign commerce or if

the computer is used by or for a federal agency. A violator is subject to a

fine under title 18, United States Code, and imprisonment of up to 1 year

(for a first offense) or 10 years (for a repeat offender).

Offenses under 18 U.S.C. § 1030(a)(6) are referenced in the Statutory

Index to §2B1.1 (Theft, Property Destruction, and Fraud).

(G) 18 U.S.C. § 1030(a)(7) makes it unlawful to threaten to cause damage to,

or obtain information from, a "protected computer" (i.e., a computer of a

financial institution or a federal agency), without authority and with intent

to extort. A violator is subject to a fine under title 18, United States Code,

and imprisonment of up to 5 years (for a first offense) or 10 years (for a

repeat offender).

Offenses under 18 U.S.C. § 1030(a)(7) are referenced in the Statutory

Index to §2B3.2 (Extortion by Force or Threat of Injury or Serious

Damage).

(H) 18 U.S.C. § 1030(b) makes it unlawful to conspire to commit, or attempt to

commit, a section 1030(a) offense. A violator is subject to the same

penalty as for the section 1030(a) offense.

Offenses under 18 U.S.C. § 1030(b) are referenced in the Statutory Index

to §2X1.1 (Attempt, Solicitation, or Conspiracy).

(4) 18 U.S.C. § 2511 (interception and disclosure of wire, oral, or electronic

communications prohibited) makes it unlawful to intercept or disclose any wire,

oral, or electronic communication. A violator is subject to a fine under title 18,

United States Code, and imprisonment of up to 5 years.

Offenses under 18 U.S.C. § 2511 are referenced in the Statutory Index to §§2B5.3

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(Criminal Infringement of Copyright or Trademark) and 2H3.1 (Interception of

Communications; Eavesdropping; Disclosure of Certain Private or Protected

Information).

(5) 18 U.S.C. § 2701 (unlawful access to stored communications) makes it unlawful

to access, without authority, a facility through which an electronic

communication service is provided and obtain, alter, or prevent authorized access

to a wire or electronic communication stored in that facility. A violator is subject

to a fine under title 18, United States Code, and imprisonment. If the offense is

committed for commercial advantage, malicious damage, or commercial gain, or

in furtherance of a crime or tort, the maximum term of imprisonment is 5 years

(for a first offender) or 10 years (for a repeat offender); otherwise, the maximum

term of imprisonment is 1 year (for a first offender) or 5 years (for a repeat

offender).

Offenses under 18 U.S.C. § 2701 are referenced in the Statutory Index to §2B1.1

(Theft, Property Destruction, and Fraud).

Section 209(b) of the Act requires that, in determining the appropriate sentence for the

above referenced crimes, the Commission “shall consider the extent to which the current

guidelines and policy statements may or may not adequately account for the following factors in

order to create an effective deterrent to computer crime and the theft or misuse of personally

identifiable data”: 

(1) The level of sophistication and planning involved in such offense.

(2) Whether such offense was committed for purpose of commercial advantage or

private financial benefit. 

(3) The potential and actual loss resulting from the offense including—

(A) the value of information obtained from a protected computer, regardless

of whether the owner was deprived of use of the information; and

(B) where the information obtained constitutes a trade secret or other

proprietary information, the cost the victim incurred developing or

compiling the information.

(4) Whether the defendant acted with intent to cause either physical or property harm

in committing the offense.

(5) The extent to which the offense violated the privacy rights of individuals.

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(6) The effect of the offense upon the operations of an agency of the United States

Government, or of a State or local government.

(7) Whether the offense involved a computer used by the United States Government, a

State, or a local government in furtherance of national defense, national security,

or the administration of justice.

(8) Whether the offense was intended to, or had the effect of, significantly interfering

with or disrupting a critical infrastructure.

(9) Whether the offense was intended to, or had the effect of, creating a threat to

public health or safety, causing injury to any person, or causing death.

(10) Whether the defendant purposefully involved a juvenile in the commission of the

offense.

(11) Whether the defendant’s intent to cause damage or intent to obtain personal

information should be disaggregated and considered separately from the other

factors set forth in USSG 2B1.1(b)(14) [currently §2B1.1(b)(15)].

(12) Whether the term “victim” as used in USSG 2B1.1, should include individuals

whose privacy was violated as a result of the offense in addition to individuals

who suffered monetary harm as a result of the offense.

(13) Whether the defendant disclosed personal information obtained during the

commission of the offense. 

Section 209(c) of the Act requires that in responding to the directive, the Commission:

(1) assure reasonable consistency with other relevant directives and with other

sentencing guidelines;

(2) account for any additional aggravating or mitigating circumstances that might

justify exceptions to the generally applicable sentencing ranges;

(3) make any conforming changes to the sentencing guidelines; and

(4) 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 proposed amendment and issues for comment address the factors set forth in section

209(b) of the Act, and other related issues arising under the Act and under case law, in the

following manner: 

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(A) Level of Sophistication and Planning Involved in the Offense

Synopsis of Proposed Amendment: The proposed amendment responds to subsection (b)(1) of

the directive, which concerns the level of sophistication involved in the offense, by amending the

commentary in §2B1.1 relating to fraud offenses that involve sophisticated means. Specifically,

the proposed amendment responds to a concern about whether, in a case involving computers, the

defendant’s use of any technology or software to conceal the identity or geographic location of the

perpetrator qualifies as “especially complex or especially intricate offense conduct pertaining to

the execution or concealment of an offense” within the meaning of the sophisticated means

enhancement in §2B1.1(b)(9) and Application Note 8(B) of that guideline. The proposed

amendment adds this conduct to the list in Application Note 8(B) of examples of conduct that

ordinarily indicates sophisticated means.

Two issues for comment are also included.

Proposed Amendment:

§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

* * *

Commentary

* * *

Application Notes:

* * *

8. Sophisticated Means Enhancement under Subsection (b)(9).—

* * *

(B) Sophisticated Means Enhancement.—For purposes of subsection (b)(9)(C), "sophisticated

means" means especially complex or especially intricate offense conduct pertaining to the

execution or concealment of an offense. For example, in a telemarketing scheme,

locating the main office of the scheme in one jurisdiction but locating soliciting

operations in another jurisdiction ordinarily indicates sophisticated means. Conduct

such as hiding assets or transactions, or both, through the use of fictitious entities,

corporate shells, or offshore financial accounts also ordinarily indicates sophisticated

means. In a scheme involving computers, using any technology or software to conceal the

identity or geographic location of the perpetrator ordinarily indicates sophisticated

means.

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* * *

Issues for Comment:

1. The Commission requests comment regarding the factor described in section 209(b)(1) of the

Act (the level of sophistication and planning involved in the offense). The guidelines currently

address this factor as follows:

(1) Section 2B1.1(b)(9) contains a 2-level enhancement, and a minimum offense level

of 12, if the offense involved sophisticated means.

(2) Section 2B1.1(b)(4) contains a 2-level enhancement if the offense involved

receiving stolen property and the defendant was in the business of receiving and

selling stolen property, which Application Note 5 provides is to be determined in

part on the regularity and sophistication of the defendant’s activities.

Is the factor adequately addressed by these provisions? Should the Commission increase the

amount, or the scope, of these enhancements, or of the minimum offense level, or any combination

of those? Should the Commission amend other guidelines to which these offenses are referenced

to address this factor, such as by adding comparable enhancements, minimum offense levels, or

both?

2. The Commission requests comment regarding whether §3B1.3 (Abuse of Position of Trust or

Use of Special Skill) should apply to a person who has self-trained computer skills. Does the

guideline adequately address such a person? Should the guideline include language that

unequivocally includes such a person, or should it include language that unequivocally excludes

such a person?

(B) Whether the Offense Was Committed for Purpose of Commercial Advantage

or Private Financial Benefit

Issue for Comment:

1. The Commission requests comment regarding the factor described in section 209(b)(2) of the

Act (whether the offense was committed for purpose of commercial advantage or private financial

benefit). The guidelines currently address this factor as follows:

(1) Section 2H3.1 provides a 3-level enhancement at subsection (b)(1)(B) if the

purpose of an offense under 18 U.S.C. § 2511 was to obtain direct or indirect

commercial advantage or economic gain, and a cross reference at subsection

(c)(1) that applies if the purpose of the offense was to facilitate another offense.

(2) Section 2B1.5(b)(4) provides a 2-level enhancement if the offense was committed

for pecuniary gain or otherwise involved a commercial purpose.

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(3) Sections 2B1.1(b)(1), 2B2.3(b)(3), and 2B5.3(b)(1) provide enhancements based on

the monetary amounts involved in the offense.

Is the factor adequately addressed by these provisions? Should the Commission increase the

amount, or the scope, of these enhancements, or the scope of the cross reference? Should the

Commission amend other guidelines to which these offenses are referenced to address this factor,

such as by adding comparable enhancements or cross references?

(C) The Potential and Actual Loss Resulting from the Offense Including (A) the

Value of Information Obtained from a Protected Computer, Regardless of

Whether the Owner Was Deprived of Use of the Information; and (B) Where

the Information Obtained Constitutes a Trade Secret or Other Proprietary

Information, the Cost the Victim Incurred Developing or Compiling the

Information

Synopsis of Proposed Amendment: The proposed amendment responds to subsection (b)(3) of

the directive by revising §2B1.1 (Theft, Property Destruction, and Fraud). Specifically, it

addresses two types of information: information that the victim retains but that is copied by the

defendant, and information that constitutes a trade secret or other proprietary information of the

victim. Two options are presented. Option 1 adds to the rule of construction for cases under 18

U.S.C. § 1030 (Fraud and related activity in connection with computers) regarding pecuniary

harm in Application Note 3(A)(v)(III), specifying that any reduction in the value of proprietary

information that resulted from the offense should be included in the loss calculation. Option 2

adds a provision in Application Note 3(C), specifying that, if the fair market value of copied

information is unavailable or insufficient, the court may consider the cost the victim incurred in

originally developing the information or the reduction in the value of the information that

resulted from the offense.

Four issues for comment are also included.

Proposed Amendment:

§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

* * *

Commentary

* * *

Application Notes:

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* * *

3. Loss Under Subsection (b)(1).—This application note applies to the determination of loss under

subsection (b)(1).

(A) General Rule.—Subject to the exclusions in subdivision (D), loss is the greater of actual

loss or intended loss.

* * *

(v) Rules of Construction in Certain Cases.—In the cases described in subdivisions

(I) through (III), reasonably foreseeable pecuniary harm shall be considered to

include the pecuniary harm specified for those cases as follows:

* * *

[Option 1:

(III) Offenses Under 18 U.S.C. § 1030.—In the case of an offense under 18

U.S.C. § 1030, actual loss includes the following pecuniary harm,

regardless of whether such pecuniary harm was reasonably foreseeable:

any reasonable cost to any victim, including the cost of responding to an

offense, conducting a damage assessment, and restoring the data,

program, system, or information to its condition prior to the offense, and;

any revenue lost, cost incurred, or other damages incurred because of

interruption of service; and any reduction in the value of proprietary

information (e.g., trade secrets) that resulted from the offense.]

* * *

(C) Estimation of Loss.—The court need only make a reasonable estimate of the loss. The

sentencing judge is in a unique position to assess the evidence and estimate the loss based

upon that evidence. For this reason, the court’s loss determination is entitled to

appropriate deference. See 18 U.S.C. § 3742(e) and (f). 

The estimate of the loss shall be based on available information, taking into account, as

appropriate and practicable under the circumstances, factors such as the following:

[Option 2:

(i) The fair market value of the property unlawfully taken, copied, or destroyed; or,

if the fair market value is impracticable to determine or inadequately measures

the harm, the cost to the victim of replacing that property.

(ii) In the case of proprietary information (e.g., trade secrets), the cost of developing

that information or the reduction that resulted from the offense in the value of

that information. 

(iii) The cost of repairs to damaged property. 

H:\OSC\MeetingMaterials\2009\January\IDTheft-v9 15
(iiiv) The approximate number of victims multiplied by the average loss to each victim.

(iv) The reduction that resulted from the offense in the value of equity securities or

other corporate assets.

(vi) More general factors, such as the scope and duration of the offense and revenues

generated by similar operations.]

* * *

Issues for Comment:

1. The Commission requests comment regarding the factor described in section 209(b)(3) of the

Act (the potential and actual loss resulting from the offense including (A) the value of information

obtained from a protected computer, regardless of whether the owner was deprived of use of the

information; and (B) where the information obtained constitutes a trade secret or other

proprietary information, the cost the victim incurred developing or compiling the information). 

The guidelines currently address this factor as follows:

(1) Sections 2B1.1(b)(1), 2B2.3(b)(3), and 2B5.3(b)(1) provide enhancements based on

the monetary amounts involved in the offense.

(2) Section 2B1.1, Application Note 19(A)(iv), provides an upward departure if the

offense created a risk of substantial loss beyond the loss determined for purposes

of §2B1.1(b)(1).

(3) Section 2B1.1, Application Note 19(A)(v), provides an upward departure if, in a

case involving stolen information from a "protected computer", the defendant

sought the stolen information to further a broader criminal purpose.

Is the factor adequately addressed by these provisions? Should the Commission increase the

amount, or the scope, of these enhancements? Should the Commission amend other guidelines to

which these offenses are referenced to address this factor, such as by adding comparable

enhancements? Should these upward departure provisions be incorporated as enhancements in

the guidelines to which these offenses are referenced?

2. Should the definition of "loss" in §2B1.1 be amended to provide greater guidance to the court

on how to estimate loss in cases involving information obtained from a protected computer

without depriving the owner of the use of the information, or information obtained that constitutes

a trade secret or other proprietary information? For such cases, should §2B1.1 include a special

rule for including and quantifying (or providing a stipulated amount for) the loss, such as the

special rule in Application Note 3(F)(i) relating to credit cards?

3. The Commission requests comment regarding whether §2B1.1 adequately accounts for a case

in which an individual suffers pecuniary harm, but the pecuniary harm is immediately reimbursed

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by a third party. In such a case, the pecuniary harm may not be treated as "loss", and the

individual may not be treated as a "victim", for purposes of §2B1.1. 

Five circuit courts have addressed the issue of whether an individual who is fully reimbursed for

his or her temporary financial loss by a third party is a “victim” for purposes of §2B1.1(b)(2). 

The Fifth Circuit in United States v. Conner, 537 F.3d 480, 489 (5th Cir. 2008), and the Sixth

Circuit in United States v. Yagar, 404 F.3d 967, 971 (6th Cir. 2005), have held that individuals

who have been fully reimbursed for temporary financial losses by a third party are not “victims”

within the meaning of §2B1.1(b)(2). Although the Second Circuit in United States v. Abiodun,

536 F.3d 162, 168 (2d Cir.), cert. denied, __ S. Ct. __, 2008 WL 4619522 (2008) and the Ninth

Circuit in United States v. Pham, 545 F.3d 712, 721 (9th Cir. 2008) have agreed with the

reasoning of these courts, they have further held that individuals who were fully reimbursed for

their financial losses by third parties may be deemed victims for purposes of §2B1.1(b)(2) so long

as they suffered an adverse effect, measurable in monetary terms, as a result of the defendant’s

conduct (e.g., the costs associated with obtaining reimbursements from banks or credit card

companies). The Eleventh Circuit in United States v. Lee, 427 F.3d 881, 895 (11th Cir. 2005), did

not agree. While acknowledging that the facts of its case were significantly different in that the

monetary losses were neither short-lived nor immediately reimbursed by third parties, the Lee

court held that the operative time for determining whether someone is a victim is the time of the

offense, irrespective of any subsequent remedial action.

Should the Commission amend the guidelines to address this circumstance and, if so, how?

4. The Commission requests comment regarding whether §3B1.3 (Abuse of Position of Trust or

Use of Special Skill) should apply to a person who is an officer, employee, or insider of a business

who participates in an offense involving proprietary information (e.g., trade secrets) of that

business. Does the guideline adequately address such a person? Should the guideline include

language that unequivocally includes such a person, or should it include language that

unequivocally excludes such a person?

(D) Whether the Defendant Acted with Intent to Cause Either Physical or

Property Harm in Committing the Offense

Issue for Comment:

1. The Commission requests comment regarding the factor described in section 209(b)(4) of the

Act (whether the defendant acted with intent to cause either physical or property harm in

committing the offense). The guidelines currently address this factor as follows:

(1) Section 2B1.1(b)(13) provides a 2-level enhancement if the offense involved the

conscious or reckless risk of death or serious bodily injury, or possession of a

dangerous weapon in connection with the offense.

(2) Section 2B1.1(c) provides a cross reference under which the court applies a

H:\OSC\MeetingMaterials\2009\January\IDTheft-v9 17
firearms or explosives guideline if firearms or explosives are involved.

(3) Section 2H3.1(c) provides a cross reference under which the court applies another

offense guideline if the purpose was to facilitate another offense.

(4) Section 2B1.1, Application Note 19, provides an upward departure if the offense

caused or risked substantial non-monetary harm, such as physical harm or

property harm.

(5) Section 2H3.1, Application Note 5, provides an upward departure if the offense

caused or risked substantial non-monetary harm, such as physical harm or

property harm.

(6) Section 5K2.5 (Property Damage or Loss) provides an upward departure if the

offense caused property damage or loss not taken into account by the guidelines.

Is the factor adequately addressed by these provisions? If not, should the Commission increase

the amount, or the scope, of these enhancements, or the scope of the cross reference or departure

provisions? Should the Commission amend other guidelines to which these offenses are

referenced to address this factor, such as by adding a comparable enhancements or cross

references? Alternatively, should these upward departure provisions be incorporated as

enhancements in the guidelines to which these offenses are referenced?

(E) The Extent to Which the Offense Violated the Privacy Rights of Individuals

Synopsis of Proposed Amendment: The proposed amendment responds to subsection (b)(5) of

the directive (the extent to which the offense violated the privacy rights of individuals) by revising

§2H3.1 (Interception of Communications; Eavesdropping; Disclosure of Certain Private or

Protected Information). Two options are presented. Option 1 creates a new specific offense

characteristic in §2H3.1 with three alternative enhancements if the offense involved the personal

information or means of identification of specified numbers of individuals. Specifically, it

provides an enhancement of [2] levels for offenses involving the personal information or means of

identification of [10]-[50] or more individuals; an enhancement of [4] levels for [50]-[250] or

more individuals; and an enhancement of [6] levels for [250]-[1,000] or more individuals. The

graduated levels ensure incremental punishment for increasingly serious conduct. Option 2

amends Application Note 5 to §2H3.1, suggesting that an upward departure may be warranted

not only in a case in which the offense involved confidential phone records information or tax

return information of a substantial number of individuals (as the application note currently

provides), but also in a case in which the offense involved personal information or means of

identification of a substantial number of individuals.

The proposed amendment defines the term "personal information", for purposes of

§2H3.1, in the same manner as the term "personal information" is defined for purposes of

H:\OSC\MeetingMaterials\2009\January\IDTheft-v9 18
§2B1.1(b)(15). The proposed amendment clarifies, for purposes of both guidelines, that

information is "personal information" only if it involves an identifiable individual.

An issue for comment is also included.

Proposed Amendment:

§2H3.1. Interception of Communications; Eavesdropping; Disclosure of Certain Private or

Protected Information

* * *

(b) Specific Offense Characteristics

* * *

[Option 1: (3) (Apply the greatest) If the defendant is convicted under 18 U.S.C. § 2511

and the offense involved personal information or means of identification

of—

(A) [10]-[50] or more individuals, increase by [2] levels;

(B) [50]-[250] or more individuals, increase by [4] levels; or

(C) [250]-[1,000] or more individuals, increase by [6] levels.]

* * *

Commentary

* * *

Application Notes:

* * *

4. Definitions.—For purposes of subsection (b)(2)(B)this guideline:

"Computer" has the meaning given that term in 18 U.S.C. § 1030(e)(1).

"Covered person" has the meaning given that term in 18 U.S.C. § 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. § 230(f)(2)).

"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

H:\OSC\MeetingMaterials\2009\January\IDTheft-v9 19
defendant or a person for whose conduct the defendant is accountable under §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.

"Restricted personal information" has the meaning given that term in 18 U.S.C. § 119(b).

5. Upward Departure.—There may be cases in which the offense level determined under this

guideline substantially understates the seriousness of the offense. In such a case, an upward

departure may be warranted. The following are examples of cases in which an upward departure

may be warranted:

[Option 2:

(i) The offense involved personal information, means of identification, confidential phone

records information, or tax return information of a substantial number of individuals.]

(ii) The offense caused or risked substantial non-monetary harm (e.g. physical harm,

psychological harm, or severe emotional trauma, or resulted in a substantial invasion of

privacy interest) to individuals whose private or protected information was obtained.

* * *

§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

* * *

Commentary

* * *

Application Notes:

* * *

13. Application of Subsection (b)(15).—

(A) Definitions.—For purposes of subsection (b)(15):

* * *

"Personal information" means sensitive or private information involving an identifiable

individual (including such information in the possession of a third party), including (i)

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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.

* * *

Issue for Comment:

1. The Commission requests comment regarding the factor described in section 209(b)(5) of the

Act (the extent to which the offense violated the privacy rights of individuals). In many cases,

non-monetary harm (such as a violation of privacy rights) may be difficult or impossible to

quantify. See, e.g., §2B1.1, comment. (backg’d.). For that reason, non-monetary harm is

typically accounted for by the guidelines through a minimum offense level or an upward

departure. The guidelines currently address this factor as follows:

(1) Section 2B1.1, Application Note 19 provides an upward departure if the offense

resulted in a substantial invasion of a privacy interest. It also provides an upward

departure if, in a case involving access devices or unlawfully produced or

unlawfully obtained means of identification, (i) the offense caused substantial

harm to the victim’s reputation or credit record, or the victim suffered a

substantial inconvenience related to repairing the victim’s reputation or a

damaged credit record; (ii) an individual whose means of identification the

defendant used to obtain unlawful means of identification is erroneously arrested

or denied a job because an arrest record has been made in that individual’s name;

or (iii) the defendant produced or obtained numerous means of identification with

respect to one individual and essentially assumed that individual’s identity.

(2) Section 2H3.1, Application Note 5, provides an upward departure if the offense

involved private information or resulted in a substantial invasion of a privacy

interest.

(3) Section 2B1.1(b)(15)(A) provides a 2-level enhancement if an offense under 18

U.S.C. § 1030 involved an intent to obtain personal information, and

§2H3.1(b)(2)(B) provides a 10-level enhancement if an offense under 18 U.S.C. §

119 involved the use of a computer to make restricted personal information about

a covered person publicly available.

Is the factor adequately addressed through these provisions? If not, should the Commission

increase the amount, or the scope, of these enhancements? Should the Commission amend other

guidelines to which these offenses are referenced to address this factor, such as by adding

comparable enhancements? Should these upward departure provisions be incorporated as

enhancements in the guidelines to which these offenses are referenced?

(F) The Effect of the Offense upon the Operations of an Agency of the United

States Government, or of a State or Local Government

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Issue for Comment:

1. The Commission requests comment regarding the factor described in section 209(b)(6) of the

Act (the effect of the offense upon the operations of an agency of the United States Government,

or of a State or local government). The guidelines currently address this factor as follows:

(1) Section 5K2.7 (Disruption of Government Function) provides an upward departure

if the defendant’s conduct resulted in a significant disruption of a governmental

function.

(2) Section 5K2.14 (Public Welfare) provides an upward departure if national

security, public health, or safety was significantly endangered.

Is the factor adequately addressed through these upward departure provisions? Alternatively,

should these upward departure provisions be incorporated as enhancements in the guidelines to

which these offenses are referenced?

(G) Whether the Offense Involved a Computer Used by the United States

Government, a State, or a Local Government in Furtherance of National

Defense, National Security, or the Administration of Justice

Issue for Comment:

1. The Commission requests comment regarding the factor described in section 209(b)(7) of the

Act (whether the offense involved a computer used by the United States Government, a State, or a

local government in furtherance of national defense, national security, or the administration of

justice). The guidelines currently address this factor as follows:

(1) Section 2B1.1 provides a 2-level enhancement at subsection (b)(15)(A)(i) if an

offense under 18 U.S.C. § 1030 involved a computer system used by or for a

government entity in furtherance of the administration of justice, national defense,

or national security.

(2) Section 2B2.3(b)(1) provides a 2-level enhancement if a trespass occurred on a

computer system used by or for a government entity in furtherance of the

administration of justice, national defense, or national security.

(3) Section 2B3.2(b)(3)(B) provides a 3-level enhancement if the offense involved

preparation to carry out a threat of damage to a computer system used by or for a

government entity in furtherance of the administration of justice, national defense,

or national security.

(4) Section 2B1.1, Application Note 19, provides an upward departure in a case in

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which subsection (b)(15)(A)(iii) applies and the disruption to the critical

infrastructure is so substantial as to have a debilitating impact on national

security, national economic security, or national public health or safety.

(5) Section 5K2.7 (Disruption of Government Function) provides an upward departure

if the defendant’s conduct resulted in a significant disruption of a governmental

function.

(6) Section 5K2.14 (Public Welfare) provides an upward departure if national

security, public health, or safety was significantly endangered.

Is the factor adequately addressed through these provisions? Should the Commission increase

the amount, or the scope, of these enhancements? Should the Commission amend other

guidelines to which these offenses are referenced to address this factor, such as by adding

comparable enhancements? Should these upward departure provisions be incorporated as

enhancements in the guidelines to which these offenses are referenced?

(H) Whether the Offense Was Intended to, or Had the Effect of, Significantly

Interfering with or Disrupting a Critical Infrastructure

Issue for Comment:

1. The Commission requests comment regarding the factor described in section 209(b)(8) of the

Act (whether the offense was intended to, or had the effect of, significantly interfering with or

disrupting a critical infrastructure). The guidelines currently address this factor as follows:

(1) Section 2B1.1 provides a 2-level enhancement at subsection (b)(15)(A)(i) if an

offense under 18 U.S.C. § 1030 involved a computer system used to maintain or

operate a critical infrastructure, and a 6-level enhancement (and a minimum

offense level of 24) at subsection (b)(15)(A)(iii) if an offense under section 1030

caused a substantial disruption of a critical infrastructure.

(2) Section 2B2.3(b)(1) provides a 2-level enhancement if a trespass occurred on a

computer system used to maintain or operate a critical infrastructure.

(3) Section 2B3.2(b)(3)(B) provides a 3-level enhancement if the offense involved

preparation to carry out a threat of damage to such a computer system.

(4) Section 2B1.1, Application Note 19, provides an upward departure in a case in

which subsection (b)(15)(A)(iii) applies and the disruption to the critical

infrastructure is so substantial as to have a debilitating impact on national

security, national economic security, or national public health or safety.

(5) Section 5K2.14 (Public Welfare) provides an upward departure if national

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security, public health, or safety was significantly endangered.

Is the factor adequately addressed through these provisions? Should the Commission increase

the amount, or the scope, of these enhancements (or of the minimum offense level)? Should the

Commission amend other guidelines to which these offenses are referenced to address this factor,

such as by adding comparable enhancements (or minimum offense levels)? Should these upward

departure provisions be incorporated as enhancements in the guidelines to which these offenses

are referenced?

(I) Whether the Offense Was Intended to, or Had the Effect of, Creating a

Threat to Public Health or Safety, Causing Injury to any Person, or Causing

Death

Issue for Comment:

1. The Commission requests comment regarding the factor described in section 209(b)(9) of the

Act (whether the offense was intended to, or had the effect of, creating a threat to public health or

safety, causing injury to any person, or causing death). The guidelines currently address this

factor as follows:

(1) Section 2B1.1(b)(13) provides a 2-level enhancement, and a minimum offense level

of 14, if the offense involved the conscious or reckless risk of death or serious

bodily injury.

(2) Section 2B3.2(b)(3)(B) provides a 3-level enhancement if the offense involved

preparation to carry out a threat of serious bodily injury, and §2B3.2(b)(4)

provides an enhancement if the victim sustained bodily injury, with the amount of

the enhancement ranging from 2 to 6 levels according to the seriousness of the

injury.

(3) Section 2B5.3(b)(5) provides a 2-level enhancement, and a minimum offense level

of 13, if the offense involved the conscious or reckless risk of serous bodily injury. 

(4) Section 2B1.1, Application Note 19, provides an upward departure if the offense

caused or risked substantial non-monetary harm, or in a case in which subsection

(b)(15)(A)(iii) applies and the disruption to the critical infrastructure is so

substantial as to have a debilitating impact on national security, national

economic security, or national public health or safety.

(5) Section 5K2.14 (Public Welfare) provides an upward departure if national

security, public health, or safety was significantly endangered. 

Is the factor adequately addressed through these provisions? If not, should the Commission

increase the amount, or the scope, of these enhancements (or minimum offense levels)? Should

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the Commission amend other guidelines to address this factor, such as by adding comparable

enhancements (or minimum offense levels)? Should these upward departure provisions be

incorporated as enhancements in the guidelines to which these offenses are referenced?

(J) Whether the Defendant Purposefully Involved a Juvenile in the Commission

of the Offense

Issue for Comment:

1. The Commission requests comment regarding the factor described in section 209(b)(10) of the

Act (whether the defendant purposefully involved a juvenile in the commission of the offense). 

The guidelines currently address this factor in §3B1.4 (Using a Minor to Commit a Crime), which

provides a 2-level adjustment if the defendant used or attempted to use a minor to commit the

offense or assist in avoiding detection of, or apprehension for, the offense.

Is the factor adequately addressed by this adjustment? Should the Commission increase the

amount, or the scope, of this adjustment? Should the Commission amend other guidelines to

address this factor, such as by adding enhancements comparable to this adjustment?

(K) Whether the Defendant’s Intent to Cause Damage or Intent to Obtain

Personal Information Should Be Disaggregated and Considered Separately

from the Other Factors Set Forth in §2B1.1(b)(15)

Issue for Comment:

1. The Commission requests comment regarding the factor described in section 209(b)(11) of the

Act (whether the defendant’s intent to cause damage or intent to obtain personal information

should be disaggregated and considered separately from the other factors set forth in

§2B1.1(b)(15)).

