4782 Federal Register / Vol. 71, No. 18 / Friday, January 27, 2006 / Notices 

UNITED STATES SENTENCING 

COMMISSION 

Sentencing Guidelines for United 

States Courts 

AGENCY: United States Sentencing 

Commission. 

ACTION: Notice of proposed 

amendments; request for public 

comment; notice of public hearings. 

SUMMARY: (A) Proposed Temporary, 

Emergency Amendment Pertaining to 

Steroid Offenses.—Pursuant to section 

994(a), (o), and (p) of title 28, United 

States Code, section 3 of the Anabolic 

Steroid Control Act of 2004, Pub. L. 

108–358, and the United States Parole 

Commission Extension and Sentencing 

Commission Authority Act of 2005, Pub. 

L. 109–75, the Commission is 

considering promulgating a temporary, 

emergency amendment to the 

sentencing guidelines, policy 

statements, and commentary to increase 

the penalties for steroid offenses. This 

notice sets forth the proposed 

amendment and a synopsis of the issues 

addressed by the amendment. Issues for 

comment follow the proposed 

amendment. 

(B) Proposed Non-Emergency 

Amendments.—Pursuant to section 

994(a), (o), and (p) of title 28, United 

States Code, the United States 

Sentencing Commission is considering 

promulgating certain amendments to the 

sentencing guidelines, policy 

statements, and commentary. This 

notice sets forth the proposed 

amendments and, for each proposed 

amendment, a synopsis of the issues 

addressed by that amendment. This 

notice also provides multiple issues for 

comment, some of which are contained 

within proposed amendments. 

The specific proposed amendments 

and issues for comment in this notice 

are as follows: (A) proposed amendment 

and issues for comment regarding 

immigration offenses, particularly 

offenses covered by §§ 2L1.1 

(Smuggling, Transporting, or Harboring 

an Unlawful Alien), 2L1.2 (Unlawfully 

Entering or Remaining in the United 

States), 2L2.1 (Trafficking in a 

Document Relating to Naturalization, 

Citizenship, or Legal Resident Status, or 

a United States Passport; etc.) and 2L2.2 

(Fraudulently Acquiring Documents 

Relating to Naturalization, Citizenship, 

or Legal Resident Status for Own Use); 

(B) proposed amendments to §§ 2K2.1 

(Unlawful Receipt, Possession, or 

Transportation of Firearms or 

Ammunition; Prohibited Transactions 

Involving Firearms or Ammunition), 

1B1.1 (Application Instructions), and 

5K2.11 (Lesser Harms), and issues for 

comment pertaining to firearms 

offenses; (C) proposed repromulgation 

of the proposed temporary, emergency 

amendment to §§ 2D1.1 (Unlawful 

Manufacturing, Importing, Exporting, or 

Trafficking (Including Possession with 

Intent to Commit These Offenses); 

Attempt or Conspiracy), and 3B1.3 (Hate 

Crime Motivation and Vulnerable 

Victim) set forth in Part A of this notice; 

(D) proposed amendment to 

repromulgate as a permanent 

amendment the temporary, emergency 

amendment to § 2B5.3 (Criminal 

Infringement of Copyright or 

Trademark), which became effective 

October 24, 2004 (see Supplement to 

Appendix C, (Amendment 675)); (E) 

proposed amendment to repromulgate 

as a permanent amendment the 

temporary, emergency amendment to 

§ 2J1.2 (Obstruction of Justice), which 

became effective October 24, 2005 (see 

Supplement to Appendix C, 

(Amendment 676)); (F) proposed 

amendments §§ 2A1.4 (Involuntary 

Manslaughter), 2A5.2 (Interference with 

Flight Crew Member or Flight 

Attendant; Interference with Dispatch, 

Operation, or Maintenance of Mass 

Transportation Vehicle or Ferry), 2B1.1 

(Theft, Fraud, and Property 

Destruction), 2K1.4 (Arson; Property 

Damage by Use of Explosives), and 

Chapter Two, Part X (Other Offenses) to 

implement the Safe, Accountable, 

Flexible, Efficient Transportation Act: A 

Legacy for Users, Pub. L. 109–59; (G) 

proposed amendments to §§ 2A6.1 

(Threatening Communications), 2K2.1 

(Unlawful Receipt, Possession, or 

Transportation of Firearms or 

Ammunition; Prohibited Transactions 

Involving Firearms or Ammunition), 

2L1.1 (Smuggling, Transporting, or 

Harboring an Unlawful Alien), and 

2M6.1 (Unlawful Production, 

Development, Acquisition, Stockpiling, 

Alteration, Use, Transfer, or Possession 

of Nuclear Material, Weapons, or 

Facilities, Biological Agents, Toxins, or 

Delivery Systems, Chemical Weapons, 

or Other Weapons of Mass Destruction; 

Attempt or Conspiracy) to implement 

the Intelligence Reform and Terrorism 

Prevention Act of 2004, Pub. L. 108– 

458; (H) proposed amendments to (i) 

Chapter Three (Adjustments) to 

implement the directive to the 

Commission in section 204(b) of the 

Intellectual Property Protection and 

Courts Administration Act of 2004, Pub. 

L. 108–482; and (ii) § 2G2.5 

(Recordkeeping Offenses Involving the 

Production of Sexually Explicit 

Materials) to implement section 5(d)(1) 

of the CAN-SPAM Act, Pub. L. 108–187; 

(I) proposed amendments to (i) §§ 2B1.1 

and 2B1.5 (Theft of, Damage to, or 

Destruction of, Cultural Heritage 

Resources; Unlawful Sale, Purchase, 

Exchange, Transportation, or Receipt of 

Cultural Heritage Resources) to 

implement the Veterans’ Memorial 

Preservation and Recognition Act of 

2003, Pub. L. 108–29; (ii) § 2N2.1 

(Violations of Statutes and Regulations 

Dealing With Any Food, Drug, 

Biological Product, Device, Cosmetic, or 

Agricultural Product) to implement the 

Plant Protection Act of 2002, Pub. L. 

107–171; (iii) § 2T3.1 (Evading Import 

Duties or Restrictions (Smuggling); 

Receiving or Trafficking in Smuggled 

Property ) to implement the Clean 

Diamond Trade Act of 2003, Pub. L. 

108–19; (iv) §§ 2A1.1 (First Degree 

Murder), 2A1.2 (Second Degree 

Murder), 2A1.3 (Voluntary 

Manslaughter), 2A1.4 (Involuntary 

Manslaughter), 2A2.1 (Assault with 

Intent to Commit Murder; Attempted 

Murder), 2A2.2 (Aggravated Assault), 

and 2X5.1 to implement the Unborn 

Victims of Violence Act of 2004, Pub. L. 

108–212; and (v) Chapter Two, Part X 

(Other Offenses) to implement several 

other laws that created new Class A 

Misdemeanor offenses; (J) proposed 

amendments to § 2D1.1 and Chapter 

Three (Adjustments) to address various 

guideline application issues; (K) 

proposed amendment to § 3C1.1 

(Obstruction of Justice) that addresses 

three issues of circuit conflict; (L) issue 

for comment pertaining to attorneyclient waiver in Chapter Eight 

(Sentencing of Organizations); (M) 

proposed amendment to Chapter Six 

(Sentencing Procedures and Plea 

Agreements) pertaining to crime 

victims’ rights; and (N) proposed 

amendment to Chapter One, Part B 

(General Application Principles) 

pertaining to reductions in the term of 

imprisonment based on a Bureau of 

Prisons motion. 

DATES: (A) Proposed Temporary, 

Emergency Amendment.—Written 

public comment on the proposed 

emergency amendment should be 

received by the Commission not later 

February 27, 2006, in anticipation of a 

vote to promulgate the emergency 

amendments at the Commission’s March 

2006 public meeting. Thereafter, written 

public comment on whether to 

repromulgate the emergency 

amendment as a permanent, nonemergency amendment should be 

received by the Commission not later 

than March 28, 2006. 

(B) Proposed Non-Emergency 

Amendments.—Written public 

comment regarding the proposed 


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amendments and issues for comment set 

forth in this notice, including public 

comment regarding retroactive 

application of any of the proposed 

amendments, should be received by the 

Commission not later than March 28, 

2006. 

(C) Public Hearings.—The 

Commission has scheduled a public 

hearing on its proposed amendments for 

March 15, 2006, at the Thurgood 

Marshall Federal Judiciary Building, 

One Columbus Circle, NE., Washington, 

DC 20002–8002. A person who desires 

to testify at the public hearing should 

notify Michael Courlander, Public 

Affairs Officer, at (202) 502–4597, not 

later than February 17, 2006. Written 

testimony for the public hearing must be 

received by the Commission not later 

than March 1, 2006. Timely submission 

of written testimony is a requirement for 

testifying at the public hearing. The 

Commission requests that, to the extent 

practicable, commentators submit an 

electronic version of the comment and 

of the testimony for the public hearing. 

The Commission also reserves the right 

to select persons to testify at any of the 

hearings and to structure the hearings as 

the Commission considers appropriate 

and the schedule permits. Further 

information regarding the public 

hearing, including the time of the 

hearing, will be provided by the 

Commission on its Web site at http:// 

www.ussc.gov. 

In addition to the March public 

hearing, the Commission has scheduled 

two regional public hearings on the 

proposed immigration amendment. The 

first hearing will be held in San 

Antonio, TX, on February 21, 2006. The 

second hearing will be held in San 

Diego, CA, on March 6, 2006. Further 

information regarding these hearings, 

including the time and location, will be 

provided by the Commission on its Web 

site. 

ADDRESSES: Public comment should be 

sent to: United States Sentencing 

Commission, One Columbus Circle, NE., 

Suite 2–500, Washington, DC 20002–

8002, Attention: Public Affairs. 

FOR FURTHER INFORMATION CONTACT: 

Michael Courlander, Public Affairs 

Officer, Telephone: (202) 502–4597. 

SUPPLEMENTARY INFORMATION: The 

United States Sentencing Commission is 

an independent agency in the judicial 

branch of the United States 

Government. The Commission 

promulgates sentencing guidelines and 

policy statements for Federal courts 

pursuant to 28 U.S.C. 994(a). The 

Commission also periodically reviews 

and revises previously promulgated 

guidelines pursuant to 28 U.S.C. 994(o) 

and submits guideline amendments to 

the Congress not later than the first day 

of May of each year pursuant to 28 

U.S.C. 994(p). 

The Commission seeks comment on 

the proposed amendments, issues for 

comment, and any other aspect of the 

sentencing guidelines, policy 

statements, and commentary. In 

addition to the issues for comment 

presented in the proposed amendments, 

the Commission requests comment 

regarding simplification of the 

guidelines. Specifically, with respect to 

the guidelines that are the subject of the 

following proposed amendments, 

should the Commission make additional 

amendments to simplify those 

guidelines, and if so, how? For example, 

should Specific Offense Characteristics 

that are infrequently applied be deleted 

and instead included as bases for 

upward departures? Should Specific 

Offense Characteristics that provide 

graduated increases for degrees of 

conduct be collapsed to provide a single 

offense level increase? For example, 

should a firearm enhancement that 

provides alternative offense level 

increases based on how a firearm was 

involved in the offense (e.g., discharged, 

brandished, possessed, or otherwise 

used) provide a single offense level 

increase for the involvement of a 

firearm? 

The Commission also requests public 

comment regarding whether the 

Commission should specify for 

retroactive application to previously 

sentenced defendants any of the 

proposed amendments published in this 

notice. The Commission requests 

comment regarding which, if any, of the 

proposed amendments that may result 

in a lower guideline range should be 

made retroactive to previously 

sentenced defendants pursuant to 

§ 1B1.10 (Reduction in Term of 

Imprisonment as a Result of Amended 

Guideline Range). 

The proposed amendments in this 

notice are presented in one of two 

formats. First, some of the amendments 

are proposed as specific revisions to a 

guideline or commentary. Bracketed text 

within a proposed amendment indicates 

a heightened interest on the 

Commission’s part on comment and 

suggestions regarding alternative policy 

choices; for example, a proposed 

enhancement of [2][4][6] levels indicates 

that the Commission is considering, and 

invites comment on, alternative policy 

choices regarding the appropriate level 

of enhancement. Similarly, bracketed 

text within a specific offense 

characteristic or application note means 

that the Commission specifically invites 

comment on whether the proposed 

provision is appropriate. Second, the 

Commission has highlighted certain 

issues for comment and invites 

suggestions on how the Commission 

should respond to those issues. 

Additional information pertaining to 

the proposed amendments described in 

this notice, including the Interim Staff 

Report on Immigration Reform and the 

Federal Sentencing Guidelines, may be 

accessed through the Commission’s Web 

site at http://www.ussc.gov. 

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

USSC Rules of Practice and Procedure, Rule 

4.4. 

Ricardo H. Hinojosa, 

Chair. 

A. Proposed Emergency Amendment 

1. Steroids 

Synopsis of Proposed Amendment: 

This proposed amendment implements 

the directive in the United States Parole 

Commission Extension and Sentencing 

Commission Authority Act of 2005, Pub. 

L. 109–76, which requires the 

Commission, under emergency 

amendment authority, to implement 

section 3 of the Anabolic Steroid 

Control Act of 2004, Pub. L. 108–358 

(the ‘‘ASC Act’’). The ASC Act directs 

the Commission to ‘‘review the Federal 

sentencing guidelines with respect to 

offenses involving anabolic steroids’’

and ‘‘consider amending the * * * 

guidelines to provide for increased 

penalties with respect to offenses 

involving anabolic steroids in a manner 

that reflects the seriousness of such 

offenses and the need to deter anabolic 

steroid trafficking and use * * *.’’ The 

Commission must promulgate an 

amendment not later than 180 days after 

the date of enactment of the United 

States Parole Commission Extension 

and Sentencing Commission Authority 

Act of 2005, which creates a 

promulgation deadline of March 27, 

2006. 

The proposed amendment 

implements the directives by increasing 

the penalties for offenses involving 

anabolic steroids. It does so by changing 

the manner in which anabolic steroids 

are treated under § 2D1.1 (Unlawful 

Manufacturing, Importing, Exporting, or 

Trafficking (Including Possession with 

Intent to Commit These Offenses); 

Attempt or Conspiracy). Currently, one 

unit of an anabolic steroid ‘‘means a 10 

cc vial of an injectable steroid or fifty 

tablets.’’ The proposed amendment 

presents two options for increasing 

penalties. Option One bases the offense 

level in an anabolic steroid offense on 

the ‘‘actual’’ quantity of steroid involved 

in the offense and provides that one unit 

of an anabolic steroid means 


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[25][50][100] mg of an anabolic steroid, 

regardless of the form involved in the 

offense (e.g., patch, cream, tablet, 

liquid). At 25 mg, sentencing penalties 

would be increased approximately 6–8 

levels above current offense levels, and 

would closely approximate a 1:1 ratio 

with other Schedule III substances. At 

50 mg, sentencing penalties would be 

increased approximately 4–6 levels 

above current offense levels, and at 100 

mg, sentencing penalties would be 

increased approximately 2–4 levels 

above current offense levels. This option 

also includes a rebuttable presumption 

that the label, shipping manifest, or 

other similar documentation accurately 

reflects the purity of the steroid. Option 

Two eliminates the sentencing 

distinction between anabolic steroids 

and other Schedule III substances. 

Accordingly, if an anabolic steroid is in 

a pill, tablet, capsule, or liquid form, the 

court would sentence as it would in any 

other case involving a Schedule III 

substance. For anabolic steroids in other 

forms, the proposed amendment 

instructs the court that [1 unit means 25 

mg and that] the court may determine 

the base offense level using a reasonable 

estimate of the quantity of anabolic 

steroid involved in the offense. 

The proposed amendment also 

provide new enhancements designed to 

capture aggravating harms involved in 

anabolic steroid cases. First, the 

proposed amendment amends § 2D1.1 to 

provide an increase of two levels if the 

offense involved the distribution of a 

masking agent. A masking agent is a 

product added to, or taken with, an 

anabolic steroid to prevent the detection 

of the anabolic steroid in an individual’s 

body. Second, the proposed amendment 

amends § 2D1.1 to provide an increase 

of two levels if the defendant 

distributed an anabolic steroid to a 

professional, college, or high school 

athlete. Third, the proposed amendment 

presents two options for increasing 

penalties for coaches who distribute 

anabolic steroids to their athletes. 

Option One provides, as an alternative 

to the proposed enhancement for 

distribution to an athlete, a two-level 

increase in § 2D1.1 if the defendant used 

the defendant’s position as a coach of 

athletic activity to influence an athlete 

to use an anabolic steroid. Option Two 

amends Application Note 2 of § 3B1.3 

(Abuse of Position of Trust or Use of 

Special Skill) to include a coach who 

uses his or her position to influence an 

athlete to use an anabolic steroid in the 

list of special circumstances to which 

the two level adjustment in § 3B1.3 shall 

apply. 

Two issues for comment follow the 

proposed amendment. The first pertains 

to whether the Commission, when it 

repromulgates the proposed amendment 

as a permanent amendment, should 

expand the scope of the enhancements 

to cover all controlled substances, not 

just anabolic steroids. The second issues 

pertains to whether the penalties for 

steroid offenses should be based on 

quantities typical of offenses involving 

mid- and high-level dealers. 

Proposed Amendment: Section 2D1.1 

is amended by redesignating 

subsections (b)(6) and (b)(7) as 

subsections (b)(8) and (b)(9), 

respectively; and by inserting the 

following after subsection (b)(5): 

‘‘(6) If the offense involved the 

distribution of (A) an anabolic steroid; 

and (B) a masking agent, increase by 2 

levels. 

(7) If the defendant distributed an 

anabolic steroid to a professional, 

college, or high school athlete[; Option 

1(for coach): or (B) the defendant used 

the defendant’s position as a coach of an 

athletic activity to influence a 

professional, college, or high school 

athlete to use an anabolic steroid], 

increase by 2 levels. ]’’. 

[Option 1 (for steroids): Section 

2D1.1(c) is amended in the ‘‘*Notes to 

the Drug Quantity Table’’ by striking 

subdivision (G) and inserting the 

following: 

‘‘(G) In the case of anabolic steroids, 

one ‘unit’ means [25][50][100] mg of an 

anabolic steroid, regardless of the form 

(e.g., patch, topical cream, tablet, 

liquid). [There shall be a rebuttable 

presumption that the label, shipping 

manifest, or other similar 

documentation describing the type and 

purity of the anabolic steroid accurately 

reflects the purity of that steroid.]’’.] 

[Option 2 (for steroids): Section 

2D1.1(c) is amended in the ‘‘*Notes to 

the Drug Quantity Table’’ in subdivision 

(F) by striking ‘‘(except anabolic 

steroids)’’; and by adding at the end the 

following: 

‘‘For an anabolic steroid that is not in 

a pill, capsule, tablet, or liquid form 

(e.g. patch, topical cream, aerosol), [(A) 

one ‘unit’ means [25] mg; and (B)] the 

court may determine the base offense 

level using a reasonable estimate of the 

quantity of anabolic steroid involved in 

the offense.’’. 

Section 2D1.1(c) is amended in the 

‘‘*Notes to the Drug Quantity Table’’ by 

striking subdivision (G).] 

The Commentary to § 2D1.1 captioned 

‘‘Application Notes’’ is amended by 

striking ‘‘(b)(6)’’ and inserting ‘‘(b)(8)’’

each place it appears; and by striking 

‘‘(b)(7)’’ and inserting ‘‘(b)(9)’’ each 

place it appears. 

The Commentary to § 2D1.1 captioned 

‘‘Application Notes’’ is amended by 

adding at the end the following: 

‘‘24. Application of Subsection 

(b)(6).—For purposes of subsection 

(b)(6), ‘masking agent’ means a product 

added to, or taken with, an anabolic 

steroid that prevents the detection of the 

anabolic steroid in an individual’s body. 

25. Application of Subsection (b)(7).—

For purposes of subsection (b)(7): 

‘Athlete’ means an individual who 

participates in an athletic activity 

conducted by (A) an intercollegiate 

athletic association or interscholastic 

athletic association; (B) a professional 

athletic association; or (C) an amateur 

athletic organization. 

‘Athletic activity’ means an activity 

that (A) has officially designated 

coaches; (B) conducts regularly 

scheduled practices or workouts that are 

supervised by coaches; and (C) has 

established schedules for competitive 

events or exhibitions. 

‘College or high school athlete’ means 

an athlete who is a student at an 

institution of higher learning (as defined 

in section 101 of the Higher Education 

Act of 1965 (20 U.S.C. 1001) or at a 

secondary school (as defined in section 

9101 of the Elementary and Secondary 

Education Act of 1965 (20 U.S.C. 7801). 

‘Professional athlete’ means an 

individual who competes in a major 

professional league.’’. 

