Sentencing Federal Sexual

Offenders: Protection of Children 

from Sexual Predators Act of 1998

February 17, 2000

Sexual Predators Act Policy Team

Pamela G. Montgomery, Chair

Kevin Blackwell

Keri Burchfield

John Butcher

Amie Clifford

Alan Dorhoffer

Paul Hofer

Krista Rubin

Deborah Stevens-Panzer
i

Table of Contents

Page

I. Introduction to the Team’s Charter and Overview of Issues ............... 1

A. Previous Commission Work ................................. 1

B. New Problems Identified ................................... 2

C. Format of the Report ...................................... 4

II. The Sexual Predators Act ....................................... 4

A. General Overview ........................................ 4

B. Directives in the Act to The Commission ........................ 5

C. Other Provisions of the Act ................................. 6

III. Relevant Federal Statutes and Sentencing Guidelines ................... 6

A. Sexual Abuse ........................................... 7

1. Statutes .......................................... 7

2. Guideline Provisions ................................. 7

a. §2A3.1 (Rape) ................................ 7

Table 1 ...................................... 9

b. §2A3.2 (Statutory Rape) ........................ 10

Table 2 ..................................... 13

c. §2A3.3 (Sexual Abuse of a Ward Guideline) .......... 14

Table 3 ..................................... 15

d. §2A3.4 (Abusive Sexual Contact Guideline) ........... 16

Table 4 ..................................... 17

B. Transportation for Illegal Sexual Activity ....................... 18

1. Statutes ......................................... 18

2. Guideline Provisions ................................ 18

Table 5 .......................................... 20

C. Pornography and Obscenity ................................ 21

1. Statutes ......................................... 21

2. Guideline Provisions ................................ 21

a. §2G2.1 (Production of Child Pornography Guideline) .... 21

Table 6 ..................................... 23

b. §2G2.2 (Pornography Trafficking Guideline) .......... 23

“Pattern of Activity of Sexual Abuse or 

Exploitation of a Minor” ......................... 24

“Distribution” of Pornography ..................... 24

Computer Enhancement ......................... 25

Table 7 ..................................... 25

c. §2G2.4 (Possession of Materials Depicting a 

Minor Engaged in Sexually Explicit Conduct) .......... 26

Table 8 ..................................... 27
Page

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d. §2G3.1 (Importing, Mailing, or Transporting 

Obscene Matter) .............................. 28

Table 9 ..................................... 29

e. §2G3.2 (Obscene Telephone Communications for 

a Commercial Purpose; Broadcasting Obscene 

Material) .................................... 30

IV. Action Items ................................................ 30

Action Item #1: How should the Commission respond to 

the creation of the new offense of Prohibiting 

Transfer of Obscene Materials to a Minor? ...... 30

1. Discussion ........................ 30

2. Options .......................... 31

Action Item #2: How should the Commission respond to 

the creation of the new offense of Prohibiting

Transmittal of Identifying Information about a 

Minor for Criminal Sexual Purposes? .......... 32

1. Discussion ........................ 32

2. Options .......................... 32

Action Item #3: How should the Commission respond to 

Congress’s change in the possession of child

pornography statutes that express a “Zero 

Tolerance” for Possession of Child 

Pornography? ........................... 33

1. Discussion ........................ 33

2. Options .......................... 35

Action Item #4: How should the Commission respond to the 

directive to promulgate amendments to clarify 

that the term "distribution of pornography" 

applies to the distribution of pornography for 

both monetary remuneration and a 

non-pecuniary interest? .................... 35

1. Discussion ........................ 35

2. Options .......................... 36

Action Item #5: How should the Commission implement the

congressional directives to provide an 

enhancement if, with the intent to induce, 

entice, coerce, or facilitate the transport of a 

child to engage in any prohibited sexual 

activity, the defendant (1) used a computer, 

or (2) knowingly misrepresented his/her actual

identity? ............................... 37

1. Discussion ........................ 37
Page

iii

2. Options .......................... 38

V. Additional Action Items ........................................ 39

Action Item #6: How should the Commission respond to the 

directive to promulgate amendments to provide

a sentencing enhancement for offenses under

Chapter 117 of Title 18 (relating to the 

transportation of minors for illegal sexual activity)

while ensuring that the sentences, guidelines, 

and policy statements for offenders convicted 

of such offenses are appropriately severe and

reasonably consistent with the other relevant

directives and the relevant existing guidelines? ... 40

1. Discussion ........................ 40

2. Options ................. 42

Action Item #7 How should the Commission implement the 

directive to promulgate amendments to the 

sexual abuse guidelines so as to increase

penalties in any case in which the defendant 

engaged in a pattern of activity involving the 

sexual abuse or exploitation of a minor? ........ 43

1. Discussion ........................ 43

a. Scope of Conduct for Pattern of 

Activity of sexual abuse or 

exploitation of a minor: Relevant

Conduct, Prior Convictions, or 

other unconvicted conduct? ....... 44

b. Types of Conduct Considered

under Pattern of Activity

enhancement: Sexual abuse,

production of child pornography,

enticement of minors to engage 

in prohibited sexual conduct? ...... 46

c. What types of offenders should the

pattern of activity enhancement 

target? ...................... 46

2. Options .......................... 47

Option 1: Encouraged Upward Departure

Provision .................... 47

Option 2: Specific Offense

Characteristics ................ 48

Option 3: Criminal History “Override” ..... 50
Page

iv

Appendices
 1

 The original bill was introduced in the House of Representatives by Representative McCollum (R-FL)

and in the Senate by Senator Hatch (R-UT) (Appendix A).

 2

 P.L. 105-314 at § 507 (1) and (2).

 3

 See Amber Hagerman Child Protection Act of 1996, and the Child Pornography Act of 1996, P.L.

104-208 (from the Omnibus Consolidated Appropriations Act 1996).

 4

 U.S. Sentencing Commission, “Sex Offenses Against Children: Findings and Recommendations

Regarding Federal Penalties” (June 1996) [hereinafter the 1996 Report to Congress].

 5

 See Appendix E for a history of amendments to the “sex crimes” guidelines.

1

Sentencing Federal Sexual Offenders:

Protection of Children from Sexual Predators Act of 1998

I. Introduction to the Team’s Charter and Overview of Issues

The Sexual Predators Act Policy Team (the team) is the latest in a series of

Commission working groups charged with analyzing the guidelines concerning sex offenses

against children. The team was chartered to assist the Commission in developing possible

responses to the Protection of Childrenfrom Sexual Predators Act of 1998, Pub. L. 105-314

(“the Act”).1 This Act contains both specific and general directives to the Commission to

review relevant guidelines and, upon completion of the review, provide appropriate

enhancements and otherwise increase penalties in certain circumstances, while ensuring

“reasonable consistency” among the guidelines and avoiding “duplicative punishment.”2

 

A. Previous Commission Work

Several provisions of the Act, as well as aspects of legislation enacted in late1996,3

appear, in part, to be congressional responses to recommendations made in the

Commission’s last report to Congress on sex offenses against children, completed in June

1996.4 These include expanding the definition of crimes counted as “prior offenses” and

increasing the statutory maximum penalties for repeat offenders, as well as directives to the

Commissionto add specific adjustments that the Commissionhad reported were then under

consideration. Thus, the recent legislation may be understood as the latest installment in

anongoing dialog between Congress and the Commission, as they work togethertoimprove

sentencing in this area of special public concern. 5

Previous Commission working groups have identified problems with several of the

guidelines. Most notably for present purposes, prior analyses of 1992, 1994, and 1995

cases found that about half of the crimes sentenced under the statutory rape guideline

(§2A3.2) involved aggravated conduct that falls outside the scope of cases for which the

guideline was intended—namely, sexual conduct that would be legal, but for the age of the

victim. The severe sentences mandated by guideline 2A3.1 for aggravated sexual abuse
 

6

 See 1996 Report to Congress, pp. 22-24.

2

result in a large gap between sentences imposed under it (with a 1998 mean sentence of

152 months) and the relatively lenient sentences imposed for statutory rape, which, with a

base offense level of just 15, averaged 19 months in 1998.6 This gap and other problems

associated with the rape and statutory rape cases—which, at the time of the 1996 Report

to Congress, mostly involved Native Americans in pathological family and social

circumstances—appeared to contribute to many plea agreements involving statutory rape

charges in circumstances that actually involved aggravated rape, and also to under use of

the cross reference from the guideline for statutory rape (§2A3.2) to the guideline for

aggravated rape (§2A3.1). 

The 1996 Report to Congress outlined amendments that the Commissionhadalready

promulgated to address some of these problems, and also described several additional

changes under active consideration, including raising the base offense level for the statutory

rape guideline and adding some type of enhancement for crimes involving a pattern of

criminal activity. Several different approaches to these problems were described. The

Commission did not promulgate any further changes, however, in part because legislative

developments overtook it. Revisions to penalties, including new mandatory minimums, were

included in legislation in 1996.

B. New Problems Identified

The recent legislation points to a new set of problems with the statutory rape

guideline (§2A3.2) and the guideline for promoting prostitution (§2G1.1). The growth of the

Internet has resulted in mounting concern about its abuse by pedophiles as a means for

identifying, contacting, and coercing childreninto sexual activity. Congress has created new

criminal offenses largely by expanding Title 18 U.S.C. Chapter 117 (Transportation for Illegal

Sexual Activity and Related Crimes) to provide federal jurisdiction over these new types of

crimes involving use of an interstate communication facility to coerce, entice, or transmit

information about a minor for the purposes of engaging in prohibited sexual conduct. The

Federal Bureau of Investigation has expanded its computer crimes unit investigating sex

offenses against children, and as a result there are increases in the number and kind of

offenders prosecuted and sentenced in the federal courts. 

Based on a review of the legislative history, it seems that Congress has found the

current guidelines inadequate to punish for these technological advancements. The recent

Act directs that sentences should be increased for offenses involving the use of computers

and for the knowing misrepresentation of the defendant’s identity, which is particularly easy

in cyberspace. Because of evidence that trading clubs of pedophiles exchanging child

pornography were flourishing on the Internet, the Act also calls for redefinition of the

guideline enhancement for distribution of child pornography to include distribution for a

nonpecuniary interest. The Act also created several new crimes involving the distribution of

obscenity to a minor, and the dissemination of identifying information about a minor, all in
 

7

 Section 502(a)and (b).

 

8

 See 1996 Report to Congress, p. 37.

3

response to reports of abuses of the Internet by persons seeking sexual contact with

children. 

While these new crimes and aggravating circumstances are relatively easy to

incorporateinto the current guidelines, the Act also raises more fundamental issues that may

call into question the adequacy of the current guideline structure. In particular, the Act calls

for sentencing enhancements for offenders convicted under Chapter 117 (Transportation

for Illegal Sexual Activity and Related Crimes) and directs the Commission to ensure that

sentences are “appropriately severe and reasonably consistent.”7 As described further

below, many Chapter 117 offenses (Transportation for Illegal Sexual Activity and Related

Crimes) are currently treated by the guidelines through a “sorter” system involving the

“Promoting Prostitution or Prohibited Sexual Conduct” guideline (§2G1.1) and crossreferencing to other guidelines based on the underlying conduct, most notably the statutory

rape guideline. 

Given the problems with the statutory rape guideline previously identified, and that

it is increasingly used for an entirely new type of offense and offender, the Commissionmay

wish to evaluate the adequacy of the current guideline 2G1.1 “sorter” system for sentencing

the wide range of offenses and offenders now appearing in federal court. For example, is

it possible for a single statutory rape guideline to accommodate cases ranging from

(1) consensual sex that would be legal but for the age of the victim (the intended heartland

of the current guideline), to (2) cases involving Native Americans and a wide range of both

aggravating and mitigating circumstances, suchas incest, alcoholism, family pathology, and

the use of threats and force (which have historically been typical cases under the current

guideline),and (3)tocases involving possible pedophiles detected while roaming the Internet

(the cases of most apparent concern to Congress, and the type growing increasingly

frequent)?

Finally, the Act includes a directive to the Commission that appears to adopt one

version of a proposal in the Commission’s 1996 report, i.e., that sexual abuse offenses

involving a “pattern of activity” should receive a sizeable sentence enhancement. The 1996

Report to Congress discussed the pattern of activity adjustment as one possible response

to two separate issues: (1) the inadequacy of punishment for many offenders sentenced

under the statutory rape guideline, particularly offenses involving repeated acts, and (2) the

need to identify the most dangerous offenders at high risk of recidivism so that they can be

incapacitated with lengthy incarceration. A version of a “pattern of activity” adjustment was

suggested as one method for identifying this high-risk group, although at the time of the

1996 Report to Congress the research literature was judged too inconclusive to base

sentencing policy on predictions of dangerousness made from factors other than criminal

history.8
 

9

 H.R. Report 105-557, at 11 (1998).

