28558 Federal Register / Vol. 72, No. 97 / Monday, May 21, 2007 / Notices 

UNITED STATES SENTENCING 

COMMISSION 

Sentencing Guidelines for United 

States Courts 

AGENCY: United States Sentencing 

Commission. 

ACTION: Notice of submission to 

Congress of amendments to the 

sentencing guidelines effective 

November 1, 2007. 

SUMMARY: Pursuant to its authority 

under 28 U.S.C. 994(p), the Commission 

has promulgated amendments to the 

sentencing guidelines, policy 

statements, commentary, and statutory 

index. This notice sets forth the 

amendments and the reason for each 

amendment. 

DATES: The Commission has specified 

an effective date of November 1, 2007, 

for the amendments set forth in this 

notice. 

FOR FURTHER INFORMATION CONTACT: 

Michael Courlander, Public Affairs 

Officer, 202–502–4590. The 

amendments set forth in this notice also 

may be accessed through the 

Commission’s Web site at http:// 

www.ussc.gov. 

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 sentencing 

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 generally submits guideline 

amendments to Congress pursuant to 28 

U.S.C. 994(p) not later than the first day 

of May each year. Absent action of 

Congress to the contrary, submitted 

amendments become effective by 

operation of law on the date specified 

by the Commission (generally November 

1 of the year in which the amendments 

are submitted to Congress). 

Notice of proposed amendments was 

published in the Federal Register on 

January 30, 2007 (see 72 FR 4372). The 

Commission held a public hearing on 

the proposed amendments in 

Washington, DC, on March 20, 2007. On 

May 1, 2007, the Commission submitted 

these amendments to Congress and 

specified an effective date of November 

1, 2007. 

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

USSC Rule of Practice and Procedure 4.1. 

Ricardo H. Hinojosa, 

Chair. 

1. Compassionate Release 

Amendment: The Commentary to 

§ 1B1.13 captioned ‘‘Application Notes’’ 

is amended in Note 1 by striking 

subdivision (A) and inserting the 

following: 

‘‘(A) Extraordinary and Compelling 

Reasons.—Provided the defendant meets the 

requirements of subdivision (2), 

extraordinary and compelling reasons exist 

under any of the following circumstances: 

(i) The defendant is suffering from a 

terminal illness. 

(ii) The defendant is suffering from a 

permanent physical or medical condition, or 

is experiencing deteriorating physical or 

mental health because of the aging process, 

that substantially diminishes the ability of 

the defendant to provide self-care within the 

environment of a correctional facility and for 

which conventional treatment promises no 

substantial improvement. 

(iii) The death or incapacitation of the 

defendant’s only family member capable of 

caring for the defendant’s minor child or 

minor children. 

(iv) As determined by the Director of the 

Bureau of Prisons, there exists in the 

defendant’s case an extraordinary and 

compelling reason other than, or in 

combination with, the reasons described in 

subdivisions (i), (ii), and (iii).’’. 

The Commentary to § 1B1.13 is 

amended by striking ‘‘Background’’ and 

all that follows through the end of 

‘‘statute.’’ and inserting the following: 

‘‘Background: This policy statement 

implements 28 U.S.C. 994(t).’’. 

Reason for Amendment: This 

amendment modifies the policy 

statement at § 1B1.13 (Reduction in 

Term of Imprisonment as a Result of 

Motion by Director of Bureau of Prisons) 

to further effectuate the directive in 28 

U.S.C. 994(t). Section 994(t) provides 

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 amendment 

revises Application Note 1(A) of 

§ 1B1.13 to provide four examples of 

circumstances that, provided the 

defendant is not a danger to the safety 

of any other person or to the 

community, would constitute 

‘‘extraordinary and compelling reasons’’ 

for purposes of 18 U.S.C. 3582(c)(1)(A). 

2. Transportation 

Amendment: The Commentary to 

§ 2A1.1 captioned ‘‘Statutory 

Provisions’’ is amended by inserting 

‘‘1992(a)(7),’’ after ‘‘1841(a)(2)(C),’’; and 

by inserting ‘‘2199, 2291,’’ after 

‘‘2118(c)(2),’’. 

The Commentary to § 2A1.2 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘2199, 2291,’’ after 

‘‘1841(a)(2)(C),’’. 

The Commentary to § 2A1.3 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘2199, 2291,’’ after 

‘‘1841(a)(2)(C),’’. 

The Commentary to § 2A1.4 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘2199, 2291,’’ after 

‘‘1841(a)(2)(C),’’. 

The Commentary to § 2A1.4 captioned 

‘‘Application Note’’ is amended in Note 

1 by striking ‘‘18 U.S.C. 1993(c)(5)’’ and 

inserting ‘‘18 U.S.C. 1992(d)(7)’’. 

The Commentary to § 2A2.1 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘1993(a)(6)’’ and inserting 

‘‘1992(a)(7), 2199, 2291’’. 

The Commentary to § 2A2.2 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘1993(a)(6),’’ and inserting 

‘‘1992(a)(7), 2199, 2291,’’. 

The Commentary to § 2A2.3 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘, 2199, 2291’’ after ‘‘1751(e)’’. 

The Commentary to § 2A2.4 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘2237(a)(1), (a)(2)(A),’’ after 

‘‘1502,’’. 

Section 2A5.2 is amended in the 

heading by inserting ‘‘Navigation,’’ after 

‘‘Dispatch,’’; and by striking ‘‘or Ferry’’. 

Sections 2A5.2(a)(1) and (a)(2) are 

amended by striking the comma after 

‘‘facility’’ each place it appears and 

inserting ‘‘or’’; and by striking ‘‘, or a 

ferry’’ each place it appears. 

The Commentary to § 2A5.2 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘1993(a)(4), (5), (6), (b);’’ and 

inserting ‘‘1992(a)(1), (a)(4), (a)(5), 

(a)(6);’’. 

The Commentary to § 2A5.2 captioned 

‘‘Application Note’’ is amended in Note 

1 in the last paragraph by striking ‘‘18 

U.S.C. 1993(c)(5)’’ and inserting ‘‘18 

U.S.C. 1992(d)(7)’’. 

The Commentary to § 2A6.1 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘1993(a)(7), (8),’’ and inserting 

‘‘1992(a)(9), (a)(10), 2291(a)(8), 2291(e), 

2292,’’. 

Section 2B1.1(b) is amended by 

striking subdivision (11) and inserting 

the following: 

‘‘(11) If the offense involved an organized 

scheme to steal or to receive stolen (A) 

vehicles or vehicle parts; or (B) goods or 

chattels that are part of a cargo shipment, 


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increase by 2 levels. If the offense level is less 

than level 14, increase to level 14.’’. 

The Commentary to § 2B1.1 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘(a)(1), (a)(5)’’ after ‘‘1992’’; by 

striking ‘‘1993(a)(1), (a)(4),’’; by 

inserting ‘‘2291,’’ after ‘‘2113(b),’’; and 

by inserting ‘‘14915,’’ after ‘‘49 U.S.C. 

§ ’’. 

The Commentary to § 2B1.1 captioned 

‘‘Application Notes’’ is amended by 

striking Note 10 and inserting the 

following: 

‘‘10. Application of Subsection (b)(11).—

Subsection (b)(11) provides a minimum 

offense level in the case of an ongoing, 

sophisticated operation (e.g., an auto theft 

ring or ’chop shop’) to steal or to receive 

stolen (A) vehicles or vehicle parts; or (B) 

goods or chattels that are part of a cargo 

shipment. For purposes of this subsection, 

’vehicle’ means motor vehicle, vessel, or 

aircraft. A ’cargo shipment’ includes cargo 

transported on a railroad car, bus, steamboat, 

vessel, or airplane.’’. 

Section 2B2.3(b)(1) is amended by 

striking ‘‘secured’’ each place it appears 

and inserting ‘‘secure’’; and by inserting 

‘‘or a seaport’’ after ‘‘airport’’. 

The Commentary to § 2B2.3 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘, 2199’’ after ‘‘1036’’. 

The Commentary to § 2B2.3 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by adding at the end the 

following: 

‘‘ ‘Seaport’ has the meaning given that term 

in 18 U.S.C. 26.’’. 

The Commentary to § 2B2.3 captioned 

‘‘Background’’ is amended by striking 

‘‘secured’’ before ‘‘government’’ and 

inserting ‘‘secure’’; and by striking ‘‘, 

such as nuclear facilities,’’ and inserting 

‘‘(such as nuclear facilities) and other 

locations (such as airports and 

seaports)’’. 

The Commentary to § 2C1.1 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘226,’’ after ‘‘§§ 201(b)(1), 

(2),’’. 

The Commentary to § 2K1.4 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘(a)(1), (a)(2), (a)(4)’’ after 

‘‘1992’’; by striking ‘‘1993(a)(1), (a)(2), 

(a)(3), (b),’’; and by inserting ‘‘2291,’’

after ‘‘2275,’’. 

The Commentary to § 2K1.4 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by striking ‘‘18 U.S.C. 

1993(c)(5)’’ and inserting ‘‘18 U.S.C. 

1992(d)(7)’’. 

The Commentary to § 2M6.1 

captioned ‘‘Statutory Provisions’’ is 

amended by striking ‘‘1993(a)(2), (3), (b), 

2332a (only with respect to weapons of 

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

2332a(c)(2)(B), (C), and (D)),’’ and 

inserting ‘‘1992(a)(2), (a)(3), (a)(4), (b)(2), 

2291,’’. 

The Commentary to § 2Q1.1 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘18 U.S.C. 1992(b)(3);’’ before 

‘‘33 U.S.C. 1319(c)(3);’’. 

Section 2X1.1 is amended in 

subsection (d)(1)(A) by inserting ‘‘(a)(1)–

(a)(7), (a)(9), (a)(10)’’ after ‘‘1992’’; and 

in subsection (d)(1)(B) by inserting 

‘‘and’’ after ‘‘§ 32;’’; and by striking ‘‘18 

U.S.C. 1993; and’’. 

The Commentary to § 2X5.2 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘; 49 U.S.C. 31310’’ after 

‘‘14133’’. 

Appendix A (Statutory Index) is 

amended by inserting after the line 

referenced to 18 U.S.C. 225 the 

following: 

‘‘18 U.S.C. 226—2C1.1’’

by inserting after the line referenced to 

18 U.S.C. 1035 the following: 

‘‘18 U.S.C. 1036—2B2.3’’; 

by striking the line referenced to 18 

U.S.C. 1992 through the end of the line 

referenced to 18 U.S.C. 1993(b) and 

inserting the following: 

‘‘18 U.S.C. 1992(a)(1)—2A5.2, 2B1.1, 2K1.4, 

2X1.1 

18 U.S.C. 1992(a)(2)—2K1.4, 2M6.1, 2X1.1 

18 U.S.C. 1992(a)(3)—2M6.1, 2X1.1 

18 U.S.C. 1992(a)(4)—2A5.2, 2K1.4, 2M6.1, 

2X1.1 

18 U.S.C. 1992(a)(5)—2A5.2, 2B1.1, 2X1.1 

18 U.S.C. 1992(a)(6)—2A5.2, 2X1.1 

18 U.S.C. 1992(a)(7)—2A1.1, 2A2.1, 2A2.2, 

2X1.1 

18 U.S.C. 1992(a)(8)—2X1.1 

18 U.S.C. 1992(a)(9)—2A6.1, 2X1.1 

18 U.S.C. 1992(a)(10)—2A6.1, 2X1.1’’; 

in the line referenced to 18 U.S.C. 2199 

by inserting ‘‘2A1.1, 2A1.2, 2A1.3, 

2A1.4, 2A2.1, 2A2.2, 2A2.3,’’ before 

‘‘2B1.1’’; 

by inserting after the line referenced to 

18 U.S.C. 2233 the following: 

’’18 U.S.C. 2237(a)(1), (a)(2)(A)—2A2.4 

18 U.S.C. 2237(a)(2)(B)—2B1.1’’; 

by inserting after the line referenced to 

18 U.S.C. 2281 the following: 

’’18 U.S.C. 2291—2A1.1, 2A1.2, 2A1.3, 

2A1.4, 2A2.1, 2A2.2, 2A2.3, 2A6.1, 

2B1.1, 2K1.4, 2M6.1 

18 U.S.C. 2292—2A6.1’’; 

by inserting after the line referenced to 

49 U.S.C. 14912 the following: 

‘‘49 U.S.C. 14915—2B1.1’’; 

and by inserting after the line referenced 

to 49 U.S.C. 30170 the following: 

‘‘49 U.S.C. 31310—2X5.2’’. 

Reason for Amendment: This 

amendment implements various 

provisions of the USA PATRIOT 

Improvement and Reauthorization Act 

of 2005, Pub. L. 109–177 (the 

‘‘PATRIOT Reauthorization Act’’) and 

the Safe, Accountable, Flexible, 

Efficient Transportation Equity Act: A 

Legacy for Users, Pub. L. 109–59 

(‘‘SAFETEA–LU’’). The PATRIOT 

Reauthorization Act created several new 

offenses and increased the scope of or 

penalty for several existing offenses. 

SAFETEA–LU also created two new 

offenses. This amendment references 

both the new statutes and those with 

increased scope and penalties to 

existing guidelines. The amendment 

also provides a corresponding 

amendment to Appendix A (Statutory 

Index). The Commission concluded that 

referencing the new offenses to existing 

guidelines was appropriate because the 

type of conduct criminalized by the new 

statutes was adequately addressed and 

penalized by the guidelines. 

Section 307(c) of the PATRIOT 

Reauthorization Act directed the 

Commission to review the guidelines to 

determine whether a sentencing 

enhancement is appropriate for any 

offense under sections 659 or 2311 of 

title 18, United States Code. This 

amendment responds to the directive by 

revising the enhancement at subsection 

(b)(11) of § 2B1.1 (Larceny, 

Embezzlement, and Other Forms of 

Theft; Offenses Involving Stolen 

Property; Property Damage or 

Destruction; Fraud and Deceit; Forgery; 

Offenses Involving Altered or 

Counterfeit Instruments Other than 

Counterfeit Bearer Obligations of the 

United States). The amendment expands 

the scope of this enhancement to cover 

cargo theft and adds a reference to the 

receipt of stolen vehicles or goods to 

ensure application of the enhancement 

is consistent with the scope of 18 U.S.C. 

§ 659 and 2313. The Commission 

determined that the two-level increase, 

and the minimum offense level of 14, 

appropriately responds to concerns 

regarding the increased instances of 

organized cargo theft operations. 

3. Terrorism 

Amendment: The Commentary to 

§ 2A1.1 captioned ‘‘Statutory 

Provisions’’, as amended by 

Amendment 2 of this document, is 

further amended by inserting ‘‘2282A,’’

after ‘‘2199,’’. 

The Commentary to § 2A1.2 captioned 

‘‘Statutory Provisions’’, as amended by 

Amendment 2 of this document, is 

further amended by inserting ‘‘2282A,’’

after ‘‘2199’’. 

The Commentary to § 2B1.1 captioned 

‘‘Statutory Provisions’’, as amended by 

Amendment 2 of this document, is 

further amended by inserting ‘‘2282A, 

2282B,’’ after ‘‘2113(b),’’. 


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28560 Federal Register / Vol. 72, No. 97 / Monday, May 21, 2007 / Notices 

The Commentary to § 2B1.5 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘554,’’ before ‘‘641,’’. 

Chapter Two, Part D, Subpart One, is 

amended by adding at the end the 

following new guideline and 

accompanying commentary: 

‘‘§ 2D1.14. Narco-Terrorism 

(a) Base Offense Level: 

(1) The offense level from § 2D1.1 

(Unlawful Manufacturing, Importing, 

Exporting, or Trafficking (Including 

Possession with Intent to Commit These 

Offenses); Attempt or Conspiracy) applicable 

to the underlying offense, except that 

§ 2D1.1(a)(3)(A), (a)(3)(B), and (b)(11) shall 

not apply. 

(b) Specific Offense Characteristic 

(1) If § 3A1.4 (Terrorism) does not apply, 

increase by 6 levels. 

Commentary 

Statutory Provision: 21 U.S.C. 960a.’’

Chapter Two, Part E, Subpart Four, is 

amended in the heading by adding at 

the end ‘‘AND SMOKELESS 

TOBACCO’’. 

Section 2E4.1 is amended in the 

heading by adding at the end ‘‘and 

Smokeless Tobacco’’. 

The Commentary to § 2E4.1 captioned 

‘‘Background’’ is amended by striking 

‘‘60,000’’ and inserting ‘‘10,000’’. 

The Commentary to § 2K1.3 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘, 2283’’ after ‘‘1716’’. 

Section 2K1.4 is amended in 

subsections (a)(1) and (a)(2) by striking 

‘‘a ferry,’’ each place it appears and 

inserting ‘‘a maritime facility, a vessel, 

or a vessel’s cargo,’’; in subsection (a)(2) 

by striking ‘‘or’’ the last place it appears; 

by redesignating subsection (a)(3) as 

subsection (a)(4); and by inserting the 

following after subsection (a)(2): 

‘‘(3) 16, if the offense involved the 

destruction of or tampering with aids to 

maritime navigation; or’’. 

Section 2K1.4(b)(2) is amended by 

striking ‘‘(a)(3)’’ and inserting ‘‘(a)(4)’’. 

The Commentary to § 2K1.4 captioned 

‘‘Statutory Provisions’’, as amended by 

Amendment 2 of this document, is 

further amended by inserting ‘‘2282A, 

2282B,’’ after ‘‘2275,’’. 

The Commentary to § 2K1.4 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by inserting after ‘‘For purposes 

of this guideline:’’ the following 

paragraph: 

‘‘ ‘Aids to maritime navigation’ means any 

device external to a vessel intended to assist 

the navigator to determine position or save 

course, or to warn of dangers or obstructions 

to navigation.’’; 

by inserting after ‘‘destructive device.’’

the following paragraph: 

‘‘ ‘Maritime facility’ means any structure or 

facility of any kind located in, on, under, or 

adjacent to any waters subject to the 

jurisdiction of the United States and used, 

operated, or maintained by a public or 

private entity, including any contiguous or 

adjoining property under common ownership 

or operation.’’; 

by striking ‘‘1993(c)(5)’’ and inserting 

‘‘1992(d)(7)’’; and by adding at the end 

the following: 

‘‘ ‘Vessel’ includes every description of 

watercraft or other artificial contrivance 

used, or capable of being used, as a means 

of transportation on water.’’

