[Federal Register Volume 65, Number 90 (Tuesday, May 9, 2000)]
[Notices]
[Pages 26880-26902]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-11398]



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Part II





United States Sentencing Commission





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Sentencing Guidelines for United States Courts; Notice

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

[[Page 26880]]


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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.

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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 Sec. 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 Sec. 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 
Sec. 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 
non-emergency amendments submitted to Congress that may result in a 
lower guideline range should be made retroactive to previously 
sentenced defendants pursuant to Sec. 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 Sec. 1B1.2 (Applicable Guidelines), 
the offense guideline section from Chapter Two (Offense Conduct) 
applicable to the offense of conviction. See Sec. 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 Sec. 2X1.1 (Attempt, Solicitation, 
or Conspiracy) as well as the guideline

[[Page 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 Sec. 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 Sec. 1B1.9 (Class B or C Misdemeanors and 
Infractions).''.
    The Commentary to Sec. 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 Sec. 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 
Sec. 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 Sec. 2X5.1 (Other 
Offenses).''.
    The Commentary to Sec. 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 Sec. 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 
Sec. 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 Sec. 1B1.2 (Applicable 
Guidelines).''.
    The Commentary to Sec. 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 Sec. 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 Sec. 2D1.2 does not 
apply to convictions under 21 U.S.C. 841 based on the fact that the 
commentary to Sec. 2D1.2 lists as the ``Statutory Provisions'' to which 
it is applicable 21 U.S.C. 859, 860, and 861, but not Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 2F1.1 (Fraud and Deceit) 
was most appropriate guideline rather than the listed guideline of 
Sec. 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 Secs. 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 
Sec. 1B1.2(a). Therefore, in order for the enhanced

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penalties in Sec. 2D1.2 to apply, the defendant must be convicted of an 
offense referenced to Sec. 2D1.2, rather than simply have engaged in 
conduct described by that guideline. Furthermore, the amendment deletes 
Application Note 3 of Sec. 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 
Sec. 1B1.3 (Relevant Conduct), and its current placement in Sec. 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 
Sec. 2D1.2 and add an enhancement to Sec. 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 Sec. 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 Sec. 3B1.1 (Aggravating Role).''.
    The Commentary to Sec. 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 Sec. 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 Sec. 2A3.2 in 
its entirety and inserting the following:
``Sec. 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 Sec. 2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal 
Sexual Abuse). If the victim had not attained the age of 12 years, 
Sec. 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 Sec. 3B1.1 (Aggravating Role).
    `Prohibited sexual conduct' has the meaning given that term in 
Application Note 1 of Sec. 2A3.1 (Criminal Sexual Abuse; Attempt to 
Commit Criminal Sexual Abuse).
    `Victim' means (A) an individual who, except as provided in 
subdivision (B),

[[Page 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 Sec. 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 Sec. 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, 
Sec. 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 Sec. 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 Sec. 3B1.1 (Aggravating Role).
    `Prohibited sexual conduct' has the meaning given that term in 
Application Note 1 of the Commentary to Sec. 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,

[[Page 26884]]

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 Sec. 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 Sec. 3B1.1 (Aggravating Role).
    `Prohibited sexual conduct' has the meaning given that term in 
Application Note 1 of the Commentary to Sec. 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 Sec. 2G1.1 in its entirety and inserting the following:
``Sec. 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

[[Page 26885]]

the purpose of producing a visual depiction of such conduct, apply 
Sec. 2G2.1 (Sexually Exploiting a Minor by Production of Sexually 
Explicit Visual or Printed Material; Custodian Permitting Minor to 
Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage 
in Production).
    (2) If the offense involved criminal sexual abuse, attempted 
criminal sexual abuse, or assault with intent to commit criminal sexual 
abuse, apply Sec. 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, Sec. 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 Sec. 2A3.2 
(Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years 
(Statutory Rape) or Attempt to Commit Such Acts) or Sec. 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 Sec. 3B1.1 (Aggravating Role).
    `Prohibited sexual conduct' has the meaning given that term in 
Application Note 1 of Sec. 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 Sec. 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 Sec. 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 Sec. 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 Internet-access 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

[[Page 26886]]