The Commentary to § 2D1.1 captioned 

‘‘Background’’ is amended in the ninth 

paragraph by striking ‘‘(b)(6)(A)’’ and 

inserting ‘‘(b)(8)(A)’’; and in the last 

paragraph by striking ‘‘(b)(6)(B) and (C)’’

and inserting ‘‘(b)(8)(B) and (C)’’. 

[Option 2 (for coaches): The 

Commentary to § 3B1.3 captioned 

‘‘Application Notes’’ is amended in 

Note 2 in subdivision (A) by inserting 

‘‘Postal Service Employee.—’’ before 

‘‘An employee’’; in subdivision (B) by 

inserting ‘‘Offenses Involving ‘Means of 

Identification’.—’’ before ‘‘A 

defendant’’; and by adding at the end 

the following: 

‘‘(C) Coach of Athletic Activity.—A 

defendant who uses the defendant’s 

position as a coach of an athletic 

activity to influence a professional, 

college, or high school athlete to use an 

anabolic steroid. 

For purposes of this guideline: 

(i) ‘Athlete’ means an individual who 

participates in an athletic activity 

conducted by (I) an intercollegiate 

athletic association or interscholastic 

athletic association; (II) a professional 

athletic association; or (III) an amateur 

athletic organization. 

(ii) ‘Athletic activity’ means an 

activity that (I) has officially designated 

coaches; (II) conducts regularly 


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scheduled practices or workouts that are 

supervised by coaches; and (III) has 

established schedules for competitive 

events or exhibitions. 

(iii) ‘College, or high school athlete’

means an athlete who is a student at an 

institution of higher learning (as defined 

in section 101 of the Higher Education 

Act of 1965 (20 U.S.C. 1001) or at a 

secondary school (as defined in section 

9101 of the Elementary and Secondary 

Education Act of 1965 (20 U.S.C. 7801). 

(iv) ‘Professional athlete’ means an 

individual who competes in a major 

professional league.]’’. 

Issues for Comment: 

(1) The Commission requests 

comment regarding whether, when the 

Commission re-promulgates the 

temporary, emergency amendment as a 

permanent amendment, it should 

expand the proposed enhancements in 

§ 2D1.1(b)(6) (pertaining to masking 

agents) and in § 2D1.1(b)(7) (pertaining 

to distribution of a steroid to an athlete) 

to cover offenses involving any 

controlled substance. Specifically, the 

proposed amendment defines ‘‘masking 

agent’’ as ‘‘a product added to, or taken 

with, an anabolic steroid to prevent the 

detection of the anabolic steroid in an 

individual’s body.’’ However, masking 

agents also can be taken to prevent the 

detection of other controlled substances. 

The Commission requests comment 

regarding whether it should expand the 

definition of masking agent, and thus 

application of the enhancement, in a 

manner that covers all controlled 

substances, not just anabolic steroids. 

Similarly, there are controlled 

substances other than anabolic steroids 

that enhance an individual’s 

performance. The Commission requests 

comment regarding whether the 

proposed enhancement pertaining to 

distribution to an athlete should be 

expanded to cover offenses involving all 

types of controlled substances. 

(2) The Commission requests 

comment regarding whether penalties 

for steroid offenses should be based on 

quantities typical of offenses involving 

mid- and high-level dealers. For more 

serious drug types (e.g., heroin, cocaine, 

marihuana), the Drug Quantity Table in 

§ 2D1.1(c) provides an offense level of 

26 for quantities typical of mid-level 

dealers and an offense level of 32 for 

quantities typical of high-level dealers. 

These levels also correspond to the 

statutory mandatory minimum penalties 

for mid- and high-level dealers. 

Although there are no statutory 

mandatory minimum penalties 

establishing thresholds for steroid 

offenses, the Commission has been 

informed that a steroids dealer who 

provides the equivalent of one complete 

cycle to 10 customers is considered to 

be a mid-level dealer, and a dealer who 

provides the equivalent of one complete 

cycle to 30 customers is considered to 

be a high-level dealer. Currently, offense 

levels in the Drug Quantity Table for 

anabolic steroids and other Schedule III 

substances begin at level 6 and are 

‘‘capped’’ at level 20. Should the 

Commission provide a penalty structure 

within this range that targets offenses 

involving mid- and high-level steroid 

dealers, and if so, what offense levels 

should correspond to a mid-level dealer 

and to a high-level dealer? 

B. Proposed Non-Emergency 

Amendments 

1. Immigration 

Synopsis of Proposed Amendment: 

This four part proposed amendment 

addresses issues involving immigration 

offenses. These issues were identified 

through review of HelpLine calls to the 

Commission, feedback from training 

seminars, receipt of public comment, 

and information staff gathered from an 

immigration roundtable discussion. Part 

One of the proposed amendment 

addresses issues relating to offenses 

sentenced under § 2L1.1 (Smuggling, 

Transporting, or Harboring an Unlawful 

Alien). Part Two is a proposal to amend 

§ 2L2.1 (Trafficking in a Document 

Relating to Naturalization, Citizenship, 

or Legal Resident Status, or a United 

States Passport; False Statement in 

Respect to the Citizenship or 

Immigration Status of Another; 

Fraudulent Marriage to Assist Alien to 

Evade Immigration Law) and § 2L2.2 

(Fraudulently Acquiring Documents 

Relating to Naturalization, Citizenship, 

or Legal Resident Status for Own Use; 

False Personation or Fraudulent 

Marriage by Alien to Evade Immigration 

Law; Fraudulently Acquiring or 

Improperly Using a United States 

Passport). Part Three addresses issues 

relating to offenses sentenced under 

§ 2L1.2 (Unlawfully Entering or 

Remaining in the United States). Part 

Four presents issues for comment 

regarding the proposed amendment. 

1. Section 2L1.1 (Smuggling, 

Transporting, or Harboring an Unlawful 

Alien) 

This part of the proposed amendment 

covers offenses sentenced under § 2L1.1 

(Smuggling, Transporting, or Harboring 

an Unlawful Alien). 

A. National Security Concerns 

Currently, § 2L1.1(a)(1) provides a 

base offense level of level 23 if the 

defendant was convicted under 8 U.S.C. 

1327 of a violation involving an alien 

who previously was deported after a 

conviction for an aggravated felony. 

Title 8, United States Code, section 

1327, provides a statutory maximum 

term of imprisonment of 10 years for 

cases involving aiding or assisting 

certain aliens who pose a heightened 

risk to the safety of the citizens of the 

United States. However, § 2L1.1(a)(1) 

only applies to a limited subgroup of 

those convicted under § 1327. This 

proposal provides three options to 

increase punishment for those 

defendants who assist ‘‘inadmissible 

aliens’’ in illegally entering the United 

States. All options retain the current 

base offense level of 23 for a defendant 

who has a conviction under 8 U.S.C. 

1327 in a case in which the violation 

involved an alien ‘‘who previously was 

deported after a conviction for an 

aggravated felony.’’ Option One 

provides a base offense level of 25 for 

a defendant who is convicted of 8 U.S.C. 

1327 involving an alien who is 

inadmissable because of ‘‘security or 

related grounds’’, as defined in 8 U.S.C. 

1182(a)(3). Option Two provides a 

specific offense characteristic with an 

increase of [2–6] levels for defendants 

who smuggle, transport, or harbor an 

alien who was inadmissible under 8 

U.S.C. 1182(a)(3). This option is 

relevant conduct based. 

B. Number of Aliens 

The proposed amendment provides 

two options to amend § 2L1.1(b)(2) 

regarding the number of aliens involved 

in the offense. The first option 

maintains the current structure of the 

table, which provides a three-level 

increase for offenses involving six to 24 

aliens, a six-level increase for offenses 

involving 25 to 99 aliens, and a ninelevel increase for offenses involving 100 

or more aliens. Option One amends the 

table to provide a nine-level increase for 

offenses involving 100 to 199 aliens, a 

[12]-level increase for offenses involving 

200 to 299 aliens, and a [15]-level 

increase for offenses involving 300 or 

more aliens. Option Two, in part 

mirrors Option One by providing the 

same increases at the top end of the 

table for offenses involving 100 or more 

aliens. However, Option Two also 

provides smaller categories at the low 

end of the table. Offenses involving six 

to [15] aliens would receive an increase 

of three levels, [16 to 49] aliens would 

receive an increase of [six] levels, and 

[50 to 99] aliens would receive an 

increase of [nine] levels. 

C. Endangerment of Minors 

The proposed amendment presents 

two options and an issue for comment 

to address offenses in which an alien 


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minor was smuggled, harbored, or 

transported. Option One provides a 

[2][4][6] level increase if the defendant 

smuggled, transported, or harbored a 

minor unaccompanied by the minor’s 

parent. Option two provides a graduated 

increase, based upon the age of the 

minor smuggled, harbored, or 

transported. A four-level increase is 

provided for a defendant who smuggles 

a minor under the age of 12 who is 

unaccompanied by his or her parent. A 

two-level increase is provided for a 

defendant who smuggles a minor 

unaccompanied by his or her parent 

who has attained the age of 12 years, but 

has not attained the age of 16 years. 

D. Offenses Involving Death 

The amendment proposes several 

changes to the guideline in cases in 

which death occurred. First, the 

proposed amendment removes the 

increase of eight levels ‘‘if death 

resulted’’ from the current specific 

offense characteristic addressing bodily 

injury and places this increase in a 

stand alone specific offense 

characteristic. This new specific offense 

characteristic would provide an increase 

of [10] levels. Providing a separate 

specific offense characteristic for death 

allows for cumulative enhancements in 

a case in which both bodily injury and 

death occur. Additionally, the cross 

reference at § 2L1.1(c)(1) is expanded to 

cover deaths other than murder, if the 

resulting offense level is greater than the 

offense level determined under § 2L1.1. 

E. Abducting Aliens, or Holding Aliens 

for Ransom 

A [four]-level increase and a 

minimum offense level of [23] is 

proposed for cases in which an alien 

was kidnapped, abducted, or unlawfully 

restrained, or if a ransom demand was 

made. This proposed amendment 

addresses the concern about cases in 

which the unlawful aliens are coerced, 

with or without the use of physical 

force, or even with direct threats, into 

remaining in ‘‘safe houses’’ for long 

periods of time through coercion, 

implied threat, or deception. This is 

done so that the smugglers can get more 

money from the families of the aliens or 

so they will provide inexpensive labor. 

Currently, this conduct is not covered 

by § 3A1.3 (Restraint of Victim) because 

that guideline only covers ‘‘physical 

restraint’’. The extent of the increase 

(four levels) is consistent with a similar 

enhancement in subsection (b)(7)(B) of 

§ 2A4.1 (Kidnapping, Abduction, 

Unlawful Restraint) and the minimum 

offense level of 23 is consistent with 

§ 2A4.2 (Demanding or Receiving 

Ransom Money), which provides a base 

offense level of 23 for such offenses. 

2. Sections 2L2.1 (Trafficking in a 

Document Relating to Naturalization, 

Citizenship, or Legal Resident Status, or 

a United States Passport; etc.) and 2L2.2 

(Fraudulently Acquiring Documents 

Relating to Naturalization, Citizenship, 

or Legal Resident Status for Own Use; 

etc.) 

This part of the proposed amendment 

covers offenses sentenced under 

§§ 2L2.1 (Trafficking in a Document 

Relating to Naturalization, Citizenship, 

or Legal Resident Status, or a United 

States Passport; etc.) and 2L2.2 

(Fraudulently Acquiring Documents 

Relating to Naturalization, Citizenship, 

or Legal Resident Status for Own Use; 

etc.) 

A. Number of Documents 

The proposed amendment provides 

two options in § 2L2.1 to amend the 

specific offense characteristic involving 

the number of documents and passports 

involved in the offense. The two options 

are identical to the two options 

presented under § 2L1.1 (Smuggling, 

Transporting, or Harboring an Unlawful 

Alien) to amend the specific offense 

characteristic (b)(2) regarding the 

number of aliens involved in the 

offense. The first option maintains the 

current structure of the table, which 

provides a three-level increase for 

offenses involving six to 24 documents, 

a six-level increase for offenses 

involving 25 to 99 documents, and a 

nine-level increase for offenses 

involving 100 or more documents. 

Option one amends the table to provide 

a nine-level increase for offenses 

involving 100 to 199 documents, a [12]- 

level increase for offenses involving 200 

to 299 documents, and a [15]-level 

increase for offenses involving 300 or 

more documents. Option two, in part 

mirrors option one by providing the 

same increases at the top end of the 

table for offenses involving 100 or more 

documents. However, option two also 

provides smaller categories at the low 

end of the table. Offenses involving six 

to [15] documents would receive an 

increase of [three] levels, [16 to 49] 

documents would warrant an increase 

of [six] levels, and [50 to 99] documents 

would receive an increase of [nine] 

levels. 

B. Fraudulently Obtaining or Using 

United States Passports or Foreign 

Passports 

The proposed amendment provides a 

new specific offense characteristic at 

§ 2L2.1(b)(5)(A) that provides a fourlevel increase in a case in which the 

defendant fraudulently used or obtained 

a United States passport. The same 

specific offense characteristic was 

added to § 2L2.2, effective November 1, 

2004. Addition of this specific offense 

characteristic promotes proportionality 

between the document fraud guidelines, 

§§ 2L2.1 and 2L2.2. In addition, the 

proposed amendment also provides, at 

§ 2L2.1(b)(1)(B) and § 2L2.2(b)(3)(B), a 

two-level increase if the defendant 

fraudulently obtained or used a foreign 

passport. 

3. § 2L1.2 (Unlawfully Entering or 

Remaining in the United States) 

This part of the proposed amendment 

addresses issues relating to offenses 

sentenced under § 2L1.2 (Unlawfully 

Entering or Remaining in the United 

States). 

A. Alternative Approaches to 

Sentencing Under § 2L1.2 

The current structure of § 2L1.2 

requires the court, using the ‘‘categorical 

approach’’, to assess whether a prior 

conviction qualifies for a particular 

category under the guideline. This 

analysis is often complicated by lack of 

documentation, competing case law 

decisions, and the volume of cases. In 

addition, § 2L1.2 contains different 

definitions of covered offenses from the 

statute. Courts, then, are faced with 

making these assessments multiple 

times in the same case. The proposed 

amendment provides five options to 

address the complexity of this 

guideline. 

The first, second, and third options 

amend the structure of § 2L1.2 by using 

the definition of aggravated felony in 

combination with the length of the 

sentence imposed for that prior felony 

conviction. Option one provides a 16- 

level increase for an aggravated felony 

in which the sentence of imprisonment 

imposed exceeded 13 months; a 12-level 

increase for an aggravated felony in 

which the sentence of imprisonment 

imposed was less than 13 months; and 

an eight-level increase for all other 

aggravated felonies. Option two 

provides a 16-level increase for an 

aggravated felony in which the sentence 

of imprisonment imposed exceeded two 

years; a 12-level increase for an 

aggravated felony in which the sentence 

of imprisonment imposed was at least 

one year, but less than two years; and 

an 8 level increase for all other 

aggravated felonies. Option three, 

mirroring the criminal history 

guidelines, provides a 16-level increase 

for an aggravated felony in which the 

sentence imposed exceeded 13 months; 

a 12-level increase for an aggravated 

felony in which the sentence imposed 


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was at least 60 days but did not exceed 

13 months; and an 8 level increase for 

all other aggravated felonies. 

The fourth option maintains the 

current structure of § 2L1.2, except that 

the categories of offenses delineated 

under this guideline are defined by 8 

U.S.C.1101(a)(43), the statute providing 

definitions for ‘‘aggravated felonies’’. 

Additionally, this option provides use 

of length of sentence of imprisonment 

imposed in conjunction with ‘‘crime of 

violence’’ to further distinguish between 

the numerous types of prior convictions 

that fall within this category. 

Finally, the fifth option provides an 

increased base offense level and a 

reduction if the prior conviction is not 

a felony. 

4. Issues for Comment 

Part 4 of the proposed amendment 

sets forth multiple issues for comment 

regarding the immigration guidelines 

and the proposed amendment. 

Proposed Amendment: 

Part 1: § 2L1.1 

[Please Note: For ease of presentation, the 

proposed amendments set forth in Part 1, 

Subparts A through E, are drafted 

independently of each other. If the 

Commission were to vote to adopt an 

amendment from each Subpart, technical and 

conforming amendments would be made to 

ensure proper redesignations of subsections 

and application notes.] 

A. National Security Concerns 

[Option 1: Section 2L1.1 is amended 

by redesignating subsections (a)(1) and 

(a)(2) as subsections (a)(2) and (a)(3), 

respectively; and by inserting after 

‘‘Level:’’ the following: 

‘‘(1) [25], if the defendant was 

convicted under 8 U.S.C. 1327 of a 

violation involving an alien who was 

inadmissible under 8 U.S.C. 

1182(a)(3);’’; and in subsection (a)(3), as 

redesignated by this amendment, by 

striking ‘‘12’’ and inserting ‘‘[12][14]’’. 

The Commentary to § 2L1.1 captioned 

‘‘Application Notes’’ is amended by 

redesignating Notes 2 through 6 as 

Notes 3 through 7, respectively; and by 

inserting after Note 1 the following: 

‘‘2. Application of Subsection (a)(1).—

Subsection (a)(1) applies in cases in 

which the defendant is convicted under 

18 U.S.C. 1327 of knowingly smuggling 

certain aliens inadmissible under 8 

U.S.C. 1182(a)(3). Section 1327 requires 

that the defendant know that the alien 

is ineligible to be admitted into the 

United States, however, it does not 

require that the defendant have specific 

knowledge as to why the defendant is 

ineligible for admission.’’.] 

[Option 2 (for national security): 

Section 2L1.1 is amended by 

redesignating subsections (b)(3) through 

(b)(6) as subsections (b)(4) through 

(b)(7), respectively; and by inserting 

after subsection (b)(2) the following: 

‘‘(3) If the defendant smuggled, 

transported, or harbored an alien who 

was inadmissible under 8 U.S.C. 

1182(a)(3), increase by [2][4][6] levels.’’.] 

B. Number of Aliens 

[Option 1: Section 2L1.1(b)(2) is 

amended by striking subdivision (C) and 

inserting the following: 

‘‘(C) 100–199 add 9 

(D) 200–299 add [12] 

(E) 300 or more add [15].’’.] 

[Option 2: Section 2L1.1(b)(2) is 

amended by striking subdivisions (A) 

through (C) and inserting the following: 

‘‘(A) 6–[15] add 3 

(B) [16–49] add [6] 

(C) [50–99] add [9] 

(D) [100–199] add [12] 

(E) [200–299] add [15] 

(F) [300 or more] add [18].’’.] 

The Commentary to § 2L1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 4 by inserting ‘‘Application of 

Subsection (b)(2).—’’ before ‘‘If’’; and by 

striking ‘‘100’’ and inserting ‘‘300’’. 

C. Endangerment of Minors 

Section 2L1.1 is amended by 

redesignating subsections (b)(3) through 

(b)(6) as subsections (b)(4) through 

(b)(7), respectively; and by inserting the 

following after subsection (b)(2): 

[Option 1: 

‘‘(3) If the defendant smuggled, 

transported, or harbored a minor who 

was unaccompanied by the minor’s 

parent, increase by [2][4][6] levels.’’.] 

[Option 2: 

‘‘(3) If (A) the defendant smuggled, 

transported, or harbored a minor who 

was unaccompanied by the minor’s 

parent; and (B) the minor (i) had not 

attained the age of 12 years, increase by 

[4] levels; or (ii) had attained the age of 

12 years but had not attained the age of 

16 years, increase by [2] levels.’’.] 

D. Offenses Involving Death 

Subsection (b)(6) is amended by 

striking ‘‘died or’’; by striking ‘‘Death 

or’’; by redesignating subdivisions (1) 

through (3) as subdivisions (A) through 

(C), respectively; by inserting a period 

after ‘‘6 levels’’; and by striking 

subdivision (4). 

Section 2L1.1 is amended by inserting 

after subsection (b)(6) the following: 

‘‘(7) If the offense resulted in the 

death of any person, increase by [10] 

levels.’’. 

Subsection 2L1.1 is amended by 

striking subsection (c) and inserting the 

following: 

‘‘(c) Cross Reference 

(1) If death resulted, apply the 

appropriate homicide guideline from 

Chapter Two, Part A, Subpart 1, if the 

resulting offense level is greater than 

that determined under this guideline.’’. 

E. Abducting Aliens or Holding Aliens 

for Ransom 

Section 2L1.1(b) is amended by 

adding at the end the following: 

‘‘(7) If an alien was kidnapped, 

abducted, or unlawfully restrained, or if 

a ransom demand was made, increase 

by [4] levels. If the resulting offense 

level is less than level [23], increase to 

level [23].’’. 

