Sentencing Guidelines for United States Courts, 4372-4398 [E7-1349]

Agencies

• United States Sentencing Commission

[Federal Register Volume 72, Number 19 (Tuesday, January 30, 2007)]
[Notices]
[Pages 4372-4398]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-1349]



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Part III





United States Sentencing Commission





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Notice of Proposed Amendments to Sentencing Guidelines, Policy 
Statements, and Commentary. Request for Public Comment, Including 
Public Comment Regarding Retroactive Application of Any of the Proposed 
Amendments. Notice of Public Hearing; Notice

Federal Register / Vol. 72, No. 19 / Tuesday, January 30, 2007 / 
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 to sentencing guidelines, policy 
statements, and commentary. Request for public comment, including 
public comment regarding retroactive application of any of the proposed 
amendments. Notice of public hearing.

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SUMMARY: Pursuant to section 994(a), (o), and (p) of title 28, United 
States Code, the United States Sentencing Commission is considering 
promulgating certain amendments to the sentencing guidelines, policy 
statements, and commentary. This notice sets forth the proposed 
amendments and, for each proposed amendment, a synopsis of the issues 
addressed by that amendment. This notice also provides multiple issues 
for comment, some of which are contained within proposed amendments.
    The specific proposed amendments and issues for comment in this 
notice are as follows: (A) Proposed amendment to Sec. Sec.  2A1.1 
(First Degree Murder), 2A1.2 (Second Degree Murder), 2A1.3 (Voluntary 
Manslaughter), 2A1.4 (Involuntary Manslaughter), 2A2.1 (Assault with 
Intent to Commit Murder; Attempted Murder), 2A2.2 (Aggravated Assault), 
2A2.3 (Minor Assault), 2A2.4 (Obstructing or Impeding Officers), 2A5.2 
(Interference with Flight Crew Member or Flight Attendant; Interference 
with Dispatch, Operation, or Maintenance of Mass Transportation Vehicle 
or a Ferry), 2A6.1 (Threatening or Harrassing Communications; Hoaxes), 
2B1.1 (Fraud, Theft, and Property Damage), 2C1.1 (Offering, Giving, 
Soliciting, or Receiving a Bribe; Extortion Under Color of Official 
Right; Fraud Involving the Deprivation of the Intangible Right to 
Honest Services of Public Officials; Conspiracy to Defraud by 
Interference with Governmental Functions), 2B2.3 (Trespass), 2K1.4 
(Arson; Property Damage by Use of Explosives), 2M6.1 (Nuclear, 
Biological, and Chemical Weapons, and Other Weapons of Mass 
Destruction), 2Q1.1 (Knowing Endangerment Resulting From Mishandling 
Hazardous or Toxic Substances, Pesticides or Other Pollutants), 2X1.1 
(Attempt, Solicitation, or Conspiracy (Not Covered by a Specific 
Offense Guideline)), 2X5.2 (Class A Misdemeanor Offenses (Not Covered 
by a Specific Offense Guideline)), Appendix A, and issues for comment 
regarding implementation of the USA PATRIOT Improvement and 
Reauthorization Act of 2005, Pub. L. 109-177 (hereinafter the ``PATRIOT 
Act'') and the Safe, Accountable, Flexible, Efficient Transportation 
Equity Act: A Legacy for Users, Pub. L. 109-59, as these laws pertain 
to transportation offenses; (B) proposed amendment to Chapter Two, 
Parts A and G, Sec. Sec.  2A3.1 (Criminal Sexual Abuse; Attempt to 
Commit Criminal Sexual Abuse), 2A3.3 (Criminal Sexual Abuse of a Ward 
or Attempt to Commit Such Acts), 2A3.4 (Abusive Sexual Contact or 
Attempt to Commit Abusive Sexual Contact), 2G1.1 (Promoting a 
Commercial Sex Act or Prohibited Sexual Conduct with an Individual 
Other than a Minor), 2G1.3 (Promoting a Commercial Sex Act or 
Prohibited Sexual Conduct with a Minor; Transportation of Minors to 
Engage in a Commercial Sex Act or Prohibited Sexual Conduct), 2G2.5 
(Recordkeeping Offenses Involving the Production of Sexually Explicit 
Materials; Failure to Provide Required Marks in Commercial Electronic 
Email), 2G3.1 (Importing, Mailing, or Transporting Obscene Matter; 
Transferring Obscene Matter to a Minor; Misleading Domain Names), 2H3.1 
(Interception of Communications; Eavesdropping; Disclosure of Tax 
Return Information), 2J1.2 (Obstruction of Justice), 4B1.5 (Repeat and 
Dangerous Sex Offender Against Minors), 5B1.3 (Conditions of 
Probation), 5D1.2 (Term of Supervised Release), 5D1.3 (Conditions of 
Supervised Release), Appendix A, and issues for comment regarding 
implementation of the Adam Walsh Child Protection and Safety Act of 
2006, Pub. L. 109-248 (hereinafter the ``Adam Walsh Act''); (C) 
proposed amendment to re-promulgate as a permanent amendment the 
temporary, emergency amendment to Sec.  2B5.3 (Criminal Infringement of 
Copyright or Trademark), effective September 12, 2006 (see USSG 
Supplement to Appendix C (Amendment 682)), and issues for comment 
regarding implementation of the Stop Counterfeiting in Manufactured 
Goods Act, Pub. L. 109-181; (D) proposed amendment to Chapter Two, 
Parts D and X, Sec. Sec.  2A1.1, 2A1.2, 2B1.1, 2B1.5 (Theft of, Damage 
to, or Destruction of Cultural Heritage Resources; Unlawful Sale, 
Purchase, Exchange, Transportation, or Receipt of Cultural Heritage 
Resources), 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or 
Trafficking (Including Possession with Intent to Commit These 
Offenses); Attempt or Conspiracy), 2E4.1 (Unlawful Conduct Relating to 
Contraband Cigarettes), 2K1.3 (Unlawful Receipt, Possession, or 
Transportation of Explosive Materials; Prohibited Transactions 
Involving Explosive Materials), 2K1.4, 2M5.3 (Providing Material 
Support or Resources to Designated Foreign Terrorism Organizations of 
For a Terrorist Purpose), 2M6.1, 2Q2.1 (Offenses Involving Fish, 
Wildlife, and Plants), 2X1.1, 2X2.1 (Aiding and Abetting), 2X3.1 
(Accessory After the Fact), Appendix A, and issues for comment 
regarding implementation of the PATRIOT Act and the Department of 
Homeland Security Appropriations Act, 2007, Pub. L. 109-295, as these 
laws pertain to terrorism offenses and border protection; (E) proposed 
amendment to Sec. Sec.  2D1.1, 2D1.11 (Unlawfully Distributing, 
Importing, Exporting, or Possessing a Listed Chemical; Attempt or 
Conspiracy), Appendix A (Statutory Index), and issues for comment 
regarding implementation of the PATRIOT Act and the Adam Walsh Act as 
these laws pertain to drug offenses; (F) proposed amendment to 
Sec. Sec.  2L1.1 (Smuggling, Transporting, or Harboring an Unlawful 
Alien), 2L1.2 (Unlawfully Entering or Remaining in the United States), 
2L2.1 (Trafficking in a Document Relating to Naturalization, 
Citizenship, or Legal Resident Status, or a United States Passport; 
False Statement in Respect to the Citizenship or Immigration Status of 
Another; Fraudulent Marriage to Assist Alien to Evade Immigration Law), 
and 2L2.2 (Fraudulently Acquiring Documents Relating to Naturalization, 
Citizenship, or Legal Resident Status for Own Use; False Personation or 
Fraudulent Marriage by Alien to Evade Immigration Law; Fraudulently 
Acquiring or Improperly Using a United States Passport); (G)(1) 
proposed amendment to Sec.  2B2.3 (Trespass) to implement the Respect 
for America's Fallen Heroes Act, Pub. L. 109-228; (2) proposed 
amendment to Sec.  2H3.1 to implement the Violence Against Women and 
Department of Justice Reauthorization Act of 2005, Pub. L. 109-162; and 
(3) issue for comment regarding implementation of the SAFE Port Act, 
Pub. L. 109-347; (H) proposed amendment to (1) Sec. Sec.  2B1.1, 
2D1.11, 2K2.1 (Unlawful Receipt, Possession, or Transportation of 
Firearms or Ammunition; Prohibited Transactions Involving Firearms or 
Ammunition), and 2L1.1 to correct typographical errors; and (2) Chapter 
Three, Part D (Introductory Commentary) and Sec.  3D1.1 (Procedure for 
Determining Offense Level on Multiple Counts) to address cases 
involving multiple counts contained in multiple indictments; (I)

