26880 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Notices

UNITED STATES SENTENCING

COMMISSION

Sentencing Guidelines for United

States Courts

AGENCY: United States Sentencing

Commission.

ACTION: Notice of: (1) Promulgation of

temporary, emergency amendment to

the sentencing guidelines for copyright

and trademark infringement, effective

May 1, 2000; (2) submission to Congress

of amendments to the sentencing

guidelines; and (3) request for comment.

SUMMARY: The United States Sentencing

Commission hereby gives notice of the

following actions: (1) Pursuant to the No

Electronic Theft (NET) Act, Pub. L. 105–

147, the Commission has promulgated a

temporary, emergency amendment to

§ 2B5.3 (Criminal Infringement of

Copyright or Trademark) and

accompanying commentary; (2)

pursuant to its authority under 28

U.S.C. 994(a) and (p) and several

congressional directives, the

Commission has promulgated

additional, non-emergency amendments

to the sentencing guidelines, policy

statements, commentary, and statutory

index; and (3) the Commission requests

public comment regarding whether the

Commission should specify any of the

non-emergency amendments for

retroactive application to previously

sentenced defendants.

DATES: The Commission has specified

an effective date of May 1, 2000, for the

emergency NET Act amendment and an

effective date of November 1, 2000, for

all non-emergency amendments to the

sentencing guidelines, policy

statements, commentary, and statutory

index. Comments regarding whether the

Commission should specify any of the

non-emergency amendments for

retroactive application to previously

sentenced defendants should be

received by the Commission not later

than July 7, 2000.

ADDRESSES: Comments should be sent

to: United States Sentencing

Commission, One Columbus Circle, NE.,

Suite 2–500, South Lobby, Washington,

DC, 20002–8002, Attn: Public Affairs.

FOR FURTHER INFORMATION CONTACT:

Michael Courlander, Public Affairs

Officer, 202–502–4590.

SUPPLEMENTARY INFORMATION:

(1) Emergency NET Act Amendment

The NET Act directed the

Commission to: (A) Ensure that the

applicable guideline range for a crime

committed against intellectual property

(including offenses set forth at section

506(a) of title 17, United States Code,

and sections 2319, 2319A, and 2320 of

title 18, United States Code) is

sufficiently stringent to deter such a

crime; and (B) ensure that the guidelines

provide for consideration of the retail

value and quantity of the items with

respect to which the intellectual

property offense was committed. The

NET Act, as clarified by the Digital

Theft Deterrence and Copyright

Damages Improvement Act of 1998, Pub.

L. 106–160, required the Commission to

promulgate a temporary, emergency

guideline amendment not later than

April 6, 2000. In December 1999, the

Commission published three options for

promulgating an emergency amendment

to § 2B5.3 (Criminal Infringement of

Copyright or Trademark) and

accompanying commentary to

implement the NET Act directive. See

64 FR 72129, Dec. 23, 1999. After a

public hearing (which, in part, focused

on proposed options to implement the

NET Act) and a review of additional

public comment, the Commission

passed an amendment on April 3, 2000,

that responds to the directive. The

amendment makes a number of

modifications to the guideline,

including changes to the monetary

calculation found in § 2B5.3 and the

addition of several mitigating and

aggravating factors as a means of

providing just and proportionate

punishment while also seeking to

achieve sufficient deterrence. The

Commission specified an effective date

of May 1, 2000, for this amendment.

(2) Non-Emergency Amendments

Section 994 of title 28, United States

Code, empowers the Commission to

promulgate sentencing guidelines and

policy statements for federal courts. See

28 U.S.C. 994(a). Additionally, 28 U.S.C.

994 directs the Commission periodically

to review and revise guidelines

previously promulgated (see 28 U.S.C.

994(o)) and authorizes it to submit

guideline amendments to the Congress

at or after the beginning of a regular

session of Congress but not later than

May 1 (see 18 U.S.C. 994(p)). Absent

action of Congress to the contrary,

submitted amendments become

effective by operation of law on the date

specified by the Commission (generally

November 1 of the year in which the

amendments are submitted to Congress).

Notice of proposed amendments was

published in the Federal Register on

December 23, 1999 (see 64 FR 72129),

January 18, 2000 (see 65 FR 2663), and

February 11, 2000 (see 65 FR 7080). The

Commission held a public hearing on

the proposed amendments in

Washington, D.C., on March 23, 2000.

After a review of hearing testimony and

additional public comment, the

Commission promulgated the

amendments set forth below (including

an amendment to make permanent the

temporary, emergency NET Act

amendment discussed in section (1)).

On May 1, 2000, the Commission

submitted these amendments to

Congress with an effective date of

November 1, 2000.

(3) Retroactive Application

The Commission requests comment

regarding which, if any, of the nonemergency amendments submitted to

Congress that may result in a lower

guideline range should be made

retroactive to previously sentenced

defendants pursuant to § 1B1.10

(Reduction in Term of Imprisonment as

a Result of Amended Guideline Range).

For example, should the Commission

make retroactive Amendments 8, 9, or

10, as set forth below, each of which

may lower the guideline range for

firearm offenders in certain situations?

Authority: 28 U.S.C. 994(a), (o), and (p);

USSC Rule of Practice and Procedure 4.1.

Diana E. Murphy,

Chair.

Amendments to the Sentencing

Guidelines

Pursuant to section 994(p) of title 28,

United States Code, the United States

Sentencing Commission hereby submits

to the Congress the following

amendments to the sentencing

guidelines and the reasons therefor. As

authorized by such section, the

Commission specifies an effective date

of November 1, 2000, for these

amendments.

Amendments to the Sentencing

Guidelines, Policy Statements, and

Official Commentary

1. Amendment: Section 1B1.1 is

amended by striking subsection (a) in its

entirety and inserting:

‘‘(a) Determine, pursuant to § 1B1.2

(Applicable Guidelines), the offense

guideline section from Chapter Two

(Offense Conduct) applicable to the

offense of conviction. See § 1B1.2.’’.

Section 1B1.2(a) is amended by

striking ‘‘most’’ each place it appears; by

striking ‘‘Provided, however’’ and

inserting ‘‘However’’; and by adding at

the end the following:

‘‘Refer to the Statutory Index

(Appendix A) to determine the Chapter

Two offense guideline, referenced in the

Statutory Index for the offense of

conviction. If the offense involved a

conspiracy, attempt, or solicitation, refer

to § 2X1.1 (Attempt, Solicitation, or

Conspiracy) as well as the guideline

Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Notices 26881

referenced in the Statutory Index for the

substantive offense. For statutory

provisions not listed in the Statutory

Index, use the most analogous

guideline. See § 2X5.1 (Other Offenses).

The guidelines do not apply to any

count of conviction that is a Class B or

C misdemeanor or an infraction. See

§ 1B1.9 (Class B or C Misdemeanors and

Infractions).’’.

The Commentary to § 1B1.2 captioned

‘‘Application Notes’’ is amended by

striking the first paragraph of Note 1 and

inserting the following:

‘‘This section provides the basic rules

for determining the guidelines

applicable to the offense conduct under

Chapter Two (Offense Conduct). The

court is to use the Chapter Two

guideline section referenced in the

Statutory Index (Appendix A) for the

offense of conviction. However, (A) in

the case of a plea agreement containing

a stipulation that specifically establishes

a more serious offense than the offense

of conviction, the Chapter Two offense

guideline section applicable to the

stipulated offense is to be used; and (B)

for statutory provisions not listed in the

Statutory Index, the most analogous

guideline, determined pursuant to

§ 2X5.1 (Other Offenses), is to be used.

In the case of a particular statute that

proscribes only a single type of criminal

conduct, the offense of conviction and

the conduct proscribed by the statute

will coincide, and the Statutory Index

will specify only one offense guideline

for that offense of conviction. In the case

of a particular statute that proscribes a

variety of conduct that might constitute

the subject of different offense

guidelines, the Statutory Index may

specify more than one offense guideline

for that particular statute, and the court

will determine which of the referenced

guideline sections is most appropriate

for the offense conduct charged in the

count of which the defendant was

convicted. If the offense involved a

conspiracy, attempt, or solicitation, refer

to § 2X1.1 (Attempt, Solicitation, or

Conspiracy) as well as the guideline

referenced in the Statutory Index for the

substantive offense. For statutory

provisions not listed in the Statutory

Index, the most analogous guideline is

to be used. See § 2X5.1 (Other

Offenses).’’.

The Commentary to § 1B1.2 captioned

‘‘Application Notes’’ is amended by

striking Note 3 in its entirety; and by

redesignating Notes 4 and 5 as Notes 3

and 4, respectively.

The Commentary to § 2D1.2 captioned

‘‘Application Note’’ is amended in Note

1 by striking ‘‘Where’’ and inserting the

following:

‘‘This guideline applies only in a case

in which the defendant is convicted of

a statutory violation of drug trafficking

in a protected location or involving an

underage or pregnant individual

(including an attempt or conspiracy to

commit such a violation) or in a case in

which the defendant stipulated to such

a statutory violation. See § 1B1.2(a). In

a case involving such a conviction but

in which’’.

Appendix A (Statutory Index) is

amended by striking the entire text of

the ‘‘Introduction’’ and inserting the

following:

‘‘This index specifies the offense

guideline section(s) in Chapter Two

(Offense Conduct) applicable to the

statute of conviction. If more than one

guideline section is referenced for the

particular statute, use the guideline

most appropriate for the offense conduct

charged in the count of which the

defendant was convicted. For the rules

governing the determination of the

offense guideline section(s) from

Chapter Two, and for any exceptions to

those rules, see § 1B1.2 (Applicable

Guidelines).’’.

The Commentary to § 2H1.1 captioned

‘‘Application Notes’’ is amended in

Note 1 in the second paragraph by

striking ‘‘Application Note 5’’ and

inserting ‘‘Application Note 4’’.

Reason for Amendment: This

amendment addresses a circuit conflict

regarding whether the enhanced

penalties in § 2D1.2 (Drug Offenses

Occurring Near Protected Locations or

Involving Underage or Pregnant

Individuals) apply only in a case in

which the defendant was convicted of

an offense referenced to that guideline

or, alternatively, in any case in which

the defendant’s relevant conduct

included drug sales in a protected

location or involving a protected

individual. Compare United States v.

Chandler, 125 F.3d 892, 897–98 (5th

Cir. 1997) (‘‘First, utilizing the Statutory

Index located in Appendix A, the court

determines the offense guideline section

‘most applicable to the offense of

conviction.’ ’’ Once the appropriate

guideline is identified, a court can take

relevant conduct into account only as it

relates to factors set forth in that

guideline); United States v. Locklear, 24

F.3d 641 (4th Cir. 1994) (finding that

§ 2D1.2 does not apply to convictions

under 21 U.S.C. 841 based on the fact

that the commentary to § 2D1.2 lists as

the ‘‘Statutory Provisions’’ to which it is

applicable 21 U.S.C. 859, 860, and 861,

but not § 841. ‘‘[S]ection 2D1.2 is

intended not to identify a specific

offense characteristic which would,

where applicable, increase the offense

level over the base level assigned by

§ 2D1.1, but rather to define the base

offense level for violations of 21 U.S.C.

859, 860 and 861.’’); United States v.

Saavedra, 148 F.3d 1311 (11th Cir.

1998) (defendant’s uncharged but

relevant conduct is actually irrelevant to

determining the sentencing guideline

applicable to the defendant’s offense;

such conduct is properly considered

only after the applicable guideline has

been selected when the court is

analyzing the various sentencing

considerations within the guideline

chosen, such as the base offense level,

specific offense characteristics, and any

cross references), with United States v.

Clay, 117 F.3d 317 (6th Cir.), cert.

denied, 118 S. Ct. 395 (1997) (applying

§ 2D1.2 to defendant convicted only of

possession with intent to distribute

under 21 U.S.C. 841 but not convicted

of any statute referenced to § 2D1.2

based on underlying facts indicating

defendant involved a juvenile in drug

sales); United States v. Oppedahl, 998

F.2d 584 (8th Cir. 1993) (applying

§ 2D1.2 to defendant convicted of

conspiracy to distribute and possess

with intent to distribute based on fact

that defendant’s relevant conduct

involved distribution within 1,000 feet

of a school); United States v. Robles, 814

F. Supp. 1249 (E.D. Pa), aff’d (unpub.),

8 F.3d 814 (3d Cir. 1993) (looking to

relevant conduct to determine

appropriate guideline).

In promulgating this amendment, the

Commission also was aware of case law

that raises a similar issue regarding

selection of a Chapter Two (Offense

Conduct) guideline, different from that

referenced in the Statutory Index

(Appendix A), based on factors other

than the conduct charged in the offense

of conviction. See United States v.

Smith, 186 F.3d 290 (3d Cir. 1999)

(determining that § 2F1.1 (Fraud and

Deceit) was most appropriate guideline

rather than the listed guideline of

§ 2S1.1 (Laundering of Monetary

Instruments)); United States v. Brunson,

882 F. 2d 151, 157 (5th Cir. 1989) (‘‘It

is not completely clear to us under what

circumstances the Commission

contemplated deviation from the

suggested guidelines for an ‘atypical’

case.’’).

The amendment modifies §§ 1B1.1(a),

1B1.2(a), and the Statutory Index’s

introductory commentary to clarify the

inter-relationship among these

provisions. The clarification is intended

to emphasize that the sentencing court

must apply the offense guideline

referenced in the Statutory Index for the

statute of conviction unless the case

falls within the limited ‘‘stipulation’’

exception set forth in § 1B1.2(a).

Therefore, in order for the enhanced

26882 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Notices

penalties in § 2D1.2 to apply, the

defendant must be convicted of an

offense referenced to § 2D1.2, rather

than simply have engaged in conduct

described by that guideline.

Furthermore, the amendment deletes

Application Note 3 of § 1B1.2

(Applicable Guidelines), which

provided that in many instances it

would be appropriate for the court to

consider the actual conduct of the

offender, even if such conduct did not

constitute an element of the offense.

This application note describes a

consideration that is more appropriate

when applying § 1B1.3 (Relevant

Conduct), and its current placement in

§ 1B1.2 apparently has caused confusion

in applying that guideline’s principles

to determine the offense conduct

guideline in Chapter Two most

appropriate for the offense of

conviction. In particular, the note has

been used by some courts to permit a

court to decline to use the offense

guideline referenced in the Statutory

Index in cases that were allegedly

‘‘atypical’’ or ‘‘outside the heartland.’’

See United States v. Smith, supra.

Due to the absence of sufficient data,

the Commission decided to defer to

another amendment cycle the question

of whether to delete § 2D1.2 and add an

enhancement to § 2D1.1 (Unlawful

Manufacturing, Importing, Exporting, or

Trafficking) for either (1) the real offense

conduct of selling drugs in protected

locations or involving protected

individuals; or (2) a conviction for such

conduct.

2. Amendment: Section 2A3.1(b) is

amended by adding at the end the

following:

‘‘(6) If, to persuade, induce, entice, or

coerce a minor to engage in prohibited

sexual conduct, or if, to facilitate

transportation or travel, by a minor or a

participant, to engage in prohibited

sexual conduct, the offense involved (A)

the knowing misrepresentation of a

participant’s identity; or (B) the use of

a computer or an Internet-access device,

increase by 2 levels.’’.

The Commentary to § 2A3.1 captioned

‘‘Application Notes’’ is amended in

Note 1 by inserting after ‘‘For purposes

of this guideline—’’ the following:

‘Minor’ means an individual who had

not attained the age of 18 years.

‘Participant’ has the meaning given

that term in Application Note 1 of the

Commentary to § 3B1.1 (Aggravating

Role).’’.

The Commentary to § 2A3.1 captioned

‘‘Application Notes’’ is amended in

Note 1 by inserting after ‘‘the base

offense level under subsection (a).’’ the

following paragraph:

‘‘Prohibited sexual conduct’’ (A)

means any sexual activity for which a

person can be charged with a criminal

offense; (B) includes the production of

child pornography; and (C) does not

include trafficking in, or possession of,

child pornography. ‘Child pornography’

has the meaning given that term in 18

U.S.C. 2256(8).’’.

The Commentary to § 2A3.1 captioned

‘‘Application Notes’’ is amended by

redesignating Notes 4 through 6 as

Notes 5 through 7, respectively; and by

inserting after Note 3 the following:

‘‘4. The enhancement in subsection

(b)(6)(A) applies in cases involving the

misrepresentation of a participant’s

identity to (A) persuade, induce, entice,

or coerce a minor to engage in

prohibited sexual conduct; or (B)

facilitate transportation or travel, by a

minor or a participant, to engage in

prohibited sexual conduct. Subsection

(b)(6)(A) is intended to apply only to

misrepresentations made directly to a

minor or to a person who exercises

custody, care, or supervisory control of

the minor. Accordingly, the

enhancement in subsection (b)(6)(A)

would not apply to a misrepresentation

made by a participant to an airline

representative in the course of making

travel arrangements for the minor.

The misrepresentation to which the

enhancement in subsection (b)(6)(A)

may apply includes misrepresentation

of a participant’s name, age, occupation,

gender, or status, as long as the

misrepresentation was made with the

intent to (A) persuade, induce, entice, or

coerce a minor to engage in prohibited

sexual conduct; or (B) facilitate

transportation or travel, by a minor or a

participant, to engage in prohibited

sexual conduct. Accordingly, use of a

computer screen name, without such

intent, would not be a sufficient basis

for application of the enhancement.

Subsection (b)(6)(B) provides an

enhancement if a computer or an

Internet-access device was used to (A)

persuade, induce, entice, or coerce a

minor to engage in prohibited sexual

conduct; or (B) facilitate transportation

or travel, by a minor or a participant, to

engage in prohibited sexual conduct.

Subsection (b)(6)(B) is intended to apply

only to the use of a computer or an

Internet-access device to communicate

directly with a minor or with a person

who exercises custody, care, or

supervisory control of the minor.

Accordingly, the enhancement would

not apply to the use of a computer or an

Internet-access device to obtain airline

tickets for the minor from an airline’s

Internet site.’’.

Chapter Two, Part A, Subpart 3 is

amended by striking § 2A3.2 in its

entirety and inserting the following:

‘‘§ 2A3.2. Criminal Sexual Abuse of a

Minor Under the Age of Sixteen Years

(Statutory Rape) or Attempt to Commit

Such Acts

(a) Base Offense Level:

(1) 18, if the offense involved a

violation of chapter 117 of title 18,

United States Code; or

(2) 15, otherwise.

(b) Specific Offense Characteristics:

(1) If the victim was in the custody,

care, or supervisory control of the

defendant, increase by 2 levels.

(2) If subsection (b)(1) does not apply;

and—

(A) the offense involved the knowing

misrepresentation of a participant’s

identity to (i) persuade, induce, entice,

or coerce the victim to engage in

prohibited sexual conduct; or (ii)

facilitate transportation or travel, by the

victim or a participant, to engage in

prohibited sexual conduct; or

(B) a participant otherwise unduly

influenced the victim to engage in

prohibited sexual conduct,

increase by 2 levels.

(3) If a computer or an Internet-access

device was used to (A) persuade,

induce, entice, or coerce the victim to

engage in prohibited sexual conduct; or

(B) facilitate transportation or travel, by

the victim or a participant, to engage in

prohibited sexual conduct, increase by 2

levels.

(4) If (A) subsection (a)(1) applies; and

(B) none of subsections (b)(1) through

(b)(3) applies, decrease by 3 levels.