The Commentary to § 2M5.2 

captioned ‘‘Statutory Provisions’’ is 

amended by inserting ‘‘18 U.S.C. 554;’’

before ‘‘22 U.S.C. 2778, 2780.’’. 

Section 2M5.3 is amended in the 

heading by inserting ‘‘Specially 

Designated Global Terrorists, or’’ after 

‘‘Organizations or’’

The Commentary to § 2M5.3 

captioned ‘‘Statutory Provisions’’ is 

amended by inserting ‘‘2283, 2284,’’

after ‘‘18 U.S.C. ‘‘; and by striking the 

period at the end and inserting ‘‘; 50 

U.S.C. 1701, 1705.’’. 

The Commentary to § 2M5.3 

captioned ‘‘Application Notes’’ is 

amended in Note 1 by adding at the end 

the following paragraph: 

‘‘ ‘Specially designated global terrorist’ has 

the meaning given that term in 31 CFR 

594.513.’’. 

Section 2M6.1 is amended in the 

heading by striking ‘‘Production, 

Development, Acquisition, Stockpiling, 

Alteration, Use, Transfer, or Possession 

of’’ and inserting ‘‘Activity Involving’’. 

The Commentary to § 2M6.1 

captioned ‘‘Statutory Provisions’’, as 

amended by Amendment 2 of this 

document, is further amended by 

inserting ‘‘2283,’’ before ‘‘2291,’’. 

The Commentary to § 2Q2.1 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘§ ’’ before ‘‘545’’ and by 

inserting ‘‘, 554’’ after ‘‘545’’. 

The Commentary to § 2Q2.1 captioned 

‘‘Background’’ is amended by striking 

‘‘§ 545 where’’ and inserting ‘‘§§ 545 

and 554 if’’. 

The Commentary to § 2X1.1 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘, 2282A, 2282B,’’ after 

‘‘2271,’’. 

The Commentary to § 2X2.1 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘2284,’’ after ‘‘2,’’. 

The Commentary to § 2X3.1 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘2284,’’ after ‘‘1072,’’. 

Chapter Two, Part X is amended by 

adding at the end the following new 

subpart, guideline, and accompanying 

commentary: 

‘‘7. OFFENSES INVOLVING BORDER 

TUNNELS 

§ 2X7.1. Border Tunnels and Subterranean 

Passages 

(a) Base Offense Level: 

(1) If the defendant was convicted under 18 

U.S.C. 554(c), 4 plus the offense level 

applicable to the underlying smuggling 

offense. If the resulting offense level is less 

than level 16, increase to level 16. 

(2) 16, if the defendant was convicted 

under 18 U.S.C. 554(a); or 

(3) 8, if the defendant was convicted under 

18 U.S.C. 554(b). 

Commentary 

Statutory Provision: 18 U.S.C. 554. 

Application Note: 

1. Definition.—For purposes of this 

guideline, ‘underlying smuggling offense’

means the smuggling offense the defendant 

committed through the use of the tunnel or 

subterranean passage.’’. 

Chapter Five, Part K is amended by 

adding at the end the following new 

policy statement and accompanying 

commentary: 

‘‘§ 5K2.24. Commission of Offense While 

Wearing or Displaying Unauthorized or 

Counterfeit Insignia or Uniform (Policy 

Statement) 

If, during the commission of the offense, 

the defendant wore or displayed an official, 

or counterfeit official, insignia or uniform 

received in violation of 18 U.S.C. 716, an 

upward departure may be warranted. 

Commentary 

Application Note: 

1. Definition.—For purposes of this policy 

statement, ‘official insignia or uniform’ has 

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

716(c)(3).’’. 

Appendix A (Statutory Index) is 

amended by inserting after the line 

referenced to 18 U.S.C. 553(a)(2) the 

following: 

‘‘18 U.S.C. 554—(Border tunnels and 

passages)—2X7.1’’. 

18 U.S.C. 554—(Smuggling goods from the 

United States)—2B1.5, 2M5.2, 2Q2.1’’. 

Appendix A (Statutory Index), as 

amended by Amendment 2 of this 

document, is further amended by 

inserting after the line referenced to 18 

U.S.C. 2281 the following: 

‘‘18 U.S.C. 2282A—2A1.1, 2A1.2, 2B1.1, 

2K1.4, 2X1.1 

18 U.S.C. 2282B—2B1.1, 2K1.4, 2X1.1 

18 U.S.C. 2283—2K1.3, 2M5.3, 2M6.1 

18 U.S.C. 2284—2M5.3, 2X2.1, 2X3.1’’. 

Appendix A (Statutory Index) is 

amended in the line referenced to 18 

U.S.C. 2339 by inserting ‘‘2M5.3,’’

before ‘‘2X2.1’’; 

by inserting after the line referenced to 

21 U.S.C. 960(d)(7) the following: 

‘‘21 U.S.C. 960a—2D1.14’’. 

by inserting after the line referenced to 

50 U.S.C. 783(c) the following: 


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‘‘50 U.S.C. 1701—2M5.1, 2M5.2, 2M5.3 

50 U.S.C. 1705—2M5.3’’; 

and by striking the line referenced to 50 

U.S.C. App. § 1701. 

Reason for Amendment: This 

amendment implements the USA 

PATRIOT Improvement and 

Reauthorization Act of 2005 (the 

‘‘PATRIOT Reauthorization Act’’), Pub. 

L. 109–177, and the Department of 

Homeland Security Appropriations Act, 

2007 (the ‘‘Homeland Security Act’’), 

Pub. L. 109–295. 

First, the amendment addresses 

section 122 of the PATRIOT 

Reauthorization Act, which created a 

new offense at 21 U.S.C. 960a covering 

narco-terrorism. This new offense 

prohibits engaging in conduct that 

would be covered under 21 U.S.C. 

841(a) if committed under the 

jurisdiction of the United States, 

knowing or intending to provide, 

directly or indirectly, anything of 

pecuniary value to any person or 

organization that has engaged or engages 

in terrorist activity (as defined in 

section 212(a)(3)(B) of the Immigration 

and Nationality Act) or terrorism (as 

defined in section 140(d)(2) of the 

Foreign Relations Authorization Act, 

Fiscal Years 1988 and 1989 (This act is 

made up of separate parts divided by 

fiscal year)). The penalty is not less than 

twice the statutory minimum 

punishment under 21 U.S.C. 841(b)(1) 

and not more than life. Section 960a 

also provides a mandatory term of 

supervised release of at least five years. 

The amendment creates a new 

guideline at § 2D1.14 (Narco-Terrorism) 

because an offense under 21 U.S.C. 960a 

differs from basic drug offenses because 

it involves trafficking that benefits 

terrorist activity. The guideline also 

provides that the base offense level is 

the offense level determined under 

§ 2D1.1 (Unlawful Manufacturing, 

Importing, Exporting, or Trafficking 

(Including Possession with Intent to 

Commit These Offenses); Attempt or 

Conspiracy) for the underlying offense, 

except that the ‘‘mitigating role cap’’ in 

§ 2D1.1(a)(3)(A) and (B) and the twolevel reduction for meeting the criteria 

set forth in subdivisions (1)–(5) of 

subsection (a) of § 5C1.2 (Limitation on 

Applicability of Statutory Minimum 

Sentences in Certain Cases) shall not 

apply. The Commission determined that 

these exclusions are appropriate to 

reflect that this is not a typical drug 

offense, in that an individual convicted 

under this provision must have had 

knowledge that the person or 

organization receiving the funds or 

support generated by the drug 

trafficking ‘‘has engaged or engages in 

terrorist activity * * * or terrorism 

* * *.’’ The guideline also contains a 

specific offense characteristic that 

provides a six-level increase if the 

adjustment in § 3A1.4 (Terrorism) does 

not apply. This six-level increase fully 

effectuates the statute’s doubling of the 

minimum punishment for the 

underlying drug offense, while avoiding 

potential double counting with the 12- 

level adjustment at § 3A1.4. The 

amendment also provides a 

corresponding reference for the new 

offense to § 2D1.14 in Appendix A 

(Statutory Index). 

Second, the amendment responds to 

the directive in section 551 of the 

Homeland Security Act, which created 

a new offense in 18 U.S.C. 554 regarding 

the construction of border tunnels and 

subterranean passages that cross the 

international boundary between the 

United States and another country. 

Section 551(c) of the Homeland Security 

Act directed the Commission to 

promulgate or amend the guidelines to 

provide for increased penalties for 

persons convicted of offenses under 18 

U.S.C. 554 and required the 

Commission to consider a number of 

factors. Section 554(a) prohibits the 

construction or financing of such 

tunnels and passages and provides a 

statutory maximum term of 

imprisonment of 20 years. Section 

554(b) prohibits the knowing or reckless 

disregard of the construction on land 

the person owns or controls and 

provides a statutory maximum term of 

imprisonment of 10 years. Section 

554(c) prohibits the use of the tunnels 

to smuggle an alien, goods (in violation 

of 18 U.S.C. 545), controlled substances, 

weapons of mass destruction (including 

biological weapons), or a member of a 

terrorist organization (defined in 18 

U.S.C. 2339B(g)(6)) and provides a 

penalty of twice the maximum term of 

imprisonment that otherwise would 

have been applicable had the unlawful 

activity not made use of the tunnel or 

passage. 

The amendment creates a new 

guideline at § 2X7.1 (Border Tunnels 

and Subterranean Passages) for 

convictions under 18 U.S.C. 554. The 

new guideline provides that a 

conviction under 18 U.S.C. 554(a) 

receives a base offense level 16, which 

is commensurate with certain other 

offenses with statutory maximum terms 

of imprisonment of 20 years and ensures 

a sentence of imprisonment. A 

conviction under 18 U.S.C. 554(c) will 

receive a four-level increase over the 

offense level applicable to the 

underlying smuggling offense, which 

ensures that the seriousness of the 

underlying offense is the primary 

measure of offense severity. The fourlevel increase also satisfies the 

directive’s instruction to account for the 

aggravating nature of the use of a tunnel 

or subterranean passage to breach the 

border to accomplish the smuggling 

offense and effectuates the statute’s 

doubling of the statutory maximum 

penalty. A conviction under 18 U.S.C. 

554(b) receives a base offense level of 8, 

which reflects the less aggravated nature 

of this offense. 

Third, the amendment addresses 

other new offenses created by the 

PATRIOT Reauthorization Act. Based 

on an assessment of similar offenses 

already covered by the relevant 

guidelines, the amendment provides as 

follows: 

(A) The new offense in 18 U.S.C. 554, 

pertaining to smuggling of goods from 

the United States, is referenced to 

§§ 2B1.5 (Theft of, Damage to, or 

Destruction of, Cultural Heritage 

Resources; Unlawful Sale, Purchase, 

Exchange, Transportation, or Receipt of 

Cultural Heritage Resources), 2M5.2 

(Exportation of Arms, Munitions, or 

Military Equipment or Services Without 

Required Validated Export License), and 

2Q2.1 (Offenses Involving Fish, 

Wildlife, and Plants). 

(B) The new offense in 18 U.S.C. 

2282A, pertaining to mining of United 

States navigable waters, is referenced to 

§§ 2A1.1 (First Degree Murder), 2A1.2 

(Second Degree Murder), 2B1.1 

(Larceny, Embezzlement, and Other 

Forms of Theft; Offenses Involving 

Stolen Property; Property Damage or 

Destruction; Fraud and Deceit; Forgery; 

Offenses Involving Altered or 

Counterfeit Instruments Other than 

Counterfeit Bearer Obligations of the 

United States), 2K1.4 (Arson; Property 

Damage by Use of Explosives), and 

2X1.1 (Attempt, Solicitation, or 

Conspiracy (Not Covered by a Specific 

Offense Guideline)). The amendment 

also adds vessel, maritime facility, and 

a vessel’s cargo to § 2K1.4(a)(1) and 

(a)(2) to cover conduct described in 18 

U.S.C. 2282A. The definitions provided 

for ‘‘vessel,’’ ‘‘maritime facility,’’ and 

‘‘aids to maritime navigation’’ come 

from title 33 of the Code of Federal 

Regulations pertaining to the United 

States Coast Guard, specifically 

Navigation and Navigable Waters. 

Section 2282B, pertaining to violence 

against maritime navigational aids, is 

referenced to §§ 2B1.1, 2K1.4, and 

2X1.1. Section 2K1.4(a) is amended to 

provide a new base offense level of 16 

if the offense involved the destruction of 

or tampering with aids to maritime 

navigation. 

(C) The new offense in 18 U.S.C. 2283 

pertaining to transporting biological and 


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chemical weapons is referenced to 

§§ 2K1.3 (Unlawful Receipt, Possession, 

or Transportation of Explosive 

Materials; Prohibited Transactions 

Involving Explosive Materials), 2M5.3 

(Providing Material Support or 

Resources to Designated Foreign 

Terrorism Organizations or For a 

Terrorist Purpose), 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). The new offense in 18 

U.S.C. 2284 pertaining to transporting 

terrorists is referenced to §§ 2M5.3 

(Providing Material Support or 

Resources to Designated Foreign 

Terrorist Organizations or For a 

Terrorist Purpose), 2X2.1 (Aiding and 

Abetting), and 2X3.1 (Accessory After 

the Fact). 

(D) Section 2341 of title 18, United 

States Code, which provides definitions 

for offenses involving contraband 

cigarettes and smokeless tobacco, was 

amended to reduce the number of 

contraband cigarettes necessary to 

violate the substantive offenses set forth 

in 18 U.S.C. 2342 and 2344 from 60,000 

to 10,000. The amendment makes 

conforming changes to the background 

commentary of § 2E4.1 (Unlawful 

Conduct Relating to Contraband 

Cigarettes) and expands the headings of 

Chapter Two, Part E, Subpart 4 and 

§ 2E4.1 to include smokeless tobacco. 

(E) The Patriot Reauthorization Act 

increased the statutory maximum term 

of imprisonment for offenses covered by 

the International Emergency Economic 

Powers Act (50 U.S.C. 1705) from 10 

years to 20 years’ imprisonment. The 

amendment references 50 U.S.C. 1705 to 

§ 2M5.3 and modifies the heading of the 

guideline to include ‘‘specially 

designated global terrorist’’. 

Fourth, the amendment sets forth the 

statutory references in Appendix A 

(Statutory Index) for the new offenses. 

Appendix A is amended to provide a 

parenthetical description for the two 

statutory references to 18 U.S.C. 554 

created by the PATRIOT 

Reauthorization Act. 

Fifth, the amendment implements a 

directive in section 1191(c) of the 

Violence Against Women and 

Department of Justice Reauthorization 

Act of 2005, Pub. L. 109–162. The Act 

directed the Commission to amend the 

guidelines ‘‘to assure that the sentence 

imposed on a defendant who is 

convicted of a Federal offense while 

wearing or displaying insignia and 

uniform received in violation of section 

716 of title 18, United States Code, 

reflects the gravity of this aggravating 

factor.’’ Section 716 of title 18, United 

States Code, is a Class B misdemeanor 

which is not covered by the guidelines, 

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

and Infractions); however, the 

amendment creates a new policy 

statement at § 5K2.24 (Commission of 

Offense While Wearing or Displaying 

Unauthorized or Counterfeit Insignia or 

Uniform) providing that an upward 

departure may be warranted if, during 

the commission of the offense, the 

defendant wore or displayed an official, 

or counterfeit official, insignia or 

uniform received in violation of 18 

U.S.C. 716. 

4. Sex Offenses 

Amendment: Chapter Two, Part A, 

Subpart Three, is amended in the 

heading by adding at the end ‘‘AND 

OFFENSES RELATED TO 

REGISTRATION AS A SEX 

OFFENDER’’. 

Section 2A3.1(a) is amended by 

striking ‘‘30’’ and inserting the 

following: 

‘‘(1) 38, if the defendant was convicted 

under 18 U.S.C. 2241(c); or 

(2) 30, otherwise.’’. 

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

striking ‘‘(A) If’’ and inserting ‘‘If 

subsection (a)(2) applies and (A)’’; and 

by striking ‘‘if’’ after ‘‘(B)’’. 

The Commentary to § 2A3.1 captioned 

‘‘Application Notes’’ is amended in 

Note 2 by inserting ‘‘(A) Definitions.–’’

before ‘‘For purposes of’’; and by adding 

at the end the following subdivision: 

‘‘(B) Application in Cases Involving a 

Conviction under 18 U.S.C. 2241(c).—If the 

conduct that forms the basis for a conviction 

under 18 U.S.C. 2241(c) is that the defendant 

engaged in conduct described in 18 U.S.C. 

2241(a) or (b), do not apply subsection 

(b)(1).’’. 

The Commentary to § 2A3.1 is 

amended by striking ‘‘Background’’ and 

all that follows through the end of 

‘‘abduction.’’. 

Section 2A3.3(a) is amended by 

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

The Commentary to § 2A3.3 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by striking ‘‘ ‘Minor’ means an 

individual who had not attained the age 

of 18 years.’’ and inserting the 

following: 

‘‘ ‘Minor’ means (A) an individual who had 

not attained the age of 18; (B) an individual, 

whether fictitious or not, who a law 

enforcement officer represented to a 

participant (i) had not attained the age of 18 

years; and (ii) could be provided for the 

purposes of engaging in sexually explicit 

conduct; or (C) an undercover law 

enforcement officer who represented to a 

participant that the officer had not attained 

the age of 18 years.’’. 

The Commentary to § 2A3.3 captioned 

‘‘Application Notes’’ is amended by 

adding at the end the following: 

‘‘4. Inapplicability of § 3B1.3.—Do not 

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

Use of Special Skill).’’. 

The Commentary to § 2A3.3 is 

amended by striking ‘‘Background’’ and 

all that follows through the end of 

‘‘year.’’. 

Section 2A3.4(b)(1) is amended by 

striking ‘‘20’’ each place it appears and 

inserting ‘‘22’’. 

The Commentary to § 2A3.4 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘(a)(1), (2), (3)’’ after ‘‘§ 2244’’. 