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issue for comment regarding Sec.  1B1.13 (Reduction in Term of 
Imprisonment as a Result of Motion by Director of Bureau of Prisons); 
(J) issues for comment regarding application of certain criminal 
history rules under Sec.  4A1.2 (Definitions and Instructions for 
Computing Criminal History); (K) issue for comment regarding 
implementation of section 4 of the Telephone Records and Privacy 
Protection Act of 2006, Pub. L. 109-476, which provides the Commission 
with emergency amendment authority to amend the guidelines applicable 
to persons convicted of an offense under 18 U.S.C. Sec.  1039; and (L) 
issue for comment regarding federal cocaine sentencing policy.

DATES: (A) Proposed Amendments.--Written public comment regarding the 
proposed amendments and issues for comment set forth in this notice, 
including public comment regarding retroactive application of any of 
the proposed amendments, should be received by the Commission not later 
than March 30, 2007.
    (B) Public Hearing.--The Commission will be scheduling a public 
hearing on its proposed amendments. Further information regarding the 
public hearing, including requirements for testifying and providing 
written testimony, as well as the date of the hearing, will be provided 
by the Commission on its Web site at www.ussc.gov.

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

FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs 
Officer, Telephone: (202) 502-4597.

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

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

Ricardo H. Hinojosa,
Chair.

1. Transportation

    Synopsis of Proposed Amendment: This proposed amendment implements 
a number of provisions of the USA PATRIOT Improvement and 
Reauthorization Act of 2005, Pub. L. 109-177 (hereinafter ``PATRIOT 
Act'') and the Safe, Accountable, Flexible, Efficient Transportation 
Equity Act: A Legacy for Users, Pub. L. 109-59 (hereinafter ``SAFETEA-
LU''). The proposed amendments also provide a corresponding amendment 
to Appendix A (Statutory Index). Specifically:
    (A) Section 110 of the PATRIOT Act strikes 18 U.S.C. Sec. Sec.  
1992 and 1993 and creates a new section 1992 (Terrorist attacks and 
other violence against railroad carriers and against mass 
transportation systems on land, on water, or through the air). The 
legislation creates a statutory maximum term of imprisonment of 20 
years and includes a penalty of imprisonment for any years or life or, 
if the offense resulted in the death of any person, the defendant may 
be sentenced to death. There are exceptions to the life and death 
sentences for cases of surveillance, conveying false information, or 
attempting, threatening, or conspiring to engage in any violation under 
this section. The statute also contains aggravated offenses. First, a 
sentence of life or death may be imposed when the offense involved 
railroad on-track equipment or a mass transportation vehicle carrying a 
passenger or employee, or carrying hazardous material, or both. Second, 
a life or death sentence may be given if the offense was committed with 
the intent to endanger the safety of any person, or with a reckless 
disregard for the safety of any person, when the railroad on-track 
equipment or mass transportation vehicle was carrying a defined 
hazardous material at the time of the offense.
    The proposed amendment updates all references to 18 U.S.C. 1992 and 
eliminates all references to 18 U.S.C. 1993. The proposed amendment 
also adds 18 U.S.C. 1992 to the referenced statutory provisions in 
Sec. Sec.  2A1.1 (First Degree Murder), 2A2.1 (Assault with Intent to 
Commit Murder; Attempted Murder), and 2A5.2 (Interference with Flight 
Crew Member or Flight Attendant; Interference with Dispatch, Operation, 
or Maintenance of Mass Transportation Vehicle or a Ferry). 
Additionally, the amendment adjusts the definition of ``mass 
transportation'' in Sec. Sec.  2A1.4, 2A5.2, and 2K1.4 (Arson; Property 
Damage by Use of Explosives) to reflect the new defining section, 18 
U.S.C. 1992(d)(7). Also proposed is the addition of ``Navigation'' to 
the title and text of Sec.  2A5.2 to better reflect the full scope of 
the newly created 18 U.S.C. 1992.
    (B) Section 302 of the PATRIOT Act increases the scope of 18 U.S.C. 
1036 (Entry by false pretenses to any real property, vessel, or 
aircraft of the United States or secure area of any airport) by

[[Page 4374]]

