[Federal Register: May 21, 2007 (Volume 72, Number 97)] [Notices] [Page 28557-28577] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr21my07-111] [[Page 28557]] ----------------------------------------------------------------------- Part II United States Sentencing Commission ----------------------------------------------------------------------- Sentencing Guidelines for the United States Courts; Notices [[Page 28558]] ----------------------------------------------------------------------- UNITED STATES SENTENCING COMMISSION Sentencing Guidelines for United States Courts AGENCY: United States Sentencing Commission. ACTION: Notice of submission to Congress of amendments to the sentencing guidelines effective November 1, 2007. ----------------------------------------------------------------------- SUMMARY: Pursuant to its authority under 28 U.S.C. 994(p), the Commission has promulgated amendments to the sentencing guidelines, policy statements, commentary, and statutory index. This notice sets forth the amendments and the reason for each amendment. DATES: The Commission has specified an effective date of November 1, 2007, for the amendments set forth in this notice. FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs Officer, 202-502-4590. The amendments set forth in this notice also may be accessed through the Commission's Web site at http://www.ussc.gov. SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is an independent agency in the judicial branch of the United States Government. The Commission promulgates sentencing guidelines and policy statements for federal sentencing courts pursuant to 28 U.S.C. 994(a). The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. 994(o) and generally submits guideline amendments to Congress pursuant to 28 U.S.C. 994(p) not later than the first day of May each year. Absent action of Congress to the contrary, submitted amendments become effective by operation of law on the date specified by the Commission (generally November 1 of the year in which the amendments are submitted to Congress). Notice of proposed amendments was published in the Federal Register on January 30, 2007 (see 72 FR 4372). The Commission held a public hearing on the proposed amendments in Washington, DC, on March 20, 2007. On May 1, 2007, the Commission submitted these amendments to Congress and specified an effective date of November 1, 2007. Authority: 28 U.S.C. 994(a), (o), and (p); USSC Rule of Practice and Procedure 4.1. Ricardo H. Hinojosa, Chair. 1. Compassionate Release Amendment: The Commentary to Sec. 1B1.13 captioned ``Application Notes'' is amended in Note 1 by striking subdivision (A) and inserting the following: ``(A) Extraordinary and Compelling Reasons.--Provided the defendant meets the requirements of subdivision (2), extraordinary and compelling reasons exist under any of the following circumstances: (i) The defendant is suffering from a terminal illness. (ii) The defendant is suffering from a permanent physical or medical condition, or is experiencing deteriorating physical or mental health because of the aging process, that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and for which conventional treatment promises no substantial improvement. (iii) The death or incapacitation of the defendant's only family member capable of caring for the defendant's minor child or minor children. (iv) As determined by the Director of the Bureau of Prisons, there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (i), (ii), and (iii).''. The Commentary to Sec. 1B1.13 is amended by striking ``Background'' and all that follows through the end of ``statute.'' and inserting the following: ``Background: This policy statement implements 28 U.S.C. 994(t).''. Reason for Amendment: This amendment modifies the policy statement at Sec. 1B1.13 (Reduction in Term of Imprisonment as a Result of Motion by Director of Bureau of Prisons) to further effectuate the directive in 28 U.S.C. 994(t). Section 994(t) provides that the Commission ``in promulgating general policy statements regarding the sentence modification provisions in section 3582(c)(1)(A) of title 18, shall describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples.'' The amendment revises Application Note 1(A) of Sec. 1B1.13 to provide four examples of circumstances that, provided the defendant is not a danger to the safety of any other person or to the community, would constitute ``extraordinary and compelling reasons'' for purposes of 18 U.S.C. 3582(c)(1)(A). 2. Transportation Amendment: The Commentary to 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,''. Section 2B1.1(b) is amended by striking subdivision (11) and inserting the following: ``(11) If the offense involved an organized scheme to steal or to receive stolen (A) vehicles or vehicle parts; or (B) goods or chattels that are part of a cargo shipment, [[Page 28559]] increase by 2 levels. If the offense level is less than level 14, increase to level 14.''. 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. ''. 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 (e.g., an auto theft ring or 'chop shop') to steal or to receive stolen (A) vehicles or vehicle parts; or (B) goods or chattels that are part of a cargo shipment. For purposes of this subsection, 'vehicle' means motor vehicle, vessel, or aircraft. A 'cargo shipment' includes cargo transported on a railroad car, bus, steamboat, vessel, or airplane.''