The Commentary to § 2A3.4 captioned 

‘‘Background’’ is amended by striking 

‘‘Enhancements are provided’’ and all 

that follows through the end of ‘‘sixteen 

years.’’. 

Chapter Two, Part A, Subpart Three, 

is amended by adding at the end the 

following new guidelines and 

accompanying commentaries: 

‘‘§ 2A3.5. Failure To Register as a Sex 

Offender 

(a) Base Offense Level (apply the greatest): 

(1) 16, if the defendant was required to 

register as a Tier III offender; 

(2) 14, if the defendant was required to 

register as a Tier II offender; or 

(3) 12, if the defendant was required to 

register as a Tier I offender. 

(b) Specific Offense Characteristics 

(1) (Apply the greatest): 

If, while in a failure to register status, the 

defendant committed—

(A) a sex offense against someone other 

than a minor increase by 6 levels; 

(B) a felony offense against a minor not 

otherwise covered by subdivision (C), 

increase by 6 levels; or 

(C) a sex offense against a minor, increase 

by 8 levels. 

(2) If the defendant voluntarily (A) 

corrected the failure to register; or (B) 

attempted to register but was prevented from 

registering by uncontrollable circumstances 

and the defendant did not contribute to the 

creation of those circumstances, decrease by 

3 levels. 

Commentary 

Statutory Provision: 18 U.S.C. 2250(a). 

Application Notes: 

1. Definitions.—For purposes of this 

guideline: 

‘Minor’ means (A) an individual who had 

not attained the age of 18 years; (B) an 

individual, whether fictitious or not, who a 

law enforcement officer represented to a 

participant (i) had not attained the age of 18 

years; and (ii) could be provided for the 

purposes of engaging in sexually explicit 

conduct; or (C) an undercover law 

enforcement officer who represented to a 

participant that the officer had not attained 

the age of 18 years. 


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‘Sex offense’ has the meaning given that 

term in 42 U.S.C. 16911(5). 

‘‘Tier I offender’,‘‘tier II offender’, and ‘‘tier 

III offender’ have the meaning given those 

terms in 42 U.S.C. 16911(2), (3) and (4), 

respectively. 

2. Application of Subsection (b)(2).—

(A) In General.—In order for subsection 

(b)(2) to apply, the defendant’s voluntary 

attempt to register or to correct the failure to 

register must have occurred prior to the time 

the defendant knew or reasonably should 

have known a jurisdiction had detected the 

failure to register. 

(B) Interaction with Subsection (b)(1).—Do 

not apply subsection (b)(2) if subsection 

(b)(1) also applies. 

§ 2A3.6. Aggravated Offenses Relating to 

Registration as a Sex Offender 

If the defendant was convicted under—

(a) 18 U.S.C. 2250(c), the guideline 

sentence is the minimum term of 

imprisonment required by statute; or 

(b) 18 U.S.C. 2260A, the guideline sentence 

is the term of imprisonment required by 

statute. 

Chapters Three (Adjustments) and Four 

(Criminal History and Criminal Livelihood) 

shall not apply to any count of conviction 

covered by this guideline. 

Commentary 

Statutory Provisions: 18 U.S.C. 2250(c), 

2260A. 

Application Notes: 

1. In General.—Section 2250(c) of title 18, 

United States Code, provides a mandatory 

minimum term of five years’ imprisonment 

and a statutory maximum term of 30 years’

imprisonment. The statute also requires a 

sentence to be imposed consecutively to any 

sentence imposed for a conviction under 18 

U.S.C. 2250(a). Section 2260A of title 18, 

United States Code, provides a term of 

imprisonment of 10 years that is required to 

be imposed consecutively to any sentence 

imposed for an offense enumerated under 

that section. 

2. Inapplicability of Chapters Three and 

Four.—Do not apply Chapters Three 

(Adjustments) and Four (Criminal History 

and Criminal Livelihood) to any offense 

sentenced under this guideline. Such 

offenses are excluded from application of 

those chapters because the guideline 

sentence for each offense is determined only 

by the relevant statute. See §§ 3D1.1 

(Procedure for Determining Offense Level on 

Multiple Counts) and 5G1.2 (Sentencing on 

Multiple Counts of Conviction). 

3. Inapplicability of Chapter Two 

Enhancement.—If a sentence under this 

guideline is imposed in conjunction with a 

sentence for an underlying offense, do not 

apply any specific offense characteristic that 

is based on the same conduct as the conduct 

comprising the conviction under 18 U.S.C. 

2250(c) or § 2260A. 

4. Upward Departure.—In a case in which 

the guideline sentence is determined under 

subsection (a), a sentence above the 

minimum term required by 18 U.S.C. 2250(c) 

is an upward departure from the guideline 

sentence. A departure may be warranted, for 

example, in a case involving a sex offense 

committed against a minor or if the offense 

resulted in serious bodily injury to a minor.’’. 

Section 2G1.1(a) is amended by 

striking ‘‘14’’ and inserting the 

following: 

‘‘(1) 34, if the offense of conviction is 18 

U.S.C. 1591(b)(1); or 

(2) 14, otherwise.’’. 

Section 2G1.1(b)(1) is amended by 

inserting ‘‘(A) subsection (a)(2) applies; and 

(B)’’ after ‘‘If’’. 

The Commentary to § 2G1.1 is amended by 

striking ‘‘Background’’ and all that follows 

through the end of ‘‘Minor).’’. 

Section 2G1.3(a) is amended by 

striking ‘‘24’’ and inserting the 

following: 

’’(1) 34, if the defendant was convicted 

under 18 U.S.C. 1591(b)(1); 

(2) 30, if the defendant was convicted 

under 18 U.S.C. 1591(b)(2); 

(3) 28, if the defendant was convicted 

under 18 U.S.C. 2422(b) or § 2423(a); or 

(4) 24, otherwise.’’. 

Section 2G1.3(b) is amended by 

striking subdivision (4) and inserting 

the following: 

‘‘(4) If (A) the offense involved the 

commission of a sex act or sexual contact; or 

(B) subsection (a)(3) or (a)(4) applies and the 

offense involved a commercial sex act, 

increase by 2 levels.’’. 

Section 2G1.3(b)(5) is amended by 

inserting ‘‘(A) subsection (a)(3) or (a)(4) 

applies; and (B)’’ after ‘‘If’’. 

The Commentary to § 2G1.3 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘2422(b),’’. 

The Commentary to § 2G1.3 is 

amended by striking ‘‘Background’’ and 

all that follows through the end of 

‘‘Minor).’’. 

The Commentary to § 2G2.5 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘§ ’’ after ‘‘18 U.S.C. § ’’; and 

by inserting ‘‘, 2257A’’ after ‘‘2257’’. 

Chapter Two, Part G, Subpart Two, is 

amended by adding at the end the 

following new guideline and 

accompanying commentary: 

‘‘§ 2G2.6. Child Exploitation Enterprises 

(a) Base Offense Level: 35 

(b) Specific Offense Characteristics 

(1) If a victim (A) had not attained the age 

of 12 years, increase by 4 levels; or (B) had 

attained the age of 12 years but had not 

attained the age of 16 years, increase by 2 

levels. 

(2) If (A) the defendant was a parent, 

relative, or legal guardian of a minor victim; 

or (B) a minor victim was otherwise in the 

custody, care, or supervisory control of the 

defendant, increase by 2 levels. 

(3) If the offense involved conduct 

described in 18 U.S.C. 2241(a) or (b), increase 

by 2 levels. 

(4) If a computer or an interactive 

computer service was used in furtherance of 

the offense, increase by 2 levels. 

Commentary 

Statutory Provision: 18 U.S.C. 2252A(g). 

Application Notes: 

1. Definitions.—For purposes of this 

guideline: 

‘Computer’ has the meaning given that 

term in 18 U.S.C. 1030(e)(1). 

‘Interactive computer service’ has the 

meaning given that term in section 230(e)(2) 

of the Communications Act of 1934 (47 

U.S.C. 230(f)(2)). 

‘Minor’ means (A) an individual who had 

not attained the age of 18 years; (B) an 

individual, whether fictitious or not, who a 

law enforcement officer represented to a 

participant (i) had not attained the age of 18 

years; and (ii) could be provided for the 

purposes of engaging in sexually explicit 

conduct; or (C) an undercover law 

enforcement officer who represented to a 

participant that the officer had not attained 

the age of 18 years. 

2. Application of Subsection (b)(2).—

(A) Custody, Care, or Supervisory 

Control.—Subsection (b)(2) is intended to 

have broad application and includes offenses 

involving a victim less than 18 years of age 

entrusted to the defendant, whether 

temporarily or permanently. For example, 

teachers, day care providers, baby-sitters, or 

other temporary caretakers are among those 

who would be subject to this enhancement. 

In determining whether to apply this 

enhancement, the court should look to the 

actual relationship that existed between the 

defendant and the minor and not simply to 

the legal status of the defendant-minor 

relationship. 

(B) Inapplicability of Chapter Three 

Adjustment.—If the enhancement under 

subsection (b)(2) applies, do not apply 

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

Special Skill). 

3. Application of Subsection (b)(3).—For 

purposes of subsection (b)(3), ‘conduct 

described in 18 U.S.C. 2241(a) or (b)’ is: (i) 

using force against the minor; (ii) threatening 

or placing the minor in fear that any person 

will be subject to death, serious bodily 

injury, or kidnapping; (iii) rendering the 

minor unconscious; or (iv) administering by 

force or threat of force, or without the 

knowledge or permission of the minor, a 

drug, intoxicant, or other similar substance 

and thereby substantially impairing the 

ability of the minor to appraise or control 

conduct. This provision would apply, for 

example, if any dangerous weapon was used 

or brandished, or in a case in which the 

ability of the minor to appraise or control 

conduct was substantially impaired by drugs 

or alcohol.’’. 

Section 2G3.1(b) is amended by 

striking subdivision (2) and inserting 

the following: 

‘‘(2) If, with the intent to deceive a minor 

into viewing material that is harmful to 

minors, the offense involved the use of (A) 

a misleading domain name on the Internet; 

or (B) embedded words or digital images in 

the source code of a Web site, increase by 2 

levels.’’. 

The Commentary to § 2G3.1 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘, 2252C’’ after ‘‘2252B’’. 


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The Commentary to § 2G3.1 captioned 

‘‘Application Notes’’ is amended in 

Note 2 by inserting ‘‘or § 2252C’’ after 

‘‘2252B’’. 

Section 2J1.2(b) is amended in 

subdivision (1) by striking ‘‘greater’’ and 

inserting ‘‘greatest’’; by redesignating 

subdivisions (A) and (B) as subdivisions 

(B) and (C), respectively; by inserting 

before subdivision (B), as redesignated 

by this amendment, the following: 

‘‘(A) If the (i) defendant was convicted 

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

maximum term of eight years’ imprisonment 

applies because the matter relates to sex 

offenses under 18 U.S.C. 1591 or chapters 

109A, 109B, 110, or 117 of title 18, United 

States Code, increase by 4 levels.’’; 

and by striking subdivision (C), as 

redesignated by this amendment, and 

inserting the following: 

‘‘(C) If the (i) defendant was convicted 

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

statutory maximum term of eight years’

imprisonment applies because the matter 

relates to international terrorism or domestic 

terrorism, increase by 12 levels.’’. 

The Commentary to § 2J1.2 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘when the statutory maximum’’

and all that follows through 

‘‘applicable,’’ and inserting the 

following: 

‘‘(when the statutory maximum term of 

eight years’ imprisonment applies because 

the matter relates to international terrorism 

or domestic terrorism, or to sex offenses 

under 18 U.S.C. 1591 or chapters 109A, 

109B, 110, or 117 of title 18, United States 

Code),’’. 

The Commentary to § 2J1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 2(B) by striking ‘‘(b)(1)(B)’’ and 

inserting ‘‘(b)(1)(C)’’. 

The Commentary to § 2J1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 4 by inserting ‘‘or a particularly 

serious sex offense’’ after ‘‘face)’’. 

The Commentary to § 2J1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 5 by inserting ‘‘(B)’’ after 

‘‘Subsection (b)(1)’’ each place it 

appears; and by inserting ‘‘(B)’’ after 

‘‘under subsection (b)(1)’’. 

Section 3D1.2(d) is amended by 

inserting as a new line ‘‘§ 2A3.5;’’ before 

the line that begins ‘‘§§ 2B1.1’’; and by 

inserting ‘‘(except § 2A3.5)’’ after 

‘‘Chapter Two, Part A’’. 

The Commentary to § 4B1.5 captioned 

‘‘Application Notes’’ is amended by 

striking Note 1 and inserting the 

following: 

‘‘1. Definition.—For purposes of this 

guideline, ‘minor’’ means (A) an individual 

who had not attained the age of 18 years; (B) 

an individual, whether fictitious or not, who 

a law enforcement officer represented to a 

participant (i) had not attained the age of 18 

years; and (ii) could be provided for the 

purposes of engaging in sexually explicit 

conduct; or (C) an undercover law 

enforcement officer who represented to a 

participant that the officer had not attained 

the age of 18 years.’’. 

The Commentary to § 4B1.5 captioned 

‘‘Application Notes’’ is amended in 

Note 2 by inserting ‘‘or (iv) 18 U.S.C. 

1591;’’ after ‘‘individual;’’; and by 

striking ‘‘(iii)’’ after ‘‘through’’ and 

inserting ‘‘(iv)’’. 

The Commentary to § 4B1.5 captioned 

‘‘Background’’ is amended by striking 

the first and second sentences and 

inserting: ‘‘This guideline applies to 

offenders whose instant offense of 

conviction is a sex offense committed 

against a minor and who present a 

continuing danger to the public.’’. 

Section 5B1.3(a)(9) is amended by 

inserting ‘‘(A) in a state in which the 

requirements of the Sex Offender 

Registration and Notification Act (see 42 

U.S.C. 16911 and 16913) do not apply,’’

before ‘‘a defendant convicted’’; by 

inserting ‘‘(Pub. L. 105–119, § 115(a)(8), 

Nov. 26, 1997)’’ after ‘‘4042(c)(4)’’; by 

inserting ‘‘or’’ after ‘‘student;’’ and by 

adding at the end the following: 

‘‘(B) in a state in which the requirements 

of Sex Offender Registration and Notification 

Act apply, a sex offender shall (i) register, 

and keep such registration current, where the 

offender resides, where the offender is an 

employee, and where the offender is a 

student, and for the initial registration, a sex 

offender also shall register in the jurisdiction 

in which convicted if such jurisdiction is 

different from the jurisdiction of residence; 

(ii) provide information required by 42 U.S.C. 

16914; and (iii) keep such registration current 

for the full registration period as set forth in 

42 U.S.C. 16915;’’. 

Section 5B1.3(d)(7) is amended by 

adding at the end the following: 

‘‘(C) A condition requiring the defendant to 

submit to a search, at any time, with or 

without a warrant, and by any law 

enforcement or probation officer, of the 

defendant’s person and any property, house, 

residence, vehicle, papers, computer, other 

electronic communication or data storage 

devices or media, and effects, upon 

reasonable suspicion concerning a violation 

of a condition of probation or unlawful 

conduct by the defendant, or by any 

probation officer in the lawful discharge of 

the officer’s supervision functions.’’. 

Section 5B1.3 is amended by adding 

at the end the following: 

Commentary 

Application Note: 

1. Application of Subsection (b)(9)(A) and 

(B).—Some jurisdictions continue to register 

sex offenders pursuant to the sex offender 

registry in place prior to July 27, 2006, the 

date of enactment of the Adam Walsh Act, 

which contained the Sex Offender 

Registration and Notification Act. In such a 

jurisdiction, subsection (b)(9)(A) will apply. 

In a jurisdiction that has implemented the 

requirements of the Sex Offender Registration 

and Notification Act, subsection (b)(9)(B) will 

apply. (See 42 U.S.C. 16911 and 16913.)’’. 

The Commentary to § 5D1.2 captioned 

‘‘Application Notes’’ is amended by 

striking Note 1 and inserting: 

‘‘1. Definitions.—For purposes of this 

guideline: 

‘Sex offense’ means (A) an offense, 

perpetrated against a minor, under (i) chapter 

109A of title 18, United States Code; (ii) 

chapter 109B of such title; (iii) chapter 110 

of such title, not including a recordkeeping 

offense; (iv) chapter 117 of such title, not 

including transmitting information about a 

minor or filing a factual statement about an 

alien individual; (v) an offense under 18 

U.S.C. 1201; or (vi) an offense under 18 

U.S.C. 1591; or (B) an attempt or a conspiracy 

to commit any offense described in 

subdivisions (A)(i) through (vi) of this note. 

‘Minor’ means (A) an individual who had 

not attained the age of 18 years; (B) an 

individual, whether fictitious or not, who a 

law enforcement officer represented to a 

participant (i) had not attained the age of 18 

years; and (ii) could be provided for the 

purposes of engaging in sexually explicit 

conduct; or (C) an undercover law 

enforcement officer who represented to a 

participant that the officer had not attained 

the age of 18 years.’’. 

Section 5D1.3(a)(7) is amended by 

inserting ‘‘(A) in a state in which the 

requirements of the Sex Offender 

Registration and Notification Act (see 42 

U.S.C. 16911 and 16913) do not apply,’’

before ‘‘a defendant’’; by inserting 

‘‘(Pub. L. 105–119, § 115(a)(8), Nov. 26, 

1997)’’ after ‘‘4042(c)(4)’’; by inserting 

‘‘or’’ after ‘‘student;’’ and by adding at 

the end the following: 

‘‘(B) in a state in which the requirements 

of Sex Offender Registration and Notification 

Act apply, a sex offender shall (i) register, 

and keep such registration current, where the 

offender resides, where the offender is an 

employee, and where the offender is a 

student, and for the initial registration, a sex 

offender also shall register in the jurisdiction 

in which convicted if such jurisdiction is 

different from the jurisdiction of residence; 

(ii) provide information required by 42 U.S.C. 

16914; and (iii) keep such registration current 

for the full registration period as set forth in 

42 U.S.C. 16915;’’. 

Section 5D1.3(d)(7) is amended by 

adding at the end the following: 

’’(C) A condition requiring the defendant to 

submit to a search, at any time, with or 

without a warrant, and by any law 

enforcement or probation officer, of the 

defendant’s person and any property, house, 

residence, vehicle, papers, computer, other 

electronic communication or data storage 

devices or media, and effects upon 

reasonable suspicion concerning a violation 

of a condition of supervised release or 

unlawful conduct by the defendant, or by any 

probation officer in the lawful discharge of 

the officer’s supervision functions.’’. 