For example, subsection (b)(15) currently applies only to offenses under 18 U.S.C. § 1030. 

Should the intent to cause damage or intent to obtain personal information be disaggregated only

within the context of 18 U.S.C. § 1030 cases? Should the defendant’s intent to cause damage or

intent to obtain personal information be a factor that applies to other offenses as well?

(L) Whether the Term “Victim” as Used in §2B1.1 Should Include Individuals

Whose Privacy Was Violated as a Result of the Offense in Addition to

Individuals Who Suffered Monetary Harm as a Result of the Offense

Issue for Comment:

1. The Commission requests comment regarding the factor described in section 209(b)(12) of the

Act (whether the term “victim” as used in §2B1.1 should include individuals whose privacy was

violated as a result of the offense in addition to individuals who suffered monetary harm as a

H:\OSC\MeetingMaterials\2009\January\IDTheft-v9 25
result of the offense). In many cases, non-monetary harm (such as a violation of privacy rights)

may be difficult or impossible to quantify. See, e.g., §2B1.1, comment. (backg’d.). For that

reason, non-monetary harm is typically accounted for by the guidelines through a minimum

offense level or an upward departure. 

The guidelines currently address this factor as follows:

(1) Section 2B1.1, Application Note 19, provides an upward departure if the offense

resulted in a substantial invasion of a privacy interest. It also provides an upward

departure if, in a case involving access devices or unlawfully produced or

unlawfully obtained means of identification, (i) the offense caused substantial

harm to the victim’s reputation or credit record, or the victim suffered a

substantial inconvenience related to repairing the victim’s reputation or a

damaged credit record; (ii) an individual whose means of identification the

defendant used to obtain unlawful means of identification is erroneously arrested

or denied a job because an arrest record has been made in that individual’s name;

or (iii) the defendant produced or obtained numerous means of identification with

respect to one individual and essentially assumed that individual’s identity.

(2) Section 2H3.1, Application Note 5, provides an upward departure if the offense

involved private information, or resulted in a substantial invasion of privacy

interest.

Is the factor adequately addressed through these upward departure provisions? Alternatively,

should these upward departure provisions be incorporated as enhancements in the guidelines to

which these offenses are referenced?

The definition of "victim" in §2B1.1, Application Note 1, currently applies only to a person who

sustained any part of the "actual loss" or to an individual who sustained bodily injury. Should

the Commission modify that definition to also apply to an individual whose privacy was violated? 

If so, what standard should be used to determine whether an individual’s privacy was violated? 

Should the guidelines seek to quantify the loss of such an individual, for purposes of the loss table

in subsection (b)(1)? If so, what standard would be used to quantify the loss? For example, in a

case in which a computer-related invasion of privacy occurs, should the guidelines include a

special rule for including and quantifying (or providing a stipulated amount for) the loss, such as

the special rule in Application Note 3(F)(i) relating to credit cards? If the Commission were to

revise the applicability of §2B1.1 to individuals whose privacy was violated, should the

Commission do so for all offenses under §2B1.1, or only for certain categories of cases, such as

cases involving identity theft, cases involving computers, or cases involving violations of certain

specified statutes?

Should the definition of "reasonably foreseeable pecuniary harm" in §2B1.1 be amended to

expressly include such harm as the reasonably foreseeable costs to the victim of correcting

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business, financial, and government records that erroneously indicate the victim’s responsibility

for particular transactions or applications; the reasonably foreseeable costs of repairing any

computer data, program, system, or information that was altered or impaired in connection with

the offense; and the value of the time reasonably spent by the victim in an attempt to remediate

the intended or actual harm incurred by the victim from the offense? Should the Commission

make such a change only for identity theft cases, such as by amending §2B1.1, Application Note

3(A)(v), to provide a special rule for identity theft cases? Alternatively, should the Commission

make such a change for all cases under §2B1.1, such as by amending Application Note 3(A)(iv),

or for some other category of cases?

(M) Whether the Defendant Disclosed Personal Information Obtained During the

Commission of the Offense

Issue for Comment:

1. The Commission requests comment regarding the factor described in section 209(b)(13) of the

Act (whether the defendant disclosed personal information obtained during the commission of the

offense). The guidelines currently address this factor as follows:

(1) Section 2B1.1, Application Note 19, which provides an upward departure if the

offense resulted in a substantial invasion of a privacy interest.

(2) Section 2H3.1, Application Note 5, provides an upward departure if the offense

involved private information or resulted in a substantial invasion of a privacy

interest.

(3) Section 2B1.1(b)(15)(A) provides a 2-level enhancement if an offense under 18

U.S.C. § 1030 involved an intent to obtain personal information.

(4) Section 2H3.1(b)(2)(B) provides a 10-level enhancement if an offense under 18

U.S.C. § 119 (protection of individuals performing certain official duties) involved

the use of a computer to make restricted personal information about a covered

person publicly available.

Is the factor adequately addressed through these provisions? Should the Commission increase

the amount, or the scope, of these enhancements? Should the Commission amend other

guidelines to which these offenses are referenced to address this factor, such as by adding

comparable enhancements? Should these upward departure provisions be incorporated as

enhancements in the guidelines to which these offenses are referenced?

If the Commission were to amend the guidelines to more adequately address this factor, what

should constitute a "disclosure", and what should constitute "personal information"?

(N) Other Issues Relating to the Directive Not Otherwise Addressed Above

H:\OSC\MeetingMaterials\2009\January\IDTheft-v9 27
Issues for Comment:

1. The Commission requests comment regarding section 209(a) of the Act, which directs the

Commission to review its guidelines and policy statements applicable to persons convicted of

offenses under 18 U.S.C. §§ 1028 (fraud and related activity in connection with identification

documents, authentication features, and information), 1028A (aggravated identity theft), 1030

(fraud and related activity in connection with computers), 2511 (interception and disclosure of

wire, oral, or electronic communications prohibited), and 2701 (unlawful access to stored

communications), 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. Section 209(b) of the Act directed the Commission, in

determining the appropriate sentence for those offenses, to “consider the extent to which the

current guidelines and policy statements may or may not adequately account for the following

factors in order to create an effective deterrent to computer crime and the theft or misuse of

personally identifiable data”, and provided a list of factors. Other than the specific factors set

forth in section 209(b), which are addressed more specifically in the issues for comment set forth

above, are there aggravating or mitigating circumstances existing in cases involving those

offenses that might justify additional amendments to the guidelines?

2. Should the Commission create a new guideline specifically for identity theft

cases? If so, what should the new guideline provide?

(O) Technical Amendments

Synopsis of Proposed Amendment: The proposed amendment makes two

technical changes. First, it corrects several places in the Guidelines Manual that

erroneously refer to subsection "(b)(15)(iii)" of §2B1.1; the reference should be to

subsection (b)(15)(A)(iii).

Second, it clarifies Application Note 2(B) of §3B1.3 (Abuse of Position of

Trust or Use of Special Skill). There is a concern that Application Note 2(B) is

internally inconsistent in a case in which the defendant, as discussed in the

example in Application Note 2(B)(i), is an employee of a state motor vehicle

department who knowingly issues without proper authority a driver’s license

based on false, incomplete, or misleading information. Arguably, to "obtain" or

"use" a means of identification (the terms used in the first sentence of Application

Note 2(B)) does not necessarily include to "issue" a means of identification (the

term used in the example in Application Note 2(B)(i)). The proposed amendment

clarifies the first sentence of Application Note 2(B) so that it expressly covers not

only obtaining or using, but also issuing or transferring, a means of identification. 

H:\OSC\MeetingMaterials\2009\January\IDTheft-v9 28
Proposed Amendment:

§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

* * *

Commentary

* * *

Application Notes:

* * *

13. Application of Subsection (b)(15).—

* * *

(B) Subsection (b)(15)(A)(iii).—If the same conduct that forms the basis for

an enhancement under subsection (b)(15)(A)(iii) is the only conduct that

forms the basis for an enhancement under subsection (b)(14)(B), do not

apply the enhancement under subsection (b)(14)(B).

* * *

19. Departure Considerations.—

* * *

(B) Upward Departure for Debilitating Impact on a Critical

Infrastructure.—An upward departure would be warranted in a case in

which subsection (b)(15)(A)(iii) applies and the disruption to the critical

infrastructure(s) is so substantial as to have a debilitating impact on

national security, national economic security, national public health or

safety, or any combination of those matters.

* * *

§3B1.3. Abuse of Position of Trust or Use of Special Skill

* * *

Commentary

H:\OSC\MeetingMaterials\2009\January\IDTheft-v9 29
Application Notes:

* * *

2. Application of Adjustment in Certain Circumstances.—Notwithstanding

Application Note 1, or any other provision of this guideline, an adjustment under

this guideline shall apply to the following:

* * *

(B) A defendant who exceeds or abuses the authority of his or her

position in order to obtain, transfer, or issue unlawfully, or use

without authority, any means of identification. "Means of

identification" has the meaning given that term in 18 U.S.C.

§ 1028(d)(7). The following are examples to which this subdivision

would apply: (i) an employee of a state motor vehicle department

who exceeds or abuses the authority of his or her position by

knowingly issuing a driver’s license based on false, incomplete, or

misleading information; (ii) a hospital orderly who exceeds or

abuses the authority of his or her position by obtaining or misusing

patient identification information from a patient chart; and (iii) a

volunteer at a charitable organization who exceeds or abuses the

authority of his or her position by obtaining or misusing

identification information from a donor’s file.

* * *

H:\OSC\MeetingMaterials\2009\January\IDTheft-v9 30
EXHIBIT B

PROPOSED AMENDMENT: RYAN HAIGHT ONLINE PHARMACY CONSUMER

PROTECTION ACT OF 2008

Synopsis of Proposed Amendment: This proposed amendment addresses changes made by the Ryan

Haight Online Pharmacy Consumer Protection Act of 2008, Public Law 110–465 (the “Act”). The

Act amends the Controlled Substances Act (21 U.S.C. § 801 et seq.) (the “CSA”) to create two new

offenses involving controlled substances. The first is 21 U.S.C. § 841(h) (Offenses Involving

Dispensing of Controlled Substances by Means of the Internet), which prohibits the delivery,

distribution, or dispensing of controlled substances over the Internet without a valid prescription. 

The applicable statutory maximum term of imprisonment is determined based upon the controlled

substance being distributed. The second new offense is 21 U.S.C. § 843(c)(2)(A)(Prohibiting the Use

of the Internet to Advertise for Sale a Controlled Substance), which prohibits the use of the Internet

to advertise for sale of a controlled substance. This offense has a statutory maximum term of

imprisonment of four years. 

In addition to the new offenses, the Act increased the statutory maximum terms of

imprisonment for all Schedule III controlled substance offenses (from 5 years to 10 years), for all

Schedule IV controlled substance offenses (from 3 years to 5 years), and for Schedule V controlled

substance offenses if the offense is committed after a prior drug conviction (from 2 years to 5 years). 

The Act added a sentencing enhancement for Schedule III controlled substance offenseswhere“death

or serious bodily injury results from the use of such substance.” The Act also includes 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 proposed amendment provides three options for incorporating the new sentencing

enhancement for cases involving Schedule III controlled substances where “death or serious bodily

injury results from the use of such substance.” The enhancement carries a statutory maximum term

of imprisonment of 15 years. Option 1 proposes a new alternative base offense level at §2D1.1 of

[12]-[34]. Option 2 proposes a new specific offense characteristic at §2D1.1 that provides an

enhancement of [4]-[11] levels; Option 2 also includes, as a sub-option, a minimum offense level of

[12]-[34]. Option 3 proposes a new invited upward departure provision for §2D1.1. 

Second, the proposed amendment revises the title of §2D3.1 (Regulatory Offenses Involving

Registration Numbers; Unlawful Advertising Relating to Schedule I Substances; Attempt or

Conspiracy)to reflect the new offense at 21 U.S.C. § 843(c)(2)(A)(Prohibiting the Use of the Internet

H:\OSC\MeetingMaterials\2009\January\ONLINEPHARMACY2D1'1.wpd 31
to Advertise for Sale a Controlled Substance). The new offense is already referenced in Appendix A

(Statutory Index) to §2D3.1.

Third, the proposed amendment amends Appendix A (Statutory Index)to refer the new offense

at 21 U.S.C. § 841(h) (Offenses Involving Dispensing of Controlled Substances by Means of the

Internet) to §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including

Possession with Intent to Commit These Offenses); Attempt or Conspiracy).

Several issues for comment are also included. 

Proposed Amendment:

§2D1.1. Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession

with Intent to Commit These Offenses); Attempt or Conspiracy 

(a) Base Offense Level (Apply the greatest):

(1) 43, if the defendant is convicted under 21 U.S.C. § 841(b)(1)(A), (b)(1)(B),

or (b)(1)(C), or 21 U.S.C. § 960(b)(1), (b)(2), or (b)(3), 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

(2) 38, if the defendant is convicted under 21 U.S.C. § 841(b)(1)(A), (b)(1)(B),

or (b)(1)(C), or 21 U.S.C. § 960(b)(1), (b)(2), or (b)(3), and the offense of

conviction establishes that death or serious bodily injury resulted from the

use of the substance; or 

[Option 1:

(3) [12]-[34], 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

(34)] the offense level specified in the Drug Quantity Table set forth in subsection

(c), except that if (A) the defendant receives an adjustment under §3B1.2

(Mitigating Role); and (B) the base offense level under subsection (c) is (i)

level 32, decrease by 2 levels; (ii) level 34 or level 36, decrease by 3 levels;

or (iii) level 38, decrease by 4 levels.

(b) Specific Offense Characteristics

(1) If a dangerous weapon (including a firearm) was possessed, increase by 2

levels.

H:\OSC\MeetingMaterials\2009\January\ONLINEPHARMACY2D1'1.wpd 32
(2) If the defendant unlawfully imported or exported a controlled substance

under circumstances in which (A) an aircraft other than a regularly

scheduled commercial air carrier was used to import or export the controlled

substance, or (B) the defendant acted as a pilot, copilot, captain, navigator,

flight officer, or any other operation officer aboard any craft or vessel

carrying a controlled substance, increase by 2 levels. If the resulting offense

level is less than level 26, increase to level 26.

(3) If the object of the offense was the distribution of a controlled substance in

a prison, correctional facility, or detention facility, increase by 2 levels.

(4) If (A) the offense involved the importation of amphetamine or

methamphetamine or themanufacture of amphetamine or methamphetamine

from listed chemicals that the defendant knew were imported unlawfully,

and (B) the defendant is not subject to an adjustment under §3B1.2

(Mitigating Role), increase by 2 levels.

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

(6) If the defendant, or a person for whose conduct the defendant is accountable

under §1B1.3 (Relevant Conduct), distributed a controlled substance through

mass-marketing by means of an interactive computer service, increase by 2

levels.

(7) If the offense involved the distribution of an anabolic steroid and a masking

agent, increase by 2 levels.

(8) If the defendant distributed an anabolic steroid to an athlete, increase by 2

levels.

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

2 levels.

(10) (Apply the greatest):

(A) If the offense involved (i) an unlawful discharge, emission, or

release into the environment of a hazardous or toxic substance; or

(ii) the unlawful transportation, treatment, storage, or disposal of a

hazardous waste, increase by 2 levels.

(B) If the defendant was convicted under 21 U.S.C. § 860a of

distributing, or possessing with intent to distribute,

methamphetamine on premises where a minor is present or resides,

increase by 2 levels. If the resulting offense level is less than level

14, increase to level 14. 

(C) If—

H:\OSC\MeetingMaterials\2009\January\ONLINEPHARMACY2D1'1.wpd 33
(i) the defendant was convicted under 21 U.S.C. § 860a of

manufacturing, or possessing with intent to manufacture,

methamphetamine on premises where a minor is present or

resides; or 

(ii) the offense involved the manufacture of amphetamine or

methamphetamine and the offense created a substantial risk

of harm to (I) human life other than a life described in

subdivision (D); or (II) the environment,

increase by 3 levels. If the resulting offense level is less than level

27, increase to level 27.

(D) If the offense (i) involved the manufacture of amphetamine or

methamphetamine; and (ii) created a substantial risk of harm to the

life of a minor or an incompetent, increase by 6 levels. If the

resulting offense level is less than level 30, increase to level 30.

[Option 2:

(11) 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, increase by [4]-[11]

levels. [If the resulting offense level is less than level [12]-[34], increase to

level [12]-[34].]

 

(1112)] If the defendant meets the criteria set forth in subdivisions (1)-(5) of

subsection (a) of §5C1.2 (Limitation on Applicability of Statutory Minimum

Sentences in Certain Cases), decrease by 2 levels.

[Subsection (c) (Drug Quantity Table) is set forth on the following pages.]

(d) Cross References

(1) If a victim was killed under circumstances that would constitute murder

under 18 U.S.C. § 1111 had such killing taken place within the territorial or

maritime jurisdiction of the United States, apply §2A1.1 (First Degree

Murder) or §2A1.2 (Second Degree Murder), as appropriate, if the resulting

offense level is greater than that determined under this guideline.

(2) If the defendant was convicted under 21 U.S.C. § 841(b)(7) (of distributing

a controlled substance with intent to commit a crime of violence), apply

§2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to the crime of

violence that the defendant committed, or attempted or intended to commit,

if the resulting offense level is greater than that determined above.

H:\OSC\MeetingMaterials\2009\January\ONLINEPHARMACY2D1'1.wpd 34
(e) Special Instruction

(1) If (A)subsection (d)(2) does not apply; and (B) the defendant committed, or

attempted to commit, a sexual offense against another individual by

distributing, with or without that individual’s knowledge, a controlled

substance to that individual, an adjustment under §3A1.1(b)(1) shall apply.

H:\OSC\MeetingMaterials\2009\January\ONLINEPHARMACY2D1'1.wpd 35
(c) DRUG QUANTITY TABLE

Controlled Substances and Quantity* Base Offense Level

(1) M 30 KG or more of Heroin;

M 150 KG or more of Cocaine;

M 4.5 KG or more of Cocaine Base;

M 30 KG or more of PCP, or 3 KG or more of PCP (actual);

M 15 KG or more of Methamphetamine, or 1.5 KG or more of 

 Methamphetamine (actual), or 1.5 KG or more of "Ice";

M 15 KG or more of Amphetamine, or 1.5 KG or more of Amphetamine (actual);

M 300 G or more of LSD;

M 12 KG or more of Fentanyl;

M 3 KG or more of a Fentanyl Analogue;

M 30,000 KG or more of Marihuana;

M 6,000 KG or more of Hashish;

M 600 KG or more of Hashish Oil;

M 30,000,000 units or more of Ketamine;

M 30,000,000 units or more of Schedule I or II Depressants;

M 1,875,000 units or more of Flunitrazepam.

Level 38

(2) M At least 10 KG but less than 30 KG of Heroin;

M At least 50 KG but less than 150 KG of Cocaine;

M At least 1.5 KG but less than 4.5 KG of Cocaine Base;

M At least 10 KG but less than 30 KG of PCP, or at least 1 KG but less than 3 

 KG of PCP (actual);

M At least 5 KG but less than 15 KG of Methamphetamine, or at least 500 G but 

less than 1.5 KG of Methamphetamine (actual), or at least 500 G but less than 

 1.5 KG of "Ice";

M At least 5 KG but less than 15 KG of Amphetamine, or at least 500 G but less 

 than 1.5 KG of Amphetamine (actual);

M At least 100 G but less than 300 G of LSD;

M At least 4 KG but less than 12 KG of Fentanyl;

M At least 1 KG but less than 3 KG of a Fentanyl Analogue;

M At least 10,000 KG but less than 30,000 KG of Marihuana;

M At least 2,000 KG but less than 6,000 KG of Hashish;

M At least 200 KG but less than 600 KG of Hashish Oil;

M At least 10,000,000 but less than 30,000,000 units of Ketamine;

M At least 10,000,000 but less than 30,000,000 units of Schedule I or II 

 Depressants;

M At least 625,000 but less than 1,875,000 units of Flunitrazepam.

Level 36

(3) M At least 3 KG but less than 10 KG of Heroin;

M At least 15 KG but less than 50 KG of Cocaine;

M At least 500 G but less than 1.5 KG of Cocaine Base;

M At least 3 KG but less than 10 KG of PCP, or at least 300 G but less than 1 

 KG of PCP (actual);

M At least 1.5 KG but less than 5 KG of Methamphetamine, or at least 150 G but 

less than 500 G of Methamphetamine (actual), or at least 150 G but less than 

 500 G of "Ice";

M At least 1.5 KG but less than 5 KG of Amphetamine, or at least 150 G but less 

 than 500 G of Amphetamine (actual);

M At least 30 G but less than 100 G of LSD;

M At least 1.2 KG but less than 4 KG of Fentanyl;

Level 34

H:\OSC\MeetingMaterials\2009\January\ONLINEPHARMACY2D1'1.wpd 36
M At least 300 G but less than 1 KG of a Fentanyl Analogue;

M At least 3,000 KG but less than 10,000 KG of Marihuana;

M At least 600 KG but less than 2,000 KG of Hashish;

M At least 60 KG but less than 200 KG of Hashish Oil;

M At least 3,000,000 but less than 10,000,000 units of Ketamine;

M At least 3,000,000 but less than 10,000,000 units of Schedule I or II Depressants;

M At least 187,500 but less than 625,000 units of Flunitrazepam.

(4) M At least 1 KG but less than 3 KG of Heroin;

M At least 5 KG but less than 15 KG of Cocaine;

M At least 150 G but less than 500 G of Cocaine Base;

M At least 1 KG but less than 3 KG of PCP, or at least 100 G but less than 300 G 

 of PCP (actual);

M At least 500 G but less than 1.5 KG of Methamphetamine, or at least 50 G but 

 less than 150 G of Methamphetamine (actual), or at least 50 G but less than 

 150 G of "Ice";

M At least 500 G but less than 1.5 KG of Amphetamine, or at least 50 G but less 

 than 150 G of Amphetamine (actual);

M At least 10 G but less than 30 G of LSD;

M At least 400 G but less than 1.2 KG of Fentanyl;

M At least 100 G but less than 300 G of a Fentanyl Analogue;

M At least 1,000 KG but less than 3,000 KG of Marihuana;

M At least 200 KG but less than 600 KG of Hashish;

M At least 20 KG but less than 60 KG of Hashish Oil;

M At least 1,000,000 but less than 3,000,000 units of Ketamine;

M At least 1,000,000 but less than 3,000,000 units of Schedule I or II Depressants;

M At least 62,500 but less than 187,500 units of Flunitrazepam.

Level 32

(5) M At least 700 G but less than 1 KG of Heroin;

M At least 3.5 KG but less than 5 KG of Cocaine;

M At least 50 G but less than 150 G of Cocaine Base;

M At least 700 G but less than 1 KG of PCP, or at least 70 G but less than 100 G 

 of PCP (actual);

M At least 350 G but less than 500 G of Methamphetamine, or at least 35 G but

less than 50 G of Methamphetamine (actual), or at least 35 G but less than 50 

 G of "Ice";

M At least 350 G but less than 500 G of Amphetamine, or at least 35 G but less 

 than 50 G of Amphetamine (actual);

M At least 7 G but less than 10 G of LSD;

M At least 280 G but less than 400 G of Fentanyl;

M At least 70 G but less than 100 G of a Fentanyl Analogue;

M At least 700 KG but less than 1,000 KG of Marihuana;

M At least 140 KG but less than 200 KG of Hashish;

M At least 14 KG but less than 20 KG of Hashish Oil;

M At least 700,000 but less than 1,000,000 units of Ketamine;

M At least 700,000 but less than 1,000,000 units of Schedule I or II Depressants;

M At least 43,750 but less than 62,500 units of Flunitrazepam.

Level 30

(6) M At least 400 G but less than 700 G of Heroin;

M At least 2 KG but less than 3.5 KG of Cocaine;

M At least 35 G but less than 50 G of Cocaine Base;

M At least 400 G but less than 700 G of PCP, or at least 40 G but less than 70 G 

 of PCP (actual);

M At least 200 G but less than 350 G of Methamphetamine, or at least 20 G but 

Level 28

H:\OSC\MeetingMaterials\2009\January\ONLINEPHARMACY2D1'1.wpd 37
 less than 35 G of Methamphetamine (actual), or at least 20 G but less than 35 

 G of "Ice";

M At least 200 G but less than 350 G of Amphetamine, or at least 20 G but less 

 than 35 G of Amphetamine (actual);

M At least 4 G but less than 7 G of LSD;

M At least 160 G but less than 280 G of Fentanyl; 

M At least 40 G but less than 70 G of a Fentanyl Analogue;

M At least 400 KG but less than 700 KG of Marihuana;

M At least 80 KG but less than 140 KG of Hashish;

M At least 8 KG but less than 14 KG of Hashish Oil;

M At least 400,000 but less than 700,000 units of Ketamine;

M At least 400,000 but less than 700,000 units of Schedule I or II Depressants;

M At least 25,000 but less than 43,750 units of Flunitrazepam.

(7) M At least 100 G but less than 400 G of Heroin;

M At least 500 G but less than 2 KG of Cocaine;

M At least 20 G but less than 35 G of Cocaine Base;

M At least 100 G but less than 400 G of PCP, or at least 10 G but less than 40 G 

 of PCP (actual);

M At least 50 G but less than 200 G of Methamphetamine, or at least 5 G but less

 than 20 G of Methamphetamine (actual), or at least 5 G but less than 20 G of 

 "Ice";

M At least 50 G but less than 200 G of Amphetamine, or at least 5 G but less than 

 20 G of Amphetamine (actual);

M At least 1 G but less than 4 G of LSD;

M At least 40 G but less than 160 G of Fentanyl; 

M At least 10 G but less than 40 G of a Fentanyl Analogue;

M At least 100 KG but less than 400 KG of Marihuana;

M At least 20 KG but less than 80 KG of Hashish;

M At least 2 KG but less than 8 KG of Hashish Oil;

M At least 100,000 but less than 400,000 units of Ketamine;

M At least 100,000 but less than 400,000 units of Schedule I or II Depressants;

M At least 6,250 but less than 25,000 units of Flunitrazepam.

Level 26

(8) M At least 80 G but less than 100 G of Heroin;

M At least 400 G but less than 500 G of Cocaine;

M At least 5 G but less than 20 G of Cocaine Base;

M At least 80 G but less than 100 G of PCP, or at least 8 G but less than 10 G of 

 PCP (actual);

M At least 40 G but less than 50 G of Methamphetamine, or at least 4 G but less 

 than 5 G of Methamphetamine (actual), or at least 4 G but less than 5 G of 

 "Ice";

M At least 40 G but less than 50 G of Amphetamine, or at least 4 G but less than 

 5 G of Amphetamine (actual);

M At least 800 MG but less than 1 G of LSD;

M At least 32 G but less than 40 G of Fentanyl; 

M At least 8 G but less than 10 G of a Fentanyl Analogue;

M At least 80 KG but less than 100 KG of Marihuana;

M At least 16 KG but less than 20 KG of Hashish;

M At least 1.6 KG but less than 2 KG of Hashish Oil;

M At least 80,000 but less than 100,000 units of Ketamine;

M At least 80,000 but less than 100,000 units of Schedule I or II Depressants;

M At least 5,000 but less than 6,250 units of Flunitrazepam.

Level 24

H:\OSC\MeetingMaterials\2009\January\ONLINEPHARMACY2D1'1.wpd 38
(9) M At least 60 G but less than 80 G of Heroin;

M At least 300 G but less than 400 G of Cocaine;

M At least 4 G but less than 5 G of Cocaine Base;

M At least 60 G but less than 80 G of PCP, or at least 6 G but less than 8 G of 

 PCP (actual);

M At least 30 G but less than 40 G of Methamphetamine, or at least 3 G but less 

 than 4 G of Methamphetamine (actual), or at least 3 G but less than 4 G of 

 "Ice";

M At least 30 G but less than 40 G of Amphetamine, or at least 3 G but less than 

 4 G of Amphetamine (actual);

M At least 600 MG but less than 800 MG of LSD;

M At least 24 G but less than 32 G of Fentanyl; 

M At least 6 G but less than 8 G of a Fentanyl Analogue;

M At least 60 KG but less than 80 KG of Marihuana;

M At least 12 KG but less than 16 KG of Hashish;

M At least 1.2 KG but less than 1.6 KG of Hashish Oil;

M At least 60,000 but less than 80,000 units of Ketamine;

M At least 60,000 but less than 80,000 units of Schedule I or II Depressants;

M At least 3,750 but less than 5,000 units of Flunitrazepam.

Level 22

(10) M At least 40 G but less than 60 G of Heroin;

M At least 200 G but less than 300 G of Cocaine;

M At least 3 G but less than 4 G of Cocaine Base;

M At least 40 G but less than 60 G of PCP, or at least 4 G but less than 6 G of 

 PCP (actual);

M At least 20 G but less than 30 G of Methamphetamine, or at least 2 G but less 

 than 3 G of Methamphetamine (actual), or at least 2 G but less than 3 G of 

 "Ice";

M At least 20 G but less than 30 G of Amphetamine, or at least 2 G but less than 

 3 G of Amphetamine (actual);

M At least 400 MG but less than 600 MG of LSD;

M At least 16 G but less than 24 G of Fentanyl; 

M At least 4 G but less than 6 G of a Fentanyl Analogue;

M At least 40 KG but less than 60 KG of Marihuana;

M At least 8 KG but less than 12 KG of Hashish;

M At least 800 G but less than 1.2 KG of Hashish Oil;

M At least 40,000 but less than 60,000 units of Ketamine;

M At least 40,000 but less than 60,000 units of Schedule I or II Depressants;

M 40,000 or more units of Schedule III substances (except Ketamine);

M At least 2,500 but less than 3,750 units of Flunitrazepam.