. Section 2B2.3(b)(1) is amended by striking ``secured'' each place it appears and inserting ``secure''; and by inserting ``or a seaport'' after ``airport''. The Commentary to 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 ``secured'' before ``government'' and inserting ``secure''; and by striking ``, such as nuclear facilities,'' and inserting ``(such as nuclear facilities) and other locations (such as airports and seaports)''. The Commentary to 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, 2A1.4, 2A2.1, 2A2.2, 2A2.3,'' before ``2B1.1''; by inserting after the line referenced to 18 U.S.C. 2233 the following: ''18 U.S.C. 2237(a)(1), (a)(2)(A)--2A2.4 18 U.S.C. 2237(a)(2)(B)--2B1.1''; by inserting after the line referenced to 18 U.S.C. 2281 the following: ''18 U.S.C. 2291--2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.1, 2A2.2, 2A2.3, 2A6.1, 2B1.1, 2K1.4, 2M6.1 18 U.S.C. 2292--2A6.1''; by inserting after the line referenced to 49 U.S.C. 14912 the following: ``49 U.S.C. 14915--2B1.1''; and by inserting after the line referenced to 49 U.S.C. 30170 the following: ``49 U.S.C. 31310--2X5.2''. Reason for Amendment: This amendment implements various provisions of the USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. 109-177 (the ``PATRIOT Reauthorization Act'') and the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, Pub. L. 109-59 (``SAFETEA-LU''). The PATRIOT Reauthorization Act created several new offenses and increased the scope of or penalty for several existing offenses. SAFETEA-LU also created two new offenses. This amendment references both the new statutes and those with increased scope and penalties to existing guidelines. The amendment also provides a corresponding amendment to Appendix A (Statutory Index). The Commission concluded that referencing the new offenses to existing guidelines was appropriate because the type of conduct criminalized by the new statutes was adequately addressed and penalized by the guidelines. Section 307(c) of the PATRIOT Reauthorization Act directed the Commission to review the guidelines to determine whether a sentencing enhancement is appropriate for any offense under sections 659 or 2311 of title 18, United States Code. This amendment responds to the directive by revising the enhancement at subsection (b)(11) of 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). The amendment expands the scope of this enhancement to cover cargo theft and adds a reference to the receipt of stolen vehicles or goods to ensure application of the enhancement is consistent with the scope of 18 U.S.C. Sec. 659 and 2313. The Commission determined that the two- level increase, and the minimum offense level of 14, appropriately responds to concerns regarding the increased instances of organized cargo theft operations. 3. Terrorism Amendment: The Commentary to Sec. 2A1.1 captioned ``Statutory Provisions'', as amended by Amendment 2 of this document, is further amended by inserting ``2282A,'' after ``2199,''. The Commentary to Sec. 2A1.2 captioned ``Statutory Provisions'', as amended by Amendment 2 of this document, is further amended by inserting ``2282A,'' after ``2199''. The Commentary to Sec. 2B1.1 captioned ``Statutory Provisions'', as amended by Amendment 2 of this document, is further amended by inserting ``2282A, 2282B,'' after ``2113(b),''. [[Page 28560]] The Commentary to Sec. 2B1.5 captioned ``Statutory Provisions'' is amended by inserting ``554,'' before ``641,''. Chapter Two, Part D, Subpart One, is amended by adding at the end the following new guideline and accompanying commentary: ``Sec. 2D1.14. Narco-Terrorism (a) Base Offense Level: (1) The offense level from Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) applicable to the underlying offense, except that Sec. 2D1.1(a)(3)(A), (a)(3)(B), and (b)(11) shall not apply. (b) Specific Offense Characteristic (1) If Sec. 3A1.4 (Terrorism) does not apply, increase by 6 levels. Commentary Statutory Provision: 21 U.S.C. 960a.'' Chapter Two, Part E, Subpart Four, is amended in the heading by adding at the end ``AND SMOKELESS TOBACCO''. Section 2E4.1 is amended in the heading by adding at the end ``and Smokeless Tobacco''. The Commentary to Sec. 2E4.1 captioned ``Background'' is amended by striking ``60,000'' and inserting ``10,000''. The Commentary to Sec. 2K1.3 captioned ``Statutory Provisions'' is amended by inserting ``, 2283'' after ``1716''. Section 2K1.4 is amended in subsections (a)(1) and (a)(2) by striking ``a ferry,'' each place it appears and inserting ``a maritime facility, a vessel, or a vessel's cargo,''; in subsection (a)(2) by striking ``or'' the last place it appears; by redesignating subsection (a)(3) as subsection (a)(4); and by inserting the following after subsection (a)(2): ``(3) 16, if the offense involved the destruction of or tampering with aids to maritime navigation; or''. Section 2K1.4(b)(2) is amended by striking ``(a)(3)'' and inserting ``(a)(4)''. The Commentary to Sec. 2K1.4 captioned ``Statutory Provisions'', as amended by Amendment 2 of this document, is further amended by inserting ``2282A, 2282B,'' after ``2275,''. The Commentary to Sec. 2K1.4 captioned ``Application Notes'' is amended in Note 1 by inserting after ``For purposes of this guideline:'' the following paragraph: `` `Aids to maritime navigation' means any device external to a vessel intended to assist the navigator to determine position or save course, or to warn of dangers or obstructions to navigation.''; by inserting after ``destructive device.'' the following paragraph: `` `Maritime facility' means any structure or facility of any kind located in, on, under, or adjacent to any waters subject to the jurisdiction of the United States and used, operated, or maintained by a public or private entity, including any contiguous or adjoining property under common ownership or operation.''; by striking ``1993(c)(5)'' and inserting ``1992(d)(7)''; and by adding at the end the following: `` `Vessel' includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.'' The Commentary to Sec. 2M5.2 captioned ``Statutory Provisions'' is amended by inserting ``18 U.S.C. 554;'' before ``22 U.S.C. 2778, 2780.''. Section 2M5.3 is amended in the heading by inserting ``Specially Designated Global Terrorists, or'' after ``Organizations or'' The Commentary to Sec. 2M5.3 captioned ``Statutory Provisions'' is amended by inserting ``2283, 2284,'' after ``18 U.S.C. ``; and by striking the period at the end and inserting ``; 50 U.S.C. 1701, 1705.''