[Federal Register: January 30, 2007 (Volume 72, Number 19)] [Notices] [Page 4371-4398] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr30ja07-132] [[Page 4371]] ----------------------------------------------------------------------- Part III United States Sentencing Commission ----------------------------------------------------------------------- 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; Notice [[Page 4372]] ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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 provides multiple issues for comment, some of which are contained within proposed amendments. The specific proposed amendments and issues for comment in this notice are as follows: (A) Proposed amendment to Sec. Sec. 2A1.1 (First Degree Murder), 2A1.2 (Second Degree Murder), 2A1.3 (Voluntary Manslaughter), 2A1.4 (Involuntary Manslaughter), 2A2.1 (Assault with Intent to Commit Murder; Attempted Murder), 2A2.2 (Aggravated Assault), 2A2.3 (Minor Assault), 2A2.4 (Obstructing or Impeding Officers), 2A5.2 (Interference with Flight Crew Member or Flight Attendant; Interference with Dispatch, Operation, or Maintenance of Mass Transportation Vehicle or a Ferry), 2A6.1 (Threatening or Harrassing Communications; Hoaxes), 2B1.1 (Fraud, Theft, and Property Damage), 2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right; Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials; Conspiracy to Defraud by Interference with Governmental Functions), 2B2.3 (Trespass), 2K1.4 (Arson; Property Damage by Use of Explosives), 2M6.1 (Nuclear, Biological, and Chemical Weapons, and Other Weapons of Mass Destruction), 2Q1.1 (Knowing Endangerment Resulting From Mishandling Hazardous or Toxic Substances, Pesticides or Other Pollutants), 2X1.1 (Attempt, Solicitation, or Conspiracy (Not Covered by a Specific Offense Guideline)), 2X5.2 (Class A Misdemeanor Offenses (Not Covered by a Specific Offense Guideline)), Appendix A, and issues for comment regarding implementation of the USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. 109-177 (hereinafter the ``PATRIOT Act'') and the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, Pub. L. 109-59, as these laws pertain to transportation offenses; (B) proposed amendment to Chapter Two, Parts A and G, Sec. Sec. 2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse), 2A3.3 (Criminal Sexual Abuse of a Ward or Attempt to Commit Such Acts), 2A3.4 (Abusive Sexual Contact or Attempt to Commit Abusive Sexual Contact), 2G1.1 (Promoting a Commercial Sex Act or Prohibited Sexual Conduct with an Individual Other than a Minor), 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), 2G2.5 (Recordkeeping Offenses Involving the Production of Sexually Explicit Materials; Failure to Provide Required Marks in Commercial Electronic Email), 2G3.1 (Importing, Mailing, or Transporting Obscene Matter; Transferring Obscene Matter to a Minor; Misleading Domain Names), 2H3.1 (Interception of Communications; Eavesdropping; Disclosure of Tax Return Information), 2J1.2 (Obstruction of Justice), 4B1.5 (Repeat and Dangerous Sex Offender Against Minors), 5B1.3 (Conditions of Probation), 5D1.2 (Term of Supervised Release), 5D1.3 (Conditions of Supervised Release), Appendix A, and issues for comment regarding implementation of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. 109-248 (hereinafter the ``Adam Walsh Act''); (C) proposed amendment to re-promulgate as a permanent amendment the temporary, emergency amendment to Sec. 2B5.3 (Criminal Infringement of Copyright or Trademark), effective September 12, 2006 (see USSG Supplement to Appendix C (Amendment 682)), and issues for comment regarding implementation of the Stop Counterfeiting in Manufactured Goods Act, Pub. L. 109-181; (D) proposed amendment to Chapter Two, Parts D and X, Sec. Sec. 2A1.1, 2A1.2, 2B1.1, 2B1.5 (Theft of, Damage to, or Destruction of Cultural Heritage Resources; Unlawful Sale, Purchase, Exchange, Transportation, or Receipt of Cultural Heritage Resources), 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy), 2E4.1 (Unlawful Conduct Relating to Contraband Cigarettes), 2K1.3 (Unlawful Receipt, Possession, or Transportation of Explosive Materials; Prohibited Transactions Involving Explosive Materials), 2K1.4, 2M5.3 (Providing Material Support or Resources to Designated Foreign Terrorism Organizations of For a Terrorist Purpose), 2M6.1, 2Q2.1 (Offenses Involving Fish, Wildlife, and Plants), 2X1.1, 2X2.1 (Aiding and Abetting), 2X3.1 (Accessory After the Fact), Appendix A, and issues for comment regarding implementation of the PATRIOT Act and the Department of Homeland Security Appropriations Act, 2007, Pub. L. 109-295, as these laws pertain to terrorism offenses and border protection; (E) proposed amendment to Sec. Sec. 2D1.1, 2D1.11 (Unlawfully Distributing, Importing, Exporting, or Possessing a Listed Chemical; Attempt or Conspiracy), Appendix A (Statutory Index), and issues for comment regarding implementation of the PATRIOT Act and the Adam Walsh Act as these laws pertain to drug offenses; (F) proposed amendment to Sec. Sec. 2L1.1 (Smuggling, Transporting, or Harboring an Unlawful Alien), 2L1.2 (Unlawfully Entering or Remaining in the United States), 2L2.1 (Trafficking in a Document Relating to Naturalization, Citizenship, or Legal Resident Status, or a United States Passport; False Statement in Respect to the Citizenship or Immigration Status of Another; Fraudulent Marriage to Assist Alien to Evade Immigration Law), and 2L2.2 (Fraudulently Acquiring Documents Relating to Naturalization, Citizenship, or Legal Resident Status for Own Use; False Personation or Fraudulent Marriage by Alien to Evade Immigration Law; Fraudulently Acquiring or Improperly Using a United States Passport); (G)(1) proposed amendment to Sec. 2B2.3 (Trespass) to implement the Respect for America's Fallen Heroes Act, Pub. L. 109-228; (2) proposed amendment to Sec. 2H3.1 to implement the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. 109-162; and (3) issue for comment regarding implementation of the SAFE Port Act, Pub. L. 109-347; (H) proposed amendment to (1) Sec. Sec. 2B1.1, 2D1.11, 2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition), and 2L1.1 to correct typographical errors; and (2) Chapter Three, Part D (Introductory Commentary) and Sec. 3D1.1 (Procedure for Determining Offense Level on Multiple Counts) to address cases involving multiple counts contained in multiple indictments; (I) [[Page 4373]] issue for comment regarding Sec. 1B1.13 (Reduction in Term of Imprisonment as a Result of Motion by Director of Bureau of Prisons); (J) issues for comment regarding application of certain criminal history rules under Sec. 4A1.2 (Definitions and Instructions for Computing Criminal History); (K) issue for comment regarding implementation of section 4 of the Telephone Records and Privacy Protection Act of 2006, Pub. L. 109-476, which provides the Commission with emergency amendment authority to amend the guidelines applicable to persons convicted of an offense under 18 U.S.C. Sec. 1039; and (L) issue for comment regarding federal cocaine sentencing policy. DATES: (A) Proposed Amendments.