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Section 5D1.3 is amended by adding 

at the end the following: 

‘‘Commentary 

Application Note: 

1. Application of Subsection (b)(7)(A) and 

(B).—Some jurisdictions continue to register 

sex offenders pursuant to the sex offender 

registry in place prior to July 27, 2006, the 

date of enactment of the Adam Walsh Act, 

which contained the Sex Offender 

Registration and Notification Act. In such a 

jurisdiction, subsection (b)(7)(A) will apply. 

In a jurisdiction that has implemented the 

requirements of the Sex Offender Registration 

and Notification Act, subsection (b)(7)(B) will 

apply. (See 42 U.S.C. 16911 and 16913.)’’. 

Appendix A (Statutory Index) is 

amended in the line referenced to 18 

U.S.C. 1001 by striking ‘‘when the 

statutory’’ and all that follows through 

‘‘applicable’’ and inserting the 

following: 

‘‘(when the statutory maximum term of 

eight years’ imprisonment applies because 

the matter relates to international terrorism 

or domestic terrorism, or to sex offenses 

under 18 U.S.C. 1591 or chapters 109A, 

109B, 110, or 117 of title 18, United States 

Code)’’. 

Appendix A (Statutory Index) is 

amended by inserting after the line 

referenced to 18 U.S.C. 2245 the 

following: 

‘‘18 U.S.C. 2250(a)—2A3.5 

18 U.S.C. 2250(c)—2A3.6’’; 

by inserting after the line referenced to 

18 U.S.C. 2252B the following: 

‘‘18 U.S.C. 2252C—2G3.1’’; 

by inserting after the line referenced to 

18 U.S.C. 2257 the following: 

‘‘18 U.S.C. 2257A—2G2.5’’; 

and by inserting after the line referenced 

to 18 U.S.C. 2260(b) the following: 

‘‘18 U.S.C. 2260A 2A3.6’’—

Reason for Amendment: This 

amendment responds to the Adam 

Walsh Child Protection and Safety Act 

of 2006 (the ‘‘Adam Walsh Act’’), Pub. 

L. 109–248, which contained a directive 

to the Commission, created new sexual 

offenses, and enhanced penalties for 

existing sexual offenses. The 

amendment implements the directive by 

creating two new guidelines, §§ 2A3.5 

(Criminal Sexual Abuse and Offenses 

Related to Registration as a Sex 

Offender) and 2A3.6 (Aggravated 

Offenses Relating to Registration as a 

Sex Offender). It further addresses 

relevant provisions in the Adam Walsh 

Act by making changes to Chapter Two, 

Part A, Subpart 3 (Criminal Sexual 

Abuse) and Part G (Offenses Involving 

Commercial Sex Acts, Sexual 

Exploitation of Minors, and Obscenity), 

§ 2J1.2 (Obstruction of Justice), § 3D1.2 

(Groups of Closely Related Counts), 

§ 4B1.5 (Repeat and Dangerous Sex 

Offender Against Minors), § 5B1.3 

(Conditions of Probation), § 5D1.2 (Term 

of Supervised Release), § 5D1.3 

(Conditions of Supervised Release) and 

Appendix A (Statutory Index). 

First, section 206 of the Adam Walsh 

Act amended 18 U.S.C. 2241(c) to add 

a new mandatory minimum term of 

imprisonment of 30 years for offenses 

related to the aggravated sexual abuse of 

a child under 12 years old, or of a child 

between 12 and 16 years old if force, 

threat, or other means was used. In 

response to the new mandatory 

minimum for these offenses, the 

amendment increases the base offense 

level at § 2A3.1 (Criminal Sexual Abuse; 

Attempt to Commit Criminal Sexual 

Abuse) from level 30 to level 38. The 

base offense level of 30 has been 

retained for all other offenses. At least 

one specific offense characteristic 

applied to every conviction under 18 

U.S.C. 2241(c) sentenced under § 2A3.1 

in fiscal year 2006. Accordingly, the 

mandatory minimum 360 months’

imprisonment is expected to be reached 

or exceeded in every case with a base 

offense level of 38. 

The amendment provides a new 

application note that precludes 

application of the specific offense 

characteristic at § 2A3.1(b)(1) regarding 

conduct described in 18 U.S.C. 2241(a) 

or (b) if the conduct that forms the basis 

for a conviction under 18 U.S.C. 2241(c) 

is that the defendant engaged in conduct 

described in 18 U.S.C. 2241(a) or (b) 

(force, threat, or other means). The 

amendment also precludes application 

of the specific offense characteristic for 

the age of a victim at § 2A3.1(b)(2) if the 

defendant was convicted under section 

2241(c). The heightened base offense 

level of 38 takes into account the age of 

the victim. These instructions, therefore, 

avoid unwarranted double counting. 

Second, section 207 of the Adam 

Walsh Act increased the statutory 

maximum term of imprisonment under 

18 U.S.C. 2243(b) from 5 years to 15 

years for the sexual abuse of a person in 

official detention or under custodial 

authority. In response to increased 

penalty, the amendment increases the 

base offense level from 12 to 14 in 

§ 2A3.3 (Criminal Sexual Abuse of a 

Ward or Attempt to Commit Such Acts). 

The amendment also adds a new 

definition of ‘‘minor’’ consistent with 

how this term is defined elsewhere in 

the guidelines manual. In addition, the 

amendment includes an application 

note precluding application of § 3B1.3 

(Abuse of Position of Trust or Use of 

Special Skill) for these offenses because 

an abuse of position of trust is assumed 

in all such cases and, therefore, is built 

into the base offense level. 

Third, section 206 of the Adam Walsh 

Act created a new subsection at 18 

U.S.C. 2244. Section 2244(a)(5) provides 

a penalty of any term of years if the 

sexual conduct would have violated 18 

U.S.C. 2241(c) had the contact been a 

sexual act. Section 2241(c) conduct 

involves the aggravated sexual abuse of 

a child under 12 years old or of a child 

between 12 and 16 years old if force, 

threat, or other means was used, as 

defined in 18 U.S.C. 2241(a) and (b). 

Prior to the Adam Walsh Act, the 

penalty for offenses involving children 

under 12 years old was ‘‘twice that 

otherwise provided,’’ and the penalty 

for sexual contact involving behavior 

described in 18 U.S.C. 2241 was a 

statutory maximum term of 

imprisonment of 10 years. 

The amendment addresses this new 

offense by increasing the minimum 

offense level in the age enhancement in 

subsection (b)(1) of § 2A3.4 (Abusive 

Sexual Contact or Attempt to Commit 

Abusive Sexual Contact) from level 20 

to level 22. 

Fourth, section 141 of the Adam 

Walsh Act created a new offense under 

18 U.S.C. 2250(a) for the failure to 

register as a sex offender. The basic 

offense carries a statutory maximum 

term of imprisonment of 10 years. 

Section 141 also included a directive to 

the Commission that when 

promulgating guidelines for the offense, 

to consider, among other factors, the 

seriousness of the sex offender’s 

conviction that gave rise to the 

requirement to register; relevant further 

offense conduct during the period for 

which the defendant failed to register; 

and the offender’s criminal history. 

The amendment creates a new 

guideline, § 2A3.5 (Failure to Register as 

a Sex Offender), to address the directive. 

The new guideline provides three 

alternative base offense levels based on 

the tiered category of the sex offender: 

level 16 if the defendant was required 

to register as a Tier III offender; level 14 

if the defendant was required to register 

as a Tier II offender; and level 12 if the 

defendant was required to register as a 

Tier I offender. 

The amendment also provides two 

specific offense characteristics. First, 

subsection (b)(1) provides a tiered 

enhancement to address criminal 

conduct committed while the defendant 

is in a failure to register status. 

Specifically, § 2A3.5(b)(1) provides a 

six-level increase if, while in a failure to 

register status, the defendant committed 

a sex offense against an adult, a six-level 

increase if the defendant committed a 

felony offense against a minor, and an 


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eight-level increase if the defendant 

committed a sex offense against a minor. 

Second, § 2A3.5(b)(2) provides a threelevel decrease if the defendant 

voluntarily corrected the failure to 

register or voluntarily attempted to 

register but was prevented from 

registering by uncontrollable 

circumstances, and the defendant did 

not contribute to the creation of those 

circumstances. The reduction covers 

cases in which (1) the defendant either 

does not attempt to register until after 

the relevant registration period has 

expired but subsequently successfully 

registers, thereby correcting the failure 

to register status, or (2) the defendant, 

either before or after the registration 

period has expired, attempted to register 

but circumstances beyond the 

defendant’s control prevented the 

defendant from successfully registering. 

An application note specifies that the 

voluntary attempt to register or to 

correct the failure to register must have 

occurred prior to the time the defendant 

knew or reasonably should have known 

a jurisdiction had detected the failure to 

register. The application note also 

provides that the reduction does not 

apply if the enhancement for 

committing one of the enumerated 

offenses in § 2A3.5(b)(1) applies. 

Additionally, the amendment adds 

§ 2A3.5 to the list of offenses that are 

considered groupable under § 3D1.2(d) 

because the failure to register offense is 

an ongoing and continuous offense. 

Fifth, section 141 of the Adam Walsh 

Act created two new aggravated offenses 

relating to the registration as a sex 

offender. Section 141 of the Act created 

18 U.S.C. 2250(c), which carries a 

mandatory minimum term of 

imprisonment of 5 years and a statutory 

maximum term of imprisonment of 30 

years if a defendant commits a crime of 

violence while in a failure to register 

status, with the sentence to be 

consecutive to the punishment provided 

for the failure to register. Section 702 of 

the Adam Walsh Act created a new 

offense at 18 U.S.C. 2260A that 

prohibits the commission of various 

enumerated offenses while in a failure 

to register status. The penalty for this 

offense is a mandatory term of 

imprisonment of 10 years to be imposed 

consecutively to the underlying offense. 

The amendment creates a new 

guideline at § 2A3.6 (Aggravated 

Offenses Relating to Registration as a 

Sex Offender) to address these new 

offenses. The new guideline provides 

that for offenses under section 2250(c), 

the guideline sentence is the minimum 

term of imprisonment required by 

statute, and for offenses under section 

2260A, the guideline sentence is the 

term of imprisonment required by 

statute. Chapters Three and Four are not 

to apply. This is consistent with how 

the guidelines treat other offenses that 

carry both a specified term of 

imprisonment and a requirement that 

such term be imposed consecutively. 

See §§ 3D1.1 (Procedure for Determining 

Offense Level on Multiple Counts) and 

5G1.2 (Sentencing on Multiple Counts 

of Conviction). 

The guideline includes an application 

note that provides an upward departure 

stating that a sentence above the 

minimum term required by section 

2250(c) is an upward departure from the 

guideline sentence. An upward 

departure may be warranted, for 

example, in a case involving a sex 

offense committed against a minor or if 

the offense resulted in serious bodily 

injury to a minor. 

Sixth, section 208 of the Adam Walsh 

Act added a new mandatory minimum 

term of imprisonment of 15 years under 

18 U.S.C. 1591(b)(1) for sex trafficking 

of an adult by force, fraud, or coercion. 

In response, the amendment provides a 

new base offense level of 34 in § 2G1.1 

(Promoting a Commercial Sex Act or 

Prohibited Sexual Conduct with an 

Individual Other than a Minor) if the 

offense of conviction is 18 U.S.C. 

1591(b)(1), but retains a base offense 

level of 14 for all other offenses. In 

addition, the amendment limits 

application of the specific offense 

characteristic at § 2G1.1(b)(1) that 

applies if the offense involved fraud or 

coercion only to those offenses receiving 

a base offense level of 14. Offenses 

under 18 U.S.C. 1591(b)(1) necessarily 

involve fraud and coercion and, 

therefore, such conduct is built into the 

heightened base offense level of 34. This 

limitation thus avoids unwarranted 

double counting. 

Seventh, section 208 of the Adam 

Walsh Act added a new mandatory 

minimum term of imprisonment of 15 

years under 18 U.S.C. 1591(b)(1) for sex 

trafficking of children under 14 years of 

age and added a new mandatory 

minimum term of imprisonment of 10 

years and increased the statutory 

maximum term of imprisonment from 

40 years to life under 18 U.S.C. 

1591(b)(2) for sex trafficking of children 

who had attained the age of 14 years but 

had not attained the age of 18 years. 

Further, the Adam Walsh Act increased 

the mandatory minimum term of 

imprisonment from 5 years to 10 years 

and increased the statutory maximum 

term of imprisonment from 30 years to 

life under both 18 U.S.C. 2422(b), for 

persuading or enticing any person who 

has not attained the age of 18 years to 

engage in prostitution or any sexual 

activity for which any person can be 

charged with a criminal offense, and 18 

U.S.C. 2423(a), for transporting a person 

who has not attained the age of 18 years 

in interstate or foreign commerce, with 

the intent that the person engage in 

prostitution, or in any sexual activity for 

which any person can be charged with 

a criminal offense. 

In response, the amendment provides 

alternative base offense levels in § 2G1.3 

(Promoting a Commercial Sex Act or 

Prohibited Sexual Conduct with a 

Minor; Transportation of Minors to 

Engage in a Commercial Sex Act or 

Prohibited Sexual Conduct; Travel to 

Engage in Commercial Sex Act or 

Prohibited Sexual Conduct with a 

Minor; Sex Trafficking of Children; Use 

of Interstate Facilities to Transport 

Information about a Minor) based on the 

statute of conviction and the conduct 

described in that conviction. For 

convictions under 18 U.S.C. 1591(b)(1), 

the base offense level is 34. For 

convictions under 18 U.S.C. 1591(b)(2), 

the base offense level is 30. 

The amendment further provides a 

base offense level of 28 for convictions 

under 18 U.S.C. § 2422(b) and 2423(a). 

The two-level enhancement for the use 

of a computer at § 2G1.3(b)(3) applied to 

95 percent of offenders convicted under 

18 U.S.C. 2422(b) and sentenced under 

§ 2G1.3 in fiscal year 2006. In addition, 

the two-level enhancement for the 

offense involving a sexual act or sexual 

contact at § 2G1.3(b)(4) applied to 95 

percent of offenders convicted under 18 

U.S.C. 2423(a) and sentenced under this 

guideline in fiscal year 2006. With 

application of either enhancement, the 

mandatory minimum term of 

imprisonment of 120 months will be 

reached in the majority of convictions 

under 18 U.S.C. 2422(b) and 2423(a), 

before application of other guidelines 

adjustments. 

Further, the amendment addresses the 

interaction of two specific offense 

characteristics with the alternative base 

offense levels. First, every conviction 

under 18 U.S.C. 1591 necessarily 

involves a commercial sex act. With the 

base offense levels being determined 

based on the statute of conviction, the 

amendment clarifies that 

§ 2G1.3(b)(4)(B), which provides a twolevel enhancement if the offense 

involved a commercial sex act, does not 

apply if the defendant is convicted 

under 18 U.S.C. 1591. Second, the 

amendment precludes application of the 

age enhancement in § 2G1.3(b)(5) if the 

base offense level is determined under 

subsection (a)(1) of § 2G1.3 for a 

conviction under 18 U.S.C. 1591(b)(1). 

The base offense level provided by 

subsection (a)(1) of § 2G1.3 takes into 


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account the age of the victim and, 

therefore, limitations on application of 

subsections (b)(4)(B) and (b)(5) of 

§ 2G1.3 avoid unwarranted double 

counting. 

Eighth, section 503 of the Adam 

Walsh Act created a new section, 18 

U.S.C. 2257A, adopting new 

recordkeeping obligations for the 

production of any book, magazine, 

periodical, film, videotape, or digital 

image that contains a visual depiction of 

simulated sexually explicit conduct. 

Section 2257A has a statutory maximum 

of one year imprisonment for the failure 

to comply with the recordkeeping 

requirements and a statutory maximum 

term of imprisonment of five years if the 

violation was to conceal a substantive 

offense that involves either causing a 

minor to engage in sexually explicit 

conduct for the purpose of producing a 

visual depiction or trafficking in 

material involving the sexual 

exploitation of a minor. The new offense 

is similar to 18 U.S.C. 2257, which is 

referenced to § 2G2.5 (Recordkeeping 

Offenses Involving the Production of 

Sexually Explicit Materials; Failure to 

Provide Required Marks in Commercial 

Electronic Mail). Accordingly, the 

amendment refers the new offense to 

§ 2G2.5. 

Ninth, section 701 of the Adam Walsh 

Act created a new offense in 18 U.S.C. 

2252A(g) that prohibits engaging in 

child exploitation enterprises, defined 

as violating 18 U.S.C. 1591, 1201 (if the 

victim is a minor), chapter 109A 

(involving a minor victim), chapter 110 

(except for 18 U.S.C. 2257 and 2257A), 

or chapter 117 (involving a minor 

victim), as part of a series of felony 

violations constituting three or more 

separate incidents and involving more 

than one victim, and committing those 

offenses in concert with three or more 

other people. The statute provides a 

mandatory minimum term of 

imprisonment of 20 years. 

The amendment creates a new 

guideline at § 2G2.6 (Child Exploitation 

Enterprises) to cover this new offense. 

The guideline provides a base offense 

level of 35 and four specific offense 

characteristics. The Commission 

anticipates these offenses typically will 

involve conduct encompassing at least 

one of the specific offense 

characteristics, resulting in an offense 

level of at least level 37. Thus, the 

mandatory minimum term of 

imprisonment of 240 months typically 

is expected to be reached or exceeded, 

before application of other guideline 

adjustments. 

Tenth, section 206 of the Adam Walsh 

Act increased the statutory maximum 

term of imprisonment from 4 years to 10 

years under 18 U.S.C. 2252B(b) for 

knowingly using a misleading domain 

name with the intent to deceive a minor 

into viewing material harmful to minors 

on the Internet. In addition, section 703 

of the Act created a new section, 18 

U.S.C. 2252C, that carries a statutory 

maximum term of imprisonment of 10 

years for knowingly embedding words 

or digital images into the source code of 

a Web site with the intent to deceive a 

person into viewing material 

constituting obscenity. Section 2252C(b) 

carries a statutory maximum term of 

imprisonment of 20 years for knowingly 

embedding words or digital images into 

the source code of a Web site with the 

intent to deceive a minor into viewing 

material harmful to minors on the 

Internet. 