. The Commentary to Sec. 2M5.3 captioned ``Application Notes'' is amended in Note 1 by adding at the end the following paragraph: `` `Specially designated global terrorist' has the meaning given that term in 31 CFR 594.513.''. Section 2M6.1 is amended in the heading by striking ``Production, Development, Acquisition, Stockpiling, Alteration, Use, Transfer, or Possession of'' and inserting ``Activity Involving''. The Commentary to Sec. 2M6.1 captioned ``Statutory Provisions'', as amended by Amendment 2 of this document, is further amended by inserting ``2283,'' before ``2291,''. The Commentary to Sec. 2Q2.1 captioned ``Statutory Provisions'' is amended by inserting ``Sec. '' before ``545'' and by inserting ``, 554'' after ``545''. The Commentary to Sec. 2Q2.1 captioned ``Background'' is amended by striking ``Sec. 545 where'' and inserting ``Sec. Sec. 545 and 554 if''. The Commentary to Sec. 2X1.1 captioned ``Statutory Provisions'' is amended by inserting ``, 2282A, 2282B,'' after ``2271,''. The Commentary to Sec. 2X2.1 captioned ``Statutory Provisions'' is amended by inserting ``2284,'' after ``2,''. The Commentary to Sec. 2X3.1 captioned ``Statutory Provisions'' is amended by inserting ``2284,'' after ``1072,''. Chapter Two, Part X is amended by adding at the end the following new subpart, guideline, and accompanying commentary: ``7. OFFENSES INVOLVING BORDER TUNNELS Sec. 2X7.1. Border Tunnels and Subterranean Passages (a) Base Offense Level: (1) If the defendant was convicted under 18 U.S.C. 554(c), 4 plus the offense level applicable to the underlying smuggling offense. If the resulting offense level is less than level 16, increase to level 16. (2) 16, if the defendant was convicted under 18 U.S.C. 554(a); or (3) 8, if the defendant was convicted under 18 U.S.C. 554(b). Commentary Statutory Provision: 18 U.S.C. 554. Application Note: 1. Definition.--For purposes of this guideline, `underlying smuggling offense' means the smuggling offense the defendant committed through the use of the tunnel or subterranean passage.''. Chapter Five, Part K is amended by adding at the end the following new policy statement and accompanying commentary: ``Sec. 5K2.24. Commission of Offense While Wearing or Displaying Unauthorized or Counterfeit Insignia or Uniform (Policy Statement) If, during the commission of the offense, the defendant wore or displayed an official, or counterfeit official, insignia or uniform received in violation of 18 U.S.C. 716, an upward departure may be warranted. Commentary Application Note: 1. Definition.--For purposes of this policy statement, `official insignia or uniform' has the meaning given that term in 18 U.S.C. 716(c)(3).''. Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. 553(a)(2) the following: ``18 U.S.C. 554--(Border tunnels and passages)--2X7.1''. 18 U.S.C. 554--(Smuggling goods from the United States)--2B1.5, 2M5.2, 2Q2.1''. Appendix A (Statutory Index), as amended by Amendment 2 of this document, is further amended by inserting after the line referenced to 18 U.S.C. 2281 the following: ``18 U.S.C. 2282A--2A1.1, 2A1.2, 2B1.1, 2K1.4, 2X1.1 18 U.S.C. 2282B--2B1.1, 2K1.4, 2X1.1 18 U.S.C. 2283--2K1.3, 2M5.3, 2M6.1 18 U.S.C. 2284--2M5.3, 2X2.1, 2X3.1''. Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. 2339 by inserting ``2M5.3,'' before ``2X2.1''; by inserting after the line referenced to 21 U.S.C. 960(d)(7) the following: ``21 U.S.C. 960a--2D1.14''. by inserting after the line referenced to 50 U.S.C. 783(c) the following: [[Page 28561]] ``50 U.S.C. 1701--2M5.1, 2M5.2, 2M5.3 50 U.S.C. 1705--2M5.3''; and by striking the line referenced to 50 U.S.C. App. Sec. 1701. Reason for Amendment: This amendment implements the USA PATRIOT Improvement and Reauthorization Act of 2005 (the ``PATRIOT Reauthorization Act''), Pub. L. 109-177, and the Department of Homeland Security Appropriations Act, 2007 (the ``Homeland Security Act''), Pub. L. 109-295. First, the amendment addresses section 122 of the PATRIOT Reauthorization Act, which created a new offense at 21 U.S.C. 960a covering narco-terrorism. This new offense prohibits engaging in conduct that would be covered under 21 U.S.C. 841(a) if committed under the jurisdiction of the United States, knowing or intending to provide, directly or indirectly, anything of pecuniary value to any person or organization that has engaged or engages in terrorist activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality Act) or terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 (This act is made up of separate parts divided by fiscal year)). The penalty is not less than twice the statutory minimum punishment under 21 U.S.C. 841(b)(1) and not more than life. Section 960a also provides a mandatory term of supervised release of at least five years. The amendment creates a new guideline at Sec. 2D1.14 (Narco- Terrorism) because an offense under 21 U.S.C. 960a differs from basic drug offenses because it involves trafficking that benefits terrorist activity. The guideline also provides that the base offense level is the offense level determined under Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) for the underlying offense, except that the ``mitigating role cap'' in Sec. 2D1.1(a)(3)(A) and (B) and the two-level reduction for meeting the criteria set forth in subdivisions (1)-(5) of subsection (a) of Sec. 5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases) shall not apply. The Commission determined that these exclusions are appropriate to reflect that this is not a typical drug offense, in that an individual convicted under this provision must have had knowledge that the person or organization receiving the funds or support generated by the drug trafficking ``has engaged or engages in terrorist activity * * * or terrorism * * *.'' The guideline also contains a specific offense characteristic that provides a six-level increase if the adjustment in Sec. 3A1.4 (Terrorism) does not apply. This six-level increase fully effectuates the statute's doubling of the minimum punishment for the underlying drug offense, while avoiding potential double counting with the 12-level adjustment at Sec. 3A1.4. The amendment also provides a corresponding reference for the new offense to Sec. 2D1.14 in Appendix A (Statutory Index). Second, the amendment responds to the directive in section 551 of the Homeland Security Act, which created a new offense in 18 U.S.C. 554 regarding the construction of border tunnels and subterranean passages that cross the international boundary between the United States and another country. Section 551(c) of the Homeland Security Act directed the Commission to promulgate or amend the guidelines to provide for increased penalties for persons convicted of offenses under 18 U.S.C. 554 and required the Commission to consider a number of factors. Section 554(a) prohibits the construction or financing of such tunnels and passages and provides a statutory maximum term of imprisonment of 20 years. Section 554(b) prohibits the knowing or reckless disregard of the construction on land the person owns or controls and provides a statutory maximum term of imprisonment of 10 years. Section 554(c) prohibits the use of the tunnels to smuggle an alien, goods (in violation of 18 U.S.C. 545), controlled substances, weapons of mass destruction (including biological weapons), or a member of a terrorist organization (defined in 18 U.S.C. 2339B(g)(6)) and provides a penalty of twice the maximum term of imprisonment that otherwise would have been applicable had the unlawful activity not made use of the tunnel or passage. The amendment creates a new guideline at Sec. 2X7.1 (Border Tunnels and Subterranean Passages) for convictions under 18 U.S.C. 554. The new guideline provides that a conviction under 18 U.S.C. 554(a) receives a base offense level 16, which is commensurate with certain other offenses with statutory maximum terms of imprisonment of 20 years and ensures a sentence of imprisonment. A conviction under 18 U.S.C. 554(c) will receive a four-level increase over the offense level applicable to the underlying smuggling offense, which ensures that the seriousness of the underlying offense is the primary measure of offense severity. The four-level increase also satisfies the directive's instruction to account for the aggravating nature of the use of a tunnel or subterranean passage to breach the border to accomplish the smuggling offense and effectuates the statute's doubling of the statutory maximum penalty. A conviction under 18 U.S.C. 554(b) receives a base offense level of 8, which reflects the less aggravated nature of this offense. Third, the amendment addresses other new offenses created by the PATRIOT Reauthorization Act. Based on an assessment of similar offenses already covered by the relevant guidelines, the amendment provides as follows: (A) The new offense in 18 U.S.C. 554, pertaining to smuggling of goods from the United States, is referenced to Sec. Sec. 2B1.5 (Theft of, Damage to, or Destruction of, Cultural Heritage Resources; Unlawful Sale, Purchase, Exchange, Transportation, or Receipt of Cultural Heritage Resources), 2M5.2 (Exportation of Arms, Munitions, or Military Equipment or Services Without Required Validated Export License), and 2Q2.1 (Offenses Involving Fish, Wildlife, and Plants). (B) The new offense in 18 U.S.C. 2282A, pertaining to mining of United States navigable waters, is referenced to Sec. Sec. 2A1.1 (First Degree Murder), 2A1.2 (Second Degree Murder), 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States), 2K1.4 (Arson; Property Damage by Use of Explosives), and 2X1.1 (Attempt, Solicitation, or Conspiracy (Not Covered by a Specific Offense Guideline)). The amendment also adds vessel, maritime facility, and a vessel's cargo to Sec. 2K1.4(a)(1) and (a)(2) to cover conduct described in 18 U.S.C. 2282A. The definitions provided for ``vessel,'' ``maritime facility,'' and ``aids to maritime navigation'' come from title 33 of the Code of Federal Regulations pertaining to the United States Coast Guard, specifically Navigation and Navigable Waters. Section 2282B, pertaining to violence against maritime navigational aids, is referenced to Sec. Sec. 2B1.1, 2K1.4, and 2X1.1. Section 2K1.4(a) is amended to provide a new base offense level of 16 if the offense involved the destruction of or tampering with aids to maritime navigation. (C) The new offense in 18 U.S.C. 2283 pertaining to transporting biological and [[Page 28562]] chemical weapons is referenced to Sec. Sec. 2K1.3 (Unlawful Receipt, Possession, or Transportation of Explosive Materials; Prohibited Transactions Involving Explosive Materials), 2M5.3 (Providing Material Support or Resources to Designated Foreign Terrorism Organizations or For a Terrorist Purpose), and 2M6.1 (Unlawful Production, Development, Acquisition, Stockpiling, Alteration, Use, Transfer, or Possession of Nuclear Material, Weapons, or Facilities, Biological Agents, Toxins, or Delivery Systems, Chemical Weapons, or Other Weapons of Mass Destruction; Attempt or Conspiracy). The new offense in 18 U.S.C. 2284 pertaining to transporting terrorists is referenced to Sec. Sec. 2M5.3 (Providing Material Support or Resources to Designated Foreign Terrorist Organizations or For a Terrorist Purpose), 2X2.1 (Aiding and Abetting), and 2X3.1 (Accessory After the Fact). (D) Section 2341 of title 18, United States Code, which provides definitions for offenses involving contraband cigarettes and smokeless tobacco, was amended to reduce the number of contraband cigarettes necessary to violate the substantive offenses set forth in 18 U.S.C. 2342 and 2344 from 60,000 to 10,000. The amendment makes conforming changes to