--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, 2007. (B) Public Hearing.--The Commission will be scheduling a public hearing on its proposed amendments. Further information regarding the public hearing, including requirements for testifying and providing written testimony, as well as the date 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) 502-4597. SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is an independent agency in the judicial branch of the United States Government. The Commission promulgates sentencing guidelines and policy statements for federal courts pursuant to 28 U.S.C. 994(a). The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. 994(o) and submits guideline amendments to the Congress not later than the first day of May of each year pursuant to 28 U.S.C. 994(p). The Commission seeks comment on the proposed amendments, issues for comment, and any other aspect of the sentencing guidelines, policy statements, and commentary. In addition to the issues for comment presented in the proposed amendments, the Commission requests comment regarding simplification of the guidelines. Specifically, with respect to the guidelines that are the subject of the following proposed amendments, should the Commission make additional amendments to simplify those guidelines and, if so, how? 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). 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. 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. Sec. 994(a), (o), (p), (x); USSC Rules of Practice and Procedure, Rule 4.4. Ricardo H. Hinojosa, Chair. 1. Transportation Synopsis of Proposed Amendment: This proposed amendment implements a number of provisions of the USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. 109-177 (hereinafter ``PATRIOT Act'') and the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, Pub. L. 109-59 (hereinafter ``SAFETEA- LU''). The proposed amendments also provide a corresponding amendment to Appendix A (Statutory Index). Specifically: (A) Section 110 of the PATRIOT Act strikes 18 U.S.C. Sec. Sec. 1992 and 1993 and creates a new section 1992 (Terrorist attacks and other violence against railroad carriers and against mass transportation systems on land, on water, or through the air). The legislation creates a statutory maximum term of imprisonment of 20 years and includes a penalty of imprisonment for any years or life or, if the offense resulted in the death of any person, the defendant may be sentenced to death. There are exceptions to the life and death sentences for cases of surveillance, conveying false information, or attempting, threatening, or conspiring to engage in any violation under this section. The statute also contains aggravated offenses. First, a sentence of life or death may be imposed when the offense involved railroad on-track equipment or a mass transportation vehicle carrying a passenger or employee, or carrying hazardous material, or both. Second, a life or death sentence may be given if the offense was committed with the intent to endanger the safety of any person, or with a reckless disregard for the safety of any person, when the railroad on-track equipment or mass transportation vehicle was carrying a defined hazardous material at the time of the offense. The proposed amendment updates all references to 18 U.S.C. 1992 and eliminates all references to 18 U.S.C. 1993. The proposed amendment also adds 18 U.S.C. 1992 to the referenced statutory provisions in Sec. Sec. 2A1.1 (First Degree Murder), 2A2.1 (Assault with Intent to Commit Murder; Attempted Murder), and 2A5.2 (Interference with Flight Crew Member or Flight Attendant; Interference with Dispatch, Operation, or Maintenance of Mass Transportation Vehicle or a Ferry). Additionally, the amendment adjusts the definition of ``mass transportation'' in Sec. Sec. 2A1.4, 2A5.2, and 2K1.4 (Arson; Property Damage by Use of Explosives) to reflect the new defining section, 18 U.S.C. 1992(d)(7). Also proposed is the addition of ``Navigation'' to the title and text of Sec. 2A5.2 to better reflect the full scope of the newly created 18 U.S.C. 1992. (B) Section 302 of the PATRIOT Act increases the scope of 18 U.S.C. 1036 (Entry by false pretenses to any real property, vessel, or aircraft of the United States or secure area of any airport) by [[Page 4374]] adding to the areas protected from illegal entry under this title secure and restricted areas of a seaport. Section 302 also increases the statutory maximum penalty from five years to ten years. The proposed amendment refers this offense to Sec. 2B2.3(b)(1) and adds seaports to the list of protected areas warranting a two-level enhancement. The amendment also adds a definition for ``seaport'', as one does not currently exist in the guidelines. (C) Section 303 of the PATRIOT Act adds a new offense at 18 U.S.C. 2237 (Criminal sanctions for failure to heave to, obstruction of boarding, or providing false information). This new statute makes it a crime to refuse to stop a vessel in violation of a federal law enforcement officer's order or to provide materially false information to a federal law enforcement officer during a boarding of a vessel. The proposed amendment references this new offense to Sec. Sec. 2A2.4 (Obstructing or Impeding Officers) and 2B1.1 (Fraud, Theft, and Property Damage). (D) Section 306 of the PATRIOT Act provides new offenses in 18 U.S.C. 2291 (Destruction of vessel or maritime facility) and 2292 (Imparting or conveying false information). Section 2291 of title 18, United States Code, covers the destruction of vessels and maritime facilities and creates a statutory maximum term of imprisonment of 20 years. If the conduct under this section involves a vessel carrying nuclear or radioactive waste, a statutory maximum life sentence applies, and if death results, a life or death sentence is possible. Section 2292 of title 18, United States Code, prohibits providing false information regarding an attempt or alleged attempt to commit a crime and provides a statutory maximum sentence of five years. The