Sentencing Guidelines for United States Courts, 4782-4804 [06-697]

Agencies

• United States Sentencing Commission

[Federal Register Volume 71, Number 18 (Friday, January 27, 2006)]
[Notices]
[Pages 4782-4804]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-697]



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Part III





United States Sentencing Commission





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Sentencing Guidelines for United States Courts; Notice

Federal Register / Vol. 71, No. 18 / Friday, January 27, 2006 / 
Notices

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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of proposed amendments; request for public comment; 
notice of public hearings.

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SUMMARY: (A) Proposed Temporary, Emergency Amendment Pertaining to 
Steroid Offenses.--Pursuant to section 994(a), (o), and (p) of title 
28, United States Code, section 3 of the Anabolic Steroid Control Act 
of 2004, Pub. L. 108-358, and the United States Parole Commission 
Extension and Sentencing Commission Authority Act of 2005, Pub. L. 109-
75, the Commission is considering promulgating a temporary, emergency 
amendment to the sentencing guidelines, policy statements, and 
commentary to increase the penalties for steroid offenses. This notice 
sets forth the proposed amendment and a synopsis of the issues 
addressed by the amendment. Issues for comment follow the proposed 
amendment.
    (B) Proposed Non-Emergency Amendments.--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 and issues for comment 
regarding immigration offenses, particularly offenses covered by 
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; 
etc.) and 2L2.2 (Fraudulently Acquiring Documents Relating to 
Naturalization, Citizenship, or Legal Resident Status for Own Use); (B) 
proposed amendments to Sec. Sec.  2K2.1 (Unlawful Receipt, Possession, 
or Transportation of Firearms or Ammunition; Prohibited Transactions 
Involving Firearms or Ammunition), 1B1.1 (Application Instructions), 
and 5K2.11 (Lesser Harms), and issues for comment pertaining to 
firearms offenses; (C) proposed repromulgation of the proposed 
temporary, emergency amendment to Sec. Sec.  2D1.1 (Unlawful 
Manufacturing, Importing, Exporting, or Trafficking (Including 
Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy), and 3B1.3 (Hate Crime Motivation and Vulnerable Victim) 
set forth in Part A of this notice; (D) proposed amendment to 
repromulgate as a permanent amendment the temporary, emergency 
amendment to Sec.  2B5.3 (Criminal Infringement of Copyright or 
Trademark), which became effective October 24, 2004 (see Supplement to 
Appendix C, (Amendment 675)); (E) proposed amendment to repromulgate as 
a permanent amendment the temporary, emergency amendment to Sec.  2J1.2 
(Obstruction of Justice), which became effective October 24, 2005 (see 
Supplement to Appendix C, (Amendment 676)); (F) proposed amendments 
Sec. Sec.  2A1.4 (Involuntary Manslaughter), 2A5.2 (Interference with 
Flight Crew Member or Flight Attendant; Interference with Dispatch, 
Operation, or Maintenance of Mass Transportation Vehicle or Ferry), 
2B1.1 (Theft, Fraud, and Property Destruction), 2K1.4 (Arson; Property 
Damage by Use of Explosives), and Chapter Two, Part X (Other Offenses) 
to implement the Safe, Accountable, Flexible, Efficient Transportation 
Act: A Legacy for Users, Pub. L. 109-59; (G) proposed amendments to 
Sec. Sec.  2A6.1 (Threatening Communications), 2K2.1 (Unlawful Receipt, 
Possession, or Transportation of Firearms or Ammunition; Prohibited 
Transactions Involving Firearms or Ammunition), 2L1.1 (Smuggling, 
Transporting, or Harboring an Unlawful Alien), 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) to implement 
the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. 
108-458; (H) proposed amendments to (i) Chapter Three (Adjustments) to 
implement the directive to the Commission in section 204(b) of the 
Intellectual Property Protection and Courts Administration Act of 2004, 
Pub. L. 108-482; and (ii) Sec.  2G2.5 (Recordkeeping Offenses Involving 
the Production of Sexually Explicit Materials) to implement section 
5(d)(1) of the CAN-SPAM Act, Pub. L. 108-187; (I) proposed amendments 
to (i) Sec. Sec.  2B1.1 and 2B1.5 (Theft of, Damage to, or Destruction 
of, Cultural Heritage Resources; Unlawful Sale, Purchase, Exchange, 
Transportation, or Receipt of Cultural Heritage Resources) to implement 
the Veterans' Memorial Preservation and Recognition Act of 2003, Pub. 
L. 108-29; (ii) Sec.  2N2.1 (Violations of Statutes and Regulations 
Dealing With Any Food, Drug, Biological Product, Device, Cosmetic, or 
Agricultural Product) to implement the Plant Protection Act of 2002, 
Pub. L. 107-171; (iii) Sec.  2T3.1 (Evading Import Duties or 
Restrictions (Smuggling); Receiving or Trafficking in Smuggled Property 
) to implement the Clean Diamond Trade Act of 2003, Pub. L. 108-19; 
(iv) 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), and 2X5.1 to implement the Unborn 
Victims of Violence Act of 2004, Pub. L. 108-212; and (v) Chapter Two, 
Part X (Other Offenses) to implement several other laws that created 
new Class A Misdemeanor offenses; (J) proposed amendments to Sec.  
2D1.1 and Chapter Three (Adjustments) to address various guideline 
application issues; (K) proposed amendment to Sec.  3C1.1 (Obstruction 
of Justice) that addresses three issues of circuit conflict; (L) issue 
for comment pertaining to attorney-client waiver in Chapter Eight 
(Sentencing of Organizations); (M) proposed amendment to Chapter Six 
(Sentencing Procedures and Plea Agreements) pertaining to crime 
victims' rights; and (N) proposed amendment to Chapter One, Part B 
(General Application Principles) pertaining to reductions in the term 
of imprisonment based on a Bureau of Prisons motion.

DATES: (A) Proposed Temporary, Emergency Amendment.--Written public 
comment on the proposed emergency amendment should be received by the 
Commission not later February 27, 2006, in anticipation of a vote to 
promulgate the emergency amendments at the Commission's March 2006 
public meeting. Thereafter, written public comment on whether to 
repromulgate the emergency amendment as a permanent, non-emergency 
amendment should be received by the Commission not later than March 28, 
2006.
    (B) Proposed Non-Emergency Amendments.--Written public comment 
regarding the proposed

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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 
28, 2006.
    (C) Public Hearings.--The Commission has scheduled a public hearing 
on its proposed amendments for March 15, 2006, at the Thurgood Marshall 
Federal Judiciary Building, One Columbus Circle, NE., Washington, DC 
20002-8002. A person who desires to testify at the public hearing 
should notify Michael Courlander, Public Affairs Officer, at (202) 502-
4597, not later than February 17, 2006. Written testimony for the 
public hearing must be received by the Commission not later than March 
1, 2006. Timely submission of written testimony is a requirement for 
testifying at the public hearing. The Commission requests that, to the 
extent practicable, commentators submit an electronic version of the 
comment and of the testimony for the public hearing. The Commission 
also reserves the right to select persons to testify at any of the 
hearings and to structure the hearings as the Commission considers 
appropriate and the schedule permits. Further information regarding the 
public hearing, including the time of the hearing, will be provided by 
the Commission on its Web site at https://www.ussc.gov.
    In addition to the March public hearing, the Commission has 
scheduled two regional public hearings on the proposed immigration 
amendment. The first hearing will be held in San Antonio, TX, on 
February 21, 2006. The second hearing will be held in San Diego, CA, on 
March 6, 2006. Further information regarding these hearings, including 
the time and location, will be provided by the Commission on its Web 
site.