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 Sec. 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 Sec. 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., Sec. 2A3.2 (Criminal 
Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) 
or Attempt to Commit Such Acts) or Sec. 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 Sec. 2G2.1 (Sexually Exploiting a Minor by Production 
of Sexually Explicit Visual or Printed Material; Custodian Permitting 
Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors 
to Engage in Production), Sec. 2A3.1 (Criminal Sexual Abuse; Attempt to 
Commit Criminal Sexual Abuse), Sec. 2A3.2 (Criminal Sexual Abuse of a 
Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to 
Commit Such Acts) or Sec. 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 Internet-access 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 Sec. 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 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 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 Sec. 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 Sec. 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.

[[Page 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 Sec. 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. Sec. 2256.''.
    The Commentary to Sec. 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 Sec. 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 Sec. 2G3.1 captioned ``Statutory Provisions'' is 
amended by inserting ``1470'' after ``1466''.
    The Commentary to Sec. 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 Sec. 2A3.1 (Criminal Sexual 
Abuse; Attempt to Commit Criminal Sexual Abuse).``.
    The Commentary to Sec. 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. 
Sec. 2423(b)'' the following new line:
    ``18 U.S.C. 2425    2G1.1''.

    Reason for Amendment: This is a six-part 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, 
Secs. 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 
Sec. 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 Secs. 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

[[Page 26888]]

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 Secs. 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 
Secs. 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 Sec. 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 Sec. 2A3.2, directly or via a cross reference from 
Sec. 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 
Secs. 2A3.2 and 2G1.1, the amendment also makes several other 
modifications to these guidelines. The amendment provides, in 
Sec. 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. Sec. 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 
Sec. 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 Sec. 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 
Secs. 2A3.2(c)(1) and 2G1.1(c)(2), the cross reference to Sec. 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 
Sec. 2A3.1 currently is not being applied in many cases in which the 
offense conduct suggests it should. In both Secs. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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

[[Page 26889]]

referencing the new offense in the Statutory Index to Sec. 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:
``Sec. 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 Sec. 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 Sec. 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 Sec. 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,

[[Page 26890]]

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 Sec. 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 Sec. 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 
Sec. 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-to-one 
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 Sec. 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 two-level 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,

[[Page 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 Sec. 3B1.3 (Abuse of Position of Trust or Use of 
Special Skill) shall apply if the defendant de-encrypted or otherwise 
circumvented a technological security measure to gain initial access to 
an infringed item. As stated in the background commentary to 
Sec. 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 Sec. 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 Sec. 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 Sec. 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,

[[Page 26892]]

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, Sec. 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 ``mass-marketing,'' 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 Sec. 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 Sec. 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. Sec. 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 Sec. 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 Sec. 2F1.1 (Fraud and 
Deceit). For example, in accordance with Application Note 17 of the 
Commentary to Sec. 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 Sec. 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 Sec. 2L2.1 (Trafficking in a Document Relating to Naturalization) 
or Sec. 2L2.2 (Fraudulently Acquiring Documents Relating to 
Naturalization), as appropriate, rather than Sec. 2F1.1.''.
    The Commentary to Sec. 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 
Sec. 1B1.3 (Relevant Conduct).
    `Produce' includes manufacture, design, alter, authenticate, 
duplicate, or assemble. `Production' includes manufacture, design, 
alteration, authentication, duplication, or assembly.

[[Page 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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.

[[Page 26894]]

    Subsection (c) implements the instruction to the Commission in 
section 805(c) of Public Law 104-132.''.
    Reason for Amendment: This is a five-part 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 
Sec. 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 Sec. 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 non-monetary harms associated with identity 
theft (e.g., harm to reputation or credit rating), which typically are

[[Page 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 Sec. 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 Sec. 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 Sec. 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 Sec. 2J1.7 
(Commission of Offense While on Release) or a violation of probation 
addressed in Sec. 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 Sec. 3C1.1 (Obstruction of Justice), do not apply an 
adjustment under Sec. 3C1.1.''.
    The Commentary to Sec. 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 Sec. 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 two-level 
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.''.