proposed amendment references 18 U.S.C. 2291 to 2A1.1 (First Degree Murder), 2A1.2 (Second Degree Murder), 2A1.3 (Voluntary Manslaughter), 2A1.4 (Involuntary Manslaughter), 2A2.1 (Assault with Intent to Commit Murder; Attempted Murder), 2A2.2 (Aggravated Assault), 2A2.3 (Minor Assault), 2A6.1 (Threatening or Harrassing Communications; Hoaxes), 2B1.1 (Fraud, Theft, and Property Damage), 2K1.4 (Arson; Property Damage by Use of Explosives) and 2M6.1 (Nuclear, Biological, and Chemical Weapons, and Other Weapons of Mass Destruction). Section 2292 of title 18, United States Code, is referenced to Sec. 2A6.1. (E) Section 307(c) of the PATRIOT Act directs the Commission to review the guidelines to determine whether a sentencing enhancement is appropriate for any offense under sections 659 or 2311 of title 18, United States Code. The proposed amendment provides two options to respond to this directive. Option 1 amends Sec. 2B1.1(b)(4) to provide an alternative enhancement if the defendant was convicted under 18 U.S.C. 659. An issue for comment also requests input regarding whether any such enhancement should include convictions under 18 U.S.C. 2312 and 2313. Option 2 responds to the directive by revising Sec. 2B1.1(b)(11). Currently this section provides a minimum offense level of 14 for offenses involving an organized scheme to steal vehicles or vehicle parts. The proposed amendment adds convictions under 18 U.S.C. 659 to this section and also provides a two-level increase for all cases covered under the subsection. (F) Section 308 of the PATRIOT Act increases the statutory maximum penalties for 18 U.S.C. 2199 (Stowaways on vessels or aircraft). Absent any aggravating factors, the statutory maximum for offenses is increased from one year to five years. Section 308 adds a statutory maximum of 20 years if a person acts with the intent to commit serious bodily injury and serious bodily injury occurs. For offenses involving the intent to kill and death occurs, section 308 also adds a penalty of imprisonment for any term of years, including life or death. The proposed amendment references 18 U.S.C. 2199 to 2A1.1 (First Degree Murder), 2A1.2 (Second Degree Murder), 2A1.3 (Voluntary Manslaughter), 2A1.4 (Involuntary Manslaughter), 2A2.1 (Assault with Intent to Commit Murder; Attempted Murder), 2A2.2 (Aggravated Assault), and 2A2.3 (Minor Assault). (G) Section 4210 of SAFETEA-LU creates a new offense at 49 U.S.C. 14915 for failure to release household goods with a statutory maximum of two years. The proposed amendment references this section to Sec. 2B1.1 as it is the most analogous guideline. (H) Section 4102(b) of SAFETEA-LU creates a new criminal violation for violating a commercial motor vehicle's out-of-service order. The offense carries a statutory maximum of one year. The proposed amendment references this section to Sec. 2X5.2 (Class A Misdemeanor (Not Covered by Another Specific Offense Guideline)). The proposed amendment also includes five issues for comment pertaining to the following: (1) Section 7121 of SAFETEA-LU creates a new aggravated felony under 49 U.S.C. 5124 that carries a statutory maximum of 10 years when conduct under the section results in the release of a hazardous material that causes bodily injury or death. Appendix A (Statutory Index) currently references 49 U.S.C. 5124 to Sec. 2Q1.2 (Mishandling of Hazardous or Toxic Substances or Pesticides; Recordkeeping, Tampering, and Falsification; Unlawfully Transporting Hazardous Materials in Commerce). An issue for comment asks whether penalties under Sec. 2Q1.2 are adequate for the new offense. (2) The proposed amendment adds seaports to the two-level enhancement in Sec. 2B2.3(b)(1). Section 2B2.3(c) also provides a cross reference if the offense was committed with the intent to commit another criminal offense. An issue for comment asks whether, as an alternative to the cross reference provision and as a possible means of simplifying this guideline, it should amend Sec. 2B2.3 (Trespass) to provide instead a general specific offense characteristic for any trespass offense that was committed with the intent to commit another offense. (3) Section 309 of the PATRIOT Act creates a new offense at 18 U.S.C. 226 (Bribery affecting port security), making it a crime to knowingly, and with the intent to commit international or domestic terrorism, bribe a public official to affect port security. It is also a crime under this section to be the recipient of such a bribe in return for being influenced in the performance of public duties affecting port security with the knowledge that such influence will be used to commit or plan to commit an act of terrorism. The proposed amendment references 18 U.S.C. 226 to Sec. 2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right; Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Official; Conspiracy to Defraud by Interference with Governmental Functions). An issue for comment addresses this proposed reference to Sec. 2C1.1 as well as the operation of the cross reference in Sec. 2C1.1(c)(1) in cases involving an intent to commit an act of international or domestic terrorism. (4) Whether the Commission should use the term ``mass transportation'' or ``public transportation'' in the context of Sec. 2A5.2 and other guidelines. (5) The proposed amendment provides options for increasing penalties for offenses under 18 U.S.C. 659. An issue for comment asks whether the Commission also should provide similar increases for offenses under 18 U.S.C. 2312 (Transportation of stolen vehicles) and 2313 (Sale or receipt of stolen vehicles). [[Page 4375]] Proposed Amendment The Commentary to Sec. 2A1.1 captioned ``Statutory Provisions'' is amended by inserting ``1992(a)(7),'' after ``1841(a)(2)(C),''; and by inserting ``2199, 2291,'' after ``2118(c)(2),''. The Commentary to Sec. 2A1.2 captioned ``Statutory Provisions'' is amended by inserting ``2199, 2291,'' after ``1841(a)(2)(C),''. The Commentary to Sec. 2A1.3 captioned ``Statutory Provisions'' is amended by inserting ``2199, 2291,'' after ``1841(a)(2)(C),''. The Commentary to Sec. 2A1.4 captioned ``Statutory Provisions'' is amended by inserting ``2199, 2291,'' after ``1841(a)(2)(C),''. The Commentary to Sec. 2A1.4 captioned ``Application Note'' is amended in Note 1 by striking ``18 U.S.C. 1993(c)(5)'' and inserting ``18 U.S.C. 1992(d)(7)''. The Commentary to Sec. 2A2.1 captioned ``Statutory Provisions'' is amended by striking ``1993(a)(6)'' and inserting ``1992(a)(7), 2199, 2291''. The Commentary to Sec. 2A2.2 captioned ``Statutory Provisions'' is amended by striking ``1993(a)(6)'' and inserting ``1992(a)(7), 