Level 20

(11) M At least 20 G but less than 40 G of Heroin;

M At least 100 G but less than 200 G of Cocaine;

M At least 2 G but less than 3 G of Cocaine Base;

M At least 20 G but less than 40 G of PCP, or at least 2 G but less than 4 G of 

 PCP (actual);

M At least 10 G but less than 20 G of Methamphetamine, or at least 1 G but less 

 than 2 G of Methamphetamine (actual), or at least 1 G but less than 2 G of 

 "Ice";

M At least 10 G but less than 20 G of Amphetamine, or at least 1 G but less than 

 2 G of Amphetamine (actual);

M At least 200 MG but less than 400 MG of LSD;

M At least 8 G but less than 16 G of Fentanyl; 

M At least 2 G but less than 4 G of a Fentanyl Analogue;

Level 18

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M At least 20 KG but less than 40 KG of Marihuana;

M At least 5 KG but less than 8 KG of Hashish;

M At least 500 G but less than 800 G of Hashish Oil;

M At least 20,000 but less than 40,000 units of Ketamine;

M At least 20,000 but less than 40,000 units of Schedule I or II Depressants;

M At least 20,000 but less than 40,000 units of Schedule III substances (except 

 Ketamine);

M At least 1,250 but less than 2,500 units of Flunitrazepam.

(12) M At least 10 G but less than 20 G of Heroin;

M At least 50 G but less than 100 G of Cocaine;

M At least 1 G but less than 2 G of Cocaine Base;

M At least 10 G but less than 20 G of PCP, or at least 1 G but less than 2 G of 

 PCP (actual);

M At least 5 G but less than 10 G of Methamphetamine, or at least 500 MG but 

 less than 1 G of Methamphetamine (actual), or at least 500 MG but less than 1 

 G of "Ice";

M At least 5 G but less than 10 G of Amphetamine, or at least 500 MG but less 

 than 1 G of Amphetamine (actual);

M At least 100 MG but less than 200 MG of LSD;

M At least 4 G but less than 8 G of Fentanyl; 

M At least 1 G but less than 2 G of a Fentanyl Analogue;

M At least 10 KG but less than 20 KG of Marihuana;

M At least 2 KG but less than 5 KG of Hashish;

M At least 200 G but less than 500 G of Hashish Oil;

M At least 10,000 but less than 20,000 units of Ketamine;

M At least 10,000 but less than 20,000 units of Schedule I or II Depressants;

M At least 10,000 but less than 20,000 units of Schedule III substances (except 

 Ketamine);

M At least 625 but less than 1,250 units of Flunitrazepam.

Level 16

(13) M At least 5 G but less than 10 G of Heroin;

M At least 25 G but less than 50 G of Cocaine;

M At least 500 MG but less than 1 G of Cocaine Base;

M At least 5 G but less than 10 G of PCP, or at least 500 MG but less than 1 G of 

 PCP (actual);

M At least 2.5 G but less than 5 G of Methamphetamine, or at least 250 MG but 

 less than 500 MG of Methamphetamine (actual), or at least 250 MG but less 

 than 500 MG of "Ice";

M At least 2.5 G but less than 5 G of Amphetamine, or at least 250 MG but less 

 than 500 MG of Amphetamine (actual);

M At least 50 MG but less than 100 MG of LSD;

M At least 2 G but less than 4 G of Fentanyl; 

M At least 500 MG but less than 1 G of a Fentanyl Analogue;

M At least 5 KG but less than 10 KG of Marihuana;

M At least 1 KG but less than 2 KG of Hashish;

M At least 100 G but less than 200 G of Hashish Oil;

M At least 5,000 but less than 10,000 units of Ketamine;

M At least 5,000 but less than 10,000 units of Schedule I or II Depressants;

M At least 5,000 but less than 10,000 units of Schedule III substances (except 

 Ketamine);

M At least 312 but less than 625 units of Flunitrazepam.

Level 14

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(14) M Less than 5 G of Heroin; 

M Less than 25 G of Cocaine;

M Less than 500 MG of Cocaine Base;

M Less than 5 G of PCP, or less than 500 MG of PCP (actual);

M Less than 2.5 G of Methamphetamine, or less than 250 MG of 

 Methamphetamine (actual), or less than 250 MG of "Ice";

M Less than 2.5 G of Amphetamine, or less than 250 MG of Amphetamine 

 (actual); 

M Less than 50 MG of LSD;

M Less than 2 G of Fentanyl; 

M Less than 500 MG of a Fentanyl Analogue;

M At least 2.5 KG but less than 5 KG of Marihuana;

M At least 500 G but less than 1 KG of Hashish;

M At least 50 G but less than 100 G of Hashish Oil;

M At least 2,500 but less than 5,000 units of Ketamine;

M At least 2,500 but less than 5,000 units of Schedule I or II Depressants;

M At least 2,500 but less than 5,000 units of Schedule III substances (except 

 Ketamine);

M At least 156 but less than 312 units of Flunitrazepam;

M 40,000 or more units of Schedule IV substances (except Flunitrazepam).

Level 12

(15) M At least 1 KG but less than 2.5 KG of Marihuana; 

M At least 200 G but less than 500 G of Hashish;

M At least 20 G but less than 50 G of Hashish Oil;

M At least 1,000 but less than 2,500 units of Ketamine;

M At least 1,000 but less than 2,500 units of Schedule I or II Depressants;

M At least 1,000 but less than 2,500 units of Schedule III substances (except 

 Ketamine);

M At least 62 but less than 156 units of Flunitrazepam;

M At least 16,000 but less than 40,000 units of Schedule IV substances (except 

 Flunitrazepam).

Level 10

(16) M At least 250 G but less than 1 KG of Marihuana; 

M At least 50 G but less than 200 G of Hashish;

M At least 5 G but less than 20 G of Hashish Oil;

M At least 250 but less than 1,000 units of Ketamine;

M At least 250 but less than 1,000 units of Schedule I or II Depressants;

M At least 250 but less than 1,000 units of Schedule III substances (except 

 Ketamine);

M Less than 62 units of Flunitrazepam;

M At least 4,000 but less than 16,000 units of Schedule IV substances (except 

 Flunitrazepam);

M 40,000 or more units of Schedule V substances.

Level 8

(17) M Less than 250 G of Marihuana; 

M Less than 50 G of Hashish;

M Less than 5 G of Hashish Oil;

M Less than 250 units of Ketamine;

M Less than 250 units of Schedule I or II Depressants;

M Less than 250 units of Schedule III substances (except Ketamine);

M Less than 4,000 units of Schedule IV substances (except Flunitrazepam);

M Less than 40,000 units of Schedule V substances.

Level 6

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*Notes to Drug Quantity Table:

(A) Unless otherwise specified, the weight of a controlled substance set forth in the table refers to the

entire weight of any mixture or substance containing a detectable amount of the controlled substance. 

If a mixture or substance contains more than one controlled substance, the weight of the entire

mixture or substance is assigned to the controlled substance that results in the greater offense level. 

(B) The terms "PCP (actual)", "Amphetamine (actual)", and "Methamphetamine (actual)" refer to the

weight of the controlled substance, itself, contained in the mixture or substance. For example, a

mixture weighing 10 grams containing PCP at 50% purity contains 5 grams of PCP (actual). In the

case of a mixture or substance containing PCP, amphetamine, or methamphetamine, use the offense

level determined by the entire weight of the mixture or substance, or the offense level determined by

the weight of the PCP (actual), amphetamine (actual), or methamphetamine (actual), whichever is

greater.

The term "Oxycodone (actual)" refers to the weight of the controlled substance, itself, contained in

the pill, capsule, or mixture.

(C) "Ice," forthe purposes of this guideline, means a mixture orsubstance containing d-methamphetamine

hydrochloride of at least 80% purity.

(D) "Cocaine base," for the purposes of this guideline, means "crack." "Crack" is the street name for a

form of cocaine base, usually prepared by processing cocaine hydrochloride and sodium bicarbonate,

and usually appearing in a lumpy, rocklike form.

(E) In the case of an offense involving marihuana plants, treat each plant, regardless of sex, as equivalent

to 100 G of marihuana. Provided, however, that if the actual weight of the marihuana is greater, use

the actual weight of the marihuana.

(F) In the case of Schedule I or II Depressants (except gamma-hydroxybutyric acid), Schedule III

substances, Schedule IV substances, and Schedule V substances, one "unit" means one pill, capsule,

or tablet. If the substance (except gamma-hydroxybutyric acid) is in liquid form, one "unit" means

0.5 ml. For an anabolic steroid that is not in a pill, capsule, tablet, or liquid form (e.g., patch, topical

cream, aerosol), the court shall determine the base offense level using a reasonable estimate of the

quantity of anabolic steroid involved in the offense. In making a reasonable estimate, the court shall

consider that each 25 mg of an anabolic steroid is one "unit".

(G) In the case of LSD on a carrier medium (e.g., a sheet of blotter paper), do not use the weight of the

LSD/carrier medium. Instead, treat each dose of LSD on the carrier medium as equal to 0.4 mg of

LSD for the purposes of the Drug Quantity Table.

(H) Hashish, for the purposes of this guideline, means a resinous substance of cannabis that includes

(i) one or more of the tetrahydrocannabinols(as listed in 21 C.F.R. § 1308.11(d)(25)), (ii) at least two

of the following: cannabinol, cannabidiol, or cannabichromene, and (iii) fragments of plant material

(such as cystolith fibers).

(I) Hashish oil, for the purposes of this guideline, means a preparation of the soluble cannabinoids

derived from cannabis that includes (i) one or more of the tetrahydrocannabinols (as listed in 21

C.F.R. § 1308.11(d)(25)), (ii) at least two of the following: cannabinol, cannabidiol, or

cannabichromene, and (iii) is essentially free of plant material (e.g., plant fragments). Typically,

hashish oil is a viscous, dark colored oil, but it can vary from a dry resin to a colorless liquid.

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Commentary

Statutory Provisions: 21 U.S.C. §§ 841(a), (b)(1)-(3), (7), (g), 860a, 865, 960(a), (b); 49 U.S.C. § 46317(b). 

For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1. "Mixture or substance" as used in this guideline has the same meaning as in 21 U.S.C. § 841, except

as expressly provided. Mixture or substance does not include materials that must be separated from

the controlled substance before the controlled substance can be used. Examples of such materials

include the fiberglass in a cocaine/fiberglass bonded suitcase, beeswax in a cocaine/beeswax statue,

and waste water from an illicit laboratory used to manufacture a controlled substance. If such

material cannot readily be separated from the mixture or substance that appropriately is counted in

the Drug Quantity Table, the court may use any reasonable method to approximate the weight of the

mixture or substance to be counted.

An upward departure nonetheless may be warranted when the mixture or substance counted in the

Drug Quantity Table is combined with other, non-countable material in an unusually sophisticated

manner in order to avoid detection.

Similarly, in the case of marihuana having a moisture content that renders the marihuana unsuitable

for consumption without drying (this might occur, for example, with a bale of rain-soaked marihuana

or freshly harvested marihuana that had not been dried), an approximation of the weight of the

marihuana without such excess moisture content is to be used.

2. The statute and guideline also apply to "counterfeit" substances,which are defined in 21 U.S.C. § 802

to mean controlled substances that are falsely labeled so as to appear to have been legitimately

manufactured or distributed.

3. Definitions of "firearm" and "dangerous weapon" are found in the Commentary to §1B1.1

(Application Instructions). The enhancement for weapon possession reflects the increased danger

of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon

was present, unless it is clearly improbable that the weapon was connected with the offense. For

example, the enhancement would not be applied if the defendant, arrested at his residence, had an

unloaded hunting rifle in the closet. The enhancement also applies to offenses that are referenced

to §2D1.1; see §§2D1.2(a)(1) and (2), 2D1.5(a)(1), 2D1.6, 2D1.7(b)(1), 2D1.8, 2D1.11(c)(1),

2D1.12(c)(1), and 2D2.1(b)(1).

4. Distribution of "a small amount of marihuana for no remuneration", 21 U.S.C. § 841(b)(4), istreated

as simple possession, to which §2D2.1 applies.

5. Analogues and Controlled Substances Not Referenced in this Guideline.—Any reference to a

particular controlled substance in these guidelines includes all salts, isomers, all salts of isomers,

and, except as otherwise provided, any analogue of that controlled substance. Any reference to

cocaine includes ecgonine and coca leaves, except extracts of coca leaves from which cocaine and

ecgonine have been removed. For purposes of this guideline "analogue" has the meaning given the

term "controlled substance analogue" in 21 U.S.C. § 802(32). In determining the appropriate

sentence, the court also may consider whether the same quantity of analogue produces a greater

effect on the central nervous system than the controlled substance for which it is an analogue.

In the case of a controlled substance that is not specifically referenced in this guideline, determine

the base offense level using the marihuana equivalency of the most closely related controlled

substance referenced in this guideline. In determining the most closely related controlled substance,

the court shall, to the extent practicable, consider the following:

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(A) Whether the controlled substance not referenced in this guideline has a chemical

structure that is substantially similar to a controlled substance referenced in this

guideline.

(B) Whether the controlled substance not referenced in this guideline has a stimulant,

depressant, or hallucinogenic effect on the central nervous system that is

substantially similar to the stimulant, depressant, or hallucinogenic effect on the

central nervous system of a controlled substance referenced in this guideline.

(C) Whether a lesser or greater quantity of the controlled substance not referenced in

this guideline is needed to produce a substantially similar effect on the central

nervous system as a controlled substance referenced in this guideline.

6. Where there are multiple transactions or multiple drug types, the quantities of drugs are to be added. 

Tables for making the necessary conversions are provided below.

7. Where a mandatory (statutory) minimum sentence applies, this mandatory minimum sentence may

be "waived" and a lower sentence imposed (including a downward departure), as provided in 28

U.S.C. § 994(n), by reason of a defendant’s "substantial assistance in the investigation or prosecution

of another person who has committed an offense." See §5K1.1 (Substantial Assistance to

Authorities). In addition, 18 U.S.C. § 3553(f) provides an exception to the applicability of mandatory

minimum sentences in certain cases. See §5C1.2 (Limitation on Applicability of Statutory Minimum

Sentences in Certain Cases).

8. Interaction with §3B1.3.—A defendant who used special skills in the commission of the offense may

be subject to an adjustment under §3B1.3 (Abuse of Position of Trust or Use of Special Skill). 

Certain professionals often occupy essential positions in drug trafficking schemes. These

professionals include doctors, pilots, boat captains, financiers, bankers, attorneys, chemists,

accountants, and otherswhose special skill, trade, profession, or position may be used to significantly

facilitate the commission of a drug offense. Additionally, an enhancement under §3B1.3 ordinarily

would apply in a case in which the defendant used his or her position as a coach to influence an

athlete to use an anabolic steroid.

Note, however, that if an adjustment from subsection (b)(2)(B) applies, do not apply §3B1.3 (Abuse

of Position of Trust or Use of Special Skill).

9. Trafficking in controlled substances, compounds, or mixtures of unusually high purity may warrant

an upward departure, except in the case of PCP, amphetamine, methamphetamine, or oxycodone for

which the guideline itself provides for the consideration of purity (see the footnote to the Drug

Quantity Table). The purity of the controlled substance, particularly in the case of heroin, may be

relevant in the sentencing process because it is probative of the defendant’s role or position in the

chain of distribution. Since controlled substances are often diluted and combined with other

substances as they pass down the chain of distribution, the fact that a defendant is in possession of

unusually pure narcotics may indicate a prominent role in the criminal enterprise and proximity to

the source of the drugs. As large quantities are normally associated with high purities, this factor

is particularly relevant where smaller quantities are involved. 

10. Use of Drug Equivalency Tables.—

(A) Controlled Substances Not Referenced in Drug Quantity Table.—The Commission has used

the sentences provided in, and equivalences derived from, the statute (21 U.S.C. § 841(b)(1)),

as the primary basis for the guideline sentences. The statute, however, provides direction

only for the more common controlled substances, i.e., heroin, cocaine, PCP,

methamphetamine, fentanyl, LSD and marihuana. In the case of a controlled substance that

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is not specifically referenced in the Drug Quantity Table, determine the base offense level

as follows:

(i) Use the Drug Equivalency Tables to convert the quantity of the controlled substance

involved in the offense to its equivalent quantity of marihuana. 

(ii) Find the equivalent quantity of marihuana in the Drug Quantity Table.

(iii) Use the offense level that corresponds to the equivalent quantity of marihuana as the

base offense level for the controlled substance involved in the offense. 

(See also Application Note 5.) For example, in the Drug Equivalency Tables set forth in this

Note, 1 gm of a substance containing oxymorphone, a Schedule I opiate, converts to an

equivalent quantity of 5 kg of marihuana. In a case involving 100 gm of oxymorphone, the

equivalent quantity of marihuana would be 500 kg, which corresponds to a base offense level

of 28 in the Drug Quantity Table.

(B) Combining Differing ControlledSubstances (Except Cocaine Base).—The DrugEquivalency

Tables also provide a meansfor combining differing controlled substances to obtain a single

offense level. In each case, convert each of the drugs to its marihuana equivalent, add the

quantities, and look up the total in the Drug Quantity Table to obtain the combined offense

level. To determine a single offense level in a case involving cocaine base and other

controlled substances, see subdivision (D) of this note.

For certain types of controlled substances, the marihuana equivalencies in the Drug

Equivalency Tables are "capped" at specified amounts(e.g., the combined equivalent weight

of all Schedule V controlled substances shall not exceed 999 grams of marihuana). Where

there are controlled substances from more than one schedule (e.g., a quantity of a Schedule

IV substance and a quantity of a Schedule V substance), determine the marihuana

equivalency for each schedule separately (subject to the cap, if any, applicable to that

schedule). Then add the marihuana equivalencies to determine the combined marihuana

equivalency (subject to the cap, if any, applicable to the combined amounts).

Note: Because of the statutory equivalences, the ratios in the Drug Equivalency Tables do

not necessarily reflect dosages based on pharmacological equivalents. 

(C) Examples for Combining Differing Controlled Substances (Except Cocaine Base).— 

(i) The defendant is convicted of selling 70 grams of a substance containing PCP

(Level 22) and 250 milligrams of a substance containing LSD (Level 18). The PCP

converts to 70 kilograms of marihuana; the LSD converts to 25 kilograms of

marihuana. The total is therefore equivalent to 95 kilograms of marihuana, for

which the Drug Quantity Table provides an offense level of 24.

(ii) The defendant is convicted of selling 500 grams of marihuana (Level 8) and five

kilograms of diazepam (Level 8). The diazepam, a Schedule IV drug, is equivalent

to 625 grams of marihuana. The total, 1.125 kilograms of marihuana, has an offense

level of 10 in the Drug Quantity Table.

(iii) The defendant is convicted of selling 80 grams of cocaine (Level 16) and five

kilograms of marihuana (Level 14). The cocaine is equivalent to 16 kilograms of

marihuana. The total is therefore equivalent to 21 kilograms of marihuana, which

has an offense level of 18 in the Drug Quantity Table.

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(iv) The defendant is convicted of selling 56,000 units of a Schedule III substance,

100,000 units of a Schedule IV substance, and 200,000 units of a Schedule V

substance. The marihuana equivalency for the Schedule III substance is 56

kilograms of marihuana (below the cap of 59.99 kilograms of marihuana set forth

as the maximum equivalent weight for Schedule III substances). The marihuana

equivalency for the Schedule IV substance is subject to a cap of 4.99 kilograms of

marihuana set forth as the maximum equivalent weight for Schedule IV substances

(without the cap it would have been 6.25 kilograms). The marihuana equivalency

for the Schedule V substance is subject to the cap of 999 grams of marihuana set

forth as the maximum equivalent weight for Schedule V substances (without the cap

it would have been 1.25 kilograms). The combined equivalent weight, determined

by adding together the above amounts, is subject to the cap of 59.99 kilograms of

marihuana set forth as the maximum combined equivalent weight for Schedule III,

IV, and V substances. Without the cap, the combined equivalent weight would have

been 61.99 (56 + 4.99 + .999) kilograms.

(D) Determining Base Offense Level in Offenses Involving Cocaine Base and Other Controlled

Substances.—

(i) In General.—Except as provided in subdivision (ii), if the offense involves cocaine

base ("crack") and one or more other controlled substance, determine the combined

offense level as provided by subdivision (B) of this note, and reduce the combined

offense level by 2 levels.

(ii) Exceptions to 2-level Reduction.—The 2-level reduction provided in subdivision (i)

shall not apply in a case in which:

(I) the offense involved 4.5 kg or more, or less than 250 mg, of cocaine base;

or 

(II) the 2-level reduction results in a combined offense level that is less than the

combined offense level that would apply under subdivision (B) of this note

if the offense involved only the other controlled substance(s) (i.e., the

controlled substance(s) other than cocaine base). 

(iii) Examples.—

(I) The case involves 20 gm of cocaine base, 1.5 kg of cocaine, and 10 kg of

marihuana. Under the Drug Equivalency Tables in subdivision (E) of this

note, 20 gm of cocaine base converts to 400 kg of marihuana (20 gm x 20 kg

= 400 kg), and 1.5 kg of cocaine converts to 300 kg of marihuana (1.5 kg x

200 gm = 300 kg), which, when added to the 10 kg of marihuana results in

a combined equivalent quantity of 710 kg of marihuana. Under the Drug

Quantity Table, 710 kg of marihuana corresponds to a combined offense

level of 30, which is reduced by two levels to level 28. For the cocaine and

marihuana, their combined equivalent quantity of 310 kg of marihuana

corresponds to a combined offense level of 26 under the Drug Quantity

Table. Because the combined offense level for all three drug types after the

2-level reduction is not less than the combined base offense level for the

cocaine and marihuana, the combined offense level for all three drug types

remains level 28. 

(II) The case involves 5 gm of cocaine base and 6 kg of heroin. Under the Drug

Equivalency Tables in subdivision (E) of this note, 5 gm of cocaine base

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converts to 100 kg of marihuana (5 gm x 20 kg = 100 kg), and 6 kg of heroin

converts to 6,000 kg of marihuana (6,000 gm x 1 kg = 6,000 kg), which,

when added together results in a combined equivalent quantity of 6,100 kg

of marihuana. Under the Drug Quantity Table, 6,100 kg of marihuana

corresponds to a combined offense level of 34, which is reduced by two

levels to 32. For the heroin, the 6,000 kg of marihuana corresponds to an

offense level 34 under the Drug Quantity Table. Because the combined

offense level for the two drug types after the 2-level reduction is less than

the offense level for the heroin, the reduction does not apply and the

combined offense level for the two drugs remains level 34.

(E) Drug Equivalency Tables.—

Schedule I or II Opiates*

1 gm of Heroin = 1 kg of marihuana

1 gm of Alpha-Methylfentanyl = 10 kg of marihuana

1 gm of Dextromoramide = 670 gm of marihuana

1 gm of Dipipanone = 250 gm of marihuana

1 gm of 3-Methylfentanyl = 10 kg of marihuana

1 gm of 1-Methyl-4-phenyl-4-propionoxypiperidine/MPPP = 700 gm of marihuana

1 gm of 1-(2-Phenylethyl)-4-phenyl-4-acetyloxypiperidine/

 PEPAP = 700 gm of marihuana

1 gm of Alphaprodine = 100 gm of marihuana

1 gm of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-

 piperidinyl] Propanamide) = 2.5 kg of marihuana

1 gm of Hydromorphone/Dihydromorphinone = 2.5 kg of marihuana

1 gm of Levorphanol = 2.5 kg of marihuana

1 gm of Meperidine/Pethidine = 50 gm of marihuana

1 gm of Methadone = 500 gm of marihuana

1 gm of 6-Monoacetylmorphine = 1 kg of marihuana

1 gm of Morphine = 500 gm of marihuana

1 gm of Oxycodone (actual) = 6700 gm of marihuana

1 gm of Oxymorphone = 5 kg of marihuana

1 gm of Racemorphan = 800 gm of marihuana

1 gm of Codeine = 80 gm of marihuana

1 gm of Dextropropoxyphene/Propoxyphene-Bulk = 50 gm of marihuana

1 gm of Ethylmorphine = 165 gm of marihuana

1 gm of Hydrocodone/Dihydrocodeinone = 500 gm of marihuana

1 gm of Mixed Alkaloids of Opium/Papaveretum = 250 gm of marihuana

1 gm of Opium = 50 gm of marihuana

1 gm of Levo-alpha-acetylmethadol (LAAM)= 3 kg of marihuana

*Provided, that the minimum offense level from the Drug Quantity Table for any of these controlled substances

individually, or in combination with another controlled substance, is level 12.

Cocaine and Other Schedule I and II Stimulants (and their immediate precursors)*

1 gm of Cocaine = 200 gm of marihuana

1 gm of N-Ethylamphetamine = 80 gm of marihuana

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1 gm of Fenethylline = 40 gm of marihuana

1 gm of Amphetamine = 2 kg of marihuana

1 gm of Amphetamine (Actual) = 20 kg of marihuana

1 gm of Methamphetamine = 2 kg of marihuana

1 gm of Methamphetamine (Actual) = 20 kg of marihuana

1 gm of "Ice" = 20 kg of marihuana

1 gm of Khat = .01 gm of marihuana

1 gm of 4-Methylaminorex ("Euphoria")= 100 gm of marihuana

1 gm of Methylphenidate (Ritalin)= 100 gm of marihuana

1 gm of Phenmetrazine = 80 gm of marihuana

1 gm Pheny 2lacetone/P P (when possessed for the purpose

 of manufacturing methamphetamine) = 416 gm of marihuana

1 gm Pheny 2lacetone/P P (in any other case) = 75 gm of marihuana

1 gm Cocaine Base (‘Crack’) = 20 kg of marihuana

1 gm of Aminorex = 100 gm of marihuana

1 gm of Methcathinone = 380 gm of marihuana

1 gm of N-N-Dimethylamphetamine = 40 gm of marihuana

*Provided, that the minimum offense level from the Drug Quantity Table for any of these controlled substances

individually, or in combination with another controlled substance, is level 12.

LSD, PCP, and Other Schedule I and II Hallucinogens (and their immediate precursors)*

1 gm of Bufotenine = 70 gm of marihuana

1 gm of D-Lysergic Acid Diethylamide/Lysergide/LSD = 100 kg of marihuana

1 gm of Diethyltryptamine/DET = 80 gm of marihuana

1 gm of Dimethyltryptamine/DMT = 100 gm of marihuana

1 gm of Mescaline = 10 gm of marihuana

1 gm of Mushrooms containing Psilocin and/or 

 Psilocybin (Dry) = 1 gm of marihuana

1 gm of Mushrooms containing Psilocin and/or 

 Psilocybin (Wet) = 0.1 gm of marihuana

1 gm of Peyote (Dry) = 0.5 gm of marihuana

1 gm of Peyote (Wet) = 0.05 gm of marihuana

1 gm of Phencyclidine/PCP = 1 kg of marihuana

1 gm of Phencyclidine (actual) /PCP (actual) = 10 kg of marihuana

1 gm of Psilocin = 500 gm of marihuana

1 gm of Psilocybin = 500 gm of marihuana

1 gm of Pyrrolidine Analog of Phencyclidine/PHP = 1 kg of marihuana

1 gm of Thiophene Analog of Phencyclidine/TCP = 1 kg of marihuana

1 gm of 4-Bromo-2,5-Dimethoxyamphetamine/DOB = 2.5 kg of marihuana

1 gm of 2,5-Dimethoxy-4-methylamphetamine/DOM = 1.67 kg of marihuana

1 gm of 3,4-Methylenedioxyamphetamine/MDA = 500 gm of marihuana

1 gm of 3,4-Methylenedioxymethamphetamine/MDMA = 500 gm of marihuana

1 gm of 3,4-Methylenedioxy-N-ethylamphetamine/MDEA= 500 gm of marihuana

1 gm of Paramethoxymethamphetamine/PMA = 500 gm of marihuana

1 gm of 1-Piperidinocyclohexanecarbonitrile/PCC = 680 gm of marihuana

1 gm of N-ethyl-1-phenylcyclohexylamine (PCE) = 1 kg of marihuana

*Provided, that the minimum offense level from the Drug Quantity Table for any of these controlled substances

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individually, or in combination with another controlled substance, is level 12.

Schedule I Marihuana

1 gm of Marihuana/Cannabis, granulated, powdered, etc. =1 gm of marihuana

1 gm of Hashish Oil = 50 gm of marihuana

1 gm of Cannabis Resin or Hashish = 5 gm of marihuana

1 gm of Tetrahydrocannabinol, Organic = 167 gm of marihuana

1 gm of Tetrahydrocannabinol, Synthetic = 167 gm of marihuana

Flunitrazepam ** 

1 unit of Flunitrazepam = 16 gm of marihuana

**Provided, that the minimum offense level from the Drug Quantity Table for flunitrazepam individually, or in

combination with any Schedule I or II depressants, Schedule IIIsubstances, Schedule IV substances, and Schedule

V substances is level 8.

Schedule I or II Depressants (except gamma-hydroxybutyric acid)

1 unit of a Schedule I or II Depressant 

(except gamma-hydroxybutyric acid) = 1 gm of marihuana

Gamma-hydroxybutyric Acid

1 ml of gamma-hydroxybutyric acid = 8.8 gm of marihuana

Schedule III Substances (except ketamine)***

1 unit of a Schedule III Substance = 1 gm of marihuana

***Provided, that the combined equivalent weight of all Schedule III substances, Schedule IV substances (except

flunitrazepam), and Schedule V substances shall not exceed 59.99 kilograms of marihuana.

Ketamine

1 unit of ketamine = 1 gm of marihuana

Schedule IV Substances (except flunitrazepam) 

1 unit of a Schedule IV Substance 

(except Flunitrazepam)= 0.0625 gm of marihuana 

** **Provided, that the combined equivalent weight of all Schedule IV (exceptflunitrazepam) and V substances shall

not exceed 4.99 kilograms of marihuana.

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Schedule V Substances*****

1 unit of a Schedule V Substance = 0.00625 gm of marihuana

*****Provided, that the combined equivalent weight of Schedule V substances shall not exceed 999 grams of

marihuana.