Part 2: §§ 2L2.1 and 2L2.2 

A. Number of Documents 

[Option 1: Subsection 2L2.1(b)(2) is 

amended by striking subdivision (C) and 

inserting the following: 

‘‘(C) 100–199 add 9 

(D) 200–299 add [12] 

(E) 300 or more add [15].’’.] 

[Option 2: Section 2L2.1(b)(2) is 

amended by striking subdivisions (A) 

through (C) and inserting the following: 

‘‘(A) 6–[15] add 3 

(B) [16–49] add [6] 

(C) [50–99] add [9] 

(D) [100–199] add [12] 

(E) [200–299] add [15] 

(F) [300 or more] add [18].’’.] 

The Commentary to § 2L2.1 captioned 

‘‘Application Notes’’ is amended in 

Note 5 by inserting ‘‘Application of 

Subsection (b)(2).—’’ before ‘‘If’’; and by 

striking ‘‘100’’ and inserting ‘‘300’’. 

B. Fraudulently Obtaining or Using 

United States Passports or Foreign 

Passports 

Section 2L2.1(b) is amended by 

adding at the end the following: 

‘‘(5) If the defendant fraudulently 

obtained or used (A) a United States 

passport, increase by 4 levels; or (B) a 

foreign passport, increase by 2 levels.’’. 

Section 2L2.2(b)(3) is amended by 

inserting ‘‘(A)’’ after ‘‘used’’ and by 

inserting ‘‘; or (B) a foreign passport, 

increase by 2 levels’’ after ‘‘4 levels’’. 

Part 3: § 2L1.2 

[Option 1: Section 2L1.2(b)(1) is 

amended by striking subdivisions (A) 

and (B) and inserting the following: 

‘‘(A) a conviction for an aggravated 

felony for which a sentence of 

imprisonment exceeding 13 months was 

imposed, increase by 16 levels; 

‘‘(B) a conviction for an aggravated 

felony for which a sentence of 

imprisonment of 13 months or less was 

imposed, increase by 12 levels;’’; and in 

subdivision (C) by inserting ‘‘not 

covered by subdivision (b)(1)(A) or 

(b)(1)(B)’’ after ‘‘felony’’.] 


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(Option 2: Section 2L1.2(b)(1) is 

amended by striking subdivisions (A) 

and (B) and inserting the following: 

‘‘(A) a conviction for an aggravated 

felony for which the sentence imposed 

exceeded 2 years, increase by 16 levels; 

(B) a conviction for an aggravated 

felony for which the sentence imposed 

was at least 12 months but did not 

exceed 2 years, increase by 12 levels;’’; 

and in subdivision (C) by inserting ‘‘not 

covered by subdivision (b)(1)(A) or 

(b)(1)(B)’’ after ‘‘felony’’.] 

[Option 3: Section 2L1.2(b)(1) is 

amended by striking subdivisions (A) 

and (B) and inserting the following: 

‘‘(A) a conviction for an aggravated 

felony for which the sentence imposed 

exceeded 13 months, increase by 16 

levels; 

(B) a conviction for an aggravated 

felony for which the sentence imposed 

was at least 60 days but did not exceed 

13 months, increase by 12 levels;’’; and 

in subdivision (C) by inserting ‘‘not 

covered by subdivision (b)(1)(A) or 

(b)(1)(B)’’ after ‘‘felony’’.] 

[Please Note: The following proposed 

Commentary amendments would be used 

with Options 1, 2, and 3)]: 

The Commentary to § 2L1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by striking subdivisions (B)(i) 

through (B)(viii) and inserting the 

following: 

‘‘(i) ‘Aggravated felony’ has the 

meaning given that term in section 

101(a)(43) of the Immigration and 

Nationality Act (8 U.S.C. 1101(a)(43)), 

without regard to the date of conviction 

for the aggravated felony. 

(ii) ‘Aggravated felony not covered by 

subdivision (b)(1)(A) or (b)(1)(B)’ means 

an aggravated felony for which the 

sentence imposed was a sentence other 

than imprisonment (e.g., probation). 

(iii) ‘Felony’ means any Federal, State, 

or local offense punishable by 

imprisonment for a term exceeding one 

year. 

(iv) ‘Sentence of imprisonment’ has 

the meaning given that term in 

Application Note 2 and subsection (b) of 

§ 4A1.2 (Definitions and Instructions for 

Computing Criminal History), without 

regard to the date of the conviction. The 

length of the sentence imposed includes 

any term of imprisonment given upon 

revocation of probation, parole, or 

supervised release.’’. 

The Commentary to § 2L1.2 captioned 

‘‘Application Notes’’ is amended by 

striking Notes 2 and 3; and by 

redesignating Notes 4 through 6 as 

Notes 2 through 4, respectively. 

[Option 4: Section 2L1.2(b) is 

amended in subdivision (A) by striking 

‘‘a felony’’ and inserting ‘‘an aggravated 

felony’’; and by inserting ‘‘for which the 

sentence imposed exceeded 13 months’’

after ‘‘violence’’; in subdivision (B) by 

striking ‘‘a felony’’ and inserting ‘‘an 

aggravated felony that is a (i)’’; by 

striking the comma after ‘‘less’’ and 

inserting ‘‘; (ii) crime of violence for 

which the sentence imposed was 13 

months or less,’’; and in subdivision (C) 

by inserting ‘‘not covered by 

subdivision (b)(1)(A) or (b)(1)(B)’’ after 

‘‘felony’’. 

The Commentary to § 2L1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by striking subdivisions (B)(ii) 

through (B)(vi) and inserting the 

following: 

‘‘(ii) ‘Child pornography offense’ is an 

offense described in 8 U.S.C. 

1101(a)(43)(I). 

(iii) ‘Crime of violence’ has the 

meaning given that term in 18 U.S.C. 16. 

(iv) ‘Drug trafficking offense’ has the 

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

924(c). 

(v) ‘Firearms offense’ is an offense 

described in 8 U.S.C. 1101(a)(43)(C) and 

(E). 

(vi) ‘Human trafficking offense’ is an 

offense described in 8 U.S.C. 

1101(a)(43)(K).’’; and by striking 

subdivision (B)(viii) and inserting the 

following: 

‘‘(viii) ‘National security or terrorism 

offense’ is an offense described in 8 

U.S.C. 1101(a)(43)(L).’’.] 

[Option 5: Section 2L1.2 is amended 

in subsection (a) by striking ‘‘8’’ and 

inserting ‘‘[16][20][24]’’; and by striking 

subsection (b)(1) and inserting the 

following: 

‘‘(1) If the defendant does not have a 

prior conviction for a felony, decrease 

by [8][6][4] levels.’’. 

The Commentary to § 2L1.2 captioned 

‘‘Application Notes’’ is amended by 

striking Notes 1, 3, 4, and 6; by 

redesignating Notes 2 and 5 as Notes 1 

and 2, respectively. 

Part 4. Issues for Comment 

(1) The proposed amendment to 

§ 2L1.1 provides options for addressing 

defendants who smuggle, transport, or 

harbor any alien who is inadmissible 

under 8 U.S.C. 1182(a)(3). Certain 

sections of 8 U.S.C. 1182(a)(3), however, 

are very broad, such as subsection 

(a)(3)(A)(iii) (pertaining to 

inadmissibility due to an intent to 

commit ‘‘any other unlawful activity’’), 

or are unrelated to the national security 

risks associated with terrorism, such as 

subsections (a)(3)(D) (pertaining to 

membership in a totalitarian party) and 

(a)(3)(E) (pertaining to participants in 

Nazi persecutions). The Commission 

requests comment regarding whether it 

should more specifically identify, for 

purposes of either a heightened base 

offense level or a specific offense 

characteristic, the subsections of 8 

U.S.C. 1182(a)(3) that pertain to 

terrorism or to other national security 

provisions. For example, should either a 

heightened base offense level or a 

specific offense characteristic be limited 

to 8 U.S.C. 1182(a)(3)(A)(i) (pertaining 

to espionage or sabotage), (a)(3)(A)(iii) 

(pertaining to overthrow of the United 

States Government), (a)(3)(B) (pertaining 

to terrorist activities), and (a)(3)(F) 

(pertaining to association with terrorist 

organizations)? 

Additionally, the Commission 

requests comment regarding whether 

§ 2L1.1 should provide a heightened 

base offense level if the defendant were 

convicted under 8 U.S.C. 1327 (Aiding 

or assisting certain aliens to enter) and 

a specific offense characteristic that 

would apply cumulatively if the 

defendant smuggled, transported, or 

harbored an alien the defendant knew to 

be inadmissible under 8 U.S.C. 

1182(a)(3). 

(2) The proposed amendment 

provides new specific offense 

characteristics that are defendant-based 

(i.e., the defendant’s liability is limited 

to the defendant’s own conduct and 

conduct that the defendant aided or 

abetted, counseled, commanded, 

induced, procured, or willfully caused) 

rather than offense-based (i.e., expanded 

relevant conduct). See proposed 

amendment, § 2L1.1(b)(3) (pertaining to 

smuggling inadmissible aliens) and 

(b)(4) (pertaining to smuggling a minor 

unaccompanied by the minor’s parent). 

The Commission requests comment 

regarding whether these specific offense 

characteristics should be offense based 

rather than defendant based. 

Alternatively, should the proposed 

enhancement in § 2L1.1(b)(10) 

(pertaining to kidnapping an alien) be 

defendant-based rather than offensebased, as it is currently proposed? 

(3) The proposed amendment to 

§ 2L1.1 includes an enhancement for a 

defendant who smuggled, transported, 

or harbored a minor who was 

unaccompanied by the minor’s parent. 

The Commission requests comment 

regarding whether such conduct is 

better addressed in the context of 

§ 3A1.1 (Hate Crime Motivation or 

Vulnerable Victim). 

(4) The Commission requests 

comment regarding whether it should 

increase the base offense levels in 

§§ 2L2.1 and 2L2.2. 

(5) Currently, § 2L2.2 provides an 

increase of four levels if the defendant 

fraudulently obtained or used a United 

States passport. The proposed 

amendment would add this 


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enhancement to § 2L2.1 and also 

provide an enhancement of two levels 

in both §§ 2L2.1 and 2L2.2 if the 

defendant fraudulently obtained or used 

a foreign passport. As an alternative to 

the proposed amendment, the 

Commission requests comment 

regarding whether it should provide a 

[four-level] enhancement in both 

§§ 2L2.1 and 2L2.2 regardless of 

whether the passport was issued by the 

United States or a foreign country. 

Additionally, the Commission requests 

comment regarding whether other types 

of documents should be included in the 

enhancement. If so, what types of 

documents should be included? For 

example, should the proposed 2-level 

enhancement also apply in the case of 

a defendant who fraudulently obtains or 

used a driver’s license? 

Additionally, the Commission 

requests comment regarding whether it 

should provide an application note in 

§§ 2L2.1 and 2L2.2 that instructs the 

court not to apply § 2L2.1(b)(2), 

proposed § 2L2.1(b)(5), or § 2L2.2(b)(3) 

if the documents are so obviously 

counterfeit that they are unlikely to be 

accepted even if subjected to only 

minimal scrutiny. The guidelines 

currently provide such an application 

note in § 2B5.1 (Offenses Involving 

Counterfeit Bearer Obligations of the 

United States). 

(6) The Commission requests 

comment regarding whether the prior 

convictions used to increase a 

defendant’s offense level under § 2L1.2 

should be subject to the rules of 

criminal history found at § 4A1.2. For 

example, if a prior conviction is too old 

to be counted for the purposes of 

criminal history, should that prior 

conviction also be too old to count for 

the purposes of § 2L1.2? Alternatively, 

should such a conviction be the basis 

for a reduction? 

(7) Before May 1997, the table for 

number of aliens in § 2L1.1(b)(2) 

provided increases of two level 

increments. In May 1997, in response to 

a directive to increase the enhancement 

in § 2L1.1(b)(2) by at least 50 percent 

(see section 203 of the Illegal 

Immigration Reform and Immigrant 

Responsibility Act of 1996, Pub. L. 104–

208), the Commission amended the 

table to provide increases of three level 

increments. At that time, the 

Commission also similarly amended the 

table in § 2L2.1 pertaining to the 

number of documents. The Commission 

requests comment regarding whether it 

should amend these tables to provide 

increases of two level increments. Any 

such change would be done in a manner 

that complies with the directive in the 

Illegal Immigration Reform and 

Immigrant Responsibility Act of 1996. 

(8) As an alternative to Option 5 for 

amending § 2L1.2, the Commission 

requests comment regarding whether it 

should provide a guideline that is in 

essence an inversion of the current 

structure of § 2L1.2. Currently, § 2L1.2 

provides increases based on the type of 

prior conviction. Should the 

Commission consider multiple 

reductions based on the type of prior 

conviction? 

2. Firearms 

Synopsis of Proposed Amendment: 

This proposed amendment addresses 

various issues pertaining to the firearms 

guideline, § 2K2.1 (Unlawful Receipt, 

Possession, or Transportation of 

Firearms or Ammunition; Prohibited 

Transactions Involving Firearms or 

Ammunition), and to other firearm 

provisions in the guidelines. 

First, the proposed amendment 

addresses offenses involving a weapon 

described in 18 U.S.C. 921(a)(30), which 

expired on September 13, 2004. 

Although possession of such a weapon 

is no longer covered by 18 U.S.C. 921, 

possession of certain weapons, 

particularly by a prohibited person, may 

still be considered an aggravating factor 

warranting an increase in the base 

offense level. The proposed amendment 

presents two options for providing 

increases for possession of weapons 

previously covered by 18 U.S.C. 

921(a)(30). Currently, § 2K2.1 has four 

base offense level provisions that are 

triggered by the offense involving such 

a weapon. Under Option One, each of 

the four base offense level provisions 

would be based on whether ‘‘the offense 

involved a firearm that is a highcapacity, semiautomatic firearm.’’

‘‘High-capacity, semiautomatic firearm’’

would be defined as ‘‘a semiautomatic 

firearm that has a magazine capacity of 

more than [15] cartridges.’’ Option Two 

would provide an upward departure if 

the offense involved a high-capacity 

semiautomatic firearm. The proposed 

amendment also presents an issue for 

comment regarding this definition and 

whether any similar changes should be 

made to § 5K2.17 (High-capacity, 

Semiautomatic Firearms). 

Second, the proposed amendment 

provides a [2-][4-]level enhancement in 

§ 2K2.1 if the defendant engaged in the 

trafficking of [2–24] firearms, and a [6- 

][8-] level enhancement if the defendant 

engaged in the trafficking of [25 or 

more] firearms. Although there is no 

definition of trafficking in the firearm 

statutes, the proposed amendment 

borrows from the statutory definition of 

‘‘traffic’’ found in other sections of the 

United States Code (see, e.g., 18 U.S.C. 

1028(d)(12), and 2318). The proposed 

amendment, however, modifies the 

statutory definition in two ways. The 

first modification pertains to 

consideration and two options are 

presented. Option One would result in 

application of the enhancement 

whenever a firearm was transferred as 

consideration for anything of value. 

(This option would be consistent with 

the statutory definitions of ‘‘traffic’’.) 

Option Two would result in application 

of the enhancement only if the transfer 

was made for pecuniary gain. The 

second modification is to include 

ongoing schemes to transport or transfer 

firearms to another individual, even if 

nothing of value was exchanged. The 

proposed amendment also presents an 

issue for comment regarding the 

proposed definition of ‘‘trafficking’’. 

Third, the proposed amendment 

modifies § 2K2.1(b)(4) to increase the 

penalties for offenses involving altered 

or obliterated serial numbers. Under the 

proposed amendment, a 2-level 

enhancement would continue to apply 

to offenses involving a stolen firearm. 

However, the proposed amendment 

would provide a 4-level enhancement 

for offenses involving altered or 

obliterated serial numbers. The 4-level 

increase reflects the difficulty in tracing 

firearms with altered or obliterated 

serial numbers. The proposed 

amendment also makes slight technical 

changes to the corresponding 

application note. 

Fourth, the proposed amendment 

addresses a circuit conflict pertaining to 

application of §§ 2K2.1(b)(5) and (c)(1), 

specifically with respect to the meaning 

of use of a firearm ‘‘in connection with’’

another offense in the context of 

burglary and drug offenses. The majority 

of circuits have adopted a standard 

consistent with Smith v. United States, 

508 U.S. 223 (1993), in which the 

Supreme Court determined the scope of 

‘‘in relation to’’ as that term is used in 

18 U.S.C. 924(c). The proposed 

amendment accordingly provides that 

§§ 2K2.1(b)(5) and (c)(1) apply if the 

firearm facilitated, or had the potential 

of facilitating, another felony offense or 

another offense, respectively. However, 

the courts are split as to how this 

standard then applies with respect to 

burglary and drug offenses. For ease of 

presentation, the proposed amendment 

presents options in terms of whether the 

presence of a firearm by mere 

coincidence during the course of a 

burglary or drug offense ‘‘facilitated or 

had the potential of facilitating’’ another 

offense. Option One provides that the 

mere presence of a firearm during the 

course of burglary or a drug offense is 


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sufficient because the firearm 

emboldens the defendant. Option Two 

states that the mere presence of a 

firearm is not sufficient except in a drug 

offense. Accordingly, the enhancement 

in § 2K2.1(b)(5), or the cross reference in 

§ 2K2.1(c)(1) would not apply in the 

case of a defendant who takes a firearm 

during a burglary, but it would apply in 

a drug offense because the mere 

presence of a firearm in a drug offense 

increases the risk of violence. Option 

Three provides that the mere presence 

is not enough to trigger either 

§ 2K2.1(b)(5) or § 2K2.1(c)(1). (Please 

note that the proposed definitions of 

‘‘another felony offense’’ and ‘‘another 

offense’’, as well as the upward 

departure note, are not new—the 

proposed language is a technical 

reworking of current Application Notes 

4, 11, and 15.) 

Fifth, the proposed amendment 

modifies § 5K2.11 (Lesser Harms) to 

prohibit a downward departure in any 

case in which a defendant is convicted 

under 18 U.S.C. 922(g). 

Finally, the proposed amendment 

addresses the circuit conflict regarding 

whether pointing or waving a firearm at 

a specific person constitutes 

‘‘brandishing’’ or ‘‘otherwise using’’. 

The proposed amendment presents 

three options. Option One combines 

brandished and otherwise used with 

respect to firearms under the theory that 

the same risk of harm, and the same 

fear, exists whether a firearm is 

generally waved about or specifically 

pointed at a particular individual. 

Under this approach, otherwise using 

and brandishing with respect to a 

firearm would result in the same 

sentencing increase in §§ 2B3.1 

(Robbery) and 2B3.2 (Extortion by Force 

or Threat of Injury or Serious Damage). 

However, the proposed amendment 

would maintain the distinction between 

otherwise using or brandishing with 

respect to other dangerous weapons. 

Additionally, this option provides that 

generally waving a firearm would 

constitute otherwise used. Following 

this option, the proposed amendment 

presents an issue for comment regarding 

whether the Commission, if it adopts 

this approach, should make similar 

changes to other guidelines that have an 

enhancement for brandishing and 

otherwise using a firearm. Option Two 

presents the majority and minority 

circuit court views. The majority view 

holds that generally waiving or pointing 

a firearm constitutes brandishing but 

pointing a firearm at a specific 

individual to make an explicit or 

implicit threat, or as a means of forcing 

compliance, constitutes otherwise used. 

The minority view holds that pointing 

a firearm, even if it is pointed at a 

specific person, is brandishing. In the 

non-firearms context, otherwise used 

necessarily includes the most extreme 

thing that can be done with a weapon 

(i.e., using it to injure or attempt to 

injure a victim). Accordingly, these 

courts hold a firearm must similarly be 

used to injure or attempt to injure a 

victim in order to constitute otherwise 

used, and to hold otherwise would be to 

obliterate the guidelines’ definition of 

otherwise used. 

Proposed Amendment 

(A) 18 U.S.C. 921(a)(30) 

[Option 1: 

Section 2K2.1(a) is amended by 

striking subdivision (1) and inserting 

the following: 

‘‘(1) 26, if (A) the offense involved a 

firearm that is a high-capacity, 

semiautomatic firearm, or that is 

described in 26 U.S.C. 5845(a); and (B) 

the defendant committed any part of the 

instant offense subsequent to sustaining 

at least two felony convictions of either 

a crime of violence or a controlled 

substance offense;’’; by striking 

subdivision (3) and inserting the 

following: 

‘‘(3) 22, if (A) the offense involved a 

firearm that is a high-capacity, 

semiautomatic firearm, or that is 

described in 26 U.S.C. 5845(a); and (B) 

the defendant committed any part of the 

instant offense subsequent to sustaining 

one felony conviction of either a crime 

of violence or a controlled substance 

offense;’’; by striking subdivision (4)(B) 

and inserting the following: 

‘‘(B) the offense involved a firearm 

that is a high-capacity, semiautomatic 

firearm, or that is described in 26 U.S.C. 