 

10 The Sex Crimes Against Children Prevention Act of 1995 (SCACPA) created new prohibitions

against child pornography and other sex crimes against children. Additionally, Congress in the

4

Considerable research progress has been made since the 1996 Report to Congress,

however, largely in response to the sexual predator civil commitment statutes enacted by

several states. Several risk assessment instruments have been validated for use with sex

offender populations. (See literature review in Appendix L.) The Commission may wish to

re-evaluate whether this literature is relevant to federal sentencing policy and to the proper

implementation of the pattern of activity enhancement directed by the Act. 

The need to identify dangerous offenders appears to be the primary focus of the

recent legislation. But the pattern of activity adjustment, depending on how it is

implemented, could address either of the two issues described above. It seems unlikely,

however, that a single adjustment could be drafted in a way that properly addresses both.

The preliminary questions facing the Commission when deciding how to implement the

directive are: What range of solutions are available for addressing the inadequacy of

punishment for statutory rape cases and Chapter 117 cases? How might high-risk offenders

best be identified and incapacitated? And to what problem is the pattern of activity

adjustment best suited? 

C. Format of the Report

After a general introduction to the recent legislation and the statutes and guidelines

applying to sex offenses against children, this report identifies five Action Items addressing

the two new crimes, the declaration of a policy of “zero tolerance” for child pornography,

and three of the specific directives contained in the Act, including those pertaining to the

definition of distribution of pornography, the use of a computer, and offenses involving

misidentification. The last section of the report then contains two additional Action Items

that briefly sketch a range of options for addressing the remaining specific directives

contained in the Act more fundamental issues raised by the problems identified above. 

II. The Sexual Predators Act

A. General Overview

The explosive growth of the Internet has created new opportunities for pedophiles to

prey upon our nation's children. According to Congress, "[w]ith the advent of the evergrowing computer technology, law enforcement officials are discovering that criminals roam

the Internet just as they roam the streets."9

In the past few years, Congress has shown renewed interest in legislating against

(1) the production and trafficking of child pornography, and (2) the enticement of minors to

engage in prostitution or other illicit sexual activity.10 The Sexual Predators Act was a
Telecommunications Act of 1996 created a new offense prohibiting the persuasion, inducement,

enticement, or coercion of a minor to engage in prostitution or other prohibited sexual activity. 

 

11 H.R. Report 105-557, at 12-13.

 

12

 Id. at 12.

5

bipartisan effort to once again address these issues, and its enactment occurred after more

than a year of hearings and debates in Congress, during which testimony was given by law

enforcement officers and others on matters relating to Internet crime and safety on-line.11

Congress was particularly concerned about "[r]ecent, highly publicized news accounts in

which pedophiles have used the Internet to seduce or persuade children to meet them to

engage in sexual activities . . . . [noting that y]ouths who have agreed to such meetings

have been kidnaped, photographed for child pornography, raped, beaten, robbed, and

worse."12 

On October 30, 1998, the Sexual Predators Act was passed by Congress. The

stated purpose of the Act was, inter alia, to protect children from sexual abuse and

exploitation.

B. Directives in the Act to The Commission

Contained within the Sexual Predators Act are directives to the United States

Sentencing Commission (Commission). Those directives are to review relevant guidelines,

and promulgate guideline amendments:

(1) to provide a sentencing enhancement for offenses under Chapter 117

of Title 18 (relating to the transportation of minors for illegal sexual

activity) while ensuring that the sentences, guidelines, and policy

statements for offenders convicted of such offenses are appropriately

severe and reasonably consistent withthe other relevant directives and

the relevant existing guidelines;

(2) to provide for appropriate enhancement if the defendant used a

computer with the intent to persuade, induce, entice, coerce, or

facilitate the transport of a child to engage in any prohibited sexual

activity;

(3) to provide for appropriate enhancement if the defendant knowingly

misrepresented his/her actual identity with the intent to persuade,

induce, entice, coerce, or facilitate the transport of a child to engage

in any prohibited sexual activity;
 

13 In its 1996 Report to Congress: Sex Offenses Against Children, the Commission indicated that it

had under consideration an amendment to make the five level enhancement currently contained in the

trafficking/receipt guideline 2G2.2(b)(4) applicable to §§2G2.1 (production) and 2G2.4 (possession) “if the

defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.” In addition,

the Commission discussed an option of expanding the “pattern of activity” adjustment to the sexual abuse of

a minor guideline, by providing for a five-level adjustment to §2A3.2. The Sexual Predators Act, however,

directs the Commission to add the “pattern of activity” enhancement to all the sex crimes guidelines and

transportation for prohibited sexual activity guidelines. 

 

14 In the 1996 Report to Congress, the Commission also noted that it had under consideration an

amendment that would clarify the definition of “distribution” of pornography. Such an amendment would

provide that distribution for either money or a non-pecuniary interest would receive the five-level

enhancement. Report to Congress: Sex Offenses Against Children (1996) at 40-41.

 

15 18 U.S.C. § 2425 (Supp. 1998) (providing for five-year statutory maximum term of imprisonment). 

 

16

 18 U.S.C. § 1470 (Supp. 1998) (providing for ten-year statutory maximum term of imprisonment).

 

17

 E.g., 18 U.S.C. §§ 2244, 2247, 2422, 2423, 2426 (Supp. 1998).

 

18 18 U.S.C. § 2252 (Supp. 1998). The statute now prohibits the knowing possession of one or more

books, magazines, periodicals, films, video tapes, or other materials containing a visual image, if producing

the image involved the use of a minor engaging in sexually explicit conduct; and such visual depiction is of

such conduct. The statute previously prohibited the possession of three or more items containing

depictions of child pornography.

6

(4) to provide for appropriate enhancement in any case in which the

defendant engaged in a pattern of activity involving the sexual abuse or

exploitation of a minor13; and

(5) to clarify that the term "distribution of pornography" applies to the

distribution of pornography for both monetary remuneration and a nonpecuniary interest.14

In carrying out these directives, Congress has required the Commission to ensure

reasonable consistency with other guidelines, and avoid duplicative punishment under the

guidelines for substantially the same offense.

C. Other Provisions of the Act

In addition to the directives to the Commission, the Sexual Predators Act contained

two new crimes: (1) transmittal of identifying information about minors for criminal sexual

purposes15 and (2) distribution of obscene materials to minors.16 The Act also provided for

increased penalties for some existing crimes that address sexual activity with minors and

child pornography,17 and contained an explicit statement of Congress's "zero tolerance" for

the possession of child pornography.18

III. Relevant Federal Statutes and Sentencing Guidelines
 

19 While the federal government continues to enact sex crimes legislation, state governments prosecute

the vast majority of sex offenders. Federal authority over sex crimes, as with all types of crime, is limited

by the Constitution. Federal jurisdiction is generally based on (1) specific constitutional grants of authority,

such as Congress’s authority to regulate interstate or foreign commerce or (2) federal interests in specified

pieces of property, such as military posts, national parks, or Native American reservations. This limited

scope of federal jurisdiction is reflected in the small number of federal sex offenses cases prosecuted and

the types of cases prosecuted.

 

20

 See Appendix M for definitions of the various sex offenses.

 

21

 See Appendix C for a complete listing of the statutory minimum (if any) and the statutory maximum

for the sexual abuse and pornography offenses.

 

22 On a defendant’s second conviction under 18 U.S.C. § 2241(c), the court must impose a mandatory

life sentence.

7

The congressional directives to the Commission were in the context of the federal

statutory crimes19 relating to sexual abuse and exploitation of minors, transportation for

purposes of prohibited sexual activity, and child pornography. It is therefore necessary to

briefly review those crimes and the guidelines that will need to be amended in order to meet

the congressional mandate.

A. Sexual Abuse

1. Statutes

There are five general federal sexual abuse crimes: aggravated sexual abuse,

18 U.S.C. § 2241; sexual abuse, § 2242; sexual abuse of a minor or a ward, § 2243;

abusive contact, § 2244; and traveling in interstate or foreign commerce to engage in a

sexual act witha juvenile, § 2423(b).20 The maximum statutory penalties under these sexual

abuse statutes range from six months to life imprisonment, with repeat offenders subject to

additional punishment.21

Prior to the Sexual Predators Act, a defendant convicted of the sexual abuse crimes

under 18 U.S.C. §§ 2241-2243, who had one or more prior federal or state convictions

relating to aggravated sexual abuse, sexual abuse or abusive contact, was subject to double

the maximum statutory penalties under 18 U.S.C. § 2247 (1994).22 The Sexual Predators

Act expanded the scope of prior convictions which result in the doubling of the maximum

statutory penalties. The definition of prior convictions now also includes offenses under (1)

chapter 117 (transportation for illegal sexual activity), (2) chapter 110

(production/trafficking/possession of child pornography), and (3) similar state offenses. 

2. Guideline Provisions

There are four guidelines that deal directly with federal sexual abuse offenses:

§2A3.1 (rape), §2A3.2 (statutory rape), §2A3.3 (rape of award), and §2A3.4 (abusive sexual

contact). These guidelines will need to be amended in some form to satisfy the congressional

directives. 
 

23 The guideline was set to correspond to the standard for rape at 18 U.S.C. § 2242: “Whoever, in the

special maritime and territorial jurisdiction of the United States or in a Federal prison, knowingly (1) causes

another person to engage in a sexual act by threatening or placing that other person in fear (other than by

threatening or placing that other person in fear that any person will be subjected to death, serious bodily

injury, or kidnapping) or (2) engages in a sexual act with another person if that other person is (A)

incapable of appraising the nature of the conduct; or (B) physically incapable of declining participation in,

or communicating unwillingness to engage in, that sexual act.” See Appendix D for a complete listing of all

specific offense characteristics, cross-references, and special instructions of the “sex crimes” guidelines.

8

Base offense level: 27 

Specific offense characteristics: 

(1) whether the offense was a more aggravated rape as

defined by 18 U.S.C. § 2241(a) or (b) (four-level increase); 

(2) age of victim (four-level increase if victim under the age of

12 years; two-level increase if victim between ages of 12 and 16

years); 

(3) victim being in custody or care of defendant, or in a

correctional facility (two-level increase); 

(4) injury to the victim (four-level increase if victim sustained

permanent or life-threatening injury; two-level increase if serious

bodily injury; three-level increase if degree of injury between those

two types of injuries); and 

(5) abduction of the victim (four-level increase). 

a. §2A3.1 (Rape)

Guideline

2A3.1

applies to

defendants

convictedof

rape as

defined by

18 U.S.C.

§§ 2241-

2242. 

Guideline

2A3.123
 

24 The policy development team read and analyzed all cases in which there was complete information. 

The case totals differ from those in the general monitoring file upon which Table 1 is based.

 

25 One case did not have complete sentencing information, but had complete demographic information.

9

Although, there is no specific offense characteristic or application note

regarding a general “pattern of behavior of activity of sexual abuse or exploitation,”

Application Note 4 provides that an upward departure may be warranted if the

defendant was convicted of multiple acts; ApplicationNote 6 provides that an upward

departure may be warranted if the defendant had a prior conviction for similar

conduct. The congressional directive to provide an enhancement for a “pattern of

activity of sexual abuse or exploitation of a minor,” may cause the Commission to reevaluate this approach; especially since a review of 126 cases24 sentenced under this

guideline in 1998 indicates that 27 (22%) defendants had prior convictions for sexual

offenses, and 63 (50.0%) offenders abused the victim more than once.

The guideline also does not currently include enhancements for the other factors upon

whichthe latest congressional directives focus: misrepresentation of the defendant’s identity

or use of a computer in connection with a sexual offense against a minor. However, one of

the cases sentenced under this guideline did involve two of the relevant factors. In that

particular case a defendant used a computer to misrepresent his identity to entice a minor

to engage in a prohibited sexual act. 

Table 1

Summary Statistics for Rape Guideline (§2A3.1) 

1998 1997 1996

Number of Cases 12725 141 98

Mean Sentence 152 months 140 months 145 months

Upward Departures 11 7 3

Downward Departures 24 (18.9%) 34 (24.1%) 25 (25.5%)

Criminal History I 72 (56.7%) 82 (58.2%) 56 (57.1%)

Criminal History II 21 16 16

Criminal History III 15 24 13

Criminal History IV 7 7 5

Criminal History V 3 5 1

Criminal History VI 10 7 7

Native American 75 (59%) 86 (61%) 69 (70.4%)
 

26 All victim information in the report is based on the team’s case coding project.

10

Base offense level: 15

Specific offense characteristic: two-level increase if

the victim was in the custody, care or control of the

defendant. 

