Sentencing Guidelines for United States Courts, 4931-4939 [E8-1425]

Download as PDF Federal Register / Vol. 73, No. 18 / Monday, January 28, 2008 / Notices For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.9 Florence E. Harmon, Deputy Secretary. [FR Doc. E8–1374 Filed 1–25–08; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–57186; File No. SR– NYSEArca–2007–121] Self-Regulatory Organizations; NYSE Arca, Inc.; Order Granting Approval of Proposed Rule Change Relating to Rule 6.37B and the Quoting Obligations of Lead Market Makers January 22, 2008. mstockstill on PROD1PC66 with NOTICES On November 27, 2007, NYSE Arca, Inc. (‘‘NYSE Arca’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘Commission’’), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 a proposed rule change to modify the continuous quoting obligation of Lead Market Makers (‘‘LMMs’’). The proposed rule change was published for comment in the Federal Register on December 12, 2007.3 The Commission received no comments on the proposed rule change. This order approves the proposed rule change. NYSE Arca proposes to amend its Rule 6.37B to reduce the continuous quoting obligation of LMMs. Currently, an LMM must provide continuous twosided quotations throughout the trading day in its appointed issues for 99% of the time the Exchange is open for trading in each issue.4 NYSE Arca proposes to reduce the continuous quoting obligation of LMMs to 90% of the time the Exchange is open for trading in each appointed issue. The Exchange proposes that any period in which a technical failure or limitation of a system of the Exchange prevents an LMM from maintaining, or prevents an LMM from communicating to the Exchange, timely and accurate electronic quotes in a class shall not be considered in determining whether an LLM has satisfied the 90% quoting standard with respect to that option class. The Exchange also proposes that it may consider other exceptions to the continuous quoting obligation based on 9 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 3 See Securities Exchange Act Release No. 56908 (December 5, 2007), 72 FR 70639. 4 See NYSE Arca Rule 6.37B(b). 1 15 VerDate Aug<31>2005 17:56 Jan 25, 2008 Jkt 214001 demonstrated legal or regulatory requirements or other mitigating circumstances. In addition, the Exchange proposes to amend the review period for this continuous quoting obligation from a quarterly basis to a monthly basis. The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange.5 In particular, the Commission believes that the proposed rule change is consistent with section 6(b)(5) of the Act,6 in that it is designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. The Commission believes that the Exchange’s proposal to reduce the continuous quoting obligation of LMMs is appropriate given the benefits afforded to LMMs.7 It is therefore ordered, pursuant to section 19(b)(2) of the Act,8 that the proposed rule change (SR–NYSEArca– 2007–121) be, and it hereby is, approved. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.9 Florence E. Harmon, Deputy Secretary. [FR Doc. E8–1395 Filed 1–25–08; 8:45 am] BILLING CODE 8011–01–P 5 In approving this rule, the Commission notes that it has considered the proposed rule’s impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). 6 15 U.S.C. 78f(b)(5). 7 In addition, the Commission notes that all NYSE Arca Market Makers have a minimum continuous quoting obligation. NYSE Arca Rule 6.37B(c) states that a Market Maker must provide continuous two sided quotations throughout the trading day in its appointed issues for 60% of the time the Exchange is open for trading in each issue. In addition, the Commission notes that NYSE Arca Rule 6.37B(d), which states that in the interest of maintaining a fair and orderly market, a Market Maker may be called upon by a Trading Official to maintain continuous quotes in one or more series of an option issue, shall continue to apply. 8 15 U.S.C. 78s(b)(2). 9 17 CFR 200.30–3(a)(12). PO 00000 Frm 00165 Fmt 4703 Sfmt 4703 4931 SECURITIES AND EXCHANGE COMMISSION [File No. 500–1] In the Matter of Certain Companies Quoted on the Pink Sheets: Asia Pacific Energy Inc.; Bolivar Mining Corp; Order of Suspension of Trading January 24, 2008. It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of the issuers listed below. As set forth below for each issuer, questions have arisen regarding the adequacy and accuracy of publicly disseminated information concerning, among other things: (1) The companies’ current financial condition, (2) the companies’ management, (3) the companies’ business operations, and/or (4) stock promoting activity. 1. Asia Pacific Energy Inc. is a Nevada company with offices in Richmond Hill, Ontario, Canada. Questions have arisen regarding the adequacy and accuracy of statements on the company’s Web site concerning the company’s management, operations, current financial condition, transactions involving the issuance of the company’s shares, and concerning stock promoting activity. 