(c) Cross Reference:

(1) If the offense involved criminal

sexual abuse or attempt to commit

criminal sexual abuse (as defined in 18

U.S.C. 2241 or 2242), apply § 2A3.1

(Criminal Sexual Abuse; Attempt to

Commit Criminal Sexual Abuse). If the

victim had not attained the age of 12

years, § 2A3.1 shall apply, regardless of

the ‘‘consent’’ of the victim.

Commentary

Statutory Provision: 18 U.S.C. 2243(a).

For additional statutory provision(s), see

Appendix A (Statutory Index).

Application Notes:

1. For purposes of this guideline—

‘Participant’ has the meaning given

that term in Application Note 1 of

§ 3B1.1 (Aggravating Role).

‘Prohibited sexual conduct’ has the

meaning given that term in Application

Note 1 of § 2A3.1 (Criminal Sexual

Abuse; Attempt to Commit Criminal

Sexual Abuse).

‘Victim’ means (A) an individual who,

except as provided in subdivision (B),

Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Notices 26883

had not attained the age of 16 years; or

(B) an undercover law enforcement

officer who represented to a participant

that the officer had not attained the age

of 16 years.

2. If the defendant committed the

criminal sexual act in furtherance of a

commercial scheme such as pandering,

transporting persons for the purpose of

prostitution, or the production of

pornography, an upward departure may

be warranted. See Chapter Five, Part K

(Departures).

3. Subsection (b)(1) is intended to

have broad application and is to be

applied whenever the victim is

entrusted to the defendant, whether

temporarily or permanently. For

example, teachers, day care providers,

baby-sitters, or other temporary

caretakers are among those who would

be subject to this enhancement. In

determining whether to apply this

enhancement, the court should look to

the actual relationship that existed

between the defendant and the victim

and not simply to the legal status of the

defendant-victim relationship.

4. If the enhancement in subsection

(b)(1) applies, do not apply subsection

(b)(2) or § 3B1.3 (Abuse of Position of

Trust or Use of Special Skill).

5. The enhancement in subsection

(b)(2)(A) applies in cases involving the

misrepresentation of a participant’s

identity to (A) persuade, induce, entice,

or coerce the victim to engage in

prohibited sexual conduct; or (B)

facilitate transportation or travel, by the

victim or a participant, to engage in

prohibited sexual conduct. Subsection

(b)(2)(A) is intended to apply only to

misrepresentations made directly to the

victim or to a person who exercises

custody, care, or supervisory control of

the victim. Accordingly, the

enhancement in subsection (b)(2)(A)

would not apply to a misrepresentation

made by a participant to an airline

representative in the course of making

travel arrangements for the victim.

The misrepresentation to which the

enhancement in subsection (b)(2)(A)

may apply includes misrepresentation

of a participant’s name, age, occupation,

gender, or status, as long as the

misrepresentation was made with the

intent to (A) persuade, induce, entice, or

coerce the victim to engage in

prohibited sexual conduct; or (B)

facilitate transportation or travel, by the

victim or a participant, to engage in

prohibited sexual conduct. Accordingly,

use of a computer screen name, without

such intent, would not be a sufficient

basis for application of the

enhancement.

In determining whether subsection

(b)(2)(B) applies, the court should

closely consider the facts of the case to

determine whether a participant’s

influence over the victim compromised

the voluntariness of the victim’s

behavior.

In a case in which a participant is at

least 10 years older than the victim,

there shall be a rebuttable presumption,

for purposes of subsection (b)(2)(B), that

such participant unduly influenced the

victim to engage in prohibited sexual

conduct. In such a case, some degree of

undue influence can be presumed

because of the substantial difference in

age between the participant and the

victim.

If the victim was threatened or placed

in fear, the cross reference in subsection

(c)(1) will apply.

6. Subsection (b)(3) provides an

enhancement if a computer or an

Internet-access device was used to (A)

persuade, induce, entice, coerce the

victim to engage in prohibited sexual

conduct; or (B) facilitate transportation

or travel, by the victim or a participant,

to engage in prohibited sexual conduct.

Subsection (b)(3) is intended to apply

only to the use of a computer or an

Internet-access device to communicate

directly with the victim or with a person

who exercises custody, care, or

supervisory control of the victim.

Accordingly, the enhancement would

not apply to the use of a computer or an

Internet-access device to obtain airline

tickets for the victim from an airline’s

Internet site.

7. Subsection (c)(1) provides a cross

reference to § 2A3.1 (Criminal Sexual

Abuse; Attempt to Commit Criminal

Sexual Abuse) if the offense involved

criminal sexual abuse or attempt to

commit criminal sexual abuse, as

defined in 18 U.S.C. 2241 or 2242. For

example, the cross reference to 2A3.1

shall apply if (A) the victim had not

attained the age of 12 years (see 18

U.S.C. 2241(c)); (B) the victim had

attained the age of 12 years but not

attained the age of 16 years, and was

placed in fear of death, serious bodily

injury, or kidnaping (see 18 U.S.C.

2241(a),(c)); or (C) the victim was

threatened or placed in fear other than

fear of death, serious bodily injury, or

kidnaping (see 18 U.S.C. 2242(1)).

8. If the defendant’s criminal history

includes a prior sentence for conduct

that is similar to the instant offense, an

upward departure may be warranted.

Background: This section applies to

offenses involving the criminal sexual

abuse of an individual who had not

attained the age of 16 years. While this

section applies to consensual sexual

acts prosecuted under 18 U.S.C. 2243(a)

that would be lawful but for the age of

the victim, it also applies to cases,

prosecuted under 18 U.S.C. 2243(a) or

chapter 117 of title 18, United States

Code, in which a participant took active

measure(s) to unduly influence the

victim to engage in prohibited sexual

conduct and, thus, the voluntariness of

the victim’s behavior was compromised.

A two-level enhancement is provided in

subsection (b)(2) for such cases. It is

assumed that at least a four-year age

difference exists between the victim and

the defendant, as specified in 18 U.S.C.

2243(a). A two-level enhancement is

provided in subsection (b)(1) for a

defendant who victimizes a minor

under his supervision or care. However,

if the victim had not attained the age of

12 years, § 2A3.1 (Criminal Sexual

Abuse; Attempt to Commit Criminal

Sexual Abuse) will apply, regardless of

the ‘‘consent’’ of the victim.’’.

Section 2A3.3 is amended by

inserting after subsection (a) the

following:

‘‘(b) Specific Offense Characteristics

(1) If the offense involved the

knowing misrepresentation of a

participant’s identity to (A) persuade,

induce, entice, or coerce a minor to

engage in prohibited sexual conduct; or

(B) facilitate transportation or travel, by

a minor or a participant, to engage in

prohibited sexual conduct, increase by 2

levels.

(2) If a computer or an Internet-access

device was used to (A) persuade,

induce, entice, or coerce a minor to

engage in prohibited sexual conduct; or

(B) facilitate transportation or travel, by

a minor or a participant, to engage in

prohibited sexual conduct, increase by 2

levels.’’.

The Commentary to § 2A3.3 captioned

‘‘Application Notes’’ is amended by

striking Note 1 in its entirety and

inserting the following:

‘‘1. For purposes of this guideline—

‘Minor’ means an individual who had

not attained the age of 18 years.

‘Participant’ has the meaning given

that term in Application Note 1 of the

Commentary to § 3B1.1 (Aggravating

Role).

‘Prohibited sexual conduct’ has the

meaning given that term in Application

Note 1 of the Commentary to § 2A3.1

(Criminal Sexual Abuse; Attempt to

Commit Criminal Sexual Abuse).

‘Ward’ means a person in official

detention under the custodial,

supervisory, or disciplinary authority of

the defendant.’’;

by redesignating Note 2 as Note 4; and

by inserting after Note 1 the following:

‘‘2. The enhancement in subsection

(b)(1) applies in cases involving the

misrepresentation of a participant’s

identity to (A) persuade, induce, entice,

26884 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Notices

or coerce a minor to engage in

prohibited sexual conduct; or (B)

facilitate transportation or travel, by a

minor or a participant, to engage in

prohibited sexual conduct. Subsection

(b)(1) is intended to apply only to

misrepresentations made directly to a

minor or to a person who exercises

custody, care, or supervisory control of

the minor. Accordingly, the

enhancement in subsection (b)(1) would

not apply to a misrepresentation made

by a participant to an airline

representative in the course of making

travel arrangements for the minor.

The misrepresentation to which the

enhancement in subsection (b)(1) may

apply includes misrepresentation of a

participant’s name, age, occupation,

gender, or status, as long as the

misrepresentation was made with the

intent to (A) persuade, induce, entice, or

coerce a minor to engage in prohibited

sexual conduct; or (B) facilitate

transportation or travel, by a minor or a

participant, to engage in prohibited

sexual conduct. Accordingly, use of a

computer screen name, without such

intent, would not be a sufficient basis

for application of the enhancement.

3. Subsection (b)(2) provides an

enhancement if a computer or an

Internet-access device was used to (A)

persuade, induce, entice, or coerce a

minor to engage in prohibited sexual

conduct; or (B) facilitate transportation

or travel, by a minor or a participant, to

engage in prohibited sexual conduct.

Subsection (b)(2) is intended to apply

only to the use of a computer or an

Internet-access device to communicate

directly with a minor or with a person

who exercises custody, care, or

supervisory control of the minor.

Accordingly, the enhancement would

not apply to the use of a computer or an

Internet-access device to obtain airline

tickets for the minor from an airline’s

Internet site.’’.

Section 2A3.4(b) is amended by

adding at the end the following:

‘‘(4) If the offense involved the

knowing misrepresentation of a

participant’s identity to (A) persuade,

induce, entice, or coerce a minor to

engage in prohibited sexual conduct; or

(B) facilitate transportation or travel, by

a minor or a participant, to engage in

prohibited sexual conduct, increase by 2

levels.

(5) If a computer or an Internet-access

device was used to (A) persuade,

induce, entice, or coerce a minor to

engage in prohibited sexual conduct; or

(B) facilitate transportation or travel, by

a minor or a participant, to engage in

prohibited sexual conduct, increase by 2

levels.’’.

Section 2A3.4(c)(2) is amended by

inserting ‘‘Under the Age of Sixteen

Years’’ before ‘‘(Statutory Rape)’’.

The Commentary to § 2A3.4 captioned

‘‘Application Notes’’ is amended by

redesignating Note 5 as Note 8; by

redesignating Notes 1 through 4 as

Notes 2 through 5, respectively; by

inserting before redesignated Note 2

(formerly Note 1) the following:

‘‘1. For purposes of this guideline—

‘Minor’ means an individual who had

not attained the age of 18 years.

‘Participant’ has the meaning given

that term in Application Note 1 of the

Commentary to § 3B1.1 (Aggravating

Role).

‘Prohibited sexual conduct’ has the

meaning given that term in Application

Note 1 of the Commentary to § 2A3.1

(Criminal Sexual Abuse; Attempt to

Commit Criminal Sexual Abuse).’’;

and by adding after redesignated Note 5

(formerly Note 4), the following:

‘‘6. The enhancement in subsection

(b)(4) applies in cases involving the

misrepresentation of a participant’s

identity to (A) persuade, induce, entice,

or coerce a minor to engage in

prohibited sexual conduct; or (B)

facilitate transportation or travel, by a

minor or a participant, to engage in

prohibited sexual conduct. Subsection

(b)(4) is intended to apply only to

misrepresentations made directly to a

minor or to a person who exercises

custody, care, or supervisory control of

the minor. Accordingly, the

enhancement in subsection (b)(4) would

not apply to a misrepresentation made

by a participant to an airline

representative in the course of making

travel arrangements for the minor.

The misrepresentation to which the

enhancement in subsection (b)(4) may

apply includes misrepresentation of a

participant’s name, age, occupation,

gender, or status, as long as the

misrepresentation was made with the

intent to (A) persuade, induce, entice, or

coerce a minor to engage in prohibited

sexual conduct; or (B) facilitate

transportation or travel, by a minor or a

participant, to engage in prohibited

sexual conduct. Accordingly, use of a

computer screen name, without such

intent, would not be a sufficient basis

for application of the enhancement.

7. Subsection (b)(5) provides an

enhancement if a computer or an

Internet-access device was used to (A)

persuade, induce, entice, or coerce a

minor to engage in prohibited sexual

conduct; or (B) facilitate transportation

or travel, by a minor or a participant, to

engage in prohibited sexual conduct.

Subsection (b)(5) is intended to apply

only to the use of a computer or an

Internet-access device to communicate

directly with a minor or with a person

who exercises custody, care, or

supervisory control of the minor.

Accordingly, the enhancement would

not apply to the use of a computer or an

Internet-access device to obtain airline

tickets for the minor from an airline’s

Internet site.’’.

Chapter Two, Part G, Subpart One is

amended by striking the text of the title

to Subpart One in its entirety and

inserting the following:

‘‘PROMOTING PROSTITUTION OR

PROHIBITED SEXUAL CONDUCT’’;

and by striking § 2G1.1 in its entirety

and inserting the following:

‘‘§ 2G1.1. Promoting Prostitution or

Prohibited Sexual Conduct

(a) Base Offense Level:

(1) 19, if the offense involved a minor;

or

(2) 14, otherwise.

(b) Specific Offense Characteristics:

(1) If the offense involved (A)

prostitution; and (B) the use of physical

force, or coercion by threats or drugs or

in any manner, increase by 4 levels.

(2) If the offense involved a victim

who had (A) not attained the age of 12

years, increase by 4 levels; or (B)

attained the age of 12 years but not

attained the age of 16 years, increase by

2 levels.

(3) If subsection (b)(2) applies; and—

(A) the defendant was a parent,

relative, or legal guardian of the victim;

or

(B) the victim was otherwise in the

custody, care, or supervisory control of

the defendant,

increase by 2 levels.

(4) If subsection (b)(3) does not apply;

and—

(A) the offense involved the knowing

misrepresentation of a participant’s

identity to persuade, induce, entice,

coerce, or facilitate the travel of, a minor

to engage in prostitution; or

(B) a participant otherwise unduly

influenced a minor to engage in

prostitution,

increase by 2 levels.

(5) If a computer or an Internet-access

device was used to (A) persuade,

induce, entice, coerce, or facilitate the

travel of, a minor to engage in

prostitution; or (B) entice, encourage,

offer, or solicit a person to engage in

prohibited sexual conduct with a minor,

increase by 2 levels.

(c) Cross References:

(1) If the offense involved causing,

transporting, permitting, or offering or

seeking by notice or advertisement, a

person less than 18 years of age to

engage in sexually explicit conduct for

Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Notices 26885

the purpose of producing a visual

depiction of such conduct, apply

§ 2G2.1 (Sexually Exploiting a Minor by

Production of Sexually Explicit Visual

or Printed Material; Custodian

Permitting Minor to Engage in Sexually

Explicit Conduct; Advertisement for

Minors to Engage in Production).

(2) If the offense involved criminal

sexual abuse, attempted criminal sexual

abuse, or assault with intent to commit

criminal sexual abuse, apply § 2A3.1

(Criminal Sexual Abuse; Attempt to

Commit Criminal Sexual Abuse). If the

offense involved criminal sexual abuse

of a minor who had not attained the age

of 12 years, § 2A3.1 shall apply,

regardless of the ‘consent’ of the victim.

(3) If the offense did not involve

promoting prostitution, and neither

subsection (c)(1) nor (c)(2) is applicable,

apply § 2A3.2 (Criminal Sexual Abuse

of a Minor Under the Age of Sixteen

Years (Statutory Rape) or Attempt to

Commit Such Acts) or § 2A3.4 (Abusive

Sexual Contact or Attempt to Commit

Abusive Sexual Contact), as appropriate.

(d) Special Instruction:

(1) If the offense involved more than

one victim, Chapter Three, Part D

(Multiple Counts) shall be applied as if

the promoting of prostitution or

prohibited sexual conduct in respect to

each victim had been contained in a

separate count of conviction.

Commentary

Statutory Provisions: 8 U.S.C. 1328;

18 U.S.C. 2421, 2422, 2423(a), 2425.

Application Notes:

1. For purposes of this guideline—

‘Minor’ means an individual who had

not attained the age of 18 years.

‘Participant’ has the meaning given

that term in Application Note 1 of

§ 3B1.1 (Aggravating Role).

‘Prohibited sexual conduct’ has the

meaning given that term in Application

Note 1 of § 2A3.1 (Criminal Sexual

Abuse; Attempt to Commit Criminal

Sexual Abuse).

‘Promoting prostitution’ means

persuading, inducing, enticing, or

coercing a person to engage in

prostitution, or to travel to engage in,

prostitution.

‘Victim’ means a person transported,

persuaded, induced, enticed, or coerced

to engage in, or travel for the purpose of

engaging in, prostitution or prohibited

sexual conduct, whether or not the

person consented to the prostitution or

prohibited sexual conduct. Accordingly,

‘victim’ may include an undercover law

enforcement officer.

2. Subsection (b)(1) provides an

enhancement for physical force, or

coercion, that occurs as part of a

prostitution offense and anticipates no

bodily injury. If bodily injury results, an

upward departure may be warranted.

See Chapter Five, Part K (Departures).

For purposes of subsection (b)(1),

‘coercion’ includes any form of conduct

that negates the voluntariness of the

behavior of the victim. This

enhancement would apply, for example,

in a case in which the ability of the

victim to appraise or control conduct

was substantially impaired by drugs or

alcohol. In the case of an adult victim,

rather than a victim less than 18 years

of age, this characteristic generally will

not apply if the drug or alcohol was

voluntarily taken.

3. For the purposes of § 3B1.1

(Aggravating Role), a victim, as defined

in this guideline, is considered a

participant only if that victim assisted

in the promoting of prostitution or

prohibited sexual conduct in respect to

another victim.

4. For the purposes of Chapter Three,

Part D (Multiple Counts), each person

transported, persuaded, induced,

enticed, or coerced to engage in, or

travel to engage in, prostitution or

prohibited sexual conduct is to be

treated as a separate victim.

Consequently, multiple counts

involving more than one victim are not

to be grouped together under § 3D1.2

(Groups of Closely-Related Counts). In

addition, subsection (d)(1) directs that if

the relevant conduct of an offense of

conviction includes the promoting of

prostitution or prohibited sexual

conduct in respect to more than one

victim, whether specifically cited in the

count of conviction, each such victim

shall be treated as if contained in a

separate count of conviction.

5. Subsection (b)(3) is intended to

have broad application and includes

offenses involving a victim less than 18

years of age entrusted to the defendant,

whether temporarily or permanently.

For example, teachers, day care

providers, baby-sitters, or other

temporary caretakers are among those

who would be subject to this

enhancement. In determining whether

to apply this enhancement, the court

should look to the actual relationship

that existed between the defendant and

the victim and not simply to the legal

status of the defendant-victim

relationship.

6. If the enhancement in subsection

(b)(3) applies, do not apply subsection

(b)(4) or § 3B1.3 (Abuse of Position of

Trust or Use of Special Skill).

7. The enhancement in subsection

(b)(4)(A) applies in cases involving the

misrepresentation of a participant’s

identity to persuade, induce, entice,

coerce, or facilitate the travel of, a minor

to engage in prostitution. Subsection

(b)(4)(A) is intended to apply only to

misrepresentations made directly to a

minor or to a person who exercises

custody, care, or supervisory control of

the minor. Accordingly, the

enhancement in subsection (b)(4)(A)

would not apply to a misrepresentation

made by a participant to an airline

representative in the course of making

travel arrangements for the minor.