2199, 2291''. The Commentary to Sec. 2A2.3 captioned ``Statutory Provisions'' is amended by inserting ``, 2199, 2291'' after ``1751(e)''. The Commentary to Sec. 2A2.4 captioned ``Statutory Provisions'' is amended by inserting ``2237(a)(1), (a)(2)(A),'' after ``1502,''. Section 2A5.2 is amended in the heading by inserting ``Navigation,'' after ``Dispatch,''; and by striking ``or Ferry''. Sections 2A5.2(a)(1) and (a)(2) are amended by striking the comma after ``facility'' each place it appears and inserting ``or''; and by striking ``, or a ferry'' each place it appears. The Commentary to Sec. 2A5.2 captioned ``Statutory Provisions'' is amended by striking ``1993(a)(4), (5), (6), (b);'' and inserting ``1992(a)(1), (a)(4), (a)(5), (a)(6);''. The Commentary to Sec. 2A5.2 captioned ``Application Note'' is amended in Note 1 in the last paragraph by striking ``18 U.S.C. 1993(c)(5)'' and inserting ``18 U.S.C. 1992(d)(7)''. The Commentary to Sec. 2A6.1 captioned ``Statutory Provisions'' is amended by striking ``1993(a)(7), (8),'' and inserting ``1992(a)(9), (a)(10), 2291(a)(8), 2291(e), 2292,''. [Option 1 (Section 659 offenses) Section 2B1.1 is amended in subsection (b)(4) by inserting ``(A)'' before ``offense involved''; and by striking ``property, increase'' and inserting ``; or (B) defendant was convicted under 18 U.S.C. Sec. increase''.] The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is amended in Note 5 by inserting ``(A)'' after ``(b)(4)'' each place it appears.] [Option 2 (Section 659 offenses) Section 2B1.1 is amended in subsection (b)(11) by inserting ``(A)'' before ``offense involved''; and by striking ``, and'' and inserting ``; or (B) defendant was convicted under 18 U.S.C. 659, increase by 2 levels. If''.] The Commentary to Sec. 2B1.1 captioned ``Statutory Provisions'' is amended by inserting ``(a)(1), (a)(5)'' after ``1992''; by striking ``1993(a)(1), (a)(4),''; by inserting ``2291,'' after ``2113(b),''; and by inserting ``14915,'' after ``49 U.S.C. Sec. Sec. ''. The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is amended by striking Note 10 and inserting the following: ``10. Application of Subsection (b)(11).--Subsection (b)(11) provides a minimum offense level in the case of an ongoing, sophisticated operation (such as an auto theft ring or 'chop shop') to steal vehicles or vehicle parts, or to receive stolen vehicles or vehicle parts. This subsection also applies if the defendant was convicted of cargo theft under 18 U.S.C. 659. For purposes of this subsection, 'vehicle' means motor vehicle, vessel, or aircraft.''. The Commentary to Sec. 2B1.1 captioned ``Background'' is amended in the paragraph that begins ``A minimum offense level of level 14'' by striking ``Therefore, the'' and inserting ``The''; by inserting ``in subsection (b)(11)(A)'' after ``is used''; and by adding at the end the following: ``The minimum offense level also applies to convictions under 18 U.S.C. 659 for offenses involving cargo theft. Subsection (b)(11)(B) implements the directive in section 307 of Public Law 109-177.''.] Section 2B2.3 is amended in subsection (b)(1) by striking ``secured'' each place it appears and inserting ``secure''; by redesignating subdivisions (E) and (F) as subdivisions (F) and (G), respectively; and by inserting the following after ``airport;'': ``(E) in a secure area within a seaport;''. The Commentary to Sec. 2B2.3 captioned ``Statutory Provisions'' is amended by inserting ``, 2199'' after ``1036''. The Commentary to Sec. 2B2.3 captioned ``Application Notes'' is amended in Note 1 by adding at the end the following: `` `Seaport' has the meaning given that term in 18 U.S.C. 26.''. The Commentary to Sec. 2B2.3 captioned ``Background'' is amended by striking ``, such as nuclear facilities,'' and inserting ``(such as nuclear facilities) and other locations (such as airports and seaports)''. The Commentary to Sec. 2C1.1 captioned ``Statutory Provisions'' is amended by inserting ``226,'' after ``Sec. Sec. 201(b)(1), (2),''. The Commentary to Sec. 2K1.4 captioned ``Statutory Provisions'' is amended by inserting ``(a)(1), (a)(2), (a)(4)'' after ``1992''; by striking ``1993(a)(1), (a)(2), (a)(3), (b),''; and by inserting ``2291,'' after ``2275''. The Commentary to Sec. 2K1.4 captioned ``Application Notes'' is amended in Note 1 by striking ``18 U.S.C. 1993(c)(5)'' and inserting ``18 U.S.C. 1992(d)(7)''. The Commentary to Sec. 2M6.1 captioned ``Statutory Provisions'' is amended by striking ``1993(a)(2), (3), (b), 2332a (only with respect to weapons of mass destruction as defined in 18 U.S.C. 2332a(c)(2)(B), (C), and (D))'' and inserting ``1992(a)(2), (a)(3), (a)(4), (b)(2), 2291,''. The Commentary to Sec. 2Q1.1 captioned ``Statutory Provisions'' is amended by inserting ``18 U.S.C. 1992(b)(3);'' before ``33 U.S.C. 1319(c)(3);''. Section 2X1.1 is amended in subsection (d)(1)(A) by inserting ``(a)(1)-(a)(7), (a)(9), (a)(10)'' after ``1992;''; and in subsection (d)(1)(B) by inserting ``and'' after ``Sec. 32;''; and by striking ``18 U.S.C. 1993; and''. The Commentary to Sec. 2X5.2 captioned ``Statutory Provisions'' is amended by inserting ``; 49 U.S.C. 31310'' after ``14133''. Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. 225 the following: ``18 U.S.C. 226 2C1.1''; by inserting after the line referenced to 18 U.S.C. 1035 the following: ``18 U.S.C. 1036 2B2.3''; by striking the line referenced to 18 U.S.C. 1992 through the end of the line referenced to 18 U.S.C. 1993(b) and inserting the following: ``18 U.S.C. 1992(a)(1)--2A5.2, 2B1.1, 2K1.4, 2X1.1 18 U.S.C. 1992(a)(2)--2K1.4, 2M6.1, 2X1.1 18 U.S.C. 1992(a)(3)--2M6.1, 2X1.1 18 U.S.C. 1992(a)(4)--2A5.2, 2K1.4, 2M6.1, 2X1.1 18 U.S.C. 1992(a)(5)--2A5.2, 2B1.1, 2X1.1 18 U.S.C. 1992(a)(6)--2A5.2, 2X1.1 18 U.S.C. 1992(a)(7)--2A1.1, 2A2.1, 2A2.2, 2X1.1 18 U.S.C. 1992(a)(8)--2X1.1 18 U.S.C. 1992(a)(9)--2A6.1, 2X1.1 18 U.S.C. 1992(a)(10)--2A6.1, 2X1.1''; in the line referenced to 18 U.S.C. 2199 by inserting ``2A1.1, 2A1.2, 2A1.3, [[Page 4376]] 2A1.4, 2A2.1, 2A2.2, 2A2.3,'' before ``2B1.1''; by inserting after the line referenced to 18 U.S.C. 2233 the following: ``18 U.S.C. 2237(a)(1), (a)(2)(A)--2A2.4 18 U.S.C. 2237(a)(2)(B)--2B1.1''; by inserting after the line referenced to 18 U.S.C. Sec. 2281 the following: ``18 U.S.C. 2291--2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.1, 2A2.2, 2A2.3, 2A6.1, 2B1.1, 2K1.4, 2M6.1 18 U.S.C. 2292--2A6.1''; by inserting after the line referenced to 49 U.S.C. 14912'' the following: ``49 U.S.C. 14915--2B1.1''; and by inserting after the line referenced to 49 U.S.C. 30170'' the following: ``49 U.S.C. 31310--2X5.2''. Issues for