White 34 28 18

As noted in Table 1, in fiscal year 1998, 127 defendants were sentenced under the

rape guideline and received average sentences of 152 months. Because federal jurisdiction

for sexual offenses is limited to the territorial and maritime jurisdiction of the United States,

59 percent of the offenders sentenced under this guideline are Native American. 

A review by the team of the 126 cases sentenced in 1998 reveals the following

information about the victims26:

• Victims’ ages: 8 months to 17 years old. 

• In 50 cases (39.4%), the victim was in the, care, custody, or supervisory

control of the defendant. Several of the defendants were either the father,

uncle, or other relative of the defendant.

There were 11 upward departures and 24 downward departures. The most frequent

reasons for a downward departure were “pursuant to a plea agreement” (30.0%) and

“isolated incident/aberrant behavior” (17.4%). In comparison, the most frequent reasons for

upward departures were “extreme conduct” (33.3%) and “inadequate criminal history

category” (23.3%). (See Appendix B for more detailed statistical information.)

b. §2A3.2 (Statutory Rape)

Guideline 2A3.2 applies in those cases in which the defendant has been convicted of

statutory rape or attempted statutory rape. According to the commentary to the statutory

rape guideline, it was written to apply to sexual conduct that is lawful but for the age of the

victim. Experience has shown, however, that the guideline is being used to sentence many

offenders convicted of Chapter 117 offenses for enticing children to engage in sexual

conduct. The inadequacy of the penalties provided by the statutory rape guideline for

offenders who have used the Internet to identify, contact, and coerce children into sexual

activity has been the subject of congressional scrutiny and criticism. (See discussion of

Action Item #6.)

Guideline 2A3.2
 

27 U.S. Sentencing Commission, Child Sex Offense Working Group Report (1992).

 

28 Following the 1992 study, the Commission added a cross reference to §2A3.2 that would direct

courts to sentence defendants under the more severe rape guideline (§2A3.1). An analysis conducted in

response to the Sex Crimes Against Children Protection Act in 1996 indicated, however, that the crossreference was not being used as intended. According to information presented by probation officers in the

presentence reports, among the cases sentenced under the guideline in 1996, 61 percent involved conduct

that could merit a sentence under §2A3.1. 

 

29 1996 Report to Congress, p. 40.

11

A 1992 Commission study showed that approximately 50 percent of the cases

sentenced under the statutory rape guideline (§2A3.2) involved conduct more appropriately

punished under the rape guideline (§2A3.1).27 Some cases involved sexual conduct that

would be unlawful evenif the victim were an adult, suchas incest (typically prosecuted under

State law; see also 18 U.S.C. § 1153), physical force, placing the victim in fear (which is

punishable under 18 U.S.C. § 2242), or some other indication of lack of consent on the

victim's part. Few of the cases sentenced under the guideline could be termed consensual

sexual conduct.28 Subsequent studies in 1996 and 1998 confirmed this information. In 1998,

44.6 percent of the cases would have more appropriately been sentenced under the rape

guideline (§2A3.1). 

As noted in the discussion of the criminal sexual abuse guideline above, prosecutors

may be reluctant to subject defendants to sentences that seem too severe. Also,

prosecutors may encounter proof problems in trying child sexual abuse cases. The victims

tend to be very young. Approximately 45 percent of the child victims of sex crimes are under

the age of 10. Additionally, the abuse may have occurred years before it was detected,

making it difficult for the young victim to recall all relevant details. Therefore, prosecutors

often agree to bring a lesser charge, including a stipulation to the less serious guideline, in

exchange for the opportunity to present the evidence of aggravating conduct using the lower

preponderance standard of proof at sentencing. A review of telephone inquiries to the

Commission and relevant appellant case law also indicate that practitioners have difficulty

interpreting the statutory language which defines the type of conduct that requires the use

of the more serious guideline. 

Like the rape guideline, the statutory rape guideline does not provide a general

enhancement for a pattern of activity of child sexual abuse or the production of child

pornography. However, the statutory rape guideline does contain two application notes

providing that an upward departure may be warranted if the defendant either (1) transported

persons in furtherance of a commercial scheme including, inter alia, for the purpose of

prostitution, or (2) had a prior conviction for similar conduct. 

The Commission in 1996, as a result of its study of the cases sentenced under the

statutory rape guideline, stated in a report to Congress29that it was exploring several

options for enhancing sentences based on a pattern of activity involving the sexual

exploitation of a minor. The “pattern of activity” directive appears to be in response to the

Commission’s 1996 Report to Congress.
 

30

 See Appendix I for more data on the pattern of activity of sexual abuse or sexual exploitation issue. 

Appendix J contains (1) summaries of key appellate court decisions interpreting “pattern of activity,” and

(2) summaries of district court cases applying the five-level “pattern of activity” enhancement in guideline

2G2.2.

 

31

 See Appendix H for more data on the misrepresentation of identity issue.

12

A review of the cases sentenced under the statutory rape guideline reveals that many

of them involve a repetitive pattern of abuse.30 For example, 24 defendants (36.9%) abused

the same victim on more than one occasion. Many of the defendants were family members

who had access and opportunity to abuse the victim for several years. In United States v.

Big Medicine, 73 F.3d 994 (10th Cir. 1995), the defendant was convicted of 18 U.S.C.

§ 2243(a) and sentenced under §2A3.2 for having sexual intercourse with and impregnating

his 15-year-old stepdaughter. In that case, the defendant admitted to having had sex with

his stepdaughter on approximately 75 occasions over a period of four years, beginning when

the victim was 12 years old. In another case, United States v. Chatlin, 51 F.3d 869 (9th Cir.

1995), the defendant impregnated his 13-year-old stepdaughter. The court sentenced the

defendant under §2A3.2 but departed upward on the basis of the defendant's repetitive

conduct, extreme conduct and extreme psychological harm to the victim. The appellate court

affirmed the reasons given as a basis for the departure, but reversed the district court’s

decision on the degree of the departure. 

Additionally, the guideline does not currently include enhancements for the other

factors upon which the latest congressional directives focus: misrepresentation of the

defendant’s identity or use of a computer inconnectionwitha sexual offense against a minor.

A review of the cases sentenced under the statutory rape guideline reveals, however, that

several of them involved the sentencing factors upon which the latest congressional

directives focus. For example, a review of the cases reveals that: 

• Twenty (30.8%) defendants used a computer to contact the victim. 

• Three (4.6%) of the defendants misidentified themselves, each using a

computer. 

• The misidentification of the defendant’s identity was for the purpose of

traveling to meet the child victim, not to transport the victim, which is the focus

of the legislative directive.31
 

32 One case did not have complete sentencing information, but had complete demographic information.

 

33 As previously noted, federal jurisdiction for most sexual offenses against children is limited to the

territorial and maritime jurisdiction of the United States, e.g., Indian reservations.

13

Table 2

Summary Statistics for Statutory Rape Guideline (§2A3.2) 

1998 1997 1996

Number of Cases 65 4532 38

Mean Sentence 19 months 22 months 19 months

Upward Departures 3 2 2

Downward Departures 9 (13.8%) 4 (8.9%) 7 (18.4%)

Criminal History I 42 (64.6%) 30 (65.2%) 29 (74.4%)

Criminal History II 11 5 4

Criminal History III 6 5 0

Criminal History IV 4 1 4

Criminal History V 0 3 0

Criminal History VI 2 2 2

Native American 32 (49.2%) 37 (80.4%) 29 (74.4%)

White 25 5 5

As shown in Table 2, in fiscal year 1998, 65 defendants were sentenced under the

statutory rape guideline, receiving mean sentences of 19 months imprisonment. Of the

offenders sentenced under this guideline, 49.2 percent were Native American. 33 The

percentage of Native American offenders is significantly reduced from 1997 and 1996 when

the percentage of Native Americans was 80.4 percent and 74.4 percent, respectively. The

growing number of white defendants, 5 in 1996, 5 in 1997, and 25 in 1998, reflects the

growing number of transportation for illegal sexual activity offenses sentenced under the

statutory rape guideline. 

A review of the cases reveals the following information about the victims:

• Victims’ ages : 5 years old to 16 years old. 
 

34 Several of the cases sentenced under §2A3.2 involved incest. Many of the defendants were either

the father, uncle, or other relative of the victim. Incest cases were frequently convicted under 18 U.S.C.

§ 2243(a), (sexual abuse of a minor). The guideline was intended to apply, however, to conduct that would

be lawful but for the age of the victim. In United States v. Passi, 62 F.3d 1278 (10th Cir. 1995), the

defendant was convicted under 18 U.S.C. § 2243(a) for sexually molesting his biological daughter who

became pregnant as a result of the molestation. The court affirmed a cross-reference from guideline 2A3.2

to guideline 2A3.1 on the grounds that the case involved incest, which was not intended to be sentenced

under the sexual abuse of a minor guideline since it was not otherwise lawful conduct. A review of the

cases sentenced under §2A3.2 suggests that some incest cases prosecuted under 18 U.S.C. § 2243(a)

might be prosecuted under more serious sexual abuse statutory provisions, inasmuch as the offense

involves placing the victim in fear. However, if, in fact, incest cases are being appropriately prosecuted

under § 2243(a) and sentenced under §2A3.2, it may be that §2A3.2 has not adequately captured the

seriousness of this type of offense conduct. 

14

Base offense level: 9 

Specific Offense characteristics: None

< 3 of the 73 victims were under the age of 12, and 

• In nine cases (13.8%), the victim was in the custodial care of the defendant.34

Several of the defendants were either the father, uncle, or other relative of the

defendant.

Although most of the offenders are in Criminal History Category I, four defendants

(6.2%) had prior convictions for sexual offenses, and several of the cases involved the abuse

of multiple victims. 

There were three upward departures and nine downward departures. The upward

departures were based on “extreme psychological injury,” risk of future conduct based on

prior conduct or record, and on a finding that the cases were not representative of the

heartland. The most frequent reason for a downward departure was “isolated

incident/aberrant behavior” (nine cases/33.3%). (See Appendix B for more detailed

statistical information.)

c. §2A3.3 (Sexual Abuse of a Ward Guideline)

Guideline 2A3.3 applies in cases in which the defendant has been convicted of

criminal sexual abuse, or attempted criminal sexual abuse, of a ward. 

Guideline 2A3.3 

These cases typically involve sexual relations between prison guards and male prison

inmates. All of the cases involved adult victims.
15

While there are no specific offense characteristics that can result inan increase to the

base offense level, there is an application note that provides for an upward departure for

a prior conviction for similar conduct. Although the congressional directive focuses on a

pattern of activity involving the sexual abuse or exploitation of a minor, the Commissioncould

consider adding a broader enhancement tothis particular guideline to deal withthe repetitive

abuse of a prison inmate or other ward. A review of the seven cases sentenced under this

guideline reveals that six cases (85.7%) involved abusing the victim more that once. None

of the other factors that are the focus of the legislative directives were present in the cases

sentenced under this guideline. 

Table 3

Summary Statistics for Sexual Abuse of a Ward Guideline (§2A3.3) 

1998 1997 1996

Number of Cases 7 8 1

Mean Sentence 2 months 6 months 0 months

Upward Departures 0 0 0

Downward Departures 0 (0.0%) 0 (0.0%) 0 (0.0%)

Criminal History I 7 (100.0%) 7 (87.5%) 1 (100.0%)

Criminal History II 0 0 0

Criminal History III 0 0 0

Criminal History IV 0 1 0

Criminal History V 0 0 0

Criminal History VI 0 0 0

Native American 0 2 0

White 1 (15.3%) 4 (50.0%) 1 (100.0%)

As shown in Table 3, in fiscal year 1998, seven defendants were sentenced under

guideline 2A3.3, receiving a mean sentence of 2 months. (See AppendixB for more detailed

statistical information.)
 

35 Guideline 2A3.4 is not specifically listed in the directives as one of the guidelines that the

Commission must amend. However to insure consistency and proportionality, the Commission may want to

apply the enhancements to §2A3.4, as well.

 

36 The terms “sexual act” and “sexual contact” are defined at 18 U.S.C. § 2246. (See Appendix M.)

16

Base offense level: 10, 12 or 16 ( depending upon the means by

which the offense was committed)

Specific offense characteristics:

(1) victim under the age of 12 years (four-level increase except

that, if resulting offense level is less than 16, increase to level 16); 

(2) victim between 12 and 16 years of age (two-level increase if

base offense level determined under §2A3.4(a)(1) or (2)); and 

(3) being in the care, custody or control of the defendant (twolevel increase). 

d. §2A3.4 (Abusive Sexual Contact Guideline)35

Guideline 2A3.4 applies in those cases in which the defendant has been convicted of

abusive sexual contact or attempted abusive sexual contact.36 

Guideline 2A3.4

Although there is no specific offense characteristic or application note regarding a

general “pattern of behavior of activity of sexual abuse or exploitation,” the Commissionhas

provided that an upward departure may be warranted if the defendant has a prior conviction

for similar conduct (see ApplicationNote 5). In light of the congressional directive to provide

an enhancement for a “pattern of activity of sexual abuse or exploitation of a minor,” the

Commissionmaywant toreconsider this approach. For example, seven (12.5%) defendants

had prior convictions for sexual offenses. Nineteen defendants (33.9 %) abused the victim

more than once. 