List I Chemicals (relating to the manufacture of amphetamine or methamphetamine)******

1 gm of Ephedrine = 10 kg of marihuana

1 gm of Phenylpropanolamine = 10 kg of marihuana

1 gm of Pseudoephedrine = 10 kg of marihuana

******Provided, that in a case involving ephedrine, pseudoephedrine, or phenylpropanolamine tablets, use the

weight of the ephedrine, pseudoephedrine, or phenylpropanolamine contained in the tablets, not the weight of the

entire tablets, in calculating the base offense level.

Date Rape Drugs (except flunitrazipam, GHB, or ketamine)

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

1 ml of gamma butyrolactone = 8.8 gm marihuana

To facilitate conversions to drug equivalencies, the following table is provided:

 MEASUREMENT CONVERSION TABLE

1 oz = 28.35 gm

1 lb = 453.6 gm

1 lb = 0.4536 kg

1 gal = 3.785 liters

1 qt = 0.946 liters

1 gm = 1 ml (liquid)

1 liter = 1,000 ml

1 kg = 1,000 gm

1 gm = 1,000 mg

1 grain = 64.8 mg.

11. If the number of doses, pills, or capsules but not the weight of the controlled substance is known,

multiply the number of doses, pills, or capsules by the typical weight per dose in the table below to

estimate the total weight of the controlled substance (e.g., 100 doses of Mescaline at 500 mg per

dose = 50 gms of mescaline). The Typical Weight Per Unit Table, prepared from information

provided by the Drug Enforcement Administration, displays the typical weight per dose, pill, or

capsule for certain controlled substances. Do not use this table if any more reliable estimate of the

total weight is available from case-specific information.

TYPICAL WEIGHT PER UNIT (DOSE, PILL, OR CAPSULE) TABLE

Hallucinogens

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MDA 250 mg

MDMA 250 mg

Mescaline 500 mg

PCP* 5 mg

Peyote (dry) 12 gm

Peyote (wet) 120 gm

Psilocin* 10 mg

Psilocybe mushrooms (dry) 5 gm

Psilocybe mushrooms (wet) 50 gm

Psilocybin* 10 mg

2,5-Dimethoxy-4-methylamphetamine (STP, DOM)* 3 mg

Marihuana

1 marihuana cigarette 0.5 gm

Stimulants

Amphetamine* 10 mg

Methamphetamine* 5 mg

Phenmetrazine (Preludin)* 75 mg

*For controlled substances marked with an asterisk, the weight per unit shown is the weight of

the actual controlled substance, and not generally the weight of the mixture or substance 

containing the controlled substance. Therefore, use of this table provides a very conservative

estimate of the total weight.

12. Types and quantities of drugs not specified in the count of conviction may be considered in

determining the offense level. See §1B1.3(a)(2) (Relevant Conduct). Where there is no drug

seizure or the amount seized does not reflect the scale of the offense, the court shall approximate

the quantity of the controlled substance. In making this determination, the court may consider,

for example, the price generally obtained forthe controlled substance, financial or other records,

similar transactions in controlled substances by the defendant, and the size or capability of any

laboratory involved.

If the offense involved both a substantive drug offense and an attempt or conspiracy (e.g., sale

of five grams of heroin and an attempt to sell an additional ten grams of heroin), the total

quantity involved shall be aggregated to determine the scale of the offense. 

In an offense involving an agreement to sell a controlled substance, the agreed-upon quantity of

the controlled substance shall be used to determine the offense level unless the sale is completed

and the amount delivered more accurately reflects the scale of the offense. For example, a

defendant agrees to sell 500 grams of cocaine, the transaction is completed by the delivery of the

controlled substance - actually 480 grams of cocaine, and no further delivery is scheduled. In

this example, the amount delivered more accurately reflects the scale of the offense. In contrast,

in a reverse sting, the agreed-upon quantity of the controlled substance would more accurately

reflect the scale of the offense because the amount actually delivered is controlled by the

government, not by the defendant. If, however, the defendant establishes that the defendant did

not intend to provide or purchase, or was notreasonably capable of providing or purchasing, the

agreed-upon quantity of the controlled substance, the court shall exclude from the offense level

determination the amount of controlled substance that the defendant establishes that the

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defendant did not intend to provide or purchase or was not reasonably capable of providing or

purchasing.

13. Certain pharmaceutical preparations are classified as Schedule III, IV, or V controlled

substances by the Drug Enforcement Administration under 21 C.F.R. § 1308.13-15 even though

they contain a small amount of a Schedule I or II controlled substance. For example, Tylenol 3

is classified as a Schedule III controlled substance even though it contains a small amount of

codeine, a Schedule II opiate. For the purposes of the guidelines, the classification of the

controlled substance under 21 C.F.R. § 1308.13-15 is the appropriate classification.

14. If, in a reverse sting (an operation in which a government agent sells or negotiates to sell a

controlled substance to a defendant), the court finds that the government agent set a price for 

the controlled substance that was substantially below the market value of the controlled

substance, thereby leading to the defendant’s purchase of a significantly greater quantity of the

controlled substance than his available resources would have allowed him to purchase except for

the artificially low price set by the government agent, a downward departure may be warranted. 

15. LSD on a blotter paper carrier medium typically is marked so that the number of doses ("hits")

per sheet readily can be determined. When this is not the case, it is to be presumed that each 1/4

inch by 1/4 inch section of the blotter paper is equal to one dose.

In the case of liquid LSD (LSD that has not been placed onto a carrier medium), using the weight

of the LSD alone to calculate the offense level may not adequately reflect the seriousness of the

offense. In such a case, an upward departure may be warranted.

16. In an extraordinary case, an upward departure above offense level 38 on the basis of drug

quantity may be warranted. For example, an upward departure may be warranted where the

quantity is at least ten times the minimum quantity required for level 38. Similarly, in the case

of a controlled substance for which the maximum offense level is less than level 38, an upward

departure may be warranted if the drug quantity substantially exceeds the quantity forthe highest

offense level established for that particular controlled substance.

17. For purposes of the guidelines, a "plant" is an organism having leaves and a readily observable

root formation (e.g., a marihuana cutting having roots, a rootball, or root hairs is a marihuana

plant).

18. If the offense involved importation of amphetamine or methamphetamine, and an adjustment from

subsection (b)(2) applies, do not apply subsection (b)(4).

19. Hazardous or Toxic Substances.—Subsection (b)(10)(A) applies if the conduct for which the

defendant is accountable under §1B1.3 (Relevant Conduct) involved any discharge, emission,

release, transportation, treatment, storage, or disposal violation covered by the Resource

Conservation and Recovery Act, 42 U.S.C. § 6928(d); the Federal Water Pollution Control Act,

33 U.S.C. § 1319(c); the Comprehensive Environmental Response, Compensation, and Liability

Act, 42 U.S.C. § 9603(b); or 49 U.S.C. § 5124 (relating to violations of laws and regulations

enforced by the Department of Transportation with respect to the transportation of hazardous

material). In some cases, the enhancement under subsection (b)(10)(A) may not account

adequately for the seriousness of the environmental harm or other threat to public health or

safety (including the health or safety of law enforcement and cleanup personnel). In such cases,

an upward departure may be warranted. Additionally, in determining the amount of restitution

under §5E1.1 (Restitution) and in fashioning appropriate conditions of probation and supervision

under §§5B1.3 (Conditions of Probation) and 5D1.3 (Conditions of Supervised Release),

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respectively, any costs of environmental cleanup and harm to individuals or property shall be

considered by the court in cases involving the manufacture of amphetamine or methamphetamine

and should be considered by the court in cases involving the manufacture of a controlled

substance other than amphetamine or methamphetamine. See 21 U.S.C. § 853(q) (mandatory

restitution for cleanup costsrelating to the manufacture of amphetamine and methamphetamine).

20. Substantial Risk of Harm Associated with the Manufacture of Amphetamine and

Methamphetamine.—

(A) Factors to Consider.—In determining, for purposes of subsection (b)(10)(C)(ii) or (D),

whether the offense created a substantial risk of harm to human life or the environment,

the court shall include consideration of the following factors:

(i) The quantity of any chemicals or hazardous or toxic substances found at the

laboratory, and the manner in which the chemicals or substances were stored. 

(ii) The manner in which hazardous or toxic substances were disposed, and the

likelihood of release into the environment of hazardous or toxic substances.

(iii) The duration of the offense, and the extent of the manufacturing operation.

(iv) The location of the laboratory (e.g., whether the laboratory is located in a

residential neighborhood or a remote area), and the number of human lives

placed at substantial risk of harm.

(B) Definitions.—For purposes of subsection (b)(10)(D):

"Incompetent" means an individual who is incapable of taking care of the individual’s

self or property because of a mental or physical illness or disability, mental retardation,

or senility. 

"Minor" has the meaning given that term in Application Note 1 of the Commentary to

§2A3.1 (Criminal Sexual Abuse).

[Option 2:

21. Applicability of Subsection (b)(1112).—The applicability of subsection (b)(1112) shall be

determined withoutregard to whether the defendant was convicted of an offense that subjects the

defendant to a mandatory minimum term of imprisonment. Section §5C1.2(b), which provides

a minimum offense level of level 17, is not pertinent to the determination of whether subsection

(b)(1112) applies.]

22. Imposition of Consecutive Sentence for 21 U.S.C. § 860a or § 865.—Sections 860a and 865 of

title 21, United States Code, require the imposition of a mandatory consecutive term of

imprisonment of not more than 20 years and 15 years, respectively. In order to comply with the

relevant statute, the court should determine the appropriate "total punishment" and divide the

sentence on the judgment form between the sentence attributable to the underlying drug offense

and the sentence attributable to 21 U.S.C. § 860a or § 865, specifying the number of months to

be served consecutively for the conviction under 21 U.S.C. § 860a or § 865. For example, if the

applicable adjusted guideline range is 151-188 months and the court determines a "total

punishment" of 151 months is appropriate, a sentence of 130 months for the underlying offense

plus 21 months for the conduct covered by 21 U.S.C. § 860a or § 865 would achieve the "total

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punishment" in a manner that satisfies the statutory requirement of a consecutive sentence.

23. Application of Subsection (b)(6).—For purposes of subsection (b)(6), "mass-marketing by means

of an interactive computer service" means the solicitation, by means of an interactive computer

service, of a large number of persons to induce those persons to purchase a controlled substance. 

For example, subsection (b)(6) would apply to a defendant who operated a web site to promote

the sale of Gamma-hydroxybutyric Acid (GHB) but would not apply to coconspirators who use

an interactive computer service only to communicate with one another in furtherance of the

offense. "Interactive computer service", for purposes of subsection (b)(6) and this note, has the

meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. §

230(f)(2)).

24. Application of Subsection (e)(1).—

(A) Definition.—For purposes of this guideline, "sexual offense" means a "sexual act" or

"sexual contact" as those terms are defined in 18 U.S.C. § 2246(2) and (3), respectively. 

(B) Upward Departure Provision.—If the defendant committed a sexual offense against more

than one individual, an upward departure would be warranted.

25. Application of Subsection (b)(7).—For purposes of subsection (b)(7), "masking agent" means a

substance that, when taken before, after, or in conjunction with an anabolic steroid, prevents the

detection of the anabolic steroid in an individual’s body.

26. Application of Subsection (b)(8).—For purposes of subsection (b)(8), "athlete" means an

individual who participates in an athletic activity conducted by (i) an intercollegiate athletic

association or interscholastic athletic association;(ii) a professional athletic association; or (iii)

an amateur athletic organization. 

[Option 3:

27. Upward Departure Provision.—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 establishesthat death or serious bodily injury

resulted from the use of the substance, an upward departure may be warranted.]

Background: Offenses under 21 U.S.C. §§ 841 and 960 receive identical punishment based upon the

quantity of the controlled substance involved, the defendant’s criminal history, and whether death or

serious bodily injury resulted from the offense. 

The base offense levels in §2D1.1 are either provided directly by the Anti-Drug Abuse Act of 1986

or are proportional to the levels established by statute, and apply to all unlawful trafficking. Levels 32

and 26 in the Drug Quantity Table are the distinctions provided by the Anti-Drug Abuse Act; however,

further refinement of drug amountsis essential to provide a logical sentencing structure for drug offenses.

To determine these finer distinctions, the Commission consulted numerous experts and practitioners,

including authorities at the Drug Enforcement Administration, chemists, attorneys, probation officers,

and members of the Organized Crime Drug Enforcement Task Forces, who also advocate the necessity

of these distinctions. Where necessary, this scheme has been modified in response to specific

congressional directives to the Commission.

The base offense levels at levels 26 and 32 establish guideline ranges with a lower limit as close

to the statutory minimum as possible; e.g., level 32 ranges from 121 to 151 months, where the statutory

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minimum is ten years or 120 months. 

For marihuana plants, the Commission has adopted an equivalency of 100 grams per plant, or

the actual weight of the usable marihuana, whichever is greater. The decision to treat each plant as equal

to 100 grams is premised on the fact that the average yield from a mature marihuana plant equals 100

grams of marihuana. In controlled substance offenses, an attempt is assigned the same offense level as

the object of the attempt. Consequently, the Commission adopted the policy that each plant is to be

treated as the equivalent of an attempt to produce 100 grams of marihuana, except where the actual

weight of the usable marihuana is greater.

Specific Offense Characteristic (b)(2) is derived from Section 6453 of the Anti-Drug Abuse Act

of 1988.

Frequently, a term of supervised release to follow imprisonment isrequired by statute for offenses

covered by this guideline. Guidelines for the imposition, duration, and conditions of supervised release

are set forth in Chapter Five, Part D (Supervised Release).

Because the weights of LSD carrier media vary widely and typically far exceed the weight of the

controlled substance itself, the Commission has determined that basing offense levels on the entire weight

of the LSD and carrier medium would produce unwarranted disparity among offenses involving the same

quantity of actual LSD (but different carrier weights), as well as sentences disproportionate to those for

other, more dangerous controlled substances, such as PCP. Consequently, in cases involving LSD

contained in a carrier medium, the Commission has established a weight per dose of 0.4 milligram for

purposes of determining the base offense level.

The dosage weight of LSD selected exceeds the Drug Enforcement Administration’s standard

dosage unit for LSD of 0.05 milligram (i.e., the quantity of actual LSD per dose) in order to assign some

weight to the carrier medium. Because LSD typically is marketed and consumed orally on a carrier

medium, the inclusion of some weight attributable to the carrier medium recognizes(A)that offense levels

for most other controlled substances are based upon the weight of the mixture containing the controlled

substance without regard to purity, and (B) the decision in Chapman v. United States, 111 S.Ct. 1919

(1991) (holding that the term "mixture or substance" in 21 U.S.C. § 841(b)(1) includes the carrier medium

in which LSD is absorbed). At the same time, the weight per dose selected isless than the weight per dose

that would equate the offense level for LSD on a carrier medium with that for the same number of doses

of PCP, a controlled substance that comparative assessments indicate is more likely to induce violent acts

and ancillary crime than is LSD. (Treating LSD on a carrier medium as weighing 0.5 milligram per dose

would produce offense levels equivalent to those for PCP.) Thus, the approach decided upon by the

Commission will harmonize offense levels for LSD offenses with those for other controlled substances and

avoid an undue influence of varied carrier weight on the applicable offense level. Nonetheless, this

approach does not override the applicability of "mixture or substance" for the purpose of applying any

mandatory minimum sentence (see Chapman; §5G1.1(b)). 

Subsection (b)(10)(A) implementsthe instruction to the Commission in section 303 of Public Law

103–237.

Subsections (b)(10)(C)(ii) and (D) implement, in a broader form, the instruction to the

Commission in section 102 of Public Law 106–310.

* * *

§2D3.1. Regulatory Offenses Involving Registration Numbers; Unlawful Advertising

Relating to Schedule I Scheduled Substances; Attempt or Conspiracy 

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* * *

APPENDIX A - STATUTORY INDEX

* * *

21 U.S.C. § 841(g) 2D1.1

21 U.S.C. § 841(h) 2D1.1

* * *

Issues for Comment:

1. The Commission requests comment regarding whether offenses involving Schedule III

substances are adequately addressed by the guidelines. The Ryan Haight Online Pharmacy

Consumer Protection Act of 2008, Public Law 110–465 (the "Act"), increased the statutory

maximum term of imprisonment for those offenses from 5 years to 10 years. Should the

Commission revise the guidelines to more adequately address these offenses and, if so, how? 

If the Commission should revise the guidelines as they relate to Schedule III substances, what

justifies doing so?

For example, under the Drug Quantity Table in §2D1.1, the maximum base offense level for

an offense involving Schedule III substances (except Ketamine) is 20, which applies to 40,000

or more units of the substance concerned. Should the maximum base offense level be

increased (or eliminated entirely) so that in a case in which the number of units involved is

more than 40,000, a higher base offense level applies? If so, what higher base offense levels

are appropriate, and what number of units should correspond to those higher base offense

levels?

Under the Drug Equivalency Tables in §2D1.1, 1 unit of a Schedule III substance is

equivalent to 1 gm of marihuana. Should a different equivalency apply? If so, what should

that different equivalency be?

2. The Commission requests comment regarding whether offenses involving Schedule IV

substances are adequately addressed by the guidelines. The Act increased the statutory

maximum term of imprisonment for those offenses from 3 years to 5 years. Should the

Commission revise the guidelines to more adequately address these offenses and, if so, how? 

If the Commission should revise the guidelines as they relate to Schedule IV substances, what

justifies doing so?

For example, under the Drug Quantity Table in §2D1.1, the maximum base offense level for

an offense involving Schedule IV substances (except Flunitrazepam) is 12, which applies to

40,000 or more units of the substance concerned. Should the maximum base offense level be

increased (or eliminated entirely) so that in a case in which the number of units involved is

more than 40,000, a higher base offense level applies? If so, what higher base offense levels

are appropriate, and what number of units should correspond to those higher base offense

levels?

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Under the Drug Equivalency Tables in §2D1.1, 1 unit of a Schedule IV substance (except

Flunitrazepam) is equivalent to 0.0625 gm of marihuana. Should a different equivalency

apply? If so, what should that different equivalency be? For example, should the Commission

amend the Drug Equivalency Tables to provide that 1 unit of a Schedule IV substance (except

Flunitrazepam) is equivalent to 0.125 gm of marihuana?

3. The Commission requests comment regarding whether offenses involving Schedule V

substances are adequately addressed by the guidelines. For those offenses, the Act did not

increase the statutory maximum term of imprisonment for a first offense (which is 1 year), but

did increase the statutory maximum term of imprisonment if the offense is committed after a

prior drug conviction (from 2 years to 5 years). Should the Commission revise the guidelines

to more adequately address these offenses and, if so, how? If the Commission should revise

the guidelines as they relate to Schedule V substances, what justifies doing so?

For example, under the Drug Quantity Table in §2D1.1, the maximum base offense level for

an offense involving Schedule V substances is 8, which applies to 40,000 or more units of the

substance concerned. Should the maximum base offense level be increased (or eliminated

entirely) so that in a case in which the number of units involved is more than 40,000, a higher

base offense level applies? If so, what higher base offense levels are appropriate, and what

number of units should correspond to those higher base offense levels?

Under the Drug Equivalency Tables in §2D1.1, 1 unit of a Schedule V substance is equivalent

to 0.00625 gm of marihuana. Should a different equivalency apply? If so, what should that

different equivalency be?

4. The Commission requests comment regarding whether offenses involving hydrocodone

substances are adequately addressed by the guidelines. Currently, the guidelines do not

distinguish between hydrocodone substances and other Schedule III substances (except

Ketamine). The Act increased the statutory maximum term of imprisonment for all Schedule

III offenses, including hydrocodone offenses, from 5 years to 10 years. Should hydrocodone

be treated differently than other Schedule III substances and, if so, how? If the Commission

should revise the guidelines as they relate to hydrocodone, what justifies doing so?

For example, under the Drug Quantity Table in §2D1.1, the maximum base offense level for

an offense involving Schedule III substances (except Ketamine) is 20, which corresponds to

40,000 or more units of the substance concerned. Should the maximum base offense level be

increased (or eliminated entirely) so that in a case in which the number of units involved is

more than 40,000, a higher base offense level applies? If so, what higher base offense levels

are appropriate, and what number of units should correspond to those higher base offense

levels?

Under the Drug Equivalency Tables in §2D1.1, 1 unit of a Schedule III substance, including

hydrocodone, is equivalent to 1 gm of marihuana. Should a different equivalency apply to

hydrocodone? If so, what should that different equivalency be? Should the guidelines take

into account (as is done for oxycodone) the weight of the hydrocodone itself (i.e., the

"hydrocodone actual"), rather than the number of units of hydrocodone? If so, what base

offense levels should apply, and to what weights of hydrocodone actual should those base

offense levels correspond? For example, should the Commission amend the Drug Equivalency

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Tables to provide that 1 gm of hydrocodone actual is equivalent to 1,675 gm of marihuana?

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EXHIBIT C

PROPOSED AMENDMENT: SUBMERSIBLE VESSELS

Synopsis of Proposed Amendment: This proposed amendment implements the Drug Trafficking

Vessel Interdiction Act of 2008, Pub. L. 110–407 (the “Act”). The Act creates a new offense at

18 U.S.C. § 2285 (Operation of Submersible Vessel or Semi-Submersible Vessel Without

Nationality), which provides: “Whoever knowingly operates, or attempts or conspires to operate,

by any means, or embarks in any submersible vessel or semi-submersible vessel that is without

nationality and that is navigating or has navigated into, through, or from waters beyond the outer

limit of the territorialsea of a single country or a lateral limit of that country's territorialsea with

an adjacent country, with the intent to evade detection, shall be fined under this title, imprisoned

not more than 15 years, or both.”

Section 103 of the Act also directs the Commission to promulgate or amend the guidelines

to provide for increased penalties for persons convicted of offenses under 18 U.S.C. § 2285. In

carrying out this directive, the Commission shall—

(1) ensure that the sentencing guidelines and policy statements reflect the serious

nature of the offense described in section 2285 of title 18, United States Code, and

the need for deterrence to prevent such offenses;

(2) account for any aggravating or mitigating circumstances that might justify

exceptions, including–

(A) the use of a submersible vessel or semi-submersible vessel described

in section 2285 of title 18, United States Code, to facilitate other felonies;

(B) the repeated use of a submersible vessel or semi-submersible vessel

described in section 2285 of title 18, United States Code, to facilitate other

felonies, including whether such use is part of an ongoing criminal

organization or enterprise;

(C) whether the use of such a vessel involves a pattern of continued and

flagrant violations of section 2285 of title 18, United States Code;

(D) whether the persons operating or embarking in a submersible vessel

or semi-submersible vessel willfully caused, attempted to cause, or

permitted the destruction or damage of such vessel or failed to heave to

when directed by law enforcement officers; and

(E) circumstances for which the sentencing guidelines (and policy

statements) provide sentencing enhancements;

(3) ensure reasonable consistencywith other relevant directives, other sentencing

guidelines and policy statements, and statutory provisions;

(4) make any necessary and conforming changes to the sentencing guidelines and

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policy statements; and

(5) ensure that the sentencing guidelines and policy statements adequately meet

the purposes of sentencing set forth in section 3553(a)(2) of title 18, United States

Code.

The proposed amendment amends §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 the defendant used a submersible vessel or semi-submersible vessel as described in 18

U.S.C. § 2285. 

The proposed amendment also provides a new guideline at §2X7.2 (Submersible and SemiSubmersible Vessels) for the new offense at 18 U.S.C. § 2285, with a base offense level of [12]-

[34]. The proposed amendment also provides upward departure provisions to account for certain

aggravating factors listed in the directive.

Finally, the proposed amendment provides a reference in Appendix A (Statutory Index)

to index the new offense to the new guideline.

Three issues for comment are also included.

Proposed Amendment:

§2D1.1. Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including

Possession with Intent to Commit These Offenses); Attempt or Conspiracy 

(a) Base Offense Level (Apply the greatest):

(1) 43, if the defendant is convicted under 21 U.S.C. § 841(b)(1)(A),

(b)(1)(B), or (b)(1)(C), or 21 U.S.C. § 960(b)(1), (b)(2), or (b)(3), 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

(2) 38, if the defendant is convicted under 21 U.S.C. § 841(b)(1)(A),

(b)(1)(B), or (b)(1)(C), or 21 U.S.C. § 960(b)(1), (b)(2), or (b)(3), and

the offense of conviction establishes that death or serious bodily injury

resulted from the use of the substance; or 

(3) the offense level specified in the Drug Quantity Table set forth in

subsection (c), except that if (A) the defendant receives an adjustment

under §3B1.2 (Mitigating Role); and (B) the base offense level under

subsection (c) is (i) level 32, decrease by 2 levels; (ii) level 34 or level

36, decrease by 3 levels; or (iii) level 38, decrease by 4 levels.

(b) Specific Offense Characteristics

(1) If a dangerous weapon (including a firearm) was possessed, increase by

2 levels.

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(2) If the defendant unlawfully imported or exported a controlled substance

under circumstances in which (A) an aircraft other than a regularly

scheduled commercial air carrier was used to import or export the

controlled substance, or (B) a submersible vessel or semi-submersible

vessel as described in 18 U.S.C. § 2285 was used, or (C) the defendant

acted as a pilot, copilot, captain, navigator, flight officer, or any other

operation officer aboard any craft or vessel carrying a controlled

substance, increase by 2 levels. If the resulting offense level is less than

level 26, increase to level 26.

(3) If the object of the offense was the distribution of a controlled substance

in a prison, correctional facility, or detention facility, increase by 2

levels.

(4) If (A) the offense involved the importation of amphetamine or

methamphetamine or the manufacture of amphetamine or

methamphetamine from listed chemicals that the defendant knew were

imported unlawfully, and (B) the defendant is not subject to an

adjustment under §3B1.2 (Mitigating Role), increase by 2 levels.

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

(6) If the defendant, or a person for whose conduct the defendant is

accountable under §1B1.3 (Relevant Conduct), distributed a controlled

substance through mass-marketing by means of an interactive computer

service, increase by 2 levels.

(7) If the offense involved the distribution of an anabolic steroid and a

masking agent, increase by 2 levels.

(8) If the defendant distributed an anabolic steroid to an athlete, increase by

2 levels.

(9) If the defendant was convicted under 21 U.S.C. § 841(g)(1)(A), increase

by 2 levels.

(10) (Apply the greatest):

(A) If the offense involved (i) an unlawful discharge, emission, or

release into the environment of a hazardous or toxic substance;

or (ii) the unlawful transportation, treatment, storage, or

disposal of a hazardous waste, increase by 2 levels.

(B) If the defendant was convicted under 21 U.S.C. § 860a of

distributing, or possessing with intent to distribute,

methamphetamine on premises where a minor is present or

resides, increase by 2 levels. If the resulting offense level isless

than level 14, increase to level 14. 

(C) If—

(i) the defendant was convicted under 21 U.S.C. § 860a of

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manufacturing, or possessing with intent to

manufacture, methamphetamine on premises where a

minor is present or resides; or 

(ii) the offense involved the manufacture of amphetamine

or methamphetamine and the offense created a

substantial risk of harm to (I) human life other than a

life described in subdivision (D); or (II) the

environment,

increase by 3 levels. If the resulting offense level is less than

level 27, increase to level 27.

(D) If the offense (i) involved the manufacture of amphetamine or

methamphetamine; and (ii) created a substantial risk of harm to

the life of a minor or an incompetent, increase by 6 levels. If the

resulting offense level is less than level 30, increase to level 30.

(11) If the defendant meets the criteria set forth in subdivisions (1)-(5) of

subsection (a) of §5C1.2 (Limitation on Applicability of Statutory

Minimum Sentences in Certain Cases), decrease by 2 levels.

[Subsection (c) (Drug Quantity Table) is set forth on the following pages.]

(d) Cross References

(1) If a victim was killed under circumstances that would constitute murder

under 18 U.S.C. § 1111 had such killing taken place within the territorial

or maritime jurisdiction of the United States, apply §2A1.1 (First Degree

Murder) or §2A1.2 (Second Degree Murder), as appropriate, if the

resulting offense level is greater than that determined under this

guideline.

(2) If the defendant was convicted under 21 U.S.C. § 841(b)(7) (of

distributing a controlled substance with intent to commit a crime of

violence), apply §2X1.1 (Attempt, Solicitation, or Conspiracy) in respect

to the crime of violence that the defendant committed, or attempted or

intended to commit, if the resulting offense level is greater than that

determined above.

(e) Special Instruction

(1) If (A) subsection (d)(2) does not apply; and (B) the defendant

committed, or attempted to commit, a sexual offense against another

individual by distributing, with or without that individual’s knowledge,

a controlled substance to that individual, an adjustment under

§3A1.1(b)(1) shall apply.

* * *

7. OFFENSES INVOLVING BORDER TUNNELS AND SUBMERSIBLE AND SEMIH:\OSC\MeetingMaterials\2009\January\Submersibles2X7'2_003.wpd 62
SUBMERSIBLE VESSELS

* * *

§2X7.2. Submersible and Semi-Submersible Vessels

(a) Base Offense Level: [12]-[34] 

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 offense involved a failure to heave to when directed by a law enforcement officer.

(B) The offense involved an attempt to sink the vessel or the sinking of the vessel.

(C) 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.

(D) 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

* * *

18 U.S.C. § 2284 2M5.3, 2X2.1, 2X3.1

18 U.S.C. § 2285 2X7.2

* * *

Issues for Comment:

1. The Commission requests comment regarding whether it should reference the new offense

at 18 U.S.C. § 2285 (Operation of Submersible Vessel or Semi-submersible Vessel Without

Nationality) to §2X5.1 (Other Felony Offenses), instead of promulgating a new guideline at

§2X7.2 (Submersible and Semi-Submersible Vessels) for the new offense, as provided for by

the proposed amendment. Section 2X5.1 instructs the court to “apply the most analogous

offense guideline” when an “offense is a felony for which no guideline expressly has been

promulgated.” In a case where “there is not a sufficiently analogous guideline”, §2X5.1

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provides that: 

the provisions of 18 U.S.C. § 3553 shall control, except that any

guidelines and policy statements that can be applied meaningfully in

the absence of a Chapter Two offense guideline shall remain

applicable.