The misrepresentation to which the

enhancement in subsection (b)(4)(A)

may apply includes misrepresentation

of a participant’s name, age, occupation,

gender, or status, as long as the

misrepresentation was made with the

intent to persuade, induce, entice,

coerce, or facilitate the travel of, a minor

to engage in prostitution.

Accordingly, use of a computer screen

name, without such intent, would not

be a sufficient basis for application of

the enhancement.

In determining whether subsection

(b)(4)(B) applies, the court should

closely consider the facts of the case to

determine whether a participant’s

influence over the minor compromised

the voluntariness of the minor’s

behavior.

In a case in which a participant is at

least 10 years older than the minor,

there shall be a rebuttable presumption,

for purposes of subsection (b)(4)(B), that

such participant unduly influenced the

minor to engage in prostitution. In such

a case, some degree of undue influence

can be presumed because of the

substantial difference in age between

the participant and the minor.

8. Subsection (b)(5) provides an

enhancement if a computer or an

Internet-access device was used to (A)

persuade, induce, entice, coerce, or

facilitate the travel of, a minor to engage

in prostitution; or (B) entice, encourage,

offer, or solicit a person to engage in

prohibited sexual conduct with a minor.

Subsection (b)(5)(A) is intended to

apply only to the use of a computer or

an Internet-access device to

communicate directly with a minor or

with a person who exercises custody,

care, or supervisory control of the

minor. Accordingly, the enhancement in

subsection (b)(5)(A) would not apply to

the use of a computer or an Internetaccess device to obtain airline tickets for

the minor from an airline’s Internet site.

9. The cross reference in subsection

(c)(1) is to be construed broadly to

include all instances in which the

offense involved employing, using,

persuading, inducing, enticing,

coercing, transporting, permitting, or

offering or seeking by notice or

advertisement, a person less than 18

years of age to engage in sexually

explicit conduct for the purpose of

26886 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Notices

producing any visual depiction of such

conduct. For purposes of subsection

(c)(1), ‘‘sexually explicit conduct’’ has

the meaning given that term in 18 U.S.C.

2256.

10. Subsection (c)(2) provides a cross

reference to § 2A3.1 (Criminal Sexual

Abuse; Attempt to Commit Criminal

Sexual Abuse) if the offense involved

criminal sexual abuse or attempt to

commit criminal sexual abuse, as

defined in 18 U.S.C. 2241 or 2242. For

example, the cross reference to § 2A3.1

shall apply if the offense involved

criminal sexual abuse; and (A) the

victim had not attained the age of 12

years (see 18 U.S.C. 2241(c)); (B) the

victim had attained the age of 12 years

but had not attained the age of 16 years,

and was placed in fear of death, serious

bodily injury, or kidnaping (see 18

U.S.C. 2241(a),(c)); or (C) the victim was

threatened or placed in fear other than

fear of death, serious bodily injury, or

kidnaping (see 18 U.S.C. 2242(1)).

11. The cross reference in subsection

(c)(3) addresses the case in which the

offense did not involve promoting

prostitution, neither subsection (c)(1)

nor (c)(2) is applicable, and the offense

involved prohibited sexual conduct

other than the conduct covered by

subsection (c)(1) or (c)(2). In such case,

the guideline for the underlying

prohibited sexual conduct is to be used;

i.e., § 2A3.2 (Criminal Sexual Abuse of

a Minor Under the Age of Sixteen Years

(Statutory Rape) or Attempt to Commit

Such Acts) or § 2A3.4 (Abusive Sexual

Contact or Attempt to Commit Abusive

Sexual Contact).

Background: This guideline covers

offenses under chapter 117 of title 18,

United States Code. Those offenses

involve promoting prostitution or

prohibited sexual conduct through a

variety of means. Offenses that involve

promoting prostitution under chapter

117 of such title are sentenced under

this guideline, unless other prohibited

sexual conduct occurs as part of the

prostitution offense, in which case one

of the cross references would apply.

Offenses under chapter 117 of such title

that do not involve promoting

prostitution are to be sentenced under

§ 2G2.1 (Sexually Exploiting a Minor by

Production of Sexually Explicit Visual

or Printed Material; Custodian

Permitting Minor to Engage in Sexually

Explicit Conduct; Advertisement for

Minors to Engage in Production),

§ 2A3.1 (Criminal Sexual Abuse;

Attempt to Commit Criminal Sexual

Abuse), § 2A3.2 (Criminal Sexual Abuse

of a Minor Under the Age of Sixteen

Years (Statutory Rape) or Attempt to

Commit Such Acts) or § 2A3.4 (Abusive

Sexual Contact or Attempt to Commit

Abusive Sexual Contact), as appropriate,

pursuant to the cross references

provided in subsection (c).’’.

Section 2G2.1(b) is amended by

striking subdivision (3) in its entirety

and inserting the following:

‘‘(3) If, for the purpose of producing

sexually explicit material, the offense

involved (A) the knowing

misrepresentation of a participant’s

identity to persuade, induce, entice,

coerce, or facilitate the travel of, a minor

to engage sexually explicit conduct; or

(B) the use of a computer or an Internetaccess device to (i) persuade, induce,

entice, coerce, or facilitate the travel of,

a minor to engage in sexually explicit

conduct, or to otherwise solicit

participation by a minor in such

conduct; or (ii) solicit participation with

a minor in sexually explicit conduct,

increase by 2 levels.’’.

The Commentary to § 2G2.1 captioned

‘‘Application Notes’’ is amended by

redesignating Notes 1 through 3 as

Notes 2 through 4, respectively; by

inserting before redesignated Note 2

(formerly Note 1) the following:

‘‘1. For purposes of this guideline,

‘‘minor’’ means an individual who had

not attained the age of 18 years.’’;

and by adding at the end the following:

‘‘5. The enhancement in subsection

(b)(3)(A) applies in cases involving the

misrepresentation of a participant’s

identity to persuade, induce, entice,

coerce, or facilitate the travel of, a minor

to engage in sexually explicit conduct

for the purpose of producing sexually

explicit material. Subsection (b)(3)(A) is

intended to apply only to

misrepresentations made directly to a

minor or to a person who exercises

custody, care, or supervisory control of

the minor. Accordingly, the

enhancement in subsection (b)(3)(A)

would not apply to a misrepresentation

made by a participant to an airline

representative in the course of making

travel arrangements for the minor.

The misrepresentation to which the

enhancement in subsection (b)(3)(A)

may apply includes misrepresentation

of a participant’s name, age, occupation,

gender, or status, as long as the

misrepresentation was made with the

intent to persuade, induce, entice,

coerce, or facilitate the travel of, a minor

to engage in sexually explicit conduct

for the purpose of producing sexually

explicit material. Accordingly, use of a

computer screen name, without such

intent, would not be a sufficient basis

for application of the enhancement.

Subsection (b)(3)(B)(i) provides an

enhancement if a computer or an

Internet-access device was used to

persuade, induce, entice, coerce, or

facilitate the travel of, a minor to engage

in sexually explicit conduct for the

purpose of producing sexually explicit

material or otherwise to solicit

participation by a minor in such

conduct for such purpose. Subsection

(b)(3)(B)(i) is intended to apply only to

the use of a computer or an Internetaccess device to communicate directly

with a minor or with a person who

exercises custody, care, or supervisory

control of the minor. Accordingly, the

enhancement would not apply to the

use of a computer or an Internet-access

device to obtain airline tickets for the

minor from an airline’s Internet site.’’.

Section 2G2.2(b) is amended by

striking subdivision (2) in its entirety

and inserting the following:

‘‘(2) (Apply the Greatest) If the offense

involved:

(A) Distribution for pecuniary gain,

increase by the number of levels from

the table in § 2F1.1 (Fraud and Deceit)

corresponding to the retail value of the

material, but by not less than 5 levels.

(B) Distribution for the receipt, or

expectation of receipt, of a thing of

value, but not for pecuniary gain,

increase by 5 levels.

(C) Distribution to a minor, increase

by 5 levels.

(D) Distribution to a minor that was

intended to persuade, induce, entice,

coerce, or facilitate the travel of, the

minor to engage in prohibited sexual

conduct, increase by 7 levels.

(E) Distribution other than

distribution described in subdivisions

(A) through

(D), increase by 2 levels.’’.

The Commentary to § 2G2.2 captioned

‘‘Application Notes’’ is amended by

striking Note 1 in its entirety and

inserting the following:

‘‘1. For purposes of this guideline—

‘Distribution’ means any act,

including production, transportation,

and possession with intent to distribute,

related to the transfer of material

involving the sexual exploitation of a

minor.

‘Distribution for pecuniary gain’

means distribution for profit.

‘Distribution for the receipt, or

expectation of receipt, of a thing of

value, but not for pecuniary gain’ means

any transaction, including bartering or

other in-kind transaction, that is

conducted for a thing of value, but not

for profit. ‘Thing of value’ means

anything of valuable consideration. For

example, in a case involving the

bartering of child pornographic

material, the ‘thing of value’ is the child

pornographic material received in

exchange for other child pornographic

material bartered in consideration for

the material received.

Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Notices 26887

‘Distribution to a minor’ means the

knowing distribution to an individual

who is a minor at the time of the

offense, knowing or believing the

individual is a minor at that time.

‘Minor’ means an individual who had

not attained the age of 18 years.

‘Pattern of activity involving the

sexual abuse or exploitation of a minor’

means any combination of two or more

separate instances of the sexual abuse or

sexual exploitation of a minor by the

defendant, whether or not the abuse or

exploitation (A) occurred during the

course of the offense; (B) involved the

same or different victims; or (C) resulted

in a conviction for such conduct.

‘Prohibited sexual conduct’ has the

meaning given that term in Application

Note 1 of the Commentary to § 2A3.1

(Criminal Sexual Abuse; Attempt to

Commit Criminal Sexual Abuse).

‘Sexual abuse or exploitation’ means

conduct constituting criminal sexual

abuse of a minor, sexual exploitation of

a minor, abusive sexual contact of a

minor, any similar offense under state

law, or an attempt or conspiracy to

commit any of the above offenses.

‘‘Sexual abuse or exploitation’’ does not

include trafficking in material relating

to the sexual abuse or exploitation of a

minor.

‘Sexually explicit conduct’ has the

meaning given that term in 18 U.S.C.

§ 2256.’’.

The Commentary to § 2G2.4 is

amended by adding at the end the

following:

‘‘Application Notes:

1. For purposes of this guideline—

‘Minor’ means an individual who had

not attained the age of 18 years.

‘Visual depiction’ means any visual

depiction described in 18 U.S.C. 2256(5)

and (8).

2. For purposes of subsection (b)(2), a

file that (A) contains a visual depiction;

and (B) is stored on a magnetic, optical,

digital, other electronic, or other storage

medium or device, shall be considered

to be one item.

If the offense involved a large number

of visual depictions, an upward

departure may be warranted, regardless

of whether subsection (b)(2) applies.’’.

Section 2G3.1 is amended in the title

by adding at the end ‘‘; Transferring

Obscene Matter to a Minor’’.

Section 2G3.1(b) is amended by

striking subdivision (1) in its entirety

and inserting the following:

‘‘(1) (Apply the Greatest) If the offense

involved:

(A) Distribution for pecuniary gain,

increase by the number of levels from

the table in § 2F1.1 (Fraud and Deceit)

corresponding to the retail value of the

material, but by not less than 5 levels.

(B) Distribution for the receipt, or

expectation of receipt, of a thing of

value, but not for pecuniary gain,

increase by 5 levels.

(C) Distribution to a minor, increase

by 5 levels.

(D) Distribution to a minor that was

intended to persuade, induce, entice,

coerce, or facilitate the travel of, the

minor to engage in prohibited sexual

conduct, increase by 7 levels.

(E) Distribution other than

distribution described in subdivisions

(A) through (D), increase by 2 levels.’’.

The Commentary to § 2G3.1 captioned

‘‘Statutory Provisions’’ is amended by

inserting ‘‘1470’’ after ‘‘1466’’.

The Commentary to § 2G3.1 captioned

‘‘Application Note’’ is amended by

striking Note 1 in its entirety and

inserting the following:

‘‘1. For purposes of this guideline—

‘Distribution’ means any act,

including production, transportation,

and possession with intent to distribute,

related to the transfer of obscene matter.

‘Distribution for pecuniary gain’

means distribution for profit.

‘Distribution for the receipt, or

expectation of receipt, of a thing of

value, but not for pecuniary gain’ means

any transaction, including bartering or

other in-kind transaction, that is

conducted for a thing of value, but not

for profit. ‘Thing of value’ means

anything of valuable consideration.

‘Distribution to a minor’ means the

knowing distribution to an individual

who is a minor at the time of the

offense, knowing or believing the

individual is a minor at that time.

‘Minor’ means an individual who had

not attained the age of 16 years.

‘Prohibited sexual conduct’ has the

meaning given that term in Application

Note 1 of the Commentary to § 2A3.1

(Criminal Sexual Abuse; Attempt to

Commit Criminal Sexual Abuse).‘‘.

The Commentary to § 2G3.2 captioned

‘‘Background’’ is amended by inserting

‘‘Transferring Obscene Matter to a

Minor’’ after ‘‘Transporting Obscene

Matter’’.

Appendix A (Statutory Index) is

amended by inserting after the line

referenced to ‘‘18 U.S.C. 1468’’ the

following new line:

‘‘18 U.S.C. 1470 2G3.1’’

and by inserting after the line referenced

to ‘‘18 U.S.C. § 2423(b)’’ the following

new line:

‘‘18 U.S.C. 2425 2G1.1’’.

Reason for Amendment: This is a sixpart amendment. The amendment is

promulgated primarily in response to

the Protection of Children from Sexual

Predators Act of 1998, Pub. L. 105–314

(the ‘‘Act’’), which contained several

directives to the Commission.

First, the amendment addresses the

Act’s directives to provide

enhancements to the guidelines

covering aggravated sexual abuse,

sexual abuse, and sexual abuse of a

minor if (1) the defendant used a

computer with the intent to persuade,

induce, entice, coerce, or facilitate the

transport of a minor to engage in any

prohibited sexual activity; and (2) the

defendant knowingly misrepresented

the defendant’s actual identity with the

intent to persuade, induce, entice,

coerce, or facilitate the transport of a

minor to engage in any prohibited

sexual conduct. The legislative history

of the Act indicates congressional intent

to ensure that persons who misrepresent

themselves to a minor, or use computers

or Internet-access devices to locate and

gain access to a minor, are severely

punished.

In response to these directives, the

amendment provides separate,

cumulative two-level enhancements in

the sexual abuse guidelines, §§ 2A3.2

(Criminal Sexual Abuse of a Minor

Under the Age of Sixteen Years

(Statutory Rape) or Attempt to Commit

Such Acts), 2A3.3 (Criminal Sexual

Abuse of a Ward), and 2A3.4 (Abusive

Sexual Contact), and in § 2G1.1

(Promoting Prostitution or Prohibited

Sexual Conduct) for (1) the use of a

computer or Internet-access device with

the intent to persuade, induce, entice,

coerce, or facilitate the transport of a

minor to engage in any prohibited

sexual conduct; and (2)

misrepresentation of a criminally

responsible person’s identity with such

an intent. The Commission has

determined that, for offenses sentenced

under these guidelines, the use of a

computer or Internet-access device and

the misrepresentation of identity

represent separate, additional harms

and increase the culpability of a

defendant or criminal participant who

engages, or attempts to engage, in such

conduct. With respect to §§ 2A3.1

(Criminal Sexual Abuse; Attempt to

Commit Criminal Sexual Abuse) and

2G2.1 (Sexually Exploiting a Minor by

Production of Sexually Explicit Visual

or Printed Material), the amendment

treats these two types of aggravating

conduct as alternative triggers for one

enhancement. In these guidelines, the

substantially higher base offense levels

and other specific offense characteristics

provide alternative guideline

mechanisms to account, at least in part,

for these harms and the defendant’s

increased culpability. Accordingly, the

Commission determined that, in these

guidelines, a single, two-level increase

for the use of a computer or

26888 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Notices

misrepresentation adequately addresses

the increased seriousness of these

offenses.

Second, this amendment responds to

the directive in the Act to provide a

sentencing enhancement for offenses

under chapter 117 of title 18, United

States Code (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. In furtherance of

this directive, the Commission initiated

a comprehensive examination of

§§ 2A3.2 and 2G1.1, the guidelines

under which most cases prosecuted

under such chapter are sentenced. The

Commission intends to continue its

comprehensive review of these

guidelines and other guidelines that

cover chapter 117 offenses in the next

amendment cycle.

The amendment implements the

directive to provide an enhancement for

chapter 117 offenses, in part, through

the enhancements provided in §§ 2A3.2

and 2G1.1 for misrepresentation of

identity and use of a computer to

facilitate such offenses. In addition, the

amendment provides an alternative

basis for a sentencing enhancement if a

participant otherwise unduly influenced

the victim to engage in prohibited

sexual conduct. Despite the fact that

§ 2A3.2 nominally applies to consensual

sexual acts with a person who had not

attained the age of 16 years,

Commission data indicated that many of

the cases sentenced under § 2A3.2,

directly or via a cross reference from

§ 2G1.1, involve some aspect of undue

influence over the victim on the part of

the defendant or other criminally

responsible person. Analysis of these

cases revealed conduct such as

coercion, enticement, or other forms of

undue influence by the defendant that

compromised the voluntariness of the

victim’s behavior and, accordingly,

increased the defendant’s culpability for

the crime. This prong of the new

enhancement is designed to allow

courts to consider closely the facts of

the individual case. Furthermore, a

rebuttable presumption is created that

the offense involved undue influence if

a participant was at least 10 years older

than the victim. Data reviewed by the

Commission suggested that such a

presumption is appropriate because

persons who are much older than a

minor are frequently in a position to

manipulate the minor due to increased

knowledge, influence, and resources.

As a result of the Commission’s

comprehensive assessment of §§ 2A3.2

and 2G1.1, the amendment also makes

several other modifications to these

guidelines. The amendment provides, in

§ 2A3.2, an alternative base offense level

of level 18 if the offense involved a

violation of chapter 117 of title 18,

United States Code. This alternative

base offense level more fully

implements a directive in the Sex

Crimes Against Children Prevention Act

of 1995, Pub. L. 104–71, to provide at

least a three-level increase for offenses

under 18 U.S.C. § 2423(a) involving the

transportation of minors for prostitution

or other prohibited sexual conduct.

However, the amendment also provides

for a three-level decrease if a defendant

receives the higher alternative base

offense level of level 18 and none of

certain listed aggravating specific

offense characteristics apply. This

reduction recognizes that not all

defendants convicted under chapter 117

have necessarily engaged in a more

aggravated form of statutory rape

conduct. The amendment also adds

several definitions to § 2A3.2, including

clarifying that ‘‘victim’’ includes an

undercover police officer who

represents to the perpetrator of the

offense that the officer was under the

age of 16 years. This change was made

to ensure that offenders who are

apprehended in an undercover

operation are appropriately punished. In

§ 2G1.1, the amendment reallocates,

without substantive change, five offense

levels from subsection (b)(2) to the base

offense level, for offenses involving a

minor. Section 2G1.1(b)(1) also is

amended to clarify that the offense must

have involved prostitution in order for

the enhancement for coercion, threats,

or drugs to apply. The amendment also

clarifies that, in §§ 2A3.2(c)(1) and

2G1.1(c)(2), the cross reference to

§ 2A3.1 shall apply if the offense

involved criminal sexual abuse of a

minor under the age of 12 years,

regardless of the ‘‘consent’’ of the

victim. Review of Commission data

indicated that the cross reference to

§ 2A3.1 currently is not being applied in

many cases in which the offense

conduct suggests it should. In both

§§ 2A3.2 and 2G1.1, the amendment

also precludes application of the new

enhancement for misrepresentation of

identity and/or undue influence if the

victim is in the custody, care, or

supervisory control of the defendant.

