[Federal Register Volume 74, Number 16 (Tuesday, January 27, 2009)]
[Notices]
[Pages 4802-4823]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-1642]


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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of proposed amendments to sentencing guidelines, policy 
statements, and commentary. Request for public comment, including 
public comment regarding retroactive application of any of the proposed 
amendments. Notice of public hearing.

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SUMMARY: Pursuant to section 994(a), (o), and (p) of title 28, United 
States Code, the United States Sentencing Commission is considering 
promulgating certain amendments to the sentencing guidelines, policy 
statements, and commentary. This notice sets forth the proposed 
amendments and, for each proposed amendment, a synopsis of the issues 
addressed by that amendment. This notice also sets forth a number of 
issues for comment, some of which are set forth together with the 
proposed amendments; some of which are set forth independent of any 
proposed amendment; and one of which (regarding retroactive application 
of proposed amendments) is set forth in the SUPPLEMENTARY INFORMATION 
portion of this notice.
    The proposed amendments and issues for comment in this notice are 
as follows: (1) A proposed amendment in response to the Identity Theft 
Restitution and Enforcement Act of 2008, title II of Public Law 110-
326, including proposed changes to Sec.  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), Sec.  2H3.1 (Interception of 
Communications; Eavesdropping; Disclosure of Certain Private or 
Protected Information), and Sec.  3B1.3 (Abuse of Position of Trust or 
Use of Special Skill), and issues for comment regarding the guidelines' 
treatment of offenses involving fraud, identity theft, computers, and 
communications; (2) a proposed amendment in response to the Ryan Haight 
Online Pharmacy Consumer Protection Act of 2008, Public Law 110-465, 
including proposed changes to Sec.  2D1.1 (Unlawful Manufacturing, 
Importing, Exporting, or Trafficking (Including Possession with Intent 
to Commit These Offenses); Attempt or Conspiracy) and Sec.  2D3.1

[[Page 4803]]

(Regulatory Offenses Involving Registration Numbers; Unlawful 
Advertising Relating to Schedule I Substances; Attempt or Conspiracy), 
and issues for comment regarding the guidelines' treatment of Schedule 
III, IV, and V controlled substance offenses; (3) a proposed amendment 
in response to the Drug Trafficking Vessel Interdiction Act of 2008, 
Public Law 110-407, including a proposed change to Sec.  2D1.1 
(Unlawful Manufacturing, Importing, Exporting, or Trafficking 
(Including Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy) and a proposed new guideline for offenses involving 
operating a submersible vessel or semi-submersible vessel without 
nationality, and issues for comment regarding the guidelines' treatment 
of such offenses; (4) an issue for comment in response to the Court 
Security Improvement Act of 2007, Public Law 110-177, regarding the 
guidelines' treatment of homicide, assault, and threat offenses; (5) an 
issue for comment in response to the William Wilberforce Trafficking 
Victims Protection Reauthorization Act of 2008, Public Law 110-457, 
regarding the guidelines' treatment of alien harboring and human 
trafficking offenses; (6) a proposed amendment in response to 
miscellaneous issues arising from legislation recently enacted and 
other miscellaneous guideline application issues, including proposed 
changes to the guidelines' treatment of offenses involving contempt, 
consumer product safety, interest rate limitations, domestic violence, 
child soldiers, veterans' grave markers, child pornography, firearms, 
threats, and copyright infringement and the guidelines' treatment of 
probation and supervised release, and related issues for comment; (7) a 
proposed amendment to Sec.  2A3.2 (Criminal Sexual Abuse of a Minor 
Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit 
Such Acts) and Sec.  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) in response to a circuit conflict regarding 
application of the undue influence enhancement in those guidelines, and 
a related issue for comment; (8) a proposed amendment to Sec.  3C1.3 
(Commission of Offense While on Release) in response to an application 
issue regarding that guideline; (9) a proposed amendment in response to 
a circuit conflict regarding the guidelines' treatment of 
counterfeiting offenses involving ``bleached notes'', including a 
proposed change to Sec.  2B5.1 (Offenses Involving Counterfeit Bearer 
Obligations of the United States); and (10) a proposed amendment in 
response to certain technical issues that have arisen in the 
guidelines.

DATES: (1) Written Public Comment.--Written public comment regarding 
the proposed amendments and issues for comment set forth in this 
notice, including public comment regarding retroactive application of 
any of the proposed amendments, should be received by the Commission 
not later than March 30, 2009.
    (2) Public Hearing.--The Commission plans to hold a public hearing 
regarding the proposed amendments and issues for comment set forth in 
this notice. Further information regarding the public hearing, 
including requirements for testifying and providing written testimony, 
as well as the location, time, and scope of the hearing, will be 
provided by the Commission on its Web site at http://www.ussc.gov.

ADDRESSES: Public comment should be sent to: United States Sentencing 
Commission, One Columbus Circle, NE., Suite 2-500, Washington, DC 
20002-8002, Attention: Public Affairs.

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

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is 
an independent agency in the judicial branch of the United States 
Government. The Commission promulgates sentencing guidelines and policy 
statements for federal courts pursuant to 28 U.S.C. 994(a). The 
Commission also periodically reviews and revises previously promulgated 
guidelines pursuant to 28 U.S.C. 994(o) and submits guideline 
amendments to the Congress not later than the first day of May each 
year pursuant to 28 U.S.C. 994(p).
    The proposed amendments in this notice are presented in one of two 
formats. First, some of the amendments are proposed as specific 
revisions to a guideline or commentary. Bracketed text within a 
proposed amendment indicates a heightened interest on the Commission's 
part in comment and suggestions regarding alternative policy choices; 
for example, a proposed enhancement of [2][4][6] levels indicates that 
the Commission is considering, and invites comment on, alternative 
policy choices regarding the appropriate level of enhancement. 
Similarly, bracketed text within a specific offense characteristic or 
application note means that the Commission specifically invites comment 
on whether the proposed provision is appropriate. Second, the 
Commission has highlighted certain issues for comment and invites 
suggestions on how the Commission should respond to those issues.
    The Commission also requests public comment regarding whether the 
Commission should specify for retroactive application to previously 
sentenced defendants any of the proposed amendments published in this 
notice. The Commission requests comment regarding which, if any, of the 
proposed amendments that may result in a lower guideline range should 
be made retroactive to previously sentenced defendants pursuant to 
Sec.  1B1.10 (Reduction in Term of Imprisonment as a Result of Amended 
Guideline Range).
    Additional information pertaining to the proposed amendments 
described in this notice may be accessed through the Commission's Web 
site at http://www.ussc.gov.

    Authority: 28 U.S.C. 994(a), (o), (p), (x); USSC Rules of 
Practice and Procedure, Rule 4.4.

Ricardo H. Hinojosa,
Acting Chair.

1. Identity Theft

    Synopsis of Proposed Amendment: This proposed amendment addresses 
the Identity Theft Restitution and Enforcement Act of 2008 (the 
``Act''), Title II of Public Law 110-326, and other related issues 
arising from case law. The Act contains a directive to the Commission 
at section 209. Section 209(a) of the Act directs the Commission to--
review its guidelines and policy statements applicable to persons 
convicted of offenses under sections 1028, 1028A, 1030, 2511, and 2701 
of title 18, United States Code, and any other relevant provisions of 
law, in order to reflect the intent of Congress that such penalties be 
increased in comparison to those currently provided by such guidelines 
and policy statements.
    The offenses that are the subject of the directive in section 209 
of the Act, and the guidelines to which they are referenced, are as 
follows:
    (1) 18 U.S.C. 1028 (fraud and related activity in connection with 
identification documents, authentication features, and information) 
makes it unlawful to engage in fraud and related activity in connection 
with ``identification documents'' (e.g., government-issued

[[Page 4804]]

documents such as drivers' licenses) or ``authentication features'' 
(i.e., features used on such documents to determine whether such 
documents are authentic, such as watermarks or holograms). A violator 
is subject to a fine under title 18, United States Code, and 
imprisonment. The statutory maximum term of imprisonment varies from 1 
year to 30 years, depending on the circumstances of the offense. For 
example, the statute provides imprisonment up to 30 years (if terrorism 
is involved); 20 years (if a drug trafficking crime or a crime of 
violence is involved, or if the violator is a repeat offender); and 15 
years, 5 years, and 1 year, in other specified circumstances.
    Offenses under 18 U.S.C. 1028 are referenced in Appendix A of the 
Guidelines Manual (Statutory Index) to Sec. Sec.  2B1.1 (Theft, 
Property Destruction, and Fraud), 2L2.1 (Trafficking in a Document 
Relating to Naturalization), and 2L2.2 (Fraudulently Acquiring 
Documents Relating to Naturalization).
    (2) 18 U.S.C. 1028A (aggravated identity theft) makes it unlawful 
to transfer, possess, or use a ``means of identification'' (i.e., a 
name or number used to identify a specific individual, such as a social 
security number) of another person during and in relation to another 
felony (such as a fraud or an immigration violation). A violator is 
subject to a mandatory consecutive term of imprisonment of 2 years or, 
if the other felony was a terrorism offense, 5 years.
    Offenses under 18 U.S.C. 1028A are referenced in Appendix A 
(Statutory Index) to Sec.  2B1.6 (Aggravated Identity Theft).
    (3) 18 U.S.C. 1030 (fraud and related activity in connection with 
computers) provides for several offenses as follows:
    (A) 18 U.S.C. 1030(a)(1) makes it unlawful to retain national 
security information after having obtained it by computer without 
authority, or to disclose such information to a person not entitled to 
receive it. A violator is subject to a fine under title 18, United 
States Code, and imprisonment up to 10 years (for a first offense) or 
20 years (for a repeat offender).
    Offenses under 18 U.S.C. 1030(a)(1) are referenced in the Statutory 
Index to Sec.  2M3.2 (Gathering National Defense Information).
    (B) 18 U.S.C. 1030(a)(2) makes it unlawful to obtain by computer, 
without authority, information of a financial institution or of a 
federal agency. A violator is subject to a fine under title 18, United 
States Code, and imprisonment of up to 1 year (for a first offense), 5 
years (for an offense involving valuable information, an offense for 
purposes of commercial advantage or financial gain, or an offense in 
furtherance of another crime or tort), or 10 years (for a repeat 
offender).
    Offenses under 18 U.S.C. 1030(a)(2) are referenced in the Statutory 
Index to Sec.  2B1.1 (Theft, Property Destruction, and Fraud).
    (C) 18 U.S.C. 1030(a)(3) makes it unlawful to access, without 
authority, a nonpublic computer of a federal agency. A violator is 
subject to a fine under title 18, United States Code, and imprisonment 
of up to 1 year (for a first offense) or 10 years (for a repeat 
offender).
    Offenses under 18 U.S.C. 1030(a)(3) are referenced in the Statutory 
Index to Sec.  2B2.3 (Trespass).
    (D) 18 U.S.C. 1030(a)(4) makes it unlawful to access a ``protected 
computer'' (i.e., a computer of a financial institution or a federal 
agency) without authority and, by means of doing so, further an 
intended fraud and obtain a thing of value. A violator is subject to a 
fine under title 18, United States Code, and imprisonment of up to 5 
years (for a first offense) or 10 years (for a repeat offender).
    Offenses under 18 U.S.C. 1030(a)(4) are referenced in the Statutory 
Index to Sec.  2B1.1 (Theft, Property Destruction, and Fraud).
    (E) 18 U.S.C. 1030(a)(5) makes it unlawful to use a computer to 
cause damage to a ``protected computer'' (i.e., a computer of a 
financial institution or a federal agency). A violator is subject to a 
fine under title 18, United States Code, and imprisonment of up to 1 
year, 5 years, 10 years, 20 years, or life, depending on the 
circumstances.
    Offenses under 18 U.S.C. 1030(a)(5) are referenced in the Statutory 
Index to Sec.  2B1.1 (Theft, Property Destruction, and Fraud).
    (F) 18 U.S.C. 1030(a)(6) makes it unlawful to traffic in any 
password or similar information through which a computer may be 
accessed without authorization, if the trafficking affects interstate 
or foreign commerce or if the computer is used by or for a federal 
agency. A violator is subject to a fine under title 18, United States 
Code, and imprisonment of up to 1 year (for a first offense) or 10 
years (for a repeat offender).
    Offenses under 18 U.S.C. 1030(a)(6) are referenced in the Statutory 
Index to Sec.  2B1.1 (Theft, Property Destruction, and Fraud).
    (G) 18 U.S.C. 1030(a)(7) makes it unlawful to threaten to cause 
damage to, or obtain information from, a ``protected computer'' (i.e., 
a computer of a financial institution or a federal agency), without 
authority and with intent to extort. A violator is subject to a fine 
under title 18, United States Code, and imprisonment of up to 5 years 
(for a first offense) or 10 years (for a repeat offender).
    Offenses under 18 U.S.C. 1030(a)(7) are referenced in the Statutory 
Index to Sec.  2B3.2 (Extortion by Force or Threat of Injury or Serious 
Damage).
    (H) 18 U.S.C. 1030(b) makes it unlawful to conspire to commit, or 
attempt to commit, a section 1030(a) offense. A violator is subject to 
the same penalty as for the section 1030(a) offense.
    Offenses under 18 U.S.C. 1030(b) are referenced in the Statutory 
Index to Sec.  2X1.1 (Attempt, Solicitation, or Conspiracy).
    (4) 18 U.S.C. 2511 (interception and disclosure of wire, oral, or 
electronic communications prohibited) makes it unlawful to intercept or 
disclose any wire, oral, or electronic communication. A violator is 
subject to a fine under title 18, United States Code, and imprisonment 
of up to 5 years.
    Offenses under 18 U.S.C. 2511 are referenced in the Statutory Index 
to Sec. Sec.  2B5.3 (Criminal Infringement of Copyright or Trademark) 
and 2H3.1 (Interception of Communications; Eavesdropping; Disclosure of 
Certain Private or Protected Information).
    (5) 18 U.S.C. 2701 (unlawful access to stored communications) makes 
it unlawful to access, without authority, a facility through which an 
electronic communication service is provided and obtain, alter, or 
prevent authorized access to a wire or electronic communication stored 
in that facility. A violator is subject to a fine under title 18, 
United States Code, and imprisonment. If the offense is committed for 
commercial advantage, malicious damage, or commercial gain, or in 
furtherance of a crime or tort, the maximum term of imprisonment is 5 
years (for a first offender) or 10 years (for a repeat offender); 
otherwise, the maximum term of imprisonment is 1 year (for a first 
offender) or 5 years (for a repeat offender).
    Offenses under 18 U.S.C. 2701 are referenced in the Statutory Index 
to Sec.  2B1.1 (Theft, Property Destruction, and Fraud).
    Section 209(b) of the Act requires that, in determining the 
appropriate sentence for the above referenced crimes, the Commission 
``shall consider the extent to which the current guidelines and policy 
statements may or may not adequately account for the following factors 
in order to create an effective deterrent to computer crime

[[Page 4805]]

and the theft or misuse of personally identifiable data'':
    (1) The level of sophistication and planning involved in such 
offense.
    (2) Whether such offense was committed for purpose of commercial 
advantage or private financial benefit.
    (3) The potential and actual loss resulting from the offense 
including--
    (A) The value of information obtained from a protected computer, 
regardless of whether the owner was deprived of use of the information; 
and
    (B) Where the information obtained constitutes a trade secret or 
other proprietary information, the cost the victim incurred developing 
or compiling the information.
    (4) Whether the defendant acted with intent to cause either 
physical or property harm in committing the offense.
    (5) The extent to which the offense violated the privacy rights of 
individuals.
    (6) The effect of the offense upon the operations of an agency of 
the United States Government, or of a State or local government.
    (7) Whether the offense involved a computer used by the United 
States Government, a State, or a local government in furtherance of 
national defense, national security, or the administration of justice.
    (8) Whether the offense was intended to, or had the effect of, 
significantly interfering with or disrupting a critical infrastructure.
    (9) Whether the offense was intended to, or had the effect of, 
creating a threat to public health or safety, causing injury to any 
person, or causing death.
    (10) Whether the defendant purposefully involved a juvenile in the 
commission of the offense.
    (11) Whether the defendant's intent to cause damage or intent to 
obtain personal information should be disaggregated and considered 
separately from the other factors set forth in USSG 2B1.1(b)(14) 
[currently Sec.  2B1.1(b)(15)].
    (12) Whether the term ``victim'' as used in USSG 2B1.1, should 
include individuals whose privacy was violated as a result of the 
offense in addition to individuals who suffered monetary harm as a 
result of the offense.
    (13) Whether the defendant disclosed personal information obtained 
during the commission of the offense.
    Section 209(c) of the Act requires that in responding to the 
directive, the Commission:
    (1) Assure reasonable consistency with other relevant directives 
and with other sentencing guidelines;
    (2) Account for any additional aggravating or mitigating 
circumstances that might justify exceptions to the generally applicable 
sentencing ranges;
    (3) Make any conforming changes to the sentencing guidelines; and
    (4) Assure that the guidelines adequately meet the purposes of 
sentencing as set forth in section 3553(a)(2) of title 18, United 
States Code.
    The proposed amendment and issues for comment address the factors 
set forth in section 209(b) of the Act, and other related issues 
arising under the Act and under case law, in the following manner:

(A) Level of Sophistication and Planning Involved in the Offense

    Synopsis of Proposed Amendment: The proposed amendment responds to 
subsection (b)(1) of the directive, which concerns the level of 
sophistication involved in the offense, by amending the commentary in 
Sec.  2B1.1 relating to fraud offenses that involve sophisticated 
means. Specifically, the proposed amendment responds to a concern about 
whether, in a case involving computers, the defendant's use of any 
technology or software to conceal the identity or geographic location 
of the perpetrator qualifies as ``especially complex or especially 
intricate offense conduct pertaining to the execution or concealment of 
an offense'' within the meaning of the sophisticated means enhancement 
in Sec.  2B1.1(b)(9) and Application Note 8(B) of that guideline. The 
proposed amendment adds this conduct to the list in Application Note 
8(B) of examples of conduct that ordinarily indicates sophisticated 
means.
    Two issues for comment are also included.
    Proposed Amendment:
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 8(B) by adding at the end the following:
    ``In a scheme involving computers, using any technology or software 
to conceal the identity or geographic location of the perpetrator 
ordinarily indicates sophisticated means.''.
    Issues for Comment:
    1. The Commission requests comment regarding the factor described 
in section 209(b)(1) of the Act (the level of sophistication and 
planning involved in the offense). The guidelines currently address 
this factor as follows:
    (1) Section 2B1.1(b)(9) contains a 2-level enhancement, and a 
minimum offense level of 12, if the offense involved sophisticated 
means.
    (2) Section 2B1.1(b)(4) contains a 2-level enhancement if the 
offense involved receiving stolen property and the defendant was in the 
business of receiving and selling stolen property, which Application 
Note 5 provides is to be determined in part on the regularity and 
sophistication of the defendant's activities.
    Is the factor adequately addressed by these provisions? Should the 
Commission increase the amount, or the scope, of these enhancements, or 
of the minimum offense level, or any combination of those? Should the 
Commission amend other guidelines to which these offenses are 
referenced to address this factor, such as by adding comparable 
enhancements, minimum offense levels, or both?
    2. The Commission requests comment regarding whether Sec.  3B1.3 
(Abuse of Position of Trust or Use of Special Skill) should apply to a 
person who has self-trained computer skills. Does the guideline 
adequately address such a person? Should the guideline include language 
that unequivocally includes such a person, or should it include 
language that unequivocally excludes such a person?