If the Commission references section 2285 to §2X5.1, is there further action the Commission

should take to clarify how the guidelines apply in such cases? If so, what action?

2. Section 103 of the Drug Trafficking Vessel Interdiction Act of 2008, Pub. L. No. 110–407,

directs the Commission to consider aggravating circumstances such as the use of such vessels

as part of an ongoing criminal organization or enterprise. Accordingly, the Commission

requests comment regarding how the proposed amendment’s new guideline at §2X7.2

(Submersible and Semi-Submersible Vessels), or any other guideline to which offenses under

18 U.S.C. § 2285 (Operation of Submersible Vessel or Semi-submersible Vessel Without

Nationality) would be referenced, should account for cases in which the vessel is used as part

of an ongoing criminal organization or enterprise. The Commission was informed at its

public briefing in November 2008 that the construction of such a vessel costs one million

dollars or more and takes one year or more to complete, and that such a vessel is intended to

be used for a single trip before being purposely sunk. If so, this may indicate that the use of

the submersible or semi-submersible vessel typically is part of an ongoing criminal

organization or enterprise. Should the Commission account for this factor in setting the base

offense level? If so, should the Commission provide a specific offense characteristic or a

downward departure to account for a case in which an ongoing criminal organization or

enterprise is not involved? Alternatively, should the Commission provide a specific offense

characteristic or an upward departure to account for this factor? Are there any other

amendments to the guidelines that should be made to account for cases in which the vessel is

used as part of an ongoing criminal organization or enterprise?

3. The Commission requests comment regarding whether, in a case sentenced under the

proposed guideline, §2X7.2 (Submersible and Semi-Submersible Vessels), and in which

§3B1.2 (Mitigating Role) applies, it should provide an alternative base offense level,

downward adjustment, or downward departure to reflect the lesser culpability of the

defendant?

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EXHIBIT D

ISSUES FOR COMMENT: COURT SECURITY IMPROVEMENT ACT OF 2007

1. The Court Security Improvement Act of 2007, Public Law 110–177 (the "Act"), creates two

new federal offenses, increases the statutory maximum penalty for a number of existing federal

offenses, and contains a directive to the Commission relating to threats made in violation of 18

U.S.C. § 115 that occur over the Internet. The Commission responded to the two new offenses

created by the Act during the amendment cycle ending May 1, 2008 (see Amendment 718). The

Commission requests comment regarding what additional amendments may be appropriate in

light of the Act. The increases in the statutory maximum penalties provided by the Act raise issues

concerning a number of guidelines in Chapter Two, Part A, generally, and it may be necessary

to continue work on any or all of the remaining issues raised by the Act beyond the amendment

cycle ending May 1, 2009.

A. Increases in Statutory Maximum Penalties.

The existing federal offenses with statutory maximum penalties increased by the Act and the

guidelines to which those offenses are referenced are as follows:

(1) 18 U.S.C. § 115 (Influencing, impeding, or retaliating against a Federal official

by threatening or injuring a family member) makes it unlawful to, among other

things, assault an individual who is a current or former federal official, or a

family member of such an individual, with intent to impede the individual in, or

retaliate against the individual for, the performance of the individual’s official

duties. Such an assault is punished under 18 U.S.C. § 115(b)(1). The Act

modified the penalty structure of these offenses. In doing so, the Act eliminated

the reference to 18 U.S.C. § 111 (Assaulting, resisting, or impeding certain

officers or employees), and increased the statutory maximum terms of

imprisonment for assaults involving physical contact or intent to commit another

felony (from 8 years to 10 years), and for assaults resulting in serious bodily

injury or assaults involving the use of a dangerous weapon (from 20 years to 30

years). Other statutory maximum terms of imprisonment include 20 years (for

assaults resulting in bodily injury) and 1 year (for simple assaults).

Offenses involving assaults punished under 18 U.S.C. § 115(b)(1) are referenced

in Appendix A (Statutory Index) to §§2A2.1 (Assault with Intent to Commit

Murder; Attempted Murder); 2A2.2 (Aggravated Assault), and 2A2.3 (Minor

Assault).

(2) 18 U.S.C. § 1112 (manslaughter) makes it unlawful to kill a human being without

malice, either upon a sudden quarrel or heat of passion ("voluntary

manslaughter") or in the commission of an unlawful act not amounting to a felony

or in the commission, in an unlawful manner or without due caution and

circumspection, of a lawful act which might produce death ("involuntary

manslaughter"). The Act increased the statutory maximum terms of imprisonment

for voluntary manslaughter (from 10 years to 15 years) and for involuntary

manslaughter (from 6 years to 8 years).

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Offenses under 18 U.S.C. § 1112 are referenced in Appendix A (Statutory Index)

to §§2A1.3 (Voluntary Manslaughter) and 2A1.4 (Involuntary Manslaughter).

(3) Subsection (a) of 18 U.S.C. § 1512 (Tampering with a witness, victim, or an

informant), makes it unlawful to kill or attempt to kill another person with intent

to interfere in an official proceeding. It also makes it unlawful to use or threaten

physical force, or attempt to do so, with intent to interfere with an official

proceeding. The Act increased the statutory maximum terms of imprisonment for

the killing of another under circumstances constituting manslaughter (by reference

to 18 U.S.C. § 1112, from 10 years to 15 years); for attempted murder or

attempted use of physical force (from 20 years to 30 years); and for threat of use

of physical force to prevent the attendance or testimony in an official proceeding

(from 10 years to 20 years). Offenses under section 1512(a) are referenced in

Appendix A (Statutory Index) to §§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 2J1.2 (Obstruction of Justice).

(4) Section 1512(b) makes it unlawful to intimidate, threaten, or corruptly persuade

another person, or to engage in misleading conduct toward another person, with

intent to interfere with an official proceeding. The Act increased the statutory

maximum term of imprisonment for these offenses from 10 years to 20 years. 

Offenses under section 1512(b) are referenced in Appendix A (Statutory Index) to

§2J1.2 (Obstruction of Justice).

(5) Section 1512(d) makes it unlawful to harass another person and thereby hinder,

delay, prevent, or dissuade an arrest or prosecution, or the participation of a

person in an official proceeding. The Act increased the statutory maximum term

of imprisonment for these offenses from 1 year to 3 years.

Offenses under section 1512(d) are referenced in Appendix A (Statutory Index) to

§2J1.2 (Obstruction of Justice).

(6) Subsection (a) of 18 U.S.C. § 1513 (Retaliating against a witness, victim, or an

informant) makes it unlawful to kill or attempt to kill another person with intent

to retaliate against a person for attending or testifying at an official proceeding

or for providing information to a law enforcement officer. The Act increased the

statutory maximum terms of imprisonment for the killing of another under

circumstances constituting manslaughter (by reference to 18 U.S.C. § 1112, from

10 years to 15 years) and for an attempt (from 20 years to 30 years). Other

statutory maximum terms of imprisonment include death, or imprisonment for life,

if the offense involved the killing of another under circumstances constituting

murder.

Offenses under section 1513(a) are referenced in Appendix A (Statutory Index) to

§2J1.2 (Obstruction of Justice).

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(7) Section 1513(b) makes it unlawful to cause bodily injury to another person or

damage the tangible property of another person (or threaten to do so) with intent

to retaliate against a person for attending or testifying at an official proceeding

or for providing information to a law enforcement officer. The Act increased the

statutory maximum terms of imprisonment for such offenses from 10 years to 20

years. 

Offenses under section 1513(b) are referenced in Appendix A (Statutory Index) to

§2J1.2 (Obstruction of Justice).

(8) Other offenses under section 1513 include subsection (e)(which makes it unlawful

to knowingly, with intent to retaliate, take any action harmful to any person for

providing to a law enforcement officer any truthful information relating to the

commission or possible commission of any federal offense) and subsection (f)

(which makes it unlawful to conspire to commit any offense under section 1513).

These other offenses under section 1513 are also referenced in Appendix A

(Statutory Index) to §2J1.2 (Obstruction of Justice).

Are the guidelines adequate as they apply to such offenses? If not, what amendments to the

guidelines should be made to address the increases in statutory maximum penalties?

As described in paragraph (7), above, Appendix A (Statutory Index) currently refers all offenses

under section 1513 to §2J1.2 (Obstruction of Justice) only. An offense under section 1513 can

involve conduct such as killing, causing bodily injury, or threatening. Should the Commission

amend Appendix A (Statutory Index) to refer offenses under section 1513 to other guidelines,

either in addition to or in lieu of referencing them to §2J1.2? If so, to which other guidelines? 

Alternatively, should the Commission provide cross references in §2J1.2 that allow for an offense

under section 1513 to be sentenced under a guideline other than §2J1.2? 

B. Official Victims.

The Commission requests comment regarding cases in which an official is the victim of an offense

described above. The circumstance of an official victim is addressed in the guidelines as follows:

(1) Section 3A1.2 contains an adjustment if the victim was an individual who is a

current or former government officer or employee (or a member of the immediate

family of such an individual), and the offense was motivated by such status. If the

applicable guideline is from Chapter Two, Part A (as is the case with §§2A1.1,

2A1.2, 2A2.1, 2A2.2, 2A2.3), the adjustment is 6 levels; otherwise (as with §2J1.2),

the adjustment is 3 levels.

(2) Section 3A1.2, Application Note 5, invites an upward departure if the official

victim is an exceptionally high-level official.

Do these provisions adequately address the circumstance of an official victim? If not, what

amendments to the guidelines should be made? Should the Commission increase the amount, or

the scope, of these provisions? Should the upward departure provision be incorporated as an

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enhancement in one or more of the applicable guidelines (e.g., §§2A1.1, 2A1.2, 2A2.1, 2A2.2,

2A2.3, 2J1.2)?

The Commission also requests comment on cases in which a non-official is the victim of an

offense described above. Are the guidelines adequate as they apply to such offenses? If not, what

amendments to the guidelines should be made?

C. Directive to the Commission.

Section 209 of the Act directs the Commission to review the guidelines as they apply to threats

made in violation of 18 U.S.C. § 115 (Influencing, impeding, or retaliating against a Federal

official by threatening or injuring a family member). Section 115 makes it unlawful to assault,

kidnap, or murder an individual who is a current or former federal official, or a family member

of such an individual, with intent to impede the individual in, or retaliate against the individual

for, the performance of the individual’s official duties; section 115 also makes it unlawful to

threaten such an assault, kidnapping, or murder. Such a threat is punished under 18 U.S.C. §

115(b)(4), which provides that a violator is subject to a fine under title 18, United States Code,

and imprisonment of up to 6 years (if an assault was threatened) or up to 10 years (if a

kidnapping or murder was threatened). Offenses involving threats made in violation of 18 U.S.C.

§ 115 are referenced in Appendix A of the Guidelines Manual (Statutory Index) to §2A6.1

(Threatening or Harassing Communications; Hoaxes; False Liens). 

Section 209 specified that the Commission should review those threats made in violation of

section 115 "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." Section 209 further directed the Commission to "take into consideration 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."

With regard to threats made in violation of section 115 that occur over the Internet, the guidelines

do not currently provide for the use of the Internet to be an aggravating circumstance. Should

that circumstance aggravate the punishment and, if so, by how much?

Other factors specified in the directive (i.e., (i) the number of threats made in violation of section

115, (ii) the intended number of recipients of such threats, and (iii) whether the initial senders of

such threats were acting in an individual capacity or as part of a larger group), are currently

addressed in the guidelines as follows:

(1) Section 2A6.1(b)(2)(A) contains a 2-level enhancement if the offense involvedmore

than two threats. Section 2A6.1, Application Note 1, provides that, in determining

whether this enhancement applies, conduct that occurred prior to the offense must

be "substantially and directly connected to the offense, under the facts of the case

taken as a whole".

(2) Section 2A6.1, Application Note 4, invites an upward departure if the offense

involved substantially more than two threatening communications to the same

victim, or if the offense involved multiple victims.

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Are the factors in the directive relating to number of threats made and intended number of

recipients adequately addressed through these upward departures? If not, what amendments to

the guidelines should be made? Should these upward departure provisions be incorporated as

enhancements in §2A6.1?

In considering whether to amend the guidelines as they apply to offenses involving threats made

in violation of section 115, should the Commission focus on whether to amend the guidelines with

regard to offenses that occur over the Internet (i.e., the category of offenses covered by the

directive), or should the Commission also consider whether to amend the guidelines with regard

to offenses that do not occur over the Internet? If the latter, what amendments to the guidelines

should be made?

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EXHIBIT E

ISSUES FOR COMMENT: WILLIAM WILBERFORCE TRAFFICKING VICTIMS

PROTECTION REAUTHORIZATION ACT OF 2008

1. The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Public

Law 110–457 (the "Act"), was signed into law on December 23, 2008. The Act creates two new

federal offenses, amends a number of federal statutes, and contains a directive to the Commission

relating to certain alien harboring offenses. The Commission requests comment regarding what

amendments to the guidelines may be appropriate in light of the Act. Given the recency of

enactment of the Act, it may be necessary to continue work on any or all of the issues raised by

the Act beyond the amendment cycle ending May 1, 2009.

A. Directive to the Commission.

Section 222(g) of the Act directs 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.

Alien harboring is an offense under 8 U.S.C. § 1324(a) (bringing in and harboring certain

aliens), which makes it unlawful to (among other things) harbor an illegal alien. Offenses under

section 1324(a) are referenced to §2L1.1 (Smuggling, Transporting, or Harboring an Unlawful

Alien). In some circumstances, a person who harbors an alien could also commit an offense

under 8 U.S.C. § 1328 (importation of alien for immoral purpose), which makes it unlawful to

(among other things) harbor an illegal alien for purposes of prostitution or any other immoral

purpose. Offenses under section 1328, however, are referenced not to §2L1.1 but to the

guidelines applicable to promoting a commercial sex act, §2G1.1 (Promoting a Commercial Sex

Act or Prohibited Sexual Conduct with an Individual Other than a Minor) and §2G1.3 (Promoting

a Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Transportation of Minors to

Engage in a Commercial Sex Act or Prohibited Sexual Conduct; 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). It is to those guidelines, §§2G1.1 and 2G1.3,

that sex trafficking offenses, such as 18 U.S.C. § 1591 and the offenses under chapter 117 of title

18, United States Code (18 U.S.C. § 2421 et seq.) are referenced.

The Commission requests comment regarding whether (and, if so, how) the guidelines should be

amended to ensure conformity between the guidelines applicable to persons convicted of alien

harboring (i.e., §2L1.1) and the guidelines applicable to persons convicted of promoting a

commercial sex act (i.e., §§2G1.1 and 2G1.3) if the alien harboring offense involves the

circumstances specified in the directive (i.e., the harboring was committed in furtherance of

H:\OSC\MeetingMaterials\2009\January\TRAFFICKING_002.wpd 70
prostitution and the defendant is an organizer, leader, manager, or supervisor of the criminal

activity).

In a case in which no aggravating or mitigating factors otherwise apply, a person convicted of

alien harboring under 8 U.S.C. § 1324(a)(1)(A)(iii) under the circumstances specified in the

directive receives a base offense level of 12 under §2L1.1(a)(3) and an upward adjustment of two,

three, or four levels under §3B1.1 (Aggravating Role) for being an organizer, leader, manager,

or supervisor of the criminal activity, for a resulting offense level of 14 to 16. (Section 2L1.1 does

not provide an enhancement for committing the harboring in furtherance of prostitution.) In

comparison, a person convicted of promoting a commercial sex act receives a base offense level

of 14 under §2G1.1(a)(2) (if the offense did not involve a minor) or a base offense level of 24

under §2G1.3(a)(4) (if the offense did involve a minor). In cases in which aggravating or

mitigating circumstances are present, the guideline applicable to alien harboring, §2L1.1, may

conform with the guidelines applicable to promoting a commercial sex act, §§2G1.1 and 2G1.3,

to a greater or lesser degree.

Are amendments needed to §2L1.1, as it applies to a person convicted of alien harboring under

the circumstances specified in the directive, to ensure conformity with §§2G1.1 and 2G1.3? For

example, should the Commission provide a cross reference in §2L1.1 to §§2G1.1 and 2G1.3 when

the offense involves the circumstances specified in the directive? Alternatively, should the

Commission provide one or more specific offense characteristics in §2L1.1 to account for the

circumstances specified in the directive, such as a specific offense characteristic for harboring

committed in furtherance of prostitution? Should the Commission provide a specific offense

characteristic in §2L1.1 to account for an offense involving a minor? Should the Commission

provide a specific offense characteristic in §2L1.1 that incorporates the adjustment in §3B1.1

(Aggravating Role)? If the Commission were to provide one or more such specific offense

characteristics, what should the offense levels be? Are there any other amendments that should

be made to the guidelines as they apply to a person convicted of alien harboring under the

circumstances specified in the directive?

B. New Offenses. 

The Act created two new offenses. The first new offense, 18 U.S.C. § 1593A (benefitting

financially from peonage, slavery, and trafficking in persons), makes it unlawful to knowingly

benefit, financially or by receiving anything of value, from participation in a venture which has

engaged in any act in violation of section 1581(a), 1592, or 1595(a) of title 18, United States

Code, knowing or in reckless disregard of the fact that the venture has engaged in such violation. 

A violator is subject to a fine under title 18, United States Code, and imprisonment in the same

manner as a completed violation of such section.

The second new offense, 18 U.S.C. § 1351 (fraud in foreign labor contracting), makes it unlawful

to knowingly and with intent to defraud recruit, solicit or hire a person outside the United States

for purposes of employment in the United States by means of materially false or fraudulent

pretenses, representations or promises regarding that employment. A violator is subject to a fine

under title 18, United States Code, and imprisonment of up to 5 years.

Should the Commission amend Appendix A (Statutory Index) to refer these new offenses to one

or more guidelines and, if so, which ones? Should offenses under section 1593A be referred to

H:\OSC\MeetingMaterials\2009\January\TRAFFICKING_002.wpd 71
§2H4.1 (Peonage, Involuntary Servitude, and Slave Trade)? Should offenses under section 1351

be referred to §2B1.1 (Theft, Property Destruction, and Fraud), or to §2H4.1 (Peonage,

Involuntary Servitude, and Slave Trade)? Are there aggravating or mitigating circumstances

existing in cases involving those offenses that might justify additional amendments to the

guidelines? If so, what amendments to the guidelines should be made to address those

circumstances?

C. Other Modifications to Chapter 77. 

Subtitle C of title II of the Act amended various provisions in Chapter 77 (Peonage, Slavery, and

Trafficking in Persons) of title 18, United States Code, in particular to the following offenses:

(A) 18 U.S.C. § 1583 (enticement into slavery), which is referenced in Appendix A

(Statutory Index) to §2H4.1 (Peonage, Involuntary Servitude, and Slave Trade). 

(B) 18 U.S.C. § 1584 (sale into involuntary servitude), which is referenced in

Appendix A (Statutory Index) to §2H4.1 (Peonage, Involuntary Servitude, and

Slave Trade). 

(C) 18 U.S.C. § 1589 (forced labor), which is referenced in Appendix A (Statutory

Index) to §2H4.1 (Peonage, Involuntary Servitude, and Slave Trade). 

(D) 18 U.S.C. § 1590 (trafficking with respect to peonage, slavery, involuntary

servitude, or forced labor), which is referenced in Appendix A (Statutory Index)

to §2H4.1 (Peonage, Involuntary Servitude, and Slave Trade). 

(E) 18 U.S.C. § 1591 (sex trafficking of children or by force, fraud, or coercion),

which is referenced in Appendix A (Statutory Index) to §§2G1.1 (Promoting a

Commercial Sex Act or Prohibited Sexual Conduct with an Individual Other than

a Minor), 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

§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). 

(F) 18 U.S.C. § 1592 (unlawful conduct with respect to documents in furtherance of

trafficking, peonage, slavery, involuntary servitude, or forced labor), which is

referenced in Appendix A (Statutory Index) to §2H4.1 (Peonage, Involuntary

Servitude, and Slave Trade). 

Are the guidelines adequate as they apply to such offenses? Are there aggravating or mitigating

circumstances existing in cases involving such offenses that might justify additional amendments

to the guidelines? If so, what amendments to the guidelines should be made to address those

circumstances?

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Among other things, the Act amended these offenses by extending to these offenses the obstruction

provision of 18 U.S.C. § 1581 (peonage; obstructing enforcement), under which a person who

obstructs, interferes with, or prevents the enforcement of the section is subject to the same

punishment as a person who commits the substantive offense. Are the guidelines adequate as they

apply to these offenses in a case involving obstruction?

The Act also amended 18 U.S.C. §§ 1589 and 1591 to provide that a person who benefits

financially from participating in a venture involving trafficked labor is subject to the same

punishment as a person who commits the substantive offense. Are the guidelines adequate as they

apply to these offenses in a case involving these circumstances?

The Act also amended 18 U.S.C. § 1594 (general provisions) to provide for conspiracy liability

under these offenses. Are the guidelines adequate as they apply to these offenses in a case

involving conspiracy?

Are there any other amendments to the guidelines that should be made to address the amendments

made by the Act?

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EXHIBIT F

PROPOSED AMENDMENT: MISCELLANEOUS AMENDMENTS

Synopsis of Proposed Amendment: This proposed amendment is a multi-part amendment

responding to miscellaneous issues arising from legislation recently enacted and other miscellaneous

guideline application issues.

Part A of the proposed amendment amends Appendix A (Statutory Index) to include offenses

created or amended by the Housing and Economic Recovery Act of 2008 (Public Law 110–289). The new

offense at 12 U.S.C. § 4636b is referenced to §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); as a conforming change, the similar existing offense at 12 U.S.C. § 1818(j) is also

referenced to §2B1.1. The new offense at 12 U.S.C. § 4641 is referenced to §2J1.1 (Contempt) and

§2J1.5 (Failure to Appear by Material Witness); as conforming changes, similar existing offenses (see

2 U.S.C. §§ 192, 390; 7 U.S.C. § 87f(e); 12 U.S.C. §§ 1818(j), 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. §§ 506, 1227(b);

42 U.S.C. § 3611; 47 U.S.C. § 409(m); 49 U.S.C. §§ 14909, 16104) are also referenced to §2J1.1 and

§2J1.5.

Part B of the proposed amendment amends Appendix A (Statutory Index) to include offenses

created or amended by the Consumer Product Safety Improvement Act of 2008 (Public Law 110–314). 

These offenses (see 15 U.S.C. §§ 1192, 1197(b), 1202(c), 1263, 2068) are referenced to §2N2.1

(Violations of Statutes and Regulations Dealing With Any Food, Drug, Biological Product, Device,

Cosmetic, or Agricultural Product). Technical and conforming changes are also made.

Part C of the proposed 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 at

50 U.S.C. App. § 527(e) isreferenced to §2X5.2 (Class A Misdemeanors (Not Covered by Another Specific

Guideline)); as a conforming change, the similar existing offense at 10 U.S.C. § 987(f) is also referenced

to §2X5.2.

Part D of the proposed 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 new offense at 18 U.S.C. § 117 is referenced to §2A6.2 (Stalking or Domestic

Violence).

Part E of the proposed amendment amends Appendix A (Statutory Index) to include an offense

created by the Child Soldiers Accountability Act of 2008 (Public Law 110–340). The new offense at 18

U.S.C. § 2442 isreferenced to §2H4.1 (Peonage, Involuntary Servitude, and Slave Trade). Technical and

conforming changes are also made. An issue for comment also is provided.

Part F of the proposed amendment makes changes throughout the Guidelines Manual so that it

accurately reflects 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 the addition of a new guideline for intermittent confinement that parallels the

statutory language, as well as technical and conforming changes.

Part G of the proposed amendment amends the enhancement relating to property from a national

cemetery or veterans’ memorial in subsection (b)(6) of §2B1.1 (Larceny, Embezzlement, and Other Forms

of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit;

H:\OSC\MeetingMaterials\2009\January\Miscellaneous-v3.wpd 74
Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer

Obligations of the United States) so that it also covers trafficking in such property, and makes a

conforming change to the commentary. This part responds to the directive to the Commission in the Let

Our Veterans Rest in Peace Act of 2008 (Public Law 110–384).

Part H of the proposed amendment makes changes in the child pornography guidelines, §2G2.1

and §2G2.2, so that they accurately 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 where child pornography is transmitted over the Internet. Under the proposed

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. As a conforming change, this part 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).

Part I of the proposed amendment makes a technical change to the terms "another felony offense"

and "another offense", as defined in Application Note 14(C) of the firearms guideline, §2K2.1 (Unlawful

Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving

Firearms or Ammunition). Those definitionswere slightly revised when they were placed into Application

Note 14(C) by Amendment 691 (effective November 1, 2006), and some confusion has arisen regarding

whether the revisions were intended to have a substantive effect. The technical change amends the terms

to clarify that Amendment 691 was not intended to have a substantive effect on those terms.

Part J of the proposed amendment revises Appendix A (Statutory Index) so that the threat

guideline, §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. The proposed amendment

ensures that in a case in which an offense under one of those statutes is committed by threat, the court has

the option of determining that §2A6.1 is the most analogous offense guideline.

Part K of the proposed amendment amends the enhancement relating to serious bodily injury in

subsection (b)(5) of §2B5.3 (Criminal Infringement of Copyright or Trademark) so that it parallels the

corresponding enhancement for serious bodily injury in §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). This part responds to statutory amendments made by the Prioritizing

Resources and Organization for Intellectual Property Act of 2008 (Public Law 110–403).

An issue for comment is also included regarding whether the guidelines are adequate as they

apply to subsection (a)(7) of 18 U.S.C. § 2252A, a new offense created by the PROTECT Our Children

Act of 2008 (Public Law 110–401).

Proposed Amendment:

Part A (Housing and Economic Recovery Act of 2008)

APPENDIX A - STATUTORY INDEX

2 U.S.C. § 192 2J1.1, 2J1.5

2 U.S.C. § 390 2J1.1, 2J1.5

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2 U.S.C. § 437g(d) 2C1.8

* * *

7 U.S.C. § 87b 2N2.1

7 U.S.C. § 87f(e) 2J1.1, 2J1.5

* * *

12 U.S.C. § 631 2B1.1

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

* * *

15 U.S.C. § 78ff 2B1.1, 2C1.1

15 U.S.C. § 78u(c) 2J1.1, 2J1.5

15 U.S.C. § 80a-41(c) 2J1.1, 2J1.5

15 U.S.C. § 80b-6 2B1.1

15 U.S.C. § 80b-9(c) 2J1.1, 2J1.5

* * *

15 U.S.C. § 714m(c) 2B1.1

15 U.S.C. § 717m(d) 2J1.1, 2J1.5

* * *

16 U.S.C. § 773g 2A2.4

16 U.S.C. § 825f(c) 2J1.1, 2J1.5

* * *

26 U.S.C. § 7210 2J1.1, 2J1.5

* * *

33 U.S.C. § 506 2J1.1, 2J1.5

33 U.S.C. § 1227(b) 2J1.1, 2J1.5

* * *

42 U.S.C. § 3611(f) 2J1.1, 2J1.5

* * *

47 U.S.C. § 223(b)(1)(A) 2G3.2

47 U.S.C. § 409(m) 2J1.1, 2J1.5

* * *

49 U.S.C. § 14909 2J1.1, 2J1.5

* * *

49 U.S.C. § 16104 2J1.1, 2J1.5

* * *

Part B (Consumer Product Safety Improvement Act of 2008)

PART N - OFFENSES INVOLVING FOOD, DRUGS, 

AGRICULTURAL PRODUCTS, CONSUMER PRODUCTS, AND ODOMETER LAWS

* * *

2. FOOD, DRUGS, AND AGRICULTURAL PRODUCTS, AND CONSUMER PRODUCTS

H:\OSC\MeetingMaterials\2009\January\Miscellaneous-v3.wpd 76
§2N2.1. Violations of Statutes and Regulations Dealing With Any Food, Drug, Biological

Product, Device, Cosmetic, or Agricultural Product, or Consumer Product

* * *

APPENDIX A - STATUTORY INDEX

15 U.S.C. § 1176 2E3.1

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

* * *

15 U.S.C. § 1990(c) 2N3.1 (for offenses committed prior to July 5, 1994)

15 U.S.C. § 2068 2N2.1

* * *

Part C (Veterans’ Benefits Improvement Act of 2008)

APPENDIX A - STATUTORY INDEX

* * *

8 U.S.C. § 1375a(d)(3)(C), 2H3.1

(d)(5)(B)

10 U.S.C. § 987(f) 2X5.2

* * *

50 U.S.C. § 783(c) 2M3.3

50 U.S.C. App. § 527(e) 2X5.2

* * *

Part D (Violence Against Women and Department of Justice Reauthorization Act of 2005)

APPENDIX A - STATUTORY INDEX

* * *

18 U.S.C. § 115(b)(3) 2A1.1, 2A1.2, 2A2.1, 2X1.1

18 U.S.C. § 117 2A6.2

* * *

Part E (Child Soldiers Accountability Act of 2008)

4. PEONAGE, INVOLUNTARY SERVITUDE, AND SLAVE TRADE, AND CHILD

SOLDIERS

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§2H4.1. Peonage, Involuntary Servitude, and Slave Trade, and Child Soldiers

* * *

Commentary

Statutory Provisions: 18 U.S.C. §§ 241, 1581-1590, 1592, 2442.

Application Notes:

1. For purposes of this guideline—

* * *

Definitions of "firearm," "dangerous weapon," "otherwise used," "serious bodily injury," and

"permanent or life-threatening bodily injury" are found in the Commentary to §1B1.1

(Application Instructions).

"Involuntary servitude" includes forced labor, slavery, and service as a child soldier.