5845(a); and the defendant (i) was a 

prohibited person at the time the 

defendant committed the instant 

offense; or (ii) is convicted under 18 

U.S.C. 922(d);’’; and by striking 

subdivision (5) and inserting the 

following: 

‘‘(5) 18, if the offense involved a 

firearm that is a high-capacity, 

semiautomatic firearm, or that is 

described in 26 U.S.C. 5845(a);’’. 

The Commentary to § 2K2.1 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by inserting after the paragraph 

that begins ‘‘ ‘Firearms’ has’’ the 

following: 

‘‘High-capacity, semiautomatic 

firearm’’ means a semiautomatic firearm 

that has a magazine capacity of more 

than [15] cartridges.’’.] 

[Option 2: 

Section 2K2.1(a) is amended in 

subdivision (1) by inserting ‘‘(A)’’ after 

‘‘26, if’’; by striking ‘‘or 18 U.S.C. 

921(a)(30),’’ and inserting a colon; and 

by inserting ‘‘(B)’’ before ‘‘the 

defendant’’; in subdivision (3) by 

inserting ‘‘(A)’’ after ‘‘22, if’’; by striking 

‘‘or 18 U.S.C. 921(a)(30),’’ and inserting 

a colon; and by inserting ‘‘(B)’’ before 

‘‘the defendant’’; in subdivision (4)(B) 

by striking ‘‘or 18 U.S.C. 921(a)(30)’’; 

and in subdivision (5) by striking ‘‘or 18 

U.S.C. 921(a)(30)’’. 

The Commentary to § 2K2.1 captioned 

‘‘Application Notes’’ is amended by 

striking Note 11, as redesignated by Part 

D of this proposed amendment, and 

inserting the following: 

‘‘11. Upward Departure Provision.’’—

An upward departure may be warranted 

in any of the following circumstances: 

(A) the offense involved a high-capacity, 

semiautomatic firearm; (B) the number 

of firearms substantially exceeded 200; 

(C) the offense involved multiple 

National Firearms Act weapons (e.g., 

machineguns, destructive devices), 

military type assault rifles, nondetectable (‘‘plastic’’) firearms (defined 

at 18 U.S.C. 922(p); (D) the offense 

involved large quantities of armorpiercing ammunition (defined at 18 

U.S.C. 921(a)(17)(B)); or (E) the offense 

posed a substantial risk of death or 

bodily injury to multiple individuals 

(see Application Note 8). For purposes 

of this guideline, ‘high-capacity, 

semiautomatic firearm’ means a 

semiautomatic firearm that has a 

magazine capacity of more than [15] 

cartridges.’’.] 

Issue for Comment: The proposed 

amendment uses as a basis for providing 

enhanced base offense levels or, 

alternatively, for an upward departure. 

The Commission requests comment 

regarding whether there is an alternative 

definition that it should consider. 

Additionally, are there other categories 

of firearms or types of firearms that 

should form the basis for either an 

enhanced base offense level or for an 

upward departure? Finally, should the 

Commission make similar changes to 

the definition of ‘‘high-capacity, 

semiautomatic firearm’’ in § 5K2.17 

(High-Capacity, Semiautomatic 

Firearms)? 

(B) Trafficking SOC 

Section 2K2.1(b) is amended by 

adding at the end the following: 

‘‘(7) If the defendant engaged in the 

trafficking of (A) [[2]–24] firearms, 

increase by [2][4] levels; or (B) [25 or 

more] firearms, increase by [6][8] 

levels.’’. 

The Commentary to § 2K2.1 captioned 

‘‘Application Notes’’, as amended by 

Part D of this proposed amendment, is 

amended by adding at the end the 

following: 


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‘‘13. Application of Subsection 

(b)(7).—

(A) Definition of ‘Trafficking’.—For 

purposes of subsection (b)(7), 

‘trafficking’ means transporting, 

transferring, or otherwise disposing of, 

[firearms][a firearm] to another 

individual, (i) [as consideration for 

anything of value][for pecuniary gain]; 

or (ii) as part of an ongoing unlawful 

scheme, even if nothing of value was 

exchanged. 

(B) Use of the Term ‘Defendant’.—

Consistent with § 1B1.3 (Relevant 

Conduct), the term ‘defendant’ limits 

the accountability of the defendant to 

the defendant’s own conduct and 

conduct that the defendant aided or 

abetted, counseled, commanded, 

induced, procured, or willfully 

caused.’’. 

Issue for Comment: The Commission 

requests comment regarding whether 

the definition of trafficking should be 

restricted to offenses in which the 

defendant knew, had reason to believe, 

or was wilfully blind to the fact, that the 

transfer would be to an individual 

whose possession or receipt would be 

unlawful. Additionally, should the 

definition include receiving firearms 

from another individual. 

(C) Stolen and Altered or Obliterated 

Serial Numbers 

Section 2K2.1(b) is amended by 

striking subdivision (4) and inserting 

the following: 

‘‘(4) (Apply the greater): 

(A) If any firearm was stolen, increase 

by 2 levels; or 

(B) If any firearm had an altered or 

obliterated serial number, increase by 4 

levels.’’. 

The Commentary to § 2K2.1 captioned 

‘‘Application Notes’’ is amended by 

striking Note 8, as redesignated by Part 

D of this amendment, and inserting the 

following: 

‘‘8. Application of Subsection (b)(4).—

(A) Interaction with Subsection 

(a)(7).—If the only offense to which 

§ 2K2.1 applies is 18 U.S.C. 922(i), (j), or 

(u), or 18 U.S.C. 924(l) or (m) (offenses 

involving a stolen firearm or stolen 

ammunition) and the base offense level 

is determined under subsection (a)(7), 

do not apply the adjustment in 

subsection (b)(4)(A). This is because the 

base offense level takes into account 

that the firearm or ammunition was 

stolen. However, it the offense involved 

a firearm with an altered or obliterated 

serial number, apply subsection 

(b)(4)(B). 

Similarly, if the offense to which 

§ 2K2.1 applies is 18 U.S.C. 922(k) or 26 

U.S.C. 5861(g) or (h) (offenses involving 

an altered or obliterated serial number) 

and the base offense level is determined 

under subsection (a)(7), do not apply the 

adjustment in subsection (b)(4)(B). This 

is because the base offense level takes 

into account that the firearm had an 

altered or obliterated serial number. 

However, it the offense involved a 

stolen firearm or stolen ammunition, 

apply subsection (b)(4)(A). 

(B) Knowledge or Reason to Believe.—

Subsection (b)(4) applies regardless of 

whether the defendant knew or had 

reason to believe that the firearm was 

stolen or had an altered or obliterated 

serial number.’’. 

(D) ‘‘In Connection with’’ in Burglary 

and Drug Offenses 

The Commentary to § 2K2.1 captioned 

‘‘Application Notes’’ is amended by 

striking Notes 4, 11, and 15; and by 

redesignating Notes 5 through 10 as 

Notes 4 through 9, respectively; and by 

redesignating Notes 12 through 14 as 

Notes 10 through 12, respectively.’’. 

The Commentary to § 2K2.1 captioned 

‘‘Application Notes’’, as amended by 

Part (B) of this amendment, is amended 

by adding at the end the following: 

‘‘14. ‘In Connection With’.—

(A) In General.—Subsections (b)(5) 

and (c)(1) apply if the firearm or 

ammunition facilitated, or had the 

potential of facilitating, another felony 

offense or another offense, respectively. 

[Option One (mere coincidence 

enough because emboldens defendant): 

(B) ‘Mere Coincidence’.—Subsection 

(b)(5) and (c)(1) apply in a case in which 

the firearm is present by mere 

coincidence because the firearm has the 

potential of facilitating another felony 

offense, or another offense, respectively. 

For example, subsections (b)(5) and 

(c)(1) would apply in a case in which a 

defendant who, during the course of a 

burglary, finds and takes the firearm, 

even if the defendant did not engage in 

any other conduct with that firearm 

during the course of the burglary. 

Similarly, in a case involving a drug 

offense, the mere presence of a firearm 

is sufficient for application of 

subsections (b)(5) and (c)(1).] 

[Option Two (mere coincidence not 

enough except in drug cases): 

(B) ‘Mere Coincidence’.—Except as 

provided in subdivision (C), application 

of subsection (b)(5) or (c)(1) requires 

that the firearm be present by more than 

mere coincidence. For example, neither 

subsection (b)(5) nor subsection (c)(1) 

would apply in a case in which a 

defendant who, during the course of a 

burglary, finds and merely takes the 

firearm, without engaging in any other 

conduct with that firearm during the 

course of the burglary. However, if the 

defendant subsequently engages in 

conduct that is separate and distinct 

from the initial taking of the firearm, 

subsection (b)(5) or subsection (c)(1) 

would apply. 

(C) Application in Drug Cases.—In a 

case involving a drug offense, the mere 

presence of a firearm is sufficient for 

application of subsections (b)(5) and 

(c)(1) because of the increased risk of 

violence when a firearm is present 

during a drug offense. For example, 

subsections (b)(5) and (c)(1) would 

apply in the case of a defendant who, in 

the course of a drug trafficking offense, 

keeps a firearm in close proximity to the 

drugs, to drug-manufacturing materials, 

or to drug paraphernalia.] 

[Option Three (mere coincidence not 

enough): 

(B) ‘Mere Coincidence’.—Application 

of subsection (b)(5) or (c)(1) requires 

that the firearm be present by more than 

mere coincidence. For example, neither 

subsection (b)(5) nor subsection (c)(1) 

would apply in a case in which a 

defendant who, during the course of a 

burglary, finds and merely takes the 

firearm, without engaging in any other 

conduct with that firearm during the 

course of the burglary. Similarly, in a 

case involving a drug offense, the mere 

presence of a firearm is not sufficient for 

purposes of applying subsection (b)(5) 

or (c)(1); there must be some indication 

that the firearm was used or possessed 

to protect the defendant engaged in the 

drug offense or to protect the drugs from 

theft.] 

[Please Note: Subdivisions (C) and (D) to 

be used with Options One, Two, and Three] 

(C) Definitions.—

‘Another felony offense’, for purposes 

of subsection (b)(5), means any Federal, 

State, or local offense, other than the 

explosive or firearms possession or 

trafficking offense, punishable by 

imprisonment for a term exceeding one 

year, regardless of whether a criminal 

charge was brought, or a conviction 

obtained. 

‘Another offense’, for purposes of 

subsection (c)(1), means any Federal, 

State, or local offense other than the 

explosive or firearms possession or 

trafficking offense. 

(D) Upward Departure Provision.—In 

a case in which the defendant used or 

possessed a firearm or explosive to 

facilitate another firearms or explosives 

offense (e.g., the defendant used or 

possessed a firearm to protect the 

delivery of an unlawful shipment of 

explosives), an upward departure under 

§ 5K2.6 (Weapons and Dangerous 

Instrumentalities) may be warranted.]’’. 


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(E) Lesser Harms and Felon in 

Possession 

Section 5K2.11 is amended in the 

second paragraph by adding at the end 

the following: 

‘‘However, lesser harms is not an 

appropriate basis for a downward 

departure in any case in which a 

defendant is convicted under 18 U.S.C. 

922(g), even if the possession of a 

firearm were brief or existed because the 

defendant was disposing, or attempting 

to dispose of, a firearm.’’. 

(F) ‘‘Brandished’’ or ‘‘Otherwise Used’’

[Option 1 (Combining Brandished and 

Otherwise Used plus modified majority 

view): 

The Commentary to § 1B1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 1 in subdivision (I) by adding at 

the end the following: 

‘‘For example, using a firearm or a bat 

to hit a victim would constitute 

‘otherwise used’. Additionally, with 

respect to a firearm, generally pointing 

or waving a firearm in a threatening 

manner constitutes ‘otherwise used’.’’. 

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

subdivision (B) by inserting 

‘‘brandished or’’ after ‘‘firearm was’’; 

and in subdivision (C) by striking 

‘‘brandished or’’ before ‘‘possessed,’’. 

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

subdivision (A)(ii) by inserting 

‘‘brandished or ‘‘ after ‘‘firearm was’’; 

and in subdivision (A)(iii) by striking 

‘‘brandished or’’ before ‘‘possessed’’.]. 

[Option 2 (presenting majority and 

minority views): 

[(Option 2A) (majority view): The 

Commentary to § 1B1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by striking subdivision (C) and 

inserting the following: 

‘‘(C) ‘Brandished’ with reference to a 

dangerous weapon (including a firearm) 

means (i) all or part of the weapon was 

displayed; (ii) a weapon was generally 

pointed or waved in a threatening 

manner; or (iii) 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. Although the dangerous weapon 

does not have to be directly visible, the 

weapon must be present.’’; and in 

subdivision (I) by adding at the end the 

following: 

‘‘Pointing a firearm at a specific 

individual, or group of individuals, to 

make an explicit or implicit threat, or as 

a means of forcing compliance, 

constitutes ‘otherwise used’.’’.] 

[Option 2B (Minority View): The 

Commentary to § 1B1.1 captioned 

‘‘Application Notes’’ is amended in 

subdivision (I) by adding at the end the 

following: 

‘‘Use of a dangerous weapon 

(including a firearm) to injure or attempt 

to injure a victim would constitute 

‘otherwise used’. For example, using a 

firearm or a bat to hit a victim would 

constitute ‘otherwise used’ but pointing 

a firearm at a specific individual would 

not constitute ‘otherwise used’.’’.] 

Issue for Comment: The proposed 

amendment provides an option for 

consolidating the enhancements for 

otherwise used and brandishing with 

respect to a case involving a firearm. 

The Commission requests comment 

regarding whether, if it adopts this 

approach in §§ 2B3.1 (Robbery) and 

2B3.2 (Extortion by Force or Threat of 

Injury or Serious Damage), it should 

also adopt this approach in §§ 2A2.2 

(Aggravated Assault) and 2E2.1 (Making 

or Financing an Extortionate Extension 

of Credit; Collecting an Extension of 

Credit by Extortionate Means). 

3. Steroids 

Synopsis of Proposed Amendment: 

This proposed amendment would 

repromulgate the proposed temporary, 

emergency amendment set forth in Part 

A of this Notice as a permanent 

amendment. The proposed amendment 

implements the directive in the United 

States Parole Commission Extension 

and Sentencing Commission Authority 

Act of 2005, Pub. L. 109–76, which 

requires the Commission, under 

emergency amendment authority, to 

implement section 3 of the Anabolic 

Steroid Control Act of 2004, Pub. L. 

108–358 (the ‘‘ASC Act’’). The ASC Act 

directs the Commission to ‘‘review the 

Federal sentencing guidelines with 

respect to offenses involving anabolic 

steroids’’ and ‘‘consider amending the 

* * * guidelines to provide for 

increased penalties with respect to 

offenses involving anabolic steroids in a 

manner that reflects the seriousness of 

such offenses and the need to deter 

anabolic steroid trafficking and use 

* * *.’’

The proposed amendment 

implements the directives by increasing 

the penalties for offenses involving 

anabolic steroids. It does so by changing 

the manner in which anabolic steroids 

are treated under § 2D1.1 (Unlawful 

Manufacturing, Importing, Exporting, or 

Trafficking (Including Possession with 

Intent to Commit These Offenses); 

Attempt or Conspiracy). Currently, one 

unit of an anabolic steroid ‘‘means a 10 

cc vial of an injectable steroid or fifty 

tablets.’’ The proposed amendment 

presents two options for increasing 

penalties. Option One bases the offense 

level in an anabolic steroid offense on 

the ‘‘actual’’ quantity of steroid involved 

in the offense and provides that one unit 

of an anabolic steroid means 

[25][50][100] mg of an anabolic steroid, 

regardless of the form involved in the 

offense (e.g., patch, cream, tablet, 

liquid). At 25 mg, sentencing penalties 

would be increased approximately 6–8 

levels above current offense levels, and 

would closely approximate a 1:1 ratio 

with other Schedule III substances. At 

50 mg, sentencing penalties would be 

increased approximately 4–6 levels 

above current offense levels, and at 100 

mg, sentencing penalties would be 

increased approximately 2–4 levels 

above current offense levels. This option 

also includes a rebuttable presumption 

that the label, shipping manifest, or 

other similar documentation accurately 

reflects the purity of the steroid. Option 

Two eliminates the sentencing 

distinction between anabolic steroids 

and other Schedule III substances. 

Accordingly, if an anabolic steroid is in 

a pill, tablet, capsule, or liquid form, the 

court would sentence as it would in any 

other case involving a Schedule III 

substance. For anabolic steroids in other 

forms, the proposed amendment 

instructs the court that [1 unit means 25 

mg and that] the court may determine 

the base offense level using a reasonable 

estimate of the quantity of anabolic 

steroid involved in the offense. 

The proposed amendment also 

provide new enhancements designed to 

capture aggravating harms involved in 

anabolic steroid cases. First, the 

proposed amendment amends § 2D1.1 to 

provide an increase of two levels if the 

offense involved the distribution of a 

masking agent. A masking agent is a 

product added to, or taken with, an 

anabolic steroid to prevent the detection 

of the anabolic steroid in an individual’s 

body. Second, the proposed amendment 

amends § 2D1.1 to provide an increase 

of two levels if the defendant 

distributed an anabolic steroid to a 

professional, college, or high school 

athlete. Third, the proposed amendment 

presents two options for increasing 

penalties for coaches who distribute 

anabolic steroids to their athletes. 

Option One provides, as an alternative 

to the proposed enhancement for 

distribution to an athlete, a two-level 

increase in § 2D1.1 if the defendant used 

the defendant’s position as a coach of 

athletic activity to influence an athlete 

to use an anabolic steroid. Option Two 

amends Application Note 2 of § 3B1.3 

(Abuse of Position of Trust or Use of 

Special Skill) to include a coach who 

uses his or her position to influence an 

athlete to use an anabolic steroid in the 

list of special circumstances to which 


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the two level adjustment in § 3B1.3 shall 

apply. 

Three issues for comment follow the 

proposed amendment. The first pertains 

to whether the Commission, when it 

repromulgates the proposed amendment 

as a permanent amendment, should 

expand the scope of the enhancements 

to cover all controlled substances, not 

just anabolic steroids. The second issue 

pertains to whether the penalties for 

steroid offenses should be based on 

quantities typical of offenses involving 

mid- and high-level dealers. The third 

issue pertains to whether the 

Commission should amend the 

guidelines to address offenses involving 

human growth hormone (HGH) and if 

so, how. 

Proposed Amendment: Section 2D1.1 

is amended by redesignating 

subsections (b)(6) and (b)(7) as 

subsections (b)(8) and (b)(9), 

respectively; and by inserting the 

following after subsection (b)(5): 

‘‘(6) If the offense involved the 

distribution of (A) an anabolic steroid; 

and (B) a masking agent, increase by 2 

levels. 

(7) If the defendant distributed an 

anabolic steroid to a professional, 

college, or high school athlete[; Option 

1(for coach): or (B) the defendant used 

the defendant’s position as a coach of an 

athletic activity to influence a 

professional, college, or high school 

athlete to use an anabolic steroid], 

increase by 2 levels.’’. 

[Option 1 (for steroids): Section 

2D1.1(c) is amended in the ‘‘*Notes to 

the Drug Quantity Table’’ by striking 

subdivision (G) and inserting the 

following: 

‘‘(G) In the case of anabolic steroids, 

one ‘‘unit’’ means [25][50][100] mg of an 

anabolic steroid, regardless of the form 

(e.g., patch, topical cream, tablet, 

liquid). [There shall be a rebuttable 

presumption that the label, shipping 

manifest, or other similar 

documentation describing the type and 

purity of the anabolic steroid accurately 

reflects the purity of that steroid.]’’.] 

[Option 2 (for steroids): Section 

2D1.1(c) is amended in the ‘‘*Notes to 

the Drug Quantity Table’’ in subdivision 

(F) by striking ‘‘(except anabolic 

steroids)’’; and by adding at the end the 

following: 

‘‘For an anabolic steroid that is not in 

a pill, capsule, tablet, or liquid form 

(e.g. patch, topical cream, aerosol), [(A) 

one ‘‘unit’’ means [25] mg; and (B)] the 

court may determine the base offense 

level using a reasonable estimate of the 

quantity of anabolic steroid involved in 

the offense.’’. 

Section 2D1.1(c) is amended in the 

‘‘*Notes to the Drug Quantity Table’’ by 

striking subdivision (G).] 