[[Page 26896]]

    The Commentary to Sec. 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 
Sec. 4B1.1 (Career Offender) if that guideline applied to these 
offenses. See Application Note 3.''.
    The Commentary to Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 5G1.2(a). However, Sec. 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 Sec. 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: 
Secs. 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 Sec. 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 Sec. 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 
Sec. 2K1.3(b)(3) (pertaining to possession of explosive material in 
connection with another felony offense) or Sec. 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

[[Page 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 Sec. 2K2.1(b)(5) would not apply.''.
    The Commentary to Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 2K2.4 
should not receive enhancements under Sec. 2K1.3(b)(3) (pertaining to 
explosive material connected with another offense), or Sec. 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 Sec. 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 Sec. 2K2.4 previously stated that if a 
sentence was imposed under Sec. 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. Sec. 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 Sec. 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 Sec. 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 
Sec. 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 Sec. 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 Secs. 3D1.1 (Procedure for 
Determining Offense Level on Multiple Counts) and 5G1.2 (Sentencing on 
Multiple Counts of Conviction).''.
    The Commentary to Sec. 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 Sec. 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 Sec. 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 Secs. 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 Sec. 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 Sec. 2K2.4.''.
    Reason for Amendment: This amendment revises Secs. 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 Secs. 4B1.1 (Career 
Offender) and 4B1.2. Pending further study, the Commission

[[Page 26898]]

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 Sec. 2K2.4 
directing courts not to apply Chapter Three (Adjustments) or Chapter 
Four (Criminal History and Criminal Livelihood) to any offense 
sentenced under Sec. 2K2.4. This effectively prohibits the use of 18 
U.S.C. Sec. 924(c) convictions either to trigger application of the 
career offender guideline, Sec. 4B1.1, or to determine the appropriate 
offense level under that guideline. Application Note 1 of Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 
Sec. 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 Sec. 5K2.19 (Post-Sentencing 
Rehabilitative Efforts)'' after ``(Coercion and Duress)''.
    Chapter Five, Part K, Subpart 2, is amended by inserting at the end 
the following:
``Sec. 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 
post-offense 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

[[Page 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 post-conviction 
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 post-
conviction, 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 post-offense 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 good-time 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 Sec. 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 post-Koon. 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:
``Sec. 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 
Sec. 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. Sec. 844, that, because the defendant does 
not meet the criteria under Sec. 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 law-abiding 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)

[[Page 26900]]

(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 law-abiding 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 Sec. 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:
``Sec. 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 Sec. 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 
Sec. 1B1.4 (Information to be Used in Imposing Sentence) and 18 U.S.C. 
3661. These courts hold that Sec. 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

[[Page 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 Sec. 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 Sec. 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 ``Sec. 5B1.3'' and inserting ``Secs. 5B1.3''; and by striking 
``Sec. '' 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 Sec. 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 Sec. 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 Sec. 5E1.1 (Restitution) 
and in fashioning appropriate conditions of supervision under 
Secs. 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 Sec. 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 Sec. 5E1.1 (Restitution) 
and in fashioning appropriate conditions of supervision under 
Secs. 5B1.3 (Conditions of Probation) and 5D1.3 (Conditions of 
Supervised Release).''.
    The Commentary to Sec. 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 
``Sec. 3563(a))'' and inserting a semi-colon; 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 
``Sec. 3013'' and inserting a semi-colon; 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:


[[Page 26902]]


    ``*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 Sec. 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 Sec. 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 Secs. 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 Sec. 2D1.11), and manufacturing equipment offenses under 21 
U.S.C. 843(a)(6) and (7) (sentenced under Sec. 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 Secs. 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 Sec. 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 
Secs. 2D1.11 and 2D1.12 mistakenly were omitted from the option to 
provide a specific offense characteristic, although that revision did 
refer to Secs. 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 Sec. 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 
Secs. 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 Sec. 2D1.1 only. This amendment corrects that error and 
makes minor, conforming changes to the relevant application note in 
Sec. 2D1.1.
    Fourth, the amendment updates the Statutory Provisions of 
Sec. 2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms 
or Ammunition) to conform to statutory re-designations made to 18 
U.S.C. 924 (and already conformed in Appendix A (Statutory Index)).
    Finally, the amendment updates Secs. 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 Secs. 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]
BILLING CODE 2210-01-U