* * *

APPENDIX A - STATUTORY INDEX

* * *

18 U.S.C. § 2425 2G1.3

18 U.S.C. § 2442 2H4.1

* * *

Issue for Comment

1. The Commission requests comment regarding whether it should amend Appendix A (Statutory Index)

to reference the new offense at 18 U.S.C. § 2242 to §2H4.1 (Peonage, Involuntary Servitude, and Slave

Trade) or to one or more other guidelines. Does §2H4.1, or one or more other guidelines, adequately

address offenses under 18 U.S.C. § 2242 and, if not, what aggravating or mitigating circumstances

existing in those cases might justify additional amendments to the guidelines? Alternatively, should the

Commission defer action in response to the new offense at 18 U.S.C. § 2242 this amendment cycle,

undertake a broader review of the guidelines pertaining to human rights offenses generally, and include

responding to the new offense as part of that broader review? 

Part F (Judicial Administration and Technical Amendments Act of 2008)

§5B1.3. Conditions of Probation

(a) Mandatory Conditions--

(1) for any offense, the defendant shall not commit another federal, state or

local offense (see 18 U.S.C. § 3563(a));

(2) for a felony, the defendant shall (A) make restitution, (B) give notice to

victims of the offense pursuant to 18 U.S.C. § 3555, or (C) reside, or

H:\OSC\MeetingMaterials\2009\January\Miscellaneous-v3.wpd 78
refrain from residing, in a specified place or area, or (B) work in

community service, unless the court has imposed a fine, or unless the

court finds on the record that extraordinary circumstances exist that

would make such a condition plainly unreasonable, in which event the

court shall impose one or more of the discretionary conditions set forth

under 18 U.S.C. § 3563(b) (see 18 U.S.C. § 3563(a)(2));

Note: Section 3563(a)(2) of Title 18, United States Code, provides that, absent

unusual circumstances, a defendant convicted of a felony shall abide by at least

one of the conditions set forth in 18 U.S.C. § 3563(b)(2), (b)(3), and (b)(13). 

Before the enactment of the Antiterrorism and Effective Death Penalty Act of

1996, those conditions were a fine ((b)(2)), an order of restitution ((b)(3)), and

community service ((b)(13)). Whether or not the change was intended, the Act

deleted the fine condition and renumbered the restitution and community service

conditions in 18 U.S.C. § 3563(b), but failed to make a corresponding change in

the referenced paragraphs under 18 U.S.C. § 3563(a)(2). Accordingly, the

conditions now referenced are restitution ((b)(2)), notice to victims pursuant to

18 U.S.C. § 3555 ((b)(3)), and an order that the defendant reside, or refrain from

residing, in a specified place or area ((b)(13)). 

* * *

(e) Additional Conditions (Policy Statement)

The following "special conditions" may be appropriate on a case-by-case basis:

(1) Community Confinement

Residence in a community treatment center, halfway house or similar

facility may be imposed as a condition of probation. See §5F1.1

(Community Confinement).

* * *

(6) Intermittent Confinement

Intermittent confinement (custody for intervals of time) may be ordered

as a condition of probation during the first year of probation. See §5F1.8

(Intermittent Confinement).

§5C1.1. Imposition of a Term of Imprisonment

* * *

(c) If the applicable guideline range is in Zone B of the Sentencing Table, the

minimum term may be satisfied by --

* * *

(2) a sentence of imprisonment that includes a term of supervised release

with a condition that substitutes community confinement* or home

detention according to the schedule in subsection (e), provided that at

least one month is satisfied by imprisonment; or

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* * *

(d) If the applicable guideline range is in Zone C of the Sentencing Table, the

minimum term may be satisfied by --

* * *

(2) a sentence of imprisonment that includes a term of supervised release

with a condition that substitutes community confinement* or home

detention according to the schedule in subsection (e), provided that at

least one-half of the minimum term is satisfied by imprisonment. 

* * *

Commentary

Application Notes:

* * *

3. Subsection (c) provides that where the applicable guideline range is in Zone B of the Sentencing

Table (i.e., the minimum term of imprisonment specified in the applicable guideline range is at

least one but not more than six months), the court has three options:

* * *

(C) Or, it may impose a sentence of imprisonment that includes a term of supervised

release with a condition that requires community confinement* or home

detention. In such case, at least one month must be satisfied by actual

imprisonment and the remainder of the minimum term specified in the guideline

range must be satisfied by community confinement or home detention. For

example, where the guideline range is 4-10 months, a sentence of imprisonment

of one month followed by a term of supervised release with a condition requiring

three months of community confinement or home detention would satisfy the

minimum term of imprisonment specified in the guideline range.

* * *

4. Subsection (d) provides that where the applicable guideline range is in Zone C of the Sentencing

Table (i.e., the minimum term specified in the applicable guideline range is eight, nine, or ten

months), the court has two options:

* * *

(B) Or, it may impose a sentence of imprisonment that includes a term of supervised

release with a condition requiring community confinement* or home detention. 

In such case, at least one-half of the minimum term specified in the guideline

range must be satisfied by imprisonment, and the remainder of the minimum term

specified in the guideline range must be satisfied by community confinement or

home detention. For example, where the guideline range is 8-14 months, a

sentence of four months imprisonment followed by a term of supervised release

with a condition requiring four months community confinement or home

detention would satisfy the minimum term of imprisonment required by the

H:\OSC\MeetingMaterials\2009\January\Miscellaneous-v3.wpd 80
guideline range.

* * *

6. There may be cases in which a departure from the guidelines by substitution of a longer period

of community confinement* than otherwise authorized for an equivalent number of months of

imprisonment iswarranted to accomplish a specific treatment purpose (e.g., substitution of twelve

months in an approved residential drug treatment program for twelve months of imprisonment). 

Such a substitution should be considered only in cases where the defendant’s criminality is

related to the treatment problem to be addressed and there is a reasonable likelihood that

successful completion of the treatment program will eliminate that problem.

* * *

*Note: Section 3583(d) of title 18, United States Code, provides that "[t]he court may order, as a further

condition of supervised release...any condition setforth as a discretionary condition of probation in section

3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any other condition it considers to be

appropriate." Subsection (b)(11) of section 3563 of title 18, United States Code, is explicitly excluded

as a condition of supervised release. Before the enactment of the Antiterrorism and Effective Death

Penalty Act of 1996, the condition at 18 U.S.C. § 3563(b)(11) was intermittent confinement. The Act

deleted 18 U.S.C. § 3563(b)(2), authorizing the payment of a fine as a condition of probation, and

redesignated the remaining conditions of probation set forth in 18 U.S.C. § 3563(b); intermittent

confinement is now set forth at subsection (b)(10), whereas subsection (b)(11) sets forth the condition of

residency at a community corrections facility. It would appear that intermittent confinement now is

authorized as a condition of supervised release and that community confinement now is not authorized

as a condition of supervised release. 

However, there issome question as to whether Congress intended this result. Although the Antiterrorism

and Effective Death Penalty Act of 1996 redesignated the remaining paragraphs of section 3563(b), it

failed to make the corresponding redesignations in 18 U.S.C. § 3583(d), regarding discretionaryconditions

of supervised release.

§5D1.3. Conditions of Supervised Release

* * *

(e) Additional Conditions (Policy Statement)

The following "special conditions" may be appropriate on a case-by-case basis:

(1) Community Confinement*

Residence in a community treatment center, halfway house or similar

facility may be imposed as a condition of supervised release. See §5F1.1

(Community Confinement).

*Note: Section 3583(d) of title 18, United States Code, providesthat "[t]he court

may order, as a further condition of supervised release...any condition set forth

as a discretionary condition of probation in section 3563(b)(1) through (b)(10)

and (b)(12) through (b)(20), and any other condition it considers to be

appropriate." Subsection (b)(11) of section 3563 of title 18, United States Code,

is explicitly excluded as a condition of supervised release. Before the enactment

H:\OSC\MeetingMaterials\2009\January\Miscellaneous-v3.wpd 81
of the Antiterrorism and Effective Death Penalty Act of 1996, the condition at

18 U.S.C. § 3563(b)(11) was intermittent confinement. The Act deleted 18

U.S.C. § 3563(b)(2), authorizing the payment of a fine as a condition of

probation, and redesignated the remaining conditions of probation set forth in 18

U.S.C. § 3563(b); intermittent confinement is now set forth atsubsection (b)(10),

whereas subsection (b)(11) sets forth the condition of residency at a community

corrections facility. It would appear that intermittent confinement now is

authorized as a condition of supervised release and that community confinement

now is not authorized as a condition of supervised release.

However, there is some question as to whether Congress intended this result. 

Although the Antiterrorism and Effective Death Penalty Act of 1996

redesignated the remaining paragraphs of section 3563(b), it failed to make the

corresponding redesignations in 18 U.S.C. § 3583(d), regarding discretionary

conditions of supervised release.

* * *

(5) Curfew

* * *

(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. See §5F1.8 (Intermittent Confinement).

* * *

§5F1.1. Community Confinement

Community confinement may be imposed as a condition of probation or supervised

release.*

*Note: Section 3583(d) of title 18, United States Code, provides that "[t]he court may

order, as a further condition of supervised release...any condition set forth as a

discretionary condition of probation in section 3563(b)(1) through (b)(10) and (b)(12)

through (b)(20), and any other condition it considers to be appropriate." Subsection

(b)(11) of section 3563 of title 18, United States Code, is explicitly excluded as a

condition of supervised release. Before the enactment of the Antiterrorism and Effective

Death Penalty Act of 1996, the condition at 18 U.S.C. § 3563(b)(11) was intermittent

confinement. The Act deleted 18 U.S.C. § 3563(b)(2), authorizing the payment of a fine

as a condition of probation, and redesignated the remaining conditions of probation set

forth in 18 U.S.C. § 3563(b); intermittent confinement is now set forth at subsection

(b)(10), whereas subsection (b)(11) sets forth the condition of residency at a community

corrections facility. It would appear that intermittent confinement now is authorized as

a condition of supervised release and that community confinement now is not authorized

as a condition of supervised release.

However, there is some question as to whether Congress intended this result. Although

the Antiterrorism and Effective Death Penalty Act of 1996 redesignated the remaining

paragraphs of section 3563(b), it failed to make the corresponding redesignations in 18

U.S.C. § 3583(d), regarding discretionary conditions of supervised release.

H:\OSC\MeetingMaterials\2009\January\Miscellaneous-v3.wpd 82
* * *

§5F1.8. Intermittent Confinement

Intermittent confinement may be imposed as a condition of probation or supervised

release.

Commentary

Application Notes:

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).

2. Intermittent confinement shall be imposed as a condition of supervised release 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).

* * *

CHAPTER SEVEN - VIOLATIONS OF PROBATION AND 

SUPERVISED RELEASE

PART A - INTRODUCTION TO CHAPTER SEVEN

* * *

2. Background

(b) Supervised Release.

* * *

With the exception of residency in, or participation in the program of, a community corrections

facility,* which is available only for a sentence of probation, the The conditions of supervised release

authorized by statute are the same as those for a sentence of probation. When the court finds that the

defendant violated a condition of supervised release, it may continue the defendant on supervised release,

with or without extending the term or modifying the conditions, or revoke supervised release and impose

a term of imprisonment. The periods of imprisonment authorized by statute for a violation of the

conditions of supervised release generally are more limited, however, than those available for a violation

of the conditions of probation. 18 U.S.C. § 3583(e)(3). 

*Note: Section 3583(d) of title 18, United States Code, provides that "[t]he court may order, as a further

condition ofsupervised release...any condition setforth as a discretionary condition of probation in section

3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any other condition it considers to be

appropriate." Subsection (b)(11) of section 3563 of title 18, United States Code, is explicitly excluded

as a condition of supervised release. Before the enactment of the Antiterrorism and Effective Death

Penalty Act of 1996, the condition at 18 U.S.C. § 3563(b)(11) was intermittent confinement. The Act

deleted 18 U.S.C. § 3563(b)(2), authorizing the payment of a fine as a condition of probation, and

redesignated the remaining conditions of probation set forth in 18 U.S.C. § 3563(b); intermittent

confinement is now set forth at subsection (b)(10), whereas subsection (b)(11) sets forth the condition of

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residency at a community corrections facility. It would appear that intermittent confinement now is

authorized as a condition of supervised release and that community confinement now is not authorized

as a condition of supervised release. 

However, there is some question as to whether Congress intended this result. Although the Antiterrorism

and Effective Death Penalty Act of 1996 redesignated the remaining paragraphs of section 3563(b), it

failed to make the corresponding redesignations in 18 U.S.C. § 3583(d), regarding discretionary conditions

of supervised release.

* * *

§7B1.3. Revocation of Probation or Supervised Release (Policy Statement)

* * *

Commentary

Application Notes:

* * *

5. Intermittent confinement is authorized only as a condition of probation only during the first year

of the term of probation., see 18 U.S.C. § 3563(b)(10), and as a condition of supervised release

only during the first year of supervised release, see 18 U.S.C. § 3583(d). See §5F1.8 (Intermittent

Confinement).*

*Note: Section 3583(d) of title 18, United States Code, provides that "[t]he court may order, as

a further condition of supervised release...any condition set forth as a discretionary condition of

probation in section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any other

condition it considers to be appropriate." Subsection (b)(11) of section 3563 of title 18, United

States Code, is explicitly excluded as a condition of supervised release. Before the enactment of

the Antiterrorism and Effective Death Penalty Act of 1996, the condition at 18 U.S.C. §

3563(b)(11) was intermittent confinement. The Act deleted 18 U.S.C. § 3563(b)(2), authorizing

the payment of a fine as a condition of probation, and redesignated the remaining conditions of

probation set forth in 18 U.S.C. § 3563(b); intermittent confinement is now set forth at subsection

(b)(10), whereas subsection (b)(11) sets forth the condition of residency at a community

corrections facility. It would appear that intermittent confinement now is authorized as a

condition of supervised release and that community confinement now is not authorized as a

condition of supervised release. 

However, there is some question as to whether Congress intended this result. Although the

Antiterrorism and Effective Death Penalty Act of 1996 redesignated the remaining paragraphs

of section 3563(b), it failed to make the corresponding redesignations in 18 U.S.C. § 3583(d),

regarding discretionary conditions of supervised release.

* * *

§8D1.3. Conditions of Probation - Organizations

* * *

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(b) Pursuant to 18 U.S.C. § 3563(a)(2), if a sentence of probation is imposed for a

felony, the court shall impose as a condition of probation at least one of the

following: (1) restitution, (2) notice to victims of the offense pursuant to 18

U.S.C. § 3555, or (3) an order requiring the organization to reside, or refrain

from residing, in a specified place or area, or (2) community service, unless the

court has imposed a fine, or unless the court finds on the record that

extraordinary circumstances exist that would make such condition plainly

unreasonable, in which event the courtshall impose one or more other conditions

set forth in 18 U.S.C. § 3563(b). 

Note: Section 3563(a)(2) of Title 18, United States Code, provides that, absent

unusual circumstances, a defendant convicted of a felony shall abide by at least

one of the conditions set forth in 18 U.S.C. § 3563(b)(2), (b)(3), and (b)(13). 

Before the enactment of the Antiterrorism and Effective Death Penalty Act of

1996, those conditions were a fine ((b)(2)), an order of restitution ((b)(3)), and

community service ((b)(13)). Whether or not the change was intended, the Act

deleted the fine condition and renumbered the restitution and community service

conditions in 18 U.S.C. § 3563(b), but failed to make a corresponding change in

the referenced paragraphs under 18 U.S.C. § 3563(a)(2). Accordingly, the

conditions now referenced are restitution ((b)(2)), notice to victims pursuant to

18 U.S.C. § 3555 ((b)(3)), and an order that the defendant reside, or refrain from

residing, in a specified place or area ((b)(13)).

* * *

Part G (Let Our Veterans Rest in Peace Act of 2008)

§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

* * *

(b) Specific Offense Characteristics

* * *

(6) If the offense involved theft of, damage to, or destruction of, or

trafficking in, property from a national cemetery or veterans’ memorial,

increase by 2 levels.

* * *

Commentary

* * *

Background: This guideline covers offenses involving theft, stolen property, property damage or

destruction, fraud, forgery, and counterfeiting (other than offenses involving altered or counterfeit bearer

obligations of the United States). 

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* * *

Subsection (b)(6) implements the instruction to the Commission in section 2 of Public Law

105–101 and the directive to the Commission in section 3 of Public Law 110–384.

* * *

Part H (PROTECT Our Children Act of 2008 and Effective Child Pornography Prosecution Act

of 2007)

§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

(a) Base Offense Level: 32

(b) Specific Offense Characteristics

(1) If the offense involved a minor who had (A) not attained the age of

twelve years, increase by 4 levels; or (B) attained the age of twelve years

but not attained the age of sixteen years, increase by 2 levels.

(2) (Apply the greater) If the offense involved—

(A) the commission of a sexual act or sexual contact, increase by 2

levels; or

(B) (i) the commission of a sexual act; and (ii) conduct described

in 18 U.S.C. § 2241(a) or (b), increase by 4 levels.

(3) If the offense involved distribution, increase by 2 levels.

(4) If the offense involved material that portrays sadistic or masochistic

conduct or other depictions of violence, increase by 4 levels.

(5) If the defendant was a parent, relative, or legal guardian of the minor

involved in the offense, or if the minor was otherwise in the custody,

care, or supervisory control of the defendant, increase by 2 levels.

(6) If, for the purpose of producing sexually explicit material or for the

purpose of transmitting such material live, the offense involved (A) the

knowing misrepresentation of a participant’s identity to persuade,

induce, entice, coerce, or facilitate the travel of, a minor to engage

sexually explicit conduct; or (B) the use of a computer or an interactive

computer service to (i) persuade, induce, entice, coerce, or facilitate the

travel of, a minor to engage in sexually explicit conduct, or to otherwise

solicit participation by a minor in such conduct; or (ii) solicit

participation with a minor in sexually explicit conduct, increase by 2

levels.

(c) Cross Reference

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(1) If the victim was killed in circumstances that would constitute murder

under 18 U.S.C. § 1111 had such killing taken place within the territorial

or maritime jurisdiction of the United States, apply §2A1.1 (First Degree

Murder), if the resulting offense level is greater than that determined

above.

(d) Special Instruction

(1) If the offense involved the exploitation of more than one minor, Chapter

Three, Part D (Multiple Counts) shall be applied as if the exploitation of

each minor had been contained in a separate count of conviction.

Commentary

Statutory Provisions: 18 U.S.C. §§ 1591, 2251, 2260(b).

Application Notes:

1. Definitions.—For purposes of this guideline:

"Computer" has the meaning given that term in 18 U.S.C. § 1030(e)(1).

"Distribution" means any act, including possession with intent to distribute, production,

transmission, advertisement, and transportation, related to the transfer of material involving the

sexual exploitation of a minor. Accordingly, distribution includes posting material involving the

sexual exploitation of a minor on a website for public viewing but does not include the mere

solicitation of such material by a defendant.

"Interactive computer service" has the meaning given that term in section 230(e)(2) of the

Communications Act of 1934 (47 U.S.C. § 230(f)(2)).

"Material" includes a visual depiction, as defined in 18 U.S.C. § 2256.

"Minor" means (A) an individual who had not attained the age of 18 years; (B) an individual,

whether fictitious or not, who a law enforcement officer represented to a participant (i) had not

attained the age of 18 years, and (ii) could be provided for the purposes of engaging in sexually

explicit conduct; or (C) an undercover law enforcement officer who represented to a participant

that the officer had not attained the age of 18 years. 

"Sexually explicit conduct" has the meaning given that term in 18 U.S.C. § 2256(2).

2. Application of Subsection (b)(2).—For purposes of subsection (b)(2):

"Conduct described in 18 U.S.C. § 2241(a) or (b)" is: (i) using force against the minor; (ii)

threatening or placing the minor in fear that any person will be subject to death, serious bodily

injury, or kidnapping; (iii) rendering the minor unconscious; or (iv) administering by force or

threat of force, or without the knowledge or permission of the minor, a drug, intoxicant, or other

similar substance and thereby substantially impairing the ability of the minor to appraise or

control conduct. This provision would apply, for example, if any dangerous weapon was used or

brandished, or in a case in which the ability of the minor to appraise or control conduct was

substantially impaired by drugs or alcohol. 

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"Sexual act" has the meaning given that term in 18 U.S.C. § 2246(2).

"Sexual contact" has the meaning given that term in 18 U.S.C. § 2246(3).

3. Application of Subsection (b)(5).—

(A) In General.—Subsection (b)(5) is intended to have broad application and includes

offenses involving a minor entrusted to the defendant, whether temporarily or

permanently. For example, teachers, day care providers, baby-sitters, or other

temporary caretakers are among those who would be subject to this enhancement. In

determining whether to apply this adjustment, the court should look to the actual

relationship that existed between the defendant and the minor and not simply to the legal

status of the defendant-minor relationship.

(B) Inapplicability of Chapter Three Adjustment.—If the enhancement in subsection (b)(5)

applies, do not apply §3B1.3 (Abuse of Position of Trust or Use of Special Skill).

4. Application of Subsection (b)(6).—

(A) Misrepresentation of Participant’s Identity.—The enhancement in subsection (b)(6)(A)

applies in cases involving the misrepresentation of a participant’s identity to persuade,

induce, entice, coerce, or facilitate the travel of, a minor to engage in sexually explicit

conduct for the purpose of producing sexually explicit material or for the purpose of

transmitting such material live. Subsection (b)(6)(A) is intended to apply only to

misrepresentations made directly to a minor or to a person who exercises custody, care,

or supervisory control of the minor. Accordingly, the enhancement in subsection

(b)(6)(A) would not apply to a misrepresentation made by a participant to an airline

representative in the course of making travel arrangements for the minor. 

The misrepresentation to which the enhancement in subsection (b)(6)(A) may apply

includes misrepresentation of a participant’s name, age, occupation, gender, or status,

as long as the misrepresentation was made with the intent to persuade, induce, entice,

coerce, or facilitate the travel of, a minor to engage in sexually explicit conduct for the

purpose of producing sexually explicit material or for the purpose of transmitting such

material live. Accordingly, use of a computer screen name, without such intent, would

not be a sufficient basis for application of the enhancement.

(B) Use of a Computer or an Interactive Computer Service.—Subsection (b)(6)(B) provides

an enhancement if the offense involved the use of a computer or an interactive computer

service to persuade, induce, entice, coerce, or facilitate the travel of, a minor to engage

in sexually explicit conduct for the purpose of producing sexually explicit material or for

the purpose of transmitting such material live, or otherwise to solicit participation by a

minor in such conduct for such purposes. Subsection (b)(6)(B) is intended to apply only

to the use of a computer or an interactive computer service to communicate directly with

a minor or with a person who exercises custody, care, or supervisory control of the

minor. Accordingly, the enhancement would not apply to the use of a computer or an

interactive computer service to obtain airline tickets for the minor from an airline’s

Internet site.

5. Application of Subsection (d)(1).—For the purposes of Chapter Three, Part D (Multiple Counts),

each minor exploited is to be treated as a separate minor. Consequently, multiple counts

involving the exploitation of different minors are not to be grouped together under §3D1.2

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(Groups of Closely Related Counts). Subsection (d)(1) directs that if the relevant conduct of an

offense of conviction includes more than one minor being exploited, whetherspecifically cited in

the count of conviction or not, each such minor shall be treated as if contained in a separate

count of conviction.

6. Upward Departure Provision.—An upward departure may be warranted if the offense involved

more than 10 minors.

§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 

(a) Base Offense Level: 

(1) 18, if the defendant is convicted of 18 U.S.C. § 1466A(b), § 2252(a)(4),

or § 2252A(a)(5).

(2) 22, otherwise.

(b) Specific Offense Characteristics

(1) If (A)subsection (a)(2) applies; (B) the defendant’s conduct was limited

to the receipt or solicitation of material involving the sexual exploitation

of a minor; and (C) the defendant did not intend to traffic in, or

distribute, such material, decrease by 2 levels. 

(2) If the material involved a prepubescent minor or a minor who had not

attained the age of 12 years, increase by 2 levels.

(3) (Apply the greatest) If the offense involved:

(A) Distribution for pecuniary gain, increase by the number of levels

from the table in §2B1.1 (Theft, Property Destruction, and

Fraud) corresponding to the retail value of the material, but by

not less than 5 levels.

(B) Distribution for the receipt, or expectation of receipt, of a thing

of value, but not for pecuniary gain, increase by 5 levels.

(C) Distribution to a minor, increase by 5 levels. 

(D) Distribution to a minor that was intended to persuade, induce,

entice, or coerce the minor to engage in any illegal activity,

other than illegal activity covered under subdivision (E),

increase by 6 levels.

(E) Distribution to a minor that was intended to persuade, induce,

entice, coerce, or facilitate the travel of, the minor to engage in

prohibited sexual conduct, increase by 7 levels.

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(F) Distribution other than distribution described in subdivisions

(A) through (E), increase by 2 levels.

(4) If the offense involved material that portrays sadistic or masochistic

conduct or other depictions of violence, increase by 4 levels.

(5) If the defendant engaged in a pattern of activity involving the sexual

abuse or exploitation of a minor, increase by 5 levels.

(6) If the offense involved the use of a computer or an interactive computer

service for the possession, transmission, receipt, or distribution of the

material, or for accessing with intent to view the material, increase by 2

levels.

(7) If the offense involved—

(A) at least 10 images, but fewer than 150, increase by 2 levels;

(B) at least 150 images, but fewer than 300, increase by 3 levels;

(C) at least 300 images, but fewer than 600, increase by 4 levels;

and

(D) 600 or more images, increase by 5 levels.

(c) Cross Reference

(1) If the offense involved causing, transporting, permitting, or offering or

seeking by notice or advertisement, a minor to engage in sexually

explicit conduct for the purpose of producing a visual depiction of such

conduct or for the purpose of transmitting a live visual depiction of such

conduct, apply §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), if the resulting offense level is greater

than that determined above.

Commentary

Statutory Provisions: 18 U.S.C. §§ 1466A, 2252, 2252A, 2260(b).

Application Notes:

1. Definitions.—For purposes of this guideline:

"Computer" has the meaning given that term in 18 U.S.C. § 1030(e)(1).

"Distribution" means any act, including possession with intent to distribute, production,

transmission, advertisement, and transportation, related to the transfer of material involving the

sexual exploitation of a minor. Accordingly, distribution includes posting material involving the

sexual exploitation of a minor on a website for public viewing but does not include the mere

solicitation of such material by a defendant.

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"Distribution for pecuniary gain" means distribution for profit.

"Distribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary

gain" means any transaction, including bartering or other in-kind transaction, that is conducted

for a thing of value, but not for profit. "Thing of value" means anything of valuable

consideration. For example, in a case involving the bartering of child pornographic material,

the "thing of value" is the child pornographic material received in exchange for other child

pornographic material bartered in consideration for the material received.

"Distribution to a minor" means the knowing distribution to an individual who is a minor at the

time of the offense. 

"Interactive computer service" has the meaning given that term in section 230(e)(2) of the

Communications Act of 1934 (47 U.S.C. § 230(f)(2)).

"Material" includes a visual depiction, as defined in 18 U.S.C. § 2256.

"Minor" means (A) an individual who had not attained the age of 18 years; (B) an individual,

whether fictitious or not, who a law enforcement officer represented to a participant (i) had not

attained the age of 18 years, and (ii) could be provided for the purposes of engaging in sexually

explicit conduct; or (C) an undercover law enforcement officer who represented to a participant

that the officer had not attained the age of 18 years. 

"Pattern of activity involving the sexual abuse or exploitation of a minor" means any combination

of two or more separate instances of the sexual abuse or sexual exploitation of a minor by the

defendant, whether or not the abuse or exploitation (A) occurred during the course of the offense;

(B) involved the same minor; or (C) resulted in a conviction for such conduct. 

"Prohibited sexual conduct" has the meaning given that term in Application Note 1 of the

Commentary to §2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse).

"Sexual abuse or exploitation" means any of the following: (A) conduct described in 18 U.S.C.

§ 2241, § 2242, § 2243, § 2251, § 2251A, § 2260(b), § 2421, § 2422, or § 2423; (B) an offense

under state law, that would have been an offense under any such section if the offense had

occurred within the special maritime or territorial jurisdiction of the United States; or (C) an

attempt or conspiracy to commit any of the offenses under subdivisions (A) or (B). "Sexual abuse

or exploitation" does not include possession, accessing with intent to view, receipt, or trafficking

in material relating to the sexual abuse or exploitation of a minor.

2. Application of Subsection (b)(4).—Subsection (b)(4) applies if the offense involved material that

portrays sadistic or masochistic conduct or other depictions of violence, regardless of whether

the defendant specifically intended to possess, access with intent to view, receive, or distribute

such materials.

3. Application of Subsection (b)(5).—A conviction taken into account under subsection (b)(5) is not

excluded from consideration of whetherthat conviction receives criminal history points pursuant

to Chapter Four, Part A (Criminal History).

4. Application of Subsection (b)(7).—

(A) Definition of "Images".—"Images" means any visual depiction, as defined in 18 U.S.C.

§ 2256(5), that constitutes child pornography, as defined in 18 U.S.C. § 2256(8). 

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(B) Determining the Number of Images.—For purposes of determining the number of images

under subsection (b)(7): 

(i) Each photograph, picture, computer or computer-generated image, or any

similar visual depiction shall be considered to be one image. If the number of

images substantially underrepresentsthe number of minors depicted, an upward

departure may be warranted.

(ii) Each video, video-clip, movie, or similar recordingvisual depiction shall be

considered to have 75 images. If the length of the recordingvisual depiction is

substantially more than 5 minutes, an upward departure may be warranted.

5. Application of Subsection (c)(1).—

(A) In General.—The cross reference in subsection (c)(1) is to be construed broadly and

includes all instanceswhere the offense involved employing, using, persuading, inducing,

enticing, coercing, transporting, permitting, or offering or seeking by notice or

advertisement, a minor to engage in sexually explicit conduct for the purpose of

producing any visual depiction of such conduct or forthe purpose of transmitting live any

visual depiction of such conduct.

(B) Definition.—"Sexually explicit conduct" has the meaning given that term in 18 U.S.C.