The Commentary to § 2D1.1 captioned 

‘‘Application Notes’’ is amended by 

striking ‘‘(b)(6)’’ and inserting ‘‘(b)(8)’’

each place it appears; and by striking 

‘‘(b)(7)’’ and inserting ‘‘(b)(9)’’ each 

place it appears. 

The Commentary to § 2D1.1 captioned 

‘‘Application Notes’’ is amended by 

adding at the end the following: 

‘‘24. Application of Subsection 

(b)(6).—For purposes of subsection 

(b)(6), ‘‘masking agent’’ means a product 

added to, or taken with, an anabolic 

steroid that prevents the detection of the 

anabolic steroid in an individual’s body. 

25. Application of Subsection (b)(7).—

For purposes of subsection (b)(7): 

‘Athlete’ means an individual who 

participates in an athletic activity 

conducted by (A) an intercollegiate 

athletic association or interscholastic 

athletic association; (B) a professional 

athletic association; or (C) an amateur 

athletic organization. 

‘Athletic activity’ means an activity 

that (A) has officially designated 

coaches; (B) conducts regularly 

scheduled practices or workouts that are 

supervised by coaches; and (C) has 

established schedules for competitive 

events or exhibitions. 

‘College or high school athlete’ means 

an athlete who is a student at an 

institution of higher learning (as defined 

in section 101 of the Higher Education 

Act of 1965 (20 U.S.C. 1001) or at a 

secondary school (as defined in section 

9101 of the Elementary and Secondary 

Education Act of 1965 (20 U.S.C. 7801). 

‘Professional athlete’ means an 

individual who competes in a major 

professional league.’’. 

The Commentary to § 2D1.1 captioned 

‘‘Background’’ is amended in the ninth 

paragraph by striking ‘‘(b)(6)(A)’’ and 

inserting ‘‘(b)(8)(A)’’; and in the last 

paragraph by striking ‘‘(b)(6)(B) and (C)’’

and inserting ‘‘(b)(8)(B) and (C)’’. 

[Option 2 (for coaches): The 

Commentary to § 3B1.3 captioned 

‘‘Application Notes’’ is amended in 

Note 2 in subdivision (A) by inserting 

‘‘Postal Service Employee.—’’ before 

‘‘An employee’’; in subdivision (B) by 

inserting ‘‘Offenses Involving ‘Means of 

Identification’.—’’ before ‘‘A 

defendant’’; and by adding at the end 

the following: 

‘‘(C) Coach of Athletic Activity.—A 

defendant who uses the defendant’s 

position as a coach of an athletic 

activity to influence a professional, 

college, or high school athlete to use an 

anabolic steroid. 

For purposes of this guideline: 

(i) ‘Athlete’ means an individual who 

participates in an athletic activity 

conducted by (I) an intercollegiate 

athletic association or interscholastic 

athletic association; (II) a professional 

athletic association; or (III) an amateur 

athletic organization. 

(ii) ‘Athletic activity’ means an 

activity that (I) has officially designated 

coaches; (II) conducts regularly 

scheduled practices or workouts that are 

supervised by coaches; and (III) has 

established schedules for competitive 

events or exhibitions. 

(iii) ‘College, or high school athlete’

means an athlete who is a student at an 

institution of higher learning (as defined 

in section 101 of the Higher Education 

Act of 1965 (20 U.S.C. 1001) or at a 

secondary school (as defined in section 

9101 of the Elementary and Secondary 

Education Act of 1965 (20 U.S.C. 7801). 

(iv) ‘Professional athlete’ means an 

individual who competes in a major 

professional league.]’’. 

Issues for Comment: 

(1) The Commission requests 

comment regarding whether, when the 

Commission re-promulgates the 

temporary emergency amendment as a 

permanent amendment, it should 

expand the proposed enhancements in 

§ 2D1.1(b)(6) (pertaining to masking 

agents) and in § 2D1.1(b)(7) (pertaining 

to distribution of a steroid to an athlete) 

to cover offenses involving any 

controlled substance. Specifically, the 

proposed amendment defines ‘‘masking 

agent’’ as ‘‘a product added to, or taken 

with, an anabolic steroid to prevent the 

detection of the anabolic steroid in an 

individual’s body.’’ However, masking 

agents also can be taken to prevent the 

detection of other controlled substances. 

The Commission requests comment 

regarding whether it should expand the 

definition of masking agent, and thus 

application of the enhancement, in a 

manner that covers all controlled 

substances, not just anabolic steroids. 

Similarly, there are controlled 

substances other than anabolic steroids 

that enhance an individual’s 

performance. The Commission requests 

comment regarding whether the 

proposed enhancement pertaining to 

distribution to an athlete should be 

expanded to cover offenses involving all 

types of controlled substances. 

(2) The Commission requests 

comment regarding whether penalties 

for steroid offenses should be based on 

quantities typical of offenses involving 

mid- and high-level dealers. For more 

serious drug types (e.g., heroin, cocaine, 

marihuana), the Drug Quantity Table in 

§ 2D1.1(c) provides an offense level of 

26 for quantities typical of mid-level 

dealers and an offense level of 32 for 


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quantities typical of high-level dealers. 

These levels also correspond to the 

statutory mandatory minimum penalties 

for mid- and high-level dealers. 

Although there are no statutory 

mandatory minimum penalties 

establishing thresholds for steroid 

offenses, the Commission has been 

informed that a steroids dealer who 

provides the equivalent of one complete 

cycle to 10 customers is considered to 

be a mid-level dealer, and a dealer who 

provides the equivalent of one complete 

cycle to 30 customers is considered to 

be a high-level dealer. Currently, offense 

levels in the Drug Quantity Table for 

anabolic steroids and other Schedule III 

substances begin at level 6 and are 

‘‘capped’’ at level 20. Should the 

Commission provide a penalty structure 

within this range that targets offenses 

involving mid- and high-level steroid 

dealers, and if so, what offense levels 

should correspond to a mid-level dealer 

and to a high-level dealer? 

(3) Application Note 4 of § 2N2.1 

(Violations of Statutes and Regulations 

Dealing With Any Food, Drug, 

Biological Product, Device, Cosmetic, or 

Agricultural Product) states that ‘‘[t]he 

Commission has not promulgated a 

guideline for violations of 21 U.S.C. 

333(e) (offenses involving human 

growth hormone).’’ The Commission 

requests comment regarding whether it 

should specifically address offenses 

involving the distribution of human 

growth hormone (HGH), and if so, how. 

4. Intellectual Property 

Synopsis of Proposed Amendment: 

This proposed amendment proposes to 

re-promulgate as a permanent 

amendment the temporary, emergency 

amendment that implemented the 

directive in section 105 of the Family 

Entertainment and Copyright Act of 

2005, Pub. L. 109–9. The emergency 

amendment became effective on October 

24, 2005. 

The directive instructs the 

Commission to ‘‘review and, if 

appropriate, amend the Federal 

sentencing guidelines and policy 

statements applicable to persons 

convicted of intellectual property rights 

crimes * * *’’

‘‘In carrying out [the directive], the 

Commission shall—

(1) take all appropriate measures to 

ensure that the Federal sentencing 

guidelines and policy statements * * * 

are sufficiently stringent to deter, and 

adequately reflect the nature of, 

intellectual property rights crimes; 

(2) determine whether to provide a 

sentencing enhancement for those 

convicted of the offenses [involving 

intellectual property rights], if the 

conduct involves the display, 

performance, publication, reproduction, 

or distribution of a copyrighted work 

before it has been authorized by the 

copyright owner, whether in the media 

format used by the infringing party or in 

any other media format; 

(3) determine whether the scope of 

‘uploading’ set forth in application note 

3 of section 2B5.3 of the Federal 

sentencing guidelines is adequate to 

address the loss attributable to people 

who, without authorization, broadly 

distribute copyrighted works over the 

Internet; and 

(4) determine whether the sentencing 

guideline and policy statements 

applicable to the offenses [involving 

intellectual property rights] adequately 

reflect any harm to victims from 

copyright infringement if law 

enforcement authorities cannot 

determine how many times copyrighted 

material has been reproduced or 

distributed.’’

Pre-Release Works 

The proposed amendment provides a 

separate two-level enhancement if the 

offense involved a pre-release work. The 

enhancement and the corresponding 

definition use language directly from 17 

U.S.C. 506(a) (criminal infringement). 

The amendment adds language to 

Application Note 2 that explains that in 

cases involving pre-release works, the 

infringement amount should be 

determined by using the retail value of 

the infringed item, rather than any 

premium price attributed to the 

infringing item because of its pre-release 

status. The proposed amendment 

addresses concerns that distribution of 

an item before it is legally available to 

the consumer is more serious conduct 

than distribution of other infringing 

items and involves a harm not 

addressed by the current guideline. 

Uploading 

The concern underlying the 

uploading directive pertains to offenses 

in which the copyrighted work is 

transferred through file sharing, 

particularly peer-to-peer models. The 

Department of Justice has explained that 

Application Note 3, which expands on 

the definition of ‘‘uploading’’, may be 

read to exclude peer-to-peer activity 

from application of the current 

enhancement in § 2B5.3(b)(2) for 

offenses that involve the manufacture, 

importation, or uploading of infringing 

items. In particular, the concern 

pertains to the third sentence, which 

reads, ‘‘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.’’ The proposed 

amendment builds on the current 

definition of ‘‘uploading’’ to include 

making an infringing item available on 

the Internet by storing an infringing 

item as an openly shared file (i.e., a file 

that is stored on a peer-to-peer network). 

The proposed amendment also clarifies 

that uploading does not include merely 

downloading or installing infringing 

items on a hard drive of the defendant’s 

computer unless the infringing item is 

an openly shared file. By clarifying the 

definition of uploading in this manner, 

Application Note 3, which is a 

restatement of the uploading definition, 

is no longer necessary and the proposed 

amendment deletes the application note 

from the guideline. 

Indeterminate Number 

The proposed amendment addresses 

the final directive by amending 

Application Note 2, which sets forth the 

rules for determining the infringement 

amount. The proposed note provides 

that the court may make a reasonable 

estimate of the infringement amount 

using any relevant information 

including financial records in cases in 

which the court cannot determine the 

number of infringing items. The 

Commission’s empirical analysis of 

cases sentenced under this guideline 

suggests that courts often determine the 

infringement amount in this manner. 

This proposed amendment simply 

codifies into the guideline the practice 

currently employed by the courts. 

New Offense 

Finally, the proposed amendment 

provides a reference in Appendix A 

(Statutory Index) for the new offense at 

18 U.S.C. 2319B. This offense is 

proposed to be referenced to § 2B5.3. 

Proposed Amendment: Section 

2B5.3(b) is amended by redesignating 

subsections (b)(2) through (b)(4) as 

subsections (b)(3) through (b)(5), 

respectively; and by inserting after 

subsection (b)(1) the following: 

‘‘(2) If the offense involved the 

display, performance, publication, 

reproduction, or distribution of a work 

being prepared for commercial 

distribution, increase by 2 levels.’’. 

The Commentary to § 2B5.3 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by striking the last paragraph and 

inserting the following: 

‘‘‘Uploading’ means making an 

infringing item available on the Internet 

or a similar electronic bulletin board 

with the intent to enable other persons 

to (A) download or otherwise copy the 

infringing item; or (B) have access to the 


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infringing item, including by storing the 

infringing item as an openly shared file. 

‘Uploading’ does not include merely 

downloading or installing an infringing 

item on a hard drive on a defendant’s 

personal computer unless the infringing 

item is an openly shared file. 

‘Work being prepared for commercial 

distribution’ has the meaning given that 

term in 17 U.S.C. 506(a)(3).’’. 

The Commentary to § 2B5.3 captioned 

‘‘Application Notes’’ is amended in 

Note 2 in subdivision (A) by inserting 

after subdivision (v) the following: 

‘‘(vi) The offense involves the display, 

performance, publication, reproduction, 

or distribution of a work being prepared 

for commercial distribution. In a case 

involving such an offense, the ‘retail 

value of the infringed item’ is the value 

of that item upon its initial commercial 

distribution.’’; and by inserting after 

subdivision (D) the following: 

‘‘(E) Indeterminate Number of 

Infringing Items.—In a case in which the 

court cannot determine the number of 

infringing items, the court need only 

make a reasonable estimate of the 

infringement amount using any relevant 

information, including financial 

records.’’. 

The Commentary to § 2B5.3 captioned 

‘‘Application Notes’’ is amended by 

striking Note 3; and by redesignating 

Notes 4 and 5 as Notes 3 and 4, 

respectively. 

Appendix A (Statutory Index) is 

amended by inserting after the line 

reference to ‘‘18 U.S.C. 2319A’’ the 

following: 

‘‘18 U.S.C. 2319B2B5.3’’. 

5. Terrorism/Obstruction of Justice 

Synopsis of Proposed Amendment: 

This proposed amendment repromulgates as a permanent amendment 

the temporary, emergency amendment 

that responded to section 6703 of the 

Intelligence Reform and Terrorism 

Prevention Act of 2004 (the ‘‘Act’’), Pub. 

L. 108–458. That amendment became 

effective on October 24, 2005. 

The Act directed the Commission ‘‘to 

provide for an increased offense level 

for an offense under sections 1001(a) 

and 1505 of title 18, United States Code, 

if the offense involves international or 

domestic terrorism, as defined in 

section 2331 of such title.’’ The Act also 

increased the penalties for offenses 

under 18 U.S.C. 1001 (false statements) 

and 1505 (obstruction of proceedings 

before departments, agencies, and 

committees of the United States) from 

not more than 5 years to not more than 

8 years if the offense involves 

international or domestic terrorism. The 

Commission was subsequently directed 

by the United States Parole Commission 

Extension and Sentencing Commission 

Authority Act of 2005 Pub. L. 109–76 to 

promulgate an amendment under 

emergency amendment authority not 

later than November 27, 2005. See 

Supplement to Appendix C 

(Amendment 676). 

The proposed amendment provides a 

12-level enhancement in § 2J1.2 

(Obstruction of Justice) if the defendant 

is convicted under 18 U.S.C. 1001 or 

1505 and the enhanced statutory 

sentencing provision pertaining to 

international or domestic terrorism 

applies. The proposed amendment also 

provides an application note that 

instructs the court not to apply the new 

enhancement if an adjustment under 

§ 3A1.4 (Terrorism) applies. 

Proposed Amendment: Section 

2J1.2(b) is amended by striking 

subdivision (1) and inserting the 

following: 

‘‘(1) (Apply the greater): 

(A) If the offense involved causing or 

threatening to cause physical injury to 

a person, or property damage, in order 

to obstruct the administration of justice, 

increase by 8 levels. 

(B) If (i) defendant was convicted 

under 18 U.S.C. 1001 or 1505; and (ii) 

the statutory maximum term of 

imprisonment relating to international 

terrorism or domestic terrorism is 

applicable, increase by 12 levels.’’. 

The Commentary to § 2J1.2 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘18 U.S.C. 1503’’ and inserting 

the following: 

‘‘18 U.S.C. 1001 when the statutory 

maximum term of imprisonment 

relating to international terrorism or 

domestic terrorism is applicable, 1503’’. 

The Commentary to § 2J1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by inserting after ‘‘Definitions.—

For purposes of this guideline:’’ the 

following: 

‘‘’Domestic terrorism’’ has the 

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

2331(5). 

International terrorism’’ has the 

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

2331(1).’’. 

The Commentary to § 2J1.2 captioned 

‘‘Application Notes’’ is amended by 

striking Note 2 and inserting the 

following: 

‘‘2. Chapter Three Adjustments.—

(A) Inapplicability of Chapter Three, 

Part C.—For offenses covered under this 

section, Chapter Three, Part C 

(Obstruction) does not apply, unless the 

defendant obstructed the investigation, 

prosecution, or sentencing of the 

obstruction of justice count. 

(B) Interaction with Terrorism 

Adjustment.—If § 3A1.4 (Terrorism) 

applies, do not apply subsection 

(b)(1)(B).’’. 

Appendix A (Statutory Index) is 

amended in the line referenced to ‘‘18 

U.S.C. 1001’’ by inserting ‘‘, 2J1.2 when 

the statutory maximum term of 

imprisonment relating to international 

terrorism or domestic terrorism is 

applicable’’ after 2B1.1’’. 

6. Transportation 

Synopsis of Proposed Amendment: 

This proposed amendment implements 

a number of provisions of the Safe, 

Accountable, Flexible, Efficient 

Transportation Act: A Legacy for Users, 

Pub. L. 109–59 (hereinafter the 

‘‘Transportation Act’’). Specifically: 

(A) Section 3042 of the Transportation 

Act amends the definition of ‘‘mass 

transportation’’ in 18 U.S.C. 1993 so that 

it now refers to ‘‘public transportation’’

and expands the definition to include 

the control of mass transportation 

vehicles. 

The proposed amendment responds to 

section 3042 by revising §§ [2A1.4 

(Involuntary Manslaughter)], 2A5.2 

(Interference with Flight Crew Member 

of Flight Attendant; Interference with 

Dispatch, Operation, or Maintenance of 

Mass Transportation Vehicle or Ferry) 

and 2K1.4 (Arson; Property Damage by 

Use of Explosives) so that the guideline 

term definition of ‘‘mass transportation’’

mirrors the statutory change to ‘‘public 

transportation’’. It also proposes to 

amend the heading of Chapter Two, Part 

A, Subpart 5 to reflect the revised 

terminology and proposes to amend the 

heading of § 2A5.2 to include the 

control of mass transportation vehicle, 

in conformance with the amendments to 

18 U.S.C. 1993 made by section 3042. 

(B) Section 4102 of the Transportation 

Act amends 49 U.S.C. 31310 to provide 

increased penalties for out-of-service 

violations and false records related to 

commercial vehicle safety. The 

Transportation Act creates a new 

criminal penalty of up to one year 

imprisonment for employers who 

knowingly and willfully allow or 

require employees to violate ‘‘out-ofservice’’ orders (‘‘OOS orders’’). The 

Secretary of Transportation’s statutory 

authority for issuing OOS orders is 

predicated upon a finding that a 

regulatory violation ‘‘poses an imminent 

hazard to safety.’’ The term ‘‘imminent 

hazard’’ is defined as ‘‘any 

condition’likely to result in serious 

injury or death. . . .’’ Previously, the 

statute imposed only a maximum fine of 

$10,000 for knowingly requiring or 

allowing an employee to operate an out 

of service commercial motor vehicle. 

According to the Senate’s report 

language on this provision, it is 


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increasingly more difficult for 

enforcement officers to monitor out of 

service vehicles, particularly when the 

orders cover entire fleets of commercial 

motor vehicles. As such, ‘‘Many OOS 

orders are violated.’’ Congress intends 

the new penalty provisions—including 

increased fines for violating OOS 

orders—to deter such violations in the 

future. 

In response, the proposed amendment 

references the new criminal provision at 

49 U.S.C. 31310 to a new guideline 

already proposed for Class A 

misdemeanors. (See proposed 

amendment relating to the 

implementation of miscellaneous 

enacted legislation.) 

(C) Section 4210 of the Transportation 

Act creates a new section at 49 U.S.C. 

14915 covering penalties for failure to 

give up possession of household goods. 

Failure to give up household goods is 

defined as ‘‘the knowing and willful 

failure, in violation of a contract, to 

deliver to, or unload at, the destination 

of a shipment of household goods that 

is subject to jurisdiction under 

subchapter I or III of chapter 135 of this 

title, for which charges have been 

estimated by the motor carrier providing 

transportation of such goods, and for 

which the shipper has tendered a 

payment described in clause (i), (ii), or 

(iii) of section 13707(b)(3)(A).’’. The 

criminal penalty for failure to give up 

possession of household goods is a term 

of imprisonment of up to two years. 

The proposed amendment refers this 

new offense to § 2B1.1, the guideline 

covering fraud, theft, and property 

destruction. 

(D) The proposed amendment 

provides an issue for comment 

regarding whether the Commission 

should amend the guidelines to 

implement section 7121 of the 

Transportation Act, which pertains to 

the transportation of hazardous waste, 

and if so how. 

Proposed Amendment 

(A) Implementation of Section 3042 of 

Transportation Act 

The Commentary to § 2A1.4 captioned 

‘‘Application Note’’ is amended in Note 

1 in the paragraph that begins ‘‘’Means 

of transportation’’’ by striking ‘‘mass 

transportation’’ and inserting ‘‘public 

transportation’’; and by striking ‘‘’Mass 

transportation’’’ and inserting ‘‘’Public 

transportation’’’. 

Chapter 2, Part A, Subpart 5, is 

amended in the heading by striking 

‘‘MASS’’ and inserting ‘‘PUBLIC’’. 

Section 2A5.2 is amended in the 

heading by inserting ‘‘Control,’’ after 

‘‘Operation,’’; and by striking ‘‘Mass’’

and inserting ‘‘Public’’. 