Additionally, the guideline does not currently include enhancements for the other

factors upon which the latest congressional directives focus, i.e., misrepresentation of the

defendant’s identity, or use of a computer in connection with a sexual offense against a

minor. None of the other factors that are the focus of the legislative directives are present

in the cases involving the sexual touching of a minor. 
 

37 One case did not have complete sentencing information, but had complete demographic information.

 

38 As previously noted, federal jurisdiction for most sexual offenses against children is limited to the

territorial and maritime jurisdiction of the United States, e.g., Indian reservations.

17

Table 4

Summary Statistics for Abusive Sexual Contact Guideline (§2A3.4) 

1998 1997 1996

Number of Cases 57 4837 56 

Mean Sentence 19 months 21 months 19 months

Upward Departures 5 3 2

Downward Departures 6 (10.5%) 5 (10.4%) 8 (14.3%) 

Criminal History I 35 (61.4%) 36 (73.5%) 42 (75.0%)

Criminal History II 13 6 5

Criminal History III 7 3 7

Criminal History IV 0 0 0

Criminal History V 2 3 2

Criminal History VI 0 1 0

Native American 37 (64.9%) 39 (79.6%) 44 (78.6%)

White 11 6 9

As shown in Table 4, in fiscal year 1998, 57 defendants were sentenced under the

abusive sexual contact guideline, with a mean sentence of 19 months. Of the offenders

sentenced under this guideline, 64.9 percent were Native American. 38 The percentage of

Native American offenders is reduced from 1997 and 1996 when the percentage of Native

Americans was 79.6 percent and 78.6 percent, respectively. 

A review of the cases reveals the following information about victims:

• Victims’ ages: two years old to 17 years old

 < 34 children under 12 years old

 
 

39

 E.g., 18 U.S.C. §§ 2421, 2422, 2423(a); 8 U.S.C. § 1328.

 

40

 See Appendix F for the mean sentence lengths imposed for these types of offenses.

 

41 18 U.S.C. § 2422(b). 

18

• In 27 cases (47.4%), the victims were in the custody, care, or control of

defendant:

There were five upward departures and six downward departures. Many of the

cases involved a combinationof departure factors. One of the most frequently cited reasons

(26.7%) for a downward departure was “isolated incident/aberrant behavior.” The most

frequent reason (40.0%) for upward departure was “inadequacy of the criminal history

category.” (See Appendix B for more detailed statistical information.)

B. Transportation for Illegal Sexual Activity

1. Statutes

Several of the transportation for illegal sexual activity statutes39 prohibit the promotion

of prostitution and other illicit sexual conduct. The statutory maximum sentences for these

offenses range from five to 15 years imprisonment.40 Because federal criminal jurisdiction

outside federally controlled territories or enclaves generally depends on a connection to

interstate or foreign commerce, these prostitution-type offenses usually involve

transportation, travel, or coercion or inducement to travel. However, other statutes

promulgated under the TransportationforIllegalSexualActivity Chapter prohibit using means

of commerce such as the mail or the Internet to induce or coerce a minor to participate in

prostitution or other prohibited sexual activity.41

The Sexual Predators Act increased the statutory maximum sentence for several

offenses and added the inchoate offense of "attempt" to the scope of several crimes. The

Act also created a new offense at 18 U.S.C. § 2425 prohibiting the use of interstate facilities

to transmit identifying information about a minor for criminal sexual purposes.

2. Guideline Provisions

Guideline 2G1.1 applies to defendants convicted of one of the numerous

transportation for illegal sexual activity statutes. However, through the use of crossreferences, many of the cases are sentenced under other guidelines, such as the statutory

rape guideline (§2A3.2).
19

Base offense level: 17

Specific offense characteristics :

(1) the use of physical force or coercion by any means (four-level

increase); 

(2) the age of the victim (nine-level increase if the victim is under the

age of 12 years; seven-level increase if the victim is between the ages of 12

and 16 years; and five-level increase if victim is 16 or 17 years old); and 

(3) if the specific offense characteristic relating to age applies and the

defendant was either a parent, legal guardian, relative, custodian or caretaker

of the victim (two-level increase). 

Guideline 2G1.1

There are no specific offense characteristics or applicationnotes related to the factors

that are the focus of the latest congressional directives: “pattern of activity,”

misrepresentation of a defendant’s identity, or use of a computer in connection with a sexual

offense against a minor.

Guideline 2G1.1 serves two purposes. First, it is the primary guideline for offenses

involving the transportation or coercion of minors for purposes of prostitution. The base

offense level and specific offense characteristics are geared for this purpose. 

Second, §2G1.1 serves as a “sorter.” Since the jurisdiction-based statutes cover a

broad range of conduct, cross-references allow these offenses to be sentenced under the

guideline most appropriate for the underlying conduct. Many of the transportation for illegal

sexual activity cases are sentenced via cross-reference to one of the sexual abuse

guidelines. The Commission has, however, designated the sexual abuse guidelines

(§§2A3.1-3.4) as the primary guidelines for convictions of “Travel with intent to engage in a

sexual act with a juvenile” (18 U.S.C. § 2423(b)). 
 

42 One case did not have complete sentencing information, but had complete demographic information.

20

Table 5

Summary Statistics for Promotion of Prostitution 

and other Prohibited Sexual Conduct (2G1.1) 

1998 1997 1996

Number of Cases 3242 15 12

Mean Sentence 17 months 12 months 33 months

Upward Departures 2 0 2

Downward Departures 3 (9.4%) 3 (20.0%) 1 (8.3%)

Criminal History I 25 (75.8%) 11 (73.3%) 8 (66.7%)

Criminal History II 3 2 2

Criminal History III 4 2 1

Criminal History IV 0 0 0

Criminal History V 1 0 0 

Criminal History VI 0 0 1

Native American 0 0 0

White 22 (66.7%) 6 (40.0%) 2

As shown in Table 5, in fiscal 1998, 40 defendants were sentenced under the

transportation for prostitution guideline and received a mean sentence of 17 months.

 

A review of the 32 cases sentenced under the guideline in 1998 reveals that three

cases would have been more appropriately sentenced under another guideline because they

did not involve prostitution. For example, one case involved a defendant who had a sexual

relationship with his 14-year-old girlfriend. Another case involved a defendant who sexually

abused several boys from the Czech republic whom he sponsored for U.S. citizenship. The

third case involved a defendant who transported a minor across state lines to sexually abuse

him.
21

In 1998, 17 other cases were cross-referenced out of §2G1.1 to various guidelines.

Nine of those cases were sentenced under the rape guideline and two under the statutory

rape guideline. (See Appendix B for more detailed statistical information.)

C. Pornography and Obscenity

1. Statutes

Federal pornography statutes prohibit the sexual exploitation of a minor through the

production, distribution, trafficking, and possession of child pornography. 18 U.S.C. § 2251,

et seq. These statutes criminalize the employment, use, persuasion, inducement, enticement,

or coercion of any minor to engage in sexually explicit conduct in order to make pictures. Id.

The statutory penalties range from probation to life imprisonment. Id.

The federal obscenity statutes prohibit the mailing, selling, importing, broadcasting, or

distribution of obscene materials. 18 U.S.C. § 1460, et seq. The statutory maximum

sentences for these offenses range from two years to ten years imprisonment. Id.

The Sexual Predators Act created a new criminal offense prohibiting the transfer or

distribution of obscene materials to a minor; the statutory maximum term of imprisonment for

commission of this new crime is ten years. 18 U.S.C. § 1470 (Supp. 1998). 

2. Guideline Provisions

There are three guidelines under which most defendants convicted of federal

pornography offenses are sentenced: §§2G2.1 (production of child pornography guideline),

2G2.2 (trafficking and receipt of child pornography guideline), and 2G2.4 (possession of child

pornography guideline).

Obscenity offenses are generally sentenced under §§2G3.1 (importing, mailing, or

transporting obscene matter) and 2G3.2 (obscene telephone communications for a

commercial purpose; broadcasting obscene material).

a. §2G2.1 (Production of Child Pornography Guideline)

Guideline 2G2.1 addresses sexual exploitation of minors by the production of sexually

explicit visual or printed material, custodians permitting children to engage in sexually explicit

conduct, and advertisement for minors to engage in production of pornography. 
22

Base offense level: 27

Specific offense characteristics:

 

(1) the age of the victim (four-level increase if the victim is under the age

of 12 years; two-level increase if the victim is between the ages of 12 and 16

years); 

(2) the relationship between the defendant and victim (two-level increase

if the defendant was the parent, relative, legal guardian or custodian of victim);

and

(3) a computer was used to solicit participation by or with a minor in

sexually explicit conduct for the purpose of producing sexually expicit material

(two-level increase). 

Guideline 2G2.1

None of the directives expressly apply to this guideline. However, in 1996, in addition

to implementing the directives contained in SCACPA, the Commission added a two-level

increase if a computer was used to solicit participation in sexually explicit conduct by or with

a minor for the purposes of producing a visual depiction of the conduct. The Commission may

decide to expand the computer enhancement to comply with the directives in the Sexual

Predators Act. (See Directives 2 and 3.)
 

43 The trafficking/receipt guideline takes a very different approach to determining punishment than

§2G2.1 just discussed. Although the base offense is significantly lower (level 17 in contrast to level 27 for

production of child pornography), guideline 2G2.2 has a number of very significant enhancements that can

more than double the base offense level. 

23

Table 6

Summary Statistics for Production of Child Pornography Guideline (§2G2.1)

1998 1997 1996

Number of Cases 43 29 15

Mean Sentence 119 months 89 months 95 months

Upward Departures 5 (11.6%) 0 (0.0%) 3 (20.0%)

Downward Departures 3 2 2

Criminal History I 30 (69.8%) 21 (72.4%) 9 (60.0%)

Criminal History II 3 4 2

Criminal History III 7 2 2

Criminal History IV 2 1 1

Criminal History V 0 1 0

Criminal History VI 1 0 1

Native American 0 0 0

White 43 (100.0%) 26 (89.7%) 13 (86.7%)

As shown in Table 6, in 1998, 43 defendants were sentenced under the production of

pornography guideline and received a meansentence of 119 months. There were five upward

departures and three downward departures. (See Appendix B for more detailed statistical

information.)

b. §2G2.2 (Pornography Trafficking Guideline)

Guideline 2G2.2 addresses trafficking in material involving the sexual exploitation of a

minor; receiving, transporting, shipping, or advertising material involving the sexual exploitation

of a minor; and possessing material involving the sexual exploitation of a minor with intent to

traffic. This guideline has several provisions relevant to the directives of the Sexual Predators

Act.43
 

44 In response to the second part of this ruling and other evidence of inconsistent and overly limited

application of the adjustment, the Commission sent Congress an amendment to clarify the meaning of

“pattern of activity” and ensure increased punishment for all offenders who engage in a pattern of sexual

exploitation of children. (See 1996 Report to Congress.)

24

“Pattern of Activity of Sexual Abuse or Exploitation of a Minor”

Although, the pornography trafficking/receipt guideline provides for a five-level

enhancement for defendants who engaged in a “pattern of activity involving the sexual abuse

or exploitation of a minor,” a review of case files, hotline calls, and appellate case law shows

that this enhancement is being interpreted inconsistently. Several questions arise regarding

the scope of the pattern of activity that is to be considered, including: does it include prior

convictions or only activity that did not result in a conviction; and is the enhancement limited

to behavior that is part of the defendant’s relevant conduct for the offense of conviction, or can

it include conduct from many years ago outside the scope of relevant conduct? 

Questions also arise regarding the type of conduct that triggers the enhancement.

Most courts appear to give the enhancement only if the defendant had a pattern of sexually

abusing a minor or actually exploiting a minor through taking pictures or filming videotapes.