§ 2256(2).

6. Upward Departure Provision.—If the defendant engaged in the sexual abuse or exploitation of

a minor at any time (whether or not such abuse or exploitation occurred during the course of the

offense or resulted in a conviction for such conduct) and subsection (b)(5) does not apply, an

upward departure may be warranted. In addition, an upward departure may be warranted if the

defendant received an enhancement under subsection (b)(5) but that enhancement does not

adequately reflect the seriousness of the sexual abuse or exploitation involved. 

Background: Section 401(i)(1)(C) of Public Law 108–21 directly amended subsection (b) to add

subdivision (7), effective April 30, 2003.

* * *

Part I (Clarification of §2K2.1, Application Note 14(C))

§2K2.1. Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition;

Prohibited Transactions Involving Firearms or Ammunition

(a) Base Offense Level (Apply the Greatest):

(1) 26, if(A)the offense involved a (i) semiautomatic firearmthat is capable

of accepting a large capacity magazine; or (ii) firearm that is described

in 26 U.S.C. § 5845(a); and (B) the defendant committed any part of the

instant offense subsequent to sustaining at least two felony convictions

of either a crime of violence or a controlled substance offense;

(2) 24, if the defendant committed any part of the instant offense subsequent

to sustaining at least two felony convictions of either a crime of violence

or a controlled substance offense;

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(3) 22, if (A) the offense involved a (i) semiautomatic firearmthat is capable

of accepting a large capacity magazine; or (ii) firearm that is described

in 26 U.S.C. § 5845(a); and (B) the defendant committed any part of the

instant offense subsequent to sustaining one felony conviction of either

a crime of violence or a controlled substance offense;

(4) 20, if --

(A) the defendant committed any part of the instant offense

subsequent to sustaining one felony conviction of either a crime

of violence or a controlled substance offense; or

(B) the (i) offense involved a (I) semiautomatic firearm that is

capable of accepting a large capacity magazine; or (II) firearm

that is described in 26 U.S.C. § 5845(a); and (ii) defendant (I)

was a prohibited person at the time the defendant committed the

instant offense; or (II) is convicted under 18 U.S.C. § 922(d);

(5) 18, if the offense involved a firearm described in 26 U.S.C. § 5845(a);

(6) 14, if the defendant (A) was a prohibited person at the time the

defendant committed the instant offense; or (B) is convicted under 18

U.S.C. § 922(d);

(7) 12, except as provided below; or

(8) 6, if the defendant is convicted under 18 U.S.C. § 922(c), (e), (f), (m),

(s), (t), or (x)(1).

(b) Specific Offense Characteristics 

(1) If the offense involved three or more firearms, increase as follows:

Number of Firearms Increase in Level

(A) 3-7 add 2

(B) 8-24 add 4

(C) 25-99 add 6

(D) 100-199 add 8

(E) 200 or more add 10.

(2) If the defendant, other than a defendant subject to subsection (a)(1),

(a)(2), (a)(3), (a)(4), or (a)(5), possessed all ammunition and firearms

solely for lawful sporting purposes or collection, and did not unlawfully

discharge or otherwise unlawfully use such firearms or ammunition,

decrease the offense level determined above to level 6.

(3) If the offense involved—

(A) a destructive device that is a portable rocket, a missile, or a

device for use in launching a portable rocket or a missile,

increase by 15 levels; or

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(B) a destructive device other than a destructive device referred to

in subdivision (A), increase by 2 levels.

(4) If any firearm (A) was stolen, increase by 2 levels; or (B) had an altered

or obliterated serial number, increase by 4 levels.

The cumulative offense level determined from the application of subsections

(b)(1) through (b)(4) may not exceed level 29, except if subsection (b)(3)(A)

applies.

(5) If the defendant engaged in the trafficking of firearms, increase by 4

levels.

(6) If the defendant used or possessed any firearm or ammunition in

connection with another felony offense; or possessed or transferred any

firearm or ammunition with knowledge, intent, or reason to believe that

it would be used or possessed in connection with another felony offense,

increase by 4 levels. If the resulting offense level is less than level 18,

increase to level 18.

(7) If a recordkeeping offense reflected an effort to conceal a substantive

offense involving firearms or ammunition, increase to the offense level

for the substantive offense.

(c) Cross Reference

(1) If the defendant used or possessed any firearm or ammunition in

connection with the commission or attempted commission of another

offense, or possessed or transferred a firearm or ammunition with

knowledge or intent that it would be used or possessed in connection

with another offense, apply --

(A) §2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that

other offense, if the resulting offense level is greater than that

determined above; or

(B) if death resulted, the most analogous offense guideline from

Chapter Two, Part A, Subpart 1 (Homicide), if the resulting

offense level is greater than that determined above.

Commentary

Statutory Provisions: 18 U.S.C. §§ 922(a)-(p), (r)-(w), (x)(1), 924(a), (b), (e)-(i), (k)-(o), 2332g; 26 U.S.C.

§ 5861(a)-(l). For additional statutory provisions, see Appendix A (Statutory Index).

Application Notes:

1. Definitions.— For purposes of this guideline:

"Ammunition" has the meaning given that term in 18 U.S.C. § 921(a)(17)(A).

H:\OSC\MeetingMaterials\2009\January\Miscellaneous-v3.wpd 94
"Controlled substance offense" has the meaning given that term in §4B1.2(b) and Application

Note 1 of the Commentary to §4B1.2 (Definitions of Terms Used in Section 4B1.1).

"Crime of violence" has the meaning given that term in §4B1.2(a) and Application Note 1 of the

Commentary to §4B1.2. 

"Destructive device" has the meaning given that term in 26 U.S.C. § 5845(f).

"Felony conviction" means a prior adult federal or state conviction for an offense punishable by

death or imprisonment for a term exceeding one year, regardless of whether such offense is

specifically designated as a felony and regardless of the actual sentence imposed. A conviction

for an offense committed at age eighteen years or older is an adult conviction. A conviction for

an offense committed prior to age eighteen years is an adult conviction if it is classified as an

adult conviction under the laws of the jurisdiction in which the defendant was convicted (e.g., a

federal conviction for an offense committed prior to the defendant’s eighteenth birthday is an

adult conviction if the defendant was expressly proceeded against as an adult).

"Firearm" has the meaning given that term in 18 U.S.C. § 921(a)(3).

2. Semiautomatic Firearm Capable of Accepting a Large Capacity Magazine.—For purposes of

subsections (a)(1), (a)(3), and (a)(4), a "semiautomatic firearm capable of accepting a large

capacity magazine" means a semiautomatic firearm that has the ability to fire many rounds

without reloading because at the time of the offense (A)the firearm had attached to it a magazine

or similar device that could accept more than 15 rounds of ammunition; or (B) a magazine or

similar device that could accept more than 15 rounds of ammunition was in close proximity to

the firearm. This definition does not include a semiautomatic firearm with an attached tubular

device capable of operating only with .22 caliber rim fire ammunition.

3. Definition of "Prohibited Person".—For purposes of subsections(a)(4)(B) and (a)(6), "prohibited

person" means any person described in 18 U.S.C. § 922(g) or § 922(n).

4. Application of Subsection (a)(7).— Subsection (a)(7) includes the interstate transportation or

interstate distribution of firearms, which is frequently committed in violation of state, local, or

other federal law restricting the possession of firearms, or for some other underlying unlawful

purpose. In the unusual case in which it is established that neither avoidance of state, local, or

other federal firearms law, nor any other underlying unlawful purpose was involved, a reduction

in the base offense level to no lower than level 6 may be warranted to reflect the less serious

nature of the violation.

5. Application of Subsection (b)(1).—For purposes of calculating the number of firearms under

subsection (b)(1), count only those firearms that were unlawfully sought to be obtained,

unlawfully possessed, or unlawfully distributed, including any firearm that a defendant obtained

or attempted to obtain by making a false statement to a licensed dealer.

6. Application of Subsection (b)(2).—Under subsection (b)(2), "lawful sporting purposes or

collection" as determined by the surrounding circumstances, provides for a reduction to an

offense level of 6. Relevant surrounding circumstances include the number and type of firearms,

the amount and type of ammunition, the location and circumstances of possession and actual use,

the nature of the defendant’s criminal history (e.g., prior convictions for offenses involving

firearms), and the extent to which possession was restricted by local law. Note that where the

base offense level is determined under subsections (a)(1) - (a)(5), subsection (b)(2) is not

applicable. 

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7. Destructive Devices.—A defendant whose offense involves a destructive device receives both the

base offense level from the subsection applicable to a firearm listed in 26 U.S.C. § 5845(a) (e.g.,

subsection (a)(1), (a)(3), (a)(4)(B), or (a)(5)), and the applicable enhancement under subsection

(b)(3). Such devices pose a considerably greater risk to the public welfare than other National

Firearms Act weapons.

Offenses involving such devices cover a wide range of offense conduct and involve different

degrees of risk to the public welfare depending on the type of destructive device involved and the

location or manner in which that destructive device was possessed or transported. For example,

a pipe bomb in a populated train station creates a substantially greater risk to the public welfare,

and a substantially greater risk of death or serious bodily injury, than an incendiary device in an

isolated area. In a case in which the cumulative result of the increased base offense level and the

enhancement under subsection (b)(3) does not adequately capture the seriousness of the offense

because of the type of destructive device involved, the risk to the public welfare, or the risk of

death or serious bodily injury that the destructive device created, an upward departure may be

warranted. See also §§5K2.1 (Death), 5K2.2 (Physical Injury), and 5K2.14 (Public Welfare).

8. Application of Subsection (b)(4).—

(A) Interaction with Subsection (a)(7).—If the only offense to which §2K2.1 applies is 18

U.S.C. § 922(i), (j), or (u), or 18 U.S.C. § 924(l) or (m) (offenses involving a stolen

firearm or stolen ammunition) and the base offense level is determined under subsection

(a)(7), do not apply the enhancement in subsection (b)(4)(A). This is because the base

offense level takes into account that the firearm or ammunition was stolen. However, if

the offense involved a firearm with an altered or obliterated serial number, apply

subsection (b)(4)(B).

Similarly, if the offense to which §2K2.1 applies is 18 U.S.C. § 922(k) or 26 U.S.C. §

5861(g) or (h) (offenses involving an altered or obliterated serial number) and the base

offense level is determined under subsection (a)(7), do not apply the enhancement in

subsection (b)(4)(B). This is because the base offense level takes into account that the

firearm had an altered or obliterated serial number. However, it the offense involved a

stolen firearm or stolen ammunition, apply subsection (b)(4)(A).

(B) Knowledge or Reason to Believe.—Subsection (b)(4) applies regardless of whether the

defendant knew or had reason to believe that the firearm was stolen or had an altered or

obliterated serial number.

9. Application of Subsection (b)(7).— Under subsection (b)(7), if a record-keeping offense was

committed to conceal a substantive firearms or ammunition offense, the offense level isincreased

to the offense level for the substantive firearms or ammunition offense (e.g., if the defendant

falsifies a record to conceal the sale of a firearm to a prohibited person, the offense level is

increased to the offense level applicable to the sale of a firearm to a prohibited person).

10. Prior Felony Convictions.—For purposes of applying subsection (a)(1), (2), (3), or (4)(A), use

only those felony convictions that receive criminal history points under §4A1.1(a), (b), or (c). In

addition, for purposes of applying subsection (a)(1) and (a)(2), use only those felony convictions

that are counted separately under §4A1.1(a), (b), or (c). See §4A1.2(a)(2); §4A1.2, comment.

(n.3). 

Prior felony conviction(s) resulting in an increased base offense level under subsection (a)(1),

(a)(2), (a)(3), (a)(4)(A), (a)(4)(B), or (a)(6) are also counted for purposes of determining criminal

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history points pursuant to Chapter Four, Part A (Criminal History). 

11. Upward Departure Provisions.—An upward departure may be warranted in any of the following

circumstances: (1) the number of firearms substantially exceeded 200; (2) the offense involved

multiple National Firearms Act weapons (e.g., machineguns, destructive devices), military type

assault rifles, non-detectable ("plastic") firearms (defined at 18 U.S.C. § 922(p)); (3) the offense

involved large quantities of armor-piercing ammunition (defined at 18 U.S.C. § 921(a)(17)(B));

or (4) the offense posed a substantial risk of death or bodily injury to multiple individuals (see

Application Note 7).

12. Armed Career Criminal.—A defendant who is subject to an enhanced sentence under the

provisions of 18 U.S.C. § 924(e) is an Armed Career Criminal. See §4B1.4.

13. Application of Subsection (b)(5).—

(A) In General.—Subsection (b)(5) applies, regardless of whether anything of value was

exchanged, if the defendant—

(i) transported, transferred, or otherwise disposed of two or more firearms to

anotherindividual, or received two or more firearms with the intent to transport,

transfer, or otherwise dispose of firearms to another individual; and 

(ii) knew or had reason to believe that such conduct would result in the transport,

transfer, or disposal of a firearm to an individual—

(I) whose possession or receipt of the firearm would be unlawful; or 

(II) who intended to use or dispose of the firearm unlawfully.

(B) Definitions.—For purposes of this subsection:

"Individual whose possession or receipt of the firearm would be unlawful" means an

individual who (i) has a prior conviction for a crime of violence, a controlled substance

offense, or a misdemeanor crime of domestic violence; or (ii) at the time of the offense

was under a criminal justice sentence, including probation, parole, supervised release,

imprisonment, work release, or escape status. "Crime of violence" and "controlled

substance offense" have the meaning given those terms in §4B1.2 (Definitions of Terms

Used in Section 4B1.1). "Misdemeanor crime of domestic violence" has the meaning

given that term in 18 U.S.C. § 921(a)(33)(A).

The term "defendant", consistent with §1B1.3 (Relevant Conduct), limits the

accountability of the defendant to the defendant’s own conduct and conduct that the

defendant aided or abetted, counseled, commanded, induced, procured, or willfully

caused.

(C) Upward Departure Provision.—If the defendant trafficked substantially more than 25

firearms, an upward departure may be warranted. 

(D) Interactionwith Other Subsections.—In a case in which three or more firearms were both

possessed and trafficked, apply both subsections (b)(1) and (b)(5). If the defendant used

or transferred one of such firearms in connection with another felony offense (i.e., an

offense other than a firearms possession or trafficking offense) an enhancement under

subsection (b)(6) also would apply.

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14. "In Connection With".—

(A) In General.—Subsections (b)(6) and (c)(1) apply if the firearm or ammunition facilitated,

or had the potential of facilitating, another felony offense or another offense,

respectively.

(B) Application When Other Offense is Burglary or Drug Offense.—Subsections (b)(6) and

(c)(1) apply (i) in a case in which a defendant who, during the course of a burglary, finds

and takes a firearm, even if the defendant did not engage in any other conduct with that

firearm during the course of the burglary; and (ii) in the case of a drug trafficking

offense in which a firearm is found in close proximity to drugs, drug-manufacturing

materials, or drug paraphernalia. In these cases, application of subsections (b)(6) and

(c)(1) is warranted because the presence of the firearm has the potential of facilitating

another felony offense or another offense, respectively.

(C) Definitions.—

"Another felony offense", for purposes of subsection (b)(6), means any federal, state, or

local offense, other than thean explosive or firearms possession or trafficking offense,

punishable by imprisonment for a term exceeding one year, regardless of whether a

criminal charge was brought, or a conviction obtained. 

"Another offense", for purposes of subsection (c)(1), means any federal, state, or local

offense, other than thean explosive or firearms possession or trafficking offense,

regardless of whether a criminal charge was brought, or a conviction obtained. 

(D) Upward Departure Provision.—In a case in which the defendant used or possessed a

firearm or explosive to facilitate another firearms or explosives offense (e.g., the

defendant used or possessed a firearm to protect the delivery of an unlawful shipment of

explosives), an upward departure under §5K2.6 (Weapons and Dangerous

Instrumentalities) may be warranted.

* * *

Part J (Treatment of 18 U.S.C. §§ 2280, 2332a in statutory index)

APPENDIX A - STATUTORY INDEX

* * *

18 U.S.C. § 2280 2A1.1, 2A1.2, 2A1.3,

2A1.4, 2A2.1, 2A2.2,

2A2.3, 2A4.1, 2A6.1, 2B1.1,

2B3.1, 2B3.2, 2K1.4,

2X1.1

* * *

18 U.S.C. § 2332a 2A6.1, 2K1.4, 2M6.1

* * *

Part K (Prioritizing Resources and Organization for Intellectual Property Act of 2008)

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§2B5.3. Criminal Infringement of Copyright or Trademark

* * *

(b) Specific Offense Characteristics

* * *

(5) If the offense involved (A) the conscious or reckless risk of death or

serious bodily injury; or (B) possession of a dangerous weapon

(including a firearm) in connection with the offense, increase by 2

levels. If the resulting offense level is less than level 1314, increase to

level 1314.

* * *

Issue for Comment

1. The Commission requests comment regarding whether the guidelines are adequate as they apply to

subsection (a)(7) of 18 U.S.C. § 2252A, a new offense created by the PROTECT Our Children Act of 2008

(Public Law 110–401). The new offense at subsection (a)(7) 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 fine under title 18, United States Code, and

imprisonment up to 15 years.

Under Appendix A (Statutory Index), all offenses under 18 U.S.C. § 2252A are referenced to the child

pornography trafficking, receipt, and possession guideline, §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).

Is §2G2.2 the guideline to which offenses under subsection (a)(7) should be referenced? Alternatively,

should the Commission amend Appendix A (Statutory Index) to refer offenses under subsection (a)(7) to

a guideline or guidelines other than §2G2.2 and, if so, which ones? Should the Commission amend the

guidelines (such as by amending Appendix A or by providing cross references) so that an offense under

subsection (a)(7) that involves distribution is referred to one guideline (e.g., §2G2.2), and an offense

under subsection (a)(7) that involves production is referred to another guideline (e.g., the child

pornography production guideline, §2G2.1 (Sexually Exploiting a Minor by Production of Sexually

Explicit Visual or Printed Material; Custodian Permitting Minorto Engage in Sexually ExplicitConduct;

Advertisement for Minors to Engage in Production))? Whether offenses under subsection (a)(7) are

referenced to §2G2.2 or to one or more other guidelines, are there aggravating or mitigating

circumstances existing in cases involving those offenses that might justify additional amendments to the

guidelines? If so, how should the guidelines be amended to address those circumstances? For example,

if an offense under subsection (a)(7) that involves production is referred to §2G2.1, should the

Commission provide a downward adjustment in §2G2.1 to reflect the less serious nature of an offense

involving the production of child pornography that is an adapted or modified depiction of an identifiable

minor compared to other offenses involving the production of child pornography covered by that

guideline? Alternatively, should the Commission create a new guideline for offenses under subsection

(a)(7)?

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EXHIBIT G

PROPOSED AMENDMENT: INFLUENCING A MINOR

Synopsis of Proposed Amendment: This proposed amendment addresses a circuit conflict regarding

the undue influence enhancement at §2A3.2(b)(2)(B)(ii) (Criminal Sexual Abuse of a Minor UndertheAge

of Sixteen Year (Statutory Rape) or Attempt to Commit Such Acts) and at §2G1.3(b)(2)(B) (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 providesfor an increase in the

defendant's offense level (four levels in §2A3.2 and two levels in §2G1.3) if "a participant otherwise

unduly influenced the minor to engage in prohibited sexual conduct." In both guidelines, commentary

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 guideline provisions, the term "minor" includes "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 three different approaches regarding the application of the undue influence

enhancement in cases in which the "minor" is actually an undercover law enforcement officer. The

Eleventh Circuit, in United States v. Root, 296 F.3d 1222 (11th Cir. 2002), held that, according to the

terms of §2A3.2, the undue influence enhancement can apply even when the victim is an undercover law

enforcement officer. In such a case, the Eleventh Circuit held, the focus is on the defendant's conduct,

not on the fact that the victim's will was not actually overborne. The Eleventh Circuit is also the only

circuit that has addressed this issue in the context of §2G1.3. See United States v. Vance, 494 F.3d 985

(11th Cir. 2007) (holding that §2G1.3(b)(2)(B) applies where the minor is fictitious, and stating that "the

focus is on the defendant's intent, not whether the victim is real or fictitious").

The Seventh Circuit reached a different result in United States v. Mitchell, 353 F.3d 552 (7th Cir. 2003),

holding that "the plain language of [§2A3.2] cannot apply in the case of an attempt where the victim is

an undercover police officer." The Seventh Circuit also stated that its reading of the guideline concluded

that "the enhancement cannot apply [in any case] where the offender and victim have not engaged in

illicit sexual conduct." Id. at 559. 

The Sixth Circuit, in United States v. Chriswell, 401 F.3d 459 (6th Cir. 2005), took a third approach. The

Sixth Circuit agreed in part with the Seventh Circuit, holding that "§2A3.2(b)(2)(B) is not applicable in

cases where the victim is an undercover agent representing himself to be a child under the age of sixteen." 

 Id. at 469. Unlike the Seventh Circuit, however, the Sixth Circuit concluded that the enhancement can

apply in other instances of attempted sexual conduct. 

The three proposed options reflect the three different interpretations of the enhancement by the Eleventh,

Sixth, and Seventh Circuits. Option One reflects the Eleventh Circuit's approach by amending the

commentary regarding the undue influence enhancement in §§2A3.2 and 2G1.3 to provide that the

enhancement can apply in a case of attempted sexual conduct. Option One further amends the

commentary to provide that the undue influence enhancement can apply in a case involving only an

undercover law enforcement officer.

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Option Two reflects the Sixth Circuit's approach. It amends the commentary regarding the undue

influence enhancement in §§2A3.2 and 2G1.3 to provide that the enhancement can apply in a case of

attempted sexual conduct. Option Two further amends the commentary to provide that the undue

influence enhancement does not apply in a case involving only an undercover law enforcement officer.

Option Three reflects the Seventh Circuit's approach. Contrary to Options One and Two, Option Three

amends the commentary regarding the undue influence enhancement in §§2A3.2 and 2G1.3 to provide

that the enhancement does not apply in a case of attempted sexual conduct. Like Option Two, Option

Three amends the commentary regarding the undue influence enhancement in §§2A3.2 and 2G1.3 to

provide that the enhancement does not apply in a case involving only an undercover law enforcement

officer.

All three options include a technical amendment to the background of §2A3.2. 

One issue for comment is also included. 

Proposed Amendment:

§2A3.2. Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape)

or Attempt to Commit Such Acts

(a) Base Offense Level: 18

(b) Specific Offense Characteristics

(1) If the minor was in the custody, care, or supervisory control of the

defendant, increase by 4 levels.

(2) If (A) subsection (b)(1) does not apply; and (B)(i) the offense involved

the knowing misrepresentation of a participant’s identity to persuade,

induce, entice, or coerce the minor to engage in prohibited sexual

conduct; or (ii) a participant otherwise unduly influenced the minor to

engage in prohibited sexual conduct, increase by 4 levels.

(3) If a computer or an interactive computer service was used to persuade,

induce, entice, or coerce the minor to engage in prohibited sexual

conduct, increase by 2 levels.

(c) Cross Reference

(1) If the offense involved criminal sexual abuse or attempt to commit

criminal sexual abuse (as defined in 18 U.S.C. § 2241 or § 2242), apply

§2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual

Abuse). If the victim had not attained the age of 12 years, §2A3.1 shall

apply, regardless of the "consent" of the victim.

Commentary

Statutory Provision: 18 U.S.C. § 2243(a). For additional statutory provision(s), see Appendix A

(Statutory Index).

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Application Notes:

1. Definitions.—For purposes of this guideline:

"Computer" has the meaning given that term in 18 U.S.C. § 1030(e)(1).

"Interactive computer service" has the meaning given that term in section 230(e)(2) of the

Communications Act of 1934 (47 U.S.C. § 230(f)(2)).

"Minor" means (A) an individual who had not attained the age of 16 years; (B) an individual,

whether fictitious or not, who a law enforcement officer represented to a participant (i) had not

attained the age of 16 years, and (ii) could be provided for the purposes of engaging in sexually

explicit conduct; or (C) an undercover law enforcement officer who represented to a participant

that the officer had not attained the age of 16 years.

"Participant" has the meaning given that term in Application Note 1 of §3B1.1 (Aggravating

Role).

"Prohibited sexual conduct" has the meaning given that term in Application Note 1 of §2A3.1

(Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse).

2. Custody, Care, or Supervisory Control Enhancement.— 

(A) In General.—Subsection (b)(1) isintended to have broad application and isto be applied

whenever the minor is entrusted to the defendant, whether temporarily or permanently. 

For example, teachers, day care providers, baby-sitters, or other temporary caretakers

are among those who would be subject to this enhancement. In determining whether to

apply this enhancement, the court should look to the actual relationship that existed

between the defendant and the minor and not simply to the legal status of the defendantminor relationship.

(B) Inapplicability of Chapter Three Adjustment.—If the enhancement in subsection (b)(1)

applies, do not apply subsection (b)(2) or §3B1.3 (Abuse of Position of Trust or Use of

Special Skill).

3. Application of Subsection (b)(2).—

(A) Misrepresentation of Identity.—The enhancement in subsection (b)(2)(B)(i) applies in

cases involving the misrepresentation of a participant’s identity to persuade, induce,

entice, or coerce the minor to engage in prohibited sexual conduct. Subsection

(b)(2)(B)(i) is intended to apply only to misrepresentations made directly to the minor or

to a person who exercises custody, care, or supervisory control of the minor. 

Accordingly, the enhancement in subsection (b)(2)(B)(i) would not apply to a

misrepresentation made by a participant to an airline representative in the course of

making travel arrangements for the minor. 

The misrepresentation to which the enhancement in subsection (b)(2)(B)(i) may apply

includes misrepresentation of a participant’s name, age, occupation, gender, or status,

as long as the misrepresentation was made with the intent to persuade, induce, entice,

or coerce the minor to engage in prohibited sexual conduct. Accordingly, use of a

computer screen name, without such intent, would not be a sufficient basis for

application of the enhancement.

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[Option 1:

(B) Undue Influence.—In determining whether subsection (b)(2)(B)(ii) 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.

Subsection (b)(2)(B)(ii) does notrequire that the participant engage in prohibited sexual

conduct with the minor.

In a case in which a participant is at least 10 years older than the minor, there shall be

a rebuttable presumption that , for purposes of subsection (b)(2)(B)(ii) , that such

participant unduly influenced the minor to engage in prohibited sexual conduct applies. 

In such a case, some degree of undue influence can be presumed because of the

substantial difference in age between the participant and the minor.

Subsection (b)(2)(B)(ii) can 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.]

[Option 2:

(B) Undue Influence.—In determining whether subsection (b)(2)(B)(ii) 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.

Subsection (b)(2)(B)(ii) does notrequire that the participant engage in prohibited sexual

conduct with the minor.

In a case in which a participant is at least 10 years older than the minor, there shall be

a rebuttable presumption that , for purposes of subsection (b)(2)(B)(ii) , that such

participant unduly influenced the minor to engage in prohibited sexual conduct applies. 

In such a case, some degree of undue influence can be presumed because of the

substantial difference in age between the participant and the minor.

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.]

[Option 3:

(B) Undue Influence.—In determining whether subsection (b)(2)(B)(ii) 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. 

Subsection (b)(2)(B)(ii) requires that the participant engage in prohibited sexual conduct

with the minor.

In a case in which a participant is at least 10 years older than the minor, there shall be

a rebuttable presumption that , for purposes of subsection (b)(2)(B)(ii) , that such

participant unduly influenced the minor to engage in prohibited sexual conduct applies. 

In such a case, some degree of undue influence can be presumed because of the

substantial difference in age between the participant and the minor.

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 undercoverlaw enforcement officer.]

4. Application of Subsection (b)(3).—Subsection (b)(3) provides an enhancement if a computer or

an interactive computer service was used to persuade, induce, entice, or coerce the minor to

engage in prohibited sexual conduct. Subsection (b)(3) is intended to apply only to the use of a

computer or an interactive computer service to communicate directly with the minor or with a

H:\OSC\MeetingMaterials\2009\January\Influencingminor-v7.wpd 103
person who exercises custody, care, or supervisory control of the minor.

5. Cross Reference.— Subsection (c)(1) provides a cross reference to §2A3.1 (Criminal Sexual

Abuse; Attempt to Commit Criminal Sexual Abuse) if the offense involved criminal sexual abuse

or attempt to commit criminal sexual abuse, as defined in 18 U.S.C. § 2241 or § 2242. For

example, the cross reference to §2A3.1 shall apply if (A) the victim had not attained the age of

12 years (see 18 U.S.C. § 2241(c)); (B) the victim had attained the age of 12 years but not

attained the age of 16 years, and was placed in fear of death, serious bodily injury, or kidnaping

(see 18 U.S.C. § 2241(a),(c)); or (C) the victim was threatened or placed in fear other than fear

of death, serious bodily injury, or kidnaping (see 18 U.S.C. § 2242(1)).

6. Upward Departure Consideration.—There may be cases in which the offense level determined

under this guideline substantially understates the seriousness of the offense. In such cases, an

upward departure may be warranted. For example, an upward departure may be warranted if

the defendant committed the criminal sexual act in furtherance of a commercial scheme such as

pandering, transporting persons for the purpose of prostitution, or the production of

pornography.

Background: This section applies to offenses involving the criminal sexual abuse of an individual who

had not attained the age of 16 years. While this section applies to consensual sexual acts prosecuted

under 18 U.S.C. § 2243(a) that would be lawful but for the age of the minor, it also applies to cases,

prosecuted under 18 U.S.C. § 2243(a), in which a participant took active measure(s) to unduly influence

the minor to engage in prohibited sexual conduct and, thus, the voluntariness of the minor’s behavior was

compromised. A two-level four-level enhancement is provided in subsection (b)(2) for such cases. It is

assumed that at least a four-year age difference exists between the minor and the defendant, as specified

in 18 U.S.C. § 2243(a). A two-level four-level enhancement is provided in subsection (b)(1) for a

defendant who victimizes a minor under his supervision or care. However, if the minor had not attained

the age of 12 years, §2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse) will

apply, regardless of the "consent" of the minor.