the background commentary of Sec. 2E4.1 (Unlawful Conduct Relating to Contraband Cigarettes) and expands the headings of Chapter Two, Part E, Subpart 4 and Sec. 2E4.1 to include smokeless tobacco. (E) The Patriot Reauthorization Act increased the statutory maximum term of imprisonment for offenses covered by the International Emergency Economic Powers Act (50 U.S.C. 1705) from 10 years to 20 years' imprisonment. The amendment references 50 U.S.C. 1705 to Sec. 2M5.3 and modifies the heading of the guideline to include ``specially designated global terrorist''. Fourth, the amendment sets forth the statutory references in Appendix A (Statutory Index) for the new offenses. Appendix A is amended to provide a parenthetical description for the two statutory references to 18 U.S.C. 554 created by the PATRIOT Reauthorization Act. Fifth, the amendment implements a directive in section 1191(c) of the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. 109-162. The Act directed the Commission to amend the guidelines ``to assure that the sentence imposed on a defendant who is convicted of a Federal offense while wearing or displaying insignia and uniform received in violation of section 716 of title 18, United States Code, reflects the gravity of this aggravating factor.'' Section 716 of title 18, United States Code, is a Class B misdemeanor which is not covered by the guidelines, see Sec. 1B1.9 (Class B or C Misdemeanors and Infractions); however, the amendment creates a new policy statement at Sec. 5K2.24 (Commission of Offense While Wearing or Displaying Unauthorized or Counterfeit Insignia or Uniform) providing that an upward departure may be warranted if, during the commission of the offense, the defendant wore or displayed an official, or counterfeit official, insignia or uniform received in violation of 18 U.S.C. 716. 4. Sex Offenses Amendment: Chapter Two, Part A, Subpart Three, is amended in the heading by adding at the end ``AND OFFENSES RELATED TO REGISTRATION AS A SEX OFFENDER''. Section 2A3.1(a) is amended by striking ``30'' and inserting the following: ``(1) 38, if the defendant was convicted under 18 U.S.C. 2241(c); or (2) 30, otherwise.''. Section 2A3.1(b)(2) is amended by striking ``(A) If'' and inserting ``If subsection (a)(2) applies and (A)''; and by striking ``if'' after ``(B)''. The Commentary to Sec. 2A3.1 captioned ``Application Notes'' is amended in Note 2 by inserting ``(A) Definitions.-'' before ``For purposes of''; and by adding at the end the following subdivision: ``(B) Application in Cases Involving a Conviction under 18 U.S.C. 2241(c).--If the conduct that forms the basis for a conviction under 18 U.S.C. 2241(c) is that the defendant engaged in conduct described in 18 U.S.C. 2241(a) or (b), do not apply subsection (b)(1).''. The Commentary to Sec. 2A3.1 is amended by striking ``Background'' and all that follows through the end of ``abduction.''. Section 2A3.3(a) is amended by striking ``12'' and inserting ``14''. The Commentary to Sec. 2A3.3 captioned ``Application Notes'' is amended in Note 1 by striking `` `Minor' means an individual who had not attained the age of 18 years.'' and inserting the following: `` `Minor' means (A) an individual who had not attained the age of 18; (B) an individual, whether fictitious or not, who a law enforcement officer represented to a participant (i) had not attained the age of 18 years; and (ii) could be provided for the purposes of engaging in sexually explicit conduct; or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.''. The Commentary to Sec. 2A3.3 captioned ``Application Notes'' is amended by adding at the end the following: ``4. Inapplicability of Sec. 3B1.3.--Do not apply Sec. 3B1.3 (Abuse of Position of Trust or Use of Special Skill).''. The Commentary to Sec. 2A3.3 is amended by striking ``Background'' and all that follows through the end of ``year.''. Section 2A3.4(b)(1) is amended by striking ``20'' each place it appears and inserting ``22''. The Commentary to Sec. 2A3.4 captioned ``Statutory Provisions'' is amended by striking ``(a)(1), (2), (3)'' after ``Sec. 2244''. The Commentary to Sec. 2A3.4 captioned ``Background'' is amended by striking ``Enhancements are provided'' and all that follows through the end of ``sixteen years.''. Chapter Two, Part A, Subpart Three, is amended by adding at the end the following new guidelines and accompanying commentaries: ``Sec. 2A3.5. Failure To Register as a Sex Offender (a) Base Offense Level (apply the greatest): (1) 16, if the defendant was required to register as a Tier III offender; (2) 14, if the defendant was required to register as a Tier II offender; or (3) 12, if the defendant was required to register as a Tier I offender. (b) Specific Offense Characteristics (1) (Apply the greatest): If, while in a failure to register status, the defendant committed-- (A) a sex offense against someone other than a minor increase by 6 levels; (B) a felony offense against a minor not otherwise covered by subdivision (C), increase by 6 levels; or (C) a sex offense against a minor, increase by 8 levels. (2) If the defendant voluntarily (A) corrected the failure to register; or (B) attempted to register but was prevented from registering by uncontrollable circumstances and the defendant did not contribute to the creation of those circumstances, decrease by 3 levels. Commentary Statutory Provision: 18 U.S.C. 2250(a). Application Notes: 1. Definitions.--For purposes of this guideline: `Minor' means (A) an individual who had not attained the age of 18 years; (B) an individual, whether fictitious or not, who a law enforcement officer represented to a participant (i) had not attained the age of 18 years; and (ii) could be provided for the purposes of engaging in sexually explicit conduct; or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years. [[Page 28563]] `Sex offense' has the meaning given that term in 42 U.S.C. 16911(5). ``Tier I offender',``tier II offender', and ``tier III offender' have the meaning given those terms in 42 U.S.C. 16911(2), (3) and (4), respectively. 