Section 2A5.2(a) is amended in 

subdivisions (1)(B) and (2)(B) by striking 

‘‘mass’’ and inserting ‘‘public’’ each 

place it appears. 

The Commentary to § 2A5.2 captioned 

‘‘Application Note’’ is amended in Note 

1 in the last paragraph by striking 

‘‘’Mass’’ and inserting ‘‘’Public’’. 

Section 2K1.4(a) is amended by 

striking ‘‘mass’’ and inserting ‘‘public’’

each place it appears. 

The Commentary to § 2K1.4 captioned 

‘‘Application Note’’ is amended in Note 

1 by striking ‘‘Mass’’ and inserting 

‘‘Public’’. 

(B) Implementation of Section 4102 of 

Transportation Act 

[Please Note: This amendment proposes to 

add a statutory reference to the guideline 

proposed for Class A Misdemeanors in 

Proposed Amendment 9 (Miscellaneous 

Laws), Part E.] 

Chapter Two, Part X, Subpart 5, as 

amended by Proposed Amendment 9, 

Part E, is further amended in the 

Commentary to § 2X5.2 captioned 

‘‘Statutory Provisions’’ by inserting ‘‘; 49 

U.S.C. 31310(i)(2)(D)’’ after ‘‘14133’’. 

Appendix A (Statutory Index) is 

amended by inserting after the line 

referenced to ‘‘18 U.S.C. 30170’’ the 

following: 

‘‘49 U.S.C. 31310(i)(2)(D) 2X5.2’’. 

(C) Implementation of Section 4210 of 

the Transportation Act 

The Commentary to § 2B1.1 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘14915,’’ before ‘‘30170,’’. 

Appendix A (Statutory Provisions) is 

amended by inserting after the line 

referenced to 49 U.S.C. 14912 the 

following: 

‘‘49 U.S.C. 149152 B1.1’’. 

Issue for Comment: The Commission 

requests comment on how it should 

implement provisions of the Safe, 

Accountable, Flexible, Efficient 

Transportation Act: A Legacy for Users, 

Pub. L. 109–59 (hereinafter the 

‘‘Transportation Act’’) relating to the 

transportation of hazardous materials. 

Specifically, the Commission requests 

comment regarding whether, and if so 

how, the Commission should amend the 

guidelines to implement section 7121 of 

the Transportation Act. 

Section 7121 of the Transportation 

Act amends 49 U.S.C. 5124, which 

criminalizes knowing or willful 

violations of chapter 51 of title 49, 

United States Code, regarding the 

transportation of hazardous materials, in 

two ways. First, it defines ‘‘knowing,’’

‘‘willful,’’ and ‘‘reckless’’ violations of 

the Hazardous Materials Act. Second, it 

provides a new ten year maximum for 

aggravated felonies in which a 

defendant knowingly or willfully 

violated the hazardous materials act (or 

its accompanying regulations), a release 

of hazardous materials occurs, and such 

a release results in death or serious 

bodily injury. Section 7127 of the 

Transportation Act added section 5124 

to the provisions set forth in 18 U.S.C. 

3663 that allow the Department of 

Justice to seek restitution. 

Offenses under 49 U.S.C. 5124 

currently are referenced to § 2Q1.2 

(Mishandling of Hazardous or Toxic 

Substances or Pesticides; 

Recordkeeping, Tampering, and 

Falsification; Unlawfully Transporting 

Hazardous Materials in Commerce). The 

Commission amended § 2Q1.2 in 2004 

to provide for a 2-level increase for 

offenses involving the unlawful 

transportation of hazardous materials. 

This enhancement is to apply whenever 

a defendant is convicted under 49 

U.S.C. 5124 or 49 U.S.C. 46312 and is 

intended to capture the increased risk of 

harm associated with these types of 

offenses. Is this enhancement adequate 

to account for the seriousness of 

conduct involving the unlawful 

transportation of hazardous materials 

and/or the increased risk of harm 

associated with these offenses, 

particularly for offenses involving the 

knowing, willful, and/or reckless 

transportation of hazardous materials? 

7. Implementation of the Intelligence 

Reform and Terrorism Prevention Act of 

2004 

Synopsis of Proposed Amendment: 

This proposed amendment implements 

a number of provisions of the 

Intelligence Reform and Terrorism 

Prevention Act of 2004, Pub. L. 108–

458. Specifically: 

(A) Section 5401 of the Act adds a 

new subsection (a)(4) to 8 U.S.C. 1324 

that increases the otherwise applicable 

penalties by up to ten years for bringing 

aliens into the United States if (A) the 

conduct is part of an ongoing 

commercial organization or enterprise; 

(B) aliens were transported in groups of 

10 or more; and (C)(1) aliens were 

transported in a manner that 

endangered their lives; or (2) the aliens 

presented a life-threatening health risk 

to people in the United States. 

Criminal penalties for violations of 8 

U.S.C. 1324 include fines and terms of 

imprisonment ranging from 1 year for 

knowingly bringing in an alien who 

does not have permission to enter the 

country, 8 U.S.C. 1324(a)(2)(A), up to 

life if a death occurs during a violation, 

8 U.S.C. 1324(a)(1)(B)(iv). Offenses 

under 18 U.S.C. 1324 are referenced to 


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§ 2L1.1 (Smuggling, Transporting, or 

Harboring an Unlawful Alien). 

In response to the new offense, the 

proposed amendment provides three 

options. Option One amends § 2L1.1 by 

adding a specific offense characteristic 

to account for offenses of conviction 

under 8 U.S.C. 1324(a)(4). Option Two 

amends § 2L1.1 by adding a specific 

offense characteristic to account for 

offenses that involve an ongoing 

commercial organization or enterprise. 

Option Three provides an upward 

departure for such conduct. 

(B) Section 6702 of the Act creates a 

new offense at 18 U.S.C. 1038 (False 

Information and Hoaxes), which 

provides as follows: 

(1) In General—Whoever engages in 

any conduct with intent to convey false 

or misleading information under 

circumstances where such information 

may reasonably be believed and where 

such information may indicate that an 

activity has taken, is taking, or will take 

place that would constitute a violation 

of chapter 2, 10, 11B, 39, 40, 44, 111, 

or 113B of this title, section 236 of the 

Atomic Energy Act of 1954 (42 U.S.C. 

2284) or section 46502, the second 

sentence of section 46504, section 

46505(b)(3) or (c), section 46506 if 

homicide or attempted homicide is 

involved, or section 60123(b) of title 49, 

shall—

(A) be fined under this title or 

imprisoned not more than 5 years, or 

both; 

(B) if serious bodily injury results, be 

fined under this title or imprisoned not 

more than 20 years, or both; and 

(C) if death results, be fined under 

this title or imprisoned for any number 

of years up to life or both. 

(2) Armed Forces—Any person who 

makes a false statement, with intent to 

convey false or misleading information, 

about the death, injury, capture, or 

disappearance of a member of the 

Armed Forces of the United States 

during a war or armed conflict in which 

the United States is engaged—

(A) shall be fined under this title or 

imprisoned not more than 5 years, or 

both; 

(B) if serious bodily injury results, 

shall be fined under this title or 

imprisoned not more than 20 years, or 

both; and 

(C) if death results, shall be fined 

under this title or imprisoned for any 

number of years or for life or both. 

The proposed amendment references 

the new offense to § 2A6.1 (Threatening 

or Harassing Communications) and adds 

a cross reference to § 2M6.1 (Unlawful 

Production, Development, Acquisition, 

Stockpiling, Alteration, Use, Transfer, or 

Possession of Nuclear Material, 

Weapons, or Facilities, Biological 

Agents, Toxins, or Delivery Systems, 

Chemical Weapons, or Other Weapons 

of Mass Destruction; Attempt or 

Conspiracy) if the conduct supports a 

threat to use a weapon of mass 

destruction. 

(C) Section 6803 creates a new offense 

at 18 U.S.C. 832, relating to 

participation in nuclear, and weapons of 

mass destruction, threats to the United 

States. The new offense reads in part as 

follows: 

(a) Whoever, within the United States 

or subject to the jurisdiction of the 

United States, willfully participates in 

or knowingly provides material support 

or resources (as defined in section 

2339A) to a nuclear weapons program or 

other weapons of mass destruction 

program of a foreign terrorist power, or 

attempts or conspires to do so, shall be 

imprisoned for not more than 20 years. 

(b) There is extraterritorial Federal 

jurisdiction over an offense under this 

section. 

(c) Whoever without lawful authority 

develops, possesses, or attempts or 

conspires to develop or possess a 

radiological weapon, or threatens to use 

or uses a radiological weapon against 

any person within the United States, or 

a national of the United States while 

such national is outside of the United 

States or against any property that is 

owned, leased, funded, or used by the 

United States, whether that property is 

within or outside of the United States, 

shall be imprisoned for any term of 

years or for life. 

Section 6803 also adds this new 

offense to the list of predicate offenses 

at 18 U.S.C. 2332b(g)(5)(B)(i) and 

amends §§ 57(b) and 92 of the Atomic 

Energy Act of 1954 (42 U.S.C. 2077(b)) 

to cover the participation of an 

individual in the development of 

special nuclear material. 

The proposed amendment references 

18 U.S.C. 832 to § 2M6.1. 

(D) Section 6903 of the Act creates a 

new offense at 18 U.S.C. 2332g (Missile 

Systems Designed to Destroy Aircraft) 

prohibiting the production or transfer of 

missile systems designed to destroy 

aircraft. Specifically, section 2332g 

reads in part: 

(a) Unlawful Conduct 

(1) In general. Except as provided in 

paragraph (3), it shall be unlawful for 

any person to knowingly produce, 

construct, otherwise acquire, transfer 

directly or indirectly, receive, possess, 

import, export, or use or possess and 

threaten to use—

(A) an explosive or incendiary rocket 

or missile that is guided by any system 

designed to enable the rocket or missile 

to—

(i) seek or proceed toward energy 

radiated or reflected from an aircraft or 

toward an image locating an aircraft; or 

(ii) otherwise direct or guide the 

rocket or missile an aircraft; 

(B) any device designed or intended 

to launch or guide a rocket or missile 

described in subparagraph (A); or 

(C) any part or combination of parts 

designed or redesigned for use in 

assembling or fabricating a rocket, 

missile, or device described in 

subparagraph (A) or (B). 

The new offense conduct provides for 

different criminal penalties. First, any 

individual who ‘‘violates, attempts, or 

conspires to violate, subsection (a),’’ the 

criminal penalties range from a fine of 

no more than two million dollars along 

with a statutory minimum term of 

imprisonment of 25 years to life. See 18 

U.S.C. 2332g(c)(1). Second, any person 

who in the course of a violation of 

subsection (a) who ‘‘uses, attempts or 

conspires to use, or possesses or 

threatens to use,’’ any item(s) described 

in subsection (a) will be fined no more 

than two million dollars in addition to 

receiving a statutory minimum sentence 

of 30 years to life. See 18 U.S.C. 

2332g(c)(2). Finally, if the death of 

another person results from a violation 

of subsection (a), the offender will be 

fined no more than two million dollars 

and will be given a sentence of life 

imprisonment. See 18 U.S.C. 

2332g(c)(3). 

The proposed amendment references 

18 U.S.C. 2332g to § 2K2.1 (Unlawful 

Receipt, Possession, or Transportation 

of Firearms or Ammunition; Prohibited 

Transactions Involving Firearms or 

Ammunition) because the types of 

weapon described in the offense would 

seem to be covered as destructive 

devices under 26 U.S.C. 5845(a). 

(E) Section 6905 of the Act creates a 

new offense at 18 U.S.C. 2332h 

prohibiting the production, transfer, 

receipt, possession, or threat to use, any 

radiological dispersal device. Section 

2332h reads in part as follows: 

(a) Unlawful Conduct 

(1) In general. Except as provided in 

paragraph (2), it shall be unlawful for 

any person to knowingly produce, 

construct, otherwise acquire, transfer 

directly or indirectly, receive, possess, 

import, export, or use, or possess and 

threaten to use—

(A) any weapon that is designed or 

intended to release radiation or 

radioactivity at a level dangerous to 

human life; or 

(B) any device or other object that is 

capable of and designed or intended to 

endanger human life through the release 

of radiation or radioactivity. 


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The new offense conduct provides for 

different criminal penalties. First, any 

individual who ‘‘violates, attempts, or 

conspires to violate, subsection (a),’’ the 

criminal penalties range from a fine of 

no more than two million dollars along 

with a statutory minimum term of 

imprisonment of 25 years to life. See 18 

U.S.C. 2332h(c)(1). Second, any person 

who in the course of a violation of 

subsection (a) who ‘‘uses, attempts or 

conspires to use, or possesses or 

threatens to use,’’ any item(s) described 

in subsection (a) will be fined no more 

than two million dollars in addition to 

receiving a statutory minimum sentence 

of 30 years to life. See 18 U.S.C. 

2332h(c)(2). Finally, if the death of 

another person results from a violation 

of subsection (a), the offender will be 

fined no more than two million dollars 

and will be given a sentence of life 

imprisonment. See 18 U.S.C. 

2332h(c)(3). 

The proposed amendment references 

18 U.S.C. 2332h to § 2M6.1 because of 

the nature of the offense. Section 2M6.1 

covers conduct dealing with the 

production of certain types of nuclear, 

biological or chemical weapons or other 

weapons of mass destruction, including 

weapons of mass destruction that, as 

defined in 18 U.S.C. 2332a, are designed 

to release radiation or radioactivity at 

levels dangerous to human life. 

(F) Section 6906 of the Act creates a 

new offense prohibiting the production, 

acquisition, transfer, or possession of, or 

the threat to use, the variola virus. 

Specifically, 18 U.S.C. 175c (Variola 

Virus), reads, in part: 

(a) Unlawful Conduct 

(1) In general. Except as provided in 

paragraph (2), it shall be unlawful for 

any person to knowingly produce, 

engineer, synthesize, acquire, transfer 

directly or indirectly, receive, possess, 

import, export, or use, or possess and 

threaten to use, variola virus. 

The new offense conduct provides for 

different criminal penalties. First, any 

individual who ‘‘violates, attempts, or 

conspires to violate, subsection (a),’’ the 

criminal penalties range from a fine of 

no more than two million dollars along 

with a statutory minimum term of 

imprisonment of 25 years to life. See 18 

U.S.C. 175c(c)(1). Second, any person 

who in the course of a violation of 

subsection (a) who ‘‘uses, attempts or 

conspires to use, or possesses or 

threatens to use,’’ any item(s) described 

in subsection (a) will be fined no more 

than two million dollars in addition to 

receiving a statutory minimum sentence 

of 30 years to life. See 18 U.S.C. 

175c(c)(2). Finally, if the death of 

another person results from a violation 

of subsection (a), the offender will be 

fined no more than two million dollars 

and will be given a sentence of life 

imprisonment. See 18 U.S.C. 175c(c)(3). 

The proposed amendment references 

18 U.S.C.175c to § 2M6.1. The variola 

virus may be used as a biological agent 

or toxin and, therefore, should be 

covered under this guideline. 

(G) The proposed amendment 

provides an issue for comment 

regarding whether the Commission 

should define the term ‘‘ongoing 

commercial organization’’ and if so, 

how. 

Proposed Amendment 

(A) Implementation of Section 5401 of 

the Act 

Section 2L1.1(b) is amended by 

adding at the end the following: 

‘‘(7) If [Option One: the defendant was 

convicted under 8 U.S.C. 1324(a)(4)] 

[Option Two: the offense was part of an 

ongoing commercial organization or 

enterprise], increase by [2] levels.’’. 

[Option Three: 

The Commentary to § 2L1.1 captioned 

‘‘Application Notes’’ is amended by 

adding at the end the following: 

‘‘7. Offenses Involving Ongoing 

Commercial Organizations or 

Enterprises.—If [the defendant was 

convicted under 8 U.S.C. 1324(a)(4)] 

[the offense involved an ongoing 

commercial organization or enterprise], 

an upward departure may be 

warranted.]’’. 

(B) Implementation of Section 6702 of 

the Act 

Chapter Two, Part A, Subpart 6, is 

amended in the heading by inserting 

‘‘HOAXES,’’ after 

‘‘COMMUNICATIONS,’’. 

Section 2A6.1 is amended in the 

heading by adding at the end ‘‘; 

Hoaxes’’; by adding after subsection (b) 

the following: 

‘‘(c) Cross Reference 

(1) If the offense involved any 

conduct evidencing an intent to carry 

out a threat to use a weapon of mass 

destruction, as defined in 18 U.S.C. 

2332a(c)(2)(B), (C), and (D), apply 

§ 2M6.1 (Weapons of Mass Destruction), 

if the resulting offense level is greater 

than that determined under this 

guideline.’’; and in the Commentary 

captioned ‘‘Statutory Provisions’’ by 

inserting ‘‘1038,’’ after ‘‘879,’’. 

Appendix A (Statutory Index) is 

amended by inserting after the line 

referenced to 18 U.S.C. 1037 the 

following: 

‘‘18 U.S.C. 1038 2A6.1’’. 

(C) Implementation of Section 6803 of 

the Act 

The Commentary to § 2M6.1 

captioned ‘‘Statutory Provisions’’ is 

amended by inserting ‘‘832,’’ after 

‘‘831,’’. 

Appendix A (Statutory Index) is 

amended by inserting after the line 

referenced to 18 U.S.C. 831 the 

following: 

‘‘18 U.S.C. 832 2M6.1’’. 

(D) Implementation of Section 6903 of 

the Act 

The Commentary to § 2K2.1 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘, 2332g’’ after ‘‘(k)–(o)’’. 

Appendix A (Statutory Index) is 

amended by inserting after the line 

referenced to 18 U.S.C. 2332f the 

following: 

‘‘18 U.S.C. 2332g 2K2.1’’. 

(E) Implementation of Section 6905 of 

the Act 

The Commentary to § 2M6.1 

captioned ‘‘Statutory Provisions’’ is 

amended by inserting ‘‘, 2332h’’ before 

‘‘; 42 U.S.C.’’. 

Appendix A (Statutory Index) is 

amended by inserting after the line 

referenced to 18 U.S.C. 2332f the 

following: 

‘‘18 U.S.C. 2332h 2M6.1’’

(F) Implementation of Section 6906 of 

the Act 

The Commentary to § 2M6.1 

captioned ‘‘Statutory Provisions’’ is 

amended by inserting ‘‘175c,’’ after 

‘‘175b,’’. 

Appendix A (Statutory Index) is 

amended by inserting after the line 

referenced to 18 U.S.C. 175b the 

following: 

‘‘18 U.S.C. 175c 2M6.1’’. 

(G) Issue for Comment 

Issue for Comment: Section 5401 of 

the Intelligence Reform and Terrorism 

Prevention Act of 2004 added a new 

subsection (a)(4) to 8 U.S.C. 1324 that 

increases the otherwise applicable 

penalties by up to 10 years if, among 

other things, the conduct is part of an 

ongoing commercial organization. 

However, the Act did not provide a 

definition of the term ‘‘ongoing 

commercial organization.’’ If the 

Commission were to promulgate one of 

the proposed options that relies on this 

term as a basis for a sentencing increase 

(either by application of a specific 

offense characteristic or as an upward 

departure), should the Commission 

define the term ‘‘ongoing commercial 

organization’’ and if so, how? 

8. False Domain Names and CAN– 

SPAM 

Synopsis of Proposed Amendment: 

This proposed amendment (A) 

implements the directive to the 


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Commission in section 204(b) of the 

Intellectual Property Protection and 

Courts Administration Act of 2004; and 

(B) implements the new offense in 

section 5(d) of the Controlling the 

Assault of Non-Solicited Pornography 

and Marketing Act of 2003 (‘‘CAN–

SPAM Act’’) (15 U.S.C. 7704(d)). 

False Registration of Domain Name 

Section 204(b) of the Intellectual 

Property Protection and Courts 

Administration Act of 2004 directs the 

Commission—

to ensure that the applicable guideline range 

for a defendant convicted of any felony 

offense carried out online that may be 

facilitated through the use of a domain name 

registered with materially false contact 

information is sufficiently stringent to deter 

commission of such acts * * * In carrying 

out this [directive], the Sentencing 

Commission shall provide sentencing 

enhancements for anyone convicted of any 

felony offense furthered through knowingly 

providing or knowingly causing to be 

provided materially false contact information 

to a domain name registrar, domain name 

registry, or other domain name registration 

authority in registering, maintaining, or 

renewing a domain name use in connection 

with the offense. 

The proposed amendment 

implements this directive by providing 

a new guideline in Chapter Three 

(Adjustments) for cases in which a 

statutory enhancement under 18 U.S.C. 