Third, the amendment addresses the

directive in the Act to clarify that the

term ‘‘distribution of pornography’’

applies to the distribution of

pornography for both monetary

remuneration and a non-pecuniary

interest. In response to the directive, the

amendment modifies the enhancement

in § 2G2.2 (Trafficking in Material

Involving the Sexual Exploitation of a

Minor), relating to the distribution of

child pornographic material, as well as

a similar enhancement in § 2G3.1

(Importing, Mailing, or Transporting

Obscene Matter; Transferring Obscene

Matter to a Minor), relating to the

distribution of obscene material. For

each of these enhancements, the

amendment (1) modifies the definition

of ‘‘distribution’’ to mean any act,

including production, transportation,

and possession with intent to distribute,

related to the transfer of the material,

regardless of whether it was for

pecuniary gain; and (2) provides for

varying levels of enhancement

depending upon the purpose and

audience of the distribution. These

varying levels are intended to respond

to increased congressional concerns, as

indicated in the legislative history of the

Act, that pedophiles, including those

who use the Internet, are using child

pornographic and obscene material to

desensitize children to sexual activity,

to convince children that sexual activity

involving children is normal, and to

entice children to engage in sexual

activity.

Fourth, the amendment clarifies the

meaning of the term ‘‘item’’ in

subsection (b)(2) of § 2G2.4 (Possession

of Materials Depicting a Minor Engaged

in Sexually Explicit Conduct). That

subsection provides a two-level

enhancement if the offense involved

possession of ten or more items of child

pornography. The amendment adopts

the holding of all circuits that have

addressed the matter that a computer

file qualifies as an item for purposes of

the enhancement. The amendment also

provides for an invited upward

departure if the offense involves a large

number of visual depictions of child

pornography, regardless of the number

of ‘‘items’’ involved. This provision

invites courts to depart upward in cases

in which a particular item, such as a

book or a computer file, contains an

unusually large number of pornographic

images involving children.

Fifth, the amendment addresses the

new offense of transferring obscene

matter to a minor, codified at 18 U.S.C.

1470, by referencing the offense in the

Statutory Index (Appendix A) to

§ 2G3.1.

Sixth, the amendment addresses the

new offense of prohibiting the knowing

transmittal of identifying information

about minors for criminal sexual

purposes, codified at 18 U.S.C. 2425, by

Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Notices 26889

referencing the new offense in the

Statutory Index to § 2G1.1.

Because of the limited time available

in this amendment cycle, the

Commission was not able fully to

respond to all of the directives of the

Act. In the next amendment cycle, the

Commission intends to continue

consideration of the directive requiring

that the Commission ‘‘provide for an

appropriate enhancement in any case in

which the defendant engaged in a

pattern of activity of sexual abuse and

exploitation of a minor.’’ In addition,

the Commission intends to consider

further the general directive in the Act

requiring the Commission to ensure

‘‘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.’’ Implementation of this

directive may include, for example, an

examination of the appropriate offense

level for defendants convicted of sexual

abuse offenses that are not committed in

violation of chapter 117 of title 18,

United States Code (e.g., offenses

committed on Native American lands).

3. Amendment: Section 2B5.3,

effective May 1, 2000 (see USSC

Guidelines Manual Supplement to 1998

Supplement to Appendix C,

Amendment 590), is repromulgated,

with minor editorial changes, as

follows:

‘‘§ 2B5.3. Criminal Infringement of

Copyright or Trademark

(a) Base Offense Level: 8.

(b) Specific Offense Characteristics:

(1) If the infringement amount

exceeded $2,000, increase by the

number of levels from the table in

§ 2F1.1 (Fraud and Deceit)

corresponding to that amount.

(2) If the offense involved the

manufacture, importation, or uploading

of infringing items, increase by 2 levels.

If the resulting offense level is less than

level 12, increase to level 12.

(3) If the offense was not committed

for commercial advantage or private

financial gain, decrease by 2 levels, but

the resulting offense level shall be not

less than level 8.

(4) If the offense involved (A) the

conscious or reckless risk of serious

bodily injury; or (B) possession of a

dangerous weapon (including a firearm)

in connection with the offense, increase

by 2 levels. If the resulting offense level

is less than level 13, increase to level 13.

Commentary

Statutory Provisions: 17 U.S.C. 506(a);

18 U.S.C. 2318–2320, 2511. For

additional statutory provision(s), see

Appendix A (Statutory Index).

Application Notes:

1. Definitions.—For purposes of this

guideline:

‘Commercial advantage or private

financial gain’ means the receipt, or

expectation of receipt, of anything of

value, including other protected works.

‘Infringed item’ means the

copyrighted or trademarked item with

respect to which the crime against

intellectual property was committed.

‘Infringing item’ means the item that

violates the copyright or trademark

laws.

‘Uploading’ means making an

infringing item available on the Internet

or a similar electronic bulletin board

with the intent to enable other persons

to download or otherwise copy, or have

access to, the infringing item.

2. Determination of Infringement

Amount.—This note applies to the

determination of the infringement

amount for purposes of subsection

(b)(1).

(A) Use of Retail Value of Infringed

Item.—The infringement amount is the

retail value of the infringed item,

multiplied by the number of infringing

items, in a case involving any of the

following:

(i) The infringing item (I) is, or

appears to a reasonably informed

purchaser to be, identical or

substantially equivalent to the infringed

item; or (II) is a digital or electronic

reproduction of the infringed item.

(ii) The retail price of the infringing

item is not less than 75% of the retail

price of the infringed item.

(iii) The retail value of the infringing

item is difficult or impossible to

determine without unduly complicating

or prolonging the sentencing

proceeding.

(iv) The offense involves the illegal

interception of a satellite cable

transmission in violation of 18 U.S.C.

2511. (In a case involving such an

offense, the ‘retail value of the infringed

item’ is the price the user of the

transmission would have paid to

lawfully receive that transmission, and

the ‘infringed item’ is the satellite

transmission rather than the

intercepting device.)

(v) The retail value of the infringed

item provides a more accurate

assessment of the pecuniary harm to the

copyright or trademark owner than does

the retail value of the infringing item.

(B) Use of Retail Value of Infringing

Item.—The infringement amount is the

retail value of the infringing item,

multiplied by the number of infringing

items, in any case not covered by

subdivision (A) of this Application

Note, including a case involving the

unlawful recording of a musical

performance in violation of 18 U.S.C.

2319A.

(C) Retail Value Defined.—For

purposes of this Application Note, the

‘retail value’ of an infringed item or an

infringing item is the retail price of that

item in the market in which it is sold.

(D) Determination of Infringement

Amount in Cases Involving a Variety of

Infringing Items.—In a case involving a

variety of infringing items, the

infringement amount is the sum of all

calculations made for those items under

subdivisions (A) and (B) of this

Application Note. For example, if the

defendant sold both counterfeit

videotapes that are identical in quality

to the infringed videotapes and

obviously inferior counterfeit handbags,

the infringement amount, for purposes

of subsection (b)(1), is the sum of the

infringement amount calculated with

respect to the counterfeit videotapes

under subdivision (A)(i) (i.e., the

quantity of the infringing videotapes

multiplied by the retail value of the

infringed videotapes) and the

infringement amount calculated with

respect to the counterfeit handbags

under subdivision (B) (i.e., the quantity

of the infringing handbags multiplied by

the retail value of the infringing

handbags).

3. Uploading.—With respect to

uploading, subsection (b)(2) applies

only to uploading with the intent to

enable other persons to download or

otherwise copy, or have access to, the

infringing item. For example, this

subsection applies in the case of

illegally uploading copyrighted software

to an Internet site, but it does not apply

in the case of downloading or installing

that software on a hard drive on the

defendant’s personal computer.

4. Application of § 3B1.3.—If the

defendant de-encrypted or otherwise

circumvented a technological security

measure to gain initial access to an

infringed item, an adjustment under

§ 3B1.3 (Abuse of Position of Trust or

Use of Special Skill) shall apply.

5. Upward Departure

Considerations.—If the offense level

determined under this guideline

substantially understates the

seriousness of the offense, an upward

departure may be warranted. The

following is a non-exhaustive list of

factors that the court may consider in

determining whether an upward

departure may be warranted:

(A) The offense involved substantial

harm to the reputation of the copyright

or trademark owner.

(B) The offense was committed in

connection with, or in furtherance of,

26890 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Notices

the criminal activities of a national, or

international, organized criminal

enterprise.

Background: This guideline treats

copyright and trademark violations

much like theft and fraud. Similar to the

sentences for theft and fraud offenses,

the sentences for defendants convicted

of intellectual property offenses should

reflect the nature and magnitude of the

pecuniary harm caused by their crimes.

Accordingly, similar to the loss

enhancement in the theft and fraud

guidelines, the infringement amount in

subsection (b)(1) serves as a principal

factor in determining the offense level

for intellectual property offenses.

Subsection (b)(1) implements section

2(g) of the No Electronic Theft (NET)

Act of 1997, Pub. L. 105–147, by using

the retail value of the infringed item,

multiplied by the number of infringing

items, to determine the pecuniary harm

for cases in which use of the retail value

of the infringed item is a reasonable

estimate of that harm. For cases referred

to in Application Note 2(B), the

Commission determined that use of the

retail value of the infringed item would

overstate the pecuniary harm or

otherwise be inappropriate. In these

types of cases, use of the retail value of

the infringing item, multiplied by the

number of those items, is a more

reasonable estimate of the resulting

pecuniary harm.

Section 2511 of title 18, United States

Code, as amended by the Electronic

Communications Act of 1986, prohibits

the interception of satellite transmission

for purposes of direct or indirect

commercial advantage or private

financial gain. Such violations are

similar to copyright offenses and are

therefore covered by this guideline.’’.

Reason for Amendment: This

amendment is in response to section

2(g) of the No Electronic Theft (NET)

Act of 1997, Pub. L. 105–147 (‘‘the

Act’’). The Act directs the Commission

to ensure that the applicable guideline

range for intellectual property offenses

(including offenses set forth at section

506(a) of title 17, United States Code,

and sections 2319, 2319A, and 2320 of

title 18, United States Code) is

‘‘sufficiently stringent to deter such a

crime.’’ It also more specifically requires

that the guidelines ‘‘provide for

consideration of the retail value and

quantity of the items with respect to

which the intellectual property offense

was committed.’’

The amendment responds to the

directives by making changes to the

monetary calculation found in § 2B5.3

(Criminal Infringement of Copyright or

Trademark). In addition, the

amendment makes a number of other

modifications to the infringement

guideline, including the addition of

several mitigating and aggravating

factors, as further means of providing

just and proportionate punishment

while also seeking to achieve sufficient

deterrence.

The monetary calculation in

§ 2B5.3(b)(1), similar to the loss

enhancement in the theft and fraud

guidelines, serves as an approximation

of the pecuniary harm caused by the

offense and is a principal factor in

determining the offense level for

intellectual property offenses. Prior to

this amendment, the monetary

calculation for all intellectual property

crimes was based on the retail value of

the infringing item multiplied by the

quantity of infringing items. In response

to the directive, the Commission

refashioned this enhancement so as to

use the retail value of the infringed

item, multiplied by the number of

infringing items, as a means of

approximating the pecuniary harm for

cases in which that calculation is

believed most likely to provide a

reasonable estimate of the resulting

harm. Use of that calculation is believed

to provide a reasonable approximation

for those classes of infringement cases

in which it is highly likely that the sale

of an infringing item results in a

displaced sale of the legitimate,

infringed item. The amendment also

requires that the retail value of the

infringed item, multiplied by the

number of infringing items, be used in

certain other cases for reasons of

practicality.

However, based upon a review of

cases sentenced under the former

§ 2B5.3 over two years, the Commission

further determined that using the above

formula likely would overstate

substantially the pecuniary harm caused

to copyright and trademark owners in

some cases currently sentenced under

the guideline. For those cases, a one-toone correlation between the sale of

infringing items and the displaced sale

of legitimate, infringed items is unlikely

because the inferior quality of the

infringing item and/or the greatly

discounted price at which it is sold

suggests that many purchasers of

infringing items would not, or could

not, have purchased the infringed item

in the absence of the availability of the

infringing item. The Commission

therefore determined that, for these

latter classes of cases (referred to in

Application Note 2(B)), the retail value

of the infringing item, multiplied by the

number of those items, provides a more

reasonable approximation of lost

revenues to the copyright or trademark

owner, and hence, of the pecuniary

harm resulting from the offense.

This amendment also increases the

base offense level from level 6 to level

8. The two-level increase in the base

offense level brings the infringement

guideline more in line with offense

levels that would pertain under § 2F1.1

(Fraud and Deceit), assuming

applicability under that guideline of the

two-level enhancement for more than

minimal planning. Based on a review of

cases sentenced under the infringement

guideline, if a more than minimal

planning enhancement did exist in that

guideline, it would apply in the vast

majority of such cases because they

involve this kind of aggravating

conduct. Rather than provide a separate

enhancement within the revised

guideline for ‘‘more than minimal

planning’’ conduct, the Commission

determined that the infringement

guideline should incorporate this type

of conduct into the base offense level.

This amendment also provides an

enhancement of two levels, and a

minimum offense level of level 12, if the

offense involved the manufacture,

importation, or uploading of infringing

items. The Commission determined that

defendants who engage in such conduct

are more culpable than other

intellectual property offenders because

they place infringing items into the

stream of commerce, thereby enabling

others to infringe the copyright or

trademark. A review of cases sentenced

under the guideline indicated

applicability of this enhancement to

approximately two-thirds of the cases.

This amendment also provides a twolevel downward adjustment (but to a

resulting offense level that is not less

than offense level 8) if the offense was

not committed for commercial

advantage or private financial gain. This

adjustment reflects the fact that the Act

establishes lower statutory penalties for

offenses that were not committed for

commercial advantage or private

financial gain.

This amendment also provides an

enhancement of two levels, and a

minimum offense level of level 13, if the

offense involved the conscious or

reckless risk of serious bodily injury or

possession of a dangerous weapon in

connection with the offense. Testimony

received by the Commission indicated

that the conscious or reckless risk of

serious bodily injury may occur in some

cases involving counterfeit consumer

products. The Commission determined

that this kind of aggravating conduct in

connection with infringement cases

should be treated under the guidelines

in the same way it is treated in

connection with fraud cases; therefore,

Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Notices 26891

this enhancement is consistent with an

identical provision in the fraud

guideline.

The amendment also contains an

application note expressly providing

that the adjustment in § 3B1.3 (Abuse of

Position of Trust or Use of Special Skill)

shall apply if the defendant deencrypted or otherwise circumvented a

technological security measure to gain

initial access to an infringed item. As

stated in the background commentary to

§ 3B1.3, persons who use such a special

skill to facilitate or commit a crime

generally are viewed as more culpable.

Finally, this amendment contains two

encouraged upward departure

provisions. The Commission received

public comment that indicated that

infringement may cause substantial

harm to the reputation of the copyright

or trademark owner that is not

accounted for in the monetary

calculation. Public comment also

indicated that some copyright and

trademark offenses are committed in

connection with, or in furtherance of,

the criminal activities of certain

organized crime enterprises. The

amendment invites the court to consider

an appropriate upward departure if

either of these aggravating

circumstances are present.

Pursuant to the emergency

amendment authority of the Act, this

amendment previously was

promulgated as a temporary measure

effective May 1, 2000. (See USSC

Guidelines Manual Supplement to the

1998 Supplement to Appendix C,

Amendment 590).

4. Amendment: Section 2D1.1(c)(1) is

amended by striking ‘‘3 KG or more’’

before ‘‘of Methamphetamine (actual)’’

and inserting ‘‘1.5 KG or more’’; and by

striking ‘‘3 KG or more’’ before ‘‘of

‘Ice’ ’’’ and inserting ‘‘1.5 KG or more’’.

Section 2D1.1(c)(2) is amended by

striking ‘‘at least 1 KG but less than 3

KG’’ before ‘‘of Methamphetamine

(actual)’’ and inserting ‘‘at least 500 G

but less than 1.5 KG’’; and by striking

‘‘at least 1 KG but less than 3 KG’’ before

‘‘of ‘Ice’ ’’ and inserting ‘‘at least 500 G

but less than 1.5 KG’’.

Section 2D1.1(c)(3) is amended by

striking ‘‘at least 300 G but less than 1

KG’’ before ‘‘of Methamphetamine

(actual)’’ and inserting ‘‘at least 150 G

but less than 500 G’’; and by striking ‘‘at

least 300 G but less than 1 KG’’ before

‘‘of ‘Ice’ ’’ and inserting ‘‘at least 150 G

but less than 500 G’’.

Section 2D1.1(c)(4) is amended by

striking ‘‘at least 100 G but less than 300

G’’ before ‘‘of Methamphetamine

(actual)’’ and inserting ‘‘at least 50 G but

less than 150 G’’; and by striking ‘‘at

least 100 G but less than 300 G’’ before

‘‘of ‘Ice’ ’’ and inserting ‘‘at least 50 G

but less than 150 G’’.

Section 2D1.1(c)(5) is amended by

striking ‘‘at least 70 G but less than 100

G’’ before ‘‘of Methamphetamine

(actual)’’ and inserting ‘‘at least 35 G but

less than 50 G’’; and by striking ‘‘at least

70 G but less than 100 G’’ before ‘‘of

‘‘Ice’ ’’ and inserting ‘‘at least 35 G but

less than 50 G’’.

Section 2D1.1(c)(6) is amended by

striking ‘‘at least 40 G but less than 70

G’’ before ‘‘of Methamphetamine

(actual)’’ and inserting ‘‘at least 20 G but

less than 35 G’’; and by striking ‘‘at least

40 G but less than 70 G’’ before ‘‘of

‘Ice’ ’’ and inserting ‘‘at least 20 G but

less than 35 G’’.

Section 2D1.1(c)(7) is amended by

striking ‘‘at least 10 G but less than 40

G’’ before ‘‘of Methamphetamine

(actual)’’ and inserting ‘‘at least 5 G but

less than 20 G’’; and by striking ‘‘at least

10 G but less than 40 G’’ before ‘‘of

‘Ice’ ’’ and inserting ‘‘at least 5 G but less

than 20 G’’.

Section 2D1.1(c)(8) is amended by

striking ‘‘at least 8 G but less than 10 G’’

before ‘‘of Methamphetamine (actual)’’

and inserting ‘‘at least 4 G but less than

5 G’’; and by striking ‘‘at least 8 G but

less than 10 G’’ before ‘‘of ‘Ice’ ’’ and

inserting ‘‘at least 4 G but less than 5

G’’.

Section 2D1.1(c)(9) is amended by

striking ‘‘at least 6 G but less than 8 G’’

before ‘‘of Methamphetamine (actual)’’

and inserting ‘‘at least 3 G but less than

4 G’’; and by striking ‘‘at least 6 G but

less than 8 G’’ before ‘‘of ‘Ice’ ’’ and

inserting ‘‘at least 3 G but less than 4

G’’.