In response to the new offense, the 

amendment expands the scope of 

subsection (b)(2) of § 2G3.1 (Importing, 

Mailing, or Transporting Obscene 

Matter; Transferring Obscene Matter to 

a Minor; Misleading Domain Names) by 

adding to this enhancement ‘‘embedded 

words or digital images into the source 

code on a Web site.’’

Eleventh, section 141 of the Adam 

Walsh Act added a new provision in 18 

U.S.C. 1001 that carries a statutory 

maximum term of imprisonment of 8 

years for falsifying or covering up by 

any scheme or making materially false 

or fraudulent statements or making or 

using any false writings or documents 

that relate to offenses under chapters 

109A, 109B, 110, and 117, and under 

section 1591 of chapter 77. The 

amendment adds a new specific offense 

characteristic at subsection (b)(1)(A) of 

§ 2J1.2 (Obstruction of Justice) 

enhancing the offense level by four 

levels if the defendant was convicted 

under 18 U.S.C. 1001 and the statutory 

maximum term of 8 years’

imprisonment applies because the 

matter relates to sex offenses. The 

amendment also added language to 

Application Note 4 stating an upward 

departure may be warranted under the 

guideline in a case involving a 

particularly serious sex offense. 

Twelfth, section 206 of the Adam 

Walsh Act added 18 U.S.C. 1591 to the 

list of offenses for which a defendant is 

to be sentenced to life under 18 U.S.C. 

3559(e)(2)(A). The amendment adds 18 

U.S.C. 1591 to the list of instant offenses 

of convictions that are covered sex 

crimes under § 4B1.5. 

Thirteenth, section 141 of the Adam 

Walsh Act amended 18 U.S.C. 3563 and 

3583. The amendment adds a new 

subdivision to (a)(9) of § 5B1.3 and to 

(a)(7) of § 5D1.3 to require a defendant 

to comply with the new registration 

requirements provided by the Adam 

Walsh Act. The amendment also 

modifies the language in §§ 5B1.3(a)(9) 

and 5D1.3(a)(7) relating to defendants 

convicted of a sexual offense described 

in 18 U.S.C. 4042(c)(4). Not all states 

have implemented the new 

requirements, continuing to register sex 

offenders pursuant to the sex offender 

registry in place prior to July 27, 2006, 

the date of enactment of the Adam 

Walsh Act. Thus, it is necessary to 

maintain the language in the guidelines 

providing for conditions of probation 

and supervised release for those 

offenders. 

Fourteenth, section 141 of the Act 

amended 18 U.S.C. 3583(k), which 

provides that the authorized term of 

supervised release for any offense under 

enumerated sex offenses is any term of 

years or life. In response, the 

amendment adds offenses under chapter 

109B and sections 1201 and 1591 of title 

18 United States Code or 18 U.S.C. 

§ 1201 and 1591 to the definition of sex 

offense under § 5D1.2(b)(2) for which 

the length of the term of supervised 

release shall be not less than the 

minimum term of years specified for the 

offense and may be up to life. 

Finally, the amendment provides a 

definition of ‘‘minor’’ in relevant 

guidelines that is consistent with how 

this term is defined elsewhere in the 

guidelines. Outdated background 

commentary also is deleted by this 

amendment. 

5. Corrections to §§ 2B1.1 and 2L1.1 

Amendment: Section 2B1.1(b)(13)(C) 

is amended by striking ‘‘(b)(12)(B)’’ and 

inserting ‘‘(b)(13)(B)’’. 

Section 2L1.1(b)(1) is amended by 

striking ‘‘(a)(2)’’ and inserting ‘‘(a)(3)’’. 

Reason for Amendment: This 

amendment corrects typographical 

errors in subsection (b)(13)(C) of § 2B1.1 

(Larceny, Embezzlement, and Other 

Forms of Theft; Offenses Involving 

Stolen Property; Property Damage or 

Destruction; Fraud and Deceit; Forgery; 

Offenses Involving Altered or 

Counterfeit Instruments Other than 

Counterfeit Bearer Obligations of the 

United States) and subsection (b)(1) of 

§ 2L1.1 (Smuggling, Transporting, or 

Harboring an Unlawful Alien). 

The typographical error to 

§ 2B1.1(b)(13)(C) stems from 

redesignations made to § 2B1.1 in 2004 

when the Commission added a new 

subsection (b)(7) in response to the 

Controlling the Assault of Non-Solicited 

Pornography and Marketing Act of 2003 

(‘‘CAN–SPAM Act’’), Pub. L. 108–187. 

(USSG App. C Amendment 665) 

(November 1, 2004). 

The typographical error in 

§ 2L1.1(b)(1) stems from redesignations 


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made to § 2L1.1 in 2006 when the 

Commission added a new subsection 

(a)(1) for aliens who are inadmissible for 

national security related reasons. (USSG 

App. C Amendment 692) (November 1, 

2006). 

The Commission has determined that 

this amendment should be applied 

retroactively because (A) the purpose of 

the amendment is to correct 

typographical errors; (B) the number of 

cases involved is minimal even given 

the potential change in guideline ranges 

(i.e., ensuring application of the 

maximum increase of 8 levels in 

§ 2B1.1(b)(13)(C) and providing correct 

application of the three-level reduction 

in § 2L1.1(b)(1)); and (C) the amendment 

would not be difficult to apply 

retroactively. These factors, combined, 

meet the standards set forth in the 

relevant background commentary to 

§ 1B1.10 (Reduction in Term of 

Imprisonment as a Result of Amended 

Guideline Range). 

6. Miscellaneous Laws 

Amendment: Section 2B2.3(b)(1) is 

amended by redesignating subdivision 

(F) as subdivision (G); and by inserting 

‘‘(F) at Arlington National Cemetery or 

a cemetery under the control of the 

National Cemetery Administration;’’

after ‘‘residence;’’. 

The Commentary to § 2B2.3 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘38 U.S.C. 2413;’’ after 

‘‘1036;’’. 

The Commentary to § 2E3.1 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘; 31 U.S.C. 5363’’ after 

‘‘1955’’. 

Appendix A (Statutory Index) is 

amended by inserting after the line 

referenced to 31 U.S.C. 5332 the 

following: 

‘‘31 U.S.C. 5363—2E3.1’’; 

and by inserting after the line referenced 

to 38 U.S.C. 787 the following: 

‘‘38 U.S.C. 2413—2B2.3’’. 

Reason for Amendment: This 

amendment addresses two new offenses, 

38 U.S.C. 2413, which was created by 

the Respect for America’s Fallen Heroes 

Act, Pub. L. 109–228, and 31 U.S.C. 

5363, which was created by the Security 

and Accountability for Every Port Act of 

2006, Pub. L. 109–347. 

The new offense at 38 U.S.C. 2413 

prohibits certain demonstrations at 

Arlington National Cemetery and at 

cemeteries controlled by the National 

Cemetery Administration and provides 

a statutory maximum penalty of 

imprisonment of not more than one 

year, a fine, or both. The amendment 

references convictions under 38 U.S.C. 

2413 to § 2B2.3 (Trespass) and expands 

the scope of the two-level enhancement 

at § 2B2.3(b)(1) for trespass offenses that 

occur in certain locations to include 

trespass at Arlington National Cemetery 

or a cemetery under the control of the 

National Cemetery Administration. The 

Commission determined that the need 

to protect the final resting places of the 

nation’s war dead and the need to 

discourage violent confrontations at the 

funerals of veterans who are killed in 

action justifies expanding the scope of 

the enhancement to cover such conduct. 

The new offense at 31 U.S.C. 5363 

prohibits acceptance of any financial 

instrument for unlawful Internet 

gambling and provides a statutory 

maximum term of imprisonment of five 

years. The amendment references 

convictions under 31 U.S.C. 5363 to 

§ 2E3.1 (Gambling Offenses). 

7. Repromulgation of Emergency 

Amendment on Intellectual Property 

Amendment: The amendment to 

§ 2B5.3, effective September 12, 2006 

(see Appendix C amendment 682), is 

repromulgated with the following 

changes: 

Section 2B5.3(b)(3) is amended by 

inserting ‘‘(A)’’ before ‘‘offense 

involved’’ and by inserting ‘‘; or (B) 

defendant was convicted under 17 

U.S.C. 1201 and 1204 for trafficking in 

circumvention devices’’ after ‘‘items’’. 

The Commentary to § 2B5.3 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘§ ’’ after ‘‘17 U.S.C. ‘‘; and by 

inserting ‘‘, 1201, 1204’’ after ‘‘506(a)’’. 

The Commentary to § 2B5.3 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by inserting after ‘‘Definitions.—

For purposes of this guideline:’’ the 

following paragraph: 

‘‘ ‘Circumvention devices’ are devices used 

to perform the activity described in 17 U.S.C. 

§ 1201(a)(3)(A) and 1201(b)(2)(A).’’. 

The Commentary to § 2B5.3 captioned 

‘‘Application Notes’’ is amended in 

Note 2(A) by adding at the end the 

following: 

‘‘(vii) A case under 18 U.S.C. 2318 or 

§ 2320 that involves a counterfeit label, 

patch, sticker, wrapper, badge, emblem, 

medallion, charm, box, container, can, case, 

hangtag, documentation, or packaging of any 

type or nature (I) that has not been affixed 

to, or does not enclose or accompany a good 

or service; and (II) which, had it been so 

used, would appear to a reasonably informed 

purchaser to be affixed to, enclosing or 

accompanying an identifiable, genuine good 

or service. In such a case, the ‘infringed item’

is the identifiable, genuine good or service. 

(viii) A case under 17 U.S.C. § 1201 and 

1204 in which the defendant used a 

circumvention device. In such an offense, the 

‘retail value of the infringed item’ is the price 

the user would have paid to access lawfully 

the copyrighted work, and the ‘infringed 

item’ is the accessed work.’’. 

The Commentary to § 2B5.3 captioned 

‘‘Application Notes’’ is amended in 

Note 3 by striking ‘‘shall’’ and inserting 

‘‘may’’. 

The Commentary to § 2B5.3 captioned 

‘‘Application Notes’’ is amended in 

Note 4 by striking ‘‘Upward’’ before 

‘‘Departure’’; by inserting ‘‘or 

overstates’’ after ‘‘understates’’; and by 

striking ‘‘an upward’’ each place it 

appears and inserting ‘‘a’’; and by 

adding at the end the following: 

‘‘(C) The method used to calculate the 

infringement amount is based upon a formula 

or extrapolation that results in an estimated 

amount that may substantially exceed the 

actual pecuniary harm to the copyright or 

trademark owner.’’. 

Appendix A (Statutory Index) is 

amended by inserting after the line 

referenced to 17 U.S.C. 506(a) the 

following new lines: 

‘‘17 U.S.C. 1201—2B5.3 

17 U.S.C. 1204—2B5.3’’. 

Reason for Amendment: This 

amendment re-promulgates as 

permanent the temporary, emergency 

amendment (effective Sept. 12, 2006) 

that implemented the emergency 

directive in section 1(c) of the Stop 

Counterfeiting in Manufactured Goods 

Act, Pub. L. 109–181 (2006). The 

directive, which required the 

Commission to promulgate an 

amendment under emergency 

amendment authority by September 12, 

2006, 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 

2318 or 2320 of title 18, United States 

Code.’’

In carrying out [the directive], the 

United States Sentencing Commission 

shall determine whether the definition 

of ‘‘infringement amount’’ set forth in 

application note 2 of section 2B5.3 of 

the Federal sentencing guidelines is 

adequate to address situations in which 

the defendant has been convicted of one 

of the offenses [under section 2318 or 

2320 of title 18, United States Code,] 

and the item in which the defendant 

trafficked was not an infringing item but 

rather was intended to facilitate 

infringement, such as an anticircumvention device, or the item in 

which the defendant trafficked was 

infringing and also was intended to 

facilitate infringement in another good 

or service, such as a counterfeit label, 

documentation, or packaging, taking 

into account cases such as U.S. v. Sung, 

87 F.3d 194 (7th Cir. 1996). 


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The amendment adds subdivision 

(vii) to Application Note 2(A) of § 2B5.3 

(Criminal Infringement of Copyright or 

Trademark) to provide that the 

infringement amount is based on the 

retail value of the infringed item in a 

case under 18 U.S.C. 2318 or 2320 that 

involves a counterfeit label, patch, 

sticker, wrapper, badge, emblem, 

medallion, charm, box, container, can, 

case, hangtag, documentation, or 

packaging of any type or nature (i) that 

has not been affixed to, or does not 

enclose or accompany a good or service; 

and (II) which, had it been so used, 

would appear to a reasonably informed 

purchaser to be affixed to, enclosing or 

accompanying an identifiable, genuine 

good or service. In such a case, the 

‘‘infringed item’’ is the identifiable, 

genuine good or service. 

In addition to re-promulgating the 

emergency amendment, the amendment 

responds to the directive by addressing 

violations of 17 U.S.C. 1201 and 1204 

involving circumvention devices. The 

amendment addresses circumvention 

devices in two ways. First, the 

amendment adds an application note 

regarding the determination of the 

infringement amount in cases under 17 

U.S.C. 1201 and 1204 in which the 

defendant used a circumvention device 

and thus obtained unauthorized access 

to a copyrighted work. Such an offense 

would involve an identifiable 

copyrighted work. Accordingly, 

consistent with the existing rules in 

§ 2B5.3, the ‘‘retail value of the 

infringed item’’ would be used for 

purposes of determining the 

infringement amount. The amendment 

adds subsection (viii) to Application 

Note 2(A), and explains that the ‘‘retail 

value of the infringed item’’ is the price 

the user would have paid to access 

lawfully the copyrighted work, and the 

‘‘infringed item’’ is the accessed work. 

If the defendant violated 17 U.S.C. 1201 

and 1204 by conduct that did not 

include use of a circumvention device, 

Application Note 2(B) would apply by 

default. Thus, as it does in any case not 

otherwise covered by Application Note 

2(A), the infringement amount would be 

determined by reference to the value of 

the infringing item, which in these cases 

would be the circumvention device. 

Second, the amendment expands the 

sentencing enhancement in § 2B5.3(b)(3) 

to include convictions under 17 U.S.C. 

1201 and 1204 for trafficking in 

circumvention devices. Prior to the 

amendment, § 2B5.3(b)(3) provided a 

two-level enhancement and a minimum 

offense level of 12 for cases involving 

the manufacture, importation, or 

uploading of infringing items. The 

purpose of the enhancement in 

§ 2B5.3(b)(3) is to provide greater 

punishment for defendants who put 

infringing items into the stream of 

commerce in a manner that enables 

others to infringe the copyright or 

trademark. The Commission determined 

that trafficking in circumvention 

devices similarly enables others to 

infringe a copyright and warrants 

greater punishment. 

The amendment also strikes language 

in Application Note 3 mandating an 

adjustment under § 3B1.3 (Abuse of 

Position of Trust or Use of Special Skill) 

in every case in which the defendant deencrypted or otherwise circumvented a 

technological security measure to gain 

initial access to an infringed item. 

Instead, the note indicates that 

application of the adjustment may be 

appropriate in such a case because the 

Commission determined that not every 

case involving de-encryption or 

circumvention requires the level of skill 

contemplated by the special skill 

adjustment. 

Finally, the amendment modifies 

Application Note 4 to address 

downward departures. The addition of 

this language recognizes that in some 

instances the method for calculating the 

infringement amount may be based on 

a formula or extrapolation that 

overstates the actual pecuniary harm to 

the copyright or trademark owner. This 

language is analogous to departure 

language in § 2B1.1 (Larceny, 

Embezzlement, and Other Forms of 

Theft; Offenses Involving Stolen 

Property; Property Damage or 

Destruction; Fraud and Deceit; Forgery; 

Offenses Involving Altered or 

Counterfeit Instruments Other than 

Counterfeit Bearer Obligations of the 

United States) and thus promotes 

consistency between these two 

economic crime guidelines. 

8. Drugs 

Amendment: Section 2D1.1(b) is 

amended by redesingating subdivisions 

(8) and (9), as subdivisions (10) and 

(11), respectively; by redesignating 

subdivisions (5) through (7) as 

subdivisions (6) through (8), 

respectively; by inserting after 

subdivision (4) the following: 

‘‘(5) If the defendant is convicted under 21 

U.S.C. 865, increase by 2 levels.’’; 

and by inserting after subdivision (8), as 

redesignated by this amendment, the 

following: 

‘‘(9) If the defendant was convicted under 

21 U.S.C. 841(g)(1)(A), increase by 2 levels.’’. 

Section 2D1.1(b) is amended in 

subdivision (10), as redesignated by this 

amendment, by striking ‘‘greater’’ and 

inserting ‘‘greatest’’; by redesignating 

subdivision (C) as subdivision (D); and 

by striking subdivision (B) and inserting 

the following: 

‘‘(B) If the defendant was convicted under 

21 U.S.C. 860a of distributing, or possessing 

with intent to distribute, methamphetamine 

on premises where a minor is present or 

resides, increase by 2 levels. If the resulting 

offense level is less than level 14, increase to 

level 14. 

(C) If—

(i) the defendant was convicted under 21 

U.S.C. 860a of manufacturing, or possessing 

with intent to manufacture, 

methamphetamine on premises where a 

minor is present or resides; or 

(ii) the offense involved the manufacture of 

amphetamine or methamphetamine and the 

offense created a substantial risk of harm to 

(I) human life other than a life described in 

subdivision (D); or (II) the environment, 

increase by 3 levels. If the resulting offense 

level is less than level 27, increase to level 

27.’’. 

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

inserting ‘‘30,000,000 units or more of 

Ketamine;’’ after the line referenced to 

‘‘Hashish Oil’’. 

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

inserting ‘‘At least 10,000,000 but less 

than 30,000,000 units of Ketamine;’’

after the line referenced to ‘‘Hashish 

Oil’’. 

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

inserting ‘‘At least 3,000,000 but less 

than 10,000,000 units of Ketamine;’’

after the line referenced to ‘‘Hashish 

Oil’’. 