3559(f)(1) applies. Section 3559(f)(1), 

created by section 204(a) of the 

Intellectual Property Protection and 

Courts Administration Act of 2004, 

doubles the statutory maximum term of 

imprisonment, or increases the 

maximum sentence by seven years, 

whichever is less, if a defendant who is 

convicted of a felony offense knowingly 

falsely registered a domain name and 

used that domain name in the course of 

the offense. Basing the adjustment in the 

new guideline on application of the 

statutory enhancement in 18 U.S.C. 

3559(f)(1) satisfies the directive. 

CAN–SPAM 

Section 5(d)(1) of the CAN–SPAM Act 

prohibits the transmission of 

commercial electronic messages that 

contain ‘‘sexually oriented material’’

unless such messages include certain 

marks, notices, and information. 

Specifically, the statute requires that the 

sender of a commercial e-mail message 

containing sexually oriented material: 

(a) include in the subject heading of 

the e-mail the ‘‘marks and notices’’

prescribed by the Federal Trade 

Commission; and 

(b) include in the message initially 

viewable to the recipient (i) the FTC’s 

marks and notices; (ii) clear and 

conspicuous identification that the 

message is an advertisement or 

solicitation; (iii) clear notice of the 

recipient’s option to decline to receive 

further messages from the sender; and 

(iv) the sender’s valid physical postal 

address. 

The sender of a commercial e-mail 

message that contains sexually oriented 

material within the meaning of the 

statute is exempted from these notice 

and labeling requirements only ‘‘if the 

recipient has given prior affirmative 

consent to the receipt of the message.’’

Otherwise, a sender who ‘‘knowingly’’

transmits sexually oriented commercial 

messages e-mail without including the 

required marks and information shall be 

fined under title 18, United States Code, 

or imprisoned not more than 5 years, or 

both. 

The proposed amendment references 

the new offense, found at 15 U.S.C. 

7704(d), to § 2G2.5 (Recordkeeping 

Offenses Involving the Production of 

Sexually Explicit Materials). Currently, 

§ 2G2.5 applies to violations of 18 

U.S.C. 2257, which requires producers 

of sexually explicit materials to 

maintain detailed records regarding 

their production activities and to make 

such records available for inspection by 

the Attorney General in accordance with 

applicable regulations. Although 

offenses under 15 U.S.C. 7704(d) do not 

involve the recording and reporting 

functions at issue in cases currently 

sentenced under § 2G2.5, section 

7704(d) offenses are essentially 

regulatory in nature and in this manner 

are similar to other offenses sentenced 

under § 2G2.5. In addition to the 

statutory reference changes, the 

proposed amendment also expands the 

heading of § 2G2.5 specifically to cover 

offenses under 15 U.S.C. 7704(d). 

Proposed Amendment: 

(A) False Registration of Domain 

Name 

Proposed Amendment: Chapter Three, 

Part C is amended in the heading by 

adding at the end ‘‘AND RELATED 

ADJUSTMENTS’’. 

Chapter Three, Part C is amended by 

adding at the end the following: 

‘‘§ 3C1.3. False Registration of Domain 

Name 

If a statutory enhancement under 18 

U.S.C. 3559(f)(1) applies, increase by 

[1][2][3][4] levels. 

Commentary 

Background: This adjustment 

implements the directive to the 

Commission in section 204(b) of Pub. L. 

108–482.’’. 

(B) CAN–SPAM 

Proposed Amendment: Section 2G2.5 

is amended in the heading by adding at 

the end ‘‘; Failure to Provide Required 

Marks in Commercial Electronic Email’’. 

The Commentary to § 2G2.5 captioned 

‘‘Statutory Provision’’ is amended by 

striking ‘‘Provision’’ and inserting 

‘‘Provisions’’; and by inserting ‘‘15 

U.S.C. 7704(d);’’ after the colon. 

Appendix A (Statutory Index) is 

amended by inserting after the line 

referenced to 15 U.S.C. 6821 the 

following: 

‘‘15 U.S.C. 7704(d)2G2.5’’. 

9. Miscellaneous Laws 

Synopsis of Proposed Amendment: 

This proposed amendments implements 

miscellaneous enacted laws as follows: 

(A) The Veterans’ Memorial 

Preservation and Recognition Act of 

2003, section 2, created a new offense at 

18 U.S.C. 1369 that prohibits the 

destruction of Veterans’ Memorials, 

with a ten-year statutory maximum. 

Previously, in response to the Veteran’s 

Cemetery Protection Act of 1997, the 

Commission added a two-level 

enhancement at § 2B1.1(b)(6) for 

vandalizing a National Cemetery. 

The proposed amendment refers the 

new offense to both §§ 2B1.1 (Theft, 

Property Destruction, and Fraud) and 

2B1.5 (Theft of, Damage to, or 

Destruction of, Cultural Heritage 

Resources). Reference to both guidelines 

mirrors the treatment of other offenses 

involving property damage to veterans’

memorials. The proposed amendment 

also provides an increase of [2][4][6] 

levels in §§ 2B1.1 and 2B1.5 if the 

offense involved a veterans’ memorial. 

(B) The Plant Protection Act of 2002 

increased penalties under 7 U.S.C. 7734, 

for knowingly importing or exporting 

plant, plant products, biological control 

organisms, and like products for 

distribution or sale. The statutory 

maximum for the first offense is five 

years, and for subsequent offenses, ten 

years. 

Appendix A (Statutory Index) 

currently references 7 U.S.C. 7734 to 

§ 2N2.1 (Violations of Statutes and 

Regulations Dealing With Any Food, 

Drug, Biological Product, Device, 

Cosmetic, or Agricultural Product), 

which has a base offense level of 6. The 

proposed amendment provides two 

options in response to the increased 

penalties. Option One increases the base 

offense level in consideration of the 

increased statutory penalties. Option 

Two provides an upward departure 

provision within the guideline. This 

option recommends an upward 

departure because of the expected 


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infrequency of plant protection offenses 

and because it provides the court with 

a viable tool to account for the harm 

involved during the commission of 

these offenses on a case-by-case basis. 

(C) The Clean Diamond Trade Act of 

2003 created a new offense at 19 U.S.C. 

3901, related to the import and export 

of rough diamonds or any transaction by 

a United States citizen anywhere, or any 

transaction that occurs in whole or in 

part within the United States. The new 

offense prohibits an import or export of 

rough diamonds that evades or avoids, 

or has the purpose of evading or 

avoiding, or attempts to violate, any of 

the prohibitions set forth in the Act. The 

statutory maximum is ten years. 

This offense involves importing 

‘‘conflict’’ diamonds into the United 

States for profits used towards the 

overthrow or subverting of legitimate 

governments in Sierra Leone, Angola, 

Liberia, and the Democratic Republic of 

Congo. The diamonds, referred to as 

‘‘blood diamonds’’ or ‘‘conflict 

diamonds,’’ are imported or exported 

without being controlled by a process 

known as the Kimberley Process 

Certification Scheme, which legitimizes 

the quality and original source of the 

diamond. The violation occurs when the 

diamonds are imported/exported 

without first being certified through this 

process or when a United States citizen 

enters into a transaction involving these 

diamonds without the proper 

certification. The profits from the sale of 

these rough diamonds are used to fund 

rebel and military activities in the 

countries mentioned earlier. 

The proposed amendment references 

the new offense to § 2T3.1 (Evading 

Import Duties or Restrictions 

(Smuggling); Receiving or Trafficking in 

Smuggled Property). The proposed 

amendment also revises introductory 

commentary more specifically to 

indicate that uncertified diamonds are 

contraband covered by § 2T3.1 even if 

other types of contraband are covered by 

other, more specific guidelines. 

(D) The Unborn Victims of Violence 

Act of 2004 (‘‘Laci & Conner’’ Law) 

created a new offense at 18 U.S.C. 1841 

for causing a death or serious bodily 

injury to a child in utero while engaging 

in conduct violative of any one of 

several enumerated offenses. Under 18 

U.S.C. 1841(a)(1) and (a)(2)(A), the 

statutory maximum for the conduct that 

‘‘caused the death of, or bodily injury to 

a child in utero shall be the penalty 

provided under Federal law for that 

conduct had that injury or death 

occurred to the unborn child’s mother.’’

Otherwise, under 18 U.S.C. 

1841(a)(2)(C), if the person engaging in 

the conduct intentionally kills or 

attempts to kill the unborn child that 

person shall be punished under sections 

18 U.S.C. 1111, 1112, and 1113 for 

intentionally killing or attempting to kill 

a human being. 

The proposed amendment references 

18 U.S.C. 1841(a)(2)(C) to the guidelines 

designated in Appendix A for 18 U.S.C. 

1111, 1112, and 1113. 

The proposed amendment references 

18 U.S.C. 1841(a)(1) to § 2X5.1 (Other 

Offenses). Reference is made to § 2X5.1 

because, under 18 U.S.C. 1841(a)(2)(A), 

the punishment for the offender is 

determined by the penalty for the 

conduct which caused the death or 

injury to a child in utero had that injury 

or death occurred to the unborn child’s 

mother. For example, if the offender 

committed aggravated sexual abuse 

against the unborn child’s mother and it 

caused the death of a child in utero, the 

punishment for the offender would be 

the same as the penalty for aggravated 

sexual abuse, not the penalty for first or 

second degree murder. There are 

approximately 65 other statutes listed 

under 18 U.S.C. 1841(b) that require a 

similar approach. Properly designating 

guidelines for these offenses would be 

challenging, and perhaps confusing. 

In order to permit the courts to 

determine the most analogous guideline 

on a case-by-case basis, a special 

instruction is provided in § 2X5.1 that 

the most analogous guideline for these 

offenses is the guideline that covers the 

underlying offense conduct. 

(E) The Farm Security and Rural 

Investment Act of 2002, created a new 

offense at 7 U.S.C. 2156 that prohibits 

the interstate movement of animals for 

animal fighting, with a one year 

statutory maximum. 

The Social Security Administration 

Act created a new offense under 42 

U.S.C. 1129(a) for prohibiting corrupt or 

forcible interference with the 

administration of the Social Security 

Administration Act. The statutory 

maximum is one year if the offense was 

committed only by threats of force, 

otherwise the statutory maximum is 

three years. 

The Consumer Product Protection Act 

of 2002 created a new offense under 18 

U.S.C. 1365(f) for prohibiting the illegal 

tampering with a consumer product 

with a statutory maximum of one year 

for the first offense, and three years for 

subsequent offenses. 

The Justice for All Act of 2004 created 

a new offense under 42 U.S.C. 14133 for 

prohibiting the misuse or unauthorized 

disclosure of DNA analyses. The 

maximum penalty is one year. 

The Video Voyeurism Prevention Act 

of 2004 created a new offense under 18 

U.S.C. 1801 for prohibiting the knowing 

capture of an image of an individual’s 

‘‘private area’’ without that individual’s 

consent, under circumstances in which 

the individual has a reasonable 

expectation of privacy. The statutory 

maximum for this offense is one year. 

To address these Class A 

misdemeanors offenses, the proposed 

amendment creates a new guideline at 

§ 2X5.2 (Class A Misdemeanors) that 

covers all Class A misdemeanors not 

otherwise provided for in a more 

specific Chapter Two guideline. The 

amendment assigns a base offense level 

of 6 for such offenses, which is the 

offense level typically applicable to 

Class A misdemeanor and regulatory 

offenses. A specific offense 

characteristic is provided for repeated 

violations. 

Proposed Amendment: 

(A) The Veterans’ Memorial 

Preservation and Recognition Act of 

2003 

Section 2B1.1(b)(6) is amended by 

inserting ‘‘or veterans’ memorial’’ after 

‘‘national cemetery’’; and by striking 

‘‘2’’ and inserting ‘‘[2][4][6]’’. 

The Commentary to § 2B1.1 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘1369,’’ after ‘‘1363,’’. 

The Commentary to § 2B1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by inserting after the paragraph 

that begins ‘‘ ‘Trade secret’ ’’ the 

following paragraph: 

‘‘ ‘Veterans’ memorial’ means any 

structure, plaque, statue, or other 

monument described in 18 U.S.C. 

1369(a).’’. 

Section 2B1.5(b)(2) is amended by 

inserting ‘‘or veterans’ memorial’’ after 

‘‘cemetery’’; and by striking ‘‘2’’ and 

inserting ‘‘[2][4][6]’’. 

The Commentary to § 2B1.5 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘1369,’’ after ‘‘1361,’’. 

The Commentary to § 2B1.5 captioned 

‘‘Application Notes’’ is amended in 

Note 3 in subdivision (B) by striking 

‘‘has the meaning given that term’’ and 

inserting ‘‘and ‘veterans’ memorial’ have 

the meaning given those terms’’. 

Appendix A (Statutory Index) is 

amended by inserting after the line 

referenced to 18 U.S.C. 1366 the 

following: 

‘‘18 U.S.C. 13692B1.1, 2B1.5’’. 

(B) The Plant Protection Act of 2002 

[Option One: Section 2N2.1 is 

amended by striking subsection (a) and 

inserting the following: 

‘‘(a) Base Offense Level: 

(1) [8][10], if the defendant was 

convicted under 7 U.S.C. 7734; or 

(2) 6, otherwise.’’.] 

[Option Two: The Commentary to 

§ 2N2.1 captioned ‘‘Application Notes’’


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is amended by striking Note 3 and 

inserting the following: 

‘‘3. Upward Departure Provisions.—

The following are circumstances under 

which an upward departure may be 

warranted: 

(A) Death or bodily injury, extreme 

psychological injury, property damage 

or monetary loss resulted. See Chapter 

Five, Part K (Departures). 

(B) The defendant was convicted 

under 7 U.S.C. 7734.’’.] 

(C) The Clean Diamond Trade Act of 

2003 

Chapter Two, Part T, Subpart 3 is 

amended in the ‘‘Introductory 

Commentary’’ in the first sentence by 

inserting ‘‘and 3901,’’ after ‘‘1708(b),’’; 

in the second sentence by inserting 

‘‘intended to deal with some types of 

contraband, such as certain uncertified 

diamonds, but is’’ after ‘‘It is’’; and by 

striking ‘‘importation of contraband’’

and inserting ‘‘importation of other 

types of contraband’’; and in the last 

sentence by inserting ‘‘not specifically 

covered by the Subpart’’ after ‘‘stolen 

goods’’; and by inserting ‘‘if there is not 

another more specific applicable 

guideline’’ after ‘‘upward’’. 

The Commentary to § 2T3.1 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘, 3901’’ after ‘‘1708(b)’’. 

Appendix A (Statutory Index) is 

amended by inserting after the line 

referenced to 19 U.S.C. 2401f the 

following: 

‘‘19 U.S.C. 3901 2T3.1’’. 

(D) The Unborn Victims of Violence Act 

of 2004 

The Commentary to § 2A1.1 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘1841(a)(2)(C),’’ after ‘‘1111,’’. 

The Commentary to § 2A1.2 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘1841(a)(2)(C),’’ after ‘‘1111,’’. 

The Commentary to § 2A1.3 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘1841(a)(2)(C),’’ after ‘‘1112,’’. 

The Commentary to § 2A1.4 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘1841(a)(2)(C),’’ after ‘‘1112,’’. 

The Commentary to § 2A2.1 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘1841(a)(2)(C),’’ after 

‘‘1751(c),’’. 

The Commentary to § 2A2.2 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘1841(a)(2)(C),’’ after 

‘‘1751(e),’’. 

Section 2X5.1 is amended by striking 

‘‘(b)’’ after ‘‘18 U.S.C. 3553’’; and by 

adding at the end the following: 

‘‘If the defendant is convicted under 

18 U.S.C. 1841(a)(1), apply the guideline 

that covers the conduct the defendant is 

convicted of having engaged in, as that 

conduct is described in 18 U.S.C. 

1841(a)(1) and listed in 18 U.S.C. 

1841(b).’’. 

The Commentary the § 2X5.1 is 

amended by inserting before 

‘‘Application Note:’’ the following: 

‘‘Statutory Provision: 18 U.S.C. 

1841(a)(1).’’. 

The Commentary the § 2X5.1 

captioned ‘‘Application Note’’ is 

amended by striking ‘‘Note’’ and 

inserting ‘‘Notes’’; in Note 1 by inserting 

‘‘In General.—’’ before ‘‘Guidelines’’; 

and by adding at the end the following: 

2. Convictions under 18 U.S.C. 

1841(a)(1).—

(A) In General.—If the defendant is 

convicted under 18 U.S.C. 1841(a)(1), 

the Chapter Two offense guideline that 

applies is the guideline that covers the 

conduct the defendant is convicted of 

having engaged in, i.e., the conduct of 

which the defendant is convicted that 

violates a specific provision listed in 18 

U.S.C. 1841(b) and that results in the 

death of or bodily injury to a child in 

utero at the time of the offense of 

conviction. 

(B) Upward Departure Provision.—For 

offenses under 18 U.S.C. 1841(a)(1), an 

upward departure may be warranted if 

the offense level under the applicable 

guideline does not provide an adequate 

sentence to account for the death of or 

serious bodily injury to the child in 

utero.’’. 

The Commentary to § 2X5.1 captioned 

‘‘Background’’ is amended by striking 

‘‘That statute’’ and all that follows 

through ‘‘subsection (a)(2).’’. 

Appendix A (Statutory Index) is 

amended by inserting after the line 

referenced to 18 U.S.C. 1832 the 

following: 

‘‘18 U.S.C. 1841(a)(1) 2X5.1 

18 U.S.C. 1841(a)(2)(C) 2A1.1, 

2A1.2, 2A1.3, 2A1.4, 2A2.1, 2A2.2’’. 

(E) Guideline for Class A Misdemeanors 

Chapter Two, Part X, Subpart 5 is 

amended in the heading by inserting 

‘‘FELONY’’ after ‘‘OTHER’’ and by 

adding at the end ‘‘AND CLASS A 

MISDEMEANORS’’. 

Section 2X5.1 is amended in the 

heading by inserting ‘‘Felony’’ after 

‘‘Other’’. 

Section 2X5.1 is amended by striking 

‘‘or Class A misdemeanor’’; by striking 

‘‘(b)’’ after ‘‘18 U.S.C. 3553’’; and by 

adding at the end the following: 

‘‘If the offense is a Class A 

misdemeanor that has not been 

referenced in Appendix A (Statutory 

Index) to a specific offense guideline, 

apply § 2X5.2 (Class A Misdemeanors 

(Not Covered by another Specific 

Offense Guideline)).’’. 

Chapter Two, Part X, Subpart 5 is 

amended by adding at the end the 

following: 

‘‘§ 2X5.2. Class A Misdemeanors (Not 

Covered by Another Specific Offense 

Guideline) 

(a) Base Offense Level: 6 

(b) Specific Offense Characteristic: 

(1) If the defendant committed the 

instant offense of conviction subsequent 

to sustaining a conviction under the 

same provision of law as the instant 

offense of conviction, increase by 2 

levels. 

Commentary 

Statutory Provisions: 7 U.S.C. 2156; 

18 U.S.C. 1365(f), 1801; 42 U.S.C. 

1129(a), 14133. 

Application Note: 

1. In General.—This guideline applies 

to Class A misdemeanors that are 

specifically referenced in Appendix A 

(Statutory Index) to this guideline. This 

guideline also applies to Class A 

misdemeanors that have not been 

referenced in Appendix A to another 

specific offense guideline in Chapter 

Two. Do not apply this guideline to a 

Class A misdemeanor that has been 

referenced in the Statutory Index to a 

guideline other than this one.’’. 

Appendix A (Statutory Index) is 

amended by inserting after the line 

referenced to 7 U.S.C. 2024(c) the 

following: 

‘‘7 U.S.C. 2156 2X5.2’’; by inserting 

after the line referenced to 18 U.S.C. 

1121 the following: 

‘‘18 U.S.C. 1129(a) 2X5.2’’; by 

inserting after the line referenced to 18 

U.S.C. 1365(e) the following: 

‘‘18 U.S.C. 1365(f) 2X5.2’’; by 

inserting after the line referenced to 18 

U.S.C. 1792 the following: 

‘‘18 U.S.C. 1801 2X5.2’’; and by 

inserting after the line referenced to 42 

U.S.C. 9603(d) the following: 

‘‘42 U.S.C. 14133’’. 

Issue for Comment: The Commission 

requests comment regarding whether it 

should reference to proposed § 2X5.2 

any other Class A misdemeanor offense 

currently referenced in Appendix A to 

a guideline that does not provide a 

higher offense level than proposed 

§ 2X5.2. Are there additional Class A 

misdemeanor offenses not currently 

referenced in Appendix A that should 

be included in Appendix A and 

referenced to proposed § 2X5.2? 