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? For example, should Specific 
Offense Characteristics that are infrequently applied be deleted and 
instead included as bases for upward departures? Should Specific 
Offense Characteristics that provide graduated increases for degrees of 
conduct be collapsed to provide a single offense level increase? For 
example, should a firearm enhancement that provides alternative offense 
level increases based on how a firearm was involved in the offense 
(e.g., discharged, brandished, possessed, or otherwise used) provide a 
single offense level increase for the involvement of a firearm?
    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 on 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, including the Interim Staff Report on 
Immigration Reform and the Federal Sentencing Guidelines, may be 
accessed through the Commission's Web site at https://www.ussc.gov.

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

Ricardo H. Hinojosa,
Chair.

A. Proposed Emergency Amendment

1. Steroids

    Synopsis of Proposed Amendment: This proposed amendment implements 
the directive in the United States Parole Commission Extension and 
Sentencing Commission Authority Act of 2005, Pub. L. 109-76, which 
requires the Commission, under emergency amendment authority, to 
implement section 3 of the Anabolic Steroid Control Act of 2004, Pub. 
L. 108-358 (the ``ASC Act''). The ASC Act directs the Commission to 
``review the Federal sentencing guidelines with respect to offenses 
involving anabolic steroids'' and ``consider amending the * * * 
guidelines to provide for increased penalties with respect to offenses 
involving anabolic steroids in a manner that reflects the seriousness 
of such offenses and the need to deter anabolic steroid trafficking and 
use * * *.'' The Commission must promulgate an amendment not later than 
180 days after the date of enactment of the United States Parole 
Commission Extension and Sentencing Commission Authority Act of 2005, 
which creates a promulgation deadline of March 27, 2006.
    The proposed amendment implements the directives by increasing the 
penalties for offenses involving anabolic steroids. It does so by 
changing the manner in which anabolic steroids are treated under Sec.  
2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking 
(Including Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy). Currently, one unit of an anabolic steroid ``means a 10 cc 
vial of an injectable steroid or fifty tablets.'' The proposed 
amendment presents two options for increasing penalties. Option One 
bases the offense level in an anabolic steroid offense on the 
``actual'' quantity of steroid involved in the offense and provides 
that one unit of an anabolic steroid means

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[25][50][100] mg of an anabolic steroid, regardless of the form 
involved in the offense (e.g., patch, cream, tablet, liquid). At 25 mg, 
sentencing penalties would be increased approximately 6-8 levels above 
current offense levels, and would closely approximate a 1:1 ratio with 
other Schedule III substances. At 50 mg, sentencing penalties would be 
increased approximately 4-6 levels above current offense levels, and at 
100 mg, sentencing penalties would be increased approximately 2-4 
levels above current offense levels. This option also includes a 
rebuttable presumption that the label, shipping manifest, or other 
similar documentation accurately reflects the purity of the steroid. 
Option Two eliminates the sentencing distinction between anabolic 
steroids and other Schedule III substances. Accordingly, if an anabolic 
steroid is in a pill, tablet, capsule, or liquid form, the court would 
sentence as it would in any other case involving a Schedule III 
substance. For anabolic steroids in other forms, the proposed amendment 
instructs the court that [1 unit means 25 mg and that] the court may 
determine the base offense level using a reasonable estimate of the 
quantity of anabolic steroid involved in the offense.
    The proposed amendment also provide new enhancements designed to 
capture aggravating harms involved in anabolic steroid cases. First, 
the proposed amendment amends Sec.  2D1.1 to provide an increase of two 
levels if the offense involved the distribution of a masking agent. A 
masking agent is a product added to, or taken with, an anabolic steroid 
to prevent the detection of the anabolic steroid in an individual's 
body. Second, the proposed amendment amends Sec.  2D1.1 to provide an 
increase of two levels if the defendant distributed an anabolic steroid 
to a professional, college, or high school athlete. Third, the proposed 
amendment presents two options for increasing penalties for coaches who 
distribute anabolic steroids to their athletes. Option One provides, as 
an alternative to the proposed enhancement for distribution to an 
athlete, a two-level increase in Sec.  2D1.1 if the defendant used the 
defendant's position as a coach of athletic activity to influence an 
athlete to use an anabolic steroid. Option Two amends Application Note 
2 of Sec.  3B1.3 (Abuse of Position of Trust or Use of Special Skill) 
to include a coach who uses his or her position to influence an athlete 
to use an anabolic steroid in the list of special circumstances to 
which the two level adjustment in Sec.  3B1.3 shall apply.
    Two issues for comment follow the proposed amendment. The first 
pertains to whether the Commission, when it repromulgates the proposed 
amendment as a permanent amendment, should expand the scope of the 
enhancements to cover all controlled substances, not just anabolic 
steroids. The second issues pertains to whether the penalties for 
steroid offenses should be based on quantities typical of offenses 
involving mid- and high-level dealers.
    Proposed Amendment: Section 2D1.1 is amended by redesignating 
subsections (b)(6) and (b)(7) as subsections (b)(8) and (b)(9), 
respectively; and by inserting the following after subsection (b)(5):
    ``(6) If the offense involved the distribution of (A) an anabolic 
steroid; and (B) a masking agent, increase by 2 levels.
    (7) If the defendant distributed an anabolic steroid to a 
professional, college, or high school athlete[; Option 1(for coach): or 
(B) the defendant used the defendant's position as a coach of an 
athletic activity to influence a professional, college, or high school 
athlete to use an anabolic steroid], increase by 2 levels. ]''.
    [Option 1 (for steroids): Section 2D1.1(c) is amended in the 
``*Notes to the Drug Quantity Table'' by striking subdivision (G) and 
inserting the following:
    ``(G) In the case of anabolic steroids, one `unit' means 
[25][50][100] mg of an anabolic steroid, regardless of the form (e.g., 
patch, topical cream, tablet, liquid). [There shall be a rebuttable 
presumption that the label, shipping manifest, or other similar 
documentation describing the type and purity of the anabolic steroid 
accurately reflects the purity of that steroid.]''.]
    [Option 2 (for steroids): Section 2D1.1(c) is amended in the 
``*Notes to the Drug Quantity Table'' in subdivision (F) by striking 
``(except anabolic steroids)''; and by adding at the end the following:
    ``For an anabolic steroid that is not in a pill, capsule, tablet, 
or liquid form (e.g. patch, topical cream, aerosol), [(A) one `unit' 
means [25] mg; and (B)] the court may determine the base offense level 
using a reasonable estimate of the quantity of anabolic steroid 
involved in the offense.''.
    Section 2D1.1(c) is amended in the ``*Notes to the Drug Quantity 
Table'' by striking subdivision (G).]
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended by striking ``(b)(6)'' and inserting ``(b)(8)'' each place it 
appears; and by striking ``(b)(7)'' and inserting ``(b)(9)'' each place 
it appears.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended by adding at the end the following:
    ``24. Application of Subsection (b)(6).--For purposes of subsection 
(b)(6), `masking agent' means a product added to, or taken with, an 
anabolic steroid that prevents the detection of the anabolic steroid in 
an individual's body.
    25. Application of Subsection (b)(7).--For purposes of subsection 
(b)(7):
    `Athlete' means an individual who participates in an athletic 
activity conducted by (A) an intercollegiate athletic association or 
interscholastic athletic association; (B) a professional athletic 
association; or (C) an amateur athletic organization.
    `Athletic activity' means an activity that (A) has officially 
designated coaches; (B) conducts regularly scheduled practices or 
workouts that are supervised by coaches; and (C) has established 
schedules for competitive events or exhibitions.
    `College or high school athlete' means an athlete who is a student 
at an institution of higher learning (as defined in section 101 of the 
Higher Education Act of 1965 (20 U.S.C. 1001) or at a secondary school 
(as defined in section 9101 of the Elementary and Secondary Education 
Act of 1965 (20 U.S.C. 7801).
    `Professional athlete' means an individual who competes in a major 
professional league.''.
    The Commentary to Sec.  2D1.1 captioned ``Background'' is amended 
in the ninth paragraph by striking ``(b)(6)(A)'' and inserting 
``(b)(8)(A)''; and in the last paragraph by striking ``(b)(6)(B) and 
(C)'' and inserting ``(b)(8)(B) and (C)''.
    [Option 2 (for coaches): The Commentary to Sec.  3B1.3 captioned 
``Application Notes'' is amended in Note 2 in subdivision (A) by 
inserting ``Postal Service Employee.--'' before ``An employee''; in 
subdivision (B) by inserting ``Offenses Involving `Means of 
Identification'.--'' before ``A defendant''; and by adding at the end 
the following:
    ``(C) Coach of Athletic Activity.--A defendant who uses the 
defendant's position as a coach of an athletic activity to influence a 
professional, college, or high school athlete to use an anabolic 
steroid.
    For purposes of this guideline:
    (i) `Athlete' means an individual who participates in an athletic 
activity conducted by (I) an intercollegiate athletic association or 
interscholastic athletic association; (II) a professional athletic 
association; or (III) an amateur athletic organization.
    (ii) `Athletic activity' means an activity that (I) has officially 
designated coaches; (II) conducts regularly