(B) Whether the Offense Was Committed for Purpose of Commercial 
Advantage or Private Financial Benefit

    Issue for Comment:
    1. The Commission requests comment regarding the factor described 
in section 209(b)(2) of the Act (whether the offense was committed for 
purpose of commercial advantage or private financial benefit). The 
guidelines currently address this factor as follows:
    (1) Section 2H3.1 provides a 3-level enhancement at subsection 
(b)(1)(B) if the purpose of an offense under 18 U.S.C. 2511 was to 
obtain direct or indirect commercial advantage or economic gain, and a 
cross reference at subsection (c)(1) that applies if the purpose of the 
offense was to facilitate another offense.
    (2) Section 2B1.5(b)(4) provides a 2-level enhancement if the 
offense was committed for pecuniary gain or otherwise involved a 
commercial purpose.
    (3) Sections 2B1.1(b)(1), 2B2.3(b)(3), and 2B5.3(b)(1) provide 
enhancements based on the monetary amounts involved in the offense.
    Is the factor adequately addressed by these provisions? Should the 
Commission increase the amount, or the scope, of these enhancements, or 
the scope of the cross reference? Should the Commission amend other 
guidelines to which these offenses are referenced to address this 
factor, such as by adding comparable enhancements or cross references?

[[Page 4806]]

(C) The Potential and Actual Loss Resulting From the Offense Including 
(A) the Value of Information Obtained From a Protected Computer, 
Regardless of Whether the Owner Was Deprived of Use of the Information; 
and (B) Where the Information Obtained Constitutes a Trade Secret or 
Other Proprietary Information, the Cost the Victim Incurred Developing 
or Compiling the Information

    Synopsis of Proposed Amendment: The proposed amendment responds to 
subsection (b)(3) of the directive by revising Sec.  2B1.1 (Theft, 
Property Destruction, and Fraud). Specifically, it addresses two types 
of information: information that the victim retains but that is copied 
by the defendant, and information that constitutes a trade secret or 
other proprietary information of the victim. Two options are presented. 
Option 1 adds to the rule of construction for cases under 18 U.S.C.1030 
(Fraud and related activity in connection with computers) regarding 
pecuniary harm in Application Note 3(A)(v)(III), specifying that any 
reduction in the value of proprietary information that resulted from 
the offense should be included in the loss calculation. Option 2 adds a 
provision in Application Note 3(C), specifying that, if the fair market 
value of copied information is unavailable or insufficient, the court 
may consider the cost the victim incurred in originally developing the 
information or the reduction in the value of the information that 
resulted from the offense.
    Four issues for comment are also included.
    Proposed Amendment:
    [Option 1:
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 3(A)(v)(III) by striking ``, and'' after ``prior to the 
offense'' and inserting a semicolon; and by inserting after ``service'' 
the following:
    ``; and any reduction in the value of proprietary information 
(e.g., trade secrets) that resulted from the offense''.]
    [Option 2:
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 3(C)(i) by inserting ``copied,'' after ``taken,''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 3(C) by redesignating clauses (ii) through (v) as (iii) 
through (vi); and by inserting after clause (i) the following new 
clause:
    ``(ii) In the case of proprietary information (e.g., trade 
secrets), the cost of developing that information or the reduction that 
resulted from the offense in the value of that information.''.]
    Issues for Comment:
    1. The Commission requests comment regarding the factor described 
in section 209(b)(3) of the Act (the potential and actual loss 
resulting from the offense including (A) the value of information 
obtained from a protected computer, regardless of whether the owner was 
deprived of use of the information; and (B) where the information 
obtained constitutes a trade secret or other proprietary information, 
the cost the victim incurred developing or compiling the information). 
The guidelines currently address this factor as follows:
    (1) Sections 2B1.1(b)(1), 2B2.3(b)(3), and 2B5.3(b)(1) provide 
enhancements based on the monetary amounts involved in the offense.
    (2) Section 2B1.1, Application Note 19(A)(iv), provides an upward 
departure if the offense created a risk of substantial loss beyond the 
loss determined for purposes of Sec.  2B1.1(b)(1).
    (3) Section 2B1.1, Application Note 19(A)(v), provides an upward 
departure if, in a case involving stolen information from a ``protected 
computer,'' the defendant sought the stolen information to further a 
broader criminal purpose.
    Is the factor adequately addressed by these provisions? Should the 
Commission increase the amount, or the scope, of these enhancements? 
Should the Commission amend other guidelines to which these offenses 
are referenced to address this factor, such as by adding comparable 
enhancements? Should these upward departure provisions be incorporated 
as enhancements in the guidelines to which these offenses are 
referenced?
    2. Should the definition of ``loss'' in Sec.  2B1.1 be amended to 
provide greater guidance to the court on how to estimate loss in cases 
involving information obtained from a protected computer without 
depriving the owner of the use of the information, or information 
obtained that constitutes a trade secret or other proprietary 
information? For such cases, should Sec.  2B1.1 include a special rule 
for including and quantifying (or providing a stipulated amount for) 
the loss, such as the special rule in Application Note 3(F)(i) relating 
to credit cards?
    3. The Commission requests comment regarding whether Sec.  2B1.1 
adequately accounts for a case in which an individual suffers pecuniary 
harm, but the pecuniary harm is immediately reimbursed by a third 
party. In such a case, the pecuniary harm may not be treated as 
``loss,'' and the individual may not be treated as a ``victim,'' for 
purposes of Sec.  2B1.1.
    Five circuit courts have addressed the issue of whether an 
individual who is fully reimbursed for his or her temporary financial 
loss by a third party is a ``victim'' for purposes of Sec.  
2B1.1(b)(2). The Fifth Circuit in United States v. Conner, 537 F.3d 
480, 489 (5th Cir. 2008), and the Sixth Circuit in United States v. 
Yagar, 404 F.3d 967, 971 (6th Cir. 2005), have held that individuals 
who have been fully reimbursed for temporary financial losses by a 
third party are not ``victims'' within the meaning of Sec.  
2B1.1(b)(2). Although the Second Circuit in United States v. Abiodun, 
536 F.3d 162, 168 (2d Cir.), cert. denied, --S. Ct. --, 2008 WL 4619522 
(2008), and the Ninth Circuit in United States v. Pham, 545 F.3d 712, 
721 (9th Cir. 2008), have agreed with the reasoning of these courts, 
they have further held that individuals who were fully reimbursed for 
their financial losses by third parties may be deemed victims for 
purposes of Sec.  2B1.1(b)(2) so long as they suffered an adverse 
effect, measurable in monetary terms, as a result of the defendant's 
conduct (e.g., the costs associated with obtaining reimbursements from 
banks or credit card companies). The Eleventh Circuit in United States 
v. Lee, 427 F.3d 881, 895 (11th Cir. 2005), did not agree. While 
acknowledging that the facts of its case were significantly different 
in that the monetary losses were neither short-lived nor immediately 
reimbursed by third parties, the Lee court held that the operative time 
for determining whether someone is a victim is the time of the offense, 
irrespective of any subsequent remedial action.
    Should the Commission amend the guidelines to address this 
circumstance and, if so, how?
    4. The Commission requests comment regarding whether Sec.  3B1.3 
(Abuse of Position of Trust or Use of Special Skill) should apply to a 
person who is an officer, employee, or insider of a business who 
participates in an offense involving proprietary information (e.g., 
trade secrets) of that business. Does the guideline adequately address 
such a person? Should the guideline include language that unequivocally 
includes such a person, or should it include language that 
unequivocally excludes such a person?

[[Page 4807]]

(D) Whether the Defendant Acted With Intent To Cause Either Physical or 
Property Harm in Committing the Offense

Issue for Comment
    1. The Commission requests comment regarding the factor described 
in section 209(b)(4) of the Act (whether the defendant acted with 
intent to cause either physical or property harm in committing the 
offense). The guidelines currently address this factor as follows:
    (1) Section 2B1.1(b)(13) provides a 2-level enhancement if the 
offense involved the conscious or reckless risk of death or serious 
bodily injury, or possession of a dangerous weapon in connection with 
the offense.
    (2) Section 2B1.1(c) provides a cross reference under which the 
court applies a firearms or explosives guideline if firearms or 
explosives are involved.
    (3) Section 2H3.1(c) provides a cross reference under which the 
court applies another offense guideline if the purpose was to 
facilitate another offense.
    (4) Section 2B1.1, Application Note 19, provides an upward 
departure if the offense caused or risked substantial non-monetary 
harm, such as physical harm or property harm.
    (5) Section 2H3.1, Application Note 5, provides an upward departure 
if the offense caused or risked substantial non-monetary harm, such as 
physical harm or property harm.
    (6) Section 5K2.5 (Property Damage or Loss) provides an upward 
departure if the offense caused property damage or loss not taken into 
account by the guidelines.
    Is the factor adequately addressed by these provisions? If not, 
should the Commission increase the amount, or the scope, of these 
enhancements, or the scope of the cross reference or departure 
provisions? Should the Commission amend other guidelines to which these 
offenses are referenced to address this factor, such as by adding 
comparable enhancements or cross references? Alternatively, should 
these upward departure provisions be incorporated as enhancements in 
the guidelines to which these offenses are referenced?

(E) The Extent to Which the Offense Violated the Privacy Rights of 
Individuals

    Synopsis of Proposed Amendment: The proposed amendment responds to 
subsection (b)(5) of the directive (the extent to which the offense 
violated the privacy rights of individuals) by revising Sec.  2H3.1 
(Interception of Communications; Eavesdropping; Disclosure of Certain 
Private or Protected Information). Two options are presented. Option 1 
creates a new specific offense characteristic in Sec.  2H3.1 with three 
alternative enhancements if the offense involved the personal 
information or means of identification of specified numbers of 
individuals. Specifically, it provides an enhancement of [2] levels for 
offenses involving the personal information or means of identification 
of [10]-[50] or more individuals; an enhancement of [4] levels for 
[50]-[250] or more individuals; and an enhancement of [6] levels for 
[250]-[1,000] or more individuals. The graduated levels ensure 
incremental punishment for increasingly serious conduct. Option 2 
amends Application Note 5 to Sec.  2H3.1, suggesting that an upward 
departure may be warranted not only in a case in which the offense 
involved confidential phone records information or tax return 
information of a substantial number of individuals (as the application 
note currently provides), but also in a case in which the offense 
involved personal information or means of identification of a 
substantial number of individuals.
    The proposed amendment defines the term ``personal information'', 
for purposes of Sec.  2H3.1, in the same manner as the term ``personal 
information'' is defined for purposes of Sec.  2B1.1(b)(15). The 
proposed amendment clarifies, for purposes of both guidelines, that 
information is ``personal information'' only if it involves an 
identifiable individual.
    An issue for comment is also included.
    Proposed Amendment:
    [Option 1:
    Section 2H3.1(b) is amended by adding at the end the following:
    ``(3) (Apply the greatest) If the defendant is convicted under 18 
U.S.C. Sec.  2511 and the offense involved personal information or 
means of identification of--
    (A) [10]-[50] or more individuals, increase by [2] levels;
    (B) [50]-[250] or more individuals, increase by [4] levels; or
    (C) [250]-[1,000] or more individuals, increase by [6] levels.''.]
    The Commentary to Sec.  2H3.1 captioned ``Application Notes'' is 
amended in Note 4 by striking ``subsection (b)(2)(B)'' and inserting 
``this guideline''; and by adding after the paragraph that begins `` 
`Interactive computer service' '' the following:
    `` `Means of identification' has the meaning given that term in 18 
U.S.C. 1028(d)(7), except that such means of identification shall be of 
an actual (i.e., not fictitious) individual, other than the defendant 
or a person for whose conduct the defendant is accountable under Sec.  
1B1.3 (Relevant Conduct).
    `Personal information' means sensitive or private information 
involving an identifiable individual (including such information in the 
possession of a third party), including (i) medical records; (ii) 
wills; (iii) diaries; (iv) private correspondence, including e-mail; 
(v) financial records; (vi) photographs of a sensitive or private 
nature; or (vii) similar information.''.
    [Option 2:
    The Commentary to Sec.  2H3.1 captioned ``Application Notes'' is 
amended in Note 5(i) by inserting ``personal information, means of 
identification,'' after ``involved''; and by inserting a comma before 
``or tax''.]
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 13(A) in the paragraph that begins `` `Personal 
information' '' by inserting ``involving an identifiable individual'' 
after ``private information''.
    Issue for Comment:
    1. The Commission requests comment regarding the factor described 
in section 209(b)(5) of the Act (the extent to which the offense 
violated the privacy rights of individuals). In many cases, non-
monetary harm (such as a violation of privacy rights) may be difficult 
or impossible to quantify. See, e.g., Sec.  2B1.1, comment. (backg'd.). 
For that reason, non-monetary harm is typically accounted for by the 
guidelines through a minimum offense level or an upward departure. The 
guidelines currently address this factor as follows:
    (1) Section 2B1.1, Application Note 19, provides an upward 
departure if the offense resulted in a substantial invasion of a 
privacy interest. It also provides an upward departure if, in a case 
involving access devices or unlawfully produced or unlawfully obtained 
means of identification, (i) the offense caused substantial harm to the 
victim's reputation or credit record, or the victim suffered a 
substantial inconvenience related to repairing the victim's reputation 
or a damaged credit record; (ii) an individual whose means of 
identification the defendant used to obtain unlawful means of 
identification is erroneously arrested or denied a job because an 
arrest record has been made in that individual's name; or (iii) the 
defendant produced or obtained numerous means of identification with 
respect to one individual and essentially assumed that individual's 
identity.
    (2) Section 2H3.1, Application Note 5, provides an upward departure 
if the offense involved private information or resulted in a 
substantial invasion of a privacy interest.

[[Page 4808]]

    (3) Section 2B1.1(b)(15)(A) provides a 2-level enhancement if an 
offense under 18 U.S.C. 1030 involved an intent to obtain personal 
information, and Sec.  2H3.1(b)(2)(B) provides a 10-level enhancement 
if an offense under 18 U.S.C. 119 involved the use of a computer to 
make restricted personal information about a covered person publicly 
available.
    Is the factor adequately addressed through these provisions? If 
not, should the Commission increase the amount, or the scope, of these 
enhancements? Should the Commission amend other guidelines to which 
these offenses are referenced to address this factor, such as by adding 
comparable enhancements? Should these upward departure provisions be 
incorporated as enhancements in the guidelines to which these offenses 
are referenced?