* * *

§2G1.3. Promoting a Commercial Sex Act or Prohibited Sexual Conduct with a Minor;

Transportation of Minors to Engage in a Commercial Sex Act or Prohibited Sexual

Conduct; Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct

with a Minor; Sex Trafficking of Children; Use ofInterstate Facilities to Transport

Information about a Minor

(a) Base Offense Level: 

(1) 34, if the defendant was convicted under 18 U.S.C. § 1591(b)(1);

(2) 30, if the defendant was convicted under 18 U.S.C. § 1591(b)(2);

(3) 28, if the defendant was convicted under 18 U.S.C. § 2422(b) or

§ 2423(a); or 

(4) 24, otherwise.

(b) Specific Offense Characteristics

(1) If (A) the defendant was a parent, relative, or legal guardian of the

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minor; or (B) the minor was otherwise in the custody, care, or

supervisory control of the defendant, increase by 2 levels.

(2) If (A) the offense involved the knowing misrepresentation of a

participant’s identity to persuade, induce, entice, coerce, or facilitate the

travel of, a minor to engage in prohibited sexual conduct; or (B) a

participant otherwise unduly influenced a minor to engage in prohibited

sexual conduct, increase by 2 levels.

(3) If the offense involved the use of a computer or an interactive computer

service to (A) persuade, induce, entice, coerce, or facilitate the travel of,

the minor to engage in prohibited sexual conduct; or (B) entice,

encourage, offer, or solicit a person to engage in prohibited sexual

conduct with the minor, increase by 2 levels.

(4) If (A) the offense involved the commission of a sex act or sexual

contact; or (B) subsection (a)(3) or (a)(4) applies and the offense

involved a commercial sex act, increase by 2 levels.

(5) If (A) subsection (a)(3) or (a)(4) applies; and (B) the offense involved

a minor who had not attained the age of 12 years, increase by 8 levels.

(c) Cross References

(1) If the offense involved causing, transporting, permitting, or offering or

seeking by notice or advertisement, a minor to engage in sexually

explicit conduct for the purpose of producing a visual depiction of such

conduct, apply §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), if the resulting offense level is greater

than that determined above.

(2) If a minor was killed under circumstances that would constitute murder

under 18 U.S.C. § 1111 had such killing taken place within the territorial

or maritime jurisdiction of the United States, apply §2A1.1 (First Degree

Murder), if the resulting offense level is greater than that determined

above.

(3) If the offense involved conduct described in 18 U.S.C. § 2241 or § 2242,

apply §2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal

Sexual Abuse), if the resulting offense level is greater than that

determined above. If the offense involved interstate travel with intent

to engage in a sexual act with a minor who had not attained the age of 12

years, or knowingly engaging in a sexual act with a minor who had not

attained the age of 12 years, §2A3.1 shall apply, regardless of the

"consent" of the minor.

(d) Special Instruction

(1) If the offense involved more than one minor, Chapter Three, Part D

(Multiple Counts) shall be applied as if the persuasion, enticement,

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coercion, travel, or transportation to engage in a commercial sex act or

prohibited sexual conduct of each victim had been contained in a

separate count of conviction.

Commentary

Statutory Provisions: 8 U.S.C. § 1328 (only if the offense involved a minor); 18 U.S.C. §§ 1591 (only if

the offense involved a minor), 2421 (only if the offense involved a minor), 2422 (only if the offense

involved a minor), 2423, 2425.

Application Notes:

1. Definitions.—For purposes of this guideline:

"Commercial sex act" has the meaning given that term in 18 U.S.C. § 1591(c)(1).

"Computer" has the meaning given that term in 18 U.S.C. § 1030(e)(1).

"Illicit sexual conduct" has the meaning given that term in 18 U.S.C. § 2423(f).

"Interactive computer service" has the meaning given that term in section 230(e)(2) of the

Communications Act of 1934 (47 U.S.C. § 230(f)(2)).

"Minor" means (A) an individual who had not attained the age of 18 years; (B) an individual,

whether fictitious or not, who a law enforcement officer represented to a participant (i) had not

attained the age of 18 years, and (ii) could be provided for the purposes of engaging in sexually

explicit conduct; or (C) an undercover law enforcement officer who represented to a participant

that the officer had not attained the age of 18 years. 

"Participant" hasthe meaning given that term in Application Note 1 of theCommentary to §3B1.1

(Aggravating Role).

"Prohibited sexual conduct" has the meaning given that term in Application Note 1 of the

Commentary to §2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse).

"Sexual act" has the meaning given that term in 18 U.S.C. § 2246(2).

"Sexual contact" has the meaning given that term in 18 U.S.C. § 2246(3).

2. Application of Subsection (b)(1).—

(A) Custody, Care, or Supervisory Control.—Subsection (b)(1) is intended to have broad

application and includes offenses involving a victim less than 18 years of age entrusted

to the defendant, whether temporarily or permanently. For example, teachers, day care

providers, baby-sitters, or other temporary caretakers are among those who would be

subject to this enhancement. In determining whether to apply this enhancement, the 

court should look to the actual relationship that existed between the defendant and the

minor and not simply to the legal status of the defendant-minor relationship.

(B) Inapplicability of Chapter Three Adjustment.—If the enhancement under subsection

(b)(1) applies, do not apply §3B1.3 (Abuse of Position of Trust or Use of Special Skill).

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3. Application of Subsection (b)(2).—

(A) Misrepresentation of Participant’s Identity.—The enhancement in subsection (b)(2)(A)

applies in cases involving the misrepresentation of a participant’s identity to persuade,

induce, entice, coerce, or facilitate the travel of, a minor to engage in prohibited sexual

conduct. Subsection (b)(2)(A) is intended to apply only to misrepresentations made

directly to a minor or to a person who exercises custody, care, or supervisory control of

the minor. Accordingly, the enhancement in subsection (b)(2)(A) would not apply to a

misrepresentation made by a participant to an airline representative in the course of

making travel arrangements for the minor.

The misrepresentation to which the enhancement in subsection (b)(2)(A) may apply

includes misrepresentation of a participant’s name, age, occupation, gender, or status,

as long as the misrepresentation was made with the intent to persuade, induce, entice,

coerce, or facilitate the travel of, a minor to engage in prohibited sexual conduct. 

Accordingly, use of a computer screen name, without such intent, would not be a

sufficient basis for application of the enhancement.

[Option 1:

(B) Undue Influence.—In determining whethersubsection (b)(2)(B) applies, the courtshould

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. Subsection (b)(2)(B)

does notrequire that the participant engage in prohibited sexual conduct with the minor.

In a case in which a participant is at least 10 years older than the minor, there shall be

a rebuttable presumption that , for purposes of subsection (b)(2)(B), that such participant

unduly influenced the minor to engage in prohibited sexual conduct applies. In such a

case, some degree of undue influence can be presumed because of the substantial

difference in age between the participant and the minor.

Subsection (b)(2)(B) can 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.]

[Option 2:

(B) Undue Influence.—In determining whethersubsection (b)(2)(B) applies, the courtshould

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. Subsection (b)(2)(B)

does notrequire that the participant engage in prohibited sexual conduct with the minor.

In a case in which a participant is at least 10 years older than the minor, there shall be

a rebuttable presumption that , for purposes of subsection (b)(2)(B), that such participant

unduly influenced the minor to engage in prohibited sexual conduct applies. In such a

case, some degree of undue influence can be presumed because of the substantial

difference in age between the participant and the minor.

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.]

[Option 3:

(B) Undue Influence.—In determining whethersubsection (b)(2)(B) applies, the courtshould

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. Subsection (b)(2)(B)

H:\OSC\MeetingMaterials\2009\January\Influencingminor-v7.wpd 107
requires that the participant engage in prohibited sexual conduct with the minor.

In a case in which a participant is at least 10 years older than the minor, there shall be

a rebuttable presumption that , for purposes of subsection (b)(2)(B) , that such

participant unduly influenced the minor to engage in prohibited sexual conduct applies. 

In such a case, some degree of undue influence can be presumed because of the

substantial difference in age between the participant and the minor.

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.]

4. Application of Subsection (b)(3).—Subsection (b)(3) is intended to apply only to the use of a

computer or an interactive computer service to communicate directly with a minor or with a

person who exercises custody, care, or supervisory control of the minor. Accordingly, the

enhancement in subsection (b)(3) would not apply to the use of a computer or an interactive

computer service to obtain airline tickets for the minor from an airline’s Internet site. 

5. Application of Subsection (c).—

(A) Application of Subsection (c)(1).—The cross reference in subsection (c)(1) is to be

construed broadly and includes all instances in which the offense involved employing,

using, persuading, inducing, enticing, coercing, transporting, permitting, or offering or

seeking by notice, advertisement or other method, a minor to engage in sexually explicit

conduct forthe purpose of producing any visual depiction of such conduct. For purposes

of subsection (c)(1), "sexually explicit conduct" has the meaning given that term in 18

U.S.C. § 2256(2).

(B) Application of Subsection (c)(3).—For purposes of subsection (c)(3), conduct described

in 18 U.S.C. § 2241 means conduct described in 18 U.S.C. § 2241(a), (b), or (c). 

Accordingly, for purposes of subsection (c)(3):

(i) Conduct described in 18 U.S.C. § 2241(a) or (b) is engaging in, or causing

another person to engage in, a sexual act with another person: (I) using force

against the minor; (II) threatening or placing the minor in fear that any person

will be subject to death, serious bodily injury, or kidnapping; (III) rendering the

minor unconscious; or (IV) administering by force or threat of force, or without

the knowledge or permission of the minor, a drug, intoxicant, or other similar

substance and thereby substantially impairing the ability of the minor to

appraise or control conduct. This provision would apply, for example, if any

dangerous weapon was used or brandished, or in a case in which the ability of

the minor to appraise or control conduct was substantially impaired by drugs or

alcohol. 

(ii) Conduct described in 18 U.S.C. § 2241(c) is: (I) interstate travel with intent to

engage in a sexual act with a minor who has not attained the age of 12 years;

(II) knowingly engaging in a sexual act with a minor who has not attained the

age of 12 years; or (III) knowingly engaging in a sexual act under the

circumstances described in 18 U.S.C. § 2241(a) and (b) with a minor who has

attained the age of 12 years but has not attained the age of 16 years (and is at

least 4 years younger than the person so engaging).

(iii) Conduct described in 18 U.S.C. § 2242 is: (I) engaging in, or causing another

H:\OSC\MeetingMaterials\2009\January\Influencingminor-v7.wpd 108
person to engage in, a sexual act with another person by threatening or placing

the minor in fear (other than by threatening or placing the minor in fear that any

person will be subject to death, serious bodily injury, or kidnapping); or (II)

engaging in, or causing another person to engage in, a sexual act with a minor

who is incapable of appraising the nature of the conduct or who is physically

incapable of declining participation in, or communicating unwillingness to

engage in, the sexual act.

6. Application of Subsection (d)(1).—For the purposes of Chapter Three, Part D (Multiple Counts),

each minor transported, persuaded, induced, enticed, or coerced to engage in, or travel to engage

in, a commercial sex act or prohibited sexual conduct is to be treated as a separate minor. 

Consequently, multiple counts involving more than one minor are not to be grouped together

under §3D1.2 (Groups of Closely Related Counts). In addition, subsection (d)(1) directs that if

the relevant conduct of an offense of conviction includes travel or transportation to engage in a

commercial sex act or prohibited sexual conduct in respect to more than one minor, whether

specifically cited in the count of conviction, each such minor shall be treated as if contained in

a separate count of conviction.

7. Upward Departure Provision.—If the offense involved more than ten minors, an upward

departure may be warranted.

* * *

Issue for Comment:

1. The Commission seeks comment regarding the current application of the undue influence

enhancements in both §2A3.2 and §2G1.3. In 2004, the Commission created §2G1.3 specifically to

address offenses under chapter 117 of title 18, United States Code, that involve minors. See USSG App.

C, Amendment 664 (Nov. 2004). Prior to the creation of §2G1.3, chapter 117 offenses, primarily 18

U.S.C. §§ 2422 (Coercion and Enticement) and 2423 (Transportation of Minors), were sentenced under

§2A3.2 either by direct reference from Appendix A, or through a cross reference from §2G1.1. The

creation of a new guideline for chapter 117 cases was "intended to address more appropriately the issues

specific to these offenses. In addition, the removal of these cases from §2A3.2 permit[ted] the

Commission to more appropriately tailor [§2A3.2] to actual statutory rape cases." USSG App. C,

Amendment 664 (Nov. 2004). 

The Commission requests comment regarding the application of the undue influence enhancementsin the

two guidelines at issue. Should the Commission amend the enhancement in either guideline in any way?

If so, what changes should the Commission make? Should, for example, the Commission more narrowly

tailorthe enhancement in §2A3.2 to reflect the offense conduct typical in cases now being sentenced under

§2A3.2? If so, how?

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EXHIBIT H

PROPOSED AMENDMENT: §3C1.3 (COMMISSION OF OFFENSE WHILE ON

RELEASE)

Synopsis of Proposed Amendment: This proposed amendment clarifies Application Note 1 in §3C1.3

(Commission of Offense While on Release). Section 3C1.3 (formerly §2J1.7, (see Appendix C to the

Guidelines Manual, Amendment 684) provides for a three-level adjustment if the defendant is subject to

the statutory enhancement found at 18 U.S.C. § 3147—that is, if the defendant has committed the

underlying offense while on release. Application Note 1 to §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

§2J1.7 (now Application Note 1 to §3C1.3), a sentencing court cannot apportion to the underlying offense

more than the maximum of the guideline range absent the three-level enhancement. 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 Second Circuit has stated that the example the

Commission provides in the Application Note does not abide by their interpretation of the rule: “The

commentary example begins with a total range of 30-37 months. In all criminal history categories, if the

§2J1.7 three-level enhancement is deleted from the guideline level at which a 30-37 month sentence is

imposed, the permissible range provided for the reduced sentence would be 21-27 months.” Stevens, at

435-36. The example states that a properly “apportioned” sentence for the underlying offense would be

30 months. This is outside the guideline range for that offense. 

Under ordinary guideline application principles, however, only one guideline range applies to

a defendant who committed an offense while on release and is subject to the enhancement at 18 U.S.C.

§ 3147. See §1B1.1 (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,

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”).

The proposed amendment clarifies that the court determines the applicable guideline range as

in any other case. At that point, the court determines an appropriate "total punishment" from within that

applicable guideline range, and then divides the total sentence between the underlying offense and the

§ 3147 enhancement as the court considers appropriate.

Proposed Amendment:

§3C1.3. Commission of Offense While on Release

If a statutory sentencing enhancement under 18 U.S.C. § 3147 applies, increase the

offense level by 3 levels. 

Commentary

Application Note: 

1. Under 18 U.S.C. § 3147, a sentence of imprisonment must be imposed in addition to the sentence

H:\OSC\MeetingMaterials\2009\January\3C1'3_002.wpd 110
for the underlying offense, and the sentence of imprisonment imposed under 18 U.S.C. § 3147

must run consecutively to any other sentence of imprisonment. Therefore, the court, in order to

comply with the statute, should divide the sentence on the judgment form between the sentence

attributable to the underlying offense and the sentence attributable to the enhancement. The

court will have to ensure that the "total punishment" (i.e., the sentence for the offense committed

while on release plus the statutory sentencing enhancement under 18 U.S.C. § 3147) is in accord

with the guideline range for the offense committed while on release, including, as in any other

case in which a Chapter Three adjustment applies (see §1B1.1 (Application Instructions)), the

adjustment provided by as adjusted by the enhancement in this section. For example, if the

applicable adjusted guideline range is 30-37 months and the court determines a "total

punishment" of 36 months is appropriate, a sentence of 30 months for the underlying offense plus

6 months under 18 U.S.C. § 3147 would satisfy this requirement. 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. 

Background: An enhancement under 18 U.S.C. § 3147 applies, after appropriate sentencing notice, when

a defendant is sentenced for an offense committed while released in connection with another federal

offense.

This guideline enables the court to determine and implement a combined "total punishment"

consistent with the overall structure of the guidelines, while at the same time complying with the statutory

requirement.

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EXHIBIT I

PROPOSED AMENDMENT: COUNTERFEITING AND "BLEACHED NOTES"

Synopsis of Proposed Amendment: The proposed amendment clarifies guideline application issues

regarding the sentencing of counterfeiting offenses involving “bleached notes.” Bleached notes are

genuine United States currency stripped of its original image through the use of solvents or other

chemicals and then reprinted to appear to be notes of higher denomination than intended by the Treasury.

Circuit courts have resolved differently the question of whether offenses involving bleached notes should

be sentenced under §2B5.1 (Offenses Involving Counterfeit Bearer Obligations of the United States) or

§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). Compare, United States v.

Schreckengost, 384 F.3d 922 (7 Cir. 2004) (holding that bleached notes should be sentenced under

th

§2B1.1); United States v. Inclema, 363 F.3d 1177 (11 Cir. 2004) (same); with United States v. Dison, th

2008 WL 351935 (W.D. La. Feb 8, 2008) (applying §2B5.1 in a case involving bleached notes); United

States v. Vice, 2008 WL 113970 (W. D. La. Jan. 3, 2008) (same). The proposed amendment resolves this

circuit conflict and responds to concerns expressed by federal judges and members of Congress

concerning the guidelines pertaining to offenses involving bleached notes.

The definition of the term “counterfeit” in Application Note 3 of §2B5.1 has been cited by courts

as the basis for declining to apply §2B5.1 to offenses involving bleached notes. “Counterfeit” is defined

to mean “an instrument that purports to be genuine but is not, because it has been falsely made or

manufactured in its entirety.” Application Note 3 further provides that “[o]ffenses involving genuine

instruments that have been altered are covered under §2B1.1 (Theft, Property Destruction, and Fraud)."

Under this definition, courts have had to consider whether a bleached note should be considered falsely

made or manufactured in its entirety (and therefore sentenced under §2B5.1) or an altered note (and

therefore sentenced under §2B1.1). 

The proposed amendmentresolves this issue to provide that offenses involving bleached notes are

to be sentenced under §2B5.1. Specifically, the proposed amendment deletes Application Note 3 and

revises the definition of "counterfeit" to more closely parallelrelevant counterfeiting statutes, for example

18 U.S.C. §§ 471 (Obligations or securities of the United States) and 472 (Uttering counterfeit obligations

or securities). As a clerical change, the definition is moved from Application Note 3 to Application Note

1.

The proposed amendment also amends 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. 

In addition, the proposed amendment amends Appendix A (Statutory Index) by striking the

alternative reference to §2B1.1 for two offenses that do not involve elements of fraud. Specifically, the

amendment deletes alternative reference to §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). As a result, these offenses would be referenced solely to §2B5.1. A conforming change is

made to delete these offenses from the list of statutory provisions in §2B1.1.

Proposed Amendment:

§2B5.1. Offenses Involving Counterfeit Bearer Obligations of the United States

(a) Base Offense Level: 9

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(b) Specific Offense Characteristics

(1) If the face value of the counterfeit items (A) exceeded $2,000 but did not

exceed $5,000, increase by 1 level; or (B) exceeded $5,000, increase by

the number of levels from the table in §2B1.1 (Theft, Property

Destruction, and Fraud) corresponding to that amount.

(2) If the defendant (A) manufactured or produced any counterfeit

obligation or security of the United States, or possessed or had custody

of or control over a counterfeiting device or materials used for

counterfeiting; or (B) controlled or possessed (i) counterfeiting paper

similar to a distinctive paper; (ii) genuine United States currency paper

from which the ink or other distinctive counterfeit deterrent has been

completely or partially removed; or (iii) a feature or device essentially

identical to a distinctive counterfeit deterrent, increase by 2 levels.

(3) If subsection (b)(2)(A) applies, and the offense level determined under

that subsection is less than level 15, increase to level 15.

(4) If a dangerous weapon (including a firearm) was possessed in connection

with the offense, increase by 2 levels. If the resulting offense level is

less than level 13, increase to level 13.

(5) If any part of the offense was committed outside the United States,

increase by 2 levels.

Commentary

Statutory Provisions: 18 U.S.C. §§ 470-474A, 476, 477, 500, 501, 1003. For additional statutory

provision(s), see Appendix A (Statutory Index).

Application Notes:

1. Definitions.—For purposes of this guideline:

"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).

"Distinctive counterfeit deterrent" and "distinctive paper" have the meaning given those terms

in 18 U.S.C. § 474A(c)(2) and (1), respectively.

"United States" means each of the fifty states, the District of Columbia, the Commonwealth of

Puerto Rico, the United States Virgin Islands, Guam, the Northern Mariana Islands, and

American Samoa.

2. Applicability to Counterfeit Bearer Obligations of the United States.— This guideline applies to

counterfeiting of United States currency and coins, food stamps, postage stamps, treasury bills,

bearer bonds and other items that generally could be described as bearer obligations of the

United States, i.e., that are not made out to a specific payee. 

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3. Inapplicability to Genuine but Fraudulently Altered Instruments.—"Counterfeit," as used in this

section, means an instrument that purports to be genuine but is not, because it has been falsely

made or manufactured in its entirety. Offenses involving genuine instruments that have been

altered are covered under §2B1.1 (Theft, Property Destruction, and Fraud).

34. Inapplicability to Certain Obviously Counterfeit Items.—Subsection (b)(2)(A) does not apply to

persons who produce items that are so obviously counterfeit that they are unlikely to be accepted

even if subjected to only minimal scrutiny.

Background: Possession of counterfeiting devices to copy obligations(including securities) of the United

States is treated as an aggravated form of counterfeiting because of the sophistication and planning

involved in manufacturing counterfeit obligations and the public policy interest in protecting the integrity

of government obligations. Similarly, an enhancement is provided for a defendant who produces, rather

than merely passes, the counterfeit items. 

Subsection (b)(4) implements, in a broader form, the instruction to the Commission in section

110512 of Public Law 103-322.

* * *

APPENDIX A - STATUTORY INDEX

* * *

18 U.S.C. § 474A 2B1.1, 2B5.1

18 U.S.C. § 476 2B1.1, 2B5.1

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EXHIBIT J

PROPOSED AMENDMENT: TECHNICAL AMENDMENTS

Synopsis of Proposed Amendment: This proposed amendment is a multi-part amendment that makes

various technical and conforming changes to the guidelines.

Part A of the proposed amendment addresses several cases in which the guidelines refer to

another guideline, or to a statute or rule, but the reference has become incorrect or obsolete. First, the

proposed amendment makes technical changes in §1B1.8 (Use of Certain Information) to addressthe 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 §2J1.1

(Contempt), Application Note 3, to address the fact that the provision that had been contained in

subsection (b)(7)(C) of §2B1.1 (Theft, Property Destruction, and Fraud) is now contained in subsection

(b)(8)(C) of that guideline. Third, it makes a technical change in §4B1.2 (Definitions of Terms used in

Section 4B1.1), Application Note 1, fourth paragraph, 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 §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 in §5D1.2 (Term of Supervised Release), Commentary, to address

the fact that the provision that had been contained in subsection (b) of §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 at subsection (f) of 42 U.S.C. § 3611 is now

contained in subsection (c) of that section.

Part B of the proposed amendment resolves certain technical issues that have arisen in the

Guidelines Manual with respect to child pornography offenses. First, the proposed amendment makes

technical changes in §2G2.1, Statutory Provisions, to address the fact that only some, not all, offenses

under 18 U.S.C. § 2251 are referenced to §2G2.1. Second, it makes technical changes in §2G2.2,

Statutory Provisions, to addressthe fact that offenses under section 2252A(g) are now covered by §2G2.6,

while offenses under section 2252A(a) and (b) continue to be covered by §2G2.2. Third, it makes similar

technical changes in §2G2.2, Application Note 1, to addressthis fact. Fourth, it makes a technical change

in §2G2.3, Commentary, to addressthe fact that the statutory minimum sentence for a defendant convicted

under 18 U.S.C. § 2251A is now 30 years imprisonment. Fifth, it makes technical changes in §2G3.1,

subsection (c)(1), to address the fact that §2G2.4 no longer exists, having been consolidated into §2G2.2

effective November 1, 2004. Sixth, 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. As a conforming change,

it also provides the appropriate reference for the offense that is now contained in subsection (c) of that

section. Seventh, it makes a technical change in Appendix A (Statutory Index) to address the fact that

offenses under section 2252A(g) are now covered by §2G2.6, while offenses under section 2252A(a) and

(b) continue to be covered by §2G2.2.

Proposed Amendment:

Part A (Technical Issues With Respect to References to Guidelines, Statutes, and Rules)

§1B1.8. Use of Certain Information

* * *

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Commentary

Application Notes:

* * *

3. On occasion the defendant will provide incriminating information to the government during plea

negotiation sessions before a cooperation agreement has been reached. In the event no

agreement is reached, use of such information in a sentencing proceeding is restricted by Rule

11(e)(6f) (Admissibility or Inadmissibility of a Pleas, Plea Discussions, and Related Statements)

of the Federal Rules of Criminal Procedure and Rule 410 (Inadmissibility of Pleas, Plea

Discussions, and Related Statements) of the Rules of Evidence.

* * *

§2J1.1. Contempt 

* * *

Commentary

* * *

Application Notes:

* * *

3. Violation of Judicial Order Enjoining Fraudulent Behavior.—In a case involving a violation of

a judicial order enjoining fraudulent behavior, the most analogous guideline is §2B1.1. In such

a case, §2B1.1(b)(78)(C) (pertaining to a violation of a prior, specific judicial order) ordinarily

would apply.

* * *

§4B1.2. Definitions of Terms Used in Section 4B1.1

* * *

Commentary

Application Notes:

1. For purposes of this guideline—

* * *

Unlawfully possessing a listed chemical with intent to manufacture a controlled substance

(21 U.S.C. § 841(dc)(1)) is a "controlled substance offense."

* * *

§5C1.2. Limitation on Applicability of Statutory Minimum Sentences in Certain Cases

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* * *

Commentary

Application Notes:

* * *

8. Under 18 U.S.C. § 3553(f), prior to its determination, the court shall afford the government an

opportunity to make a recommendation. See also Fed. R. Crim. P. 32(c)(1), (3)(f), (i).

* * *

§5D1.2. Term of Supervised Release

(a) Except as provided in subsections (b) and (c), if a term of supervised release is

ordered, the length of the term shall be:

(1) At least three years but not more than five years for a defendant

convicted of a Class A or B felony. 

(2) At least two years but not more than three years for a defendant

convicted of a Class C or D felony. 

(3) One year for a defendant convicted of a Class E felony or a Class A

misdemeanor. 

(b) Notwithstanding subdivisions (a)(1) through (3), the length of the term of

supervised release shall be not less than the minimum term of yearsspecified for

the offense under subdivisions (a)(1) through (3) and

may be up to life, if the offense is—

(1) any offense listed in 18 U.S.C. § 2332b(g)(5)(B), the commission of

which resulted in, or created a foreseeable risk of, death or serious

bodily injury to another person; or 

(2) a sex offense.

(Policy Statement) If the instant offense of conviction is a sex offense, however,

the statutory maximum term of supervised release is recommended.

(c) The term of supervised release imposed shall be not less than any statutorily

required term of supervised release.

* * *

Commentary

* * *

Background: This section specifies the length of a term of supervised release that is to be imposed. 

Subsection (bc) applies to statutes, such as the Anti-Drug Abuse Act of 1986, that require imposition of

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a specific minimum term of supervised release. 

* * *

APPENDIX A - STATUTORY INDEX

* * *

42 U.S.C. § 3611(fc) 2J1.1

* * *

Part B (Technical Issues With Respect to Child Pornography Offenses)

§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

* * *

Commentary

Statutory Provisions: 18 U.S.C. §§ 1591, 2251(a)-(c), 2251(d)(1)(B), 2260(b).

* * *

§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 

* * *

Commentary

Statutory Provisions: 18 U.S.C. §§ 1466A, 2252, 2252A(a)-(b), 2260(b).

Application Notes:

1. Definitions.—For purposes of this guideline:

* * *

"Sexual abuse or exploitation" means any of the following: (A) conduct described in 18 U.S.C.

§ 2241, § 2242, § 2243, § 2251(a)-(c), § 2251(d)(1)(B), § 2251A, § 2260(b), § 2421, § 2422, or

§ 2423; (B) an offense under state law, that would have been an offense under any such section

if the offense had occurred within the special maritime or territorial jurisdiction of the United

States; or (C) an attempt or conspiracy to commit any of the offenses under subdivisions (A) or

(B). "Sexual abuse or exploitation" does not include possession, receipt, or trafficking in material

relating to the sexual abuse or exploitation of a minor.

* * *

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§2G2.3. Selling or Buying of Children for Use in the Production of Pornography

(a) Base Offense Level: 38

Commentary

Statutory Provision: 18 U.S.C. § 2251A.

Background: The statutory minimum sentence for a defendant convicted under 18 U.S.C. § 2251A is

twentythirty years imprisonment.

* * *

§2G3.1. Importing,Mailing,orTransporting Obscene Matter;TransferringObscene Matter

to a Minor; Misleading Domain Names

* * *

(c) Cross Reference

(1) If the offense involved transporting, distributing, receiving, possessing,

or advertising to receive material involving the sexual exploitation of a

minor, apply §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) or §2G2.4 (Possession of Materials Depicting a Minor

Engaged in Sexually Explicit Conduct), as appropriate.

* * *

APPENDIX A - STATUTORY INDEX

* * *

18 U.S.C. § 2251(a),(b) 2G2.1

18 U.S.C. § 2251(c) 2G2.2

18 U.S.C. § 2251(cd)(1)(A) 2G2.2

18 U.S.C. § 2251(cd)(1)(B) 2G2.1

18 U.S.C. § 2251A 2G2.3

18 U.S.C. § 2252 2G2.2

18 U.S.C. § 2252A(a),(b) 2G2.2

18 U.S.C. § 2252A(g) 2G2.6

* * *

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