However, a review of the cases sentenced under the child pornography trafficking guideline

reveals that courts do not always make the adjustment in cases involving repeated sexual

abuse. At least one district court, however, has given the adjustment based on the

defendants repeated trading of pornographic pictures. The defendant appealed the issue to

the First Circuit, which held that the term “sexually exploited” as used in §2G2.2 does not

include the computer transmission of child pornography. In addition, the appellate court held

that the pattern of activity of sexual abuse or sexual exploitation must relate to the offense of

conviction. Thus, prior convictions or uncharged incidents of sexual abuse cannot alone trigger

the enhancement. United States v. Chapman, 60 F.3d 894 (1st Cir. 1995).44

“Distribution” of Pornography

The pornography trafficking guideline also includes a five-level increase if the offense

involved distribution. Application Note 1 states that “‘Distribution,’ as used in this guideline,

includes any act related to distribution for pecuniary gain, including production, transportation,

and possession with intent to distribute.” One interpretation of this provision is that it indicates

the Commission’s intent to severely punish those involved in the commercial aspects of child

pornography. Many cases sentenced under this guideline involve trading clubs or other barter

types of exchanges. The congressional directive “to clarify the definition of distribution of

pornography to include pecuniary and non-pecuniary gain” is inresponse to the Commission’s

statement in the 1996 Report to Congress that it was considering providing the five-level

enhancement for both distribution for pecuniary and non-pecuniary distribution.
25

Computer Enhancement

The pornography trafficking guideline also includes a two-level enhancement if a

computer was used for the transmission of the material or a notice or advertisement of the

material. This provision was made in response to a directive in the SCAPCA of 1995. The

Commission may decide to expand the computer enhancement to provide an increase if the

defendant uses a computer or knowingly misrepresents his identity with the intent to entice,

persuade or induce a child to engage in a prohibited sexual act. (See Directives 2 and 3.)

Table 7

Summary Statistics for Trafficking in Material 

Involving the Sexual Exploitation of a Minor (§2G2.2) 

1998 1997 1996

Number of Cases 149 157 98

Mean Sentence 25 months 20 months 21 months

Upward Departures 2 5 6

Downward Departures 42 (28.2%) 37 (23.6%) 15 (15.3%)

Criminal History I 127 (85.2%) 137 (87.3%) 85 (86.7%)

Criminal History II 16 9 8

Criminal History III 4 9 4

Criminal History IV 1 2 1

Criminal History V 1 0 0

Criminal History VI 0 0 0

Native American 1 1 1

White 140 (94.0%) 150 (94.9%) 93 (94.9%)

As shown in Table 7, in fiscal year 1998, 149 defendants were sentenced under the

pornography trafficking guideline and received a mean sentence of 25 months. There were

two upward departures and 42 downward departures. (See Appendix B for more detailed

statistical information.) 
26

Base offense level: 15 

Specific offense characteristics:

 (1) material involving a prepubescent minor or minor under the age of

12 years (two-level increase); 

(2) offenses involving ten or more books, magazines, films, and the like

containing a visual depiction involving the sexual exploitation of a minor (twolevel increase); and 

(3) the use of a computer to possess material (two-level increase). 

c. §2G2.4 (Possession of Materials Depicting a Minor Engaged

in Sexually Explicit Conduct)

Guideline 2G2.4 addresses possession of materials depicting a minor engaged in

sexually explicit conduct. 

Guideline 2G2.4

The Sexual Predator’s Act established a “zero tolerance” policy for possession of child

pornography by prohibiting the knowing possession of any book, magazine, film, video disk,

or any other material containing an image of child pornography. Although Congress did not

provide any directives regarding this new “zero tolerance” policy, the Commission may want

to amend the possession of child pornography guideline to reflect the increased emphasis on

prosecuting these offenses. (See Action Item #3.)
27

Table 8

Summary Statistics for Possession of Materials Depicting a Minor 

Engaged in Sexually Explicit Conduct (§2G2.4) 

1998 1997 1996

Number of Cases 95 76 41

Mean Sentence 18 months 11 months 10 months

Upward Departures 3 1 1

Downward Departures 24 (22.0%) 21 (27.6%) 6 (14.6%

Criminal History I 80 (84.2%) 71 (93.4%) 36 (87.8%)

Criminal History II 6 2 2

Criminal History III 7 1 3

Criminal History IV 1 2 0

Criminal History V 0 0 0

Criminal History VI 1 0 0

Native American 2 0 0

White 89 (93.7%) 73 (96.1%) 37 (90.2%)

Infiscal year 1998, 95 cases were sentenced under this guideline. The mean sentence

was 18 months. There were three upward departures and 24 downward departures. (See

Appendix B for more detailed statistical information.)
28

Base offense level: 10

Specific offense characteristics relating to: 

(1) distribution for pecuniary gain (increase depends upon

retail value of materials, but in no event by less than five levels);

and 

(2) possession of material portraying sadistic or

masochistic conduct or other depictions of violence (four-level

increase). 

d. §2G3.1 (Importing, Mailing, or Transporting 

Obscene Matter)

Guideline 2G3.1 addresses the importation, mailing or transporting of obscene

materials. 

Guideline 2G3.1
29

Table 9

Summary Statistics for Importing, Mailing, 

or Transporting Obscene Matter (§2G3.1) 

1998 1997 1996

Number of Cases 3 5 6

Mean Sentence 10 months 12 months 5 months

Upward Departures 0 0 0

Downward Departures 1 (33.3%) 0 (0.0%) 0 (0.0%)

Criminal History I 2 (66.7%) 4 (80.0%) 3 (50.0%)

Criminal History II 0 1 3

Criminal History III 0 0 0

Criminal History IV 0 0 0

Criminal History V 0 0 0

Criminal History VI 1 0 0

Native American 0 0 0

White 3 (100.0%) 5 (100.0%) 6 (100.0%)

In fiscal year 1998, three cases were sentenced under this guideline. The mean

sentence was 10 months. There were no upward departures and one downward departure.

(See Appendix B for more detailed statistical information.)
30

Base offense level: 12

Specific offense characteristics relating to: 

(1) the age of the person who received the telephonic

communication or the time at which the broadcast was made (fourlevel increase if person receiving telephonic communication is less

than 18 years of age or the broadcast occurred between 6:00

a.m. and 11:00 p.m.); and 

(2) the volume of commerce attributable to the defendant (if

six plus the offense level from the table at §2F1.1(b)

corresponding to volume of commerce is greater than the offense

level as determined otherwise under this guideline, then increase

to that level).

e. §2G3.2 (Obscene Telephone Communications for a

Commercial Purpose; Broadcasting Obscene Material)

Guideline 2G3.2 addresses obscene telephone communications for a commercial

purpose and the broadcasting of obscene materials. 

Guideline 2G3.2

In fiscal year 1998, no cases were sentenced under this guideline.

IV. Action Items

Action Item #1: How should the Commission respond to the creation of the

new offense of Prohibiting Transfer of Obscene Materials to

a Minor?

1. Discussion

The Sexual Predators Act created a new offense prohibiting the transfer of obscene

materials to a minor. Id. §401 (codified at 18 U.S.C. § 1470 (Supp. 1998)). The statute

prohibits the knowing transfer of, or attempt to transfer, obscene matter to an individual who

is not yet 16 years old, by means of the mail or any facility or means of interstate or foreign
 

45 H.R. No. 105-557 at 19 (1996). 

 

46

 Id.

31

commerce. The maximum term of imprisonment is, without consideration of any possible

enhancement provided elsewhere for recidivism, ten years. Id.

The legislative history reflects Congress’s concern that 

“pedophiles often send child pornography and obscene materials

to minors for the purpose of desensitizing the child to obscene

behavior and to entice the child to believe that such sexual

activities are ‘normal.’ Law enforcement officials have testified

before the Subcommittee on Crime that the sending of child

pornography and obscene materials is often the modus operandi

of many pedophiles who cruise the Internet seeking to build

relationships with minors to victimize them.”45 

The legislative history further indicates that the Act does not target those in the pornography

business but those who are trying to lure children to be victimized.46

The element of “knowing” may distinguish offenses under this section from the types of

conduct prohibited by the Child Online Protection Act (COPA). COPA prohibited the

establishment of websites where minors might view obscenity, a concern similar to the

broadcast of obscene programs that run a risk of exposing minors to obscenity.

This new offense seems most appropriately sentenced under §2G3.1 (Importing,

Mailing or Transporting Obscene Material). The other obscenity guideline, 2G3.2, applies

more directly to commercial enterprises which broadcast obscenity. The means of transport,

whether through the mail or Internet, should not be a determining factor of the appropriate

guideline. 

2. Options

The Commission can implement the statutory change by amending the statutory index

to reference the new offense to §2G3.1 (Importing, Mailing, or Transporting Obscene

Material). The Commission should also promulgate a specific offense characteristic in §2G3.1

for the knowing distribution of obscene materials to persons under 18. The specific offense

characteristic could be similartothe enhancement in§2G3.2(Broadcasting Obscene Material),

which addresses obscene telephonic communication received by a minor less than 18 years

old or made during a time when a minor was likely to receive it.
 

47 Child Protection and Sexual Predator Act of 1998: hearings before the Subcomm. on Crime, the

House Comm. on the Judiciary, 105th Cong. 122 (1998) (testimony of Deborah Niemann-Boehle).

 

48 Guideline 2A6.1 (Threatening or Harassing Communications) is the provision used to sentence

defendants convicted of making obscene or harassing phone calls under 47 U.S.C. § 233(a)(1)(c)-(e). 

These provisions are similar, but not identical, to the new offense codified at 18 U.S.C. § 2425.

32

Action Item #2: How should the Commission respond to the creation of the

new offense of Prohibiting Transmittal of Identifying

Information about a Minor for Criminal Sexual Purposes?

1. Discussion

The Sexual Predators Act contained a second new offense which prohibits the use of

the mail or any facility or means of interstate or foreign commerce to knowingly transmit

identifying information about a minor with the intent to entice, encourage or solicit anyone to

engage in prohibited sexual activity. Id. §101 (codified at 18 U.S.C. § 2425 (Supp. 1998)).

The maximum term of imprisonment is, without consideration of any possible enhancement

provided elsewhere for recidivism, five years. Id.

At this point, there is no data available to the Commission as to what type of cases will

be prosecuted under this new statute, i.e., whether the typical case prosecuted under this

statute will be based upon harassment, prostitution, or pornography, etc. The paucity of

information makes it difficult to determine the “heartland” of offenses. The legislative history

indicates that the statute was promulgated in response to an incident in Illinois where a

disgruntled neighbor listed the child’s name and address on the Internet and stated that she

was interested in having sex with men. The perpetrator placed messages on the Internet (14

different news groups) saying in very vulgar terms that a neighbor’s 9-year-old daughter was

having sex with him and that she wanted to have sex with other men. The message also said

that she had pictures for sale and that men should call her 24 hours a day. The family was

advised by the police to move because of their fear that she could be raped, abducted, or even

killed.47

2. Options

The Commission can implement the statutory change by amending the statutory index

to reference the new offense to §2G1.1 (Promoting Prostitution or Prohibited Sexual Conduct)

or §2A6.1 (Threatening or Harassing Communication).48

A review of the two guidelines indicates that §2A6.1 may be the most appropriate.

Offenses currently referenced to §2A6.1 concern threatening or harassing communications.

The guideline provides specific offense characteristics concerning: (1) intent to carry out the
33

threat, (2) if the offense involved two or more threats, (3) if the offense involved the violation

of a court protection order, or (4) a decrease if the offense did not involve (1), (2) or (3) and

the offense involved a single instance with little or no deliberation. The types of offenses

indexed to this guideline involve a variety of behaviors; however, the common theme of the

offenses is the threatening nature of the communications. The conduct embodied in the new

law concerns placing identifying information about a minor, such as on the internet, for the

purpose of enticing, encouraging, offering or soliciting any person to engage in any sexual

activity. The type of information that could be placed on the Internet, and the resulting conduct

could be considered as threatening or harassing to the minor victim, as well as to the minor’s

family members. The minor, who is the subject of the identifying information, may be placed

in physical danger or certainly harassed or threatened via the telephone or other manner. 

A cross-reference from §§2A6.1 to 2G1.1 may be appropriate in cases where the

purpose of the posting of information was solely for the promotion of illegal sexual activity or

prostitution.

Offenses referenced to §2G1.1 concern promoting prostitution and other prohibited

sexual conduct. Although the new offense is listed in Chapter 117, like many of the other

crimes referenced to guideline 2G1.1, the harm in the new offense appears to be more like

harassment rather than a commercial scheme of pandering or prostitution. Guideline 2G1.1

seems to address those individuals who are seeking to gain financially from transmitting the

identifying information about the minor. The prohibited conduct outlined under the new statute

does not have a commercial or pecuniary focus.

A specific offense characteristic providing an enhancement if a minor was the victim of

the offense would need to be added to guideline 2A6.1 if ultimately chosenby the Commission.

Another option is to defer action until the Commission receives more information on the

type of offenses subject to the new statute.

Action Item #3: How should the Commission respond to Congress’s change

in the possession of child pornography statutes that express

a “Zero Tolerance” for Possession of Child Pornography?