adding to the areas protected from illegal entry under this title 
secure and restricted areas of a seaport. Section 302 also increases 
the statutory maximum penalty from five years to ten years.
    The proposed amendment refers this offense to Sec.  2B2.3(b)(1) and 
adds seaports to the list of protected areas warranting a two-level 
enhancement. The amendment also adds a definition for ``seaport'', as 
one does not currently exist in the guidelines.
    (C) Section 303 of the PATRIOT Act adds a new offense at 18 U.S.C. 
2237 (Criminal sanctions for failure to heave to, obstruction of 
boarding, or providing false information). This new statute makes it a 
crime to refuse to stop a vessel in violation of a federal law 
enforcement officer's order or to provide materially false information 
to a federal law enforcement officer during a boarding of a vessel.
    The proposed amendment references this new offense to Sec. Sec.  
2A2.4 (Obstructing or Impeding Officers) and 2B1.1 (Fraud, Theft, and 
Property Damage).
    (D) Section 306 of the PATRIOT Act provides new offenses in 18 
U.S.C. 2291 (Destruction of vessel or maritime facility) and 2292 
(Imparting or conveying false information). Section 2291 of title 18, 
United States Code, covers the destruction of vessels and maritime 
facilities and creates a statutory maximum term of imprisonment of 20 
years. If the conduct under this section involves a vessel carrying 
nuclear or radioactive waste, a statutory maximum life sentence 
applies, and if death results, a life or death sentence is possible. 
Section 2292 of title 18, United States Code, prohibits providing false 
information regarding an attempt or alleged attempt to commit a crime 
and provides a statutory maximum sentence of five years.
    The proposed amendment references 18 U.S.C. 2291 to 2A1.1 (First 
Degree Murder), 2A1.2 (Second Degree Murder), 2A1.3 (Voluntary 
Manslaughter), 2A1.4 (Involuntary Manslaughter), 2A2.1 (Assault with 
Intent to Commit Murder; Attempted Murder), 2A2.2 (Aggravated Assault), 
2A2.3 (Minor Assault), 2A6.1 (Threatening or Harrassing Communications; 
Hoaxes), 2B1.1 (Fraud, Theft, and Property Damage), 2K1.4 (Arson; 
Property Damage by Use of Explosives) and 2M6.1 (Nuclear, Biological, 
and Chemical Weapons, and Other Weapons of Mass Destruction). Section 
2292 of title 18, United States Code, is referenced to Sec.  2A6.1.
    (E) Section 307(c) of the PATRIOT Act directs the Commission to 
review the guidelines to determine whether a sentencing enhancement is 
appropriate for any offense under sections 659 or 2311 of title 18, 
United States Code.
    The proposed amendment provides two options to respond to this 
directive. Option 1 amends Sec.  2B1.1(b)(4) to provide an alternative 
enhancement if the defendant was convicted under 18 U.S.C. 659. An 
issue for comment also requests input regarding whether any such 
enhancement should include convictions under 18 U.S.C. 2312 and 2313. 
Option 2 responds to the directive by revising Sec.  2B1.1(b)(11). 
Currently this section provides a minimum offense level of 14 for 
offenses involving an organized scheme to steal vehicles or vehicle 
parts. The proposed amendment adds convictions under 18 U.S.C. 659 to 
this section and also provides a two-level increase for all cases 
covered under the subsection.
    (F) Section 308 of the PATRIOT Act increases the statutory maximum 
penalties for 18 U.S.C. 2199 (Stowaways on vessels or aircraft). Absent 
any aggravating factors, the statutory maximum for offenses is 
increased from one year to five years. Section 308 adds a statutory 
maximum of 20 years if a person acts with the intent to commit serious 
bodily injury and serious bodily injury occurs. For offenses involving 
the intent to kill and death occurs, section 308 also adds a penalty of 
imprisonment for any term of years, including life or death.
    The proposed amendment references 18 U.S.C. 2199 to 2A1.1 (First 
Degree Murder), 2A1.2 (Second Degree Murder), 2A1.3 (Voluntary 
Manslaughter), 2A1.4 (Involuntary Manslaughter), 2A2.1 (Assault with 
Intent to Commit Murder; Attempted Murder), 2A2.2 (Aggravated Assault), 
and 2A2.3 (Minor Assault).
    (G) Section 4210 of SAFETEA-LU creates a new offense at 49 U.S.C. 
14915 for failure to release household goods with a statutory maximum 
of two years.
    The proposed amendment references this section to Sec.  2B1.1 as it 
is the most analogous guideline.
    (H) Section 4102(b) of SAFETEA-LU creates a new criminal violation 
for violating a commercial motor vehicle's out-of-service order. The 
offense carries a statutory maximum of one year.
    The proposed amendment references this section to Sec.  2X5.2 
(Class A Misdemeanor (Not Covered by Another Specific Offense 
Guideline)).
    The proposed amendment also includes five issues for comment 
pertaining to the following:
    (1) Section 7121 of SAFETEA-LU creates a new aggravated felony 
under 49 U.S.C. 5124 that carries a statutory maximum of 10 years when 
conduct under the section results in the release of a hazardous 
material that causes bodily injury or death. Appendix A (Statutory 
Index) currently references 49 U.S.C. 5124 to Sec.  2Q1.2 (Mishandling 
of Hazardous or Toxic Substances or Pesticides; Recordkeeping, 
Tampering, and Falsification; Unlawfully Transporting Hazardous 
Materials in Commerce). An issue for comment asks whether penalties 
under Sec.  2Q1.2 are adequate for the new offense.
    (2) The proposed amendment adds seaports to the two-level 
enhancement in Sec.  2B2.3(b)(1). Section 2B2.3(c) also provides a 
cross reference if the offense was committed with the intent to commit 
another criminal offense. An issue for comment asks whether, as an 
alternative to the cross reference provision and as a possible means of 
simplifying this guideline, it should amend Sec.  2B2.3 (Trespass) to 
provide instead a general specific offense characteristic for any 
trespass offense that was committed with the intent to commit another 
offense.
    (3) Section 309 of the PATRIOT Act creates a new offense at 18 
U.S.C. 226 (Bribery affecting port security), making it a crime to 
knowingly, and with the intent to commit international or domestic 
terrorism, bribe a public official to affect port security. It is also 
a crime under this section to be the recipient of such a bribe in 
return for being influenced in the performance of public duties 
affecting port security with the knowledge that such influence will be 
used to commit or plan to commit an act of terrorism.
    The proposed amendment references 18 U.S.C. 226 to Sec.  2C1.1 
(Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under 
Color of Official Right; Fraud Involving the Deprivation of the 
Intangible Right to Honest Services of Public Official; Conspiracy to 
Defraud by Interference with Governmental Functions).
    An issue for comment addresses this proposed reference to Sec.  
2C1.1 as well as the operation of the cross reference in Sec.  
2C1.1(c)(1) in cases involving an intent to commit an act of 
international or domestic terrorism.
    (4) Whether the Commission should use the term ``mass 
transportation'' or ``public transportation'' in the context of Sec.  
2A5.2 and other guidelines.
    (5) The proposed amendment provides options for increasing 
penalties for offenses under 18 U.S.C. 659. An issue for comment asks 
whether the Commission also should provide similar increases for 
offenses under 18 U.S.C. 2312 (Transportation of stolen vehicles) and 
2313 (Sale or receipt of stolen vehicles).