(F) The Effect of the Offense Upon the Operations of an Agency of the 
United States Government, or of a State or Local Government

    Issue for Comment:
    1. The Commission requests comment regarding the factor described 
in section 209(b)(6) of the Act (the effect of the offense upon the 
operations of an agency of the United States Government, or of a State 
or local government). The guidelines currently address this factor as 
follows:
    (1) Section 5K2.7 (Disruption of Government Function) provides an 
upward departure if the defendant's conduct resulted in a significant 
disruption of a governmental function.
    (2) Section 5K2.14 (Public Welfare) provides an upward departure if 
national security, public health, or safety was significantly 
endangered.
    Is the factor adequately addressed through these upward departure 
provisions? Alternatively, should these upward departure provisions be 
incorporated as enhancements in the guidelines to which these offenses 
are referenced?

(G) Whether the Offense Involved a Computer Used by the United States 
Government, a State, or a Local Government in Furtherance of National 
Defense, National Security, or the Administration of Justice

    Issue for Comment:
    1. The Commission requests comment regarding the factor described 
in section 209(b)(7) of the Act (whether the offense involved a 
computer used by the United States Government, a State, or a local 
government in furtherance of national defense, national security, or 
the administration of justice). The guidelines currently address this 
factor as follows:
    (1) Section 2B1.1 provides a 2-level enhancement at subsection 
(b)(15)(A)(i) if an offense under 18 U.S.C. 1030 involved a computer 
system used by or for a government entity in furtherance of the 
administration of justice, national defense, or national security.
    (2) Section 2B2.3(b)(1) provides a 2-level enhancement if a 
trespass occurred on a computer system used by or for a government 
entity in furtherance of the administration of justice, national 
defense, or national security.
    (3) Section 2B3.2(b)(3)(B) provides a 3-level enhancement if the 
offense involved preparation to carry out a threat of damage to a 
computer system used by or for a government entity in furtherance of 
the administration of justice, national defense, or national security.
    (4) Section 2B1.1, Application Note 19, provides an upward 
departure in a case in which subsection (b)(15)(A)(iii) applies and the 
disruption to the critical infrastructure is so substantial as to have 
a debilitating impact on national security, national economic security, 
or national public health or safety.
    (5) Section 5K2.7 (Disruption of Government Function) provides an 
upward departure if the defendant's conduct resulted in a significant 
disruption of a governmental function.
    (6) Section 5K2.14 (Public Welfare) provides an upward departure if 
national security, public health, or safety was significantly 
endangered.
    Is the factor adequately addressed through these provisions? Should 
the Commission increase the amount, or the scope, of these 
enhancements? Should the Commission amend other guidelines to which 
these offenses are referenced to address this factor, such as by adding 
comparable enhancements? Should these upward departure provisions be 
incorporated as enhancements in the guidelines to which these offenses 
are referenced?

(H) Whether the Offense Was Intended to, or Had the Effect of, 
Significantly Interfering With or Disrupting a Critical Infrastructure

    Issue for Comment:
    1. The Commission requests comment regarding the factor described 
in section 209(b)(8) of the Act (whether the offense was intended to, 
or had the effect of, significantly interfering with or disrupting a 
critical infrastructure). The guidelines currently address this factor 
as follows:
    (1) Section 2B1.1 provides a 2-level enhancement at subsection 
(b)(15)(A)(i) if an offense under 18 U.S.C. 1030 involved a computer 
system used to maintain or operate a critical infrastructure, and a 6-
level enhancement (and a minimum offense level of 24) at subsection 
(b)(15)(A)(iii) if an offense under section 1030 caused a substantial 
disruption of a critical infrastructure.
    (2) Section 2B2.3(b)(1) provides a 2-level enhancement if a 
trespass occurred on a computer system used to maintain or operate a 
critical infrastructure.
    (3) Section 2B3.2(b)(3)(B) provides a 3-level enhancement if the 
offense involved preparation to carry out a threat of damage to such a 
computer system.
    (4) Section 2B1.1, Application Note 19, provides an upward 
departure in a case in which subsection (b)(15)(A)(iii) applies and the 
disruption to the critical infrastructure is so substantial as to have 
a debilitating impact on national security, national economic security, 
or national public health or safety.
    (5) Section 5K2.14 (Public Welfare) provides an upward departure if 
national security, public health, or safety was significantly 
endangered.
    Is the factor adequately addressed through these provisions? Should 
the Commission increase the amount, or the scope, of these enhancements 
(or of the minimum offense level)? Should the Commission amend other 
guidelines to which these offenses are referenced to address this 
factor, such as by adding comparable enhancements (or minimum offense 
levels)? Should these upward departure provisions be incorporated as 
enhancements in the guidelines to which these offenses are referenced?

(I) Whether the Offense Was Intended to, or Had the Effect of, Creating 
a Threat to Public Health or Safety, Causing Injury to any Person, or 
Causing Death

    Issue for Comment:
    1. The Commission requests comment regarding the factor described 
in section 209(b)(9) of the Act (whether the offense was intended to, 
or had the effect of, creating a threat to public health or safety, 
causing injury to any person, or causing death). The guidelines 
currently address this factor as follows:
    (1) Section 2B1.1(b)(13) provides a 2-level enhancement, and a 
minimum offense level of 14, if the offense involved the conscious or 
reckless risk of death or serious bodily injury.
    (2) Section 2B3.2(b)(3)(B) provides a 3-level enhancement if the 
offense involved preparation to carry out a threat of serious bodily 
injury, and Sec.  2B3.2(b)(4) provides an enhancement if the victim 
sustained bodily injury, with the amount of the enhancement

[[Page 4809]]

ranging from 2 to 6 levels according to the seriousness of the injury.
    (3) Section 2B5.3(b)(5) provides a 2-level enhancement, and a 
minimum offense level of 13, if the offense involved the conscious or 
reckless risk of serious bodily injury.
    (4) Section 2B1.1, Application Note 19, provides an upward 
departure if the offense caused or risked substantial non-monetary 
harm, or in a case in which subsection (b)(15)(A)(iii) applies and the 
disruption to the critical infrastructure is so substantial as to have 
a debilitating impact on national security, national economic security, 
or national public health or safety.
    (5) Section 5K2.14 (Public Welfare) provides an upward departure if 
national security, public health, or safety was significantly 
endangered.
    Is the factor adequately addressed through these provisions? If 
not, should the Commission increase the amount, or the scope, of these 
enhancements (or minimum offense levels)? Should the Commission amend 
other guidelines to address this factor, such as by adding comparable 
enhancements (or minimum offense levels)? Should these upward departure 
provisions be incorporated as enhancements in the guidelines to which 
these offenses are referenced?

(J) Whether the Defendant Purposefully Involved a Juvenile in the 
Commission of the Offense

    Issue for Comment:
    1. The Commission requests comment regarding the factor described 
in section 209(b)(10) of the Act (whether the defendant purposefully 
involved a juvenile in the commission of the offense). The guidelines 
currently address this factor in Sec.  3B1.4 (Using a Minor to Commit a 
Crime), which provides a 2-level adjustment if the defendant used or 
attempted to use a minor to commit the offense or assist in avoiding 
detection of, or apprehension for, the offense.
    Is the factor adequately addressed by this adjustment? Should the 
Commission increase the amount, or the scope, of this adjustment? 
Should the Commission amend other guidelines to address this factor, 
such as by adding enhancements comparable to this adjustment?

(K) Whether the Defendant's Intent To Cause Damage or Intent To Obtain 
Personal Information Should Be Disaggregated and Considered Separately 
From the Other Factors Set Forth in Sec.  2B1.1(b)(15)

    Issue for Comment:
    1. The Commission requests comment regarding the factor described 
in section 209(b)(11) of the Act (whether the defendant's intent to 
cause damage or intent to obtain personal information should be 
disaggregated and considered separately from the other factors set 
forth in Sec.  2B1.1(b)(15)).
    For example, subsection (b)(15) currently applies only to offenses 
under 18 U.S.C. 1030. Should the intent to cause damage or intent to 
obtain personal information be disaggregated only within the context of 
18 U.S.C. 1030 cases? Should the defendant's intent to cause damage or 
intent to obtain personal information be a factor that applies to other 
offenses as well?

(L) Whether the Term ``Victim'' as Used in Sec.  2B1.1 Should Include 
Individuals Whose Privacy Was Violated as a Result of the Offense in 
Addition to Individuals Who Suffered Monetary Harm as a Result of the 
Offense

    Issue for Comment:
    1. The Commission requests comment regarding the factor described 
in section 209(b)(12) of the Act (whether the term ``victim'' as used 
in Sec.  2B1.1 should include individuals whose privacy was violated as 
a result of the offense in addition to individuals who suffered 
monetary harm as a result of the offense). In many cases, non-monetary 
harm (such as a violation of privacy rights) may be difficult or 
impossible to quantify. See, e.g., Sec.  2B1.1, comment. (backg'd.). 
For that reason, non-monetary harm is typically accounted for by the 
guidelines through a minimum offense level or an upward departure.
    The guidelines currently address this factor as follows:
    (1) Section 2B1.1, Application Note 19, provides an upward 
departure if the offense resulted in a substantial invasion of a 
privacy interest. It also provides an upward departure if, in a case 
involving access devices or unlawfully produced or unlawfully obtained 
means of identification, (i) the offense caused substantial harm to the 
victim's reputation or credit record, or the victim suffered a 
substantial inconvenience related to repairing the victim's reputation 
or a damaged credit record; (ii) an individual whose means of 
identification the defendant used to obtain unlawful means of 
identification is erroneously arrested or denied a job because an 
arrest record has been made in that individual's name; or (iii) the 
defendant produced or obtained numerous means of identification with 
respect to one individual and essentially assumed that individual's 
identity.
    (2) Section 2H3.1, Application Note 5, provides an upward departure 
if the offense involved private information, or resulted in a 
substantial invasion of privacy interest.
    Is the factor adequately addressed through these upward departure 
provisions? Alternatively, should these upward departure provisions be 
incorporated as enhancements in the guidelines to which these offenses 
are referenced?
    The definition of ``victim'' in Sec.  2B1.1, Application Note 1, 
currently applies only to a person who sustained any part of the 
``actual loss'' or to an individual who sustained bodily injury. Should 
the Commission modify that definition to also apply to an individual 
whose privacy was violated? If so, what standard should be used to 
determine whether an individual's privacy was violated? Should the 
guidelines seek to quantify the loss of such an individual, for 
purposes of the loss table in subsection (b)(1)? If so, what standard 
would be used to quantify the loss? For example, in a case in which a 
computer-related invasion of privacy occurs, should the guidelines 
include a special rule for including and quantifying (or providing a 
stipulated amount for) the loss, such as the special rule in 
Application Note 3(F)(i) relating to credit cards? If the Commission 
were to revise the applicability of Sec.  2B1.1 to individuals whose 
privacy was violated, should the Commission do so for all offenses 
under Sec.  2B1.1, or only for certain categories of cases, such as 
cases involving identity theft, cases involving computers, or cases 
involving violations of certain specified statutes?
    Should the definition of ``reasonably foreseeable pecuniary harm'' 
in Sec.  2B1.1 be amended to expressly include such harm as the 
reasonably foreseeable costs to the victim of correcting business, 
financial, and government records that erroneously indicate the 
victim's responsibility for particular transactions or applications; 
the reasonably foreseeable costs of repairing any computer data, 
program, system, or information that was altered or impaired in 
connection with the offense; and the value of the time reasonably spent 
by the victim in an attempt to remediate the intended or actual harm 
incurred by the victim from the offense? Should the Commission make 
such a change only for identity theft cases, such as by amending Sec.  
2B1.1, Application Note 3(A)(v), to provide a special rule for identity 
theft cases? Alternatively, should the Commission make such a change 
for all cases under Sec.  2B1.1, such as by amending Application Note 
3(A)(iv), or for some other category of cases?

[[Page 4810]]

(M) Whether the Defendant Disclosed Personal Information Obtained 
During the Commission of the Offense

    Issue for Comment:
    1. The Commission requests comment regarding the factor described 
in section 209(b)(13) of the Act (whether the defendant disclosed 
personal information obtained during the commission of the offense). 
The guidelines currently address this factor as follows:
    (1) Section 2B1.1, Application Note 19, provides an upward 
departure if the offense resulted in a substantial invasion of a 
privacy interest.
    (2) Section 2H3.1, Application Note 5, provides an upward departure 
if the offense involved private information or resulted in a 
substantial invasion of a privacy interest.
    (3) Section 2B1.1(b)(15)(A) provides a 2-level enhancement if an 
offense under 18 U.S.C.1030 involved an intent to obtain personal 
information.
    (4) Section 2H3.1(b)(2)(B) provides a 10-level enhancement if an 
offense under 18 U.S.C.119 (protection of individuals performing 
certain official duties) involved the use of a computer to make 
restricted personal information about a covered person publicly 
available.
    Is the factor adequately addressed through these provisions? Should 
the Commission increase the amount, or the scope, of these 
enhancements? Should the Commission amend other guidelines to which 
these offenses are referenced to address this factor, such as by adding 
comparable enhancements? Should these upward departure provisions be 
incorporated as enhancements in the guidelines to which these offenses 
are referenced?
    If the Commission were to amend the guidelines to more adequately 
address this factor, what should constitute a ``disclosure'', and what 
should constitute ``personal information''?

(N) Other Issues Relating to the Directive Not Otherwise Addressed 
Above

    Issues for Comment:
    1. The Commission requests comment regarding section 209(a) of the 
Act, which directs the Commission to review its guidelines and policy 
statements applicable to persons convicted of offenses under 18 U.S.C. 
1028 (fraud and related activity in connection with identification 
documents, authentication features, and information), 1028A (aggravated 
identity theft), 1030 (fraud and related activity in connection with 
computers), 2511 (interception and disclosure of wire, oral, or 
electronic communications prohibited), and 2701 (unlawful access to 
stored communications), and any other relevant provisions of law, in 
order to reflect the intent of Congress that such penalties be 
increased in comparison to those currently provided by such guidelines 
and policy statements. Section 209(b) of the Act directed the 
Commission, in determining the appropriate sentence for those offenses, 
to ``consider the extent to which the current guidelines and policy 
statements may or may not adequately account for the following factors 
in order to create an effective deterrent to computer crime and the 
theft or misuse of personally identifiable data'', and provided a list 
of factors. Other than the specific factors set forth in section 
209(b), which are addressed more specifically in the issues for comment 
set forth above, are there aggravating or mitigating circumstances 
existing in cases involving those offenses that might justify 
additional amendments to the guidelines?
    2. Should the Commission create a new guideline specifically for 
identity theft cases? If so, what should the new guideline provide?

(O) Technical Amendments

    Synopsis of Proposed Amendment: The proposed amendment makes two 
technical changes. First, it corrects several places in the Guidelines 
Manual that erroneously refer to subsection ``(b)(15)(iii)'' of Sec.  
2B1.1; the reference should be to subsection (b)(15)(A)(iii).
    Second, it clarifies Application Note 2(B) of Sec.  3B1.3 (Abuse of 
Position of Trust or Use of Special Skill). There is a concern that 
Application Note 2(B) is internally inconsistent in a case in which the 
defendant, as discussed in the example in Application Note 2(B)(i), is 
an employee of a state motor vehicle department who knowingly issues 
without proper authority a driver's license based on false, incomplete, 
or misleading information. Arguably, to ``obtain'' or ``use'' a means 
of identification (the terms used in the first sentence of Application 
Note 2(B)) does not necessarily include to ``issue'' a means of 
identification (the term used in the example in Application Note 
2(B)(i)). The proposed amendment clarifies the first sentence of 
Application Note 2(B) so that it expressly covers not only obtaining or 
using, but also issuing or transferring, a means of identification.
    Proposed Amendment:
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 13(B) by inserting ``(A)'' after ``(15)'' each place it 
appears.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 19(B) by inserting ``(A)'' after (15)''.
    The Commentary to Sec.  3B1.3 captioned ``Application Notes'' is 
amended in Note 2(B) by inserting ``, transfer, or issue'' after 
``obtain''.

