[Federal Register Volume 72, Number 79 (Wednesday, April 25, 2007)]
[Notices]
[Pages 20576-20577]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7915]


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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of a temporary, emergency amendment to sentencing 
guidelines, policy statements, and commentary.

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SUMMARY: Pursuant to section 4 of the Telephone Records and Privacy 
Protection Act of 2006 (the ``Telephone Act''), Pub. L. 109-476, the 
Commission hereby gives notice of a temporary, emergency amendment to 
the sentencing guidelines, policy statements, and commentary. This 
notice sets forth the temporary, emergency amendment and the reason for 
amendment.

DATES: The Commission has specified an effective date of May 1, 2007, 
for the emergency amendment.

FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs 
Officer, Telephone: (202) 502-4590.

SUPPLEMENTARY INFORMATION: The Commission must promulgate a temporary, 
emergency amendment to implement the directive to section 4 of the 
Telephone Act by July 11, 2007. On January 30, 2007, the Commission 
published in the Federal Register an issue for comment regarding the 
implementation of this directive.
    The temporary, emergency amendment set forth in this notice also 
may be accessed through the Commission's Web site at http://www.ussc.gov.

    Authority: 28 U.S.C. 994(a), (o), (p), (x); section 4 of Pub. L. 
109-497.

Ricardo H. Hinojosa,
Chair.

Pretexting

    Amendment: Section 2H3.1 is amended in the heading by striking 
``Tax Return Information'' and inserting ``Certain Private or Protected 
Information''.
    Section 2H3.1(b)(1) is amended by inserting ``(A) the defendant is 
convicted under 18 U.S.C. Sec.  1039(d) or (e); or (B)'' after ``If''.
    The Commentary to Sec.  2H3.1 captioned ``Statutory Provisions'' is 
amended by inserting ``Sec.  1039,'' after ``18 U.S.C.Sec. ''.
    The Commentary to Sec.  2H3.1 captioned ``Application Notes'' is 
amended by striking Note 1; by redesignating Note 2 as Note 1; and by 
inserting after Note 1, as redesignated by this amendment, the 
following:
    ``2. Imposition of Sentence for 18 U.S.C. Sec.  1039(d) and (e).--
Subsections 1039(d) and (e) of title 18, United States Code, require a 
term of imprisonment of not more than 5 years to be imposed in addition 
to any sentence imposed for a conviction under 18 U.S.C. Sec.  1039(a), 
(b), or (c). In order to comply with the statute, the court should 
determine the appropriate `total punishment' and divide the sentence on 
the judgment form between the sentence attributable to the conviction 
under 18 U.S.C. Sec.  1039(d) or (e) and the sentence attributable to 
the conviction under 18 U.S.C. Sec.  1039(a), (b), or (c), specifying 
the number of months to be served for the conviction under 18 U.S.C. 
Sec.  1039(d) or (e). For example, if the applicable adjusted guideline 
range is 15-21 months and the court determines a `total punishment' of 
21 months is appropriate, a sentence of 9 months for conduct under 18 
U.S.C. Sec.  1039(a) plus 12 months for 18 U.S.C. Sec.  1039(d) conduct 
would achieve the `total punishment' in a manner that satisfies the 
statutory requirement.
    3. Upward Departure.--There may be cases in which the offense level 
determined under this guideline substantially understates the 
seriousness of the offense. In such a case, an upward departure may be 
warranted. The following are examples of cases in which an upward 
departure may be warranted:
    (i) The offense involved confidential phone records information of 
a substantial number of individuals.
    (ii) The offense caused or risked substantial non-monetary harm 
(e.g. physical harm, psychological harm, severe emotional trauma, or a 
substantial invasion of privacy interest) to individuals whose private 
or protected information was obtained.''.
    The Commentary to Sec.  2H3.1 is amended by striking the Background 
Commentary. Appendix A (Statutory Index) is amended by inserting after 
the line referenced to 18 U.S.C. Sec.  1038 the following new line:

``18 U.S.C. Sec.  1039 2H3.1''.

    Reason for Amendment: This amendment implements the emergency 
directive in section 4 of the Telephone Records and Privacy Protection 
Act of 2006, Pub. L. 109-476. The directive, which requires the 
Commission to promulgate an amendment under emergency amendment 
authority by July 11, 2007, instructs the Commission to ``review and, 
if appropriate, amend the Federal sentencing guidelines and policy 
statements applicable to persons convicted of any offense under section 
1039 of title 18, United States Code.'' Section 1039 criminalizes the 
fraudulent acquisition or disclosure of confidential phone records. The 
penalties for violating the statute include fines and imprisonment for 
a term not to exceed 10 years. The statute also includes enhanced 
penalties for certain forms of aggravated conduct, providing for up to 
a five year term of imprisonment, in addition to the penalties for a 
violation of section 1039(a), (b), or (c). See 18 U.S.C. 1039(d), (e).
    The amendment refers the new offense at 18 U.S.C. 1039 to Sec.  
2H3.1 (Interception of Communications; Eavesdropping; Disclosure of Tax 
Return Information). The Commission concluded that disclosure of 
telephone records is similar to the types of privacy offenses 
referenced to this guideline. In addition, this guideline includes a 
cross reference, instructing that if the purpose of the offense was to 
facilitate another offense, that the guideline applicable to an attempt 
to commit the other offenses

[[Page 20577]]

should be applied, if the resulting offense level is higher. The 
Commission concluded that operation of the cross reference would 
capture the harms associated with the aggravated forms of this offense 
referenced at 18 U.S.C. 1039(d) or (e). Finally, the amendment expands 
the scope of the existing three-level enhancement in the guideline to 
include cases in which the defendant is convicted under 18 U.S.C. 
1039(d) or (e). Thus, in cases where the cross reference does not 
apply, application of the enhancement will capture the increased harms 
associated with the aggravated offenses.

 [FR Doc. E7-7915 Filed 4-24-07; 8:45 am]
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