10. Application Issues 

Synopsis of Proposed Amendment: 

This proposed amendment addresses 

several issues of guideline application 

identified through inquiries made on 

the Commission’s Helpline and at 

guideline seminars. The proposed 


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amendment would make the following 

changes: 

(A) Modifies the cross reference in 

§ 2D1.1 (Unlawful Manufacturing, 

Importing, Exporting, or Trafficking 

(Including Possession with Intent to 

Commit These Offenses); Attempt or 

Conspiracy) to allow the court to apply 

§ 2A1.2 (Second Degree Murder) for 

cases in which the conduct involved is 

second degree murder. Currently the 

cross reference only allows the court to 

apply § 2A1.1(First Degree Murder) even 

if the conduct does not constitute first 

degree murder. The proposed 

amendment also adds language that the 

cross reference to § 2A1.1 or § 2A1.2 

should be applied if the offense level is 

greater than that determined under 

§ 2D1.1. 

(B) Adds to Chapter Three a new 

guideline, § 3C1.3 (Offenses Committed 

While on Release), which provides a 

three-level adjustment in cases in which 

the statutory sentencing enhancement at 

18 U.S.C. 3147 (Penalty for an offense 

committed while on release) applies. 

Currently, § 2J1.7 (Commission of an 

Offense While on Release) corresponds 

to the statutory enhancement at 18 

U.S.C. 3147 and provides for a threelevel enhancement that is added to the 

offense level for the offense the 

defendant committed while on release. 

However, despite its reference in 

Appendix A (Statutory Index), 18 U.S.C. 

3147 is not a statute of conviction, so 

there is no basis for requiring 

application of Appendix A. 

Accordingly, § 2J1.7 may be overlooked. 

Creating a Chapter Three adjustment for 

18 U.S.C. 3147 cases is consistent with 

other adjustments currently in Chapter 

Three, all of which also apply to a broad 

range of offenses. The proposed 

amendment also eliminates commentary 

regarding a notice requirement. The 

majority of circuit courts have found 

that there is no notice requirement in 

order for 18 U.S.C. 3147 to apply. 

(C) Deletes from the Drug Quantity 

Table in § 2D1.1 language that indicates 

the court should apply ‘‘the equivalent 

amount of Schedule I or II Opiates’’ (in 

the line referenced to Heroin), ‘‘the 

equivalent amount of Schedule I or II 

Stimulants’’ (in the line referenced to 

Cocaine), and ‘‘the equivalent amount of 

Schedule I or II Hallucinogens’’ (in the 

line referenced to LSD). Although 

Application Note 10 sets forth the 

marihuana equivalencies for substances 

not specifically referenced in the Drug 

Quantity Table, some guideline users 

erroneously calculate the base offense 

level without converting the controlled 

substance to its marihuana equivalency. 

For example, instead of converting 10 

KG of morphine (an opiate) to 5000 KG 

of marihuana and determining the base 

offense level on that marihuana 

equivalency (resulting in a BOL of 34), 

some guideline users are determining 

the base offense level on the 10 KG of 

morphine (resulting in a BOL of 36). 

The proposed amendment would delete 

the problematic language and also 

clarify in Application Note 10 that, for 

cases involving a substance not 

specifically referenced in the Drug 

Quantity Table, the court is to 

determine the base offense level using 

the marihuana equivalency for that 

controlled substance. 

Proposed Amendment: 

(A) Cross Reference to Murder 

Guidelines 

Proposed Amendment: Section 

2D1.1(d) is amended by inserting ‘‘or 

§ 2A1.2 (Second Degree Murder), as 

appropriate, if the resulting offense level 

is greater than that determined under 

this guideline’’ after ‘‘Murder)’’. 

(B) § 2J1.7 (Commission of Offense 

While on Release) 

Proposed Amendment: The 

Commentary to § 1B1.1 captioned 

‘‘Application Notes’’ is amended by 

striking Note 6 and by redesignating 

Note 7 as Note 6. 

Chapter Two, Part J is amended by 

striking section § 2J1.7. 

Chapter Three, Part C is amended in 

the heading by adding at the end ‘‘AND 

RELATED ADJUSTMENTS’’. 

Chapter Three, Part C is amended by 

adding at the end the following: 

‘‘3C1.3. Commission of Offense 

While on Release 

If a statutory sentencing enhancement 

under 18 U.S.C. 3147 applies, increase 

the offense level by 3 levels. 

Commentary 

Application Note: 

1. Under 18 U.S.C. 3147, a sentence 

of imprisonment must be imposed in 

addition to the sentence for the 

underlying offense, and the sentence of 

imprisonment imposed under 18 U.S.C. 

3147 must run consecutively to any 

other sentence of imprisonment. 

Therefore, the court, in order to comply 

with the statute, should divide the 

sentence on the judgment form between 

the sentence attributable to the 

underlying offense and the sentence 

attributable to the enhancement. The 

court will have to ensure that the ‘‘total 

punishment’’ (i.e., the sentence for the 

offense committed while on release plus 

the sentence enhancement under 18 

U.S.C. 3147) is in accord with the 

guideline range for the offense 

committed while on release, as adjusted 

by the enhancement in this section. For 

example, if the applicable adjusted 

guideline range is 30–37 months and the 

court determines ‘total punishment’ of 

36 months is appropriate, a sentence of 

30 months for the underlying offense 

plus 6 months under 18 U.S.C. 3147 

would satisfy this requirement. 

Background: ‘‘This guideline enables 

the court to determine and implement a 

combined ‘total punishment’ consistent 

with the overall structure of the 

guidelines, while at the same time 

complying with the statutory 

requirement.’’. 

(C) ‘‘or Equivalent Amount’’

Proposed Amendment: Section 

2D1.1(c) is amended by striking ‘‘(or the 

equivalent amount of other Schedule I 

or II Opiates)’’ each place it appears; by 

striking ‘‘(or the equivalent amount of 

other Schedule I or II Stimulants)’’ each 

place it appears; and by striking ‘‘(or the 

equivalent amount of other Schedule I 

or II Hallucinogens)’’ each place it 

appears. 

The Commentary to § 2D1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 10 in the first paragraph by striking 

the third and fourth sentences and 

inserting the following: 

‘‘In the case of a controlled substance 

that is not specifically referenced in the 

Drug Quantity Table, determine the base 

offense level as follows: 

(A) use the Drug Equivalency Tables 

to convert the quantity of the controlled 

substance involved in the offense to its 

equivalent quantity of marihuana; 

(B) find the equivalent quantity of 

marihuana in the Drug Quantity Table; 

and 

(C) use the offense level that 

corresponds to the equivalent quantity 

of marihuana as the base offense level 

for the controlled substance involved in 

the offense. 

(See also Application Note 5.) For 

example, in the Drug Equivalency 

Tables, one gram of a substance 

containing oxymorphone, a Schedule I 

opiate, converts to an equivalent 

quantity of five kilograms of marihuana. 

In a case involving 100 g of 

oxymorphone, the equivalent quantity 

of marihuana would be 5000 KG, which 

corresponds to a base offense level of 28 

in the Drug Quantity Table.’’. 

11. Circuit Conflicts (§ 3C1.1) 

Synopsis of Proposed Amendment: 

This proposed amendment addresses a 

circuit conflict regarding whether preinvestigative conduct can form the basis 

of an adjustment under § 3C1.1 

(Obstructing or Impeding the 

Administration of Justice). The First, 

Seventh, Tenth, and District of 

Columbia Circuits have concluded that 


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pre-investigation conduct can be used to 

support an obstruction adjustment. See 

United States v. McGovern, 329 F.3d 

247, 252 (1st Cir. 2003) (holding that the 

submission of false run sheets to 

Medicare and Medicaid representatives 

qualified for the enhancement even 

though the administrative audits were 

not part of a criminal investigation 

because there was a ‘‘close connection 

between the obstructive conduct and the 

offense of conviction’’); United States v. 

Snyder, 189 F.3d 640, 649 (7th Cir. 

1999) (holding that adjustment was 

appropriate in case in which defendant 

made pre-investigation threat to victim 

and did not withdraw his threat after 

the investigation began, thus obstructing 

justice during the course of the 

investigation); United States v. Mills, 

194 F.3d 1108, 1115 (10th Cir. 1999) 

(holding that destruction of tape that 

occurred before an investigation began 

warranted application of the 

enhancement for obstruction of justice 

because the defendant knew an 

investigation would be conducted and 

understood the importance of the tape 

in that investigation); United States v. 

Barry, 938 F.2d 1327, 1333–34 (D.C. Cir. 

1991) (‘‘Given the commentary and the 

case law interpreting § 3C1.1, we 

conclude that the enhancement applies 

if the defendant attempted to obstruct 

justice in respect to the investigation or 

prosecution of the offense of conviction, 

even if the obstruction occurred before 

the police or prosecutors began 

investigating or prosecuting the specific 

offense of conviction.’’). The Fourth, 

Sixth, and Eighth Circuits have held 

that pre-investigation conduct cannot 

support application of the obstruction of 

justice adjustment. See United States v. 

Self, 132 F.3d 1039 (4th Cir. 1997) 

(conduct occurring before any 

investigation begins is not encompassed 

within obstruction of justice provision 

of Sentencing Guidelines); United States 

v. Baggett, 342 F.3d 536, 542 (6th Cir. 

2003) (holding that the obstruction of 

justice enhancement could not be 

justified on the basis of the threats that 

the defendant made to the victim prior 

to the investigation, prosecution, or 

sentencing of the offense); United States 

v. Stolba, 357 F.3d 850, 852–53 (8th Cir. 

2004) (holding that an obstruction 

adjustment is not available when 

destruction of documents occurred 

before an official investigation had 

commenced); see also United States v. 

Clayton, 172 F.3d 347, 355 (5th Cir. 

1999) (holding that defendant’s threats 

to witnesses warrant the enhancement 

under § 3C1.1, but stating in dicta that 

the guideline ‘‘specifically limits 

applicable conduct to that which occurs 

during an investigation * * *.’’). 

The proposed amendment would 

permit application of § 3C1.1 to preinvestigative conduct if that conduct 

was intended to prevent or hinder the 

investigation, prosecution, or sentencing 

of the instant offense of conviction. 

Consistent with current application of 

the adjustment, the pre-investigative 

conduct also must relate to the offense 

of conviction and all relevant conduct 

or to a closely related offense. 

The proposed amendment also 

addresses two other circuit conflicts by 

amending Application Note 4(b) to 

include ‘‘perjury in the course of a civil 

proceeding (if the perjury pertains to 

conduct comprising the offense of 

conviction)’’ and ‘‘false statements on a 

financial affidavit in order to obtain 

court appointed counsel’’ as examples 

of conduct to which § 3C1.1 normally 

would apply. 

Proposed Amendment: Section 3C1.1 

is amended by striking ‘‘If’’ and all that 

follows through ‘‘2 levels.’’ and 

inserting the following: 

‘‘If—

(1) the defendant willfully obstructed or 

impeded, or attempted to obstruct or impede, 

the administration of justice; 

(2) the conduct or attempted conduct 

described in subdivision (1) occurred (A) 

prior to the investigation of the instant 

offense of conviction, and was intended to 

prevent or hinder the investigation, 

prosecution, or sentencing of the instant 

offense of conviction; or (B) during the 

course of the investigation, prosecution, or 

sentencing of the instant offense of 

conviction; and 

(3) the conduct or attempted conduct 

described in subdivision (1) related to (A) the 

defendant’s offense of conviction and any 

relevant conduct; or (B) a closely related 

offense, 

increase by 2 levels.’’. 

The Commentary to § 3C1.1 captioned 

‘‘Application Notes’’ is amended by 

striking Note 1 and inserting the 

following: 

‘‘1. In General.—Subdivision (3) 

makes clear that, in order for an 

adjustment under this section to apply, 

the obstructive or attempted obstructive 

conduct must be related to the 

defendant’s offense of conviction and 

any relevant conduct, or to an otherwise 

closely related case, such as the case of 

a co-defendant.’’. 

The Commentary to § 3C1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 2 by inserting ‘‘Limitations on 

Applicability of Adjustment.—’’ before 

‘‘This provision’’; in Note 3 by inserting 

‘‘Covered Conduct Generally.—’’ before 

‘‘Obstructive’’; in Note 4 by inserting 

‘‘Examples of Covered Conduct.—’’

before ‘‘The following’’; in Note 5 by 

inserting ‘‘Examples of Conduct Not 

Covered.—’’ before ‘‘Some types’’; in 

Note 6 by inserting ‘‘ ‘Material’ Evidence 

Defined.—’’ before ‘‘ ‘Material’

evidence’’; in Note 7 by inserting 

‘‘Inapplicability of Adjustment in 

Certain Circumstances.—’’ before ‘‘If the 

defendant’’; in Note 8 by inserting 

‘‘Grouping.—’’ before ‘‘If the 

defendant’’; and in Note 9 by inserting 

‘‘Accountability for § 1B1.3(a)(1)(A) 

Conduct.—’’. 

The Commentary to § 3C1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 4 in subdivision (b) by inserting ‘‘, 

including during the course of a civil 

proceeding pertaining to conduct 

constituting the offense of conviction’’

after ‘‘perjury’’; by striking the period at 

the end of subdivision (j) and inserting 

a semi-colon; and by adding at the end 

the following: 

‘‘(k) threatening the victim of the 

offense in order to prevent the victim 

from reporting the conduct constituting 

the offense of conviction; 

(l) making false statements on a 

financial affidavit in order to obtain 

court-appointed counsel.’’. 

12. Chapter Eight—Privilege Waiver 

Issue for Comment: The Commission 

has been asked to reconsider a portion 

of its 2004 amendments to Chapter 

Eight, the Organizational Sentencing 

Guidelines, namely, a single sentence of 

commentary at § 8C2.5(g). Section 8C2.5 

provides for the calculation of the 

culpability score for defendant 

organizations, and subsection (g) 

provides for graduated decreases in the 

culpability score if a defendant 

organization has self-reported, 

cooperated with the authorities, and 

accepted responsibility. In 2004, the 

Commission added the following 

sentence to the commentary: 

Waiver of attorney-client privilege 

and of work product protections is not 

a prerequisite to a reduction in 

culpability score under subdivisions (1) 

and (2) of subsection (g) [Self-Reporting, 

Cooperation, and Acceptance of 

Responsibility] unless such waiver is 

necessary in order to provide timely and 

thorough disclosure of all pertinent 

information known to the organization. 

In the Reason for Amendment (see 

Supplement to Appendix C 

(Amendment 673)), the Commission 

stated that it expects such waivers will 

be required on a limited basis, 

consistent with statements of the 

Department of Justice in the United 

States Attorneys’ Bulletin, November 

2003, Volume 51, Number 6, pp. 1 and 

8. 

In light of requests to modify or 

remove this language submitted to the 


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Commission in the past year, the 

Commission listed as one of its 

priorities for the current amendment 

cycle, the ‘‘review and possible 

amendment’’ of the waiver language in 

Application Note 12. At its public 

meeting on November 15, 2005, the 

Commission heard testimony from five 

representatives on behalf of various 

organizations (the American Bar 

Association, the Association of 

Corporate Counsel, National Association 

of Manufacturers, the Chemistry 

Council, the Chamber of Commerce, the 

National Association of Criminal 

Defense Lawyers, and former officials of 

the Department of Justice) about what 

they perceived as the unintended but 

potentially deleterious effects on the 

criminal justice process of this 

commentary language. 

Accordingly, the Commission solicits 

comment on the following: (1) whether 

this commentary language is having 

unintended consequences; (2) if so, how 

specifically has it adversely affected the 

application of the sentencing guidelines 

and the administration of justice; (3) 

whether this commentary language 

should be deleted or amended; and (4) 

if it should be amended, in what 

manner. 

13. Crime Victims’ Rights 

Synopsis of Proposed Amendment: As 

part of the Justice for All Act of 2004, 

Pub. L. 108–405, Congress provided 

crime victims various rights during the 

criminal justice process. These rights 

are set forth at 18 U.S.C. 3771. Included 

is the ‘‘right to be reasonably heard at 

any public proceeding in the district 

court involving release, plea, 

sentencing, or any parole proceeding.’’

18 U.S.C. 3771(a)(4). This proposed 

amendment amends Chapter Six 

(Sentencing Procedures and Plea 

Agreements) to provide a policy 

statement regarding crime victims’

rights. 

Proposed Amendment: Chapter Six is 

amended in the heading by striking 

‘‘AND’’ and inserting a comma; and by 

adding at the end ‘‘, AND CRIME 

VICTIMS’ RIGHTS’’. 

Chapter Six, Part A is amended by 

adding at the end the following: 

‘‘§ 6A1.5. Crime Victims’ Rights 

(Policy Statement). 

In any case involving the sentencing 

of a defendant for an offense against a 

crime victim, the court shall ensure that 

the crime victim is afforded the rights 

described in 18 U.S.C. 3771 and in any 

other provision of Federal law 

pertaining to the treatment of crime 

victims. 

Commentary 

Application Note: 

1. Definition.—For purposes of this 

policy statement, ‘crime victim’ has the 

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

3771(e).’’. 

14. Reductions in Term of Imprisonment 

Based on Bureau of Prisons Motion 

Synopsis of Proposed Amendment: 

This proposed amendment implements 

the directive in 28 U.S.C. 994(t) that the 

Commission ‘‘in promulgating general 

policy statements regarding the sentence 

modification provisions in section 

3582(c)(1)(A) of title 18, shall describe 

what should be considered 

extraordinary and compelling reasons 

for sentence reduction, including the 

criteria to be applied and a list of 

specific examples.’’

The proposed amendment provides a 

new policy statement at § 1B1.13 

(Reduction in Term of Imprisonment as 

a Result of Motion by Director of Bureau 

of Prisons). The policy statement 

restates the statutory bases for a 

reduction in sentence under 18 U.S.C. 

3582(c)(1)(A). In addition, the policy 

statement provides that in all cases 

there must be a determination made by 

the court that the defendant no longer 

is a danger to the community. Proposed 

Application Note 1 has two purposes. 

First, it provides a rebuttable 

presumption with respect to a Bureau of 

Prisons motion for a reduction based on 

extraordinary and compelling reasons. 

Second, as stated in 28 U.S.C. 994(t), the 

Note states that rehabilitation of the 

defendant alone shall not be considered 

an extraordinary and compelling reason 

warranting a reduction. 

Proposed Amendment: Chapter One, 

Part B is amended by adding at the end 

the following: 

‘‘1B1.13. Reduction in Term of 

Imprisonment as a Result of Motion by 

Director of Bureau of Prisons (Policy 

Statement). 

Upon motion of the Director of the 

Bureau of Prisons under 18 U.S.C. 

3582(c)(1)(A), the court may reduce a 

term of imprisonment if, after 

considering the factors set forth in 18 

U.S.C. 3553(a), the court determines 

that—

(1) (A) an extraordinary and 

compelling reason warrants the 

reduction; or 

(B) the defendant is (i) at least 70 

years old; and (ii) has served at least 30 

years in prison pursuant to a sentence 

imposed under 18 U.S.C. 3559(c) for the 

offense or offenses for which the 

defendant is imprisoned; 

(2) the defendant is not a danger to 

the safety of any other person or to the 

community pursuant to 18 U.S.C. 

3142(g); and 

(3) the reduction is consistent with 

this policy statement. 

Commentary 

Application Notes: 

1. Application of Subdivision 

(1)(A).—

(A) Extraordinary and Compelling 

Reasons.—A determination made by the 

Director of the Bureau of Prisons that a 

particular case warrants a reduction for 

extraordinary and compelling reasons 

shall be considered as such for purposes 

of subdivision (1)(A). 

(B) Rehabilitation of the Defendant.—

Pursuant to 28 U.S.C. 994(t), 

rehabilitation of the defendant is not, by 

itself, an extraordinary and compelling 

reason for purposes of subdivision 

(1)(A). 

2. Application of Subdivision (3).—

Any reduction made pursuant to a 

motion by the Director of the Bureau of 

Prisons for the reasons set forth in 

subdivisions (1) and (2) is consistent 

with this policy statement. 

Background: This policy statement 

implements 28 U.S.C. 994(t).’’. 

Issue for Comment: The Commission 

requests comment regarding: 

(1) Whether the provisions of 

subdivision (1)(B) should be expanded 

to cover defendants who are at least 70 

years old and have served at least 30 

years in prison pursuant to a sentence 

imposed under any statute provided 

that the sentence imposed for offense(s) 

for which the defendant is imprisoned 

was not life imprisonment. 

(2) If the Commission does so expand 

subdivision (1)(B) as described in 

paragraph (1), should certain offenses be 

excluded from application of 

subdivision (1)(B), such as terrorism 

offenses or sexual offenses involving 

minors. 

[FR Doc. 06–697 Filed 1–26–06; 8:45 am] 

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