2. Online Pharmacy

    Synopsis of Proposed Amendment: This proposed amendment addresses 
changes made by the Ryan Haight Online Pharmacy Consumer Protection Act 
of 2008, Public Law 110-465 (the ``Act''). The Act amends the 
Controlled Substances Act (21 U.S.C. 801 et seq.) to create two new 
offenses involving controlled substances. The first is 21 U.S.C. 841(h) 
(Offenses Involving Dispensing of Controlled Substances by Means of the 
Internet), which prohibits the delivery, distribution, or dispensing of 
controlled substances over the Internet without a valid prescription. 
The applicable statutory maximum term of imprisonment is determined 
based upon the controlled substance being distributed. The second new 
offense is 21 U.S.C. 843(c)(2)(A) (Prohibiting the Use of the Internet 
to Advertise for Sale a Controlled Substance), which prohibits the use 
of the Internet to advertise for sale a controlled substance. This 
offense has a statutory maximum term of imprisonment of four years.
    In addition to the new offenses, the Act increased the statutory 
maximum terms of imprisonment for all Schedule III controlled substance 
offenses (from 5 years to 10 years), for all Schedule IV controlled 
substance offenses (from 3 years to 5 years), and for Schedule V 
controlled substance offenses if the offense is committed after a prior 
drug conviction (from 2 years to 5 years). The Act added a sentencing 
enhancement for Schedule III controlled substance offenses where 
``death or serious bodily injury results from the use of such 
substance.'' The Act also includes a directive to the Commission that 
states:
    The United States Sentencing Commission, in determining whether to 
amend, or establish new, guidelines or policy statements, to conform 
the Federal sentencing guidelines and policy statements to this Act and 
the amendments made by this Act, should not construe any change in the 
maximum penalty for a violation involving a controlled substance in a 
particular schedule as being the sole reason to amend, or establish a 
new, guideline or policy statement.
    First, the proposed amendment provides three options for 
incorporating the new sentencing enhancement for cases involving 
Schedule III controlled substances where ``death or serious

[[Page 4811]]

bodily injury results from the use of such substance.'' The enhancement 
carries a statutory maximum term of imprisonment of 15 years. Option 1 
proposes a new alternative base offense level at Sec.  2D1.1 (Unlawful 
Manufacturing, Importing, Exporting, or Trafficking (Including 
Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy) of [12]-[34]. Option 2 proposes a new specific offense 
characteristic at Sec.  2D1.1 that provides an enhancement of [4]-[11] 
levels; Option 2 also includes, as a sub-option, a minimum offense 
level of [12]-[34]. Option 3 proposes a new invited upward departure 
provision for Sec.  2D1.1.
    Second, the proposed amendment revises the title of Sec.  2D3.1 
(Regulatory Offenses Involving Registration Numbers; Unlawful 
Advertising Relating to Schedule I Substances; Attempt or Conspiracy) 
to reflect the new offense at 21 U.S.C.843(c)(2)(A) (Prohibiting the 
Use of the Internet to Advertise for Sale a Controlled Substance). The 
new offense is already referenced in Appendix A (Statutory Index) to 
Sec.  2D3.1.
    Third, the proposed amendment amends Appendix A (Statutory Index) 
to refer the new offense at 21 U.S.C. 841(h) (Offenses Involving 
Dispensing of Controlled Substances by Means of the Internet) to Sec.  
2D1.1.
    Several issues for comment are also included.
    Proposed Amendment:
    [Option 1:
    Section 2D1.1(a) is amended by redesignating subdivision (3) as 
subdivision (4); and by inserting after subdivision (2) the following 
new subdivision:
    ``(3)[12]-[34], if the defendant is convicted under 21 U.S.C. 
841(b)(1)(E) or 21 U.S.C. 960(b)(5), and the offense of conviction 
establishes that death or serious bodily injury resulted from the use 
of the substance; or''.]
    [Option 2:
    Section 2D1.1(b) is amended by redesignating subdivision (11) as 
subdivision (12); and by inserting after subdivision (10) the following 
new subdivision:
    ``(11) If the defendant is convicted under 21 U.S.C. 841(b)(1)(E) 
or 21 U.S.C. 960(b)(5), and the offense of conviction establishes that 
death or serious bodily injury resulted from the use of the substance, 
increase by [4]-[11] levels. [If the resulting offense level is less 
than level [12]-[34], increase to level [12]-[34].]''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 21 by striking ``(11)'' and inserting ``(12)'' each 
place it appears.]
    [Option 3:
    The Commentary to Sec.  2D1.1 captioned ``Application Notes is 
amended by adding at the end the following:
    ``27. Upward Departure Provision.--If the defendant is convicted 
under 21 U.S.C.841(b)(1)(E) or 21 U.S.C.960(b)(5), and the offense of 
conviction establishes that death or serious bodily injury resulted 
from the use of the substance, an upward departure may be 
warranted.''.]
    Section 2D3.1 is amended in the heading by striking ``Schedule I'' 
and inserting ``Scheduled''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 21 U.S.C. 841(g) the following:
    ``21 U.S.C. 841(h) 2D1.1''.
    Issues for Comment:
    1. The Commission requests comment regarding whether offenses 
involving Schedule III substances are adequately addressed by the 
guidelines. The Ryan Haight Online Pharmacy Consumer Protection Act of 
2008, Public Law 110-465 (the ``Act''), increased the statutory maximum 
term of imprisonment for those offenses from 5 years to 10 years. 
Should the Commission revise the guidelines to more adequately address 
these offenses and, if so, how? If the Commission should revise the 
guidelines as they relate to Schedule III substances, what justifies 
doing so?
    For example, under the Drug Quantity Table in Sec.  2D1.1, the 
maximum base offense level for an offense involving Schedule III 
substances (except Ketamine) is 20, which applies to 40,000 or more 
units of the substance concerned. Should the maximum base offense level 
be increased (or eliminated entirely) so that in a case in which the 
number of units involved is more than 40,000, a higher base offense 
level applies? If so, what higher base offense levels are appropriate, 
and what number of units should correspond to those higher base offense 
levels?
    Under the Drug Equivalency Tables in Sec.  2D1.1, 1 unit of a 
Schedule III substance is equivalent to 1 gm of marihuana. Should a 
different equivalency apply? If so, what should that different 
equivalency be?
    2. The Commission requests comment regarding whether offenses 
involving Schedule IV substances are adequately addressed by the 
guidelines. The Act increased the statutory maximum term of 
imprisonment for those offenses from 3 years to 5 years. Should the 
Commission revise the guidelines to more adequately address these 
offenses and, if so, how? If the Commission should revise the 
guidelines as they relate to Schedule IV substances, what justifies 
doing so?
    For example, under the Drug Quantity Table in Sec.  2D1.1, the 
maximum base offense level for an offense involving Schedule IV 
substances (except Flunitrazepam) is 12, which applies to 40,000 or 
more units of the substance concerned. Should the maximum base offense 
level be increased (or eliminated entirely) so that in a case in which 
the number of units involved is more than 40,000, a higher base offense 
level applies? If so, what higher base offense levels are appropriate, 
and what number of units should correspond to those higher base offense 
levels?
    Under the Drug Equivalency Tables in Sec.  2D1.1, 1 unit of a 
Schedule IV substance (except Flunitrazepam) is equivalent to 0.0625 gm 
of marihuana. Should a different equivalency apply? If so, what should 
that different equivalency be? For example, should the Commission amend 
the Drug Equivalency Tables to provide that 1 unit of a Schedule IV 
substance (except Flunitrazepam) is equivalent to 0.125 gm of 
marihuana?
    3. The Commission requests comment regarding whether offenses 
involving Schedule V substances are adequately addressed by the 
guidelines. For those offenses, the Act did not increase the statutory 
maximum term of imprisonment for a first offense (which is 1 year), but 
did increase the statutory maximum term of imprisonment if the offense 
is committed after a prior drug conviction (from 2 years to 5 years). 
Should the Commission revise the guidelines to more adequately address 
these offenses and, if so, how? If the Commission should revise the 
guidelines as they relate to Schedule V substances, what justifies 
doing so?
    For example, under the Drug Quantity Table in Sec.  2D1.1, the 
maximum base offense level for an offense involving Schedule V 
substances is 8, which applies to 40,000 or more units of the substance 
concerned. Should the maximum base offense level be increased (or 
eliminated entirely) so that in a case in which the number of units 
involved is more than 40,000, a higher base offense level applies? If 
so, what higher base offense levels are appropriate, and what number of 
units should correspond to those higher base offense levels?
    Under the Drug Equivalency Tables in Sec.  2D1.1, 1 unit of a 
Schedule V substance is equivalent to 0.00625 gm of marihuana. Should a 
different equivalency apply? If so, what should that different 
equivalency be?

[[Page 4812]]

    4. The Commission requests comment regarding whether offenses 
involving hydrocodone substances are adequately addressed by the 
guidelines. Currently, the guidelines do not distinguish between 
hydrocodone substances and other Schedule III substances (except 
Ketamine). The Act increased the statutory maximum term of imprisonment 
for all Schedule III offenses, including hydrocodone offenses, from 5 
years to 10 years. Should hydrocodone be treated differently than other 
Schedule III substances and, if so, how? If the Commission should 
revise the guidelines as they relate to hydrocodone, what justifies 
doing so?
    For example, under the Drug Quantity Table in Sec.  2D1.1, the 
maximum base offense level for an offense involving Schedule III 
substances (except Ketamine) is 20, which corresponds to 40,000 or more 
units of the substance concerned. Should the maximum base offense level 
be increased (or eliminated entirely) so that in a case in which the 
number of units involved is more than 40,000, a higher base offense 
level applies? If so, what higher base offense levels are appropriate, 
and what number of units should correspond to those higher base offense 
levels?
    Under the Drug Equivalency Tables in Sec.  2D1.1, 1 unit of a 
Schedule III substance, including hydrocodone, is equivalent to 1 gm of 
marihuana. Should a different equivalency apply to hydrocodone? If so, 
what should that different equivalency be? Should the guidelines take 
into account (as is done for oxycodone) the weight of the hydrocodone 
itself (i.e. , the ``hydrocodone actual''), rather than the number of 
units of hydrocodone? If so, what base offense levels should apply, and 
to what weights of hydrocodone actual should those base offense levels 
correspond? For example, should the Commission amend the Drug 
Equivalency Tables to provide that 1 gm of hydrocodone actual is 
equivalent to 1,675 gm of marihuana?

3. Submersible Vessels

    Synopsis of Proposed Amendment: This proposed amendment implements 
the Drug Trafficking Vessel Interdiction Act of 2008, Public Law 110-
407 (the ``Act''). The Act creates a new offense at 18 U.S.C. 2285 
(Operation of Submersible Vessel or Semi-Submersible Vessel Without 
Nationality), which provides: ``Whoever knowingly operates, or attempts 
or conspires to operate, by any means, or embarks in any submersible 
vessel or semi-submersible vessel that is without nationality and that 
is navigating or has navigated into, through, or from waters beyond the 
outer limit of the territorial sea of a single country or a lateral 
limit of that country's territorial sea with an adjacent country, with 
the intent to evade detection, shall be fined under this title, 
imprisoned not more than 15 years, or both.''
    Section 103 of the Act also directs the Commission to promulgate or 
amend the guidelines to provide for increased penalties for persons 
convicted of offenses under 18 U.S.C. 2285. In carrying out this 
directive, the Commission shall--
    (1) Ensure that the sentencing guidelines and policy statements 
reflect the serious nature of the offense described in section 2285 of 
title 18, United States Code, and the need for deterrence to prevent 
such offenses;
    (2) Account for any aggravating or mitigating circumstances that 
might justify exceptions, including--
    (A) The use of a submersible vessel or semi-submersible vessel 
described in section 2285 of title 18, United States Code, to 
facilitate other felonies;
    (B) The repeated use of a submersible vessel or semi-submersible 
vessel described in section 2285 of title 18, United States Code, to 
facilitate other felonies, including whether such use is part of an 
ongoing criminal organization or enterprise;
    (C) Whether the use of such a vessel involves a pattern of 
continued and flagrant violations of section 2285 of title 18, United 
States Code;
    (D) Whether the persons operating or embarking in a submersible 
vessel or semi-submersible vessel willfully caused, attempted to cause, 
or permitted the destruction or damage of such vessel or failed to 
heave to when directed by law enforcement officers; and
    (E) Circumstances for which the sentencing guidelines (and policy 
statements) provide sentencing enhancements;
    (3) Ensure reasonable consistency with other relevant directives, 
other sentencing guidelines and policy statements, and statutory 
provisions;
    (4) Make any necessary and conforming changes to the sentencing 
guidelines and policy statements; and
    (5) Ensure that the sentencing guidelines and policy statements 
adequately meet the purposes of sentencing set forth in section 
3553(a)(2) of title 18, United States Code.
    The proposed amendment amends Sec.  2D1.1 (Unlawful Manufacturing, 
Importing, Exporting, or Trafficking (Including Possession with Intent 
to Commit these Offenses); Attempt or Conspiracy) by expanding the 
scope of the specific offense characteristic at subsection (b)(2) to 
apply if the defendant used a submersible vessel or semi-submersible 
vessel as described in 18 U.S.C. 2285.
    The proposed amendment also provides a new guideline at Sec.  2X7.2 
(Submersible and Semi-Submersible Vessels) for the new offense at 18 
U.S.C. 2285, with a base offense level of [12]-[34]. The proposed 
amendment also provides upward departure provisions to account for 
certain aggravating factors listed in the directive.
    Finally, the proposed amendment provides a reference in Appendix A 
(Statutory Index) to index the new offense to the new guideline.
    Three issues for comment are also included.
    Proposed Amendment:
    Section 2D1.1(b)(2) is amended by striking ``or'' after 
``substance,'' and inserting ``a submersible vessel or semi-submersible 
vessel as described in 18 U.S.C. 2285 was used, or (C)'' after ``(B)''.
    Chapter Two, Part X, Subpart 7 is amended in the heading by adding 
at the end ``AND SUBMERSIBLE AND SEMI-SUBMERSIBLE VESSELS''.
    Chapter Two, Part X, Subpart 7 is amended by adding at the end the 
following new guideline and accompanying commentary:
``Sec.  2X7.2 Submersible and Semi-Submersible Vessels
(a) Base Offense Level: [12]-[34]
Commentary
    Statutory Provision: 18 U.S.C. 2285.
    Application Note:
    1. Upward Departure Provisions.--An upward departure may be 
warranted in any of the following cases:
    (A) The offense involved a failure to heave to when directed by a 
law enforcement officer.
    (B) The offense involved an attempt to sink the vessel or the 
sinking of the vessel.
    (C) The defendant engaged in a pattern of activity involving use of 
a submersible vessel or semi-submersible vessel described in 18 U.S.C. 
2285 to facilitate other felonies.
    (D) The offense involved use of the vessel as part of an ongoing 
criminal organization or enterprise.
    Background: This guideline implements the directive to the 
Commission in section 103 of Public Law 110-407.''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. 2284 the following:
    ``18 U.S.C. 2285 2X7.2''.
    Issues for Comment:

[[Page 4813]]

    1. The Commission requests comment regarding whether it should 
reference the new offense at 18 U.S.C. 2285 (Operation of Submersible 
Vessel or Semi-submersible Vessel Without Nationality) to Sec.  2X5.1 
(Other Felony Offenses), instead of promulgating a new guideline at 
Sec.  2X7.2 (Submersible and Semi-Submersible Vessels) for the new 
offense, as provided for by the proposed amendment. Section 2X5.1 
instructs the court to ``apply the most analogous offense guideline'' 
when an ``offense is a felony for which no guideline expressly has been 
promulgated.'' In a case where ``there is not a sufficiently analogous 
guideline'', Sec.  2X5.1 provides that:
    The provisions of 18 U.S.C. 3553 shall control, except that any 
guidelines and policy statements that can be applied meaningfully in 
the absence of a Chapter Two offense guideline shall remain applicable.
    If the Commission references section 2285 to Sec.  2X5.1, is there 
further action the Commission should take to clarify how the guidelines 
apply in such cases? If so, what action?
    2. Section 103 of the Drug Trafficking Vessel Interdiction Act of 
2008, Public Law 110-407, directs the Commission to consider 
aggravating circumstances such as the use of such vessels as part of an 
ongoing criminal organization or enterprise. Accordingly, the 
Commission requests comment regarding how the proposed amendment's new 
guideline at Sec.  2X7.2 (Submersible and Semi-Submersible Vessels), or 
any other guideline to which offenses under 18 U.S.C. 2285 (Operation 
of Submersible Vessel or Semi-submersible Vessel Without Nationality) 
would be referenced, should account for cases in which the vessel is 
used as part of an ongoing criminal organization or enterprise. The 
Commission was informed at its public briefing in November 2008 that 
the construction of such a vessel costs one million dollars or more and 
takes one year or more to complete, and that such a vessel is intended 
to be used for a single trip before being purposely sunk. If so, this 
may indicate that the use of the submersible or semi-submersible vessel 
typically is part of an ongoing criminal organization or enterprise. 
Should the Commission account for this factor in setting the base 
offense level? If so, should the Commission provide a specific offense 
characteristic or a downward departure to account for a case in which 
an ongoing criminal organization or enterprise is not involved? 
Alternatively, should the Commission provide a specific offense 
characteristic or an upward departure to account for this factor? Are 
there any other amendments to the guidelines that should be made to 
account for cases in which the vessel is used as part of an ongoing 
criminal organization or enterprise?
    3. The Commission requests comment regarding whether, in a case 
sentenced under the proposed guideline, Sec.  2X7.2 (Submersible and 
Semi-Submersible Vessels), and in which Sec.  3B1.2 (Mitigating Role) 
applies, it should provide an alternative base offense level, downward 
adjustment, or downward departure to reflect the lesser culpability of 
the defendant?

