[Federal Register Volume 70, Number 204 (Monday, October 24, 2005)]
[Notices]
[Pages 61489-61490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21211]


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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

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

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SUMMARY: Pursuant to (A) section 105 of the Family Entertainment and 
Copyright Act of 2005, Pub. L. 109-9 (the ``FECA''); and (B) the United 
States Parole Commission Extension and Sentencing Commission Authority 
Act of 2005, Pub. L. 109-76 (pertaining to the directive in section 
6703 of the Intelligence Reform and Terrorism Prevention Act of 2004, 
Pub. L. 108-458), the Commission hereby gives notice of temporary, 
emergency amendments to the sentencing guidelines, policy statements, 
and commentary. This notice sets forth the temporary, emergency 
amendments and the reason for each amendment.

DATES: The Commission has specified an effective date of October 24, 
2005, for the emergency amendments.

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

SUPPLEMENTARY INFORMATION: The Commission must promulgate temporary, 
emergency amendments to implement the FECA directives by October 24, 
2005, and to implement the directive in United States Parole Commission 
Extension and Sentencing Commission Authority Act of 2005 by November 
27, 2005. The statutory deadlines for the promulgation of the 
temporary, emergency amendments, in conjunction with the Commission's 
public meeting schedule (the promulgation of such amendments must occur 
in a public meeting) and pressing needs of other Commission business, 
made it impracticable to publish proposed temporary, emergency 
amendments in the Federal Register in order to provide an opportunity 
for public comment. The Commission therefore had good cause not to 
publish proposed amendments before their effective date. See 5 U.S.C. 
553(b), (d)(3).
    The temporary, emergency amendments set forth in this notice also 
may be accessed through the Commission's Web site at http://www.ussc.gov.

    Authority: 28 U.S.C. 994(a), (o), (p), (x); section 105 of Pub. 
L. 109-9; and Pub. L. 109-76.

Ricardo H. Hinojosa,
Chair.
    1. Amendment: Section 2B5.3(b) is amended by redesignating 
subsections (b)(2) through (b)(4) as subsections (b)(3) through (b)(5), 
respectively; and by inserting after subsection (b)(1) the following:

    ``(2) If the offense involved the display, performance, 
publication, reproduction, or distribution of a work being prepared 
for commercial distribution, increase by 2 levels.''.
    The Commentary to Sec.  2B5.3 captioned ``Application Notes'' is 
amended in Note 1 by striking `` `Uploading' '' and all that follows 
through ``the infringing item.'' and inserting the following:
    `` `Uploading' means making an infringing item available on the 
Internet or a similar electronic bulletin board with the intent to 
enable other persons to (A) download or otherwise copy the 
infringing item; or (B) have access to the infringing item, 
including by storing the infringing item in an openly shared file. 
`Uploading' does not include merely downloading or installing an 
infringing item on a hard drive on a defendant's personal computer 
unless the infringing item is placed in an openly shared file.
    `Work being prepared for commercial distribution' has the 
meaning given that term in 17 U.S.C. 506(a)(3).''.
    The Commentary to Sec.  2B5.3 captioned ``Application Notes'' is 
amended in Note 2 in subdivision (A) by inserting after subdivision 
(v) the following:
    ``(vi) The offense involves the display, performance, 
publication, reproduction, or distribution of a work being prepared 
for commercial distribution. In a case involving such an offense, 
the `retail value of the infringed item' is the value of that item 
upon its initial commercial distribution.'';
    and by inserting after subdivision (D) the following:
    ``(E) Indeterminate Number of Infringing Items.--In a case in 
which the court cannot determine the number of infringing items, the 
court need only make a reasonable estimate of the infringement 
amount using any relevant information, including financial 
records.''.
    The Commentary to Sec.  2B5.3 captioned ``Application Notes'' is 
amended by striking Note 3; and by redesignating Notes 4 and 5 as 
Notes 3 and 4, respectively.
    Appendix A (Statutory Index) is amended by inserting after the 
line reference to ``18 U.S.C. 2319(A)'' the following: ``18 U.S.C. 
2319B 2B5.3''.
    Reason for Amendment: This proposed amendment implements the 
directive in section 105 of the Family Entertainment and Copyright 
Act of 2005, Pub. L. 109-9. The directive, which requires the 
Commission to promulgate an amendment under emergency amendment 
authority by October 24, 2005, instructs the Commission to ``review 
and, if appropriate, amend the Federal sentencing guidelines and 
policy statements applicable to persons convicted of intellectual 
property rights crimes * * *''
    ``In carrying out [the directive], the Commission shall--
    (1) Take all appropriate measures to ensure that the Federal 
sentencing guidelines and policy statements * * * are sufficiently 
stringent to deter, and adequately reflect the nature of, 
intellectual property rights crimes;
    (2) Determine whether to provide a sentencing enhancement for 
those convicted of the offenses [involving intellectual property 
rights], if the conduct involves the display, performance, 
publication, reproduction, or distribution of a copyrighted work 
before it has been authorized by the copyright owner, whether in the 
media format used by the infringing party or in any other media 
format;
    (3) Determine whether the scope of `uploading' set forth in 
application note 3 of section 2B5.3 of the Federal sentencing 
guidelines is adequate to address the loss attributable to people 
who, without authorization, broadly distribute copyrighted works 
over the Internet; and
    (4) Determine whether the sentencing guideline and policy 
statements applicable to the offenses [involving intellectual 
property rights] adequately reflect any harm to victims from 
copyright infringement if law enforcement authorities cannot 
determine how many times copyrighted material has been reproduced or 
distributed.''