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scheduled practices or workouts that are supervised by coaches; and 
(III) has established schedules for competitive events or exhibitions.
    (iii) `College, or high school athlete' means an athlete who is a 
student at an institution of higher learning (as defined in section 101 
of the Higher Education Act of 1965 (20 U.S.C. 1001) or at a secondary 
school (as defined in section 9101 of the Elementary and Secondary 
Education Act of 1965 (20 U.S.C. 7801).
    (iv) `Professional athlete' means an individual who competes in a 
major professional league.]''.
    Issues for Comment:
    (1) The Commission requests comment regarding whether, when the 
Commission re-promulgates the temporary, emergency amendment as a 
permanent amendment, it should expand the proposed enhancements in 
Sec.  2D1.1(b)(6) (pertaining to masking agents) and in Sec.  
2D1.1(b)(7) (pertaining to distribution of a steroid to an athlete) to 
cover offenses involving any controlled substance. Specifically, the 
proposed amendment defines ``masking agent'' as ``a product added to, 
or taken with, an anabolic steroid to prevent the detection of the 
anabolic steroid in an individual's body.'' However, masking agents 
also can be taken to prevent the detection of other controlled 
substances. The Commission requests comment regarding whether it should 
expand the definition of masking agent, and thus application of the 
enhancement, in a manner that covers all controlled substances, not 
just anabolic steroids. Similarly, there are controlled substances 
other than anabolic steroids that enhance an individual's performance. 
The Commission requests comment regarding whether the proposed 
enhancement pertaining to distribution to an athlete should be expanded 
to cover offenses involving all types of controlled substances.
    (2) The Commission requests comment regarding whether penalties for 
steroid offenses should be based on quantities typical of offenses 
involving mid- and high-level dealers. For more serious drug types 
(e.g., heroin, cocaine, marihuana), the Drug Quantity Table in Sec.  
2D1.1(c) provides an offense level of 26 for quantities typical of mid-
level dealers and an offense level of 32 for quantities typical of 
high-level dealers. These levels also correspond to the statutory 
mandatory minimum penalties for mid- and high-level dealers. Although 
there are no statutory mandatory minimum penalties establishing 
thresholds for steroid offenses, the Commission has been informed that 
a steroids dealer who provides the equivalent of one complete cycle to 
10 customers is considered to be a mid-level dealer, and a dealer who 
provides the equivalent of one complete cycle to 30 customers is 
considered to be a high-level dealer. Currently, offense levels in the 
Drug Quantity Table for anabolic steroids and other Schedule III 
substances begin at level 6 and are ``capped'' at level 20. Should the 
Commission provide a penalty structure within this range that targets 
offenses involving mid- and high-level steroid dealers, and if so, what 
offense levels should correspond to a mid-level dealer and to a high-
level dealer?