4. Court Security

    Issues for Comment:
    1. The Court Security Improvement Act of 2007, Public Law 110-177 
(the ``Act''), creates two new federal offenses, increases the 
statutory maximum penalty for a number of existing federal offenses, 
and contains a directive to the Commission relating to threats made in 
violation of 18 U.S.C. 115 that occur over the Internet. The Commission 
responded to the two new offenses created by the Act during the 
amendment cycle ending May 1, 2008 (see Amendment 718). The Commission 
requests comment regarding what additional amendments may be 
appropriate in light of the Act. The increases in the statutory maximum 
penalties provided by the Act raise issues concerning a number of 
guidelines in Chapter Two, Part A, generally, and it may be necessary 
to continue work on any or all of the remaining issues raised by the 
Act beyond the amendment cycle ending May 1, 2009.

A. Increases in Statutory Maximum Penalties

    The existing federal offenses with statutory maximum penalties 
increased by the Act and the guidelines to which those offenses are 
referenced are as follows:
    (1) 18 U.S.C. 115 (Influencing, impeding, or retaliating against a 
Federal official by threatening or injuring a family member) makes it 
unlawful to, among other things, assault an individual who is a current 
or former federal official, or a family member of such an individual, 
with intent to impede the individual in, or retaliate against the 
individual for, the performance of the individual's official duties. 
Such an assault is punished under 18 U.S.C. 115(b)(1). The Act modified 
the penalty structure of these offenses. In doing so, the Act 
eliminated the reference to 18 U.S.C. 111 (Assaulting, resisting, or 
impeding certain officers or employees), and increased the statutory 
maximum terms of imprisonment for assaults involving physical contact 
or intent to commit another felony (from 8 years to 10 years), and for 
assaults resulting in serious bodily injury or assaults involving the 
use of a dangerous weapon (from 20 years to 30 years). Other statutory 
maximum terms of imprisonment include 20 years (for assaults resulting 
in bodily injury) and 1 year (for simple assaults).
    Offenses involving assaults punished under 18 U.S.C.115(b)(1) are 
referenced in Appendix A (Statutory Index) to Sec. Sec.  2A2.1 (Assault 
with Intent to Commit Murder; Attempted Murder); 2A2.2 (Aggravated 
Assault), and 2A2.3 (Minor Assault).
    (2) 18 U.S.C. 1112 (manslaughter) makes it unlawful to kill a human 
being without malice, either upon a sudden quarrel or heat of passion 
(``voluntary manslaughter'') or in the commission of an unlawful act 
not amounting to a felony or in the commission, in an unlawful manner 
or without due caution and circumspection, of a lawful act which might 
produce death (``involuntary manslaughter''). The Act increased the 
statutory maximum terms of imprisonment for voluntary manslaughter 
(from 10 years to 15 years) and for involuntary manslaughter (from 6 
years to 8 years).
    Offenses under 18 U.S.C. 1112 are referenced in Appendix A 
(Statutory Index) to Sec. Sec.  2A1.3 (Voluntary Manslaughter) and 
2A1.4 (Involuntary Manslaughter).
    (3) Subsection (a) of 18 U.S.C. 1512 (Tampering with a witness, 
victim, or an informant), makes it unlawful to kill or attempt to kill 
another person with intent to interfere in an official proceeding. It 
also makes it unlawful to use or threaten physical force, or attempt to 
do so, with intent to interfere with an official proceeding. The Act 
increased the statutory maximum terms of imprisonment for the killing 
of another under circumstances constituting manslaughter (by reference 
to 18 U.S.C.1112, from 10 years to 15 years); for attempted murder or 
attempted use of physical force (from 20 years to 30 years); and for 
threat of use of physical force to prevent the attendance or testimony 
in an official proceeding (from 10 years to 20 years). Offenses under 
section 1512(a) are referenced in Appendix A (Statutory Index) to 
Sec. Sec.  2A1.1 (First Degree Murder), 2A1.2 (Second Degree Murder), 
2A1.3 (Voluntary Manslaughter), 2A2.1 (Assault with Intent to Commit 
Murder; Attempted Murder), 2A2.2 (Aggravated Assault),

[[Page 4814]]

2A2.3 (Minor Assault), and 2J1.2 (Obstruction of Justice).
    (4) Section 1512(b) makes it unlawful to intimidate, threaten, or 
corruptly persuade another person, or to engage in misleading conduct 
toward another person, with intent to interfere with an official 
proceeding. The Act increased the statutory maximum term of 
imprisonment for these offenses from 10 years to 20 years.
    Offenses under section 1512(b) are referenced in Appendix A 
(Statutory Index) to Sec.  2J1.2 (Obstruction of Justice).
    (5) Section 1512(d) makes it unlawful to harass another person and 
thereby hinder, delay, prevent, or dissuade an arrest or prosecution, 
or the participation of a person in an official proceeding. The Act 
increased the statutory maximum term of imprisonment for these offenses 
from 1 year to 3 years.
    Offenses under section 1512(d) are referenced in Appendix A 
(Statutory Index) to Sec.  2J1.2 (Obstruction of Justice).
    (6) Subsection (a) of 18 U.S.C. 1513 (Retaliating against a 
witness, victim, or an informant) makes it unlawful to kill or attempt 
to kill another person with intent to retaliate against a person for 
attending or testifying at an official proceeding or for providing 
information to a law enforcement officer. The Act increased the 
statutory maximum terms of imprisonment for the killing of another 
under circumstances constituting manslaughter (by reference to 18 18 
U.S.C. 1112, from 10 years to 15 years) and for an attempt (from 20 
years to 30 years). Other statutory penalties include death, or 
imprisonment for life, if the offense involved the killing of another 
under circumstances constituting murder.
    Offenses under section 1513(a) are referenced in Appendix A 
(Statutory Index) to Sec.  2J1.2 (Obstruction of Justice).
    (7) Section 1513(b) makes it unlawful to cause bodily injury to 
another person or damage the tangible property of another person (or 
threaten to do so) with intent to retaliate against a person for 
attending or testifying at an official proceeding or for providing 
information to a law enforcement officer. The Act increased the 
statutory maximum terms of imprisonment for such offenses from 10 years 
to 20 years.
    Offenses under section 1513(b) are referenced in Appendix A 
(Statutory Index) to Sec.  2J1.2 (Obstruction of Justice).
    (8) Other offenses under section 1513 include subsection (e) (which 
makes it unlawful to knowingly, with intent to retaliate, take any 
action harmful to any person for providing to a law enforcement officer 
any truthful information relating to the commission or possible 
commission of any federal offense) and subsection (f) (which makes it 
unlawful to conspire to commit any offense under section 1513).
    These other offenses under section 1513 are also referenced in 
Appendix A (Statutory Index) to Sec.  2J1.2 (Obstruction of Justice).
    Are the guidelines adequate as they apply to such offenses? If not, 
what amendments to the guidelines should be made to address the 
increases in statutory maximum penalties?
    As described in paragraph (7), above, Appendix A (Statutory Index) 
currently refers all offenses under section 1513 to Sec.  2J1.2 
(Obstruction of Justice) only. An offense under section 1513 can 
involve conduct such as killing, causing bodily injury, or threatening. 
Should the Commission amend Appendix A (Statutory Index) to refer 
offenses under section 1513 to other guidelines, either in addition to 
or in lieu of referencing them to Sec.  2J1.2? If so, to which other 
guidelines? Alternatively, should the Commission provide cross 
references in Sec.  2J1.2 that allow for an offense under section 1513 
to be sentenced under a guideline other than Sec.  2J1.2?

B. Official Victims

    The Commission requests comment regarding cases in which an 
official is the victim of an offense described above. The circumstance 
of an official victim is addressed in the guidelines as follows:
    (1) Section 3A1.2 contains an adjustment if the victim was an 
individual who is a current or former government officer or employee 
(or a member of the immediate family of such an individual), and the 
offense was motivated by such status. If the applicable guideline is 
from Chapter Two, Part A (as is the case with Sec. Sec.  2A1.1, 2A1.2, 
2A2.1, 2A2.2, 2A2.3), the adjustment is 6 levels; otherwise (as with 
Sec.  2J1.2), the adjustment is 3 levels.
    (2) Section 3A1.2, Application Note 5, invites an upward departure 
if the official victim is an exceptionally high-level official.
    Do these provisions adequately address the circumstance of an 
official victim? If not, what amendments to the guidelines should be 
made? Should the Commission increase the amount, or the scope, of these 
provisions? Should the upward departure provision be incorporated as an 
enhancement in one or more of the applicable guidelines (e.g., 
Sec. Sec.  2A1.1, 2A1.2, 2A2.1, 2A2.2, 2A2.3, 2J1.2)?
    The Commission also requests comment on cases in which a non-
official is the victim of an offense described above. Are the 
guidelines adequate as they apply to such offenses? If not, what 
amendments to the guidelines should be made?

C. Directive to the Commission

    Section 209 of the Act directs the Commission to review the 
guidelines as they apply to threats made in violation of 18 U.S.C. 115 
(Influencing, impeding, or retaliating against a Federal official by 
threatening or injuring a family member). Section 115 makes it unlawful 
to assault, kidnap, or murder an individual who is a current or former 
federal official, or a family member of such an individual, with intent 
to impede the individual in, or retaliate against the individual for, 
the performance of the individual's official duties; section 115 also 
makes it unlawful to threaten such an assault, kidnapping, or murder. 
Such a threat is punished under 18 U.S.C. 115(b)(4), which provides 
that a violator is subject to a fine under title 18, United States 
Code, and imprisonment of up to 6 years (if an assault was threatened) 
or up to 10 years (if a kidnapping or murder was threatened). Offenses 
involving threats made in violation of 18 U.S.C. 115 are referenced in 
Appendix A of the Guidelines Manual (Statutory Index) to Sec.  2A6.1 
(Threatening or Harassing Communications; Hoaxes; False Liens).
    Section 209 specified that the Commission should review those 
threats made in violation of section 115 ``that occur over the 
Internet,'' and ``determine whether and by how much that circumstance 
should aggravate the punishment pursuant to section 994 of title 28, 
United States Code.'' Section 209 further directed the Commission to 
``take into consideration the number of such threats made, the intended 
number of recipients of such threats, and whether the initial senders 
of such threats were acting in an individual capacity or as part of a 
larger group.''
    With regard to threats made in violation of section 115 that occur 
over the Internet, the guidelines do not currently provide for the use 
of the Internet to be an aggravating circumstance. Should that 
circumstance aggravate the punishment and, if so, by how much?
    Other factors specified in the directive (i.e., (i) the number of 
threats made in violation of section 115, (ii) the intended number of 
recipients of such threats, and (iii) whether the initial senders of 
such threats were acting in an individual capacity or as part of a 
larger group), are currently addressed in the guidelines as follows:
    (1) Section 2A6.1(b)(2)(A) contains a 2-level enhancement if the 
offense

[[Page 4815]]

involved more than two threats. Section 2A6.1, Application Note 1, 
provides that, in determining whether this enhancement applies, conduct 
that occurred prior to the offense must be ``substantially and directly 
connected to the offense, under the facts of the case taken as a 
whole''.
    (2) Section 2A6.1, Application Note 4, invites an upward departure 
if the offense involved substantially more than two threatening 
communications to the same victim, or if the offense involved multiple 
victims.
    Are the factors in the directive relating to number of threats made 
and intended number of recipients adequately addressed through these 
upward departures? If not, what amendments to the guidelines should be 
made? Should these upward departure provisions be incorporated as 
enhancements in Sec.  2A6.1?
    In considering whether to amend the guidelines as they apply to 
offenses involving threats made in violation of section 115, should the 
Commission focus on whether to amend the guidelines with regard to 
offenses that occur over the Internet (i.e., the category of offenses 
covered by the directive), or should the Commission also consider 
whether to amend the guidelines with regard to offenses that do not 
occur over the Internet? If the latter, what amendments to the 
guidelines should be made?

5. Trafficking

    Issues for Comment:
    1. The William Wilberforce Trafficking Victims Protection 
Reauthorization Act of 2008, Public Law 110-457 (the ``Act''), was 
signed into law on December 23, 2008. The Act creates two new federal 
offenses, amends a number of federal statutes, and contains a directive 
to the Commission relating to certain alien harboring offenses. The 
Commission requests comment regarding what amendments to the guidelines 
may be appropriate in light of the Act. Given the recency of enactment 
of the Act, it may be necessary to continue work on any or all of the 
issues raised by the Act beyond the amendment cycle ending May 1, 2009.

A. Directive to the Commission

    Section 222(g) of the Act directs the Commission to--review and, if 
appropriate, amend the sentencing guidelines and policy statements 
applicable to persons convicted of alien harboring to ensure conformity 
with the sentencing guidelines applicable to persons convicted of 
promoting a commercial sex act if--
    (1) The harboring was committed in furtherance of prostitution; and
    (2) The defendant to be sentenced is an organizer, leader, manager, 
or supervisor of the criminal activity.
    Alien harboring is an offense under 8 U.S.C.1324(a) (bringing in 
and harboring certain aliens), which makes it unlawful to (among other 
things) harbor an illegal alien. Offenses under section 1324(a) are 
referenced to Sec.  2L1.1 (Smuggling, Transporting, or Harboring an 
Unlawful Alien). In some circumstances, a person who harbors an alien 
could also commit an offense under 8 U.S.C. 1328 (importation of alien 
for immoral purpose), which makes it unlawful to (among other things) 
harbor an illegal alien for purposes of prostitution or any other 
immoral purpose. Offenses under section 1328, however, are referenced 
not to Sec.  2L1.1 but to the guidelines applicable to promoting a 
commercial sex act, Sec.  2G1.1 (Promoting a Commercial Sex Act or 
Prohibited Sexual Conduct with an Individual Other than a Minor) and 
Sec.  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). It is to those guidelines, Sec. Sec.  2G1.1 
and 2G1.3, that sex trafficking offenses, such as 18 U.S.C. 1591 and 
the offenses under chapter 117 of title 18, United States Code (18 
U.S.C. 2421 et seq.) are referenced.
    The Commission requests comment regarding whether (and, if so, how) 
the guidelines should be amended to ensure conformity between the 
guidelines applicable to persons convicted of alien harboring (i.e., 
Sec.  2L1.1) and the guidelines applicable to persons convicted of 
promoting a commercial sex act (i.e., Sec. Sec.  2G1.1 and 2G1.3) if 
the alien harboring offense involves the circumstances specified in the 
directive (i.e., the harboring was committed in furtherance of 
prostitution and the defendant is an organizer, leader, manager, or 
supervisor of the criminal activity).
    In a case in which no aggravating or mitigating factors otherwise 
apply, a person convicted of alien harboring under 8 U.S.C. 
1324(a)(1)(A)(iii) under the circumstances specified in the directive 
receives a base offense level of 12 under Sec.  2L1.1(a)(3) and an 
upward adjustment of two, three, or four levels under Sec.  3B1.1 
(Aggravating Role) for being an organizer, leader, manager, or 
supervisor of the criminal activity, for a resulting offense level of 
14 to 16. (Section 2L1.1 does not provide an enhancement for committing 
the harboring in furtherance of prostitution.) In comparison, a person 
convicted of promoting a commercial sex act receives a base offense 
level of 14 under Sec.  2G1.1(a)(2) (if the offense did not involve a 
minor) or a base offense level of 24 under Sec.  2G1.3(a)(4) (if the 
offense did involve a minor). In cases in which aggravating or 
mitigating circumstances are present, the guideline applicable to alien 
harboring, Sec.  2L1.1, may conform with the guidelines applicable to 
promoting a commercial sex act, Sec. Sec.  2G1.1 and 2G1.3, to a 
greater or lesser degree.
    Are amendments needed to Sec.  2L1.1, as it applies to a person 
convicted of alien harboring under the circumstances specified in the 
directive, to ensure conformity with Sec. Sec.  2G1.1 and 2G1.3? For 
example, should the Commission provide a cross reference in Sec.  2L1.1 
to Sec. Sec.  2G1.1 and 2G1.3 when the offense involves the 
circumstances specified in the directive? Alternatively, should the 
Commission provide one or more specific offense characteristics in 
Sec.  2L1.1 to account for the circumstances specified in the 
directive, such as a specific offense characteristic for harboring 
committed in furtherance of prostitution? Should the Commission provide 
a specific offense characteristic in Sec.  2L1.1 to account for 
harboring in furtherance of prostitution when the offense involves a 
minor? Should the Commission provide a specific offense characteristic 
in Sec.  2L1.1 that incorporates the adjustment in Sec.  3B1.1 
(Aggravating Role)? If the Commission were to provide one or more such 
specific offense characteristics, what should the offense levels be? 
Are there any other amendments that should be made to the guidelines as 
they apply to a person convicted of alien harboring under the 
circumstances specified in the directive?

B. New Offenses

    The Act created two new offenses. The first new offense, 18 U.S.C. 
1593A (benefiting financially from peonage, slavery, and trafficking in 
persons), makes it unlawful to knowingly benefit, financially or by 
receiving anything of value, from participation in a venture that has 
engaged in any act in violation of section 1581(a), 1592, or 1595(a) of 
title 18, United States Code, knowing or in reckless disregard of the 
fact that the venture has engaged in such violation. A violator is 
subject to a fine under title 18, United States Code, and imprisonment 
in the same manner as a completed violation of such section.