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

inserting ‘‘At least 1,000,000 but less 

than 3,000,000 units of Ketamine;’’ after 

the line referenced to ‘‘Hashish Oil’’. 

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

inserting ‘‘At least 700,000 but less than 

1,000,000 units of Ketamine;’’ after the 

line referenced to ‘‘Hashish Oil’’. 

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

inserting ‘‘At least 400,000 but less than 

700,000 units of Ketamine;’’ after the 

line referenced to ‘‘Hashish Oil’’. 

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

inserting ‘‘At least 100,000 but less than 

400,000 units of Ketamine;’’ after the 

line referenced to ‘‘Hashish Oil’’. 

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

inserting ‘‘At least 80,000 but less than 

100,000 units of Ketamine;’’ after the 

line referenced to ‘‘Hashish Oil’’. 

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

inserting ‘‘At least 60,000 but less than 

80,000 units of Ketamine;’’ after the line 

referenced to ‘‘Hashish Oil’’. 

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

inserting ‘‘At least 40,000 but less than 

60,000 units of Ketamine;’’ after the line 

referenced to ‘‘Hashish Oil’’; and by 

inserting ‘‘(except Ketamine)’’ after 

‘‘Schedule III substances’’. 

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

inserting ‘‘At least 20,000 but less than 


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40,000 units of Ketamine;’’ after the line 

referenced to ‘‘Hashish Oil’’; and by 

inserting ‘‘(except Ketamine)’’ after 

‘‘Schedule III substances’’. 

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

inserting ‘‘At least 10,000 but less than 

20,000 units of Ketamine;’’ after the line 

referenced to ‘‘Hashish Oil’’; and by 

inserting ‘‘(except Ketamine)’’ after 

‘‘Schedule III substances’’. 

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

inserting ‘‘At least 5,000 but less than 

10,000 units of Ketamine;’’ after the line 

referenced to ‘‘Hashish Oil’’; and by 

inserting ‘‘(except Ketamine)’’ after 

‘‘Schedule III substances’’. 

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

inserting ‘‘At least 2,500 but less than 

5,000 units of Ketamine;’’ after the line 

referenced to ‘‘Hashish Oil’’; and by 

inserting ‘‘(except Ketamine)’’ after 

‘‘Schedule III substances’’. 

Section 2D1.1(c)(15) is amended by 

inserting ‘‘At least 1,000 units but less 

than 2,500 units of Ketamine; ‘‘ after the 

line referenced to ‘‘Hashish Oil’’; and by 

inserting ‘‘(except Ketamine)’’ after 

‘‘Schedule III substances’’. 

Section 2D1.1(c)(16) is amended by 

inserting ‘‘At least 250 units but less 

than 1,000 units of Ketamine;’’ after the 

line referenced to ‘‘Hashish Oil’’; and by 

inserting ‘‘(except Ketamine)’’ after 

‘‘Schedule III substances’’. 

Section 2D1.1(c)(17) is amended by 

inserting ‘‘Less than 250 units of 

Ketamine;’’ after the line referenced to 

‘‘Hashish Oil’’; and by inserting 

‘‘(except Ketamine)’’ after ‘‘Schedule III 

substances’’. 

The Commentary to § 2D1.1 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘(g), 860a, 865,’’ after ‘‘(3), 

(7),’’. 

The Commentary to § 2D1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 10 in the section captioned ‘‘Drug 

Equivalency Tables’’ in the subdivision 

captioned ‘‘Schedule III Substances’’ by 

inserting in the heading ‘‘(except 

ketamine)’’ after ‘‘Substances’’; 

by adding after the subdivision 

captioned ‘‘Schedule III Substances’’ the 

following new subdivision: 

‘‘Ketamine 

1 unit of ketamine = 1 gm of marihuana’’; 

and by adding after the subdivision 

captioned ‘‘List I Chemicals (relating to 

the manufacture of amphetamine or 

methamphetamine)’’ the following new 

subdivision: 

‘‘Date Rape Drugs (except 

flunitrazipam, GHB, or ketamine) 

1 ml of 1,4-butanediol = 8.8 gm 

marihuana 

1 ml of gamma butyrolactone = 8.8 gm 

marihuana’’. 

The Commentary to § 2D1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 19 by striking ‘‘(b)(8)’’ each place 

it appears and inserting ‘‘(b)(10)’’. 

The Commentary to § 2D1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 20 in subdivision (A) by striking 

‘‘(b)(8)(B) or (C)’’ and inserting 

‘‘(b)(10)(C)(ii) or (D)’’; and in 

subdivision (B) by striking ‘‘(b)(8)(C)’’

and inserting ‘‘(b)(10)(D)’’. 

The Commentary to § 2D1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 21 by striking ‘‘(9)’’ each place it 

appears and inserting ‘‘(11)’’. 

The Commentary to § 2D1.1 captioned 

‘‘Application Notes’’ is amended by 

redesignating Notes 22 through 25 as 

Notes 23 through 26, respectively; and 

by inserting after Note 21 the following: 

‘‘22. Imposition of Consecutive Sentence 

for 21 U.S.C. 860a or 865.—Sections 860a 

and 865 of title 21, United States Code, 

require the imposition of a mandatory 

consecutive term of imprisonment of not 

more than 20 years and 15 years, 

respectively. In order to comply with the 

relevant statute, the court should determine 

the appropriate ‘total punishment’ and divide 

the sentence on the judgment form between 

the sentence attributable to the underlying 

drug offense and the sentence attributable to 

21 U.S.C. 860a or 865, specifying the number 

of months to be served consecutively for the 

conviction under 21 U.S.C. 860a or 865. For 

example, if the applicable adjusted guideline 

range is 151–188 months and the court 

determines a ‘total punishment’ of 151 

months is appropriate, a sentence of 130 

months for the underlying offense plus 21 

months for the conduct covered by 21 U.S.C. 

860a or 865 would achieve the ‘total 

punishment’ in a manner that satisfies the 

statutory requirement of a consecutive 

sentence.’’. 

The Commentary to § 2D1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 23, as redesignated by this 

amendment, by striking ‘‘(5)’’ each place 

it appears and inserting ‘‘(6)’’. 

The Commentary to § 2D1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 25, as redesignated by this 

amendment, by striking ‘‘(6)’’ each place 

it appears and inserting ‘‘(7)’’. 

The Commentary to § 2D1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 26, as redesignated by this 

amendment, by striking ‘‘(7)’’ each place 

it appears and inserting ‘‘(8)’’. 

The Commentary to § 2D1.1 captioned 

‘‘Background’’ is amended in the ninth 

paragraph by striking ‘‘(b)(8)’’ and 

inserting ‘‘(b)(10)’’; and in the last 

paragraph by striking ‘‘(b)(8)(B) and (C)’’

and inserting ‘‘(b)(10)(C)(ii) and (D)’’. 

Section 2D1.11(b) is amended by 

adding at the end the following 

subdivision: 

‘‘(5) If the defendant is convicted under 21 

U.S.C. 865, increase by 2 levels.’’. 

The Commentary to § 2D1.11 

captioned ‘‘Statutory Provisions’’ is 

amended by inserting ‘‘865,’’ after 

‘‘(f)(1),’’. 

The Commentary to § 2D1.11 

captioned ‘‘Application Notes’’ is 

amended by adding at the end the 

following: 

‘‘8. Imposition of Consecutive Sentence for 

21 U.S.C. 865.—Section 865 of title 21, 

United States Code, requires the imposition 

of a mandatory consecutive term of 

imprisonment of not more than 15 years. In 

order to comply with the relevant statute, the 

court should determine the appropriate ‘total 

punishment’ and, on the judgment form, 

divide the sentence between the sentence 

attributable to the underlying drug offense 

and the sentence attributable to 21 U.S.C. 

865, specifying the number of months to be 

served consecutively for the conviction 

under 21 U.S.C. 865. For example, if the 

applicable adjusted guideline range is 151–

188 months and the court determines a ‘total 

punishment’ of 151 months is appropriate, a 

sentence of 130 months for the underlying 

offense plus 21 months for the conduct 

covered by 21 U.S.C. 865 would achieve the 

‘total punishment’ in a manner that satisfies 

the statutory requirement of a consecutive 

sentence.’’. 

Appendix A (Statutory Index) is 

amended by inserting after the line 

referenced to 21 U.S.C. 841(f)(1) the 

following: 

‘‘21 U.S.C. 841(g)—2D1.1’’; 

by inserting after the line referenced to 

21 U.S.C. 860 the following: 

‘‘21 U.S.C. 860a—2D1.1’’; 

and by inserting after the line referenced 

to 21 U.S.C. 864 the following: 

‘‘21 U.S.C. 865—2D1.1, 2D1.11’’. 

Reason for Amendment: This 

amendment responds to the new 

offenses created by the USA PATRIOT 

Improvement and Reauthorization Act 

of 2005 (the ‘‘PATRIOT Reauthorization 

Act’’), Pub. L. 109–177, and the Adam 

Walsh Child Protection and Safety Act 

of 2006 (the ‘‘Adam Walsh Act’’), Pub. 

L. 109–248. 

First, the amendment addresses 

section 731 of the PATRIOT 

Reauthorization Act, which created a 

new offense at 21 U.S.C. 865. The new 

offense provides a mandatory 

consecutive sentence of 15 years’

imprisonment for smuggling of 

methamphetamine or its precursor 

chemicals into the United States by a 

person enrolled in, or acting on behalf 

of someone or some entity enrolled in, 

any dedicated commuter lane, 

alternative or accelerated inspection 

system, or other facilitated entry 

program administered by the federal 

government for use in entering the 

United States. The amendment refers 


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the new offense to both §§ 2D1.1 

(Unlawful Manufacturing, Importing, 

Exporting, or Trafficking (Including 

Possession with Intent to Commit These 

Offenses); Attempt or Conspiracy) and 

2D1.11 (Unlawfully Distributing, 

Importing, Exporting or Possessing a 

Listed Chemical; Attempt or 

Conspiracy), and provides a new twolevel enhancement in §§ 2D1.1(b)(5) and 

2D1.11(b)(5) if the defendant is 

convicted under 21 U.S.C. 865. The 

Commission determined that a two-level 

enhancement is appropriate because 

such conduct is analogous to abusing a 

position of trust, which receives a twolevel adjustment under § 3B1.3 (Abuse 

of Position of Trust or Use of Special 

Skill). 

Second, the amendment modifies 

§ 2D1.1 to address the new offense in 21 

U.S.C. 841(g) (Internet Sales of Date 

Rape Drugs) created by the Adam Walsh 

Act. This offense, which is punishable 

up to statutory maximum term of 

imprisonment of 20 years, prohibits the 

use of the Internet to distribute a date 

rape drug to any person, ‘‘knowing or 

with reasonable cause to believe that—

(A) The drug would be used in the 

commission of criminal sexual conduct; 

or (B) the person is not an authorized 

purchaser.’’ The statute defines ‘‘date 

rape drug’’ as ‘‘(i) gamma 

hydroxybutyric acid (GHB) or any 

controlled substance analogue of GHB, 

including gamma butyrolactone (GBL) 

or 1,4-butanediol; (ii) ketamine; (iii) 

flunitrazipam; or (iv) any substance 

which the Attorney General designates 

* * * to be used in committing rape or 

sexual assault.’’ The amendment 

provides a new two-level enhancement 

in § 2D1.1(b)(9) that is tailored to focus 

on the more serious conduct covered by 

the new statute, specifically conviction 

under 21 U.S.C. 841(g)(A), which covers 

individuals who know or have 

reasonable cause to believe the drug 

would be used in the commission of 

criminal sexual conduct. 

Third, the amendment eliminates the 

maximum base offense level of level 20 

for ketamine offenses. Ketamine is a 

Schedule III controlled substance. The 

Drug Quantity Table at § 2D1.1(c) 

provides a maximum offense level of 20 

for most Schedule III substances 

because such substances are subject to 

a statutory maximum term of 

imprisonment of 5 years. If a defendant 

is convicted under 21 U.S.C. 841(g) for 

distributing ketamine, however, the 

defendant is subject to a statutory 

maximum term of imprisonment of 20 

years. Accordingly, the amendment 

modifies the Drug Quantity Table in 

order to allow for appropriate 

sentencing of 21 U.S.C. 841(g) offenses 

involving larger quantities of ketamine 

that correspond to offense levels greater 

than level 20. This approach is 

consistent with how other drug offenses 

with a statutory maximum term of 

imprisonment of 20 years are penalized 

and with how other date rape drugs are 

penalized. The amendment also 

provides a marihuana equivalency in 

Application Note 10 for ketamine (1 

unit of ketamine = 1 gram of 

marihuana). 

Fourth, the amendment adds to 

§ 2D1.1, Application Note 10, a new 

drug equivalency for 1,4-butanediol 

(BD) and gamma butyrolactone (GBL), 

both of which are included in the 

definition of date rape drugs under 21 

U.S.C. 841(g). Neither is a controlled 

substance. The drug equivalency is 1 ml 

of BD or GBL equals 8.8 grams of 

marihuana. The Commission has 

received testimony that both substances 

are at least equipotent as GHB, which is 

punished at the same marihuana 

equivalency. 

Fifth, the amendment addresses the 

new offense in 21 U.S.C. 860a 

(Consecutive sentence for 

manufacturing or distributing, or 

possessing with intent to manufacture 

or distribute, methamphetamine on 

premises where children are present or 

reside), created by the PATRIOT 

Reauthorization Act. The new offense 

provides that a term of not more than 20 

years’ imprisonment is to be imposed, 

in addition to any other sentence 

imposed, for manufacturing, 

distributing, or possessing with the 

intent to manufacture or distribute, 

methamphetamine on a premises where 

a minor is present or resides. The 

amendment modifies § 2D1.1(b)(8)(C) to 

provide a two-level increase (with a 

minimum offense level of 14) if the 

defendant is convicted under 21 U.S.C. 

860a involving the distribution or 

possession with intent to distribute 

methamphetamine and a three-level 

increase (with a minimum offense level 

of 27) if the defendant is convicted 

under 21 U.S.C. 860a involving the 

manufacture or possession with intent 

to manufacture methamphetamine. 

To account for the spectrum of harms 

created by methamphetamine offenses, 

and to address the specific harms 

created by 21 U.S.C. 860a, the 

amendment builds on the ‘‘substantial 

risk enhancement.’’ This multi-tiered 

enhancement was added to § 2D1.1 in 

2000 in response to the 

Methamphetamine Anti-Proliferation 

Act of 2000, Pub. L. 106–310, Title 

XXXVI. See USSG App. C (Amendments 

608 and 620 (effective Dec. 12, 2000, 

and Nov. 1, 2001, respectively)). Prior to 

this amendment, the first tier provided 

a two-level increase for basic 

environmental harms, such as 

discharging hazardous substances into 

the environment. The second tier 

provided a three-level increase, and a 

minimum offense level of 27, for the 

substantial risk of harm to the life of 

someone other than a minor or an 

incompetent. The final tier provided a 

six-level increase and a minimum 

offense level of 30 for the substantial 

risk of harm to the life of a minor or 

incompetent or the environment. 

The Commission determined that 

distributing, or possessing with the 

intent to distribute, methamphetamine 

on a premises where a minor is present 

or resides presents a greater harm than 

discharging a hazardous substance into 

the environment, but is a lesser harm 

than the substantial risk of harm to 

adults or to the environment created by 

the manufacture of methamphetamine. 

Therefore, the amendment adds a new 

tier to the enhancement in the new 

subdivision (b)(10)(B) in order to 

account for this conduct. A defendant 

convicted under 21 U.S.C. 860a for 

distributing, or possessing with the 

intent to distribute, methamphetamine 

on a premises where a minor is present 

or resides will receive a two-level 

enhancement, with a minimum offense 

level of 14. 

To address the overlap of conduct 

covered by the enhancement for the 

substantial risk of harm to the life of a 

minor and the new offense of 

manufacturing, or possessing with the 

intent to manufacture, 

methamphetamine on a premises where 

a minor is present or resides, a threelevel enhancement and a minimum 

offense level of level 27 will apply in a 

case in which a minor is present, but in 

which the offense did not create a 

substantial risk of harm to the life of a 

minor. In any methamphetamine 

manufacturing offense which creates a 

substantial risk of harm to the life of a 

minor, a six-level enhancement and a 

minimum offense level of level 30 will 

apply. 

Sixth, the amendment updates 

Appendix A (Statutory Index) to include 

references to the new offenses created 

by the PATRIOT Reauthorization and 

Adam Walsh Acts. 

9. Cocaine Base Sentencing 

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

amended by striking ‘‘1.5 KG or more of 

Cocaine Base’’ and inserting ‘‘4.5 KG or 

more of Cocaine Base’’. 

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

striking ‘‘At least 500 G but less than 1.5 

KG of Cocaine Base’’ and inserting ‘‘At 

least 1.5 KG but less than 4.5 KG of 

Cocaine Base’’. 


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

striking ‘‘At least 150 G but less than 

500 G of Cocaine Base’’ and inserting 

‘‘At least 500 G but less than 1.5 KG of 

Cocaine Base’’. 

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

striking ‘‘At least 50 G but less than 150 

G of Cocaine Base’’ and inserting ‘‘At 

least 150 G but less than 500 G of 

Cocaine Base’’. 

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

striking ‘‘At least 35 G but less than 50 

G of Cocaine Base’’ and inserting ‘‘At 

least 50 G but less than 150 G of Cocaine 

Base’’. 

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

striking ‘‘At least 20 G but less than 35 

G of Cocaine Base’’ and inserting ‘‘At 

least 35 G but less than 50 G of Cocaine 

Base’’. 

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

striking ‘‘At least 5 G but less than 20 

G of Cocaine Base’’ and inserting ‘‘At 

least 20 G but less than 35 G of Cocaine 

Base’’. 