Section 2D1.1(c)(10) is amended by

striking ‘‘at least 4 G but less than 6 G’’

before ‘‘of Methamphetamine (actual)’’

and inserting ‘‘at least 2 G but less than

3 G’’; and by striking ‘‘at least 4 G but

less than 6 G’’ before ‘‘of ‘Ice’ ’’ and

inserting ‘‘at least 2 G but less than 3

G’’.

Section 2D1.1(c)(11) is amended by

striking ‘‘at least 2 G but less than 4 G’’

before ‘‘of Methamphetamine (actual)’’

and inserting ‘‘at least 1 G but less than

2 G’’; and by striking ‘‘at least 2 G but

less than 4 G’’ before ‘‘of ‘Ice’ ’’ and

inserting ‘‘at least 1 G but less than 2

G’’.

Section 2D1.1(c)(12) is amended by

striking ‘‘at least 1 G but less than 2 G’’

before ‘‘of Methamphetamine (actual)’’

and inserting ‘‘at least 500 MG but less

than 1 G’’; and by striking ‘‘at least 1 G

but less than 2 G’’ before ‘‘of ‘Ice’ ’’ and

inserting ‘‘at least 500 MG but less than

1 G’’.

Section 2D1.1(c)(13) is amended by

striking ‘‘at least 500 MG but less than

1 G’’ before ‘‘of Methamphetamine

(actual)’’ and inserting ‘‘at least 250 MG

but less than 500 MG’’; and by striking

‘‘at least 500 MG but less than 1 G’’

before ‘‘of ‘Ice’ ’’ and inserting ‘‘at least

250 MG but less than 500 MG’’.

Section 2D1.1(c)(14) is amended by

striking ‘‘less than 500 MG’’ before ‘‘of

Methamphetamine (actual)’’ and

inserting ‘‘less than 250 MG’’; and by

striking ‘‘less than 500 MG’’ before ‘‘of

‘Ice’ ’’ and inserting ‘‘less than 250 MG’’.

The Commentary to § 2D1.1 captioned

‘‘Application Notes’’ is amended in

Note 10 in the subdivision of the ‘‘Drug

Equivalency Tables’’ captioned

‘‘Cocaine and Other Schedule I and II

Stimulants (and their immediate

precursors)’’ in the line referenced to

‘‘Methamphetamine (Actual)’’ by

striking ‘‘10 kg’’ and inserting ‘‘20 kg’’;

and in the line referenced to ‘‘Ice’’ by

striking ‘‘10 kg’’ and inserting ‘‘20 kg’’.

Reason for Amendment: This

amendment responds to statutory

changes to the quantity of

methamphetamine substance triggering

mandatory minimum penalties, as

prescribed in the Methamphetamine

Trafficking Penalty Enhancement Act of

1998, Pub. L. 105–277 (the ‘‘Act’’). This

amendment conforms

methamphetamine (actual) penalties, as

specified in the Drug Quantity Table in

§ 2D1.1 (Unlawful Manufacturing,

Importing, Exporting, or Trafficking), to

the more stringent mandatory

minimums established by the Act. In

taking this action, the Commission

follows the approach set forth in the

original guidelines for the other

principal controlled substances for

which mandatory minimum penalties

have been established by Congress. No

change was made in the guideline

penalties for methamphetamine mixture

offenses because those penalties already

corresponded to the mandatory

minimum penalties as amended by the

Act. See USSC Guidelines Manual

Appendix C, Amendment 555, effective

November 1, 1997.

At the same time that it proposed this

amendment, the Commission also had

invited comment on whether it should

increase penalties for offenses relating

to Phenylacetone/P2P, when possessed

for the purpose of manufacturing

methamphetamine, or amend the

Chemical Quantity Table in § 2D1.11

(Unlawfully Distributing, Importing,

Exporting, or Possessing a Listed

Chemical), relating to any chemical

referenced in that table that is used to

manufacture methamphetamine.

However, in light of the

Methamphetamine Anti-Proliferation

Act of 1999, passed by the Senate

Judiciary Committee on August 5, 1999,

and similar pending House legislation,

26892 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Notices

the Commission has decided to defer

action on these issues.

5. Amendment: Sections 2B5.1, 2F1.1,

and 3A1.1, effective November 1, 1998

(see USSC Guidelines Manual Appendix

C Supplement, Amendment 587), are

repromulgated without change.

Reason for Amendment: This

amendment implements, in a broader

form, the directives to the Commission

in section 6 of the Telemarketing Fraud

Prevention Act of 1998, Pub. L. 105–184

(‘‘the Act’’).

The Act directs the Commission to

provide for ‘‘substantially increased

penalties’’ for telemarketing frauds. It

also more specifically requires that the

guidelines provide ‘‘an additional

appropriate sentencing enhancement, if

the offense involved sophisticated

means, including but not limited to

sophisticated concealment efforts, such

as perpetrating the offense from outside

the United States,’’ and ‘‘an additional

appropriate sentencing enhancement for

cases in which a large number of

vulnerable victims, including but not

limited to (telemarketing fraud victims

over age 55), are affected by a fraudulent

scheme or schemes.’’

This amendment responds to the

directives by building upon the

amendments to the fraud guideline,

§ 2F1.1 (Fraud and Deceit), that were

submitted to Congress on May 1, 1998.

(See USSC Guidelines Manual

Appendix C Supplement, Amendment

577.) Those amendments added a

specific offense characteristic for ‘‘massmarketing,’’ which is defined to include

telemarketing, and a specific offense

characteristic for sophisticated

concealment.

This amendment broadens the

‘‘sophisticated concealment’’

enhancement to cover ‘‘sophisticated

means’’ of executing or concealing a

fraud offense. In addition, the

amendment increases the enhancement

under § 3A1.1 (Hate Crime Motivation

or Vulnerable Victim), for offenses that

impact a large number of vulnerable

victims.

This amendment also makes a

conforming amendment to § 2B5.1 in

the definition of ‘‘United States’’.

In designing enhancements that may

apply more broadly than the Act’s

above-stated directives minimally

require, the Commission acts

consistently with other directives in the

Act (e.g., section 6(c)(4) (requiring the

Commission to ensure that its

implementing amendments are

reasonably consistent with other

relevant directives to the Commission

and other parts of the sentencing

guidelines)) and with its basic mandate

in sections 991 and 994 of title 28,

United States Code (e.g., 28 U.S.C.

§ 991(b)(1)(B)) (requiring sentencing

policies that avoid unwarranted

disparities among similarly situated

defendants)).

Pursuant to the emergency

amendment authority of the Act, this

amendment previously was

promulgated as a temporary measure

effective November 1, 1998. (See USSC

Guidelines Manual Appendix C

Supplement, Amendment 587.)

6. Amendment: The Commentary to

§ 2B1.1 captioned ‘‘Application Notes’’

is amended by striking Note 4 in its

entirety; by redesignating Notes 5

through 16 as Notes 4 through 15,

respectively; and in Note 2 by striking

the second paragraph in its entirety and

inserting the following:

‘‘If the offense involved making a

fraudulent loan or credit card

application, or other unlawful conduct

involving a loan, a counterfeit access

device, or an unauthorized access

device, the loss is to be determined in

accordance with the Commentary to

§ 2F1.1 (Fraud and Deceit). For example,

in accordance with Application Note 17

of the Commentary to § 2F1.1, in a case

involving an unauthorized access device

(such as a stolen credit card), loss

includes any unauthorized charge(s)

made with the access device. In such a

case, the loss shall be not less than $500

per unauthorized access device. For

purposes of this application note,

‘counterfeit access device’ and

‘unauthorized access device’ have the

meaning given those terms in 18 U.S.C.

1029(e)(2) and (e)(3), respectively.’’.

Section 2F1.1, as amended by

Amendment 5 of this document, is

further amended by redesignating

subsections (b)(5) through (b)(7) as

subsections (b)(6) through (b)(8),

respectively; and by inserting after

subsection (b)(4) the following:

‘‘(5) If the offense involved—

(A) the possession or use of any

device-making equipment;

(B) the production or trafficking of

any unauthorized access device or

counterfeit access device; or

(C) (i) the unauthorized transfer or use

of any means of identification

unlawfully to produce or obtain any

other means of identification; or (ii) the

possession of 5 or more means of

identification that unlawfully were

produced from another means of

identification or obtained by the use of

another means of identification,

increase by 2 levels. If the resulting

offense level is less than level 12,

increase to level 12.’’.

The Commentary to § 2F1.1 captioned

‘‘Application Notes’’, as amended by

Amendment 5 of this document, is

further amended in Note 12 in the first

sentence by striking ‘‘fraudulent

identification documents and’’ by

striking the second sentence in its

entirety; in the third sentence, by

striking ‘‘the case of an offense

involving false identification documents

or access devices,’’ and inserting ‘‘such

a case,’’ and by adding at the end the

following paragraph:

‘‘Offenses involving identification

documents, false identification

documents, and means of identification,

in violation of 18 U.S.C. 1028, also are

covered by this guideline. If the primary

purpose of the offense was to violate, or

assist another to violate, the law

pertaining to naturalization, citizenship,

or legal resident status, apply § 2L2.1

(Trafficking in a Document Relating to

Naturalization) or § 2L2.2 (Fraudulently

Acquiring Documents Relating to

Naturalization), as appropriate, rather

than § 2F1.1.’’.

The Commentary to § 2F1.1 captioned

‘‘Application Notes’’, as amended by

Amendment 5 of this document, is

further amended by redesignating Notes

15 through 20 as Notes 18 through 23,

respectively; and by inserting after Note

14 the following:

‘‘15. For purposes of subsection

(b)(5)—

‘Counterfeit access device’ (A) has the

meaning given that term in 18 U.S.C.

1029(e)(2); and (B) also includes a

telecommunications instrument that has

been modified or altered to obtain

unauthorized use of

telecommunications service.

‘Telecommunications service’ has the

meaning given that term in 18 U.S.C.

1029(e)(9).

‘Device-making equipment’ (A) has

the meaning given that term in 18 U.S.C.

1029(e)(6); and (B) also includes (i) any

hardware or software that has been

configured as described in 18 U.S.C.

1029(a)(9); and (ii) a scanning receiver

referred to in 18 U.S.C. 1029(a)(8).

‘Scanning receiver’ has the meaning

given that term in 18 U.S.C. 1029(e)(8).

‘Means of identification’ has the

meaning given that term in 18 U.S.C.

1028(d)(3), except that such means of

identification shall be of an actual (i.e.,

not fictitious) individual other than the

defendant or a person for whose

conduct the defendant is accountable

under § 1B1.3 (Relevant Conduct).

‘Produce’ includes manufacture,

design, alter, authenticate, duplicate, or

assemble. ‘Production’ includes

manufacture, design, alteration,

authentication, duplication, or

assembly.

Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Notices 26893

‘Unauthorized access device’ has the

meaning given that term in 18 U.S.C.

1029(e)(3).

16. Subsection (b)(5)(C)(i) applies in a

case in which a means of identification

of an individual other than the

defendant (or a person for whose

conduct the defendant is accountable

under § 1B1.3 (Relevant Conduct)) is

used without that individual’s

authorization unlawfully to produce or

obtain another means of identification.

Examples of conduct to which this

subsection should apply are as follows:

(A) A defendant obtains an

individual’s name and social security

number from a source (e.g., from a piece

of mail taken from the individual’s

mailbox) and obtains a bank loan in that

individual’s name. In this example, the

account number of the bank loan is the

other means of identification that has

been obtained unlawfully.

(B) A defendant obtains an

individual’s name and address from a

source (e.g., from a driver’s license in a

stolen wallet) and applies for, obtains,

and subsequently uses a credit card in

that individual’s name. In this example,

the credit card is the other means of

identification that has been obtained

unlawfully.

Examples of conduct to which

subsection (b)(5)(C)(i) should not apply

are as follows:

(A) A defendant uses a credit card

from a stolen wallet only to make a

purchase. In such a case, the defendant

has not used the stolen credit card to

obtain another means of identification.

(B) A defendant forges another

individual’s signature to cash a stolen

check. Forging another individual’s

signature is not producing another

means of identification.

Subsection (b)(5)(C)(ii) applies in any

case in which the offense involved the

possession of 5 or more means of

identification that unlawfully were

produced or obtained, regardless of the

number of individuals in whose name

(or other identifying information) the

means of identification were so

produced or so obtained.

In a case involving unlawfully

produced or unlawfully obtained means

of identification, an upward departure

may be warranted if the offense level

does not adequately address the

seriousness of the offense. Examples

may include the following:

(A) The offense caused substantial

harm to the victim’s reputation or credit

record, or the victim suffered a

substantial inconvenience related to

repairing the victim’s reputation or a

damaged credit record.

(B) An individual whose means of

identification the defendant used to

obtain unlawful means of identification

is erroneously arrested or denied a job

because an arrest record has been made

in the individual’s name.

(C) The defendant produced or

obtained numerous means of

identification with respect to one

individual and essentially assumed that

individual’s identity.

17. In a case involving any counterfeit

access device or unauthorized access

device, loss includes any unauthorized

charges made with the counterfeit

access device or unauthorized access

device. In any such case, loss shall be

not less than $500 per access device.

However, if the unauthorized access

device is a means of

telecommunications access that

identifies a specific telecommunications

instrument or telecommunications

account (including an electronic serial

number/mobile identification number

(ESN/MIN) pair), and that means was

only possessed, and not used, during

the commission of the offense, loss shall

be not less than $100 per unused means.

For purposes of this application note,

‘counterfeit access device’ and

‘unauthorized access device’ have the

meaning given those terms in

Application Note 15.’’.

The Commentary to § 2F1.1 captioned

‘‘Application Notes’’, as amended by

Amendment 5 of this document, is

further amended in redesignated Note

18 (formerly Note 15) by striking

‘‘(b)(5)’’ each place it appears and

inserting ‘‘(b)(6)’’.

The Commentary to § 2F1.1 captioned

‘‘Application Notes’’, as amended by

Amendment 5 of this document, is

further amended in redesignated Note

21 (formerly Note 18), by striking

‘‘(b)(7)’’ and inserting ‘‘(b)(8)’’.

The Commentary to § 2F1.1 captioned

‘‘Application Notes’’, as amended by

Amendment 5 of this document, is

further amended by striking

redesignated Note 23 (formerly Note 20),

in its entirety and inserting the

following:

‘‘23. If subsection (b)(5), subsection

(b)(8)(A), or subsection (b)(8)(B) applies,

there shall be a rebuttable presumption

that the offense also involved more than

minimal planning for purposes of

subsection (b)(2).

If the conduct that forms the basis for

an enhancement under subsection (b)(5)

is the only conduct that forms the basis

of an enhancement under subsection

(b)(6), do not apply an enhancement

under subsection (b)(6).’’.

The Commentary to § 2F1.1 captioned

‘‘Background’’, as amended by

Amendment 5 of this document, is

further amended by striking the sixth

paragraph and all that follows through

the end of the ‘‘Background’’ and

inserting the following:

‘‘Subsections (b)(5)(A) and(B)

implement the instruction to the

Commission in section 4 of the Wireless

Telephone Protection Act, Public Law

105–172.

Subsection (b)(5)(C) implements the

directive to the Commission in section

4 of the Identity Theft and Assumption

Deterrence Act of 1998, Public Law

105–318. This subsection focuses

principally on an aggravated form of

identity theft known as ‘affirmative

identity theft’ or ‘breeding,’ in which a

defendant uses another individual’s

name, social security number, or some

other form of identification (the ‘means

of identification’) to ‘breed’ (i.e.,

produce or obtain) new or additional

forms of identification. Because 18

U.S.C. 1028(d) broadly defines ‘means

of identification,’ the new or additional

forms of identification can include

items such as a driver’s license, a credit

card, or a bank loan. This subsection

provides a minimum offense level of

level 12, in part, because of the

seriousness of the offense. The

minimum offense level accounts for the

fact that the means of identification that

were ‘bred’ (i.e., produced or obtained)

often are within the defendant’s

exclusive control, making it difficult for

the individual victim to detect that the

victim’s identity has been ‘stolen.’

Generally, the victim does not become

aware of the offense until certain harms

have already occurred (e.g., a damaged

credit rating or inability to obtain a

loan). The minimum offense level also

accounts for the non-monetary harm

associated with these types of offenses,

much of which may be difficult or

impossible to quantify (e.g., harm to the

individual’s reputation or credit rating,

inconvenience, and other difficulties

resulting from the offense). The

legislative history of the Identity Theft

and Assumption Deterrence Act of 1998

indicates that Congress was especially

concerned with providing increased

punishment for this type of harm.

Subsection (b)(6) implements, in a

broader form, the instruction to the

Commission in section 6(c)(2) of Public

Law 105–184.

Subsection (b)(7)(B) implements, in a

broader form, the instruction to the

Commission in section 110512 of Public

Law 103–322.

Subsection (b)(8)(A) implements, in a

broader form, the instruction to the

Commission in section 961(m) of Public

Law 101–73.

Subsection (b)(8)(B) implements the

instruction to the Commission in

section 2507 of Public Law 101–647.

26894 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Notices

Subsection (c) implements the

instruction to the Commission in

section 805(c) of Public Law 104–132.’’.

Reason for Amendment: This is a fivepart amendment. First, this amendment

provides a two-level increase and a

minimum offense level of level 12 for

offenses involving (1) the possession or

use of equipment that is used to

manufacture access devices; (2) the

production of, or trafficking in,

unauthorized and counterfeit access

devices, such as stolen credit cards and

cloned wireless telephones; or (3)

affirmative identity theft (i.e.,

unlawfully producing from any means

of identification any other means of

identification). Affirmative identity

theft, referred to in the research and

analysis conducted by the Commission

as the ‘‘breeding’’ of identification

means, will result in an enhanced

penalty in any case in which there is a

transfer or use of another person’s

means of identification unlawfully to

produce or ‘‘breed’’ additional means of

identification, or in which there is the

possession of five or more means of

identification that were unlawfully

produced.

Second, this amendment provides a

rebuttable presumption that the offense

involved more than minimal planning,

and it contains a rule to avoid ‘‘double

counting’’ between the existing

enhancement for ‘‘sophisticated means’’

based on the same conduct.

Third, the amendment provides a

revised minimum loss rule for offenses

involving counterfeit or unauthorized

access devices. Specifically, this rule

requires that a minimum loss amount of

$500 per access device be used when

calculating the loss involved in the

offense. However, for offenses that

involve only the possession, and not the

use, of a means of telecommunications

access that identifies a specific

telecommunications instrument or

telecommunications account (e.g., an

ESN/MIN pair used to obtain

telecommunications service in a

wireless telephone), the rule provides a

minimum loss amount of $100 per

unused means.

Fourth, this amendment provides an

encouraged upward departure if the

offense level does not adequately reflect

the seriousness of the offense conduct.

Examples of cases in which a departure

may be warranted include those in

which (1) an identity theft caused

substantial harm to the victim’s

reputation or credit record; (2) an

individual is arrested, or is denied a job,

because of a misidentification that

results from an identity theft; or (3) a

defendant essentially assumed the

victim’s identity.

Fifth, this amendment incorporates

the statutory definitions of 18 U.S.C.

1028 and 1029, although it also

broadens the definitions of ‘‘counterfeit

access device’’ and ‘‘device-making

equipment’’ for guideline purposes.

This amendment responds to the

directives to the Commission contained

in section 4 of the Identity Theft and

Assumption Deterrence Act of 1998,

Pub. L. 105–318(b)(1) (‘‘ITADA’’) and

section 2 of the Wireless Telephone

Protection Act, Pub. L. 105–172

(‘‘WTPA’’). For the reasons discussed

below and because of the overlap in

some of the statutory definitions in the

ITADA and the WTPA (particularly

‘‘access device,’’ ‘‘telecommunication

identifying information,’’ and ‘‘means of

identification’’), enhancements have

been consolidated into a single

guideline amendment.