1. Discussion

A clear statement of “zero tolerance for possession of Child Pornography” was one of

the centerpieces of the Sexual Predators Act. Congress eliminated the provision that allowed

individuals to possess up to two books containing any number of pictures of child pornography.

The current statute prohibits the “knowing possession of any book, magazine, film, video tape,
 

56 18 U.S.C. § 2252(a)(4); 18 U.S.C. § 2252(A)(5).

 

57 §2G2.4(b)(2).

34

computer disk, or any other material containing an image of child pornography.”56 Congress

did not provide any directives regarding this statutory change.

The possession of child pornography guideline, 2G2.4, has a specific offense

characteristic that provides for a two-level increase “if the offense involved possessing ten or

more books, magazines, periodicals, films, video tapes, or other items, containing a visual

depiction involving the sexualexploitation of a minor.”57 This specific offense characteristic was

added to the Guidelines Manual effective November 27, 1991. At that time, a defendant could

only be charged with possession of child pornography if the defendant possessed three or

more books or similar items containing a visual depiction of sexual exploitation of a minor.

While addressing the “zero tolerance” policy for possession of child pornography, the

Commission could also amend the guideline to clarify whether a computer graphics file is an

item. 

The Second, Seventh, Eighth, and NinthCircuits all have held that an individual computer

file is an “item” within the meaning of §2G2.4(b)(2). See United States Demeritt, 196 F.3d

138 (2d Cir. 1999); United States Fellows, 157 F.3d 1197 (9th Cir. 1998), cert. denied, 120

S. Ct. 133 (1999); United States v. Hall, 142 F.3d 988 (7th Cir. 1998); United States v. Wind,

128 F.3d 1276 (8th Cir. 1997). These courts have held that computer files, like books,

magazines, and video tapes, are discrete containers for visual depictions capable of being

separately manipulated and distributed. Thus, the computer files, and not the disk or disks on

which such files are stored, are “items” within the meaning of §2G2.4(b)(2). 

One area of concern with §2G2.4(b)(2) is that it produces some incongruities in

guidelines application. When the relevant unit of measurement is the “container” and not the

visual depiction itself, a defendant’s storage of the depictions dictates whether the

enhancement applies, regardless of how the term “item” is construed. For example, under the

current guideline, a defendant who possessed ten books containing one proscribed image each

would receive the enhancement, while a defendant who possessed one book with a thousand

images would not receive the two-level increase. Similarly, a defendant who possessed ten

computer files containing one proscribed image each would receive the enhancement,

whereas, a defendant who possessed one computer file with thousands of images would not.

The Commissionmay wish to address this action item while considering the directives from the

Sexual Predators Act.

In 1998, 52 (54.7%) of the 95 cases sentenced under this guideline received the twolevel enhancement for possession of ten or more items containing child pornography under
 

58 H.R. 4497.

35

§2G2.4(b)(2). Twenty-four of the 95 cases received a downward departure in 1998, the most

common reason cited being “general mitigating circumstances.” (See Appendix B for more

information.)

2. Options

The Commission can implement the statutory change through an amendment to the

possession of child pornography guideline (§2G2.4) by either: (1) an increase in the base

offense level to express the overall increased seriousness of the offense; or (2) a decrease

in the number of pornographic items that triggers the two-level enhancement. In expressing

its “Zero Tolerance” for the possession of child pornography, Congress did not increase the

statutory maximum. Therefore, the Commission may consider neither of these options

necessary.

Action Item #4: How should the Commission respond to the directive to

promulgate amendments to clarify that the term "distribution

of pornography" applies to the distribution of pornography

for both monetary remuneration and a non-pecuniary

interest?

1. Discussion

The Sexual Predators Act directs the Commission to review the guidelines relating to

the distribution of pornography and clarify that the term "distribution of pornography" applies

to the distribution of pornography for "monetary remuneration or for non-pecuniary interest."

According to the legislative history, Congress was particularly concerned about evidence

showing that child molesters often use child pornography to entice minors to engage in sexual

activity. The legislation targets pedophiles who use and distribute child pornography to lure

children into sexual encounters. Evidence suggests that child pornography is often sent to

children as a means to establish a relationship withchildrenfor the purpose of later victimizing

them. The adult uses the materials to convince the child that the behavior is acceptable, even

desirable; the material desensitizes the child, lowering his/her inhibitions; some of the sessions

progress to sexual activities involving the child; photos or home movies are taken of the activity

and finally the nude pornographic material is used to lure more child victims and also to keep

the victim from talking about the experience.58 

In addition to the directive to the Commission, Congress created a new statute

prohibiting “using the mail or any facility of interstate or foreign commerce, or within the special

maritime and territorial jurisdiction of the UnitedStates to knowingly transfer obscene materials
 

59 18 U.S.C. § 1470.

 

60

 United States v. Lorge, 166 F.3d 516 (2nd Cir.), cert. denied, 522 U.S. 875 (1999); United States

v. Canada, 110 F.3d 260 (5th Cir.), cert. denied, 118 S. Ct 195 (1997); United States v. Hibbler, 159 F.3d

233 (6th Cir. 1998), cert. denied, 119 S. Ct. 1278 (1999). See Appendix L for case summaries.

36

to minors.”59 During debate on the Act, Congressman Granger emphasized that the purpose

of the bill was two-fold: (1) to keep pornography out of the sight of children, and (2) to keep

our children out of the reach of sexual predators. One of the purposes of this directive is to

emphasize the significance of other harms caused by trafficking in child pornography, beyond

the financial gain to the defendant. The directive and the statutory provision target those not

necessarily in the business of selling or transferring obscene material, but those who are

attempting to seduce or lure childrenso that they may be victimized. Congress also noted the

importance of allowing law enforcement to discover child sex offenders before they are able

to victimize an actual child. 

The distribution of pornography enhancement inguideline 2G2.2(b)(2) provides: "If the

offense involved distribution, increase by the number of levels from the table in §2F1.1

corresponding to the retail value of the material, but in no event by less than five levels."

ApplicationNote1 states that "distribution" for purposes of that particular guideline includes any

act related to distribution for pecuniary gain, including production, transportation, and

possession with intent to distribute.

Implementing this directive would also resolve a circuit conflict. Four circuits have

examined whether the district court erred in imposing the enhancement for distribution of

pornography where there was no finding that the offense involved pecuniary gain. The

Second, Fifth, and Sixth Circuits have held that pecuniary gain is not necessary to receive the

enhancement.60 The Second and Sixth Circuits upheld enhancements where child pornography

was traded over the Internet. The Fifth Circuit upheld an enhancement where sexually explicit

pictures were sent to a minor for the purpose of enticing the minor to have sex with the

offender/defendant. The Seventh Circuit, however, while in United States v. Black, 116 F.3d

198 (7th Cir.), cert. denied, 522 U.S. 934 (1997), defined distribution of pornography narrowly

to require some type of pecuniary gain, did state that pecuniary gain is a broad concept itself,

and it does not exclude the possibility of swaps, barter, in-kind transactions, or other valuable

consideration. A more detailed discussion of these cases can be found in Appendix L.

2. Options

The Commission can implement the directive to clarify that the term "Distribution of

Pornography" applies to the distribution of pornography for monetary renumeration, as well as

a non-pecuniary interest by amending the application note inguideline §2G2.2. The application

note should emphasize that the five-level enhancement applies in cases where the defendant
 

61 144 Cong. Rec. 75 H.4491 (1998).

 

62 An earlier version of the legislation included a three-year mandatory minimum for using a computer

or any facility of interstate or foreign commerce to entice or coerce a minor to engage in illegal sexual

activity. At the hearings held by the Subcommittee on Crime, prosecutors cited numerous cases in which

pedophiles received two- to three-year sentences for luring children over the Internet to engage in sexual

acts. Congress did not look favorably upon the need to request upward departures. The “Commission

should make sure penalties are adequate-particularly in light of the increased maximum sentences for these

crimes.” The Department of Justice urged that Congress give the Commission a directive to make an

enhancement rather than create the three-year statutory mandatory minimum sentence. 

 

63 H.R. 105-557, at 12 (1998).

 

64 144 Cong. Rec. 75 H.4497 (1998).

37

receives a pecuniary gain and in those cases where the defendant trades child pornography

to adults or uses it to entice a child to participate in illegal sexual activities.

Action Item #5: How should the Commission implement the

congressionaldirectives to provide anenhancement if,

with the intent to induce, entice, coerce, or facilitate

the transport of a child to engage in any prohibited

sexual activity, the defendant (1) used a computer, or

(2) knowingly misrepresented his/her actual identity?

1. Discussion

The legislative history indicates that one of the main purposes of the legislation was to

make clear the public's intolerance of child stalking on the Internet. The bill is a response to

the horrifying threat of sex crimes against children, particularly crimes against children

facilitated by the Internet.”61 According to Congressman McCollum, the "proliferation of home

computers and the virtually limitless access to children facilitated by such computers requires

a tough penalty."62 He also noted that “[t]he anonymous nature of the on-line relationship

allows users to misrepresent their age, gender, or interests. Perfect strangers can reach into

the home and befriend a child.”63 He expressed concern about the number of sexual predators

who go into chat rooms for periods of time often pretending to be other children. “What they

are doing is gaining the confidence of this child, without the child realizing that it is an adult on

the other end, let alone a pedophile."64

Again, the original bill included a provision that would have prohibited any contact via a

computer with a child, with the intent to engage in sexual activity. The directives regarding

sentencing enhancements for (1) misrepresentation of identity, and (2) use of a computer to
38

persuade, entice, coerce, or facilitate the transport of a child for prohibited sexual conduct

appear to be substitutes for the broader statutory prohibition. 

A review of the cases indicates that misidentification of the offender is often

accomplished via the computer. The anonymity of the computer allows offenders to manipulate

the child. Of the 259 cases analyzed, 23 (8.9 percent) involved an offender who used a

computer to persuade, induce, coerce, entice or facilitate a child into engaging in prohibited

sexual activity. In 18 of the 23 computer cases, law enforcement agents posed as minors as

part of unrelated sting operations. Law enforcement agents initiated three of these 18 “sting”

operations after the offender made an initial approach to a child victim. 

The use of a computer is already a specific offense characteristic under the

pornography guidelines providing for a two-level increase. (See §§2G2.1, 2G2.2, and 2G2.4.)

2. Options

The Commission can implement the directives in a number of ways. However,

regardless of the option chosen by the Commission, the amendment(s) would need to be

repeated ineach of the relevant sexual abuse guidelines, including §§2A3.1-2A3.3; and 2G1.1.

The Commission may also wish to consider an amendment to the abusive sexual contact

guideline (§2A3.4) in order to maintain consistency among the guidelines.

• The Commission can promulgate a specific offense characteristic for use of a

computer with the intent to persuade, induce, entice, coerce, or facilitate the

transport of a child to engage in any prohibited sexual activity;

• The Commission can promulgate a specific offense characteristic for

misidentification of the defendant’s identity with the intent to persuade, induce,

entice, coerce, or facilitate the transport of a child to engage in any prohibited

sexual activity;

• The Commission can promulgate an application note containing an encouraged

upward departure for either or both factors; and

• The Commission can promulgate one specific offense characteristic that

combines the computer enhancement with the enhancement for

"misrepresentation of defendant’s identity." (See Part IVC, infra). If the

Commission chooses to combine the specific offense characteristic for use of a

computer with the enhancement for misrepresentation of identity, an offender’s

sentence would be increased if either factor were present in the case.

V. Additional Action Items
 

65 Child Pornography on the Internet and the Sexual Exploitation of Children: Hearings before the

Senate Appropriations Subcommittee, Washington, D.C. March 10, 1998 (testimony of Louis J. Freeh,

Director, Federal Bureau of Investigation) (See Appendix N). 

39

This part of the report presents action items to address some of the fundamental issues

facing the Commission regarding the problem of sex crimes against children. The federal,

state, and local initiatives to battle child pornography on the Internet, and the increased

resources targeted to insure children’s safety from sexual predators using the Internet and

commercial on-line services, highlights the seriousness of this issue. 

In 1998 Congress appropriated $10.0 million to enhance the FBI’s ongoing “Innocent

Images” initiative. This nationwide investigation into child pornography is coordinated by the

Baltimore, Maryland, field office. The successful prosecution of these cases depend upon

identifying and analyzing evidence seized from computers and other media that is used to store

illegal images and pictures. The investigations target those who distribute and exchange child

pornography on-line and those who recruit children for illicit sexual activity. Investigators go

on-line posing as either young children or as sexual predators to identify people who are

victimizing children. This FBI initiative focuses on individuals who indicate a willingness to travel

for the purposes of having sex with a child. From 1995-1998, “Innocent Images” has resulted

in 328 search warrants, 62 consent searches, 162 indictments, and 184 convictions.65

The directive to ensure that the sentences for these transportation offenses under

Chapter 117 are “appropriately severe and reasonably consistent,” and the directive to

enhance sentences for a “pattern of activity of sexual abuse and sexual exploitation” provide

the Commission an opportunity to evaluate its approach to the sentencing of these types of

cases.
 