[[Page 4816]]

    The second new offense, 18 U.S.C. 1351 (fraud in foreign labor 
contracting), makes it unlawful to knowingly and with intent to defraud 
recruit, solicit or hire a person outside the United States for 
purposes of employment in the United States by means of materially 
false or fraudulent pretenses, representations or promises regarding 
that employment. A violator is subject to a fine under title 18, United 
States Code, and imprisonment of up to 5 years.
    Should the Commission amend Appendix A (Statutory Index) to refer 
these new offenses to one or more guidelines and, if so, which ones? 
Should offenses under section 1593A be referred to Sec.  2H4.1 
(Peonage, Involuntary Servitude, and Slave Trade)? Should offenses 
under section 1351 be referred to Sec.  2B1.1 (Theft, Property 
Destruction, and Fraud), or to Sec.  2H4.1 (Peonage, Involuntary 
Servitude, and Slave Trade)? Are there aggravating or mitigating 
circumstances existing in cases involving those offenses that might 
justify additional amendments to the guidelines? If so, what amendments 
to the guidelines should be made to address those circumstances?

C. Other Modifications to Chapter 77

    Subtitle C of title II of the Act amended various provisions in 
Chapter 77 (Peonage, Slavery, and Trafficking in Persons) of title 18, 
United States Code, in particular the following offenses:
    (A) 18 U.S.C. 1583 (enticement into slavery), which is referenced 
in Appendix A (Statutory Index) to Sec.  2H4.1 (Peonage, Involuntary 
Servitude, and Slave Trade).
    (B) 18 U.S.C. 1584 (sale into involuntary servitude), which is 
referenced in Appendix A (Statutory Index) to Sec.  2H4.1 (Peonage, 
Involuntary Servitude, and Slave Trade).
    (C) 18 U.S.C. 1589 (forced labor), which is referenced in Appendix 
A (Statutory Index) to Sec.  2H4.1 (Peonage, Involuntary Servitude, and 
Slave Trade).
    (D) 18 U.S.C. 1590 (trafficking with respect to peonage, slavery, 
involuntary servitude, or forced labor), which is referenced in 
Appendix A (Statutory Index) to Sec.  2H4.1 (Peonage, Involuntary 
Servitude, and Slave Trade).
    (E) 18 U.S.C. 1591 (sex trafficking of children or by force, fraud, 
or coercion), which is referenced in Appendix A (Statutory Index) to 
Sec. Sec.  2G1.1 (Promoting a Commercial Sex Act or Prohibited Sexual 
Conduct with an Individual Other than a Minor), 2G2.1 (Sexually 
Exploiting a Minor by Production of Sexually Explicit Visual or Printed 
Material; Custodian Permitting Minor to Engage in Sexually Explicit 
Conduct; Advertisement for Minors to Engage in Production), and Sec.  
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).
    (F) 18 U.S.C. 1592 (unlawful conduct with respect to documents in 
furtherance of trafficking, peonage, slavery, involuntary servitude, or 
forced labor), which is referenced in Appendix A (Statutory Index) to 
Sec.  2H4.1 (Peonage, Involuntary Servitude, and Slave Trade).
    Are the guidelines adequate as they apply to such offenses? Are 
there aggravating or mitigating circumstances existing in cases 
involving such offenses that might justify additional amendments to the 
guidelines? If so, what amendments to the guidelines should be made to 
address those circumstances?
    Among other things, the Act amended these offenses by extending to 
these offenses the obstruction provision of 18 U.S.C. 1581 (peonage; 
obstructing enforcement), under which a person who obstructs, 
interferes with, or prevents the enforcement of the section is subject 
to the same punishment as a person who commits the substantive offense. 
Are the guidelines adequate as they apply to these offenses in a case 
involving obstruction?
    The Act also amended 18 U.S.C. 1589 and 1591 to provide that a 
person who benefits financially from participating in a venture 
involving trafficked labor is subject to the same punishment as a 
person who commits the substantive offense. Are the guidelines adequate 
as they apply to these offenses in a case involving these 
circumstances?
    The Act also amended 18 U.S.C. 1594 (general provisions) to provide 
for conspiracy liability under these offenses. Are the guidelines 
adequate as they apply to these offenses in a case involving 
conspiracy?
    Are there any other amendments to the guidelines that should be 
made to address the amendments made by the Act?

6. Miscellaneous

    Synopsis of Proposed Amendment: This proposed amendment is a multi-
part amendment responding to miscellaneous issues arising from 
legislation recently enacted and other miscellaneous guideline 
application issues.
    Part A of the proposed amendment amends Appendix A (Statutory 
Index) to include offenses created or amended by the Housing and 
Economic Recovery Act of 2008 (Pub. L. 110-289). The new offense at 12 
U.S.C. 4636b is referenced to Sec.  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); as a conforming change, the similar 
existing offense at 12 U.S.C. 1818(j) is also referenced to Sec.  
2B1.1. The new offense at 12 U.S.C. 4641 is referenced to Sec.  2J1.1 
(Contempt) and Sec.  2J1.5 (Failure to Appear by Material Witness); as 
conforming changes, similar existing offenses (see 2 U.S.C. 192, 390; 7 
U.S.C. 87f(e); 12 U.S.C. 1818(j), 1844(f), 2273, 3108(b)(6); 15 U.S.C. 
78u(c), 80a-41(c), 80b-9(c), 717m(d); 16 U.S.C. 825f(c); 26 U.S.C. 
7210; 33 U.S.C. 506, 1227(b); 42 U.S.C. 3611; 47 U.S.C. 409(m); 49 
U.S.C. 14909, 16104) are also referenced to Sec.  2J1.1 and Sec.  
2J1.5.
    Part B of the proposed amendment amends Appendix A (Statutory 
Index) to include offenses created or amended by the Consumer Product 
Safety Improvement Act of 2008 (Pub. L. 110-314). These offenses (see 
15 U.S.C. 1192, 1197(b), 1202(c), 1263, 2068) are referenced to Sec.  
2N2.1 (Violations of Statutes and Regulations Dealing With Any Food, 
Drug, Biological Product, Device, Cosmetic, or Agricultural Product). 
Technical and conforming changes are also made.
    Part C of the proposed amendment amends Appendix A (Statutory 
Index) to include an offense created by the Veterans' Benefits 
Improvement Act of 2008 (Pub. L. 110-389). The new offense at 50 U.S.C. 
App. Sec.  527(e) is referenced to Sec.  2X5.2 (Class A Misdemeanors 
(Not Covered by Another Specific Guideline)); as a conforming change, 
the similar existing offense at 10 U.S.C. 987(f) is also referenced to 
Sec.  2X5.2.
    Part D of the proposed amendment amends Appendix A (Statutory 
Index) to include an offense created by the Violence Against Women and 
Department of Justice Reauthorization Act of 2005 (Pub. L. 109-162). 
The new offense at 18 U.S.C. 117 is referenced to Sec.  2A6.2 (Stalking 
or Domestic Violence).
    Part E of the proposed amendment amends Appendix A (Statutory 
Index) to include an offense created by the Child Soldiers 
Accountability Act of 2008 (Pub. L. 110-340). The new offense at 18 
U.S.C. 2442 is referenced to

[[Page 4817]]

Sec.  2H4.1 (Peonage, Involuntary Servitude, and Slave Trade). 
Technical and conforming changes are also made. An issue for comment is 
also provided.
    Part F of the proposed amendment makes changes throughout the 
Guidelines Manual so that it accurately reflects the amendments made by 
the Judicial Administration and Technical Amendments Act of 2008 (Pub. 
L. 110-406) to the probation and supervised release statutes (18 U.S.C. 
3563, 3583). The changes include the addition of a new guideline for 
intermittent confinement that parallels the statutory language, as well 
as technical and conforming changes.
    Part G of the proposed amendment amends the enhancement relating to 
property from a national cemetery or veterans' memorial in subsection 
(b)(6) of Sec.  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) so that it also covers trafficking in such property, and makes 
a conforming change to the commentary. This part responds to the 
directive to the Commission in the Let Our Veterans Rest in Peace Act 
of 2008 (Pub. L. 110-384).
    Part H of the proposed amendment makes changes to the child 
pornography guidelines, Sec.  2G2.1 and Sec.  2G2.2, so that they 
accurately reflect the amendments made to the child pornography 
statutes (18 U.S.C. 2251 et seq.) by the Effective Child Pornography 
Prosecution Act of 2007 (Pub. L. 110-358) and the PROTECT Our Children 
Act of 2008 (Pub. L. 110-401). The changes relate primarily to cases 
where child pornography is transmitted over the Internet. Under the 
proposed amendment, where the guidelines refer to the purpose of 
producing a visual depiction, they will also refer to the purpose of 
transmitting a live visual depiction; where the guidelines refer to 
possessing material, they will also refer to accessing with intent to 
view the material. As a conforming change, this part also amends the 
child pornography guidelines so that the term ``distribution'' includes 
``transmission'', and the term ``material'' includes any visual 
depiction, as now defined by 18 U.S.C. 2256 (i.e., to include data 
which is capable of conversion into a visual image that has been 
transmitted by any means, whether or not stored in a permanent format).
    Part I of the proposed amendment makes a technical change to the 
terms ``another felony offense'' and ``another offense'', as defined in 
Application Note 14(C) of the firearms guideline, Sec.  2K2.1 (Unlawful 
Receipt, Possession, or Transportation of Firearms or Ammunition; 
Prohibited Transactions Involving Firearms or Ammunition). Those 
definitions were slightly revised when they were placed into 
Application Note 14(C) by Amendment 691 (effective November 1, 2006), 
and some confusion has arisen regarding whether the revisions were 
intended to have a substantive effect. The technical change amends the 
terms to clarify that Amendment 691 was not intended to have a 
substantive effect on those terms.
    Part J of the proposed amendment revises Appendix A (Statutory 
Index) so that the threat guideline, Sec.  2A6.1 (Threatening or 
Harassing Communications; Hoaxes; False Liens), is included on the list 
of guidelines to which 18 U.S.C. 2280 and 2332a are referenced. The 
proposed amendment ensures that in a case in which an offense under one 
of those statutes is committed by threat, the court has the option of 
determining that Sec.  2A6.1 is the most analogous offense guideline.
    Part K of the proposed amendment amends the enhancement relating to 
serious bodily injury in subsection (b)(5) of Sec.  2B5.3 (Criminal 
Infringement of Copyright or Trademark) so that it parallels the 
corresponding enhancement for serious bodily injury in Sec.  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). This part 
responds to statutory amendments made by the Prioritizing Resources and 
Organization for Intellectual Property Act of 2008 (Pub. L. 110-403).
    An issue for comment is also included regarding whether the 
guidelines are adequate as they apply to subsection (a)(7) of 18 U.S.C. 
2252A, a new offense created by the PROTECT Our Children Act of 2008 
(Pub. L. 110-401).
    Proposed Amendment:
    Part A (Housing and Economic Recovery Act of 2008):
    Appendix A (Statutory Index) is amended by inserting before the 
line referenced to 2 U.S.C. 437g(d) the following:

``2 U.S.C. 192 2J1.1, 2J1.5
2 U.S.C. 390 2J1.1, 2J1.5'';

    by inserting after the line referenced to 7 U.S.C. 87b the 
following:

``7 U.S.C. 87f(e) 2J1.1, 2J1.5'';

    by inserting after the line referenced to 12 U.S.C. 631 the 
following:

``12 U.S.C. 1818(j) 2B1.1
12 U.S.C. 1844(f) 2J1.1, 2J1.5
12 U.S.C. 2273 2J1.1, 2J1.5
12 U.S.C. 3108(b)(6) 2J1.1, 2J1.5
12 U.S.C. 4636b 2B1.1
12 U.S.C. 4641 2J1.1, 2J1.5'';

    by inserting after the line referenced to 15 U.S.C. 78ff the 
following:

``15 U.S.C. 78u(c) 2J1.1, 2J1.5
15 U.S.C. 80a-41(c) 2J1.1, 2J1.5'';

    by inserting after the line referenced to 15 U.S.C. 80b-6 the 
following:

``15 U.S.C. 80b-9(c) 2J1.1, 2J1.5'';

    by inserting after the line referenced to 15 U.S.C. 714m(c) the 
following:

``15 U.S.C. 717m(d) 2J1.1, 2J1.5'';

    by inserting after the line referenced to 16 U.S.C. 773g the 
following:

``16 U.S.C. 825f(c) 2J1.1, 2J1.5'';

    in the line referenced to 26 U.S.C. 7210 by inserting ``, 2J1.5'' 
after ``2J1.1'';
    in the line referenced to 33 U.S.C. 506 by inserting ``, 2J1.5'' 
after ``2J1.1'';
    in the line referenced to 33 U.S.C. 1227(b) by inserting ``, 
2J1.5'' after ``2J1.1'';
    in the line referenced to 42 U.S.C. 3611(f) by inserting ``, 
2J1.5'' after ``2J1.1'';
    by inserting after the line referenced to 47 U.S.C. 223(b)(1)(A) 
the following:

``47 U.S.C. 409(m) 2J1.1, 2J1.5'';

    in the line referenced to 49 U.S.C. 14909 by inserting ``, 2J1.5'' 
after ``2J1.1'';
    and in the line referenced to 49 U.S.C. 16104 by inserting ``, 
2J1.5'' after ``2J1.1''.
    Part B (Consumer Product Safety Improvement Act of 2008):
    Chapter Two, Part N is amended in the heading by inserting 
``CONSUMER PRODUCTS,'' after ``PRODUCTS,''.
    Chapter Two, Part N, Subpart 2 is amended in the heading by 
striking ``AND''; and by inserting ``, AND CONSUMER PRODUCTS'' after 
``PRODUCTS''.
    Section 2N2.1 is amended in the heading by striking ``or'' after 
``Cosmetic,'' and by inserting ``, or Consumer Product'' at the end.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to ``15 U.S.C. 1176'' the following:

``15 U.S.C. 1192 2N2.1
15 U.S.C. 1197(b) 2N2.1
15 U.S.C. 1202(c) 2N2.1
15 U.S.C. 1263 2N2.1'';

    and by inserting after the line referenced to 15 U.S.C. Sec.  
1990(c) the following:

``15 U.S.C. 2068 2N2.1''

.
[[Page 4818]]


    Part C (Veterans' Benefits Improvement Act of 2008):
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 8 U.S.C. 1375a(d)(3)(C),(d)(5)(B) the following:

``10 U.S.C. 987(f) 2X5.2'';

    and by inserting after the line referenced to 50 U.S.C. 783(c) the 
following:

    ``50 U.S.C. App. Sec.  527(e)2X5.2''.

    Part D (Violence Against Women and Department of Justice 
Reauthorization Act of 2005):
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. 115(b)(3) the following:

``18 U.S.C. 117 2A6.2''.