Pre-Release Works

    The proposed amendment provides a separate two-level enhancement if 
the offense involved a pre-release work. The enhancement and the 
corresponding definition use language directly from 17 U.S.C. 506(a) 
(criminal infringement). The amendment adds language to Application 
Note 2 that explains that in cases involving pre-release works, the 
infringement amount should be determined by using the retail value of 
the infringed item, rather than any premium price attributed to the 
infringing item because of its pre-release status. The proposed 
amendment addresses concerns that distribution of an item before it is 
legally available to the consumer is more serious conduct than 
distribution of other infringing items and involves a harm not 
addressed by the current guideline.

Uploading

    The concern underlying the uploading directive pertains to offenses

[[Page 61490]]

in which the copyrighted work is transferred through file sharing. The 
proposed amendment builds on the current definition of ``uploading'' to 
include making an infringing item available on the Internet by storing 
an infringing item in an openly shared file. The proposed amendment 
also clarifies that uploading does not include merely downloading or 
installing infringing items on a hard drive of the defendant's computer 
unless the infringing item is in an openly shared file. By clarifying 
the definition of uploading in this manner, Application Note 3, which 
is a restatement of the uploading definition, is no longer necessary 
and the proposed amendment deletes the application note from the 
guideline.

Indeterminate Number

    The proposed amendment addresses the final directive by amending 
Application Note 2, which sets forth the rules for determining the 
infringement amount. The proposed note provides that the court may make 
a reasonable estimate of the infringement amount using any relevant 
information including financial records in cases in which the court 
cannot determine the number of infringing items.

New Offense

    Finally, the proposed amendment provides a reference in Appendix A 
(Statutory Index) for the new offense at 18 U.S.C. 2319B. This offense 
is proposed to be referenced to Sec.  2B5.3.
    2. Amendment: Section 2J1.2(b) is amended by striking subdivision 
(1) and inserting the following:

    ``(1) (Apply the greater):
    (A) If the offense involved causing or threatening to cause 
physical injury to a person, or property damage, in order to 
obstruct the administration of justice, increase by 8 levels.
    (B) If (i) defendant was convicted under 18 U.S.C. 1001 or 1505; 
and (ii) the statutory maximum term of imprisonment relating to 
international terrorism or domestic terrorism is applicable, 
increase by 12 levels.''.
    The Commentary to Sec.  2J1.2 captioned ``Statutory Provisions'' 
is amended by striking ``18 U.S.C. 1503'' and inserting the 
following:
    ``18 U.S.C. 1001 when the statutory maximum term of imprisonment 
relating to international terrorism or domestic terrorism is 
applicable, 1503''.
    The Commentary to Sec.  2J1.2 captioned ``Application Notes'' is 
amended in Note 1 by inserting after ``Definitions.--For purposes of 
this guideline:'' the following:
    `` `Domestic terrorism' has the meaning given that term in 18 
U.S.C. 2331(5).
    `International terrorism' has the meaning given that term in 18 
U.S.C. 2331(1).''.
    The Commentary to Sec.  2J1.2 captioned ``Application Notes'' is 
amended by striking Note 2 and inserting the following:
    ``2. Chapter Three Adjustments.--
    (A) Inapplicability of Chapter Three, Part C.--For offenses 
covered under this section, Chapter Three, Part C (Obstruction) does 
not apply, unless the defendant obstructed the investigation, 
prosecution, or sentencing of the obstruction of justice count.
    (B) Interaction with Terrorism Adjustment.--If Sec.  3A1.4 
(Terrorism) applies, do not apply subsection (b)(1)(B).''.
    Appendix A (Statutory Index) is amended in the line referenced 
to ``18 U.S.C. 1001'' by inserting ``, 2J1.2 when the statutory 
maximum term of imprisonment relating to international terrorism or 
domestic terrorism is applicable'' after 2B1.1''.
    Reason for Amendment: This amendment implements section 6703 of 
the Intelligence Reform and Prevention Act of 2004 (the ``Act''), 
Pub. L. 108-458. Section 6703(a) provides an enhanced penalty of not 
more than 8 years of imprisonment for offenses under sections 
1001(a) and 1505 of title 18, United States Code, ``if the offense 
involves international or domestic terrorism (as defined in section 
2331).'' Section 6703(b) requires the Sentencing Commission to amend 
the sentencing guidelines to provide for ``an increased offense 
level for an offense under sections 1001(a) and 1505 of title 18, 
United States Code, if the offense involves international or 
domestic terrorism, as defined in section 2331 of such title.'' The 
Commission is directed under section 3 of the United States Parole 
Commission Extension and Sentencing Commission Authority Act of 
2005, Pub. L. 109-76, to promulgate this amendment as an emergency 
amendment.
    First, the amendment references convictions under 18 U.S.C. 1001 
to 2J1.2 (Obstruction of Justice) ``when the statutory maximum term 
of imprisonment relating to international or domestic terrorism is 
applicable.'' It also adds a new specific offense characteristic at 
Sec.  2J1.2(b)(1)(B) providing for a 12 level increase for a 
defendant convicted under 18 U.S.C. 1001 and 1505 ``when the 
statutory maximum term of imprisonment relating to international or 
domestic terrorism is applicable.'' This 12 level increase is 
applied in lieu of the current 8 level increase for injury or 
threats to persons or property. The increase of 12 levels is 
intended to provide parity with the treatment of federal crimes of 
terrorism within the limits of the 8 year statutory maximum penalty. 
It is also provided to ensure a 5 year sentence of imprisonment for 
offenses that involve international or domestic terrorism.
    Second, the amendment adds to Application Note 1 definitions for 
``domestic terrorism'' and ``international terrorism,'' using the 
meanings given the terms at 18 U.S.C. 2331(5) and (1), respectively.
    Third, the amendment adds to Application Note 2 an instruction 
that if Sec.  3A1.4 (Terrorism) applies, do not apply Sec.  
2J1.2(b)(1)(B).

[FR Doc. 05-21211 Filed 10-21-05; 8:45 am]
BILLING CODE 2210-40-P