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Proposed Amendment

    The Commentary to Sec.  2A1.1 captioned ``Statutory Provisions'' is 
amended by inserting ``1992(a)(7),'' after ``1841(a)(2)(C),''; and by 
inserting ``2199, 2291,'' after ``2118(c)(2),''.
    The Commentary to Sec.  2A1.2 captioned ``Statutory Provisions'' is 
amended by inserting ``2199, 2291,'' after ``1841(a)(2)(C),''.
    The Commentary to Sec.  2A1.3 captioned ``Statutory Provisions'' is 
amended by inserting ``2199, 2291,'' after ``1841(a)(2)(C),''.
    The Commentary to Sec.  2A1.4 captioned ``Statutory Provisions'' is 
amended by inserting ``2199, 2291,'' after ``1841(a)(2)(C),''.
    The Commentary to Sec.  2A1.4 captioned ``Application Note'' is 
amended in Note 1 by striking ``18 U.S.C. 1993(c)(5)'' and inserting 
``18 U.S.C. 1992(d)(7)''.
    The Commentary to Sec.  2A2.1 captioned ``Statutory Provisions'' is 
amended by striking ``1993(a)(6)'' and inserting ``1992(a)(7), 2199, 
2291''.
    The Commentary to Sec.  2A2.2 captioned ``Statutory Provisions'' is 
amended by striking ``1993(a)(6)'' and inserting ``1992(a)(7), 2199, 
2291''.
    The Commentary to Sec.  2A2.3 captioned ``Statutory Provisions'' is 
amended by inserting ``, 2199, 2291'' after ``1751(e)''.
    The Commentary to Sec.  2A2.4 captioned ``Statutory Provisions'' is 
amended by inserting ``2237(a)(1), (a)(2)(A),'' after ``1502,''.
    Section 2A5.2 is amended in the heading by inserting 
``Navigation,'' after ``Dispatch,''; and by striking ``or Ferry''.
    Sections 2A5.2(a)(1) and (a)(2) are amended by striking the comma 
after ``facility'' each place it appears and inserting ``or''; and by 
striking ``, or a ferry'' each place it appears.
    The Commentary to Sec.  2A5.2 captioned ``Statutory Provisions'' is 
amended by striking ``1993(a)(4), (5), (6), (b);'' and inserting 
``1992(a)(1), (a)(4), (a)(5), (a)(6);''.
    The Commentary to Sec.  2A5.2 captioned ``Application Note'' is 
amended in Note 1 in the last paragraph by striking ``18 U.S.C. 
1993(c)(5)'' and inserting ``18 U.S.C. 1992(d)(7)''.
    The Commentary to Sec.  2A6.1 captioned ``Statutory Provisions'' is 
amended by striking ``1993(a)(7), (8),'' and inserting ``1992(a)(9), 
(a)(10), 2291(a)(8), 2291(e), 2292,''.
    [Option 1 (Section 659 offenses)
    Section 2B1.1 is amended in subsection (b)(4) by inserting ``(A)'' 
before ``offense involved''; and by striking ``property, increase'' and 
inserting ``; or (B) defendant was convicted under 18 U.S.C. Sec.  
increase''.]
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 5 by inserting ``(A)'' after ``(b)(4)'' each place it 
appears.]
    [Option 2 (Section 659 offenses) Section 2B1.1 is amended in 
subsection (b)(11) by inserting ``(A)'' before ``offense involved''; 
and by striking ``, and'' and inserting ``; or (B) defendant was 
convicted under 18 U.S.C. 659, increase by 2 levels. If''.]
    The Commentary to Sec.  2B1.1 captioned ``Statutory Provisions'' is 
amended by inserting ``(a)(1), (a)(5)'' after ``1992''; by striking 
``1993(a)(1), (a)(4),''; by inserting ``2291,'' after ``2113(b),''; and 
by inserting ``14915,'' after ``49 U.S.C. Sec. Sec.  ''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended by striking Note 10 and inserting the following:
    ``10. Application of Subsection (b)(11).--Subsection (b)(11) 
provides a minimum offense level in the case of an ongoing, 
sophisticated operation (such as an auto theft ring or 'chop shop') to 
steal vehicles or vehicle parts, or to receive stolen vehicles or 
vehicle parts. This subsection also applies if the defendant was 
convicted of cargo theft under 18 U.S.C. 659. For purposes of this 
subsection, 'vehicle' means motor vehicle, vessel, or aircraft.''.
    The Commentary to Sec.  2B1.1 captioned ``Background'' is amended 
in the paragraph that begins ``A minimum offense level of level 14'' by 
striking ``Therefore, the'' and inserting ``The''; by inserting ``in 
subsection (b)(11)(A)'' after ``is used''; and by adding at the end the 
following:
    ``The minimum offense level also applies to convictions under 18 
U.S.C. 659 for offenses involving cargo theft. Subsection (b)(11)(B) 
implements the directive in section 307 of Public Law 109-177.''.]
    Section 2B2.3 is amended in subsection (b)(1) by striking 
``secured'' each place it appears and inserting ``secure''; by 
redesignating subdivisions (E) and (F) as subdivisions (F) and (G), 
respectively; and by inserting the following after ``airport;'':
    ``(E) in a secure area within a seaport;''.
    The Commentary to Sec.  2B2.3 captioned ``Statutory Provisions'' is 
amended by inserting ``, 2199'' after ``1036''.
    The Commentary to Sec.  2B2.3 captioned ``Application Notes'' is 
amended in Note 1 by adding at the end the following:
    `` `Seaport' has the meaning given that term in 18 U.S.C. 26.''.
    The Commentary to Sec.  2B2.3 captioned ``Background'' is amended 
by striking ``, such as nuclear facilities,'' and inserting ``(such as 
nuclear facilities) and other locations (such as airports and 
seaports)''.
    The Commentary to Sec.  2C1.1 captioned ``Statutory Provisions'' is 
amended by inserting ``226,'' after ``Sec. Sec.  201(b)(1), (2),''.
    The Commentary to Sec.  2K1.4 captioned ``Statutory Provisions'' is 
amended by inserting ``(a)(1), (a)(2), (a)(4)'' after ``1992''; by 
striking ``1993(a)(1), (a)(2), (a)(3), (b),''; and by inserting 
``2291,'' after ``2275''.
    The Commentary to Sec.  2K1.4 captioned ``Application Notes'' is 
amended in Note 1 by striking ``18 U.S.C. 1993(c)(5)'' and inserting 
``18 U.S.C. 1992(d)(7)''.
    The Commentary to Sec.  2M6.1 captioned ``Statutory Provisions'' is 
amended by striking ``1993(a)(2), (3), (b), 2332a (only with respect to 
weapons of mass destruction as defined in 18 U.S.C. 2332a(c)(2)(B), 
(C), and (D))'' and inserting ``1992(a)(2), (a)(3), (a)(4), (b)(2), 
2291,''.
    The Commentary to Sec.  2Q1.1 captioned ``Statutory Provisions'' is 
amended by inserting ``18 U.S.C. 1992(b)(3);'' before ``33 U.S.C. 
1319(c)(3);''.
    Section 2X1.1 is amended in subsection (d)(1)(A) by inserting 
``(a)(1)-(a)(7), (a)(9), (a)(10)'' after ``1992;''; and in subsection 
(d)(1)(B) by inserting ``and'' after ``Sec.  32;''; and by striking 
``18 U.S.C. 1993; and''.
    The Commentary to Sec.  2X5.2 captioned ``Statutory Provisions'' is 
amended by inserting ``; 49 U.S.C. 31310'' after ``14133''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. 225 the following:
    ``18 U.S.C. 226 2C1.1''; by inserting after the line referenced to 
18 U.S.C. 1035 the following:

    ``18 U.S.C. 1036 2B2.3''; by striking the line referenced to 18 
U.S.C. 1992 through the end of the line referenced to 18 U.S.C. 1993(b) 
and inserting the following:

``18 U.S.C. 1992(a)(1)--2A5.2, 2B1.1, 2K1.4, 2X1.1
18 U.S.C. 1992(a)(2)--2K1.4, 2M6.1, 2X1.1
18 U.S.C. 1992(a)(3)--2M6.1, 2X1.1
18 U.S.C. 1992(a)(4)--2A5.2, 2K1.4, 2M6.1, 2X1.1
18 U.S.C. 1992(a)(5)--2A5.2, 2B1.1, 2X1.1
18 U.S.C. 1992(a)(6)--2A5.2, 2X1.1
18 U.S.C. 1992(a)(7)--2A1.1, 2A2.1, 2A2.2, 2X1.1
18 U.S.C. 1992(a)(8)--2X1.1
18 U.S.C. 1992(a)(9)--2A6.1, 2X1.1
18 U.S.C. 1992(a)(10)--2A6.1, 2X1.1'';

in the line referenced to 18 U.S.C. 2199 by inserting ``2A1.1, 2A1.2, 
2A1.3,

[[Page 4376]]

2A1.4, 2A2.1, 2A2.2, 2A2.3,'' before ``2B1.1''; by inserting after the 
line referenced to 18 U.S.C. 2233 the following:

``18 U.S.C. 2237(a)(1), (a)(2)(A)--2A2.4
18 U.S.C. 2237(a)(2)(B)--2B1.1'';

by inserting after the line referenced to 18 U.S.C. Sec.  2281 the 
following:

``18 U.S.C. 2291--2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.1, 2A2.2, 2A2.3, 
2A6.1, 2B1.1, 2K1.4, 2M6.1
18 U.S.C. 2292--2A6.1'';

by inserting after the line referenced to 49 U.S.C. 14912'' the 
following:

``49 U.S.C. 14915--2B1.1''; and

by inserting after the line referenced to 49 U.S.C. 30170'' the 
following:

``49 U.S.C. 31310--2X5.2''.