Comment 1. The SAFETEA-LU Act, Pub. L. 109-59, amended 49 U.S.C. 5124 to provide a new aggravated felony, with a 10-year statutory maximum term of imprisonment, for cases involving a release of a hazardous material that results in death or bodily injury. Appendix A (Statutory Index) references 49 U.S.C. Sec. 5124 to Sec. 2Q1.2 (Mishandling of Hazardous or Toxic Substances or Pesticides; Recordkeeping, Tampering, and Falsification; Unlawfully Transporting Hazardous Materials in Commerce). In 2004 the Commission amended Sec. 2Q1.2 to provide a two- level enhancement in Sec. 2Q1.2(b)(7) for defendants convicted of 49 U.S.C. 5124 or 46312 because ``[t]hese offenses pose an inherent risk to large populations in a manner not typically associated with other pollution offenses sentenced under the same guideline. See USSG App. C (Amendment 672) (effective Nov. 1, 2004). In addition to application of Sec. 2Q1.2(b)(7), a defendant convicted of 49 U.S.C. 5124 likely would receive a four-level enhancement under Sec. 2Q1.2(b)(1)(B) for a release of a hazardous substance (because the offense of conviction necessarily involves such a release) and a nine-level enhancement for the substantial likelihood of death or serious bodily injury under Sec. 2Q1.2(b)(2). When added to the Base Offense Level of 8, the minimum offense level under Sec. 2Q1.2 would be level 23 (46-57 months at CHC I). Further, Application Note 6 states that an upward departure would be warranted in any case in which death or serious bodily injury results. The Commission requests comment regarding whether Sec. 2Q1.2 currently provides adequate penalties for a defendant convicted under 49 U.S.C. 5124. If not, how should the Commission amend Sec. 2Q1.2 to address adequately these offenses? For example, should the Commission provide an enhancement greater than two levels for such offenses? Should the Commission provide a minimum offense level for 49 U.S.C. 5124 offenses that actually result in death or serious bodily injury? 2. The USA PATRIOT Improvement and Reauthorization Act of 2005, Public Law 109-177, amended 18 U.S.C. 1036 to add seaports to the list of covered locations and to increase the statutory maximum term of imprisonment from 5 years to 10 years. The proposed amendment adds seaports to the two-level enhancement in Sec. 2B2.3(b)(1). Section 2B2.3 (Trespass) also provides a cross reference in subsection (c) if the offense was committed with the intent to commit a felony offense. The Commission requests comment regarding whether, as an alternative to the cross reference provision, and as a possible means of simplifying this guideline, it should amend Sec. 2B2.3 to provide instead a general specific offense characteristic for any trespass offense that was committed with the intent to commit a felony. If so, how many levels would be appropriate? Should the Commission consider amending Sec. 2B2.3(b)(1) to provide an additional increase if the trespass on any of the enumerated locations was committed with the intent to commit a felony offense? 3. The USA PATRIOT Improvement and Reauthorization Act provided a new offense at 18 U.S.C. 226 for bribery affecting port security. The provision criminalizes bribery with the intent to commit international terrorism or domestic terrorism and provides a statutory maximum term of imprisonment of 15 years. In general, the guidelines reference bribery offenses to Sec. 2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right; Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials; Conspiracy to Defraud by Interference with Governmental Functions), which provides alternative base offense levels of 14, if the defendant was public official, or 12, otherwise. Section 2C1.1(c)(1) provides a cross reference if the offense was committed for the purpose of facilitating the commission of another criminal offense (and the guideline applicable to a conspiracy to commit that other offense results in a greater offense level than Sec. 2C1.1). The Commission requests comment regarding whether it should reference 18 U.S.C. Sec. 226 to Sec. 2C1.1 and, if so, whether the cross reference provision is a sufficient means of handling bribery cases involving an intent to commit an act of international or domestic terrorism. If the offense is referenced to Sec. 2C1.1, should the Commission, as an alternative to the cross reference provision and as a possible means of simplifying this guideline, provide a specific offense characteristic for convictions of 18 U.S.C. 226 that results in an offense level proportionate to other terrorism-related offenses (e.g., providing a minimum offense level of 26 would provide parity with offenses sentenced under Sec. 2M5.3 (Providing Material Support or Resources to Designated Foreign Terrorist Organizations or for a Terrorist Purpose)). Alternatively, should the Commission reference 18 U.S.C. 226 to 2M5.3? 4. In addition to consolidating 18 U.S.C. 1992 and 1993, the USA PATRIOT Improvement and Reauthorization Act replaced the term ``public transportation'' (added by the SAFETEA-LU Act) with ``mass transportation'' (the term used in 18 U.S.C. 1992 prior to SAFETEA-LU). ``Mass transportation'' now is defined at 18 U.S.C. 1992(d)(7) to have the same meaning as ``public transportation'' (defined at 49 U.S.C. 5302(a)(7)) except that, for purposes of 18 U.S.C. 1992, ``mass transportation'' includes school bus, charter, sightseeing transportation, and passenger vessel. School bus and charter are otherwise expressly excluded from the definition of ``public transportation'' as are intercity bus transportation and intercity passenger rail transportation. The Commission requests comment regarding the appropriate term to use in the context of Sec. 2A5.2 (Interference with Flight Crew Member or Flight Attendant; Interference with Dispatch, Operation, or Maintenance of Mass Transportation Vehicle or a Ferry). Specifically, should the Commission use ``mass transportation'' as that term is now defined by 18 U.S.C. 1992(d)(7) (i.e., including school bus, charter, sightseeing transportation and passenger vessel) or use the more limited term ``public transportation'' (i.e., excluding school bus, charter, intercity bus transportation, and intercity passenger rail transportation)? 5. The proposed amendment provides 2 options for amending Sec. 2B1.1 to address 18 U.S.C. 659 (Cargo theft). The Commission requests comment regarding whether, rather than an enhancement based on the statute of conviction, it ought to provide an enhancement based on real offense conduct such as if the offense involved cargo theft. The Commission also requests comment regarding whether it [[Page 4377]] should provide an enhancement for conduct covered by convictions under 18 U.S.C. 2312 (Transportation of stolen vehicles) and 2313 (Sale or receipt of stolen vehicles), either as part of the proposed enhancement for 18 U.S.C. 659 offenses or as a separate enhancement. 