The ITADA and the WTPA directed

the Commission to ‘‘review and amend

the Federal sentencing guidelines and

the policy statements of the

Commission’’ to provide appropriate

punishment for identity theft offenses

under 18 U.S.C. 1028 and for offenses

under 18 U.S.C. 1029 related to the

cloning of wireless telephones.

The WTPA directed the Commission

to review, among other factors, ‘‘the

range of conduct covered by’’ cloning

offenses. Although cloned telephones

may be possessed and used in

connection with a variety of offenses,

the Commission determined that the

possession or use of a cloned phone

does not necessarily increase the

seriousness of the underlying offense.

However, the Commission decided that

offenders who manufacture or distribute

cloned telephones are more culpable

than offenders who only possess them.

Accordingly, the new enhancements at

§ 2F1.1(b)(5)(A) and (B) recognize that

such offenders warrant greater

punishment. However, to ensure that

the guidelines apply consistently to

similarly serious conduct regardless of

the technology employed, this

amendment provides for a broader

enhancement that applies to the

manufacture or distribution of any

access device, including a cloned

telephone.

The ITADA directed the Commission

to assess certain specific factors in its

consideration of appropriate penalties

for identity theft, including: the number

of victims; the harm to a victim’s

reputation and inconvenience caused by

the offense; the number of means of

identification, identification documents,

or false identification documents

involved in the offense; the range of

offense conduct; and, the adequacy of

the value of loss to an individual victim

as a measure for establishing penalties.

In conducting research pursuant to

the ITADA, the Commission learned

that identity theft, as defined broadly

under the new statutory provisions at 18

U.S.C. 1028(a)(7) and 1028(d)(3), occurs

along a continuum of offense conduct.

The most basic type of identity theft

occurs when a thief steals a wallet and

uses a stolen credit card to make a

purchase or forges a signature to cash a

stolen check. However, after analyzing

the legislative history of the ITADA and

Commission data, the Commission

determined that the more aggravated

and sophisticated forms of identity

theft, about which Congress seemed

particularly concerned, should be the

focus of enhanced punishment under

the guidelines. Such offense conduct,

which generally occurs within the

context of financial and credit account

take-overs, involves affirmative activity

to generate or ‘‘breed’’ another level of

identification means without the

knowledge of the individual victim

whose identification means are

misused, purloined, or ‘‘taken over’’.

This activity is considered more

sophisticated because of the additional

steps the perpetrator takes to ‘‘breed’’

additional means of identification in

order to conceal and continue the

fraudulent conduct. Such sophisticated

conduct makes detection by both the

individual and institutional victims

much more difficult. It also has the

potential to increase harm, both

monetary and non-monetary, to the

individual victims (about whom

Congress was particularly concerned in

enacting the ITADA), and can result in

substantial disruption of record-keeping

by governmental agencies and private

financial institutions upon which the

stream of commerce depends. Thus, the

Commission determined that this

aggravated offense conduct, in contrast

to the most basic forms of identity theft,

merits enhanced punishment.

Accordingly, amended section

§ 2F1.1(b)(5)(C) recognizes that the

conduct of generating or ‘‘breeding’’

identification means warrants

substantial additional penalties. The

minimum offense level of level 12

accounts for the fact that the defendant

in an identity theft case typically has

exclusive control over the ‘‘bred’’ means

of identification, making it difficult for

the individual victim to detect that the

victim’s identity has been stolen until

substantial harms (e.g., a damaged credit

rating) have occurred. The minimum

offense level also accounts for the nonmonetary harms associated with

identity theft (e.g., harm to reputation or

credit rating), which typically are

Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Notices 26895

difficult to quantify. However, for cases

in which the nature and scope of the

harm to an individual victim is so

egregious that the two-level

enhancement and minimum offense

level provide insufficient punishment,

the amendment invites an upward

departure.

The WTPA directed the Commission

to review ‘‘the extent to which the value

of the loss caused by the offenses * * *

is an adequate measure for establishing

penalties. * * *’’ The amendment

provides a minimum loss rule in § 2F1.1

that extends to all access devices, not

just to cloned wireless telephones. In so

doing, similar fraud cases will be treated

similarly regardless of the technology or

type of access device used in the

offense. Additionally, the Commission’s

research and data supported increasing

the minimum loss amount, previously

provided only in § 2B1.1 (Larceny,

Embezzlement, and Other Forms of

Theft), from $100 to $500 per access

device. However, the data were

insufficient to support using this

increased amount in cases that involve

only the possession, and not the use, of

means of telecommunications access

that identify a specific

telecommunications instrument or

account (e.g., ESN/MIN pairs of wireless

telephones). (An example of such a case

is a defendant who possesses a list of

ESN/MIN pairs but has not used any of

those pairs to clone wireless

telephones.) For such cases, the

Commission decided that the minimum

loss amount should be $100 per unused

means.

7. Amendment: Section 2F1.1(b), as

amended by Amendment 5 of this

document, is further amended in

subdivision (4) by striking ‘‘; or’’ after

‘‘agency’’ and inserting a semicolon; by

inserting ‘‘a misrepresentation or other

fraudulent action during the course of a

bankruptcy proceeding; or (C) a’’ after

‘‘(B)’’; and by inserting ‘‘prior, specific’’

before ‘‘judicial’’.

The Commentary to § 2F1.1 captioned

‘‘Application Notes’’, as amended by

Amendment 5 of this document, is

further amended by striking Note 6 in

its entirety and inserting the following:

‘‘6. Subsection (b)(4)(C) provides an

enhancement if the defendant commits

a fraud in contravention of a prior,

official judicial or administrative

warning, in the form of an order,

injunction, decree, or process, to take or

not to take a specified action. A

defendant who does not comply with

such a prior, official judicial or

administrative warning demonstrates

aggravated criminal intent and deserves

additional punishment. If it is

established that an entity the defendant

controlled was a party to the prior

proceeding that resulted in the official

judicial or administrative action, and

the defendant had knowledge of that

prior decree or order, this enhancement

applies even if the defendant was not a

specifically named party in that prior

case. For example, a defendant whose

business previously was enjoined from

selling a dangerous product, but who

nonetheless engaged in fraudulent

conduct to sell the product, is subject to

this enhancement. This enhancement

does not apply if the same conduct

resulted in an enhancement pursuant to

a provision found elsewhere in the

guidelines (e.g., a violation of a

condition of release addressed in § 2J1.7

(Commission of Offense While on

Release) or a violation of probation

addressed in § 4A1.1 (Criminal History

Category)).

If the conduct that forms the basis for

an enhancement under (b)(4)(B) or (C) is

the only conduct that forms the basis for

an adjustment under § 3C1.1

(Obstruction of Justice), do not apply an

adjustment under § 3C1.1.’’.

The Commentary to § 2F1.1 captioned

‘‘Background’’, as amended by

Amendment 5 of this document, is

further amended by striking the fourth

sentence of the fourth paragraph and

inserting the following:

‘‘The commission of a fraud in the

course of a bankruptcy proceeding

subjects the defendant to an enhanced

sentence because that fraudulent

conduct undermines the bankruptcy

process as well as harms others with an

interest in the bankruptcy estate.’’.

Reason for Amendment: The

amendment was prompted by the circuit

conflict regarding whether the

enhancement in § 2F1.1 (Fraud and

Deceit) for ‘‘violation of any judicial or

administrative order, injunction, decree,

or process’’ applies to false statements

made during bankruptcy proceedings.

Compare United States v. Saacks, 131

F.3d 540 (5th Cir. 1997) (bankruptcy

fraud implicates the violation of a

judicial or administrative order or

process within the meaning of the

enhancement; United States v.

Michalek, 54 F.3d 325 (7th Cir. 1995)

(bankruptcy fraud is a ‘‘special

procedure’’; it is a violation of a specific

adjudicatory process); United States v.

Lloyd, 947 F.2d 339 (8th Cir. 1991)

(knowing concealment of assets in

bankruptcy fraud violates ‘‘judicial

process’’); United States v. Welch, 103

F.3d 906 (9th Cir. 1996) (same); United

States v. Messner, 107 F.3d 1448 (10th

Cir. 1997) (same); United States v.

Bellew, 35 F.3d 518 (11th Cir. 1994)

(knowing concealment of assets during

bankruptcy proceedings qualifies as a

violation of a ‘‘judicial order’’), with

United States v. Shadduck, 112 F.3d

523 (1st Cir. 1997) (falsely filling out

bankruptcy forms does not violate

judicial process since the debtor is not

accorded a position of trust). See also

United States v. Carrozella, 105 F. 3d

796 (2d Cir. 1997) (district court erred

in enhancing the sentence for violation

of judicial process in the case of a

defendant who filed false accounts in

probate court).

The majority of circuits have held that

the current enhancement applies to a

defendant who conceals assets in a

bankruptcy case because the conduct

violates a judicial order or violates

judicial process. Commission data

indicate that, in fiscal year 1998, 41

defendants received an increase for

either ‘‘violation of a judicial order

* * * or misrepresentation of a

charitable organization.’’ The data did

not distinguish between the two parts of

the enhancement.

This amendment creates a separate

and distinct basis for a two-level

enhancement under the fraud guideline

for a misrepresentation or false

statement made in the course of a

bankruptcy proceeding. Additionally,

the existing enhancement and its

accompanying commentary are

modified to make clear that, in order for

the enhancement to apply in a fraud

case not involving a bankruptcy

proceeding, there must be a false

statement in violation of a specific, prior

order. Therefore, any case involving a

bankruptcy fraud will result in a twolevel enhancement, but in the case of a

non-bankruptcy fraud, the enhancement

will apply only if a defendant was given

prior notice of a particular action. The

Commission has decided to treat

bankruptcy fraud more severely because

of its adverse impact on the bankruptcy

judicial process and because of the

additional harm and seriousness

involved in such conduct. See United

States v. Saacks, 131 F.3d 540, 543 (5th

Cir. 1997) (noting that bankruptcy fraud

is more serious than ‘‘the most

pedestrian federal fraud offense’’).

8. Amendment: Section 2K2.4 is

amended by striking subsection (a) in its

entirety and inserting the following:

‘‘(a) If the defendant, whether or not

convicted of another crime, was

convicted of violating:

(1) Section 844(h) of title 18, United

States Code, the guideline sentence is

the term of imprisonment required by

statute.

(2) Section 924(c) or section 929(a) of

title 18, United States Code, the

guideline sentence is the minimum term

of imprisonment required by statute.’’.

26896 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Notices

The Commentary to § 2K2.4 captioned

‘‘Application Notes’’ is amended by

striking Note 1 in its entirety and

inserting the following:

‘‘1. Section 844(h) of title 18, United

State Code, provides a mandatory term

of imprisonment of 10 years (or 20 years

for the second or subsequent offense).

Sections 924(c) and 929(a) of title 18,

United States Code, provide mandatory

minimum terms of imprisonment (e.g.,

not less than five years). Subsection (a)

reflects this distinction. Accordingly,

the guideline sentence for a defendant

convicted under 18 U.S.C. 844(h) is the

term required by the statute, and the

guideline sentence for a defendant

convicted under 18 U.S.C. 924(c) or

929(a) is the minimum term required by

the relevant statute. Each of 18 U.S.C.

844(h), 924(c), and 929(a) requires a

term of imprisonment imposed under

this section to run consecutively to any

other term of imprisonment.

A sentence above the minimum term

required by 18 U.S.C. 924(c) or 929(a) is

an upward departure from the guideline

sentence. A departure may be

warranted, for example, to reflect the

seriousness of the defendant’s criminal

history, particularly in a case in which

the defendant is convicted of an 18

U.S.C. 924(c) or 929(a) offense and has

at least two prior felony convictions for

a crime of violence or a controlled

substance offense that would have

resulted in application of § 4B1.1

(Career Offender) if that guideline

applied to these offenses. See

Application Note 3.’’.

The Commentary to § 2K2.4 captioned

‘‘Background’’ is amended by striking

the first sentence in its entirety and

inserting the following:

‘‘Section 844(h) of title 18, United

States Code, provides a mandatory term

of imprisonment. Sections 924(c) and

929(a) of title 18, United States Code,

provide mandatory minimum terms of

imprisonment. A sentence imposed

pursuant to any of these statutes must

be imposed to run consecutively to any

other term of imprisonment.’’.

The Commentary to § 3D1.1 captioned

‘‘Application Note’’ is amended in Note

1 in the second sentence by striking

‘‘mandatory term of five years’’ and

inserting ‘‘mandatory minimum terms of

imprisonment, based on the conduct

involved,’’; and in the seventh sentence

by inserting ‘‘minimum’’ after

‘‘mandatory’’.

The Commentary to § 5G1.2 is

amended in the second sentence of the

last paragraph by striking ‘‘mandatory

term of five years’’ and inserting

‘‘mandatory minimum terms of

imprisonment, based on the conduct

involved,’’.

Reason for Amendment: This

amendment revises § 2K2.4 (Use of

Firearm, Armor-Piercing Ammunition,

or Explosive During or in Relation to

Certain Crimes) to (1) clarify how the

minimum, consecutive terms of

imprisonment mandated by the statutes

indexed to this guideline should be

treated for purposes of guideline

application; and (2) specify guideline

sentences, for all statutes indexed to

§ 2K2.4, that comply with the

Commission’s mandate in 28 U.S.C.

994(b)(2) (requiring guideline

sentencing ranges in which the

maximum shall not exceed the

minimum by more than the greater of 25

percent or six months). The Act to

Throttle the Criminal Use of Guns, Pub.

L. 105–386, changed the penalty

provisions in 18 U.S.C. 924(c) from

fixed terms of years to ranges of ‘‘not

less than’’ various terms of years. This

effectively establishes mandatory

minimum terms of imprisonment with

implicit maximum terms of life. Section

929(a) of title 18, United States Code,

contains similar provisions. Section

2K2.4 continues to provide that, in both

cases, the term of imprisonment

imposed under the statute should be

determined independently of the usual

guideline application rules and the

sentence imposed should run

consecutively to any other term of

imprisonment. See § 5G1.2(a). However,

§ 2K2.4 previously stated that the term

of imprisonment was that ‘‘required by

statute.’’ Because two of the statutes

indexed to the guideline now provide

for terms of a range of years, questions

arose as to whether any sentence within

the statutorily authorized range

complied with the guidelines.

The amendment clarifies that the

guideline sentence is the minimum term

required by the statute of conviction,

that a term greater than this minimum

is an upward departure and should be

imposed using the normal standards

and procedures that apply to departures

from the guideline range, and that such

upward departures are invited under

certain circumstances. See 18 U.S.C.

3553(b). For example, career offenders

who are convicted both of an offense

under 18 U.S.C. 924(c) and of an

underlying crime of violence or drug

trafficking typically will receive lengthy

guideline sentences. This amendment

modifies Application Note 1 of § 2K2.4

to encourage an upward departure in

the unusual circumstance in which an

offender is convicted only of 18 U.S.C.

924(c) and would have qualified as a

career offender if that guideline applied

to such convictions, or in other unusual

circumstances in which the sentence in

a particular case does not adequately

reflect the seriousness of the defendant’s

criminal history. Because 18 U.S.C.

844(h) still provides for fixed terms of

imprisonment, the amendment

differentiates it from the two statutes

that provide for terms of a range of

years.

The amendment also contains

technical and conforming changes:

§§ 3D1.1 (Procedure for Determining

Offense Level on Multiple Counts) and

5G1.2 (Sentencing on Multiple Counts

of Conviction) are revised to reflect a

change to the penalty provision of 18

U.S.C. 924(c).

9. Amendment: The Commentary to

§ 2K2.4 captioned ‘‘Application Notes’’

is amended in Note 2 by striking the

first paragraph in its entirety and

inserting the following:

‘‘If a sentence under this guideline is

imposed in conjunction with a sentence

for an underlying offense, do not apply

any specific offense characteristic for

possession, brandishing, use, or

discharge of an explosive or firearm

when determining the sentence for the

underlying offense. A sentence under

this guideline accounts for any

explosive or weapon enhancement for

the underlying offense of conviction,

including any such enhancement that

would apply based on conduct for

which the defendant is accountable

under § 1B1.3 (Relevant Conduct). Do

not apply any weapon enhancement in

the guideline for the underlying offense,

for example, if (A) a co-defendant, as

part of the jointly undertaken criminal

activity, possessed a firearm different

from the one for which the defendant

was convicted under 18 U.S.C. 924(c);

or (B) in an ongoing drug trafficking

offense, the defendant possessed a

firearm other than the one for which the

defendant was convicted under 18

U.S.C. 924(c). However, if a defendant is

convicted of two armed bank robberies,

but is convicted under 18 U.S.C. 924(c)

in connection with only one of the

robberies, a weapon enhancement

would apply to the bank robbery which

was not the basis for the 18 U.S.C.

924(c) conviction.

If the explosive or weapon that was

possessed, brandished, used, or

discharged in the course of the

underlying offense also results in a

conviction that would subject the

defendant to an enhancement under

§ 2K1.3(b)(3) (pertaining to possession

of explosive material in connection with

another felony offense) or § 2K2.1(b)(5)

(pertaining to possession of any firearm

or ammunition in connection with

another felony offense), do not apply

that enhancement. A sentence under

this guideline accounts for the conduct

Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Notices 26897

covered by these enhancements because

of the relatedness of that conduct to the

conduct that forms the basis for the

conviction under 18 U.S.C. 844(h),

924(c) or 929(a). For example, if in

addition to a conviction for an

underlying offense of armed bank

robbery, the defendant was convicted of

being a felon in possession under 18

U.S.C. 922(g), the enhancement under

§ 2K2.1(b)(5) would not apply.’’.

The Commentary to § 2K2.4 captioned

‘‘Application Notes’’, as amended by

Amendment 10 of this document, is

further amended in Note 5 (formerly

Note 4) in the third sentence by

inserting ‘‘brandishing,’’ after

‘‘possession,’’.

The Commentary to § 2K2.4 captioned

‘‘Background’’ is amended in the second

sentence by inserting ‘‘brandishing,’’

after ‘‘use,’’.

Reason for Amendment: This

amendment expands the commentary in

Application Note 2 of § 2K2.4 (Use of

Firearm, Armor-Piercing Ammunition,

or Explosive During or in Relation to

Certain Crimes) to clarify under what

circumstances defendants sentenced for

violations of 18 U.S.C. 924(c) in

conjunction with convictions for other

offenses may receive weapon

enhancements contained in the

guidelines for those other offenses. The

amendment directs that no guideline

weapon enhancement should be applied

when determining the sentence for the

crime of violence or drug trafficking

offense underlying the 18 U.S.C. 924(c)

conviction, nor for any conduct with

respect to that offense for which the

defendant is accountable under § 1B1.3

(Relevant Conduct). Guideline weapon

enhancements may be applied,

however, when determining the

sentence for counts of conviction

outside the scope of relevant conduct

for the underlying offense (e.g., a

conviction for a second armed bank

robbery for which no 18 U.S.C. 924(c)

conviction was obtained).