B. Proposed Non-Emergency Amendments

1. Immigration

    Synopsis of Proposed Amendment: This four part proposed amendment 
addresses issues involving immigration offenses. These issues were 
identified through review of HelpLine calls to the Commission, feedback 
from training seminars, receipt of public comment, and information 
staff gathered from an immigration roundtable discussion. Part One of 
the proposed amendment addresses issues relating to offenses sentenced 
under Sec.  2L1.1 (Smuggling, Transporting, or Harboring an Unlawful 
Alien). Part Two is a proposal to amend Sec.  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 Sec.  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). Part Three addresses issues relating 
to offenses sentenced under Sec.  2L1.2 (Unlawfully Entering or 
Remaining in the United States). Part Four presents issues for comment 
regarding the proposed amendment.
1. Section 2L1.1 (Smuggling, Transporting, or Harboring an Unlawful 
Alien)
    This part of the proposed amendment covers offenses sentenced under 
Sec.  2L1.1 (Smuggling, Transporting, or Harboring an Unlawful Alien).
A. National Security Concerns
    Currently, Sec.  2L1.1(a)(1) provides a base offense level of level 
23 if the defendant was convicted under 8 U.S.C. 1327 of a violation 
involving an alien who previously was deported after a conviction for 
an aggravated felony. Title 8, United States Code, section 1327, 
provides a statutory maximum term of imprisonment of 10 years for cases 
involving aiding or assisting certain aliens who pose a heightened risk 
to the safety of the citizens of the United States. However, Sec.  
2L1.1(a)(1) only applies to a limited subgroup of those convicted under 
Sec.  1327. This proposal provides three options to increase punishment 
for those defendants who assist ``inadmissible aliens'' in illegally 
entering the United States. All options retain the current base offense 
level of 23 for a defendant who has a conviction under 8 U.S.C. 1327 in 
a case in which the violation involved an alien ``who previously was 
deported after a conviction for an aggravated felony.'' Option One 
provides a base offense level of 25 for a defendant who is convicted of 
8 U.S.C. 1327 involving an alien who is inadmissable because of 
``security or related grounds'', as defined in 8 U.S.C. 1182(a)(3). 
Option Two provides a specific offense characteristic with an increase 
of [2-6] levels for defendants who smuggle, transport, or harbor an 
alien who was inadmissible under 8 U.S.C. 1182(a)(3). This option is 
relevant conduct based.
B. Number of Aliens
    The proposed amendment provides two options to amend Sec.  
2L1.1(b)(2) regarding the number of aliens involved in the offense. The 
first option maintains the current structure of the table, which 
provides a three-level increase for offenses involving six to 24 
aliens, a six-level increase for offenses involving 25 to 99 aliens, 
and a nine-level increase for offenses involving 100 or more aliens. 
Option One amends the table to provide a nine-level increase for 
offenses involving 100 to 199 aliens, a [12]-level increase for 
offenses involving 200 to 299 aliens, and a [15]-level increase for 
offenses involving 300 or more aliens. Option Two, in part mirrors 
Option One by providing the same increases at the top end of the table 
for offenses involving 100 or more aliens. However, Option Two also 
provides smaller categories at the low end of the table. Offenses 
involving six to [15] aliens would receive an increase of three levels, 
[16 to 49] aliens would receive an increase of [six] levels, and [50 to 
99] aliens would receive an increase of [nine] levels.
C. Endangerment of Minors
    The proposed amendment presents two options and an issue for 
comment to address offenses in which an alien

[[Page 4786]]

minor was smuggled, harbored, or transported. Option One provides a 
[2][4][6] level increase if the defendant smuggled, transported, or 
harbored a minor unaccompanied by the minor's parent. Option two 
provides a graduated increase, based upon the age of the minor 
smuggled, harbored, or transported. A four-level increase is provided 
for a defendant who smuggles a minor under the age of 12 who is 
unaccompanied by his or her parent. A two-level increase is provided 
for a defendant who smuggles a minor unaccompanied by his or her parent 
who has attained the age of 12 years, but has not attained the age of 
16 years.
D. Offenses Involving Death
    The amendment proposes several changes to the guideline in cases in 
which death occurred. First, the proposed amendment removes the 
increase of eight levels ``if death resulted'' from the current 
specific offense characteristic addressing bodily injury and places 
this increase in a stand alone specific offense characteristic. This 
new specific offense characteristic would provide an increase of [10] 
levels. Providing a separate specific offense characteristic for death 
allows for cumulative enhancements in a case in which both bodily 
injury and death occur. Additionally, the cross reference at Sec.  
2L1.1(c)(1) is expanded to cover deaths other than murder, if the 
resulting offense level is greater than the offense level determined 
under Sec.  2L1.1.
E. Abducting Aliens, or Holding Aliens for Ransom
    A [four]-level increase and a minimum offense level of [23] is 
proposed for cases in which an alien was kidnapped, abducted, or 
unlawfully restrained, or if a ransom demand was made. This proposed 
amendment addresses the concern about cases in which the unlawful 
aliens are coerced, with or without the use of physical force, or even 
with direct threats, into remaining in ``safe houses'' for long periods 
of time through coercion, implied threat, or deception. This is done so 
that the smugglers can get more money from the families of the aliens 
or so they will provide inexpensive labor. Currently, this conduct is 
not covered by Sec.  3A1.3 (Restraint of Victim) because that guideline 
only covers ``physical restraint''. The extent of the increase (four 
levels) is consistent with a similar enhancement in subsection 
(b)(7)(B) of Sec.  2A4.1 (Kidnapping, Abduction, Unlawful Restraint) 
and the minimum offense level of 23 is consistent with Sec.  2A4.2 
(Demanding or Receiving Ransom Money), which provides a base offense 
level of 23 for such offenses.
2. Sections 2L2.1 (Trafficking in a Document Relating to 
Naturalization, Citizenship, or Legal Resident Status, or a United 
States Passport; etc.) and 2L2.2 (Fraudulently Acquiring Documents 
Relating to Naturalization, Citizenship, or Legal Resident Status for 
Own Use; etc.)
    This part of the proposed amendment covers offenses sentenced under 
Sec. Sec.  2L2.1 (Trafficking in a Document Relating to Naturalization, 
Citizenship, or Legal Resident Status, or a United States Passport; 
etc.) and 2L2.2 (Fraudulently Acquiring Documents Relating to 
Naturalization, Citizenship, or Legal Resident Status for Own Use; 
etc.)
A. Number of Documents
    The proposed amendment provides two options in Sec.  2L2.1 to amend 
the specific offense characteristic involving the number of documents 
and passports involved in the offense. The two options are identical to 
the two options presented under Sec.  2L1.1 (Smuggling, Transporting, 
or Harboring an Unlawful Alien) to amend the specific offense 
characteristic (b)(2) regarding the number of aliens involved in the 
offense. The first option maintains the current structure of the table, 
which provides a three-level increase for offenses involving six to 24 
documents, a six-level increase for offenses involving 25 to 99 
documents, and a nine-level increase for offenses involving 100 or more 
documents. Option one amends the table to provide a nine-level increase 
for offenses involving 100 to 199 documents, a [12]-level increase for 
offenses involving 200 to 299 documents, and a [15]-level increase for 
offenses involving 300 or more documents. Option two, in part mirrors 
option one by providing the same increases at the top end of the table 
for offenses involving 100 or more documents. However, option two also 
provides smaller categories at the low end of the table. Offenses 
involving six to [15] documents would receive an increase of [three] 
levels, [16 to 49] documents would warrant an increase of [six] levels, 
and [50 to 99] documents would receive an increase of [nine] levels.
B. Fraudulently Obtaining or Using United States Passports or Foreign 
Passports
    The proposed amendment provides a new specific offense 
characteristic at Sec.  2L2.1(b)(5)(A) that provides a four-level 
increase in a case in which the defendant fraudulently used or obtained 
a United States passport. The same specific offense characteristic was 
added to Sec.  2L2.2, effective November 1, 2004. Addition of this 
specific offense characteristic promotes proportionality between the 
document fraud guidelines, Sec. Sec.  2L2.1 and 2L2.2. In addition, the 
proposed amendment also provides, at Sec.  2L2.1(b)(1)(B) and Sec.  
2L2.2(b)(3)(B), a two-level increase if the defendant fraudulently 
obtained or used a foreign passport.
3. Sec.  2L1.2 (Unlawfully Entering or Remaining in the United States)
    This part of the proposed amendment addresses issues relating to 
offenses sentenced under Sec.  2L1.2 (Unlawfully Entering or Remaining 
in the United States).
A. Alternative Approaches to Sentencing Under Sec.  2L1.2
    The current structure of Sec.  2L1.2 requires the court, using the 
``categorical approach'', to assess whether a prior conviction 
qualifies for a particular category under the guideline. This analysis 
is often complicated by lack of documentation, competing case law 
decisions, and the volume of cases. In addition, Sec.  2L1.2 contains 
different definitions of covered offenses from the statute. Courts, 
then, are faced with making these assessments multiple times in the 
same case. The proposed amendment provides five options to address the 
complexity of this guideline.
    The first, second, and third options amend the structure of Sec.  
2L1.2 by using the definition of aggravated felony in combination with 
the length of the sentence imposed for that prior felony conviction. 
Option one provides a 16-level increase for an aggravated felony in 
which the sentence of imprisonment imposed exceeded 13 months; a 12-
level increase for an aggravated felony in which the sentence of 
imprisonment imposed was less than 13 months; and an eight-level 
increase for all other aggravated felonies. Option two provides a 16-
level increase for an aggravated felony in which the sentence of 
imprisonment imposed exceeded two years; a 12-level increase for an 
aggravated felony in which the sentence of imprisonment imposed was at 
least one year, but less than two years; and an 8 level increase for 
all other aggravated felonies. Option three, mirroring the criminal 
history guidelines, provides a 16-level increase for an aggravated 
felony in which the sentence imposed exceeded 13 months; a 12-level 
increase for an aggravated felony in which the sentence imposed