2. Application of Subsection (b)(2).-- (A) In General.--In order for subsection (b)(2) to apply, the defendant's voluntary attempt to register or to correct the failure to register must have occurred prior to the time the defendant knew or reasonably should have known a jurisdiction had detected the failure to register. (B) Interaction with Subsection (b)(1).--Do not apply subsection (b)(2) if subsection (b)(1) also applies. Sec. 2A3.6. Aggravated Offenses Relating to Registration as a Sex Offender If the defendant was convicted under-- (a) 18 U.S.C. 2250(c), the guideline sentence is the minimum term of imprisonment required by statute; or (b) 18 U.S.C. 2260A, the guideline sentence is the term of imprisonment required by statute. Chapters Three (Adjustments) and Four (Criminal History and Criminal Livelihood) shall not apply to any count of conviction covered by this guideline. Commentary Statutory Provisions: 18 U.S.C. 2250(c), 2260A. Application Notes: 1. In General.--Section 2250(c) of title 18, United States Code, provides a mandatory minimum term of five years' imprisonment and a statutory maximum term of 30 years' imprisonment. The statute also requires a sentence to be imposed consecutively to any sentence imposed for a conviction under 18 U.S.C. 2250(a). Section 2260A of title 18, United States Code, provides a term of imprisonment of 10 years that is required to be imposed consecutively to any sentence imposed for an offense enumerated under that section. 2. Inapplicability of Chapters Three and Four.--Do not apply Chapters Three (Adjustments) and Four (Criminal History and Criminal Livelihood) to any offense sentenced under this guideline. Such offenses are excluded from application of those chapters because the guideline sentence for each offense is determined only by the relevant statute. See Sec. Sec. 3D1.1 (Procedure for Determining Offense Level on Multiple Counts) and 5G1.2 (Sentencing on Multiple Counts of Conviction). 3. Inapplicability of Chapter Two Enhancement.--If a sentence under this guideline is imposed in conjunction with a sentence for an underlying offense, do not apply any specific offense characteristic that is based on the same conduct as the conduct comprising the conviction under 18 U.S.C. 2250(c) or Sec. 2260A. 4. Upward Departure.--In a case in which the guideline sentence is determined under subsection (a), a sentence above the minimum term required by 18 U.S.C. 2250(c) is an upward departure from the guideline sentence. A departure may be warranted, for example, in a case involving a sex offense committed against a minor or if the offense resulted in serious bodily injury to a minor.''. Section 2G1.1(a) is amended by striking ``14'' and inserting the following: ``(1) 34, if the offense of conviction is 18 U.S.C. 1591(b)(1); or (2) 14, otherwise.''. Section 2G1.1(b)(1) is amended by inserting ``(A) subsection (a)(2) applies; and (B)'' after ``If''. The Commentary to Sec. 2G1.1 is amended by striking ``Background'' and all that follows through the end of ``Minor).''. Section 2G1.3(a) is amended by striking ``24'' and inserting the following: ''(1) 34, if the defendant was convicted under 18 U.S.C. 1591(b)(1); (2) 30, if the defendant was convicted under 18 U.S.C. 1591(b)(2); (3) 28, if the defendant was convicted under 18 U.S.C. 2422(b) or Sec. 2423(a); or (4) 24, otherwise.''. Section 2G1.3(b) is amended by striking subdivision (4) and inserting the following: ``(4) If (A) the offense involved the commission of a sex act or sexual contact; or (B) subsection (a)(3) or (a)(4) applies and the offense involved a commercial sex act, increase by 2 levels.''. Section 2G1.3(b)(5) is amended by inserting ``(A) subsection (a)(3) or (a)(4) applies; and (B)'' after ``If''. The Commentary to Sec. 2G1.3 captioned ``Statutory Provisions'' is amended by striking ``2422(b),''. The Commentary to Sec. 2G1.3 is amended by striking ``Background'' and all that follows through the end of ``Minor).''. The Commentary to Sec. 2G2.5 captioned ``Statutory Provisions'' is amended by inserting ``Sec. '' after ``18 U.S.C. Sec. ''; and by inserting ``, 2257A'' after ``2257''. Chapter Two, Part G, Subpart Two, is amended by adding at the end the following new guideline and accompanying commentary: ``Sec. 2G2.6. Child Exploitation Enterprises (a) Base Offense Level: 35 (b) Specific Offense Characteristics (1) If a victim (A) had not attained the age of 12 years, increase by 4 levels; or (B) had attained the age of 12 years but had not attained the age of 16 years, increase by 2 levels. (2) If (A) the defendant was a parent, relative, or legal guardian of a minor victim; or (B) a minor victim was otherwise in the custody, care, or supervisory control of the defendant, increase by 2 levels. (3) If the offense involved conduct described in 18 U.S.C. 2241(a) or (b), increase by 2 levels. (4) If a computer or an interactive computer service was used in furtherance of the offense, increase by 2 levels. Commentary Statutory Provision: 18 U.S.C. 2252A(g). Application Notes: 1. Definitions.--For purposes of this guideline: `Computer' has the meaning given that term in 18 U.S.C. 1030(e)(1). `Interactive computer service' has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. 230(f)(2)). `Minor' means (A) an individual who had not attained the age of 18 years; (B) an individual, whether fictitious or not, who a law enforcement officer represented to a participant (i) had not attained the age of 18 years; and (ii) could be provided for the purposes of engaging in sexually explicit conduct; or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years. 2. Application of Subsection (b)(2).-- (A) Custody, Care, or Supervisory Control.