For similar reasons, this amendment

also expands the application note to

clarify that offenders who receive a

sentence under § 2K2.4 should not

receive enhancements under

§ 2K1.3(b)(3) (pertaining to explosive

material connected with another

offense), or § 2K2.1(b)(5) (pertaining to

firearms or ammunition possessed,

used, or transferred in connection with

another offense) with respect to any

weapon, ammunition, or explosive

connected to the offense underlying the

count of conviction sentenced under

§ 2K2.4.

The purposes of this amendment are

to (1) avoid unwarranted disparity and

duplicative punishment; and (2)

conform application of guideline

weapon enhancements with general

guideline principles. The relevant

application note to § 2K2.4 previously

stated that if a sentence was imposed

under § 2K2.4 in conjunction with a

sentence for ‘‘an underlying offense,’’ no

weapon enhancement should be applied

with respect to the guideline for the

underlying offense. Some courts

interpreted ‘‘underlying offense’’

narrowly to mean only the ‘‘crime of

violence’’ or ‘‘drug trafficking offense’’

that forms the basis for the 18 U.S.C.

§ 924(c) conviction. See, e.g., United

States v. Flennory, 145 F.3d 1264, 1268–

69 (11th Cir. 1998), cert. denied, 119

S.Ct. 1130 (1999). But see United States

v. Smith, 196 F.3d 676, 679–82 (6th Cir.

1999) (a conviction under 18 U.S.C.

922(g) qualifies as an ‘‘underlying

offense,’’ and thus, application of the

enhancement in § 2K2.1(b)(5) was

impermissible double-counting). In

other cases, offenders have received

both the mandated statutory penalty and

a guideline weapon enhancement in

circumstances in which the guidelines

generally would require a single weapon

enhancement. See United States v.

Gonzalez, 183 F.3d 1315, 1325–26 (11th

Cir.), cert. denied, 120 S.Ct. 996 (2000)

(both statutory and guideline increases

may be imposed if defendant and

accomplice used different weapons as

part of a joint undertaking); United

States v. Willett, 90 F.3d 404, 407–08

(9th Cir. 1996) (not double counting to

apply both increases for separate

weapons possessed by defendant). But

see United States v. Knobloch, 131 F.3d

366, 372 (3d Cir. 1996) (error to apply

guideline enhancement in addition to

statutory penalty ‘‘even if the section

924(c)(1) sentence is for a different

weapon than the weapon upon which

the enhancement is predicated.’’).

The amendment clarifies application

of the commentary, consistent with the

definition of ‘‘offense’’ found in § 1B1.1

(Application Note 1(l)) and with general

guideline principles. It addresses

disparate application arising from

conflicting interpretations of the current

guideline in different courts, and is

intended to avoid the duplicative

punishment that results when sentences

are increased under both the statutes

and the guidelines for substantially the

same harm.

Finally, Application Notes 2 and 4

and the Background Commentary of

§ 2K2.4 are revised to reflect changes to

18 U.S.C. 924(c), made by the Act to

Throttle the Criminal Use of Guns, Pub.

L. 105–386, with respect to

‘‘brandishing’’ a firearm.

10. Amendment: The Commentary to

§ 2K2.4 captioned ‘‘Application Notes’’

is amended by redesignating Notes 3

and 4 as Notes 4 and 5, respectively;

and by inserting after Note 2 the

following:

‘‘3. Do not apply Chapter Three

(Adjustments) and Chapter Four

(Criminal History and Criminal

Livelihood) to any offense sentenced

under this guideline. Such offenses are

excluded from application of these

chapters because the guideline sentence

for each offense is determined only by

the relevant statute. See §§ 3D1.1

(Procedure for Determining Offense

Level on Multiple Counts) and 5G1.2

(Sentencing on Multiple Counts of

Conviction).’’.

The Commentary to § 4B1.2 captioned

‘‘Application Notes’’ is amended in

Note 1 by striking ‘‘Possessing a firearm

during and in relation to a crime of

violence’’ and all that follows through

the end of the first sentence and

inserting the following:

‘‘A prior conviction for violating 18

U.S.C. 924(c) or 929(a) is a ‘prior felony

conviction’’ for purposes of applying

§ 4B1.1 (Career Offender) if the prior

offense of conviction established that

the underlying offense was a ‘‘crime of

violence’’ or ‘‘controlled substance

offense.’’’.

The Commentary to § 4B1.2 captioned

‘‘Application Notes’’ is amended by

redesignating Notes 2 and 3 as Notes 3

and 4, respectively; and by inserting

after Note 1 the following:

‘‘2. The guideline sentence for a

conviction under 18 U.S.C. 924(c) or

929(a) is determined only by the statute

and is imposed independently of any

other sentence. See §§ 2K2.4 (Use of

Firearm, Armor-Piercing Ammunition,

or Explosive During or in Relation to

Certain Crimes), 3D1.1 (Procedure for

Determining Offense Level on Multiple

Counts), and subsection (a) of § 5G1.2

(Sentencing on Multiple Counts of

Conviction). Accordingly, do not apply

this guideline if the only offense of

conviction is for violating 18 U.S.C.

924(c) or 929(a). For provisions

pertaining to an upward departure from

the guideline sentence for a conviction

under 18 U.S.C. 924(c) or 929(a), see

Application Note 1 of § 2K2.4.’’.

Reason for Amendment: This

amendment revises §§ 2K2.4 (Use of

Firearm, Armor-Piercing Ammunition,

or Explosive During or in Relation to

Certain Crimes) and 4B1.2 (Definitions

of Terms Used in Section 4B1.1) to

clarify guideline application for

offenders convicted under 18 U.S.C.

924(c) and 929(a) who might also

qualify as career offenders under the

rules and definitions provided in

§§ 4B1.1 (Career Offender) and 4B1.2.

Pending further study, the Commission

26898 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Notices

has deferred a decision on whether any

or all convictions for violations of 18

U.S.C. 924(c) should be considered

‘‘instant offenses’’ for purposes of the

career offender guideline. This

amendment preserves the status quo as

it existed prior to the statutory changes

to 18 U.S.C. 924(c), made by the Act to

Throttle the Criminal Use of Guns, Pub.

L. 105–386, that established a statutory

maximum of life for all violations of the

statute.

This amendment adds a new

Application Note 3 to § 2K2.4 directing

courts not to apply Chapter Three

(Adjustments) or Chapter Four

(Criminal History and Criminal

Livelihood) to any offense sentenced

under § 2K2.4. This effectively prohibits

the use of 18 U.S.C. § 924(c) convictions

either to trigger application of the career

offender guideline, § 4B1.1, or to

determine the appropriate offense level

under that guideline. Application Note

1 of § 4B1.2 also is amended to clarify,

however, that prior convictions for

violating 18 U.S.C. 924(c) will continue

to qualify as ‘‘prior felony convictions’’

under the career offender guideline in

most circumstances.

11. Amendment: The Commentary to

§ 1B1.1 captioned ‘‘Application Notes’’

is amended in Note 1(c) by striking

‘‘that the weapon was pointed or waved

about, or displayed in a threatening

manner.’’ and inserting the following:

‘‘that all or part of the weapon was

displayed, or the presence of the

weapon was otherwise made known to

another person, in order to intimidate

that person, regardless of whether the

weapon was directly visible to that

person. Accordingly, although the

dangerous weapon does not have to be

directly visible, the weapon must be

present.’’.

The Commentary to § 1B1.1 captioned

‘‘Application Notes’’ is amended in

Note 1 by striking subdivision (d) in its

entirety and inserting the following:

‘‘(d) ‘Dangerous weapon’ means (i) an

instrument capable of inflicting death or

serious bodily injury; or (ii) an object

that is not an instrument capable of

inflicting death or serious bodily injury

but (I) closely resembles such an

instrument; or (II) the defendant used

the object in a manner that created the

impression that the object was such an

instrument (e.g. a defendant wrapped a

hand in a towel during a bank robbery

to create the appearance of a gun).’’.

Section 2A3.1(b)(1) is amended by

striking ‘‘(including, but not limited to,

the use or display of any dangerous

weapon)’’.

The Commentary to § 2A3.1 captioned

‘‘Application Notes’’ is amended in

Note 1 by striking ‘‘where any

dangerous weapon was used,’’ and

inserting ‘‘if any dangerous weapon was

used or’’; and by striking ‘‘, or displayed

to intimidate the victim’’.

Section 2B3.1(b)(2) is amended by

striking ‘‘displayed,’’ each place it

appears.

The Commentary to § 2B3.1 captioned

‘‘Application Notes’’ is amended by

striking Note 2 in its entirety and

inserting the following:

‘‘2. Consistent with Application Note

1(d)(ii) of § 1B1.1 (Application

Instructions), an object shall be

considered to be a dangerous weapon

for purposes of subsection (b)(2)(E) if

(A) the object closely resembles an

instrument capable of inflicting death or

serious bodily injury; or (B) the

defendant used the object in a manner

that created the impression that the

object was an instrument capable of

inflicting death or serious bodily injury

(e.g., a defendant wrapped a hand in a

towel during a bank robbery to create

the appearance of a gun).’’.

Section 2B3.2(b)(3) is amended by

striking ‘‘displayed,’’ each place it

appears.

Section 2E2.1(b)(1)(C) is amended by

striking ‘‘, displayed’’.

Reason for Amendment: This

amendment conforms the guideline

definition of ‘‘brandish’’ found at

Application Note 1(c) of § 1B1.1

(Application Instructions) to a statutory

definition, which was added by the Act

to Throttle the Criminal Use of Guns,

Pub. L. 105–386, and is codified at 18

U.S.C. 924(c)(4). The purposes of this

amendment are to (1) avoid confusion

that can be caused by different guideline

and statutory definitions of identical

terms; and (2) increase punishment in

some circumstances for persons who

‘‘make the presence of the weapon

known to another person, in order to

intimidate that person,’’ regardless of

whether the weapon is visible. As was

the case prior to this amendment, the

guideline definition of ‘‘brandish’’

applies to all dangerous weapons and

not only to firearms.

The definition of ‘‘dangerous

weapon’’ in Application Note 1(d) of

§ 1B1.1 also is amended to clarify under

what circumstances an object that is not

an actual, dangerous weapon should be

treated as one for purposes of guideline

application. The amendment is in

accord with the decisions in United

States v. Shores, 966 F.2d 1383 (11th

Cir. 1992) (toy gun carried but never

used by a defendant qualifies as a

dangerous weapon because of its

potential, if it were used, to arouse fear

in victims and dangerous reactions by

police or security personnel) and United

States v. Dixon, 982 F.2d 116 (3rd Cir.

1992) (hand wrapped in a towel

qualifies as a dangerous weapon if the

defendant’s actions created the

impression that the defendant possessed

a dangerous weapon).

The amendment also deletes the term

‘‘displayed’’ wherever it appears in the

Guidelines Manual in an enhancement

with ‘‘brandished.’’ Because

‘‘brandished’’ applies in any case in

which ‘‘all or part of the weapon was

displayed,’’ the Commission determined

the inclusion of ‘‘displayed’’ in these

enhancements is redundant. This part of

the amendment is not intended to make

a substantive change in the guidelines.

12. Amendment: Chapter One, Part A,

Subpart 4(b) is amended in the fifth

sentence of the first paragraph by

striking ‘‘and’’ before ‘‘the last’’; and by

inserting ‘‘,and § 5K2.19 (PostSentencing Rehabilitative Efforts)’’ after

‘‘(Coercion and Duress)’’.

Chapter Five, Part K, Subpart 2, is

amended by inserting at the end the

following:

‘‘§ 5K2.19. Post-Sentencing

Rehabilitative Efforts (Policy Statement)

Post-sentencing rehabilitative efforts,

even if exceptional, undertaken by a

defendant after imposition of a term of

imprisonment for the instant offense are

not an appropriate basis for a downward

departure when resentencing the

defendant for that offense. (Such efforts

may provide a basis for early

termination of supervised release under

18 U.S.C. 3583(e)(1).)

Commentary

Background: The Commission has

determined that post-sentencing

rehabilitative measures should not

provide a basis for downward departure

when resentencing a defendant initially

sentenced to a term of imprisonment

because such a departure would (1) be

inconsistent with the policies

established by Congress under 18

U.S.C. 3624(b) and other statutory

provisions for reducing the time to be

served by an imprisoned person; and (2)

inequitably benefit only those who gain

the opportunity to be resentenced de

novo.’’.

Reason for Amendment: This

amendment was prompted by the circuit

conflict regarding whether sentencing

courts may consider an offender’s postoffense rehabilitative efforts while in

prison or on probation as a basis for

downward departure at resentencing

following an appeal. Compare United

States v. Rhodes, 145 F.3d 1375, 1379

(D.C. Cir. 1998) (post-conviction

rehabilitation is not a prohibited factor

and, therefore, sentencing courts may

Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Notices 26899

consider it as a possible ground for

downward departure at resentencing);

United States v. Bradstreet, 207 F.3d 76

(1st Cir. 2000); United States v. Core,

125 F.3d 74, 75 (2d Cir. 1997) (‘‘We find

nothing in the pertinent statutes or the

Sentencing Guidelines that prevents a

sentencing judge from considering postconviction rehabilitation in prison as a

basis for departure if resentencing

becomes necessary.’’) cert. denied, 118

S. Ct. 735 (1998); United States v. Sally,

116 F.3d 76, 80 (3d Cir. 1997) (holding

that ‘‘post-offense rehabilitations efforts,

including those which occur postconviction, may constitute a sufficient

factor warranting a downward

departure’’); United States v. Rudolph,

190 F.3d 720, 723 (6th Cir. 1999);

United States v. Green, 152 F.3d 1202,

1207 (9th Cir. 1998) (same), with United

States v. Sims, 174 F.3d 911 (8th Cir.

1999) (district court lacks authority at

resentencing following an appeal to

depart on ground of post-conviction

rehabilitation which occurred after the

original sentencing; refuses to extend

holding regarding departures for postoffense rehabilitation to conduct that

occurs in prison; departure based on

post-conviction conduct infringes on

statutory authority of the Bureau of

Prisons to grant good-time credits). In

Sims, the Eighth Circuit concluded that

a rule allowing a departure at

resentencing based on post-sentencing

rehabilitation would result in

unwarranted disparity because

resentencing would be a fortuitous

event benefitting only some defendants;

would reinstate a parole-like system;

and would interfere with the authority

of the Bureau of Prisons to award goodtime credits. See Sims, 174 F.3d at 912–

13; Rhodes, 145 F.3d at 1384

(Silberman, J., dissenting).

The Commission determined that

post-sentencing rehabilitative efforts

should not provide a basis for a

downward departure when resentencing

a defendant initially sentenced to a term

of imprisonment because such a

departure would (1) be inconsistent

with policies established by Congress

under the Sentencing Reform Act,

including the provisions of 18

U.S.C. 3624(b) for reducing the time to

be served by an imprisoned person; and

(2) inequitably benefit only those few

who gain the opportunity to be

resentenced de novo, while others,

whose rehabilitative efforts may have

been more substantial, could not benefit

simply because they chose not to appeal

or appealed unsuccessfully.

Additionally, prohibition on downward

departure for post-sentencing

rehabilitative efforts is consistent with

Commission policies expressed in

§ 1B1.10 (Reduction in Term of

Imprisonment as a Result of Amended

Guideline Range). This amendment does

not restrict departures based on

extraordinary post-offense rehabilitative

efforts prior to sentencing. Such

departures have been allowed by every

circuit that has ruled on the matter postKoon. See e.g., United States v. Brock,

108 F.3d 31 (4th Cir. 1997).

13. Amendment: Chapter One, Part A,

Subpart 4(d) is amended by adding an

asterisk at the end of the last paragraph

after the period; and by adding at the

end the following footnote:

‘‘*Note: Although the Commission had not

addressed ‘single acts of aberrant behavior’ at

the time the Introduction to the Guidelines

Manual originally was written, it

subsequently addressed the issue in

Amendment 603 [this amendment], effective

November 1, 2000. (See Supplement to

Appendix C, Amendment 603.)’’.

Chapter Five, Part K, Subpart 2, as

amended by Amendment 12 of this

document, is further amended by

adding at the end the following:

‘‘§ 5K2.20. Aberrant Behavior (Policy

Statement)

A sentence below the applicable

guideline range may be warranted in an

extraordinary case if the defendant’s

criminal conduct constituted aberrant

behavior. However, the court may not

depart below the guideline range on this

basis if (1) the offense involved serious

bodily injury or death; (2) the defendant

discharged a firearm or otherwise used

a firearm or a dangerous weapon; (3) the

instant offense of conviction is a serious

drug trafficking offense; (4) the

defendant has more than one criminal

history point, as determined under

Chapter Four (Criminal History and

Criminal Livelihood); or (5) the

defendant has a prior federal, or state,

felony conviction, regardless of whether

the conviction is countable under

Chapter Four.

Commentary

Application Notes:

1. For purposes of this policy

statement—

‘Aberrant behavior’ means a single

criminal occurrence or single criminal

transaction that (A) was committed

without significant planning; (B) was of

limited duration; and (C) represents a

marked deviation by the defendant from

an otherwise law-abiding life.

‘Dangerous weapon,’ ‘firearm,’

‘otherwise used,’ and ‘serious bodily

injury’ have the meaning given those

terms in the Commentary to

§ 1B1.1(Application Instructions).

‘Serious drug trafficking offense’

means any controlled substance offense

under title 21, United States Code, other

than simple possession under 21 U.S.C.

§ 844, that, because the defendant does

not meet the criteria under § 5C1.2

(Limitation on Applicability of Statutory

Mandatory Minimum Sentences in

Certain Cases), results in the imposition

of a mandatory minimum term of

imprisonment upon the defendant.

2. In determining whether the court

should depart on the basis of aberrant

behavior, the court may consider the

defendant’s (A) mental and emotional

conditions; (B) employment record; (C)

record of prior good works; (D)

motivation for committing the offense;

and (E) efforts to mitigate the effects of

the offense.’’.

Reason for Amendment: This

amendment responds to a circuit

conflict regarding whether, for purposes

of downward departure from the

guideline range, a ‘‘single act of aberrant

behavior’’ (Chapter One, Part A, Subpart

4(d)) includes multiple acts occurring

over a period of time. Compare United

States v. Grandmaison, 77 F.3d 555 (1st

Cir. 1996) (Sentencing Commission

intended the word ‘‘single’’ to refer to

the crime committed; therefore, ‘‘single

acts of aberrant behavior’’ include

multiple acts leading up to the

commission of the crime; the district

court should review the totality of

circumstances); Zecevic v. United States

Parole Commission, 163 F.3d 731 (2d

Cir. 1998) (aberrant behavior is conduct

which constitutes a short-lived

departure from an otherwise lawabiding life, and the best test is the

totality of the circumstances); United

States v. Takai, 941 F.2d 738 (9th Cir.

1991) (‘‘single act’’ refers to the

particular action that is criminal, even

though a whole series of acts lead up to

the commission of the crime); United

States v. Pena, 930 F.2d 1486 (10th Cir.

1991) (aberrational nature of the

defendant’s conduct and other

circumstances justified departure), with

United States v. Marcello, 13 F.3d 752

(3d Cir. 1994) (single act of aberrant

behavior requires a spontaneous,

thoughtless, single act involving lack of

planning); United States v. Glick, 946

F.2d 335 (4th Cir. 1991) (conduct over

a ten-week period involving a number of

actions and extensive planning was not

‘‘single act of aberrant behavior’’);

United States v. Williams, 974 F.2d 25

(5th Cir. 1992) (a single act of aberrant

behavior is generally spontaneous or

thoughtless); United States v. Carey, 895

F.2d 318 (7th Cir. 1990) (single act of

aberrant behavior contemplates a

spontaneous and seemingly thoughtless

act rather than one which was the result

of substantial planning); United States

v. Garlich, 951 F.2d 161 (8th Cir. 1991)

26900 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Notices

(fraud spanning one year and several

transactions was not a ‘‘single act of

aberrant behavior’’); United States v.