[[Page 4787]]

was at least 60 days but did not exceed 13 months; and an 8 level 
increase for all other aggravated felonies.
    The fourth option maintains the current structure of Sec.  2L1.2, 
except that the categories of offenses delineated under this guideline 
are defined by 8 U.S.C.1101(a)(43), the statute providing definitions 
for ``aggravated felonies''. Additionally, this option provides use of 
length of sentence of imprisonment imposed in conjunction with ``crime 
of violence'' to further distinguish between the numerous types of 
prior convictions that fall within this category.
    Finally, the fifth option provides an increased base offense level 
and a reduction if the prior conviction is not a felony.
4. Issues for Comment
    Part 4 of the proposed amendment sets forth multiple issues for 
comment regarding the immigration guidelines and the proposed 
amendment.
    Proposed Amendment:
Part 1: Sec.  2L1.1

    [Please Note:
    For ease of presentation, the proposed amendments set forth in 
Part 1, Subparts A through E, are drafted independently of each 
other. If the Commission were to vote to adopt an amendment from 
each Subpart, technical and conforming amendments would be made to 
ensure proper redesignations of subsections and application notes.]

A. National Security Concerns
    [Option 1: Section 2L1.1 is amended by redesignating subsections 
(a)(1) and (a)(2) as subsections (a)(2) and (a)(3), respectively; and 
by inserting after ``Level:'' the following:
    ``(1) [25], if the defendant was convicted under 8 U.S.C. 1327 of a 
violation involving an alien who was inadmissible under 8 U.S.C. 
1182(a)(3);''; and in subsection (a)(3), as redesignated by this 
amendment, by striking ``12'' and inserting ``[12][14]''.
    The Commentary to Sec.  2L1.1 captioned ``Application Notes'' is 
amended by redesignating Notes 2 through 6 as Notes 3 through 7, 
respectively; and by inserting after Note 1 the following:
    ``2. Application of Subsection (a)(1).--Subsection (a)(1) applies 
in cases in which the defendant is convicted under 18 U.S.C. 1327 of 
knowingly smuggling certain aliens inadmissible under 8 U.S.C. 
1182(a)(3). Section 1327 requires that the defendant know that the 
alien is ineligible to be admitted into the United States, however, it 
does not require that the defendant have specific knowledge as to why 
the defendant is ineligible for admission.''.]
    [Option 2 (for national security): Section 2L1.1 is amended by 
redesignating subsections (b)(3) through (b)(6) as subsections (b)(4) 
through (b)(7), respectively; and by inserting after subsection (b)(2) 
the following:
    ``(3) If the defendant smuggled, transported, or harbored an alien 
who was inadmissible under 8 U.S.C. 1182(a)(3), increase by [2][4][6] 
levels.''.]
B. Number of Aliens
    [Option 1: Section 2L1.1(b)(2) is amended by striking subdivision 
(C) and inserting the following:
    ``(C) 100-199 add 9
    (D) 200-299 add [12]
    (E) 300 or more add [15].''.]
    [Option 2: Section 2L1.1(b)(2) is amended by striking subdivisions 
(A) through (C) and inserting the following:
    ``(A) 6-[15] add 3
    (B) [16-49] add [6]
    (C) [50-99] add [9]
    (D) [100-199] add [12]
    (E) [200-299] add [15]
    (F) [300 or more] add [18].''.]
    The Commentary to Sec.  2L1.1 captioned ``Application Notes'' is 
amended in Note 4 by inserting ``Application of Subsection (b)(2).--'' 
before ``If''; and by striking ``100'' and inserting ``300''.
C. Endangerment of Minors
    Section 2L1.1 is amended by redesignating subsections (b)(3) 
through (b)(6) as subsections (b)(4) through (b)(7), respectively; and 
by inserting the following after subsection (b)(2):
    [Option 1:
    ``(3) If the defendant smuggled, transported, or harbored a minor 
who was unaccompanied by the minor's parent, increase by [2][4][6] 
levels.''.]
    [Option 2:
    ``(3) If (A) the defendant smuggled, transported, or harbored a 
minor who was unaccompanied by the minor's parent; and (B) the minor 
(i) had not attained the age of 12 years, increase by [4] levels; or 
(ii) had attained the age of 12 years but had not attained the age of 
16 years, increase by [2] levels.''.]
D. Offenses Involving Death
    Subsection (b)(6) is amended by striking ``died or''; by striking 
``Death or''; by redesignating subdivisions (1) through (3) as 
subdivisions (A) through (C), respectively; by inserting a period after 
``6 levels''; and by striking subdivision (4).
    Section 2L1.1 is amended by inserting after subsection (b)(6) the 
following:
    ``(7) If the offense resulted in the death of any person, increase 
by [10] levels.''.
    Subsection 2L1.1 is amended by striking subsection (c) and 
inserting the following:
    ``(c) Cross Reference
    (1) If death resulted, apply the appropriate homicide guideline 
from Chapter Two, Part A, Subpart 1, if the resulting offense level is 
greater than that determined under this guideline.''.
E. Abducting Aliens or Holding Aliens for Ransom
    Section 2L1.1(b) is amended by adding at the end the following:
    ``(7) If an alien was kidnapped, abducted, or unlawfully 
restrained, or if a ransom demand was made, increase by [4] levels. If 
the resulting offense level is less than level [23], increase to level 
[23].''.
Part 2: Sec. Sec.  2L2.1 and 2L2.2
A. Number of Documents
    [Option 1: Subsection 2L2.1(b)(2) is amended by striking 
subdivision (C) and inserting the following:
    ``(C) 100-199 add 9
    (D) 200-299 add [12]
    (E) 300 or more add [15].''.]
    [Option 2: Section 2L2.1(b)(2) is amended by striking subdivisions 
(A) through (C) and inserting the following:
    ``(A) 6-[15] add 3
    (B) [16-49] add [6]
    (C) [50-99] add [9]
    (D) [100-199] add [12]
    (E) [200-299] add [15]
    (F) [300 or more] add [18].''.]
    The Commentary to Sec.  2L2.1 captioned ``Application Notes'' is 
amended in Note 5 by inserting ``Application of Subsection (b)(2).--'' 
before ``If''; and by striking ``100'' and inserting ``300''.
B. Fraudulently Obtaining or Using United States Passports or Foreign 
Passports
    Section 2L2.1(b) is amended by adding at the end the following:
    ``(5) If the defendant fraudulently obtained or used (A) a United 
States passport, increase by 4 levels; or (B) a foreign passport, 
increase by 2 levels.''.
    Section 2L2.2(b)(3) is amended by inserting ``(A)'' after ``used'' 
and by inserting ``; or (B) a foreign passport, increase by 2 levels'' 
after ``4 levels''.
Part 3: Sec.  2L1.2
    [Option 1: Section 2L1.2(b)(1) is amended by striking subdivisions 
(A) and (B) and inserting the following:
    ``(A) a conviction for an aggravated felony for which a sentence of 
imprisonment exceeding 13 months was imposed, increase by 16 levels;
    ``(B) a conviction for an aggravated felony for which a sentence of 
imprisonment of 13 months or less was imposed, increase by 12 
levels;''; and in subdivision (C) by inserting ``not covered by 
subdivision (b)(1)(A) or (b)(1)(B)'' after ``felony''.]