    Part E (Child Soldiers Accountability Act of 2008):
    Chapter Two, Part H, Subpart 4 is amended in the heading by 
striking ``AND'' after ``SERVITUDE,'' and by inserting ``, AND CHILD 
SOLDIERS'' at the end.
    Section 2H4.1 is amended in the heading by striking ``and'' after 
``Servitude,'' and by inserting ``, and Child Soldiers'' at the end.
    The Commentary to Sec.  2H4.1 captioned ``Statutory Provisions'' is 
amended by inserting ``, 2442'' after ``1592''.
    The Commentary to Sec.  2H4.1 captioned ``Application Notes'' is 
amended in Note 1 by inserting as the last paragraph the following:
    `` `Involuntary servitude' includes forced labor, slavery, and 
service as a child soldier.''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. 2425 the following:

``18 U.S.C. 2442 2H4.1''.
    Issue for Comment:
    1. The Commission requests comment regarding whether it should 
amend Appendix A (Statutory Index) to reference the new offense at 18 
U.S.C. 2242 to 2H4.1 (Peonage, Involuntary Servitude, and Slave Trade) 
or to one or more other guidelines. Does Sec.  2H4.1, or one or more 
other guidelines, adequately address offenses under 18 U.S.C. 2242 and, 
if not, what aggravating or mitigating circumstances existing in those 
cases might justify additional amendments to the guidelines? 
Alternatively, should the Commission defer action in response to the 
new offense at 18 U.S.C. 2242 this amendment cycle, undertake a broader 
review of the guidelines pertaining to human rights offenses generally, 
and include responding to the new offense as part of that broader 
review?
    Part F (Judicial Administration and Technical Amendments Act of 
2008):
    Section 5B1.3 is amended in subsection (a)(2) by striking ``, (B) 
give notice'' and all that follows through ``or area,'' and inserting 
``or (B) work in community service, unless the court has imposed a 
fine, or''; and by striking the paragraph that begins ``Note: Section 
3563(a)(2)''.
    Section 5B1.3(e)(1) is amended by adding at the end ``See Sec.  
5F1.1 (Community Confinement).''.
    Section 5B1.3(e)(6) is amended by adding at the end ``See Sec.  
5F1.8 (Intermittent Confinement).''.
    Section 5C1.1 is amended by striking the asterisk each place it 
appears.
    The Commentary to Sec.  5C1.1 captioned ``Application Notes'' is 
amended by striking the asterisk each place it appears; and by striking 
the paragraph that begins ``Note: Section 3583(d)'' and the paragraph 
that begins ``However,''.
    Section 5D1.3(e)(1) is amended by striking the asterisk; and by 
striking the paragraph that begins ``Note: Section 3583(d)'' and the 
paragraph that begins ``However,''.
    Section 5D1.3(e) is amended by adding at the end the following 
paragraph:
``(6) Intermittent Confinement
    Intermittent confinement (custody for intervals of time) may be 
ordered as a condition of supervised release during the first year of 
supervised release. See Sec.  5F1.8 (Intermittent Confinement).''.
    Section 5F1.1 is amended by striking the asterisk; and by striking 
the paragraph that begins ``Note: Section 3583(d)'' and the paragraph 
that begins ``However,''.
    Chapter Five, Part F is amending by adding at the end the following 
new guideline and accompanying commentary:
``Sec.  5F1.8. Intermittent Confinement
    Intermittent confinement may be imposed as a condition of probation 
or supervised release.
Commentary
    Application Notes:
    1. `Intermittent confinement' means remaining in the custody of the 
Bureau of Prisons during nights, weekends, or other intervals of time, 
totaling no more than the lesser of one year or the term of 
imprisonment authorized for the offense, during the first year of the 
term of probation or supervised release. See 18 U.S.C. 3563(b)(10).
    2. Intermittent confinement shall be imposed as a condition of 
supervised release only for a violation of a condition of supervised 
release in accordance with 18 U.S.C. 3583(e)(2) and only when 
facilities are available. See 18 U.S.C. 3583(d).''.
    Chapter Seven, Part A is amended in Subpart 2(b) in the second 
paragraph by striking ``With the exception'' and all that follows 
through ``probation, the'' and inserting ``The''; and by striking the 
paragraph that begins ``Note: Section 3583(d)'' and the paragraph that 
begins ``However,''.
    The Commentary to Sec.  7B1.3 captioned ``Application Notes'' is 
amended by striking Note 5 and inserting the following:
    ``5. Intermittent confinement is authorized as a condition of 
probation only during the first year of the term of probation, see 18 
U.S.C. 3563(b)(10), and as a condition of supervised release only 
during the first year of supervised release, see 18 U.S.C. 3583(d). See 
Sec.  5F1.8 (Intermittent Confinement).''.
    Section 8D1.3 is amended by striking subsection (b) and inserting 
the following:
    ``(b) Pursuant to 18 U.S.C. 3563(a)(2), if a sentence of probation 
is imposed for a felony, the court shall impose as a condition of 
probation at least one of the following: (1) Restitution or (2) 
community service, unless the court has imposed a fine, or unless the 
court finds on the record that extraordinary circumstances exist that 
would make such condition plainly unreasonable, in which event the 
court shall impose one or more other conditions set forth in 18 U.S.C. 
3563(b).''.
    Part G (Let Our Veterans Rest in Peace Act of 2008):
    Section 2B1.1(b)(6) is amended by striking ``or'' after ``damage 
to,''; and by inserting ``or trafficking in,'' after ``destruction 
of,''.
    The Commentary to Sec.  2B1.1 captioned ``Background'' is amended 
in the paragraph that begins ``Subsection (b)(6)'' by inserting at the 
end before the period the following: ``and the directive to the 
Commission in section 3 of Public Law 110-384''.
    Part H (PROTECT Our Children Act of 2008 and Effective Child 
Pornography Prosecution Act of 2007):
    Section 2G2.1(b)(6) is amended by inserting ``or for the purpose of 
transmitting such material live'' after ``explicit material''.
    The Commentary to Sec.  2G2.1 captioned ``Application Notes'' is 
amended in Note 1 in the paragraph that begins `` `Distribution'' ' by 
inserting ``transmission,'' after ``production,''; and by inserting 
after the paragraph that begins `` `Interactive computer service' '' 
the following paragraph:

[[Page 4819]]

    `` `Material' includes a visual depiction, as defined in 18 U.S.C. 
Sec.  2256.''.
    The Commentary to Sec.  2G2.1 captioned ``Application Notes'' is 
amended in Note 4 by inserting ``or for the purpose of transmitting 
such material live'' after ``explicit material'' each place it appears; 
and in Note 4(B) by striking ``purpose'' after ``for such'' and 
inserting ``purposes''.
    Section 2G2.2(b)(6) is amended by inserting ``or for accessing with 
intent to view the material,'' after ``material,''.
    Section 2G2.2(c)(1) is amended by inserting ``or for the purpose of 
transmitting a live visual depiction of such conduct'' after ``such 
conduct''.
    The Commentary to Sec.  2G2.2 captioned ``Application Notes'' is 
amended in Note 1 in the paragraph that begins ```Distribution''' by 
inserting ``transmission,'' after ``production,''; by inserting after 
the paragraph that begins ```Interactive computer service''' the 
following:
    ```Material' includes a visual depiction, as defined in 18 U.S.C. 
2256.'' and
    in the paragraph that begins ``Sexual abuse or exploitation'' by 
inserting ``accessing with intent to view,'' after ``possession,''.
    The Commentary to Sec.  2G2.2 captioned ``Application Notes'' is 
amended in Note 2 by inserting ``access with intent to view,'' after 
``possess,''.
    The Commentary to Sec.  2G2.2 captioned ``Application Notes'' is 
amended in Note 4(B)(ii) by striking ``recording'' and inserting 
``visual depiction'' each place it appears.
    The Commentary to Sec.  2G2.2 captioned ``Application Notes'' is 
amended in Note 5(A) by inserting ``or for the purpose of transmitting 
live any visual depiction of such conduct'' after ``such conduct''.
    Part I (Clarification of Sec.  2K2.1, Application Note 14(C)):
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'' is 
amended in Note 14(C) by striking ``the'' before ``explosive'' and 
inserting ``an'' each place it appears.
    Part J (Treatment of 18 U.S.C. 2280, 2332a in Statutory Index):
    Appendix A (Statutory Index) is amended in the line referenced to 
18 U.S.C. Sec.  2280 by inserting ``2A6.1,'' after ``2A4.1,''; and
    in the line referenced to 18 U.S.C. 2332a by inserting ``2A6.1,'' 
before ``2K1.4''.
    Part K (Prioritizing Resources and Organization for Intellectual 
Property Act of 2008):
    Section 2B5.3(b)(5) is amended by inserting ``death or'' after 
``risk of''; and by striking ``13'' and inserting ``14'' each place it 
appears.
    Issue for Comment:
    1. The Commission requests comment regarding whether the guidelines 
are adequate as they apply to subsection (a)(7) of 18 U.S.C. 2252A, a 
new offense created by the PROTECT Our Children Act of 2008 (Pub. L. 
110-401). The new offense at subsection (a)(7) makes it unlawful to 
knowingly produce with intent to distribute, or to knowingly 
distribute, ``child pornography that is an adapted or modified 
depiction of an identifiable minor.'' A violator is subject to a fine 
under title 18, United States Code, and imprisonment up to 15 years.
    Under Appendix A (Statutory Index), all offenses under 18 U.S.C. 
2252A are referenced to the child pornography trafficking, receipt, and 
possession guideline, Sec.  2G2.2 (Trafficking in Material Involving 
the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, 
Soliciting, or Advertising Material Involving the Sexual Exploitation 
of a Minor; Possessing Material Involving the Sexual Exploitation of a 
Minor with Intent to Traffic; Possessing Material Involving the Sexual 
Exploitation of a Minor).
    Is Sec.  2G2.2 the guideline to which offenses under subsection 
(a)(7) should be referenced? Alternatively, should the Commission amend 
Appendix A (Statutory Index) to refer offenses under subsection (a)(7) 
to a guideline or guidelines other than Sec.  2G2.2 and, if so, which 
ones? Should the Commission amend the guidelines (such as by amending 
Appendix A or by providing cross references) so that an offense under 
subsection (a)(7) that involves distribution is referred to one 
guideline (e.g., Sec.  2G2.2), and an offense under subsection (a)(7) 
that involves production is referred to another guideline (e.g., the 
child pornography production guideline, Sec.  2G2.1 (Sexually 
Exploiting a Minor by Production of Sexually Explicit Visual or Printed 
Material; Custodian Permitting Minor to Engage in Sexually Explicit 
Conduct; Advertisement for Minors to Engage in Production))? Whether 
offenses under subsection (a)(7) are referenced to Sec.  2G2.2 or to 
one or more other guidelines, are there aggravating or mitigating 
circumstances existing in cases involving those offenses that might 
justify additional amendments to the guidelines? If so, how should the 
guidelines be amended to address those circumstances? For example, if 
an offense under subsection (a)(7) that involves production is referred 
to Sec.  2G2.1, should the Commission provide a downward adjustment in 
Sec.  2G2.1 to reflect the less serious nature of an offense involving 
the production of child pornography that is an adapted or modified 
depiction of an identifiable minor compared to other offenses involving 
the production of child pornography covered by that guideline? 
Alternatively, should the Commission create a new guideline for 
offenses under subsection (a)(7)?

7. Influencing a Minor

    Synopsis of Proposed Amendment: This proposed amendment addresses a 
circuit conflict regarding the undue influence enhancement at Sec.  
2A3.2(b)(2)(B)(ii) (Criminal Sexual Abuse of a Minor Under the Age of 
Sixteen Year (Statutory Rape) or Attempt to Commit Such Acts) and at 
Sec.  2G1.3(b)(2)(B) (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). The undue influence enhancement provides 
for an increase in the defendant's offense level (four levels in Sec.  
2A3.2 and two levels in Sec.  2G1.3) if ``a participant otherwise 
unduly influenced the minor to engage in prohibited sexual conduct.'' 
In both guidelines, commentary states that in determining whether the 
undue influence enhancement applies, ``the court should closely 
consider the facts of the case to determine whether a participant's 
influence over the minor compromised the voluntariness of the minor's 
behavior.'' The commentary also provides for a rebuttable presumption 
of undue influence ``[i]n a case in which a participant is at least 10 
years older than the minor.''
    In both guideline provisions, the term ``minor'' includes ``an 
individual, whether fictitious or not, who a law enforcement officer 
represented to a participant * * * could be provided for the purposes 
of engaging in sexually explicit conduct'' or ``an undercover law 
enforcement officer who represented to a participant that the officer 
had not attained'' the age of majority.
    Three circuits have three different approaches regarding the 
application of the undue influence enhancement in cases in which the 
``minor'' is actually an undercover law enforcement officer. The 
Eleventh Circuit, in United States v. Root, 296 F.3d 1222 (11th Cir. 
2002), held that, according to the terms of Sec.  2A3.2, the undue 
influence enhancement can apply even when the

[[Page 4820]]

victim is an undercover law enforcement officer. In such a case, the 
Eleventh Circuit held, the focus is on the defendant's conduct, not on 
the fact that the victim's will was not actually overborne. The 
Eleventh Circuit is also the only circuit that has addressed this issue 
in the context of Sec.  2G1.3. See United States v. Vance, 494 F.3d 985 
(11th Cir. 2007) (holding that Sec.  2G1.3(b)(2)(B) applies where the 
minor is fictitious, and stating that ``the focus is on the defendant's 
intent, not whether the victim is real or fictitious'').
    The Seventh Circuit reached a different result in United States v. 
Mitchell, 353 F.3d 552 (7th Cir. 2003), holding that ``the plain 
language of [Sec.  2A3.2] cannot apply in the case of an attempt where 
the victim is an undercover police officer.'' The Seventh Circuit also 
stated that its reading of the guideline concluded that ``the 
enhancement cannot apply [in any case] where the offender and victim 
have not engaged in illicit sexual conduct.'' Id. at 559.
    The Sixth Circuit, in United States v. Chriswell, 401 F.3d 459 (6th 
Cir. 2005), took a third approach. The Sixth Circuit agreed in part 
with the Seventh Circuit, holding that ``Sec.  2A3.2(b)(2)(B) is not 
applicable in cases where the victim is an undercover agent 
representing himself to be a child under the age of sixteen.'' Id. at 
469. Unlike the Seventh Circuit, however, the Sixth Circuit concluded 
that the enhancement can apply in other instances of attempted sexual 
conduct.
    The three proposed options reflect the three different 
interpretations of the enhancement by the Eleventh, Sixth, and Seventh 
Circuits. Option One reflects the Eleventh Circuit's approach by 
amending the commentary regarding the undue influence enhancement in 
Sec. Sec.  2A3.2 and 2G1.3 to provide that the enhancement can apply in 
a case of attempted sexual conduct. Option One further amends the 
commentary to provide that the undue influence enhancement can apply in 
a case involving only an undercover law enforcement officer.
    Option Two reflects the Sixth Circuit's approach. It amends the 
commentary regarding the undue influence enhancement in Sec. Sec.  
2A3.2 and 2G1.3 to provide that the enhancement can apply in a case of 
attempted sexual conduct. Option Two further amends the commentary to 
provide that the undue influence enhancement does not apply in a case 
involving only an undercover law enforcement officer.
    Option Three reflects the Seventh Circuit's approach. Contrary to 
Options One and Two, Option Three amends the commentary regarding the 
undue influence enhancement in Sec. Sec.  2A3.2 and 2G1.3 to provide 
that the enhancement does not apply in a case of attempted sexual 
conduct. Like Option Two, Option Three amends the commentary regarding 
the undue influence enhancement in Sec. Sec.  2A3.2 and 2G1.3 to 
provide that the enhancement does not apply in a case involving only an 
undercover law enforcement officer.
    All three options include a technical amendment to the background 
of Sec.  2A3.2.
    One issue for comment is also included.
    Proposed Amendment:
    [Option 1:
    The Commentary to Sec.  2A3.2 captioned ``Application Notes'' is 
amended in Note 3(B) in the paragraph that begins ``Undue Influence'' 
by adding at the end the following:
    ``Subsection (b)(2)(B)(ii) does not require that the participant 
engage in prohibited sexual conduct with the minor.'';
    in the paragraph that begins ``In a case'' by striking ``, for 
purposes of'' and all that follows through ``sexual conduct'' and 
inserting ``that subsection (b)(2)(B)(ii) applies'';
    and by adding at the end as the last paragraph the following:
    ``Subsection (b)(2)(B)(ii) can apply in a case in which the only 
`minor' (as defined in Application Note 1) involved in the offense is 
an undercover law enforcement officer.''.]
    [Option 2:
    The Commentary to Sec.  2A3.2 captioned ``Application Notes'' is 
amended in Note 3(B) in the paragraph that begins ``Undue Influence'' 
by adding at the end the following:
    ``Subsection (b)(2)(B)(ii) does not require that the participant 
engage in prohibited sexual conduct with the minor.'';
    in the paragraph that begins ``In a case'' by striking ``, for 
purposes of'' and all that follows through ``sexual conduct'' and 
inserting ``that subsection (b)(2)(B)(ii) applies'';
    and by adding at the end as the last paragraph the following:
    ``Subsection (b)(2)(B)(ii) does not apply in a case in which the 
only `minor' (as defined in Application Note 1) involved in the offense 
is an undercover law enforcement officer.''.]
    [Option 3:
    The Commentary to Sec.  2A3.2 captioned ``Application Notes'' is 
amended in Note 3(B) in the paragraph that begins ``Undue Influence'' 
by adding at the end the following:
     ``Subsection (b)(2)(B)(ii) requires that the participant engage in 
prohibited sexual conduct with the minor.'';
    in the paragraph that begins ``In a case'' by striking ``, for 
purposes of'' and all that follows through ``sexual conduct'' and 
inserting ``that subsection (b)(2)(B)(ii) applies'';
    and by adding at the end as the last paragraph the following:
     ``Subsection (b)(2)(B)(ii) does not apply in a case in which the 
only `minor' (as defined in Application Note 1) involved in the offense 
is an undercover law enforcement officer.''.]
    The Commentary to Sec.  2A3.2 captioned ``Background'' is amended 
by striking ``two-level'' and inserting ``four-level'' each place it 
appears.
    [Option 1:
    The Commentary to Sec.  2G1.3 captioned ``Application Notes'' is 
amended in Note 3(B) in the paragraph that begins ``Undue Influence'' 
by adding at the end the following:
     ``Subsection (b)(2)(B) does not require that the participant 
engage in prohibited sexual conduct with the minor.'';
    in the paragraph that begins ``In a case'' by striking ``, for 
purposes of'' and all that follows through ``sexual conduct'' and 
inserting ``that subsection (b)(2)(B) applies'';
     and by adding at the end as the last paragraph the following:
     ``Subsection (b)(2)(B) can apply in a case in which the only 
`minor' (as defined in Application Note 1) involved in the offense is 
an undercover law enforcement officer.''.]
    [Option 2:
    The Commentary to Sec.  2G1.3 captioned ``Application Notes'' is 
amended in Note 3(B) in the paragraph that begins ``Undue Influence'' 
by adding at the end the following:
     ``Subsection (b)(2)(B) does not require that the participant 
engage in prohibited sexual conduct with the minor.'';
    in the paragraph that begins ``In a case'' by striking ``, for 
purposes of'' and all that follows through ``sexual conduct'' and 
inserting ``that subsection (b)(2)(B) applies'';
     and by adding at the end as the last paragraph the following:
     ``Subsection (b)(2)(B) does not apply in a case in which the only 
`minor' (as defined in Application Note 1) involved in the offense is 
an undercover law enforcement officer.''.]
    [Option 3:
    The Commentary to Sec.  2G1.3 captioned ``Application Notes'' is 
amended in Note 3(B) in the paragraph that begins ``Undue Influence'' 
by adding at the end the following:
     ``Subsection (b)(2)(B) requires that the participant engage in 
prohibited sexual conduct with the minor.'';
    in the paragraph that begins ``In a case'' by striking ``, for 
purposes of'' and

[[Page 4821]]

all that follows through ``sexual conduct'' and inserting ``that 
subsection (b)(2)(B) applies'';
     and by adding at the end as the last paragraph the following:
     ``Subsection (b)(2)(B) does not apply in a case in which the only 
`minor' (as defined in Application Note 1) involved in the offense is 
an undercover law enforcement officer.''.]
     Issue for Comment:
    1. The Commission seeks comment regarding the current application 
of the undue influence enhancements in both Sec.  2A3.2 and Sec.  
2G1.3. In 2004, the Commission created Sec.  2G1.3 specifically to 
address offenses under chapter 117 of title 18, United States Code, 
that involve minors. See USSG App. C, Amendment 664 (Nov. 2004). Prior 
to the creation of Sec.  2G1.3, chapter 117 offenses, primarily 18 
U.S.C. 2422 (Coercion and Enticement) and 2423 (Transportation of 
Minors), were sentenced under Sec.  2A3.2 either by direct reference 
from Appendix A, or through a cross reference from Sec.  2G1.1. The 
creation of a new guideline for chapter 117 cases was ``intended to 
address more appropriately the issues specific to these offenses. In 
addition, the removal of these cases from Sec.  2A3.2 permit[ted] the 
Commission to more appropriately tailor [Sec.  2A3.2] to actual 
statutory rape cases.'' USSG App. C, Amendment 664 (Nov. 2004).
    The Commission requests comment regarding the application of the 
undue influence enhancements in the two guidelines at issue. Should the 
Commission amend the enhancement in either guideline in any way? If so, 
what changes should the Commission make? Should, for example, the 
Commission more narrowly tailor the enhancement in Sec.  2A3.2 to 
reflect the offense conduct typical in cases now being sentenced under 
Sec.  2A3.2? If so, how?