Withrow, 85 F.3d 527 (11th Cir. 1996) (a

single act of aberrant behavior is not

established unless the defendant is a

first-time offender and the crime was a

thoughtless act rather than one that was

the result of substantial planning);

United States v. Dyce, 78 F.3d 610 (D.C.

Cir.), amd. on reh. 91 F.3d 1462 (D.C.

Cir. 1996) (same).

This amendment addresses the circuit

conflict but does not adopt in toto either

the majority or minority circuit view on

this issue. As a threshold matter, this

amendment provides that the departure

is available only in an extraordinary

case. However, the amendment defines

and describes ‘‘aberrant behavior’’ more

flexibly than the interpretation of

existing guideline language followed by

the majority of circuits that have

allowed a departure for aberrant

behavior only in a case involving a

single act that was spontaneous and

seemingly thoughtless. The Commission

concluded that this application of the

current language in Chapter One is

overly restrictive and may preclude

departures for aberrant behavior in

circumstances in which such a

departure might be warranted. For this

reason, the Commission attempted to

slightly relax the ‘‘single act’’ rule in

some respects, and provide guidance

and limitations regarding what can be

considered aberrant behavior. At the

same time, the Commission also chose

not to adopt the ‘‘totality of

circumstances’’ approach endorsed by

the minority of circuits, concluding that

the latter approach is overly broad and

vague. The Commission anticipates that

this compromise amendment will not

broadly expand departures for aberrant

behavior.

The amendment creates a new policy

statement and accompanying

commentary in Chapter Five, Part K

(Departures) that sets forth the

parameters of conduct and criminal

history that the Commission believes

appropriately may warrant departure as

‘‘aberrant behavior.’’ The policy

statement provides, in pertinent part,

that ‘‘ ‘aberrant behavior’ means a single

criminal occurrence or single criminal

transaction.’’ The Commission intends

that the phrases ‘‘single criminal

occurrence’’ and ‘‘single criminal

transaction’’ will be somewhat broader

than ‘‘single act’’, but will be limited in

potential applicability to offenses (1)

committed without significant planning;

(2) of limited duration; and (3) that

represent a marked deviation by the

defendant from an otherwise lawabiding life. For offense conduct to be

considered for departure as aberrant

behavior, the offense conduct must, at a

minimum, have these characteristics.

The Commission chose these

characteristics after reviewing case law

and public comment that indicated

some support for the appropriateness of

these factors.

The policy statement places

significant restrictions on the type of

offense and the criminal history of the

offender that can be considered for this

departure. The restrictions on the type

of offense that can qualify reflect a

Commission concern that certain

offense conduct is so serious that a

departure premised on a finding of

aberrant behavior should not be

available to those offenders who engage

in such conduct. Similarly, the

restrictions on criminal history reflect a

Commission view that defendants with

significant prior criminal records should

not qualify for a departure premised on

the aberrant nature of their current

conduct.

The Commission recognizes that a

number of other factors may have some

relevance in evaluating the

appropriateness of a departure based on

aberrant behavior. Some of the relevant

factors identified in the case law and

public comment are listed in an

application note.

14. Amendment: The Commentary to

§ 1B1.4 captioned ‘‘Background’’ is

amended by striking:

‘‘. For example, if the defendant

committed two robberies, but as part of

a plea negotiation entered a guilty plea

to only one, the robbery that was not

taken into account by the guidelines

would provide a reason for sentencing

at the top of the guideline range. In

addition, information that does not

enter into the determination of the

applicable guideline sentencing range

may be considered in determining

whether and to what extent to depart

from the guidelines.’’,

and inserting:

‘‘in determining a sentence within the

guideline range or from considering that

information in determining whether and

to what extent to depart from the

guidelines. For example, if the

defendant committed two robberies, but

as part of a plea negotiation entered a

guilty plea to only one, the robbery that

was not taken into account by the

guidelines would provide a reason for

sentencing at the top of the guideline

range and may provide a reason for

sentencing above the guideline range.’’.

Chapter Five, Part K, Subpart 2, as

amended by Amendment 13 of this

document, is further amended by

adding at the end the following:

‘‘§ 5K2.21. Dismissed and Uncharged

Conduct (Policy Statement)

The court may increase the sentence

above the guideline range to reflect the

actual seriousness of the offense based

on conduct (1) underlying a charge

dismissed as part of a plea agreement in

the case, or underlying a potential

charge not pursued in the case as part

of a plea agreement or for any other

reason; and (2) that did not enter into

the determination of the applicable

guideline range.’’.

Section 6B1.2(a) is amended in the

second paragraph by striking ‘‘Provided,

that’’ and inserting ‘‘However,’’.

The Commentary to § 6B1.2 is

amended in the fourth paragraph by

adding at the end the following:

‘‘Section 5K2.21 (Dismissed and

Uncharged Conduct) addresses the use,

as a basis for upward departure, of

conduct underlying a charge dismissed

as part of a plea agreement in the case,

or underlying a potential charge not

pursued in the case as part of a plea

agreement.’’.

Reason for Amendment: This

amendment addresses the circuit

conflict regarding whether a court can

base an upward departure on conduct

that was dismissed or not charged as

part of a plea agreement in the case.

According to the majority of circuits, the

sentencing court, in determining the

sentence to impose within the guideline

range, or whether a departure from the

guidelines is warranted, may consider

without limitation any information

concerning the background, character

and conduct of the defendant, unless

otherwise prohibited by law. See

§ 1B1.4 (Information to be Used in

Imposing Sentence) and 18 U.S.C. 3661.

These courts hold that § 6B1.2

(Standards for Acceptance of Plea

Agreements) does not prohibit a court

from considering conduct underlying

counts dismissed pursuant to a plea

agreement. The minority circuit view

holds that a departure based on conduct

uncharged or dismissed in the context

of a plea agreement is inappropriate.

Courts holding the minority view

emphasize the need to protect the

expectations of the parties to the plea

agreement. Compare United States v.

Figaro, 935 F.2d 4 (1st Cir. 1991)

(allowing upward departure based on

uncharged conduct); United States v.

Kim, 896 F.2d 678 (2d Cir. 1990)

(allowing upward departure based on

related conduct that formed the basis of

dismissed counts and based on prior

similar misconduct not resulting in

conviction); United States v. Baird, 109

F.3d 856 (3d Cir.), cert. denied, 118 S.

Ct. 243 (1997) (allowing upward

Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Notices 26901

departure based on dismissed counts if

the conduct underlying the dismissed

counts is related to the offense of

conviction conduct) (citing United

States v. Watts, 519 U.S. 148 (1997));

United States v. Barber, 119 F.2d 276,

283–84 (4th Cir. 1997) (en banc); United

States v. Cross, 121 F.3d 234 (6th Cir.

1997) (allowing upward departure based

on dismissed conduct) (citing Watts);

United States v. Ashburn, 38 F.3d 803

(5th Cir. 1994) (allowing upward

departure based on dismissed conduct);

United States v. Big Medicine, 73 F.3d

994 (10th Cir. 1995) (allowing departure

based on uncharged conduct), with

United States v. Ruffin, 997 F.2d 343

(7th Cir. 1993) (error to depart based on

counts dismissed as part of plea

agreement); United States v. Harris, 70

F.3d 1001 (8th Cir. 1995) (same); United

States v. Lawton, 193 F.3d 1087 (9th Cir.

1999) (court may not accept plea bargain

and later consider dismissed charges for

upward departure in sentencing).

This amendment allows courts to

consider for upward departure purposes

aggravating conduct that is dismissed or

not charged in connection with a plea

agreement. This approach is consistent

with the principles that underlie § 1B1.4

and 18 U.S.C. 3661 and preserves

flexibility for the sentencing judge to

impose an appropriate sentence within

the context of a charge-reduction plea

agreement.

15. Amendment: Section 2B5.1(b)(2)

is amended by inserting ‘‘level’’ after

‘‘increase to’’.

The Commentary to § 2D1.1 captioned

‘‘Application Notes’’ is amended in

Note 20 by striking ‘‘Under subsection

(b)(5), the enhancement’’ and inserting

‘‘Subsection (b)(5)’’; by striking ‘‘under

this subsection’’ and inserting ‘‘under

subsection (b)(5)’’; by striking ‘‘§ 5B1.3’’

and inserting ‘‘§§ 5B1.3’’; and by

striking ‘‘§ ’’ before ‘‘5D1.3’’.

Section 2D1.11(b) is amended by

adding at the end the following:

‘‘(3) If the offense involved (A) an

unlawful discharge, emission, or release

into the environment of a hazardous or

toxic substance; or (B) the unlawful

transportation, treatment, storage, or

disposal of a hazardous waste, increase

by 2 levels.’’.

Section 2D1.11(d) is amended in

subdivision (9) by striking ‘‘At least 1.44

G but less than 1.92 KG of Isosafrole;’’

and inserting ‘‘At least 1.44 KG but less

than 1.92 KG of Isosafrole;’’; and by

striking ‘‘At least 1.44 G but less than

1.92 KG of Safrole;’’ and inserting ‘‘At

least 1.44 KG but less than 1.92 KG of

Safrole;’’.

Section 2D1.11(d) is amended in

subdivision (10) by striking ‘‘Less than

1.44 G’’ before ‘‘of Isosafrole;’’ and

inserting ‘‘Less than 1.44 KG’’; and by

striking ‘‘Less than 1.44 G’’ before ‘‘of

Safrole;’’ and inserting ‘‘Less than 1.44

KG’’.

The Commentary to § 2D1.11

captioned ‘‘Application Notes’’ is

amended by adding at the end the

following:

‘‘8. Subsection (b)(3) applies if the

conduct for which the defendant is

accountable under § 1B1.3 (Relevant

Conduct) involved any discharge,

emission, release, transportation,

treatment, storage, or disposal violation

covered by the Resource Conservation

and Recovery Act, 42 U.S.C. 6928(d),

the Federal Water Pollution Control Act,

33 U.S.C. 1319(c), or the Comprehensive

Environmental Response,

Compensation, and Liability Act, 42

U.S.C. 5124, 9603(b). In some cases, the

enhancement under subsection (b)(3)

may not adequately account for the

seriousness of the environmental harm

or other threat to public health or safety

(including the health or safety of law

enforcement and cleanup personnel). In

such cases, an upward departure may be

warranted. Additionally, any costs of

environmental cleanup and harm to

persons or property should be

considered by the court in determining

the amount of restitution under § 5E1.1

(Restitution) and in fashioning

appropriate conditions of supervision

under §§ 5B1.3 (Conditions of

Probation) and 5D1.3 (Conditions of

Supervised Release).’’.

Section 2D1.12(b) is amended by

striking ‘‘Characteristic’’ and inserting

‘‘Characteristics’’; and by adding at the

end the following:

‘‘(2) If the offense involved (A) an

unlawful discharge, emission, or release

into the environment of a hazardous or

toxic substance; or (B) the unlawful

transportation, treatment, storage, or

disposal of a hazardous waste, increase

by 2 levels.’’.

The Commentary to 2D1.12 captioned

‘‘Application Notes’’ is amended by

adding at the end the following:

‘‘3. Subsection (b)(2) applies if the

conduct for which the defendant is

accountable under § 1B1.3 (Relevant

Conduct) involved any discharge,

emission, release, transportation,

treatment, storage, or disposal violation

covered by the Resource Conservation

and Recovery Act, 42 U.S.C. 6928(d),

the Federal Water Pollution Control Act,

33 U.S.C. 1319(c), or the Comprehensive

Environmental Response,

Compensation, and Liability Act, 42

U.S.C. 5124, 9603(b). In some cases, the

enhancement under subsection (b)(2)

may not adequately account for the

seriousness of the environmental harm

or other threat to public health or safety

(including the health or safety of law

enforcement and cleanup personnel). In

such cases, an upward departure may be

warranted. Additionally, any costs of

environmental cleanup and harm to

persons or property should be

considered by the court in determining

the amount of restitution under § 5E1.1

(Restitution) and in fashioning

appropriate conditions of supervision

under §§ 5B1.3 (Conditions of

Probation) and 5D1.3 (Conditions of

Supervised Release).’’.

The Commentary to § 2K2.1 captioned

‘‘Statutory Provisions’’ is amended by

striking ‘‘(e), (f), (g), (h), (j)–(n)’’ and

inserting ‘‘(e)–(i), (k)–(o)’’.

Section 5B1.3(a) is amended by

striking the asterisk after ‘‘Conditions’’;

in subdivision (8) by striking the period

after ‘‘§ 3563(a))’’ and inserting a semicolon; and by adding at the end the

following:

‘‘(9) a defendant convicted of a sexual

offense as described in 18 U.S.C.

4042(c)(4) shall report the address

where the defendant will reside and any

subsequent change of residence to the

probation officer responsible for

supervision, and shall register as a sex

offender in any State where the person

resides, is employed, carries on a

vocation, or is a student.’’;

Section 5B1.3 is amended by striking

the footnote at the end in its entirety as

follows:

‘‘*Note: Effective one year after November

26, 1997, section 3563(a) of Title 18, United

States Code, was amended (by section 115 of

Pub. L. 105–119) to add the following new

mandatory condition of probation:

(9) a defendant convicted of a sexual

offense as described in 18 U.S.C. 4042(c)(4)

(as amended by section 115 of Pub. L. 105–

119) shall report the address where the

defendant will reside and any subsequent

change of residence to the probation officer

responsible for supervision, and shall register

as a sex offender in any State where the

person resides, is employed, carries on a

vocation, or is a student.’’.

Section 5D1.3(a) is amended by

striking the asterisk after ‘‘Conditions’’;

in subdivision (6) by striking the period

after ‘‘§ 3013’’ and inserting a semicolon; and by adding at the end the

following:

‘‘(7) a defendant convicted of a sexual

offense as described in 18 U.S.C.

4042(c)(4) shall report the address

where the defendant will reside and any

subsequent change of residence to the

probation officer responsible for

supervision, and shall register as a sex

offender in any State where the person

resides, is employed, carries on a

vocation, or is a student.’’;

Section 5D1.3 is amended by striking

the footnote at the end in its entirety as

follows:

26902 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Notices

‘‘*Note: Effective one year after November

26, 1997, section 3583(a) of Title 18, United

States Code, was amended (by section 115 of

Pub. L. 105–119) to add the following new

mandatory condition of supervised release:

(7) a defendant convicted of a sexual

offense as described in 18 U.S.C. 4042(c)(4)

(as amended by section 115 of Pub. L. 105–

119) shall report the address where the

defendant will reside and any subsequent

change of residence to the probation officer

responsible for supervision, and shall register

as a sex offender in any State where the

person resides, is employed, carries on a

vocation, or is a student.’’.

Reason for Amendment: This five-part

amendment makes various technical

and conforming changes.

First, the amendment corrects a

typographical error in § 2B5.1 (Offenses

Involving Counterfeit Bearer Obligations

of the United States) by inserting a

missing word in subsection (b)(2).

Second, the amendment corrects a

typographical error in the Chemical

Quantity Table in § 2D1.11 (Unlawfully

Distributing, Importing, Exporting, or

Possessing a Listed Chemical) regarding

certain quantities of Isosafrole and

Safrole by changing those quantities

from grams to kilograms.

Third, the amendment corrects an

omission that was made during prior,

final deliberations by the Commission

on amendments to implement the

Comprehensive Methamphetamine

Control Act of 1996 (the ‘‘Act’’), Pub. L.

104–237. Specifically, the proposal

amends §§ 2D1.11 and 2D1.12

(Unlawful Possession, Manufacture,

Distribution, or Importation of

Prohibited Flask or Equipment) to add

an enhancement for environmental

damage associated with

methamphetamine offenses. The

Commission previously had intended to

amend these guidelines in this manner,

but due to a technical oversight, the

final amendment did not implement

that intent.

The Act directed the Commission to

determine whether the guidelines

adequately punish environmental

violations occurring in connection with

precursor chemical offenses under 21

U.S.C. 841(d) and (g) (sentenced under

§ 2D1.11), and manufacturing

equipment offenses under 21 U.S.C.

843(a)(6) and (7) (sentenced under

§ 2D1.12). On February 25, 1997, the

Commission published two options to

provide an increase for environmental

damage associated with the manufacture

of methamphetamine, the first by a

specific offense characteristic, the

second by an invited upward departure.

See 62 FR 8487 (proposed Feb. 25,

1997). Both options proposed to make

amendments to §§ 2D1.11, 2D1.12, and

2D1.13. Additionally, although the

directive did not address manufacturing

offenses under 21 U.S.C. 841(a), the

Commission elected to use its broader

guideline promulgation authority under

28 U.S.C. 994(a) to ensure that

environmental violations occurring in

connection with this more frequently

occurring offense were treated similarly.

Accordingly, the published options also

included amendments to § 2D1.1

(Unlawful Manufacturing, Importing,

Exporting, or Trafficking).

The published options were revised

prior to final action by the Commission.

However, in the revision that was

presented to the Commission for

promulgation in late April 1997,

amendments to §§ 2D1.11 and 2D1.12

mistakenly were omitted from the

option to provide a specific offense

characteristic, although that revision did

refer to §§ 2D1.11 and 2D1.12 in the

synopsis and included amendments to

these guidelines in the upward

departure option. (The revision did not

include any amendments to guideline

§ 2D1.13, covering record-keeping

offenses, because, upon further

examination, it seemed unlikely that

offenses sentenced under this guideline

would involve environmental damage.)

Accordingly, when the Commission

voted to adopt the option providing the

specific offense characteristic for

§§ 2D1.1, 2D1.11, and 2D1.12, the vote

effectively was limited to what was

before the Commission, i.e., an

environmental damage enhancement for

§ 2D1.1 only. This amendment corrects

that error and makes minor, conforming

changes to the relevant application note

in § 2D1.1.

Fourth, the amendment updates the

Statutory Provisions of § 2K2.1

(Unlawful Receipt, Possession, or

Transportation of Firearms or

Ammunition) to conform to statutory redesignations made to 18 U.S.C. 924 (and

already conformed in Appendix A

(Statutory Index)).

Finally, the amendment updates

§§ 5B1.3 (Conditions of Probation) and

5D1.3 (Conditions of Supervised

Release). Effective November 26, 1998,

18 U.S.C. 3563(a) and 3583(a) were

amended to add a new mandatory

condition of probation and supervised

release requiring a person convicted of

a sexual offense described in 18 U.S.C.

4042(c)(4) (enumerating several sex

offenses) to report to the probation

officer the person’s address and any

subsequent change of address, and to

register as a sex offender in the state in

which the person resides. See section

115 of Departments of Commerce,

Justice, and State, the Judiciary, and

Related Agencies Appropriations Act,

1998 (Pub. L. 105–119). Because the

effective date of this change was later

than the effective date of the last issued

Guidelines Manual (November 1, 1998),

the Commission did not amend §§ 5B1.3

and 5D1.3 to reflect the new condition.

However, the Commission did provide a

footnote in each guideline setting forth

the new condition and alerting the user

as to the date on which the condition

became effective. This amendment

includes the sex offender condition as a

specific mandatory condition of

probation and supervised release in

both guidelines rather than in a

footnote.

[FR Doc. 00–11398 Filed 5–8–00; 8:45 am]

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