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

striking ‘‘At least 4 G but less than 5 G 

of Cocaine Base’’ and inserting ‘‘At least 

5 G but less than 20 G of Cocaine Base’’. 

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

striking ‘‘At least 3 G but less than 4 G 

of Cocaine Base’’ and inserting ‘‘At least 

4 G but less than 5 G of Cocaine Base’’. 

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

striking ‘‘At least 2 G but less than 3 G 

of Cocaine Base’’ and inserting ‘‘At least 

3 G but less than 4 G of Cocaine Base’’. 

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

striking ‘‘At least 1 G but less than 2 G 

of Cocaine Base’’ and inserting ‘‘At least 

2 G but less than 3 G of Cocaine Base’’. 

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

striking ‘‘At least 500 MG but less than 

1 G of Cocaine Base’’ and inserting ‘‘At 

least 1 G but less than 2 G of Cocaine 

Base’’. 

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

striking ‘‘At least 250 MG but less than 

500 MG of Cocaine Base’’ and inserting 

‘‘At least 500 MG but less than 1 G of 

Cocaine Base’’. 

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

striking ‘‘Less than 250 MG of Cocaine 

Base’’ and inserting ‘‘Less than 500 MG 

of Cocaine Base’’. 

The Commentary to § 2D1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 10 in the first paragraph by 

inserting before ‘‘The Commission has 

used the sentences’’ the following: 

‘‘Use of Drug Equivalency Tables.—

(A) Controlled Substances Not Referenced 

in Drug Quantity Table.—’’; 

by striking ‘‘(A)’’ before ‘‘Use’’ and 

inserting ‘‘(i)’’; by striking ‘‘(B)’’ before 

‘‘Find’’ and inserting ‘‘(ii)’’; and by 

striking ‘‘(C)’’ before ‘‘Use’’ and 

inserting ‘‘(iii)’’; 

in the second paragraph by striking 

‘‘The Drug Equivalency Tables also 

provide’’ and inserting the following: 

‘‘(B) Combining Differing Controlled 

Substances (Except Cocaine Base).—The 

Drug Equivalency Tables also provide’’; 

and by adding at the end the following: 

‘‘To determine a single offense level in a 

case involving cocaine base and other 

controlled substances, see subdivision (D) of 

this note.’’. 

The Commentary to § 2D1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 10 in the subdivision captioned 

‘‘Examples:’’ by striking ‘‘Examples:’’

and inserting the following: 

‘‘(C) Examples for Combining Differing 

Controlled Substances (Except Cocaine 

Base).—’’; 

and by redesignating examples ‘‘a.’’

through ‘‘d.’’ as examples (i) through 

(iv), respectively. 

The Commentary to § 2D1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 10 by inserting after example (iv), 

as redesignated by this amendment, the 

following: 

‘‘(D) Determining Base Offense Level in 

Offenses Involving Cocaine Base and Other 

Controlled Substances.—

(i) In General.—If the offense involves 

cocaine base (‘crack’) and one or more other 

controlled substance, determine the base 

offense level as follows: 

(I) Determine the combined base offense 

level for the other controlled substance or 

controlled substances as provided in 

subdivision (B) of this note. 

(II) Use the combined base offense level 

determined under subdivision (B) of this note 

to obtain the appropriate marihuana 

equivalency for the cocaine base involved in 

the offense using the following table: 

Base offense level Marihuana 

equivalency 

38 .............................. 6.7 kg of marihuana 

36 .............................. 6.7 kg of marihuana 

34 .............................. 6 kg of marihuana. 

32 .............................. 6.7 kg of marihuana. 

30 .............................. 14 kg of marihuana. 

28 .............................. 11.4 kg of marihuana. 

26 .............................. 5 kg of marihuana. 

24 .............................. 16 kg of marihuana. 

22 .............................. 15 kg of marihuana. 

20 .............................. 13.3 kg of marihuana. 

18 .............................. 10 kg of marihuana. 

16 .............................. 10 kg of marihuana. 

14 .............................. 10 kg of marihuana. 

12 .............................. 10 kg of marihuana. 

(III) Using the marihuana equivalency 

obtained from the table in subdivision (II), 

convert the quantity of cocaine base involved 

in the offense to its equivalent quantity of 

marihuana. 

(IV) Add the quantity of marihuana 

determined under subdivisions (I) and (III), 

and look up the total in the Drug Quantity 

Table to obtain the combined base offense 

level for all the controlled substances 

involved in the offense. 

(ii) Example.—The case involves 1.5 kg of 

cocaine, 10 kg of marihuana, and 20 g of 

cocaine base. Pursuant to subdivision (B), the 

equivalent quantity of marihuana for the 

cocaine and the marihuana is 310 kg. (The 

cocaine converts to an equivalent of 300 kg 

of marihuana (1.5 kg × 200 g = 300 kg), which 

when added to the quantity of marihuana 

involved in the offense, results in an 

equivalent quantity of 310 kg of marihuana.) 

This corresponds to a base offense level 26. 

Pursuant to the table in subdivision (II), the 

base offense level of 26 results in a 

marihuana equivalency of 5 kg for the 

cocaine base. Using this marihuana 

equivalency for the cocaine base results in a 

marihuana equivalency of 100 kg (20 g × 5 

kg = 100 kg). Adding the quantities of 

marihuana of all three controlled substances 

results in a combined quantity of 410 kg of 

marihuana, which corresponds to a 

combined base offense level of 28 in the Drug 

Quantity Table.’’. 

The Commentary to § 2D1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 10 by striking ‘‘DRUG 

EQUIVALENCY TABLES’’ and inserting 

the following: 

‘‘(E) Drug Equivalency Tables.—’’; 

and in the subdivision captioned 

‘‘Cocaine and Other Schedule I and II 

Stimulants (and their immediate 

precursors)’’ by striking ‘‘1 gm of 

Cocaine Base (‘Crack’) = 20 kg of 

marihuana’’. 

Reason for Amendment: The 

Commission identified as a policy 

priority for the amendment cycle ending 

May 1, 2007, ‘‘continuation of its work 

with the congressional, executive, and 

judicial branches of the government and 

other interested parties on cocaine 

sentencing policy,’’ including 

reevaluating the Commission’s 2002 

report to Congress, Cocaine and Federal 

Sentencing Policy. As a result of the 

Anti-Drug Abuse Act of 1986, Pub. L. 

99–570, 21 U.S.C. 841(b)(1) requires a 

five-year mandatory minimum penalty 

for a first-time trafficking offense 

involving 5 grams or more of crack 

cocaine, or 500 grams of powder 

cocaine, and a ten-year mandatory 

minimum penalty for a first-time 

trafficking offense involving 50 grams or 

more of crack cocaine, or 5,000 grams or 

more of powder cocaine. Because 100 

times more powder cocaine than crack 

cocaine is required to trigger the same 

mandatory minimum penalty, this 

penalty structure is commonly referred 

to as the ‘‘100-to-1 drug quantity ratio.’’

To assist the Commission in its 

consideration of Federal cocaine 

sentencing policy, the Commission 

received statements and heard expert 

testimony from the Executive Branch, 

the Federal judiciary, defense 


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practitioners, state and local law 

enforcement representatives, medical 

and treatment experts, academicians, 

social scientists, and interested 

community representatives at hearings 

on November 14, 2006, and March 20, 

2007. The Commission also received 

substantial written public comment on 

Federal cocaine sentencing policy 

throughout the amendment cycle. 

During the amendment cycle, the 

Commission updated its analysis of key 

sentencing data about cocaine offenses 

and offenders; reviewed recent scientific 

literature regarding cocaine use, effects, 

dependency, prenatal effects, and 

prevalence; researched trends in cocaine 

trafficking patterns, price, and use; 

surveyed the state laws regarding 

cocaine penalties; and monitored case 

law developments. 

Current data and information 

continue to support the Commission’s 

consistently held position that the 100- 

to-1 drug quantity ratio significantly 

undermines various congressional 

objectives set forth in the Sentencing 

Reform Act and elsewhere. These 

findings will be more thoroughly 

explained in a forthcoming report that 

will present to Congress, on or before 

May 15, 2007, a number of 

recommendations for modifications to 

the statutory penalties for crack cocaine 

offenses. It is the Commission’s firm 

desire that this report will facilitate 

prompt congressional action addressing 

the 100-to-1 drug quantity ratio. 

The Commission’s recommendation 

and strong desire for prompt legislative 

action notwithstanding, the problems 

associated with the 100-to-1 drug 

quantity ratio are so urgent and 

compelling that this amendment is 

promulgated as an interim measure to 

alleviate some of those problems. The 

Commission has concluded that the 

manner in which the Drug Quantity 

Table in § 2D1.1 (Unlawful 

Manufacturing, Importing, Exporting, or 

Trafficking (Including Possession with 

Intent to Commit These Offenses); 

Attempt or Conspiracy) was constructed 

to incorporate the statutory mandatory 

minimum penalties for crack cocaine 

offenses is an area in which the Federal 

sentencing guidelines contribute to the 

problems associated with the 100-to-1 

drug quantity ratio. 

When Congress passed the 1986 Act, 

the Commission responded by generally 

incorporating the statutory mandatory 

minimum sentences into the guidelines 

and extrapolating upward and 

downward to set guideline sentencing 

ranges for all drug quantities. The drug 

quantity thresholds in the Drug 

Quantity Table are set so as to provide 

base offense levels corresponding to 

guideline ranges that are above the 

statutory mandatory minimum 

penalties. Accordingly, offenses 

involving 5 grams or more of crack 

cocaine were assigned a base offense 

level (level 26) corresponding to a 

sentencing guideline range of 63 to 78 

months for a defendant in Criminal 

History Category I (a guideline range 

that exceeds the five-year statutory 

minimum for such offenses by at least 

three months). Similarly, offenses 

involving 50 grams or more of crack 

cocaine were assigned a base offense 

level (level 32) corresponding to a 

sentencing guideline range of 121 to 151 

months for a defendant in Criminal 

History Category I (a guideline range 

that exceeds the ten-year statutory 

minimum for such offenses by at least 

one month). Crack cocaine offenses for 

quantities above and below the 

mandatory minimum threshold 

quantities were set accordingly using 

the 100-to-1 drug quantity ratio. 

This amendment modifies the drug 

quantity thresholds in the Drug 

Quantity Table so as to assign, for crack 

cocaine offenses, base offense levels 

corresponding to guideline ranges that 

include the statutory mandatory 

minimum penalties. Accordingly, 

pursuant to the amendment, 5 grams of 

cocaine base are assigned a base offense 

level of 24 (51 to 63 months at Criminal 

History Category I, which includes the 

five-year (60 month) statutory minimum 

for such offenses), and 50 grams of 

cocaine base are assigned a base offense 

level of 30 (97 to 121 months at 

Criminal History Category I, which 

includes the ten-year (120 month) 

statutory minimum for such offenses). 

Crack cocaine offenses for quantities 

above and below the mandatory 

minimum threshold quantities similarly 

are adjusted downward by two levels. 

The amendment also includes a 

mechanism to determine a combined 

base offense level in an offense 

involving crack cocaine and other 

controlled substances. 

The Commission’s prison impact 

model predicts that, assuming no 

change in the existing statutory 

mandatory minimum penalties, this 

modification to the Drug Quantity Table 

will affect 69.7 percent of crack cocaine 

offenses sentenced under § 2D1.1 and 

will result in a reduction in the 

estimated average sentence of all crack 

cocaine offenses from 121 months to 

106 months, based on an analysis of 

cases sentenced in fiscal year 2006 

under § 2D1.1 involving crack cocaine. 

Having concluded once again that the 

100-to-1 drug quantity ratio should be 

modified, the Commission recognizes 

that establishing federal cocaine 

sentencing policy ultimately is 

Congress’s prerogative. Accordingly, the 

Commission tailored the amendment to 

fit within the existing statutory penalty 

scheme by assigning base offense levels 

that provide guideline ranges that 

include the statutory mandatory 

minimum penalties for crack cocaine 

offenses. The Commission, however, 

views the amendment only as an 

interim solution to some of the 

problems associated with the 100-to-1 

drug quantity ratio. It is neither a 

permanent nor a complete solution to 

those problems. Any comprehensive 

solution to the 100-to-1 drug quantity 

ratio requires appropriate legislative 

action by Congress. 

10. Technical Amendments 

Amendment: Section 2D1.11(a) is 

amended by striking ‘‘(e)’’ after ‘‘under 

subsection’’ and inserting ‘‘(d)’’. 

The Commentary to § 2K2.1 captioned 

‘‘Application Notes’’ is amended in 

Note 14 in subdivision (B) by striking 

‘‘(b)(1)’’ and inserting ‘‘(b)(6)’’. 

Appendix A (Statutory Index) is 

amended by inserting after the line 

referenced to 18 U.S.C. 930 the 

following: 

‘‘18 U.S.C. 931—2K2.6’’: 

and by striking the following: 

‘‘18 U.S.C. 3147—2J1.7’’. 

Chapter Three, Part D is amended in 

the Introductory Commentary in the 

first paragraph by inserting after the first 

sentence the following: 

‘‘These rules apply to multiple counts of 

conviction (A) contained in the same 

indictment or information; or (B) contained 

in different indictments or informations for 

which sentences are to be imposed at the 

same time or in a consolidated proceeding.’’. 

The Commentary to § 3D1.1 captioned 

‘‘Application Note’’ is amended by 

striking ‘‘Note’’ and inserting ‘‘Notes’’; 

by redesignating Note 1 as Note 2; and 

by inserting the following as new Note 

1: 

‘‘1. In General—For purposes of sentencing 

multiple counts of conviction, counts can be 

(A) contained in the same indictment or 

information; or (B) contained in different 

indictments or informations for which 

sentences are to be imposed at the same time 

or in a consolidated proceeding.’’. 

Reason for Amendment: This 

amendment makes various technical 

and conforming changes to the 

guidelines. 

First, the amendment corrects 

typographical errors in subsection (a) of 

§ 2D1.11 (Unlawfully Distributing, 

Importing, Exporting or Possessing a 

Listed Chemical; Attempt or 

Conspiracy) and Application Note 14 of 


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§ 2K2.1 (Unlawful Receipt, Possession, 

or Transportation of Firearms or 

Ammunition; Prohibited Transactions 

Involving Firearms or Ammunition). 

Second, the amendment addresses 

application of the grouping rules when 

a defendant is sentenced on multiple 

counts contained in different 

indictments as, for example, when a 

case is transferred to another district for 

purposes of sentencing, pursuant to Fed. 

R. Crim. P. 20(a). 

The amendment adopts the reasoning 

of recent case law and clarifies that the 

grouping rules apply not only to 

multiple counts in the same indictment, 

but also to multiple counts contained in 

different indictments when a defendant 

is sentenced on the indictments 

simultaneously. The amendment 

provides clarifying language in the 

Introductory Commentary of Chapter 

Three, Part D, as well as in § 3D1.1 

(Procedure for Determining Offense 

Level on Multiple Counts). The 

language is the same as that provided in 

*5G1.2 (Sentencing on Multiple Counts 

of Conviction). 

11. Repromulgation of Emergency 

Amendment on Pretexting 

Amendment: The amendments to 

§ 2H3.1 and Appendix A, effective May 

1, 2007 (see 72 FR 20576 (April 25, 

2007)), are repromulgated with the 

following changes: 

Section 2H3.1 is amended in the 

heading by striking ‘‘Tax Return 

Information’’ and inserting ‘‘Certain 

Private or Protected Information’’. 

Section 2H3.1(a) is amended by 

striking subdivision (2) and inserting 

the following: 

‘‘(2) 6, if the offense of conviction has a 

statutory maximum term of imprisonment of 

one year or less but more than six months.’’. 

Section 2H3.1(b)(1) is amended by 

inserting ‘‘(A) the defendant is 

convicted under 18 U.S.C. 1039(d) or 

(e); or (B)’’ after ‘‘If’’. 

The Commentary to § 2H3.1 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘8 U.S.C. 1375a(d)(3)(C), 

(d)(5)(B);’’ before ‘‘18 U.S.C.’’; by 

inserting ‘‘§ 1039, 1905,’’ after ‘‘18 

U.S.C.’’; and by inserting ‘‘42 U.S.C. 

16962, 16984’’ after ‘‘7216;’’. 

The Commentary to § 2H3.1 captioned 

‘‘Application Notes’’ is amended by 

striking Note 1; by redesignating Note 2 

as Note 1; and by adding at the end the 

following: 

‘‘2. Imposition of Sentence for 18 U.S.C. 

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. 

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. 1039(d) or (e) and the sentence 

attributable to the conviction under 18 U.S.C. 

1039(a), (b), or (c), specifying the number of 

months to be served for the conviction under 

18 U.S.C. 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. 1039(a) plus 12 months for 18 U.S.C. 

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 or tax return information 

of a substantial number of individuals. 

(ii) The offense caused or risked substantial 

non-monetary harm (e.g. physical harm, 

psychological harm, or severe emotional 

trauma, or resulted in a substantial invasion 

of privacy interest) to individuals whose 

private or protected information was 

obtained.’’. 

The Commentary to § 2H3.1 is 

amended by striking ‘‘Background’’

through the end of ‘‘and 7216.’’. 

Appendix A (Statutory Index) is 

amended by inserting after the line 

referenced to 8 U.S.C. 1328 the 

following: 

‘‘8 U.S.C. 1375a(d)(3)(C), (d)(5)(B)2H3.1’’; 

by inserting after the line referenced to 

18 U.S.C. 1038 the following: 

‘‘18 U.S.C. 1039—2H3.1’’

and by inserting after the line referenced 

to 42 U.S.C. 14905 the following: 

‘‘42 U.S.C. 16962—2H3.1 

42 U.S.C. 16984—2H3.1’’. 

Reason for Amendment: This 

amendment addresses several offenses 

that pertain to unauthorized access or 

disclosure of private or protected 

information. Specifically, this 

amendment pertains to (A) the repromulgation of the emergency 

amendment that implemented the 

directive in section 4 of the Telephone 

Records and Privacy Protection Act of 

2006, Pub. L. 109–476 (the ‘‘Telephone 

Records Act’’); (B) offenses involving 

improper use of a child’s fingerprints 

under 42 U.S.C. 16984 and 16962; and 

(C) various other offenses related to 

private or protected information. 

This amendment re-promulgates as 

permanent the temporary emergency 

amendment (effective May 1, 2007) that 

implemented the directive in section 4 

of the Telephone Records Act. The 

amendment refers the new offense at 18 

U.S.C. 1039 to § 2H3.1 (Interception of 

Communications; Eavesdropping; 

Disclosure of Tax 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 18 

U.S.C. 1039 offense was to facilitate 

another offense, the guideline 

applicable to an attempt to commit the 

other offense 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). The amendment 

also 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 a case in which 

the cross reference does not apply, 

application of the enhancement will 

capture the increased harms associated 

with the aggravated offenses. Finally, 

the amendment expands the upward 

departure note to include tax return 

information of a substantial number of 

individuals. 