66 H.R. Rep. No. 105-557 at 22. As part of the Sexual Predators Act, Congress increased the statutory

maximum term of imprisonment under 18 U.S.C. § 2423(a) and (b) from “not more than ten years” to “not

more than 15 years.” 

 

67 18 U.S.C. § 2427. The guidelines already take into account cases where the offender travels to or

transports a minor for the purpose of producing child pornography. The guidelines use a cross reference

in the promoting prostitution guideline (§2G1.1) to the production of child pornography guideline (§2G2.1)

40

Action Item #6: How should the Commission respond to the directive to

promulgate amendments to provide a sentencing

enhancement for offenses under Chapter 117 of Title 18

(relating to the transportation of minors for illegal sexual

activity) while ensuring that the sentences, guidelines, and

policy statements for offenders convicted of such offenses

are appropriately severe and reasonably consistent with the

otherrelevant directives andthe relevant existingguidelines?

1. Discussion

The legislative debate surrounding the Sexual Predators Act highlighted public concern

about the low sentences received for convictions under 18 U.S.C. § 2423 (transportation of a

minor with intent to engage in illegal sexual activity and travel with intent to engage in sexual

act with a juvenile). During the hearings before the Subcommittee on Crime, the House heard

of numerous cases 

"in which pedophiles received only a two- to three-year sentence

for luring children over the Internet to engage in sexual acts. In

one particular case . . . the U.S. Attorney asked the judge to

depart from the guidelines because the penalties available to the

judge were too low. The Committee report indicates its concern

that such requests have been necessary and believes that the

Sentencing Commissionshould review the guidelines to make sure

penalties for these horrendous crimes are adequate, particularly

in light of the increased maximum sentences for these crimes

established in this Act."66

To address some of the concerns expressed during the legislative hearings, Congress

in the Sexual Predators Act expanded the scope of the transportation statute to cover cases

in which either the offender travels to, or transports the minor for the purpose of producing

child pornography.67 Currently, most of the statutes involving transportation for prohibited

sexual activity (i.e., those contained in Chapter 117 of Title 18 relating to transportation for

illegal Sexual Activity and related crimes and the one Title 8 offense of importation of an alien
 

68 As demonstrated by the letter of Scott Woodward, First Assistant United States Attorney for the

Northern District of Oklahoma, sentencing a defendant under §2A3.2 does not necessarily result in

sentences that address the actual conduct involved and the harm done to child victims. (See Appendix G.) 

This concern may need to be reviewed by the Commission now or at some point in the future.

 

69 In reviewing the cases, the Team noted several cases in which the sentencing court used §2A3.2,

even though it was not applicable.

 

70

 See Amendment 538.

41

for an immoral purpose) are referenced, for sentencing purposes, to §2G1.1 in Appendix A of

the United States Sentencing Commission Guidelines Manual. Section 2423(b) offenses

(travel with intent to engage in sexual act with a juvenile) are referenced to the sexual abuse

guidelines. Moreover, the review of the cases sentenced in 1998 also established that most

defendants convicted under the "travel" or "commerce" type of statutes are sentenced under

a guideline other than §2G1.1 because prostitution is rarely the purpose of the travel. 

As a result of the cross-reference requirements, many of the cases involving the

transportation of a minor for illegal sexual activity should ultimately be sentenced under the

sexual abuse guidelines (§§2A3.1-3.4).68 A significant concern of prosecutors and Congress

has been the sentencing of defendants convicted of the enticement and transportation of

minors for prohibited sexual conduct under §2A3.2, the guideline for statutory rape. Guideline

2A3.2 was intended to apply to defendants who engaged in consensual sex with an underage

partner. The statutory rape guideline was not intended to apply in cases with victims under the

age of 12 years, or if force, violent threats, or incapacitating intoxicants were used.69

Furthermore, §2A3.2 encourages an upward departure if the criminal sexual act is in

furtherance of a commercial scheme.

In an effort to simplify the guidelines, the Commission, in 1996, eliminated §2G1.2, the

guideline for the transportation of a minor for prohibited sexual conduct and combined it with

Guideline 2G1.1 (Promoting Prostitution or Prohibited Sexual Conduct).70 The former

Guideline 2G1.2 had a base offense level of 16, with enhancements for force or coercion, age

of the victim, and for the minor being in the care, custody, or control of the defendant.

Guideline 2G1.2 also contained cross-references to §2G2.1 if the offense involved the

production of child pornography, and to §2A3.1 if the offense involved criminal sexual abuse

or its attempt. Finally, if the offense did not involve a listed cross-reference or prostitution, the

courts were instructed to apply §2A3.2 or §2A3.4, as appropriate. Thus, it operated much the

same way as the current guideline for the Chapter 117 offenses by sorting the cases to the

guideline for the underlying sexual conduct. 
 

71 Congress has directed the Commission to amend the sexual abuse guidelines, 2A3.1-2A3.3, and

2G1.1 (promotion of prostitution). The Commission may also wish to consider amending the abusive sexual

contact guideline 2A3.4 to maintain consistency among the guidelines.

42

2. Options

The problem of inadequate punishment for Chapter 117 offenses highlighted by the

Congressional directive can be addressed in a number of ways, ranging from relatively minor

additions to existing guidelines71 to a more substantial restructuring of the way these

convictions are indexed inthe Statutory Index, cross-referenced, and sentenced. Because the

Guidelines Manual does not contain a guideline specific to Chapter 117 convictions, care must

be taken to consider the effects of any changes made on the range of cases sentenced under

the affected guidelines. The directive instructs the Commission to ensure both the appropriate

severity of punishment and the reasonable consistency of the guidelines. 

• The Commission may decide that the other enhancements directed by the Act,

such as the enhancements for use of a computer and misrepresentation of the

defendant’s identity, may result in the appropriate increase in punishment for

Chapter 117 offenses contemplated by this directive. Data show that most of

the offenses involving Chapter 117 offenses are sentenced under these sexual

abuse guidelines. 

• The Commission could amend the statutory rape guideline (§2A3.2) to add a

broader range of aggravating specific offense characteristics. The inadequacy

of punishment under the statutory rape guideline has been the focus of concern,

both of the Commission and of Congress. Some of the factors that might be

considered for specific offense characteristics include: 

< An adjustment for coercion or enticement by threats or drugs or in any

manner that negates the voluntariness of the victim’s behavior. This

adjustment is similar to one now found in guideline 2G1.1 (Promoting

Prostitution) and in former guideline 2G1.2.

< An adjustment if the defendant is more than 10 years older than the

victim. This adjustment would likely apply to the Internet cases of

greatest concern to Congress.

< An adjustment for incest. The adjustment would apply to some of the

aggravated cases discussed in the Commission’s 1996 Report to

Congress.
43

• The Commission might consider increasing the base offense level for guidelines

2G1.1 (Promoting Prostitution) and 2A3.2(Statutory Rape). This adjustment

would apply to many of Chapter 117 convictions, in particular those for which

punishment is not now severe due to application of legally and technically

inapplicable guidelines. 

• The Commission may also want to rethink the guidelines’ current treatment of

Chapter 117 offenses, particularly their indexing to guideline 2G1.1 and crossreferencing to the sexual abuse and exploitation guidelines. Experience may

prove that the types of offenses and offenders convicted under Chapter 117 are

largely of a different type than those offenders who have historically been

sentenced under the guidelines for sexual abuse and exploitation guidelines.

Designing guidelines to adequately punish a wide range of offenders convicted

under different statutes may prove difficult. If so, the Commission might want

to develop a guideline specific to Chapter 117 offenses, either by amending the

current promoting prostitution guideline (§2G1.1) or developing a new guideline.

Action Item #7 How should the Commission implement the directive to

promulgate amendmentstothe sexual abuseguidelinessoas

to increase penalties in any case in which the defendant

engaged in a pattern of activity involving the sexual abuse or

exploitation of a minor?

1. Discussion

In its 1996 Report to Congress, the Commission stated that it was considering adding

the pattern of activity enhancement contained in the child pornography trafficking guideline

(§2G2.2) to the other pornography guidelines (§§2G2.1, 2G2.3, 2G2.4). The Commission also

stated that it also had under consideration the addition of a pattern of activity adjustment to the

statutory rape abuse guideline (§2A3.2). The 1996 Report to Congress identified a number

of factors that a pattern of activity adjustment could address: (1) the inadequacy of

punishment, particularly under guideline 2A3.2, for offenses involving multiple acts of abuse or

other aggravating factors such as incest or abuse over a long period of time, and (2) the need

to identify for lengthy imprisonment those offenders who present a highrisk of future offending.

The text and legislative history of the Sexual Predators Act do not differentiate or

choose among these concerns, although Congress has been especially concerned with the

incapacitation of dangerous sexual predators. The legislative history for the Sexual Predators
 

72 Congressional Record, 105th Congress, 2d Session, H.4491.

 

73 Appendix C, Amendment 511.

44

Act indicates that Congress targeted "serial rapists"72 with changes to the authorized statutory

maximum for repeat sexual abuse offenders. 

Determining the purpose and scope of the “pattern of activity” enhancement is a key

policy decision for the Commission. Does the Commission want an incapacitation model for

serious sexual predators? Or, does the Commission want to provide for incremental

punishment for increased harm caused by multiple acts of sexual abuse or sexual exploitation?

Or, does the Commission want both? To provide some context for this decision, the staff

reviewed the guideline provisions inthe child pornography trafficking guideline that relate to this

issue. The child pornography trafficking guideline (§2G2.2) has: (1) a five-level adjustment,

and (2) an encouraged upward departure provision for a “pattern of activity of sexual abuse

or sexual exploitation of a minor.” Key questions that the Commission must consider in

determining the scope of a pattern of activity enhancement for child sex offenses are: (1)

should the multiple acts of sexual misconduct considered under the enhancement relate only

to the offense of convictionand relevant conduct, include only prior convictions, or include other

conduct not directly related to the offense of conviction that did not result in a conviction; (2)

what types of conduct (i.e., rape, production of pornography, enticing minors to engage in

prohibited sexual conduct) should be considered under the enhancement; and (3) what types

of offenders (i.e., only pedophiles?) should be subject to the enhancement? 

a. Scope of Conduct for Pattern of Activity of sexual abuse or

exploitation of a minor: Relevant Conduct, Prior Convictions,

or other unconvicted conduct? 

The various guidelines provisions take basically three different approaches to the issue

of the scope of conduct. The Commission must decide if any of these approaches is

appropriate for the sexual abuse crimes or if another approach is preferable. All three

approaches allow the court to increase the defendant’s sentence if the defendant has

committed more than one act of sexual abuse or sexual exploitation. All three approaches

allow the courts to increase the defendant’s sentence if the abusive or exploitative conduct

involved one or more victims.

The first approach, based solely on a prior conviction, is found in the sexual abuse

guidelines (§§2A3.1-2A3.4). Each guideline contains an application note encouraging an

upward departure "if the defendant's criminal history includes a prior sentence for conduct that

is similar to the instant offense.” This application note was added to the Guidelines Manual

effective November 1, 1995,73 to address a provision of the Violent Crime Control and Law

Enforcement Act of 1994, which doubled the authorized maximum term of imprisonment for
 

74 Appendix C, Amendment 537.

 

75

 See United States v. Surratt, 87 F.3d 814 (6th Cir. 1996); United States v. Chapman, 60 F.3d 894

(1st Cir. 1995). See also United States v. Nielssen, 136 F.3d 965 (4th Cir. 1998) (amendment 537 is

clarifying, and therefore, can be applied retroactively).

 

76 H.R. 105-394 at 4514.

45

repeat offenders of sexual abuse violations (18 U.S.C. § 2247). This departure provision only

permits consideration of multiple acts that were prior convictions similar to the instant offense.

The second approach found in Application Note 4 in the rape guideline (§2A3.1)

expressly provides that a departure may be warranted "if the defendant was convicted (A) of

more than one act of criminal sexual abuse and the counts are grouped under §3D1.2, or (B)

of only one such act but the court determines that the offense involved multiple acts of criminal

sexual abuse of the same or different victims." This provision permits consideration of multiple

acts of sexual abuse that are related to the offense of conviction. It is broader than relevant

conduct because under the sexual abuse guidelines the court cannot look to a common course

of conduct or a common scheme or plan in determining the appropriate sentence.