2. Sex Offenses Synopsis of Proposed Amendment: This multi-part proposed amendment implements the Adam Walsh Child Protection and Safety Act of 2006, Public Law 109-248. Part I of this proposed amendment implements the directive in section 141 of the Act pertaining to the new offense in 18 U.S.C. 2250 for failure to register as a sex offender. The directive instructs the Commission, in promulgating guidelines for use of a sentencing court in determining the sentence to be imposed for [18 U.S.C. 2250], to consider the following matters: (1) Whether the person committed another sex offense in connection with, or during, the period for which the person failed to register. (2) Whether the person committed an offense against a minor in connection with, or during, the period for which the person failed to register. (3) Whether the person voluntarily attempted to correct the failure to register. (4) The seriousness of the offense which gave rise to the requirement to register, including whether such offense is a tier I, tier II, or tier III offense, as those terms are defined in section 111 [of the Act]. (5) Whether the person has been convicted or adjudicated delinquent for any offense other than the offense which gave rise to the requirement to register. Section 2250 of title 18, United States Code, provides a statutory maximum term of imprisonment of ten years for the failure to register. There is an additional mandatory consecutive term of 5 years' imprisonment applicable if a person commits a crime of violence while in failure to register status (18 U.S.C. 2250(c)). The requirements pertaining to who must register, where the registration must occur, and for how long are set forth in 42 U.S.C. 16911. The proposed amendment provides a new guideline in Sec. 2A3.5 (Failure to Register as a Sex Offender). The proposed amendment presents two options for addressing the fourth matter of the directive. Option One provides multiple base offense levels based on the category of offense that gave rise to the registration requirement: level 16 if the offense that gave rise to the requirement to register was a Tier III offense; level 14 if the offense that gave rise to the requirement to register was a Tier II offense; and level 12 if the offense that gave rise to the requirement to register was a Tier I offense. Option Two provides a base offense level of [12] and a specific offense characteristic in Sec. 2A3.5(b)(1) providing a two-level increase if the offense that gave rise to the requirement to register was a Tier II offense and a four-level increase if the offense that gave rise to the requirement to register was a Tier III offense. The resulting offense level under either option is the same for each tier of offense. The definitions for Tier I, II, and III offenses are the statutory definitions provided in 42 U.S.C. 16911(2), (3), and (4), respectively. The first and second matters are addressed in Sec. 2A3.5(b)(1) of Option One, and in Sec. 2A3.5(b)(2) of Option Two. Both options provide alternative increases based on the type of offense committed while in a failure to register status and on whether that offense was committed against a minor or an adult. The proposed amendment provides a 6-level increase if, while in a failure to register status, the defendant committed a sex offense against an adult, or kidnapped or falsely imprisoned a minor. If the defendant committed a sex offense against a minor, the proposed amendment provides an 8-level increase and a minimum offense level of [24]-[28]. The third matter is addressed in Sec. 2A3.5(b)(2) in Option One, and in Sec. 2A3.5(b)(3) in Option Two. Both options provide a [2][4]- level decrease if the defendant voluntarily attempted to correct the failure to register. Issues for comment 2 and 3 in Part V of the proposed amendment request comment regarding the scope of these proposed enhancements. Issue for comment 3 also asks whether the Commission should include an instruction that the reduction does not apply if any of the proposed specific offense characteristics also apply. The proposed amendment does not specifically address the fifth matter because application of Chapter Four will take into account whether the person has been convicted or adjudicated delinquent for any offense other than the offense which gave rise to the requirement to register. The proposed amendment also provides another new guideline for certain aggravated offenses related to the requirement to register as a sex offender. As noted previously, 18 U.S.C. 2250(c) provides a mandatory consecutive term of 5 years if a crime of violence was committed while the defendant was in a failure to register status. Section 2260A of title 18, United States Code, provides a mandatory consecutive term of 10 years' imprisonment if a person who is required to register commits an enumerated offense (including kidnapping, human trafficking, and various sex offenses). The new guideline, Sec. 2A3.6 (Aggravated Offenses Relating to Registration as a Sex Offender), will apply to convictions under 18 U.S.C. 2250(c) or 2260A, and instructs the court that the guideline sentence for any such conviction is the term of imprisonment required by statute. Neither Chapters Three nor Four will apply to any count of conviction covered by this guideline. This approach is the same approach the Commission has taken with other statutes that provide mandatory consecutive terms of imprisonment, namely 18 U.S.C. 1028A (see Sec. 2B1.6 (Aggravated Identity Theft) and 18 U.S.C. 924(c) (See Sec. 2K2.4 (Use of Firearm, Armor-Piercing Ammunition, or Explosive During or in Relation to Certain Crimes).) Part II implements other new offenses and increased penalties as follows: (A) The Act provides a mandatory minimum term of imprisonment of 30 years for convictions under 18 U.S.C. 2241(c) (Aggravated sexual abuse with children). This statute covers crossing state lines to engage in the sexual abuse of a child under the age of 12 years. It also covers engaging in a sexual act under the circumstances described in 18 U.S.C. 2241(a) and (b) (force, threat, or other means) with a child who is between the ages of 12 years and 16 years and is at least four years younger than the person who is engaging in the sexual act. The proposed amendment provides a base offense level of [40] in Sec. 2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse) if the defendant was convicted under 18 U.S.C. 2241(c). The specific offense characteristic for the age of the victim, subsection (b)(2), would not apply because the higher base offense level takes into account the age of the victim. There also is an application note that instructs the court not to apply the enhancement in Sec. 2A3.1(b)(1) (four-level enhancement if the offense involved conduct described in 18 U.S.C. Sec. 2241(a) or (b)) if the basis for the conviction under 18 U.S.C. 2241(c) is that the defendant engaged in conduct described in 18 U.S.C. 2241(a) or (b). (B) The Act increased the statutory maximum term of imprisonment for convictions under 18 U.S.C. 2243(b) for sexual abuse of a ward from five years to 15 years. The proposed amendment proposes to increase the base offense level in Sec. 2A3.3 (Criminal Sexual Abuse [[Page 4378]] of a Ward or Attempt to Commit Such Acts) to level [14][16][18][20]. (C) The Act created a new offense in 18 U.S.C. 2244(a)(5) for sexual contact offenses that would have violated 18 U.S.C. 2241(c) had the sexual contact been a sexual act. (Section 2241(c) covers sexual acts with a child under 12 years old or sexual acts involving conduct described in 18 U.S.C. 2241(a) or (b) with a child between the ages of 12 and 16 and who is at least four years younger than the defendant.) The offense has a statutory maximum term of imprisonment of life. The proposed amendment addresses this new offense by increasing the minimum offense level in the age enhancement in subsection Sec. 2A3.4(b)(1) from level 20 to level 22. Issue for Comment 4 in Part V of the proposed amendment addresses whether Sec. 2A3.4 already adequately accounts for the new offense and therefore does not need to be amended. (D) The Act amended 18 U.S.C. 1591 (sex trafficking of children or by force, fraud, or coercion) to provide a mandatory minimum term of imprisonment of 15 years if the sex trafficking offense involved a minor who had not attained the age of 14 years or involved force, fraud, or coercion (subsection 1591(b)(1)) and a mandatory minimum of 10 years if the offense involved a minor who had attained the age of 14 years but had not attained the age of 18 years (subsection 1591(b)(2)). The Act also increased the statutory maximum term of imprisonment from 40 years to life for 18 U.S.C. 1591(b)(2) offenses. To address the increased statutory minimums, the proposed amendment modifies the base offense levels in Sec. Sec. 2G1.1 (Promoting a Commercial Sex Act or Prohibited Sexual Conduct with an Individual Other than a Minor) and 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). With respect to offenses involving force, fraud, or coercion, the proposed amendment would create a heightened base offense level of [34][36] in Sec. 2G1.1 if the offense of conviction is 18 U.S.C. 1591 and the offense involved conduct described in subsection (b)(1) of that statute. An alternative base offense level of 14 would apply in all other cases. The proposed amendment also excludes application of the enhancement in Sec. 2G1.1(b)(1) to cases that are sentenced under Sec. 2G1.1(a)(1) because cases to which that base offense level apply necessarily involve fraud or coercion. With respect to offenses involving minors, the proposed amendment would create alternative base offense levels in Sec. 2G1.3 based on the statute of conviction and the conduct described in that conviction. For convictions under 18 U.S.C. 1591 in which the offense involved conduct described in subsection (b)(1) of that statute (i.e., offense was effected by force, fraud, or coercion, or involved a minor who had not attained the age of 14 years), the proposed base offense level is [34][36]. For convictions under 18 U.S.C. 1591 in which the offense involved conduct described in subsection (b)(2) of that statute (i.e., offense involved a minor who had attained the age of 14 but had not attained the age of 18 years), the proposed base offense level is [30][32]. The Act also increased the penalties for 18 U.S.C. 2422(b) (Coercion and enticement [of a minor to engage in criminal sexual activity]) and 2423(a) (Transportation [of a minor] with intent to engage in criminal sexual activity). Both statutes now have a mandatory minimum term of 10 years (increased from 5 years) and a statutory maximum term of imprisonment of life (increased from 30 years). The proposed amendment would add Sec. 2G1.3(a)(3) with a base offense level of [28][30] if the defendant was convicted under 18 U.S.C. 2422(b) or 2423(a). If the Commission decides that the base offense level should be the same for offenses under 18 U.S.C. 1591(b)(2), 2422(b), and 2423(a), then the Team would modify the proposed amendment to consolidate these offenses into one base offense level. The proposed amendment also provides a range of [4]-[8] at Sec. 2G1.3(b)(5). It also addresses the interaction of subsection (b)(5), which provides an 8-level increase if the offense involved a minor who had not attained the age of 12 years, and the proposed addition of alternative base offense levels. Now that age is a factor the court considers in determining the appropriate base offense level for convictions under 18 U.S.C. 1591, the proposed amendment provides a new application note that instructs the court not to apply subsection (b)(5) if subsection (a)(1) applies. The proposed amendment also provides an option for modifying the enhancement. Issue for comment 8 asks whether the Commission should consider providing an increase of four or six levels, instead of eight levels, at Sec. 2G1.3(b)(5) in any case in which the age of the minor victim is taken into account by base offense level. (E) The Act created a new offense in 18 U.S.C. 2257A that imposes recordkeeping requirements on individuals who produce depictions of simulated sexually explicit conduct. Failure to comply with the recordkeeping requirements carries a statutory maximum term of imprisonment of 1 year. If the offense was intended to conceal a child pornography offense, the statute provides a statutory maximum term of imprisonment of 5 years for the first offense; for the second offense, the penalty is a 2-year mandatory minimum and a statutory maximum of 10 years. The proposed amendment references this new offense to Sec. 2G2.5 (Recordkeeping Offenses Involving the Production of Sexually Explicit Materials; Failure to Provide Required Marks in Commercial Electronic Email). Issue for Comment 5 in Part V of the proposed amendment requests comment regarding the refusal to allow inspection of records in