--Subsection (b)(2) is intended to have broad application and includes offenses involving a victim less than 18 years of age entrusted to the defendant, whether temporarily or permanently. For example, teachers, day care providers, baby-sitters, or other temporary caretakers are among those who would be subject to this enhancement. In determining whether to apply this enhancement, the court should look to the actual relationship that existed between the defendant and the minor and not simply to the legal status of the defendant-minor relationship. (B) Inapplicability of Chapter Three Adjustment.--If the enhancement under subsection (b)(2) applies, do not apply Sec. 3B1.3 (Abuse of Position of Trust or Use of Special Skill). 3. Application of Subsection (b)(3).--For purposes of subsection (b)(3), `conduct described in 18 U.S.C. 2241(a) or (b)' is: (i) using force against the minor; (ii) threatening or placing the minor in fear that any person will be subject to death, serious bodily injury, or kidnapping; (iii) rendering the minor unconscious; or (iv) administering by force or threat of force, or without the knowledge or permission of the minor, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of the minor to appraise or control conduct. This provision would apply, for example, if any dangerous weapon was used or brandished, or in a case in which the ability of the minor to appraise or control conduct was substantially impaired by drugs or alcohol.''. Section 2G3.1(b) is amended by striking subdivision (2) and inserting the following: ``(2) If, with the intent to deceive a minor into viewing material that is harmful to minors, the offense involved the use of (A) a misleading domain name on the Internet; or (B) embedded words or digital images in the source code of a Web site, increase by 2 levels.''. The Commentary to Sec. 2G3.1 captioned ``Statutory Provisions'' is amended by inserting ``, 2252C'' after ``2252B''. [[Page 28564]] The Commentary to Sec. 2G3.1 captioned ``Application Notes'' is amended in Note 2 by inserting ``or Sec. 2252C'' after ``2252B''. Section 2J1.2(b) is amended in subdivision (1) by striking ``greater'' and inserting ``greatest''; by redesignating subdivisions (A) and (B) as subdivisions (B) and (C), respectively; by inserting before subdivision (B), as redesignated by this amendment, the following: ``(A) If the (i) defendant was convicted under 18 U.S.C. 1001; and (ii) statutory maximum term of eight years' imprisonment applies because the matter relates to sex offenses under 18 U.S.C. 1591 or chapters 109A, 109B, 110, or 117 of title 18, United States Code, increase by 4 levels.''; and by striking subdivision (C), as redesignated by this amendment, and inserting the following: ``(C) If the (i) defendant was convicted under 18 U.S.C. 1001 or 1505; and (ii) statutory maximum term of eight years' imprisonment applies because the matter relates to international terrorism or domestic terrorism, increase by 12 levels.''. The Commentary to Sec. 2J1.2 captioned ``Statutory Provisions'' is amended by striking ``when the statutory maximum'' and all that follows through ``applicable,'' and inserting the following: ``(when the statutory maximum term of eight years' imprisonment applies because the matter relates to international terrorism or domestic terrorism, or to sex offenses under 18 U.S.C. 1591 or chapters 109A, 109B, 110, or 117 of title 18, United States Code),''. The Commentary to Sec. 2J1.2 captioned ``Application Notes'' is amended in Note 2(B) by striking ``(b)(1)(B)'' and inserting ``(b)(1)(C)''. The Commentary to Sec. 2J1.2 captioned ``Application Notes'' is amended in Note 4 by inserting ``or a particularly serious sex offense'' after ``face)''. The Commentary to Sec. 2J1.2 captioned ``Application Notes'' is amended in Note 5 by inserting ``(B)'' after ``Subsection (b)(1)'' each place it appears; and by inserting ``(B)'' after ``under subsection (b)(1)''. Section 3D1.2(d) is amended by inserting as a new line ``Sec. 2A3.5;'' before the line that begins ``Sec. Sec. 2B1.1''; and by inserting ``(except Sec. 2A3.5)'' after ``Chapter Two, Part A''. The Commentary to Sec. 4B1.5 captioned ``Application Notes'' is amended by striking Note 1 and inserting the following: ``1. Definition.--For purposes of this guideline, `minor'' means (A) an individual who had not attained the age of 18 years; (B) an individual, whether fictitious or not, who a law enforcement officer represented to a participant (i) had not attained the age of 18 years; and (ii) could be provided for the purposes of engaging in sexually explicit conduct; or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.''. The Commentary to Sec. 4B1.5 captioned ``Application Notes'' is amended in Note 2 by inserting ``or (iv) 18 U.S.C. 1591;'' after ``individual;''; and by striking ``(iii)'' after ``through'' and inserting ``(iv)''. The Commentary to Sec. 4B1.5 captioned ``Background'' is amended by striking the first and second sentences and inserting: ``This guideline applies to offenders whose instant offense of conviction is a sex offense committed against a minor and who present a continuing danger to the public.''. Section 5B1.3(a)(9) is amended by inserting ``(A) in a state in which the requirements of the Sex Offender Registration and Notification Act (see 42 U.S.C. 16911 and 16913) do not apply,'' before ``a defendant convicted''; by inserting ``(Pub. L. 105-119, Sec. 115(a)(8), Nov. 26, 1997)'' after ``4042(c)(4)''; by inserting ``or'' after ``student;'' and by adding at the end the following: ``(B) in a state in which the requirements of Sex Offender Registration and Notification Act apply, a sex offender shall (i) register, and keep such registration current, where the offender resides, where the offender is an employee, and where the offender is a student, and for the initial registration, a sex offender also shall register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence; (ii) provide information required by 42 U.S.C. 16914; and (iii) keep such registration current for the full registration period as set forth in 42 U.S.C. 16915;''. Section 5B1.3(d)(7) is amended by adding at the end the following: ``(C) A condition requiring the defendant to submit to a search, at any time, with or without a warrant, and by any law enforcement or probation officer, of the defendant's person and any property, house, residence, vehicle, papers, computer, other electronic communication or data storage devices or media, and effects, upon reasonable suspicion concerning a violation of a condition of probation or unlawful conduct by the defendant, or by any probation officer in the lawful discharge of the officer's supervision functions.''