The third approach is the pattern of activity adjustment found in the child pornography

guideline (§2G2.2). This guideline provides for a five-level enhancement "if the defendant

engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.” “Pattern

of activity,” as defined in this guideline, applies to "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 or different

victims, or (C) resulted in a conviction for such conduct.” In 1996 the Commission expanded

the definition of the multiple acts of sexual abuse or sexual exploitation of the defendant to

include not only conduct related to the instant offense but prior conduct that may or may not

have resulted in a conviction. Prior to the clarification of this definition in 1996,74 two circuits

had held the application of the pattern of activity enhancement must relate to the offense of

conviction, not to prior conduct.75 This approach encompasses the broadest scope of conduct.

Increating a patternof activity adjustment for the sexual abuse guidelines and promotion

of prostitution guideline, the Commission may want the scope of conduct that triggers

application of a pattern of activity enhancement to include conduct that did not result in a

conviction. The current encouraged upward departure provisions in the sexual abuse guidelines

are inadequate to capture the scope of conduct envisioned by the directive and the statutory

change. A review of the legislative history shows that although Congress targeted "serial

rapists" with its repeat offender statutory increases, it was also concerned about illicit sexual

conduct that did not result in conviction. As one congressman noted during debate on the bill,

"We cannot pretend that a sexual offense against a child is an isolated act. Most of the time,

it is a pattern of behavior."76
 

77 §2G2.2, comment. (n.1).

 

78 A career offender is defined at Guideline 4B1.1.

46

b. Types of Conduct Considered under Pattern of Activity

enhancement: Sexual abuse, production of child

pornography, enticement of minors to engage in prohibited

sexual conduct?

The types of conduct that trigger the sentence increases varies from guideline to

guideline. The current encouraged upward departure provisions in the sexual abuse guidelines

(§§2A3.1-2A3.4) allow the court to increase sentences for prior convictions similar to the

offense of conviction, specifically, other criminal sexual abuse, statutory rape, criminal sexual

abuse of a ward, or abusive sexual conduct crimes. Excluded from this list are prior

convictions for transportation offenses, as defined under chapter 117 (unless the court finds

that the conduct is similar to the instant offense), and prior sentences for production,

trafficking, or possession of child pornography offenses. To conform to the new statutory

provisions regarding the types of offenses that trigger an increased statutory penalty, the

Commission would need to amend the application notes encouraging an upward departure.

The child pornography trafficking guideline (§2G2.2) allows courts to increase a

defendant’s sentence for multiple acts of rape, statutory rape, sexual exploitation of a minor

(pornography offenses), abusive sexual contact of a minor, any similaroffense under state law,

or an attempt or conspiracy to commit any of the above offenses. Specifically excluded from

this list of offenses is trafficking in child pornography.77

Increating a patternof activity adjustment for the sexual abuse guidelines and promotion

of prostitution guideline, the Commission may want the types of conduct or offenses that

trigger application of a pattern of activity enhancement to include (1) the Chapter 117 offenses,

such as enticement and transportation of minors to engage in prohibited sexual conduct, and

(2) the Chapter 110 offenses, such as production and trafficking in child pornography.

c. What types of offenders should the pattern of activity

enhancement target?

Unless a defendant is a career offender,78 convicted of one of the sexual abuse

offenses, or convicted of trafficking in child pornography, the guidelines do not provide for a

sentence increase for repeat sex offenders. The Commission may want to expand the

applicability of the patternof activity enhancement to include defendants sentenced under other

guidelines. One way to accomplish that goal is to establish a new guideline similar to the

criminal livelihood guideline in Chapter Four. (§4B1.3) (See Discussion of Options below.)

It is clear from increased statutory penalties and the enhancements and departure

provisions in the Guidelines Manual that Congress and the Commission have targeted repeat
 

79 Prior to the 1998 directive, Congress in The Violent Crime Control and Law Enforcement Act of 1994

doubled the maximum statutory penalties for a defendant convicted under 18 U.S.C. §§ 2241-2243 and who

has one or more prior federal or state convictions relating to aggravated sexual abuse, sexual abuse, or

abusive sexual contact. In response to the 1994 statutory penalty change and directive, the Commission

amended guidelines 2A3.1-3.4 to provide for an encouraged upward departure “if the defendant’s criminal

history includes a prior sentence for conduct that is similar to the instant offense.” The Commission

reasoned that although the sexual abuse guidelines did not have an enhancement for repeat offenders,

“Chapter Four (Criminal History and Criminal Livelihood) does include a determination of the seriousness

of the defendant’s record based upon prior convictions. §4A1.1. Section 4B1.1 ( Career Offender) also

provides substantially enhanced penalties for offenders who engage in a crime of violence (including

forcible sexual offenses) or controlled substance trafficking offenses, having been sentenced previously on

two or more occasions for offenses of either type.” The Commission also relied upon the encouraged

upward departure provisions in § 4A1.3 ( Adequacy of Criminal History category ) to support its actions of

“strengthening the sexual offense guidelines by expressly listing as a basis for upward departure the fact

47

offenders of sexual abuse and sexual exploitation crimes for higher punishment than a

defendant who has only committed one such act. However, research and experience show

that not all offenders who engage in multiple acts of sexual abuse or sexual exploitation are at

equal or high risk for recidivism. As reported in Appendix K, research indicates that offenders

with a sexual preference for children and other psychopathy, who have victimized multiple

victims (especially from outside the family) are at higher risk to commit similar acts in the

future. As reported in the literature review, experts claim that prediction of risk can be

performed with a reasonable degree of confidence at the time of sentencing using wellvalidated diagnostic tools. 

The Commission may also want to consider whether a pattern of activity adjustment

should apply to defendants who have a pattern of sexually abusing adults as well as children.

To do so may expand the definition of a sexual predator.

Resolutionof these three questions, i.e., scope of conduct, types of offenses, and types

of offenders, will allow the Commission to identify the specific factors for inclusion in an

enhancement for pattern of activity that will satisfy the congressional directive.

2. Options

The team has identified three types of responses to this directive: (1) encouraged

upward departure provision, (2) specific offense characteristics, and (3) criminal history

override. There are various ways to implement each of the options.

Option 1: Encouraged Upward Departure Provision

The Commission could implement the statutory directive regarding pattern of activity of

sexual abuse and exploitation of minors by amending the sexual abuse guidelines (§§2A3.1-

3.4) and the promotion of prostitution guideline (§2G1.1) by conforming the definition of a "prior

sex offense" that warrants an encouraged upward departure to the amended repeat offender

provision.79 The repeat offender provision subjects an individual to twice the otherwise
the defendant has a prior sentence for conduct similar to the instant sexual offense.”

 

80 1996 Report to Congress, pp. 38-39.

48

authorized statutory maximum for a prior sex offense conviction and gives the district court

more room to depart. The Commission's 1996 Report to Congress urged Congress to

increase the statutory penalties to allow for the guideline enhancements to work and to allow

room for departures in appropriate circumstances.80 

In addition to conforming the definition of a “prior sex offense” to that of the new repeat

offender provision, the Commissioncould expand the scope of the current encouraged upward

departure in the sexual abuse guidelines to include the defendant's past conduct that did not

result in a conviction. 

Although a revised departure provision is one way to address the directive, it arguably

does not seem to fully comply with the language in the directive to provide an “enhancement.”

An amended upward departure provision could be, however, one part of a multi-faceted

approach to address the pattern of activity directive.

Option 2: Specific Offense Characteristics

The Commissioncould implement the directive by amending the sexualabuse guidelines

(§§2A3.1-3.4) and the promotion of prostitution guideline (§2G1.1) by adding the pattern of

activity enhancement found in the child pornography trafficking guideline (§2G2.2). There are

several difficulties with that approach. First, placing the pattern of activity enhancement in the

sexual abuse guidelines may result in a different type of offender qualifying for the adjustment.

Second, the magnitude of the adjustment may not be appropriate for an offender who is

convicted of the more serious sexual assault offenses with their higher punishment levels. The

Commission, in making a five-level enhancement in the child pornography trafficking guideline,

sought to greatly increase the sentence of a defendant who was only convicted of trafficking

in child pornography, but evidence supported a finding that he had actually sexually assaulted

a child or taken pornographic pictures of a child.

 The current five-level enhancement in the child pornography trafficking guideline

(§2G2.2) applies to offenders who are convicted of trafficking in child pornography and who

also have engaged in a pattern of actual abuse or exploitation of a child. The interest in child

pornography indicates a sexual interest in children, and the actual sexual abuse shows that

this interest is not limited to fantasy. (A pattern of trafficking in child pornography alone does

not qualify an offender for the enhancement.) If the same definition were applied to the sexual

abuse guidelines, the actual abuse is clear, but the additional indication of a sexual interest in

children, while no doubt present in some cases, will not be as certain. Some cases sentenced

under the sexual abuse guidelines may not reflect a propensity for pedophilia, as the victim(s)

are chosen based on their availability.
 

81 In 1996, the Commission determined that repeated acts of trafficking, receipt, or possession of child

pornography should not be included in the definition of pattern of activity of sexual abuse or sexual

exploitation of a minor.

 

82 Under guideline 3D1.1, multiple counts of conviction sentenced under §§2G1.1 (promoting

prostitution), 2G2.1 (production of child pornography), and all the sexual abuse offenses are not grouped

together. The appellate courts have found that multiple counts of convictions sentenced under the child

pornography trafficking guideline also do not group. See United States v. Hibbler, 159 F.3d 233, 237 (6th

Cir. 1998), cert. denied, 119 S. Ct. 1278 (1999); United States v. Boos, 127 F.3d 1207, 1210 (9th Cir.),

cert. denied, 522 U.S. 1066 (1998); and United States v. Ketcham, 80 F.3d 789, 792 (3d Cir. 1996). 

Thus, multiple counts of convictions can add as much as five offense levels in determining the appropriate

sentence.

49

A review of the cases indicates that the majority of cases under the sexual abuse

guidelines would qualify for the pattern of activity adjustment if it were moved verbatim from

§2G2.2. For example, the typical or “heartland” case sentenced under the statutory rape

guideline (§2A3.2) involves multiple acts of sexual abuse. 

The Commission could also implement the directive by amending the sexual abuse

guidelines (§§2A3.1-3.4) and the promotion of prostitution guideline (§2G1.1) by redefining the

current pattern of activity enhancement found in the child pornography trafficking guideline

(§2G2.2). While the directive describes only a pattern of “sexual abuse or exploitation” there

may be reasons to include (1) Chapter 117 offenses, such as travel or coercion, and (2) the

Chapter 110 offenses, such as production and trafficking in child pornography, as evidence of

a dangerous propensity.81

The team also reviewed the pattern of activity enhancement inGuideline 2A6.2 (Stalking

or Domestic Violence). In the stalking or domestic violence guideline, a two-level

enhancement is warranted for “a pattern of activity involving stalking, threatening, harassing

or assaulting the same victim.” Application Note 1 states that this definition means any

combination of two or more events, whether the conduct resulted in a conviction or not. The

Commission may choose to provide a similar enhancement to the relevant guidelines,

substituting the applicable sexual abuse and sexual exploitation offenses for the “stalking,

threatening or harassing” language.

Any specific offense characteristic added to the sexual abuse guidelines or the

promotion of prostitution guideline would need to be carefully crafted to target the appropriate

type of conduct and type of offender. It would also be necessary to ensure that doublecounting for the same conduct does not occur when there are multiple counts of conviction.82

Option 3: Criminal History “Override”

Previous Commission research has established that the offenders who appear to be

high-risk repeat offenders are prosecuted under a range of statutes and sentenced under a

wide variety of guidelines. The growth of Internet-based investigation is likely to accelerate
 

83 Guideline 4B1.3 calls for an offense level of 13 (before application of acceptance of responsibility)

for a defendant who “commits an offense as part of pattern of criminal conduct engaged in as a livelihood”.

50

this trend. It may be beneficial to place the enhancement for pattern of activity in Chapter Four

instead of Chapter Two, so that it is located with the other guidelines that attempt to identify

high-risk recidivists. 

A stand-alone guideline has the advantage of making it easier to clarify the purpose of

the guideline, and to carve out a “heartland” of cases that the guideline is intended to cover.

The specific types of conduct to which this enhancement would apply must be determined by

the Commission. This option can be implemented in a variety of ways.

For example, the Commissionmay wish to promulgate a new guideline inChapter Four,

analogous to §4B1.3 (Criminal Livelihood) to punish sexual predators. If this adjustment is

located in Chapter Four, the courts would be able to apply this criminal history “override” to a

wide variety of defendants (not just those convicted of sexual abuse or trafficking in child

pornography), but to all defendants sentenced under the guidelines. The Commission could

make the new provision similar to the criminal livelihood provision by allowing the court to

consider all prior criminal conduct, not just prior convictions.83 The Commission could,

however, limit the application of this criminal history “override” to defendants who have prior

convictions for certain types of sexual abuse crimes.