violation of 18 U.S.C. 2257(f)(5) or 2257A. (F) The Act created a new offense in 18 U.S.C. 2252A(g) that prohibits engaging in child exploitation enterprises, defined in the statute as violating 18 U.S.C. Sec. 1591, 1201 (if the victim is a minor), Chapter 109A (involving a minor), Chapter 110 (except for 18 U.S.C. 2257 and 2257A), or Chapter 117 (involving a minor), as part of a series of felony violations constituting three or more separate incidents and involving more than one victim, and committing those offenses in concert with three or more other people. The statute provides a mandatory minimum term of imprisonment of 20 years. The proposed amendment creates a new guideline, Sec. 2G2.6 (Child Exploitation Enterprises), to cover this new offense. The guideline provides a base offense level of [34][35][36][37] and three specific offense characteristics, based on the age of the victim (subsection (b)(1)), whether the defendant was the parent or had some other custodial care of the victim (subsection (b)(2)), and whether the offense involved conduct described in 18 U.S.C. 2241(a) or (b) (subsection (b)(3)). Issue for Comment 6 requests comment regarding the base offense level, the scope of the proposed specific offense characteristics, and whether the Commission should consider other conduct for purposes of providing additional specific offense characteristics. (G) The Act created a new offense in 18 U.S.C. 2252C that prohibits knowingly embedding words or images into the source code of a Web site with the intent to deceive a person into [[Page 4379]] viewing obscenity, or to deceive a minor into viewing material harmful to minors. The statute carries a statutory maximum term of imprisonment of 20 years if the offense involved a minor, or a maximum of 10 years, otherwise. Application Note 2 proposes that the specific offense characteristic at Sec. 2G3.1(b)(3) not apply for offenses under 18 U.S.C. 2252C. The proposed amendment modifies subsection (b)(2) of Sec. 2G3.1 (Importing, Mailing, or Transporting Obscene Matter; Transferring Obscene Matter to a Minor; Misleading Domain Names), which currently provides a two-level enhancement if the offense involved misleading domain names. The proposed amendment adds to this enhancement embedding words or digital images on a Web site and also presents the option of providing a four-level increase for this enhancement. Issue for Comment 7 requests comment regarding whether the Commission should provide an enhancement if the defendant intended to deceive someone other than a minor into viewing obscenity. Part III addresses other criminal provisions contained in the Act as follows: (A) The Act created a new Class A misdemeanor in 42 U.S.C. 16984 prohibiting the use of a child's fingerprints that were derived from a program funded by federal grants to support voluntary fingerprinting of children for any purpose other than providing the fingerprints to the child's parents or guardian. The proposed amendment references this new offense to Sec. 2H3.1.1 (Interception of Communications; Eavesdropping; Disclosure of Tax Return Information) and provides a base offense level of 6 for the offense. The heading of the guideline also is amended to cover personal information of this sort. The Act also created 42 U.S.C. 16962 prohibiting the improper release of information obtained in fingerprint-based checks for the background check of foster or adoptive parents or of a person employed by, or considering employment with, a private or public educational agency. The statute provides a statutory maximum term of imprisonment of 10 years. The proposed amendment references this offense to Sec. 2H3.1 and such offenses will receive a base offense level of 9 under Sec. 2H3.1(a)(1). (B) The Act amended 18 U.S.C. 1001 to provide an enhanced penalty of up to 8 years if the matter relates to an offense under 18 U.S.C. 1591 or Chapters 109A, 110, or 117 of title 18, United States Code. The proposed amendment adds a [2]-[12] level enhancement in subsection (b)(1)(C) of Sec. 2J1.2 (Obstruction of Justice) to cover such conduct. (C) The Act added 18 U.S.C. 1591 to the list in 18 U.S.C. 3559(e)(2) of repeated sex offenses committed against children that require a mandatory life imprisonment. The proposed amendment adds 18 U.S.C. 1591 to the list of covered sex offenses in Application Note 2 of Sec. 4B1.5 (Repeat and Dangerous Sex Offender Against Minors). Part IV addresses the probation and supervised release aspects of the Act. First, the proposed amendment updates subsection (a)(9) of Sec. 5B1.3 (Conditions of Probation) and subsection (a)(7) of Sec. 5D1.3 to include compliance with SORNA as one of the mandatory conditions. Second, it adds to the list of ``special conditions'' in Sec. Sec. 5B1.3(d) and 5D1.3(d) a condition requiring a sex offender to submit to a search, as added to 18 U.S.C. 3563(b) and 3583(d) by the Act. Third, the proposed amendment modifies Sec. 5D1.2 (Term of Supervised Release) to add Chapter 109B and 18 U.S.C. 1201 and 1591 to the definition of sex offense in Application Note 1 of that guideline. Part V sets forth all of the issues for comment. In addition to the specific issues noted in this synopsis, Issue for Comment 1 requests input regarding how the Commission should incorporate the mandatory minimum terms of imprisonment created or increased by the Adam Walsh Act and discusses four approaches for incorporating these penalties. Proposed Amendment Part I--Implementing Directive Regarding 18 U.S.C. Sec. 2250 Offenses Chapter Two, Part A, Subpart 3 is amended in the heading by adding at the end ``AND OFFENSES RELATED TO REGISTRATION AS A SEX OFFENDER''; and by adding at the end the following new guidelines and accompanying commentary: ``Sec. 2A3.5. Failure to Register as a Sex Offender Option 1: [(a) Base Offense Level: (1) 16, if the offense that gave rise to the requirement to register was a Tier III offense; (2) 14, if the offense that gave rise to the requirement to register was a Tier II offense; or (3) 12, if the offense that gave rise to the requirement to register was a Tier I offense. (b) Specific Offense Characteristics: (1) If, while in a failure to register status, the defendant (A)(i) committed a sex offense against someone other than a minor; or (ii) kidnapped or falsely imprisoned a minor, increase by 6 levels; or (B) committed a sex offense against a minor, increase by 8 levels. If the offense level resulting from application of subdivision (B) is less than level [24]-[28], increase to level [24]-[28]. (2) If the defendant voluntarily attempted to correct the failure to registe