[[Page 4788]]

    (Option 2: Section 2L1.2(b)(1) is amended by striking subdivisions 
(A) and (B) and inserting the following:
    ``(A) a conviction for an aggravated felony for which the sentence 
imposed exceeded 2 years, increase by 16 levels;
    (B) a conviction for an aggravated felony for which the sentence 
imposed was at least 12 months but did not exceed 2 years, increase by 
12 levels;''; and in subdivision (C) by inserting ``not covered by 
subdivision (b)(1)(A) or (b)(1)(B)'' after ``felony''.]
    [Option 3: Section 2L1.2(b)(1) is amended by striking subdivisions 
(A) and (B) and inserting the following:
    ``(A) a conviction for an aggravated felony for which the sentence 
imposed exceeded 13 months, increase by 16 levels;
    (B) a conviction for an aggravated felony for which the sentence 
imposed was at least 60 days but did not exceed 13 months, increase by 
12 levels;''; and in subdivision (C) by inserting ``not covered by 
subdivision (b)(1)(A) or (b)(1)(B)'' after ``felony''.]


    [Please Note:
    The following proposed Commentary amendments would be used with 
Options 1, 2, and 3)]:


    The Commentary to Sec.  2L1.2 captioned ``Application Notes'' is 
amended in Note 1 by striking subdivisions (B)(i) through (B)(viii) and 
inserting the following:
    ``(i) `Aggravated felony' has the meaning given that term in 
section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. 
1101(a)(43)), without regard to the date of conviction for the 
aggravated felony.
    (ii) `Aggravated felony not covered by subdivision (b)(1)(A) or 
(b)(1)(B)' means an aggravated felony for which the sentence imposed 
was a sentence other than imprisonment (e.g., probation).
    (iii) `Felony' means any Federal, State, or local offense 
punishable by imprisonment for a term exceeding one year.
    (iv) `Sentence of imprisonment' has the meaning given that term in 
Application Note 2 and subsection (b) of Sec.  4A1.2 (Definitions and 
Instructions for Computing Criminal History), without regard to the 
date of the conviction. The length of the sentence imposed includes any 
term of imprisonment given upon revocation of probation, parole, or 
supervised release.''.
    The Commentary to Sec.  2L1.2 captioned ``Application Notes'' is 
amended by striking Notes 2 and 3; and by redesignating Notes 4 through 
6 as Notes 2 through 4, respectively.
    [Option 4: Section 2L1.2(b) is amended in subdivision (A) by 
striking ``a felony'' and inserting ``an aggravated felony''; and by 
inserting ``for which the sentence imposed exceeded 13 months'' after 
``violence''; in subdivision (B) by striking ``a felony'' and inserting 
``an aggravated felony that is a (i)''; by striking the comma after 
``less'' and inserting ``; (ii) crime of violence for which the 
sentence imposed was 13 months or less,''; and in subdivision (C) by 
inserting ``not covered by subdivision (b)(1)(A) or (b)(1)(B)'' after 
``felony''.
    The Commentary to Sec.  2L1.2 captioned ``Application Notes'' is 
amended in Note 1 by striking subdivisions (B)(ii) through (B)(vi) and 
inserting the following:
    ``(ii) `Child pornography offense' is an offense described in 8 
U.S.C. 1101(a)(43)(I).
    (iii) `Crime of violence' has the meaning given that term in 18 
U.S.C. 16.
    (iv) `Drug trafficking offense' has the meaning given that term in 
18 U.S.C. 924(c).
    (v) `Firearms offense' is an offense described in 8 U.S.C. 
1101(a)(43)(C) and (E).
    (vi) `Human trafficking offense' is an offense described in 8 
U.S.C. 1101(a)(43)(K).''; and by striking subdivision (B)(viii) and 
inserting the following:
    ``(viii) `National security or terrorism offense' is an offense 
described in 8 U.S.C. 1101(a)(43)(L).''.]
    [Option 5: Section 2L1.2 is amended in subsection (a) by striking 
``8'' and inserting ``[16][20][24]''; and by striking subsection (b)(1) 
and inserting the following:
    ``(1) If the defendant does not have a prior conviction for a 
felony, decrease by [8][6][4] levels.''.
    The Commentary to Sec.  2L1.2 captioned ``Application Notes'' is 
amended by striking Notes 1, 3, 4, and 6; by redesignating Notes 2 and 
5 as Notes 1 and 2, respectively.
Part 4. Issues for Comment
    (1) The proposed amendment to Sec.  2L1.1 provides options for 
addressing defendants who smuggle, transport, or harbor any alien who 
is inadmissible under 8 U.S.C. 1182(a)(3). Certain sections of 8 U.S.C. 
1182(a)(3), however, are very broad, such as subsection (a)(3)(A)(iii) 
(pertaining to inadmissibility due to an intent to commit ``any other 
unlawful activity''), or are unrelated to the national security risks 
associated with terrorism, such as subsections (a)(3)(D) (pertaining to 
membership in a totalitarian party) and (a)(3)(E) (pertaining to 
participants in Nazi persecutions). The Commission requests comment 
regarding whether it should more specifically identify, for purposes of 
either a heightened base offense level or a specific offense 
characteristic, the subsections of 8 U.S.C. 1182(a)(3) that pertain to 
terrorism or to other national security provisions. For example, should 
either a heightened base offense level or a specific offense 
characteristic be limited to 8 U.S.C. 1182(a)(3)(A)(i) (pertaining to 
espionage or sabotage), (a)(3)(A)(iii) (pertaining to overthrow of the 
United States Government), (a)(3)(B) (pertaining to terrorist 
activities), and (a)(3)(F) (pertaining to association with terrorist 
organizations)?
    Additionally, the Commission requests comment regarding whether 
Sec.  2L1.1 should provide a heightened base offense level if the 
defendant were convicted under 8 U.S.C. 1327 (Aiding or assisting 
certain aliens to enter) and a specific offense characteristic that 
would apply cumulatively if the defendant smuggled, transported, or 
harbored an alien the defendant knew to be inadmissible under 8 U.S.C. 
1182(a)(3).
    (2) The proposed amendment provides new specific offense 
characteristics that are defendant-based (i.e., the defendant's 
liability is limited to the defendant's own conduct and conduct that 
the defendant aided or abetted, counseled, commanded, induced, 
procured, or willfully caused) rather than offense-based (i.e., 
expanded relevant conduct). See proposed amendment, Sec.  2L1.1(b)(3) 
(pertaining to smuggling inadmissible aliens) and (b)(4) (pertaining to 
smuggling a minor unaccompanied by the minor's parent). The Commission 
requests comment regarding whether these specific offense 
characteristics should be offense based rather than defendant based. 
Alternatively, should the proposed enhancement in Sec.  2L1.1(b)(10) 
(pertaining to kidnapping an alien) be defendant-based rather than 
offense-based, as it is currently proposed?
    (3) The proposed amendment to Sec.  2L1.1 includes an enhancement 
for a defendant who smuggled, transported, or harbored a minor who was 
unaccompanied by the minor's parent. The Commission requests comment 
regarding whether such conduct is better addressed in the context of 
Sec.  3A1.1 (Hate Crime Motivation or Vulnerable Victim).
    (4) The Commission requests comment regarding whether it should 
increase the base offense levels in Sec. Sec.  2L2.1 and 2L2.2.
    (5) Currently, Sec.  2L2.2 provides an increase of four levels if 
the defendant fraudulently obtained or used a United States passport. 
The proposed amendment would add this