8. Commission of Offense While on Release

    Synopsis of Proposed Amendment: This proposed amendment clarifies 
Application Note 1 in Sec.  3C1.3 (Commission of Offense While on 
Release). Section 3C1.3 (formerly Sec.  2J1.7, (see Appendix C to the 
Guidelines Manual, Amendment 684) provides for a three-level adjustment 
if the defendant is subject to the statutory enhancement found at 18 
U.S.C. 3147--that is, if the defendant has committed the underlying 
offense while on release. Application Note 1 to Sec.  3C1.3 states 
that, in order to comply with the statute's requirement that a 
consecutive sentence be imposed, the sentencing court must ``divide the 
sentence on the judgment form between the sentence attributable to the 
underlying offense and the sentence attributable to the enhancement.''
    The Second and Seventh Circuits have held that, according to the 
terms of Application Note 2 to Sec.  2J1.7 (now Application Note 1 to 
Sec.  3C1.3), a sentencing court cannot apportion to the underlying 
offense more than the maximum of the guideline range absent the three-
level enhancement. See United States v. Confredo, 528 F.3d 143 (2d Cir. 
2008); United States v. Stevens, 66 F.3d 431 (2d Cir. 1995); United 
States v. Wilson, 966 F.2d 243 (7th Cir. 1992). The Second Circuit has 
stated that the example the Commission provides in the Application Note 
does not abide by their interpretation of the rule: ``The commentary 
example begins with a total range of 30-37 months. In all criminal 
history categories, if the Sec.  2J1.7 three-level enhancement is 
deleted from the guideline level at which a 30-37 month sentence is 
imposed, the permissible range provided for the reduced sentence would 
be 21-27 months.'' Stevens, at 435-36. The example states that a 
properly ``apportioned'' sentence for the underlying offense would be 
30 months. This is outside the guideline range for that offense.
    Under ordinary guideline application principles, however, only one 
guideline range applies to a defendant who committed an offense while 
on release and is subject to the enhancement at 18 U.S.C. 3147. See 
Sec.  1B1.1 (instructing the sentencing court to, in this order: (1) 
Determine the offense guideline applicable to the offense of conviction 
(the underlying offense); (2) determine the base offense level, 
specific offense characteristics, and follow other instructions in 
Chapter Two; (3) apply adjustments from Chapter Three; and, ultimately, 
(4) ``[d]etermine the guideline range in Part A of Chapter Five that 
corresponds to the offense level and criminal history category 
determined above'').
    The proposed amendment clarifies that the court determines the 
applicable guideline range as in any other case. At that point, the 
court determines an appropriate ``total punishment'' from within that 
applicable guideline range, and then divides the total sentence between 
the underlying offense and the Sec.  3147 enhancement as the court 
considers appropriate.
    Proposed Amendment:
    The Commentary to Sec.  3C1.3 captioned ``Application Notes'' is 
amended in Note 1 by striking ``as adjusted'' and inserting 
``including, as in any other case in which a Chapter Three adjustment 
applies (see Sec.  1B1.1 (Application Instructions)), the adjustment 
provided''; and by adding at the end as the last sentence the 
following:
    ``Similarly, if the applicable adjusted guideline range is 30-37 
months and the court determines a `total punishment' of 30 months is 
appropriate, a sentence of 24 months for the underlying offense plus 6 
months under 18 U.S.C. 3147 would satisfy this requirement.''.

9. Counterfeiting and ``Bleached Notes''

    Synopsis of Proposed Amendment: The proposed amendment clarifies 
guideline application issues regarding the sentencing of counterfeiting 
offenses involving ``bleached notes.'' Bleached notes are genuine 
United States currency stripped of its original image through the use 
of solvents or other chemicals and then reprinted to appear to be notes 
of higher denomination than intended by the Treasury. Circuit courts 
have resolved differently the question of whether offenses involving 
bleached notes should be sentenced under Sec.  2B5.1 (Offenses 
Involving Counterfeit Bearer Obligations of the United States) or Sec.  
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). 
Compare, United States v. Schreckengost, 384 F.3d 922 (7th Cir. 2004) 
(holding that bleached notes should be sentenced under Sec.  2B1.1); 
United States v. Inclema, 363 F.3d 1177 (11th Cir. 2004) (same); with 
United States v. Dison, 2008 WL 351935 (W.D. La. Feb 8, 2008) (applying 
Sec.  2B5.1 in a case involving bleached notes); United States v. Vice, 
2008 WL 113970 (W. D. La. Jan. 3, 2008) (same). The proposed amendment 
resolves this circuit conflict and responds to concerns expressed by 
federal judges and members of Congress concerning the guidelines 
pertaining to offenses involving bleached notes.
    The definition of the term ``counterfeit'' in Application Note 3 of 
Sec.  2B5.1 has been cited by courts as the basis for declining to 
apply Sec.  2B5.1 to offenses involving bleached notes. ``Counterfeit'' 
is defined to mean ``an instrument that purports to be genuine but is 
not, because it has been falsely made or manufactured in its 
entirety.'' Application Note 3 further provides that ``[o]ffenses 
involving genuine instruments that have been altered are covered under 
Sec.  2B1.1 (Theft, Property Destruction, and Fraud).'' Under this 
definition, courts have had to consider whether a bleached note should 
be considered falsely made or

[[Page 4822]]

manufactured in its entirety (and therefore sentenced under Sec.  
2B5.1) or an altered note (and therefore sentenced under Sec.  2B1.1).
    The proposed amendment resolves this issue to provide that offenses 
involving bleached notes are to be sentenced under Sec.  2B5.1. 
Specifically, the proposed amendment deletes Application Note 3 and 
revises the definition of ``counterfeit'' to more closely parallel 
relevant counterfeiting statutes, for example 18 U.S.C. 471 
(Obligations or securities of the United States) and 472 (Uttering 
counterfeit obligations or securities). As a clerical change, the 
definition is moved from Application Note 3 to Application Note 1.
    The proposed amendment also amends the enhancement at subsection 
(b)(2)(B) to cover a case in which the defendant controlled or 
possessed genuine United States currency paper from which the ink or 
other distinctive counterfeit deterrent has been completely or 
partially removed.
    In addition, the proposed amendment amends Appendix A (Statutory 
Index) by striking the alternative reference to Sec.  2B1.1 for two 
offenses that do not involve elements of fraud.
    Specifically, the amendment deletes alternative reference to Sec.  
2B1.1 for offenses under 18 U.S.C. 474A (Deterrents to counterfeiting 
of obligations and securities) and 476 (Taking impressions of tools 
used for obligations or securities). As a result, these offenses would 
be referenced solely to Sec.  2B5.1. A conforming change is made to 
delete these offenses from the list of statutory provisions in Sec.  
2B1.1.
    Proposed Amendment:
    Section 2B5.1(b)(2)(B) is amended by inserting ``(ii) genuine 
United States currency paper from which the ink or other distinctive 
counterfeit deterrent has been completely or partially removed;'' after 
``paper;'' and by striking ``or (ii)'' and inserting ``or (iii)''.
    The Commentary to Sec.  2B5.1 captioned ``Application Notes'' is 
amended in Note 1 by inserting after the paragraph that begins 
``Definitions.--'' the following:
    `` `Counterfeit' refers to an instrument that has been falsely 
made, manufactured, or altered. For example, an instrument that has 
been falsely made or manufactured in its entirety is `counterfeit', as 
is a genuine instrument that has been falsely altered (such as a 
genuine $5 bill that has been altered to appear to be a genuine $100 
bill).''.
    The Commentary to Sec.  2B5.1 captioned ``Application Notes'' is 
amended by striking Note 3 in its entirety and by redesignating Note 4 
as Note 3.
    Appendix A (Statutory Index) is amended in the line referenced to 
18 U.S.C. 474A by striking ``2B1.1,''; and in the line referenced to 18 
U.S.C. Sec.  476 by striking ``2B1.1,''.

10. Technical

    Synopsis of Proposed Amendment: This proposed amendment is a multi-
part amendment that makes various technical and conforming changes to 
the guidelines.
    Part A of the proposed amendment addresses several cases in which 
the guidelines refer to another guideline, or to a statute or rule, but 
the reference has become incorrect or obsolete. First, the proposed 
amendment makes technical changes in Sec.  1B1.8 (Use of Certain 
Information) to address the fact that provisions that had been 
contained in subsection (e)(6) of Rule 11 of the Federal Rules of 
Criminal Procedure are now contained in subsection (f) of that rule. 
Second, it makes a technical change in Sec.  2J1.1 (Contempt), 
Application Note 3, to address the fact that the provision that had 
been contained in subsection (b)(7)(C) of Sec.  2B1.1 (Theft, Property 
Destruction, and Fraud) is now contained in subsection (b)(8)(C) of 
that guideline. Third, it makes a technical change in Sec.  4B1.2 
(Definitions of Terms used in Section 4B1.1), Application Note 1, 
fourth paragraph, to address the fact that the offense that had been 
contained in subsection (d)(1) of 21 U.S.C. 841 is now contained in 
subsection (c)(1) of that section. Fourth, it makes technical changes 
in Sec.  5C1.2 (Limitation on Applicability of Statutory Minimum 
Sentences in Certain Cases), Application Note 8, to address the fact 
that subsections (c)(1) and (c)(3) of Rule 32 of the Federal Rules of 
Criminal Procedure are now contained in subsections (f) and (i) of that 
rule. Fifth, it makes a technical change in Sec.  5D1.2 (Term of 
Supervised Release), Commentary, to address the fact that the provision 
that had been contained in subsection (b) of Sec.  5D1.2 is now 
contained in subsection (c) of that guideline. Sixth, it makes a 
technical change in Appendix A (Statutory Index) to address the fact 
that the offense that had been contained at subsection (f) of 42 U.S.C. 
3611 is now contained in subsection (c) of that section.
    Part B of the proposed amendment resolves certain technical issues 
that have arisen in the Guidelines Manual with respect to child 
pornography offenses. First, the proposed amendment makes technical 
changes in Sec.  2G2.1, Statutory Provisions, to address the fact that 
only some, not all, offenses under 18 U.S.C. 2251 are referenced to 
Sec.  2G2.1. Second, it makes technical changes in Sec.  2G2.2, 
Statutory Provisions, to address the fact that offenses under section 
2252A(g) are now covered by Sec.  2G2.6, while offenses under section 
2252A(a) and (b) continue to be covered by Sec.  2G2.2. Third, it makes 
similar technical changes in Sec.  2G2.2, Application Note 1, to 
address this fact. Fourth, it makes a technical change in Sec.  2G2.3, 
Commentary, to address the fact that the statutory minimum sentence for 
a defendant convicted under 18 U.S.C. 2251A is now 30 years 
imprisonment. Fifth, it makes technical changes in Sec.  2G3.1, 
subsection (c)(1), to address the fact that Sec.  2G2.4 no longer 
exists, having been consolidated into Sec.  2G2.2 effective November 1, 
2004. Sixth, it makes a technical change in Appendix A (Statutory 
Index) to address the fact that the offenses that had been contained in 
subsections (c)(1)(A) and (c)(1)(B) of 18 U.S.C. 2251 are now contained 
in subsections (d)(1)(A) and (d)(1)(B) of that section. As a conforming 
change, it also provides the appropriate reference for the offense that 
is now contained in subsection (c) of that section. Seventh, it makes a 
technical change in Appendix A (Statutory Index) to address the fact 
that offenses under section 2252A(g) are now covered by Sec.  2G2.6, 
while offenses under section 2252A(a) and (b) continue to be covered by 
Sec.  2G2.2.
    Proposed Amendment:
    Part A (Technical Issues With Respect to References to Guidelines, 
Statutes, and Rules):
    The Commentary to Sec.  1B1.8 captioned ``Application Notes'' is 
amended in Note 3 by striking ``(e)(6) (Inadmissibility of Pleas,'' and 
inserting ``(f) (Admissibility or Inadmissibility of a Plea,''.
    The Commentary to Sec.  2J1.1 captioned ``Application Notes'' is 
amended in Note 3 by striking ``(7)'' and inserting ``(8)''.
    The Commentary to Sec.  4B1.2 captioned ``Application Notes'' is 
amended in Note 1 in the paragraph that begins ``Unlawfully possessing 
a listed'' by striking ``(d)'' and inserting ``(c)''.
    The Commentary to Sec.  5C1.2 captioned ``Application Notes'' is 
amended in Note 8 by striking ``(c)(1), (3)'' and inserting ``(f), 
(i)''.
    The Commentary to Sec.  5D1.2 captioned ``Background'' is amended 
by striking ``(b)'' and inserting ``(c)''.
    Appendix A (Statutory Index) is amended in the line referenced to 
42 U.S.C. 3611(f) by striking ``(f)'' and inserting ``(c)''.
    Part B (Technical Issues With Respect to Child Pornography 
Offenses):

[[Page 4823]]

    The Commentary to Sec.  2G2.1 captioned ``Statutory Provisions'' is 
amended by inserting ``(a)-(c), 2251(d)(1)(B)'' after ``2251''.
    The Commentary to Sec.  2G2.2 captioned ``Statutory Provisions'' is 
amended by inserting ``(a)-(b)'' after ``2252A''.
    The Commentary to Sec.  2G2.2 captioned ``Application Notes'' is 
amended in Note 1 in the last paragraph by inserting ``(a)-(c), Sec.  
2251(d)(1)(B)'' after ``2251''.
    The Commentary to Sec.  2G2.3 captioned ``Background'' is amended 
by striking ``twenty'' and inserting ``thirty''.
    Section 2G3.1(c)(1) is amended by inserting ``Soliciting,'' after 
``Shipping,''; by striking ``Traffic) or Sec.  2G2.4 (Possession of 
Materials Depicting a Minor Engaged in Sexually Explicit Conduct), as 
appropriate.'' and inserting ``Traffic; Possessing Material Involving 
the Sexual Exploitation of a Minor).''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. 2251(a),(b) the following:

``18 U.S.C. 2251(c) 2G2.2'';

    in the line referenced to 18 U.S.C. 2251(c)(1)(A) by striking 
``(c)'' and inserting ``(d)'';
    in the line referenced to 18 U.S.C. 2251(c)(1)(B) by striking 
``(c)'' and inserting ``(d)'';
    in the line referenced to 18 U.S.C. 2252A by inserting ``(a), (b)'' 
after ``2252A'';
    and by inserting before the line referenced to 18 U.S.C.2252B the 
following:
``18 U.S.C. 2252A(g) 2G2.6''.

 [FR Doc. E9-1642 Filed 1-26-09; 8:45 am]
BILLING CODE 2210-40-P