Issues for Comment

    1. The SAFETEA-LU Act, Pub. L. 109-59, amended 49 U.S.C. 5124 to 
provide a new aggravated felony, with a 10-year statutory maximum term 
of imprisonment, for cases involving a release of a hazardous material 
that results in death or bodily injury. Appendix A (Statutory Index) 
references 49 U.S.C. Sec.  5124 to Sec.  2Q1.2 (Mishandling of 
Hazardous or Toxic Substances or Pesticides; Recordkeeping, Tampering, 
and Falsification; Unlawfully Transporting Hazardous Materials in 
Commerce). In 2004 the Commission amended Sec.  2Q1.2 to provide a two-
level enhancement in Sec.  2Q1.2(b)(7) for defendants convicted of 49 
U.S.C. 5124 or 46312 because ``[t]hese offenses pose an inherent risk 
to large populations in a manner not typically associated with other 
pollution offenses sentenced under the same guideline. See USSG App. C 
(Amendment 672) (effective Nov. 1, 2004). In addition to application of 
Sec.  2Q1.2(b)(7), a defendant convicted of 49 U.S.C. 5124 likely would 
receive a four-level enhancement under Sec.  2Q1.2(b)(1)(B) for a 
release of a hazardous substance (because the offense of conviction 
necessarily involves such a release) and a nine-level enhancement for 
the substantial likelihood of death or serious bodily injury under 
Sec.  2Q1.2(b)(2). When added to the Base Offense Level of 8, the 
minimum offense level under Sec.  2Q1.2 would be level 23 (46-57 months 
at CHC I). Further, Application Note 6 states that an upward departure 
would be warranted in any case in which death or serious bodily injury 
results. The Commission requests comment regarding whether Sec.  2Q1.2 
currently provides adequate penalties for a defendant convicted under 
49 U.S.C. 5124. If not, how should the Commission amend Sec.  2Q1.2 to 
address adequately these offenses? For example, should the Commission 
provide an enhancement greater than two levels for such offenses? 
Should the Commission provide a minimum offense level for 49 U.S.C. 
5124 offenses that actually result in death or serious bodily injury?
    2. The USA PATRIOT Improvement and Reauthorization Act of 2005, 
Public Law 109-177, amended 18 U.S.C. 1036 to add seaports to the list 
of covered locations and to increase the statutory maximum term of 
imprisonment from 5 years to 10 years. The proposed amendment adds 
seaports to the two-level enhancement in Sec.  2B2.3(b)(1). Section 
2B2.3 (Trespass) also provides a cross reference in subsection (c) if 
the offense was committed with the intent to commit a felony offense. 
The Commission requests comment regarding whether, as an alternative to 
the cross reference provision, and as a possible means of simplifying 
this guideline, it should amend Sec.  2B2.3 to provide instead a 
general specific offense characteristic for any trespass offense that 
was committed with the intent to commit a felony. If so, how many 
levels would be appropriate? Should the Commission consider amending 
Sec.  2B2.3(b)(1) to provide an additional increase if the trespass on 
any of the enumerated locations was committed with the intent to commit 
a felony offense?
    3. The USA PATRIOT Improvement and Reauthorization Act provided a 
new offense at 18 U.S.C. 226 for bribery affecting port security. The 
provision criminalizes bribery with the intent to commit international 
terrorism or domestic terrorism and provides a statutory maximum term 
of imprisonment of 15 years. In general, the guidelines reference 
bribery offenses to Sec.  2C1.1 (Offering, Giving, Soliciting, or 
Receiving a Bribe; Extortion Under Color of Official Right; Fraud 
Involving the Deprivation of the Intangible Right to Honest Services of 
Public Officials; Conspiracy to Defraud by Interference with 
Governmental Functions), which provides alternative base offense levels 
of 14, if the defendant was public official, or 12, otherwise. Section 
2C1.1(c)(1) provides a cross reference if the offense was committed for 
the purpose of facilitating the commission of another criminal offense 
(and the guideline applicable to a conspiracy to commit that other 
offense results in a greater offense level than Sec.  2C1.1). The 
Commission requests comment regarding whether it should reference 18 
U.S.C. Sec.  226 to Sec.  2C1.1 and, if so, whether the cross reference 
provision is a sufficient means of handling bribery cases involving an 
intent to commit an act of international or domestic terrorism. If the 
offense is referenced to Sec.  2C1.1, should the Commission, as an 
alternative to the cross reference provision and as a possible means of 
simplifying this guideline, provide a specific offense characteristic 
for convictions of 18 U.S.C. 226 that results in an offense level 
proportionate to other terrorism-related offenses (e.g., providing a 
minimum offense level of 26 would provide parity with offenses 
sentenced under Sec.  2M5.3 (Providing Material Support or Resources to 
Designated Foreign Terrorist Organizations or for a Terrorist 
Purpose)). Alternatively, should the Commission reference 18 U.S.C. 226 
to 2M5.3?
    4. In addition to consolidating 18 U.S.C. 1992 and 1993, the USA 
PATRIOT Improvement and Reauthorization Act replaced the term ``public 
transportation'' (added by the SAFETEA-LU Act) with ``mass 
transportation'' (the term used in 18 U.S.C. 1992 prior to SAFETEA-LU). 
``Mass transportation'' now is defined at 18 U.S.C. 1992(d)(7) to have 
the same meaning as ``public transportation'' (defined at 49 U.S.C. 
5302(a)(7)) except that, for purposes of 18 U.S.C. 1992, ``mass 
transportation'' includes school bus, charter, sightseeing 
transportation, and passenger vessel. School bus and charter are 
otherwise expressly excluded from the definition of ``public 
transportation'' as are intercity bus transportation and intercity 
passenger rail transportation. The Commission requests comment 
regarding the appropriate term to use in the context of Sec.  2A5.2 
(Interference with Flight Crew Member or Flight Attendant; Interference 
with Dispatch, Operation, or Maintenance of Mass Transportation Vehicle 
or a Ferry). Specifically, should the Commission use ``mass 
transportation'' as that term is now defined by 18 U.S.C. 1992(d)(7) 
(i.e., including school bus, charter, sightseeing transportation and 
passenger vessel) or use the more limited term ``public 
transportation'' (i.e., excluding school bus, charter, intercity bus 
transportation, and intercity passenger rail transportation)?
    5. The proposed amendment provides 2 options for amending Sec.  
2B1.1 to address 18 U.S.C. 659 (Cargo theft). The Commission requests 
comment regarding whether, rather than an enhancement based on the 
statute of conviction, it ought to provide an enhancement based on real 
offense conduct such as if the offense involved cargo theft. The 
Commission also requests comment regarding whether it

[[Page 4377]]

should provide an enhancement for conduct covered by convictions under 
18 U.S.C. 2312 (Transportation of stolen vehicles) and 2313 (Sale or 
receipt of stolen vehicles), either as part of the proposed enhancement 
for 18 U.S.C. 659 offenses or as a separate enhancement.