[[Page 4789]]

enhancement to Sec.  2L2.1 and also provide an enhancement of two 
levels in both Sec. Sec.  2L2.1 and 2L2.2 if the defendant fraudulently 
obtained or used a foreign passport. As an alternative to the proposed 
amendment, the Commission requests comment regarding whether it should 
provide a [four-level] enhancement in both Sec. Sec.  2L2.1 and 2L2.2 
regardless of whether the passport was issued by the United States or a 
foreign country. Additionally, the Commission requests comment 
regarding whether other types of documents should be included in the 
enhancement. If so, what types of documents should be included? For 
example, should the proposed 2-level enhancement also apply in the case 
of a defendant who fraudulently obtains or used a driver's license?
    Additionally, the Commission requests comment regarding whether it 
should provide an application note in Sec. Sec.  2L2.1 and 2L2.2 that 
instructs the court not to apply Sec.  2L2.1(b)(2), proposed Sec.  
2L2.1(b)(5), or Sec.  2L2.2(b)(3) if the documents are so obviously 
counterfeit that they are unlikely to be accepted even if subjected to 
only minimal scrutiny. The guidelines currently provide such an 
application note in Sec.  2B5.1 (Offenses Involving Counterfeit Bearer 
Obligations of the United States).
    (6) The Commission requests comment regarding whether the prior 
convictions used to increase a defendant's offense level under Sec.  
2L1.2 should be subject to the rules of criminal history found at Sec.  
4A1.2. For example, if a prior conviction is too old to be counted for 
the purposes of criminal history, should that prior conviction also be 
too old to count for the purposes of Sec.  2L1.2? Alternatively, should 
such a conviction be the basis for a reduction?
    (7) Before May 1997, the table for number of aliens in Sec.  
2L1.1(b)(2) provided increases of two level increments. In May 1997, in 
response to a directive to increase the enhancement in Sec.  
2L1.1(b)(2) by at least 50 percent (see section 203 of the Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 
104-208), the Commission amended the table to provide increases of 
three level increments. At that time, the Commission also similarly 
amended the table in Sec.  2L2.1 pertaining to the number of documents. 
The Commission requests comment regarding whether it should amend these 
tables to provide increases of two level increments. Any such change 
would be done in a manner that complies with the directive in the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
    (8) As an alternative to Option 5 for amending Sec.  2L1.2, the 
Commission requests comment regarding whether it should provide a 
guideline that is in essence an inversion of the current structure of 
Sec.  2L1.2. Currently, Sec.  2L1.2 provides increases based on the 
type of prior conviction. Should the Commission consider multiple 
reductions based on the type of prior conviction?

2. Firearms

    Synopsis of Proposed Amendment: This proposed amendment addresses 
various issues pertaining to the firearms guideline, Sec.  2K2.1 
(Unlawful Receipt, Possession, or Transportation of Firearms or 
Ammunition; Prohibited Transactions Involving Firearms or Ammunition), 
and to other firearm provisions in the guidelines.
    First, the proposed amendment addresses offenses involving a weapon 
described in 18 U.S.C. 921(a)(30), which expired on September 13, 2004. 
Although possession of such a weapon is no longer covered by 18 U.S.C. 
921, possession of certain weapons, particularly by a prohibited 
person, may still be considered an aggravating factor warranting an 
increase in the base offense level. The proposed amendment presents two 
options for providing increases for possession of weapons previously 
covered by 18 U.S.C. 921(a)(30). Currently, Sec.  2K2.1 has four base 
offense level provisions that are triggered by the offense involving 
such a weapon. Under Option One, each of the four base offense level 
provisions would be based on whether ``the offense involved a firearm 
that is a high-capacity, semiautomatic firearm.'' ``High-capacity, 
semiautomatic firearm'' would be defined as ``a semiautomatic firearm 
that has a magazine capacity of more than [15] cartridges.'' Option Two 
would provide an upward departure if the offense involved a high-
capacity semiautomatic firearm. The proposed amendment also presents an 
issue for comment regarding this definition and whether any similar 
changes should be made to Sec.  5K2.17 (High-capacity, Semiautomatic 
Firearms).
    Second, the proposed amendment provides a [2-][4-]level enhancement 
in Sec.  2K2.1 if the defendant engaged in the trafficking of [2-24] 
firearms, and a [6-][8-] level enhancement if the defendant engaged in 
the trafficking of [25 or more] firearms. Although there is no 
definition of trafficking in the firearm statutes, the proposed 
amendment borrows from the statutory definition of ``traffic'' found in 
other sections of the United States Code (see, e.g., 18 U.S.C. 
1028(d)(12), and 2318). The proposed amendment, however, modifies the 
statutory definition in two ways. The first modification pertains to 
consideration and two options are presented. Option One would result in 
application of the enhancement whenever a firearm was transferred as 
consideration for anything of value. (This option would be consistent 
with the statutory definitions of ``traffic''.) Option Two would result 
in application of the enhancement only if the transfer was made for 
pecuniary gain. The second modification is to include ongoing schemes 
to transport or transfer firearms to another individual, even if 
nothing of value was exchanged. The proposed amendment also presents an 
issue for comment regarding the proposed definition of ``trafficking''.
    Third, the proposed amendment modifies Sec.  2K2.1(b)(4) to 
increase the penalties for offenses involving altered or obliterated 
serial numbers. Under the proposed amendment, a 2-level enhancement 
would continue to apply to offenses involving a stolen firearm. 
However, the proposed amendment would provide a 4-level enhancement for 
offenses involving altered or obliterated serial numbers. The 4-level 
increase reflects the difficulty in tracing firearms with altered or 
obliterated serial numbers. The proposed amendment also makes slight 
technical changes to the corresponding application note.
    Fourth, the proposed amendment addresses a circuit conflict 
pertaining to application of Sec. Sec.  2K2.1(b)(5) and (c)(1), 
specifically with respect to the meaning of use of a firearm ``in 
connection with'' another offense in the context of burglary and drug 
offenses. The majority of circuits have adopted a standard consistent 
with Smith v. United States, 508 U.S. 223 (1993), in which the Supreme 
Court determined the scope of ``in relation to'' as that term is used 
in 18 U.S.C. 924(c). The proposed amendment accordingly provides that 
Sec. Sec.  2K2.1(b)(5) and (c)(1) apply if the firearm facilitated, or 
had the potential of facilitating, another felony offense or another 
offense, respectively. However, the courts are split as to how this 
standard then applies with respect to burglary and drug offenses. For 
ease of presentation, the proposed amendment presents options in terms 
of whether the presence of a firearm by mere coincidence during the 
course of a burglary or drug offense ``facilitated or had the potential 
of facilitating'' another offense. Option One provides that the mere 
presence of a firearm during the course of burglary or a drug offense 
is