. Section 5B1.3 is amended by adding at the end the following: Commentary Application Note: 1. Application of Subsection (b)(9)(A) and (B).--Some jurisdictions continue to register sex offenders pursuant to the sex offender registry in place prior to July 27, 2006, the date of enactment of the Adam Walsh Act, which contained the Sex Offender Registration and Notification Act. In such a jurisdiction, subsection (b)(9)(A) will apply. In a jurisdiction that has implemented the requirements of the Sex Offender Registration and Notification Act, subsection (b)(9)(B) will apply. (See 42 U.S.C. 16911 and 16913.)''. The Commentary to Sec. 5D1.2 captioned ``Application Notes'' is amended by striking Note 1 and inserting: ``1. Definitions.--For purposes of this guideline: `Sex offense' means (A) an offense, perpetrated against a minor, under (i) chapter 109A of title 18, United States Code; (ii) chapter 109B of such title; (iii) chapter 110 of such title, not including a recordkeeping offense; (iv) chapter 117 of such title, not including transmitting information about a minor or filing a factual statement about an alien individual; (v) an offense under 18 U.S.C. 1201; or (vi) an offense under 18 U.S.C. 1591; or (B) an attempt or a conspiracy to commit any offense described in subdivisions (A)(i) through (vi) of this note. `Minor' means (A) an individual who had not attained the age of 18 years; (B) an individual, whether fictitious or not, who a law enforcement officer represented to a participant (i) had not attained the age of 18 years; and (ii) could be provided for the purposes of engaging in sexually explicit conduct; or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.''. Section 5D1.3(a)(7) is amended by inserting ``(A) in a state in which the requirements of the Sex Offender Registration and Notification Act (see 42 U.S.C. 16911 and 16913) do not apply,'' before ``a defendant''; by inserting ``(Pub. L. 105-119, Sec. 115(a)(8), Nov. 26, 1997)'' after ``4042(c)(4)''; by inserting ``or'' after ``student;'' and by adding at the end the following: ``(B) in a state in which the requirements of Sex Offender Registration and Notification Act apply, a sex offender shall (i) register, and keep such registration current, where the offender resides, where the offender is an employee, and where the offender is a student, and for the initial registration, a sex offender also shall register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence; (ii) provide information required by 42 U.S.C. 16914; and (iii) keep such registration current for the full registration period as set forth in 42 U.S.C. 16915;''. Section 5D1.3(d)(7) is amended by adding at the end the following: ''(C) A condition requiring the defendant to submit to a search, at any time, with or without a warrant, and by any law enforcement or probation officer, of the defendant's person and any property, house, residence, vehicle, papers, computer, other electronic communication or data storage devices or media, and effects upon reasonable suspicion concerning a violation of a condition of supervised release or unlawful conduct by the defendant, or by any probation officer in the lawful discharge of the officer's supervision functions.''. [[Page 28565]] Section 5D1.3 is amended by adding at the end the following: ``Commentary Application Note: 1. Application of Subsection (b)(7)(A) and (B).--Some jurisdictions continue to register sex offenders pursuant to the sex offender registry in place prior to July 27, 2006, the date of enactment of the Adam Walsh Act, which contained the Sex Offender Registration and Notification Act. In such a jurisdiction, subsection (b)(7)(A) will apply. In a jurisdiction that has implemented the requirements of the Sex Offender Registration and Notification Act, subsection (b)(7)(B) will apply. (See 42 U.S.C. 16911 and 16913.)''. Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. 1001 by striking ``when the statutory'' and all that follows through ``applicable'' and inserting the following: ``(when the statutory maximum term of eight years' imprisonment applies because the matter relates to international terrorism or domestic terrorism, or to sex offenses under 18 U.S.C. 1591 or chapters 109A, 109B, 110, or 117 of title 18, United States Code)''. Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. 2245 the following: ``18 U.S.C. 2250(a)--2A3.5 18 U.S.C. 2250(c)--2A3.6''; by inserting after the line referenced to 18 U.S.C. 2252B the following: ``18 U.S.C. 2252C--2G3.1''; by inserting after the line referenced to 18 U.S.C. 2257 the following: ``18 U.S.C. 2257A--2G2.5''; and by inserting after the line referenced to 18 U.S.C. 2260(b) the following: ``18 U.S.C. 2260A 2A3.6''-- Reason for Amendment: This amendment responds to the Adam Walsh Child Protection and Safety Act of 2006 (the ``Adam Walsh Act''), Pub. L. 109-248, which contained a directive to the Commission, created new sexual offenses, and enhanced penalties for existing sexual offenses. The amendment implements the directive by creating two new guidelines, Sec. Sec. 2A3.5 (Criminal Sexual Abuse and Offenses Related to Registration as a Sex Of