2. Sex Offenses

    Synopsis of Proposed Amendment: This multi-part proposed amendment 
implements the Adam Walsh Child Protection and Safety Act of 2006, 
Public Law 109-248. Part I of this proposed amendment implements the 
directive in section 141 of the Act pertaining to the new offense in 18 
U.S.C. 2250 for failure to register as a sex offender. The directive 
instructs the Commission, in promulgating guidelines for use of a 
sentencing court in determining the sentence to be imposed for [18 
U.S.C. 2250], to consider the following matters:
    (1) Whether the person committed another sex offense in connection 
with, or during, the period for which the person failed to register.
    (2) Whether the person committed an offense against a minor in 
connection with, or during, the period for which the person failed to 
register.
    (3) Whether the person voluntarily attempted to correct the failure 
to register.
    (4) The seriousness of the offense which gave rise to the 
requirement to register, including whether such offense is a tier I, 
tier II, or tier III offense, as those terms are defined in section 111 
[of the Act].
    (5) Whether the person has been convicted or adjudicated delinquent 
for any offense other than the offense which gave rise to the 
requirement to register.
    Section 2250 of title 18, United States Code, provides a statutory 
maximum term of imprisonment of ten years for the failure to register. 
There is an additional mandatory consecutive term of 5 years' 
imprisonment applicable if a person commits a crime of violence while 
in failure to register status (18 U.S.C. 2250(c)). The requirements 
pertaining to who must register, where the registration must occur, and 
for how long are set forth in 42 U.S.C. 16911.
    The proposed amendment provides a new guideline in Sec.  2A3.5 
(Failure to Register as a Sex Offender). The proposed amendment 
presents two options for addressing the fourth matter of the directive. 
Option One provides multiple base offense levels based on the category 
of offense that gave rise to the registration requirement: level 16 if 
the offense that gave rise to the requirement to register was a Tier 
III offense; level 14 if the offense that gave rise to the requirement 
to register was a Tier II offense; and level 12 if the offense that 
gave rise to the requirement to register was a Tier I offense. Option 
Two provides a base offense level of [12] and a specific offense 
characteristic in Sec.  2A3.5(b)(1) providing a two-level increase if 
the offense that gave rise to the requirement to register was a Tier II 
offense and a four-level increase if the offense that gave rise to the 
requirement to register was a Tier III offense. The resulting offense 
level under either option is the same for each tier of offense. The 
definitions for Tier I, II, and III offenses are the statutory 
definitions provided in 42 U.S.C. 16911(2), (3), and (4), respectively.
    The first and second matters are addressed in Sec.  2A3.5(b)(1) of 
Option One, and in Sec.  2A3.5(b)(2) of Option Two. Both options 
provide alternative increases based on the type of offense committed 
while in a failure to register status and on whether that offense was 
committed against a minor or an adult. The proposed amendment provides 
a 6-level increase if, while in a failure to register status, the 
defendant committed a sex offense against an adult, or kidnapped or 
falsely imprisoned a minor. If the defendant committed a sex offense 
against a minor, the proposed amendment provides an 8-level increase 
and a minimum offense level of [24]-[28].
    The third matter is addressed in Sec.  2A3.5(b)(2) in Option One, 
and in Sec.  2A3.5(b)(3) in Option Two. Both options provide a [2][4]-
level decrease if the defendant voluntarily attempted to correct the 
failure to register.
    Issues for comment 2 and 3 in Part V of the 
proposed amendment request comment regarding the scope of these 
proposed enhancements. Issue for comment 3 also asks whether 
the Commission should include an instruction that the reduction does 
not apply if any of the proposed specific offense characteristics also 
apply.
    The proposed amendment does not specifically address the fifth 
matter because application of Chapter Four will take into account 
whether the person has been convicted or adjudicated delinquent for any 
offense other than the offense which gave rise to the requirement to 
register.
    The proposed amendment also provides another new guideline for 
certain aggravated offenses related to the requirement to register as a 
sex offender. As noted previously, 18 U.S.C. 2250(c) provides a 
mandatory consecutive term of 5 years if a crime of violence was 
committed while the defendant was in a failure to register status. 
Section 2260A of title 18, United States Code, provides a mandatory 
consecutive term of 10 years' imprisonment if a person who is required 
to register commits an enumerated offense (including kidnapping, human 
trafficking, and various sex offenses). The new guideline, Sec.  2A3.6 
(Aggravated Offenses Relating to Registration as a Sex Offender), will 
apply to convictions under 18 U.S.C. 2250(c) or 2260A, and instructs 
the court that the guideline sentence for any such conviction is the 
term of imprisonment required by statute. Neither Chapters Three nor 
Four will apply to any count of conviction covered by this guideline. 
This approach is the same approach the Commission has taken with other 
statutes that provide mandatory consecutive terms of imprisonment, 
namely 18 U.S.C. 1028A (see Sec.  2B1.6 (Aggravated Identity Theft) and 
18 U.S.C. 924(c) (See Sec.  2K2.4 (Use of Firearm, Armor-Piercing 
Ammunition, or Explosive During or in Relation to Certain Crimes).)
    Part II implements other new offenses and increased penalties as 
follows:
    (A) The Act provides a mandatory minimum term of imprisonment of 30 
years for convictions under 18 U.S.C. 2241(c) (Aggravated sexual abuse 
with children). This statute covers crossing state lines to engage in 
the sexual abuse of a child under the age of 12 years. It also covers 
engaging in a sexual act under the circumstances described in 18 U.S.C. 
2241(a) and (b) (force, threat, or other means) with a child who is 
between the ages of 12 years and 16 years and is at least four years 
younger than the person who is engaging in the sexual act. The proposed 
amendment provides a base offense level of [40] in Sec.  2A3.1 
(Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse) if the 
defendant was convicted under 18 U.S.C. 2241(c). The specific offense 
characteristic for the age of the victim, subsection (b)(2), would not 
apply because the higher base offense level takes into account the age 
of the victim. There also is an application note that instructs the 
court not to apply the enhancement in Sec.  2A3.1(b)(1) (four-level 
enhancement if the offense involved conduct described in 18 U.S.C. 
Sec.  2241(a) or (b)) if the basis for the conviction under 18 U.S.C. 
2241(c) is that the defendant engaged in conduct described in 18 U.S.C. 
2241(a) or (b).
    (B) The Act increased the statutory maximum term of imprisonment 
for convictions under 18 U.S.C. 2243(b) for sexual abuse of a ward from 
five years to 15 years. The proposed amendment proposes to increase the 
base offense level in Sec.  2A3.3 (Criminal Sexual Abuse

[[Page 4378]]