[[Page 4790]]

sufficient because the firearm emboldens the defendant. Option Two 
states that the mere presence of a firearm is not sufficient except in 
a drug offense. Accordingly, the enhancement in Sec.  2K2.1(b)(5), or 
the cross reference in Sec.  2K2.1(c)(1) would not apply in the case of 
a defendant who takes a firearm during a burglary, but it would apply 
in a drug offense because the mere presence of a firearm in a drug 
offense increases the risk of violence. Option Three provides that the 
mere presence is not enough to trigger either Sec.  2K2.1(b)(5) or 
Sec.  2K2.1(c)(1). (Please note that the proposed definitions of 
``another felony offense'' and ``another offense'', as well as the 
upward departure note, are not new--the proposed language is a 
technical reworking of current Application Notes 4, 11, and 15.)
    Fifth, the proposed amendment modifies Sec.  5K2.11 (Lesser Harms) 
to prohibit a downward departure in any case in which a defendant is 
convicted under 18 U.S.C. 922(g).
    Finally, the proposed amendment addresses the circuit conflict 
regarding whether pointing or waving a firearm at a specific person 
constitutes ``brandishing'' or ``otherwise using''. The proposed 
amendment presents three options. Option One combines brandished and 
otherwise used with respect to firearms under the theory that the same 
risk of harm, and the same fear, exists whether a firearm is generally 
waved about or specifically pointed at a particular individual. Under 
this approach, otherwise using and brandishing with respect to a 
firearm would result in the same sentencing increase in Sec. Sec.  
2B3.1 (Robbery) and 2B3.2 (Extortion by Force or Threat of Injury or 
Serious Damage). However, the proposed amendment would maintain the 
distinction between otherwise using or brandishing with respect to 
other dangerous weapons. Additionally, this option provides that 
generally waving a firearm would constitute otherwise used. Following 
this option, the proposed amendment presents an issue for comment 
regarding whether the Commission, if it adopts this approach, should 
make similar changes to other guidelines that have an enhancement for 
brandishing and otherwise using a firearm. Option Two presents the 
majority and minority circuit court views. The majority view holds that 
generally waiving or pointing a firearm constitutes brandishing but 
pointing a firearm at a specific individual to make an explicit or 
implicit threat, or as a means of forcing compliance, constitutes 
otherwise used. The minority view holds that pointing a firearm, even 
if it is pointed at a specific person, is brandishing. In the non-
firearms context, otherwise used necessarily includes the most extreme 
thing that can be done with a weapon (i.e., using it to injure or 
attempt to injure a victim). Accordingly, these courts hold a firearm 
must similarly be used to injure or attempt to injure a victim in order 
to constitute otherwise used, and to hold otherwise would be to 
obliterate the guidelines' definition of otherwise used.

Proposed Amendment

(A) 18 U.S.C. 921(a)(30)
    [Option 1:
    Section 2K2.1(a) is amended by striking subdivision (1) and 
inserting the following:
    ``(1) 26, if (A) the offense involved a firearm that is a high-
capacity, semiautomatic firearm, or that is described in 26 U.S.C. 
5845(a); and (B) the defendant committed any part of the instant 
offense subsequent to sustaining at least two felony convictions of 
either a crime of violence or a controlled substance offense;''; by 
striking subdivision (3) and inserting the following:
    ``(3) 22, if (A) the offense involved a firearm that is a high-
capacity, semiautomatic firearm, or that is described in 26 U.S.C. 
5845(a); and (B) the defendant committed any part of the instant 
offense subsequent to sustaining one felony conviction of either a 
crime of violence or a controlled substance offense;''; by striking 
subdivision (4)(B) and inserting the following:
    ``(B) the offense involved a firearm that is a high-capacity, 
semiautomatic firearm, or that is described in 26 U.S.C. 5845(a); and 
the defendant (i) was a prohibited person at the time the defendant 
committed the instant offense; or (ii) is convicted under 18 U.S.C. 
922(d);''; and by striking subdivision (5) and inserting the following:
    ``(5) 18, if the offense involved a firearm that is a high-
capacity, semiautomatic firearm, or that is described in 26 U.S.C. 
5845(a);''.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'' is 
amended in Note 1 by inserting after the paragraph that begins `` 
`Firearms' has'' the following:
    ``High-capacity, semiautomatic firearm'' means a semiautomatic 
firearm that has a magazine capacity of more than [15] cartridges.''.]
    [Option 2:
    Section 2K2.1(a) is amended in subdivision (1) by inserting ``(A)'' 
after ``26, if''; by striking ``or 18 U.S.C. 921(a)(30),'' and 
inserting a colon; and by inserting ``(B)'' before ``the defendant''; 
in subdivision (3) by inserting ``(A)'' after ``22, if''; by striking 
``or 18 U.S.C. 921(a)(30),'' and inserting a colon; and by inserting 
``(B)'' before ``the defendant''; in subdivision (4)(B) by striking 
``or 18 U.S.C. 921(a)(30)''; and in subdivision (5) by striking ``or 18 
U.S.C. 921(a)(30)''.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'' is 
amended by striking Note 11, as redesignated by Part D of this proposed