Section 153 of the Adam Walsh Child 

Protection and Safety Act of 2006, Pub. 

L. 109–248 (the ‘‘Adam Walsh Act’’), 

added a new offense at 42 U.S.C. 16962, 

which provides a statutory maximum 

term of imprisonment of 10 years for the 

improper release of information 

obtained in fingerprint-based checks for 

the background check of either foster or 

adoptive parents or of individuals 

employed by, or considering 

employment with, a private or public 

educational agency. Additionally, 

section 627 of the Adam Walsh Act 

added a new Class A Misdemeanor 

offense at 42 U.S.C. 16984 prohibiting 

the use of a child’s fingerprints for any 

purpose other than providing those 

fingerprints to the child’s parent or legal 

guardian. This amendment references 

both offenses to § 2H3.1, providing a 

base offense level of 9 under 

§ 2H3.1(a)(1) if the defendant was 

convicted of violating 42 U.S.C. 16962, 

and a base offense level of 6 if the 

defendant was convicted of violating 42 

U.S.C. 16984. 

Finally, this amendment implements 

the Violence Against Women and 

Department of Justice Reauthorization 

Act of 2005, Pub. L. 109–162 

(‘‘VAWA’’). VAWA included the 

International Marriage Broker 

Regulation Act of 2005 (‘‘IMBRA’’), 

which requires marriage brokers to keep 


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private information gathered in the 

course of their business confidential. 

New offenses at 8 U.S.C. 

§ 1375a(d)(3)(C) and 1375a(d)(5)(B) 

involve invasions of protected privacy 

interests and, as such, are referenced to 

§ 2H3.1. 

The Commission concluded that 

referencing these new offenses to 

§ 2H3.1 was appropriate because each of 

the new offenses is similar to the types 

of privacy offenses referenced to this 

guideline. 

12. Criminal History 

Amendment: Section 4A1.1(f) is 

amended by striking ‘‘was considered 

related to another sentence resulting 

from a conviction of a crime of 

violence’’ and inserting ‘‘was counted as 

a single sentence’’; and by striking the 

last sentence. 

The Commentary to § 4A1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 6 by striking the first paragraph 

and inserting the following: 

‘‘§ 4A1.1(f). In a case in which the 

defendant received two or more prior 

sentences as a result of convictions for crimes 

of violence that are counted as a single 

sentence (see § 4A1.2(a)(2)), one point is 

added under § 4A1.1(f) for each such 

sentence that did not result in any additional 

points under § 4A1.1(a), (b), or (c). A total of 

up to 3 points may be added under 

§ 4A1.1(f). For purposes of this guideline, 

‘crime of violence’ has the meaning given 

that term in § 4B1.2(a). See § 4A1.2(p).’’; 

and in the second paragraph by striking 

‘‘that were consolidated for sentencing 

and therefore are treated as related.’’

and inserting ‘‘. The sentences for these 

offenses were imposed on the same day 

and are counted as a single prior 

sentence. See § 4A1.2(a)(2).’’. 

Section 4A1.2(a) is amended in the 

heading by striking ‘‘Defined’’; and by 

striking subdivision (2) and inserting 

the following: 

‘‘(2) If the defendant has multiple prior 

sentences, determine whether those 

sentences are counted separately or as a 

single sentence. Prior sentences always are 

counted separately if the sentences were 

imposed for offenses that were separated by 

an intervening arrest (i.e., the defendant is 

arrested for the first offense prior to 

committing the second offense). If there is no 

intervening arrest, prior sentences are 

counted separately unless (A) the sentences 

resulted from offenses contained in the same 

charging instrument; or (B) the sentences 

were imposed on the same day. Count any 

prior sentence covered by (A) or (B) as a 

single sentence. See also § 4A1.1(f). 

For purposes of applying § 4A1.1(a), (b), 

and (c), if prior sentences are counted as a 

single sentence, use the longest sentence of 

imprisonment if concurrent sentences were 

imposed. If consecutive sentences were 

imposed, use the aggregate sentence of 

imprisonment.’’. 

Section 4A1.2(c)(1) is amended by 

striking ‘‘at least one’’ and inserting 

‘‘more than one’’; by striking ‘‘Fish and 

game violations’’; and by striking ‘‘Local 

ordinance violations (excluding local 

ordinance violations that are also 

criminal offenses under state law)’’. 

Section 4A1.2(c)(2) is amended by 

inserting ‘‘Fish and game violations’’ as 

a new line before the line referenced to 

‘‘Hitchhiking’’; and by inserting ‘‘Local 

ordinance violations (except those 

violations that are also violations under 

state criminal law)’’ as a new line before 

the line referenced to ‘‘Loitering’’. 

The Commentary to § 4A1.2 captioned 

‘‘Application Notes’’ is amended by 

striking Note 3 and inserting the 

following: 

‘‘3. Upward Departure Provision.—

Counting multiple prior sentences as a single 

sentence may result in a criminal history 

score that underrepresents the seriousness of 

the defendant’s criminal history and the 

danger that the defendant presents to the 

public. In such a case, an upward departure 

may be warranted. For example, if a 

defendant was convicted of a number of 

serious non-violent offenses committed on 

different occasions, and the resulting 

sentences were counted as a single sentence 

because either the sentences resulted from 

offenses contained in the same charging 

instrument or the defendant was sentenced 

for these offenses on the same day, the 

assignment of a single set of points may not 

adequately reflect the seriousness of the 

defendant’s criminal history or the frequency 

with which the defendant has committed 

crimes.’’. 

The Commentary to § 4A1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 12 by striking ‘‘Local Ordinance 

Violations.’’ and inserting the following: 

‘‘Application of Subsection (c).—

(A) In General.—In determining whether 

an unlisted offense is similar to an offense 

listed in subdivision (c)(1) or (c)(2), the court 

should use a common sense approach that 

includes consideration of relevant factors 

such as (i) a comparison of punishments 

imposed for the listed and unlisted offenses; 

(ii) the perceived seriousness of the offense 

as indicated by the level of punishment; (iii) 

the elements of the offense; (iv) the level of 

culpability involved; and (v) the degree to 

which the commission of the offense 

indicates a likelihood of recurring criminal 

conduct. 

(B) Local Ordinance Violations.—’’; 

by striking ‘‘§ 4A1.2(c)(1)’’ after 

‘‘violations in’’ and inserting 

‘‘§ 4A1.2(c)(2)’’; and by inserting at the 

end the following: 

‘‘(C) Insufficient Funds Check.—

‘Insufficient funds check,’ as used in 

§ 4A1.2(c)(1), does not include any 

conviction establishing that the defendant 

used a false name or non-existent account.’’. 

The Commentary to § 4A1.2 captioned 

‘‘Application Notes’’ is amended by 

striking Note 13. 

The Commentary to § 4B1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 1 in the paragraph that begins ‘‘A 

violation of 18 U.S.C. 924(c)’’ by 

inserting ‘‘sentences for the’’ before 

‘‘two prior’’; and by striking ‘‘treated as 

related cases’’ and inserting ‘‘counted as 

a single sentence’’. 

The Commentary to § 2L1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 4(B) by striking ‘‘considered 

‘related cases’, as that term is defined in 

Application Note 3’’ and inserting 

‘‘counted as a single sentence pursuant 

to subsection (a)(2)’’. 

Reason for Amendment: This 

amendment addresses two areas of the 

Chapter Four criminal history rules: The 

counting of multiple prior sentences 

and the use of misdemeanor and petty 

offenses in determining a defendant’s 

criminal history score. In November 

2006 the Commission hosted roundtable discussions to receive input on 

criminal history issues from federal 

judges, prosecutors, defense attorneys, 

probation officers, and members of 

academia. In addition, the Commission 

gathered information through its 

training programs, the public comment 

process, and comments received during 

a public hearing of the Commission in 

March 2007. This amendment addresses 

two issues that were raised during this 

process. 

First, the amendment addresses the 

counting of multiple prior sentences. 

The Commission has heard from a 

number of practitioners throughout the 

criminal justice system that the ‘‘related 

cases’’ rules at subsection (a)(2) of 

§ 4A1.2 (Definitions and Instructions for 

Computing Criminal History) and 

Application Note 3 of § 4A1.2 are too 

complex and lead to confusion. 

Moreover, a significant amount of 

litigation has arisen concerning 

application of the rules, and circuit 

conflicts have developed over the 

meaning of terms in the commentary 

that define when prior sentences may be 

considered ‘‘related.’’ For example, the 

commentary provides that prior 

sentences for offenses not separated by 

an intervening arrest are to be 

considered related if the sentences 

resulted from offenses that were 

consolidated for sentencing. In 

determining whether offenses were 

consolidated for sentencing, some 

courts have required that the record 

reflect a formal order of consolidation, 

while others have not. Compare, e.g., 

United States v. Correa, 114 F.3d 314, 

317 (1st Cir. 1997) (order required) with 


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28576 Federal Register / Vol. 72, No. 97 / Monday, May 21, 2007 / Notices 

United States v. Huskey, 137 F.3d 283, 

288 (5th Cir. 1998) (order not required). 

The amendment simplifies the rules 

for counting multiple prior sentences 

and promotes consistency in the 

application of the guideline. The 

amendment eliminates use of the term 

‘‘related cases’’ at § 4A1.2(a)(2) and 

instead uses the terms ‘‘single’’ and 

‘‘separate’’ sentences. This change in 

terminology was made because some 

have misunderstood the term ‘‘related 

cases’’ to suggest a relationship between 

the prior sentences and the instant 

offense. Prior sentences for conduct that 

is part of the instant offense are 

separately addressed at § 4A1.2(a)(1) 

and Application Note 1 of that 

guideline. 

Under the amendment, the initial 

inquiry will be whether the prior 

sentences were for offenses that were 

separated by an intervening arrest (i.e., 

the defendant was arrested for the first 

offense prior to committing the second 

offense). If so, they are to be considered 

separate sentences, counted separately, 

and no further inquiry is required. 

If the prior sentences were for 

offenses that were not separated by an 

intervening arrest, the sentences are to 

be counted as separate sentences unless 

the sentences (1) were for offenses that 

were named in the same charging 

document, or (2) were imposed on the 

same day. In either of these situations 

they are treated as a single sentence. 

The amendment further provides that 

in the case of a single sentence that 

comprises multiple concurrent 

sentences of varying lengths, the longest 

sentence is to be used for purposes of 

applying subsection (a), (b) and (c) of 

§ 4A1.1 (Criminal History Category). In 

the case of a single sentence that 

comprises multiple sentences that 

include one or more consecutive 

sentences, the aggregate sentence is to 

be used for purposes of applying 

§ 4A1.1(a), (b), and (c). 

Instances may arise in which a single 

sentence comprises multiple prior 

sentences for crimes of violence. In such 

a case, § 4A1.1(f) will apply. Consistent 

with § 4A1.1(f) and Application Note 6 

to § 4A1.1, additional criminal history 

points will be awarded for certain 

sentences that otherwise do not receive 

points because they have been 

determined to be part of a single 

sentence. For example, if a defendant’s 

criminal history contains two robbery 

convictions for which the defendant 

received concurrent five-year sentences 

of imprisonment and the sentences are 

considered a single sentence because 

the offenses were not separated by an 

intervening arrest and were imposed on 

the same day, a total of 3 points would 

be added under § 4A1.1(a). An 

additional point would be added under 

§ 4A1.1(f) because the second sentence 

was for a crime of violence that did not 

receive any points under § 4A1.1(a), (b), 

or (c). 

The amendment also provides for an 

upward departure at Application Note 

12(A) to § 4A1.1 if counting multiple 

prior sentences as a single sentence 

would underrepresent the seriousness of 

the defendant’s criminal history and the 

danger that the defendant presents to 

the public. 

Second, the amendment addresses the 

use of misdemeanor and petty offenses 

in determining a defendant’s criminal 

history score. Sections 4A1.2(c)(1) and 

(2) govern whether and when certain 

misdemeanor and petty offenses are 

counted. Section 4A1.2(c)(1) lists 

offenses that are counted only when the 

prior sentence was a term of probation 

of at least one year or a term of 

imprisonment of at least 30 days. 

Section 4A1.2(c)(2) lists offenses that 

are never counted toward the 

defendant’s criminal history score. The 

amendment responds to concerns that 

(1) some misdemeanor and petty 

offenses counted under the guidelines 

involve conduct that is not serious 

enough to warrant increased 

punishment upon sentencing for a 

subsequent offense; (2) the presence of 

a prior misdemeanor or petty offense in 

a rare case can affect the sentence in the 

instant offense in a way that is greatly 

disproportionate to the seriousness of 

the prior offense (such as when such a 

prior offense alone disqualifies a 

defendant from safety valve eligibility); 

and (3) jurisdictional differences in 

defining misdemeanor and petty 

offenses can result in inconsistent 

application of criminal history points 

for substantially similar conduct. 

To evaluate these concerns, the 

Commission conducted a study of 

misdemeanor and petty offenses and the 

criminal history rules that govern them, 

particularly § 4A1.2(c)(1). The 

Commission examined a sample of 

11,300 offenders sentenced in fiscal year 

2006 to determine the type of 

misdemeanor and petty offenses 

counted in the criminal history score, 

the frequency with which they 

occurred, and the particular guideline 

provisions that caused them to be 

counted. In addition, the Commission 

examined a sample of offenders 

sentenced in 1992 who were 

subsequently released from 

imprisonment and monitored for two 

years for evidence of recidivism. (See 

U.S. Sentencing Commission, 

Measuring Recidivism: The Criminal 

History Computation of the Federal 

Sentencing Guidelines (2004) for 

additional information concerning this 

sample.) Furthermore, the Commission 

examined how state guidelines treat 

minor offenses. 

The results of these analyses led the 

Commission to make three 

modifications to § 4A1.2(c)(1) and (2). 

First, the amendment moves from 

§ 4A1.2(c)(1) to § 4A1.2(c)(2) two classes 

of offenses: fish and game violations and 

local ordinance violations (except those 

violations that are also violations under 

state criminal law). Second, the 

amendment changes the probation 

criterion at § 4A1.2(c)(1) from a term of 

‘‘at least’’ one year to a term of ‘‘more 

than’’ one year. Finally, the amendment 

resolves a circuit conflict over the 

manner in which a non-listed offense is 

determined to be ‘‘similar to’’ an offense 

listed at § 4A1.2(c)(1) and (2). 

Fish and game violations were moved 

from § 4A1.2(c)(1) to § 4A1.2(c)(2) so 

that they will not be counted in a 

defendant’s criminal history score. Fish 

and game violations generally do not 

involve criminal conduct that is more 

serious than the offense of conviction, 

and the relatively minor sentences 

received by fish and game offenders in 

the fiscal year 2006 study suggest that 

these offenses are not considered to be 

among the more serious offenses listed 

at § 4A1.2(c)(1). 

In addition, local ordinance violations 

(except those that are also violations of 

state law) were moved from 

§ 4A1.2(c)(1) to § 4A1.2(c)(2) so that 

they also will not be counted in a 

defendant’s criminal history score. 

Similar to fish and game violations, 

local ordinance violations generally do 

not represent conduct criminalized 

under state law. Moreover, these 

offenses also frequently received minor 

sentences. The exception in this 

amendment for violations that are also 

criminal violations under state law will 

ensure that only the more serious prior 

criminal conduct will continue to be 

included in the criminal history score. 

Section 4A1.2(c)(1)(A) is amended to 

provide that the offenses listed at 

§ 4A1.2(c)(1) will be counted ‘‘only if 

(A) the sentence was a term of probation 

of more than one year or a term of 

imprisonment of at least thirty days, or 

(B) the prior offense was similar to the 

instant offense’’ (emphasis added). The 

Commission received comment that 

some sentences of a one-year term of 

probation constitute a default 

punishment summarily imposed by the 

state sentencing authority, particularly 

in those instances in which the 

probation imposed lacked a supervision 

component or was imposed in lieu of a 

fine or to enable the payment of a fine. 


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Federal Register / Vol. 72, No. 97 / Monday, May 21, 2007 / Notices 28577 

The Commission determined that prior 

misdemeanor and petty offenses that 

receive such a relatively minor default 

sentence should not be counted for 

criminal history purposes. 

The amendment resolves a circuit 

conflict over the manner in which a 

court should determine whether a nonlisted offense is ‘‘similar to’’ an offense 

listed at § 4A1.2(c)(1) or (2). Some 

courts have adopted a ‘‘common sense 

approach,’’ first articulated by the Fifth 

Circuit in United States v. Hardeman, 

933 F.2d 278, 281 (5th Cir. 1991). This 

common sense approach includes 

consideration of all relevant factors of 

similarity such as ‘‘punishments 

imposed for the listed and unlisted 

offenses, the perceived seriousness of 

the offense as indicated by the level of 

punishment, the elements of the offense, 

the level of culpability involved, and 

the degree to which the commission of 

the offense indicates a likelihood of 

recurring criminal conduct.’’ Id. See 

also United States v. Martinez-Santos, 

184 F.3d 196, 205–06 (2d Cir. 1999) 

(adopting Hardeman approach); United 

States v. Booker, 71 F.3d 685, 689 (7th 

Cir. 1995) (same). Other courts have 

adopted a strict ‘‘elements’’ test, which 

involves solely a comparison between 

the elements of the two offenses to 

determine whether or not the offenses 

are similar. See United States v. Elmore, 

108 F.3d 23, 27 (3d Cir. 1997); United 

States v. Tigney, 367 F.3d 200, 201–02 

(4th Cir. 2004); United States v. Borer, 

412 F.3d 987, 992 (8th Cir. 2005). This 

amendment, at Application Note 12(A), 

adopts the Hardeman ‘‘common sense 

approach’’ as a means of ensuring that 

courts are guided by a number of 

relevant factors that may help them 

determine whether a non-listed offense 

is similar to a listed one. 

[FR Doc. E7–9421 Filed 5–11–07; 11:54 am] 

BILLING CODE 2211–01–P 


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