of a Ward or Attempt to Commit Such Acts) to level [14][16][18][20].
    (C) The Act created a new offense in 18 U.S.C. 2244(a)(5) for 
sexual contact offenses that would have violated 18 U.S.C. 2241(c) had 
the sexual contact been a sexual act. (Section 2241(c) covers sexual 
acts with a child under 12 years old or sexual acts involving conduct 
described in 18 U.S.C. 2241(a) or (b) with a child between the ages of 
12 and 16 and who is at least four years younger than the defendant.) 
The offense has a statutory maximum term of imprisonment of life.
    The proposed amendment addresses this new offense by increasing the 
minimum offense level in the age enhancement in subsection Sec.  
2A3.4(b)(1) from level 20 to level 22.
    Issue for Comment 4 in Part V of the proposed amendment 
addresses whether Sec.  2A3.4 already adequately accounts for the new 
offense and therefore does not need to be amended.
    (D) The Act amended 18 U.S.C. 1591 (sex trafficking of children or 
by force, fraud, or coercion) to provide a mandatory minimum term of 
imprisonment of 15 years if the sex trafficking offense involved a 
minor who had not attained the age of 14 years or involved force, 
fraud, or coercion (subsection 1591(b)(1)) and a mandatory minimum of 
10 years if the offense involved a minor who had attained the age of 14 
years but had not attained the age of 18 years (subsection 1591(b)(2)). 
The Act also increased the statutory maximum term of imprisonment from 
40 years to life for 18 U.S.C. 1591(b)(2) offenses.
    To address the increased statutory minimums, the proposed amendment 
modifies the base offense levels in Sec. Sec.  2G1.1 (Promoting a 
Commercial Sex Act or Prohibited Sexual Conduct with an Individual 
Other than a Minor) and 2G1.3 (Promoting a Commercial Sex Act or 
Prohibited Sexual Conduct with a Minor; Transportation of Minors to 
Engage in a Commercial Sex Act or Prohibited Sexual Conduct).
    With respect to offenses involving force, fraud, or coercion, the 
proposed amendment would create a heightened base offense level of 
[34][36] in Sec.  2G1.1 if the offense of conviction is 18 U.S.C. 1591 
and the offense involved conduct described in subsection (b)(1) of that 
statute. An alternative base offense level of 14 would apply in all 
other cases. The proposed amendment also excludes application of the 
enhancement in Sec.  2G1.1(b)(1) to cases that are sentenced under 
Sec.  2G1.1(a)(1) because cases to which that base offense level apply 
necessarily involve fraud or coercion.
    With respect to offenses involving minors, the proposed amendment 
would create alternative base offense levels in Sec.  2G1.3 based on 
the statute of conviction and the conduct described in that conviction. 
For convictions under 18 U.S.C. 1591 in which the offense involved 
conduct described in subsection (b)(1) of that statute (i.e., offense 
was effected by force, fraud, or coercion, or involved a minor who had 
not attained the age of 14 years), the proposed base offense level is 
[34][36]. For convictions under 18 U.S.C. 1591 in which the offense 
involved conduct described in subsection (b)(2) of that statute (i.e., 
offense involved a minor who had attained the age of 14 but had not 
attained the age of 18 years), the proposed base offense level is 
[30][32].
    The Act also increased the penalties for 18 U.S.C. 2422(b) 
(Coercion and enticement [of a minor to engage in criminal sexual 
activity]) and 2423(a) (Transportation [of a minor] with intent to 
engage in criminal sexual activity). Both statutes now have a mandatory 
minimum term of 10 years (increased from 5 years) and a statutory 
maximum term of imprisonment of life (increased from 30 years). The 
proposed amendment would add Sec.  2G1.3(a)(3) with a base offense 
level of [28][30] if the defendant was convicted under 18 U.S.C. 
2422(b) or 2423(a). If the Commission decides that the base offense 
level should be the same for offenses under 18 U.S.C. 1591(b)(2), 
2422(b), and 2423(a), then the Team would modify the proposed amendment 
to consolidate these offenses into one base offense level.
    The proposed amendment also provides a range of [4]-[8] at Sec.  
2G1.3(b)(5). It also addresses the interaction of subsection (b)(5), 
which provides an 8-level increase if the offense involved a minor who 
had not attained the age of 12 years, and the proposed addition of 
alternative base offense levels. Now that age is a factor the court 
considers in determining the appropriate base offense level for 
convictions under 18 U.S.C. 1591, the proposed amendment provides a new 
application note that instructs the court not to apply subsection 
(b)(5) if subsection (a)(1) applies. The proposed amendment also 
provides an option for modifying the enhancement.
    Issue for comment 8 asks whether the Commission should 
consider providing an increase of four or six levels, instead of eight 
levels, at Sec.  2G1.3(b)(5) in any case in which the age of the minor 
victim is taken into account by base offense level.
    (E) The Act created a new offense in 18 U.S.C. 2257A that imposes 
recordkeeping requirements on individuals who produce depictions of 
simulated sexually explicit conduct. Failure to comply with the 
recordkeeping requirements carries a statutory maximum term of 
imprisonment of 1 year. If the offense was intended to conceal a child 
pornography offense, the statute provides a statutory maximum term of 
imprisonment of 5 years for the first offense; for the second offense, 
the penalty is a 2-year mandatory minimum and a statutory maximum of 10 
years.
    The proposed amendment references this new offense to Sec.  2G2.5 
(Recordkeeping Offenses Involving the Production of Sexually Explicit 
Materials; Failure to Provide Required Marks in Commercial Electronic 
Email).
    Issue for Comment 5 in Part V of the proposed amendment 
requests comment regarding the refusal to allow inspection of records 
in violation of 18 U.S.C. 2257(f)(5) or 2257A.
    (F) The Act created a new offense in 18 U.S.C. 2252A(g) that 
prohibits engaging in child exploitation enterprises, defined in the 
statute as violating 18 U.S.C. Sec.  1591, 1201 (if the victim is a 
minor), Chapter 109A (involving a minor), Chapter 110 (except for 18 
U.S.C. 2257 and 2257A), or Chapter 117 (involving a minor), as part of 
a series of felony violations constituting three or more separate 
incidents and involving more than one victim, and committing those 
offenses in concert with three or more other people. The statute 
provides a mandatory minimum term of imprisonment of 20 years.
    The proposed amendment creates a new guideline, Sec.  2G2.6 (Child 
Exploitation Enterprises), to cover this new offense. The guideline 
provides a base offense level of [34][35][36][37] and three specific 
offense characteristics, based on the age of the victim (subsection 
(b)(1)), whether the defendant was the parent or had some other 
custodial care of the victim (subsection (b)(2)), and whether the 
offense involved conduct described in 18 U.S.C. 2241(a) or (b) 
(subsection (b)(3)).
    Issue for Comment 6 requests comment regarding the base 
offense level, the scope of the proposed specific offense 
characteristics, and whether the Commission should consider other 
conduct for purposes of providing additional specific offense 
characteristics.
    (G) The Act created a new offense in 18 U.S.C. 2252C that prohibits 
knowingly embedding words or images into the source code of a Web site 
with the intent to deceive a person into

[[Page 4379]]

viewing obscenity, or to deceive a minor into viewing material harmful 
to minors. The statute carries a statutory maximum term of imprisonment 
of 20 years if the offense involved a minor, or a maximum of 10 years, 
otherwise. Application Note 2 proposes that the specific offense 
characteristic at Sec.  2G3.1(b)(3) not apply for offenses under 18 
U.S.C. 2252C.
    The proposed amendment modifies subsection (b)(2) of Sec.  2G3.1 
(Importing, Mailing, or Transporting Obscene Matter; Transferring 
Obscene Matter to a Minor; Misleading Domain Names), which currently 
provides a two-level enhancement if the offense involved misleading 
domain names. The proposed amendment adds to this enhancement embedding 
words or digital images on a Web site and also presents the option of 
providing a four-level increase for this enhancement.
    Issue for Comment 7 requests comment regarding whether the 
Commission should provide an enhancement if the defendant intended to 
deceive someone other than a minor into viewing obscenity.
    Part III addresses other criminal provisions contained in the Act 
as follows:
    (A) The Act created a new Class A misdemeanor in 42 U.S.C. 16984 
prohibiting the use of a child's fingerprints that were derived from a 
program funded by federal grants to support voluntary fingerprinting of 
children for any purpose other than providing the fingerprints to the 
child's parents or guardian. The proposed amendment references this new 
offense to Sec.  2H3.1.1 (Interception of Communications; 
Eavesdropping; Disclosure of Tax Return Information) and provides a 
base offense level of 6 for the offense. The heading of the guideline 
also is amended to cover personal information of this sort.
    The Act also created 42 U.S.C. 16962 prohibiting the improper 
release of information obtained in fingerprint-based checks for the 
background check of foster or adoptive parents or of a person employed 
by, or considering employment with, a private or public educational 
agency. The statute provides a statutory maximum term of imprisonment 
of 10 years. The proposed amendment references this offense to Sec.  
2H3.1 and such offenses will receive a base offense level of 9 under 
Sec.  2H3.1(a)(1).
    (B) The Act amended 18 U.S.C. 1001 to provide an enhanced penalty 
of up to 8 years if the matter relates to an offense under 18 U.S.C. 
1591 or Chapters 109A, 110, or 117 of title 18, United States Code. The 
proposed amendment adds a [2]-[12] level enhancement in subsection 
(b)(1)(C) of Sec.  2J1.2 (Obstruction of Justice) to cover such 
conduct.
    (C) The Act added 18 U.S.C. 1591 to the list in 18 U.S.C. 
3559(e)(2) of repeated sex offenses committed against children that 
require a mandatory life imprisonment. The proposed amendment adds 18 
U.S.C. 1591 to the list of covered sex offenses in Application Note 2 
of Sec.  4B1.5 (Repeat and Dangerous Sex Offender Against Minors).
    Part IV addresses the probation and supervised release aspects of 
the Act. First, the proposed amendment updates subsection (a)(9) of 
Sec.  5B1.3 (Conditions of Probation) and subsection (a)(7) of Sec.  
5D1.3 to include compliance with SORNA as one of the mandatory 
conditions. Second, it adds to the list of ``special conditions'' in 
Sec. Sec.  5B1.3(d) and 5D1.3(d) a condition requiring a sex offender 
to submit to a search, as added to 18 U.S.C. 3563(b) and 3583(d) by the 
Act. Third, the proposed amendment modifies Sec.  5D1.2 (Term of 
Supervised Release) to add Chapter 109B and 18 U.S.C. 1201 and 1591 to 
the definition of sex offense in Application Note 1 of that guideline.
    Part V sets forth all of the issues for comment. In addition to the 
specific issues noted in this synopsis, Issue for Comment 1 
requests input regarding how the Commission should incorporate the 
mandatory minimum terms of imprisonment created or increased by the 
Adam Walsh Act and discusses four approaches for incorporating these 
penalties.

Proposed Amendment

Part I--Implementing Directive Regarding 18 U.S.C. Sec.  2250 Offenses
    Chapter Two, Part A, Subpart 3 is amended in the heading by adding 
at the end ``AND OFFENSES RELATED TO REGISTRATION AS A SEX OFFENDER''; 
and by adding at the end the following new guidelines and accompanying 
commentary:
``Sec.  2A3.5. Failure to Register as a Sex Offender
    Option 1:
    [(a) Base Offense Level:
    (1) 16, if the offense that gave rise to the requirement to 
register was a Tier III offense;
    (2) 14, if the offense that gave rise to the requirement to 
register was a Tier II offense; or
    (3) 12, if the offense that gave rise to the requirement to 
register was a Tier I offense.
    (b) Specific Offense Characteristics:
    (1) If, while in a failure to register status, the defendant (A)(i) 
committed a sex offense against someone other than a minor; or (ii) 
kidnapped or falsely imprisoned a minor, increase by 6 levels; or (B) 
committed a sex offense against a minor, increase by 8 levels. If the 
offense level resulting from application of subdivision (B) is less 
than level [24]-[28], increase to level [24]-[28].
    (2) If the defendant voluntarily attempted to correct the failure 
to register, decrease by [2][4]levels.]
    Option 2:
    [(a) Base Offense Level: 12
    (b) Specific Offense Characteristics
    (1) If the offense that gave rise to the requirement to register 
was a (A) Tier II offense, increase by 2 levels; or (B) Tier III 
offense, increase by 4 levels.
    (2) If, while in a failure to register status, the defendant (A)(i) 
committed a sex offense against a person other than a minor; or (ii) 
kidnapped or falsely imprisoned a minor, increase by 6 levels; or (B) 
committed a sex offense against a minor, increase by 8 levels. If the 
offense level resulting from application of subdivision (B) is less 
than level [24]-[28], increase to level [24]-[28].
    (3) If the defendant voluntarily attempted to correct the failure 
to register, decrease by [2][4] levels.]
Commentary
    Statutory Provision: 18 U.S.C. 2250(a).
    Application Note:
    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.
    `Sex offense' has the meaning given that term in 42 U.S.C. Sec.  
16911(5), except that kidnapping and false imprisonment are not 
included.
    [`Tier I offense',] `tier II offense', and `tier III offense' have 
the meaning given those terms in 42 U.S.C. Sec.  16911[(2)], (3) and 
(4), respectively.
Sec.  2A3.6. Aggravated Offenses Relating to Registration as a Sex 
Offender
    (a) If the defendant was convicted under 18 U.S.C. 2250(c) or Sec.  
2260A, the guideline sentence is the term of imprisonment required by 
statute. Chapters Three (Adjustments) and Four

[[Page 4380]]

(Criminal History and Criminal Livelihood) shall not apply to that 
count of conviction.
Commentary
    Statutory Provisions: 18 U.S.C. 2250(c), 2260A.
    Application Notes:
    1. In General.--Sections 2250(c) and 2260A of title 18, United 
States Code, provide mandatory minimum terms of imprisonment that are 
required to be imposed consecutively to other offenses. Accordingly, 
the guideline sentence for a defendant convicted under either statute 
is the term required by the statute.
    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).''
Part II--Implementing New Sex Offenses and Increased Penalties
    (A) New Mandatory Minimum for 18 U.S.C. 2241(c):
    Section 2A3.1(a) is amended by striking ``30'' and inserting the 
following:
    ``(1) 40, 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 subsection (b)(1),''; and by adding at the end following 
paragraph:
    ``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. Sec.  2241(a) or (b), do not apply subsection (b)(1).''.
    The Commentary to Sec.  2A3.1 captioned ``Background'' is amended 
in the first paragraph in the third sentence by inserting ``in 
subsection (a)(2)'' after ``offense level''; and in the second 
paragraph in the second sentence by inserting ``, except when 
subsection (b)(2) applies'' after ``twelve years of age''.
    (B) Increased Statutory Maximum in 18 U.S.C. Sec.  2423(b):
    Section 2A3.3(a) is amended by striking ``12'' inserting 
``[12][14][16][18][20]''.
    The Commentary to Sec.  2A3.3 captioned ``Application Notes'' is 
amended in Note 1 by striking ``Minor'' through the end of that 
sentence 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 is amended by striking the 
Background.
    (C) New Offense in 18 U.S.C. Sec.  2244(a)(5):
    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)''.
    (D) Increased Penalties (statutory minimum and maximum) for 18 
U.S.C. Sec.  1591 Section 2G1.1(a) is amended by striking ``14'' and 
inserting the following:
    ``(1) [34][36], if the offense of conviction is 18 U.S.C. 1591 and 
the offense involved conduct described in subsection (b)(1) of that 
statute; or
    (2) 14, otherwise.''.
    Section 2G1.1(b)(1) is amended by inserting ``subsection (a)(2) 
applies and'' after ``If''.
    The Commentary to Sec.  2G1.1 captioned ``Application Notes'' is 
amended in Note 2 by adding at the end the following:
    ``Do not apply this enhancement if the base offense level is 
determined under subsection (a)(1) because subsection (a)(1) 
necessarily involves fraud or coercion.''.
    Section 2G1.3(a) is amended by striking ``24'' and inserting:
    ``(1) [34][36], if the defendant was convicted under 18 U.S.C. 
Sec.  1591 and the offense involved conduct described in subsection 
(b)(1) of that statute;
    (2) [30][32], if the defendant was convicted under 18 U.S.C. Sec.  
1591 and the offense involved conduct described in subsection (b)(2) of 
that statute;
    (3) [28][30], if the defendant was convicted under 18 U.S.C. Sec.  
2422(b) or Sec.  2423(a); or
    (4) 24, otherwise.''.
    Section 2G1.3 is amended in subsection (b)(5) by striking ``8'' and 
inserting ``[4][6][8]''.
    The Commentary to Sec.