2. Bolivar Mining Corp. is a Nevada company with offices in Vancouver, British Columbia, Canada. Questions have arisen regarding the adequacy and accuracy of press releases concerning the company’s current financial condition, operations, management, and concerning stock promoting activity. The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the companies listed above. Therefore, it is ordered, pursuant to section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the companies listed above is suspended for the period from 9:30 a.m. EST on January 24, 2008, through 11:59 p.m. EST, on February 6, 2008. By the Commission. Nancy M. Morris, Secretary. [FR Doc. 08–359 Filed 1–24–08; 10:26 am] BILLING CODE 8011–01–P UNITED STATES SENTENCING COMMISSION Sentencing Guidelines for United States Courts United States Sentencing Commission. AGENCY: E:\FR\FM\28JAN1.SGM 28JAN1 4932 Federal Register / Vol. 73, No. 18 / Monday, January 28, 2008 / Notices 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. mstockstill on PROD1PC66 with NOTICES ACTION: 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: (1) Proposed amendment to § 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States) and Appendix A repromulgating a temporary, emergency amendment implementing section 5 of the Emergency and Disaster Assistance Fraud Penalty Enhancement Act of 2007, Public Law 110–179, and related issues for comment; (2) a proposed amendment to § 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) and Appendix A implementing the Honest Leadership and Open Government Act of 2007, Public Law 110–81; (3) a proposed amendment to §§ 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy), 2D1.2 (Drug Offenses Occurring Near Protected Locations or Involving Underage or Pregnant Individuals; Attempt or Conspiracy), 2N2.1 (Violations of Statutes and Regulations Dealing With Any Food, Drug, Biological Product, Device, Cosmetic, or Agricultural Product), and Appendix A regarding offenses involving human growth hormone (hGH) and offenses involving violations of certain food and drug safety laws, and related issues for comment; (4) a proposed amendment to VerDate Aug<31>2005 17:56 Jan 25, 2008 Jkt 214001 § 2E3.1 (Gambling Offenses) and Appendix A implementing the Animal Fighting Prohibition Enforcement Act of 2007, Public Law 110–22; (5) a proposed amendment making various technical amendments to the guidelines; (6) a proposed amendment to § 4A1.2 (Definitions and Instructions for Computing Criminal History); (7) a proposed amendment to § 2L1.2 (Unlawfully Entering or Remaining in the United States) and a related issue for comment; and (8) issues for comment regarding a directive and two new offenses created by the Court Security Improvement Act of 2007, Public Law 110–177. DATES: (1) 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 28, 2008. (2) 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) 502–4590. SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is an independent agency in the judicial branch of the United States Government. The Commission promulgates sentencing guidelines and policy statements for federal courts pursuant to 28 U.S.C. § 994(a). The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. 994(o) and submits guideline amendments to the Congress not later than the first day of May of each year pursuant to 28 U.S.C. 994(p). The proposed amendments in this notice are presented in one of two formats. First, some of the amendments are proposed as specific revisions to a guideline or commentary. Bracketed text within a proposed amendment indicates a heightened interest on the Commission’s part in comment and suggestions regarding alternative policy PO 00000 Frm 00166 Fmt 4703 Sfmt 4703 choices; for example, a proposed enhancement of [2][4][6] levels indicates that the Commission is considering, and invites comment on, alternative policy choices regarding the appropriate level of enhancement. Similarly, bracketed text within a specific offense characteristic or application note means that the Commission specifically invites comment on whether the proposed provision is appropriate. Second, the Commission has highlighted certain issues for comment and invites suggestions on how the Commission should respond to those issues. The Commission also requests public comment regarding whether the Commission should specify for retroactive application to previously sentenced defendants any of the proposed amendments published in this notice. The Commission requests comment regarding which, if any, of the proposed amendments that may result in a lower guideline range should be made retroactive to previously sentenced defendants pursuant to § 1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range). Additional information pertaining to the proposed amendments described in this notice may be accessed through the Commission’s Web site at 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. Repromulgation of the Emergency Disaster Fraud Amendment 1. Synopsis of Proposed Amendment: This proposed amendment repromulgates the temporary emergency amendment, effective February 6, 2008, that responded to the directive in section 5 of the ‘‘Emergency and Disaster Assistance Fraud Penalty Enhancement Act of 2007,’’ Public Law 110–179 (the ‘‘Act’’). The directive, which required the Commission to promulgate an amendment under emergency amendment authority by February 6, 2008, provides that the Commission forthwith shall— promulgate sentencing guidelines or amend existing sentencing guidelines to provide for increased penalties for persons convicted of fraud or theft offenses in connection with a major disaster declaration under section 401 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170) or an emergency declaration under section 501 of the Robert T. Stafford Disaster Relief and E:\FR\FM\28JAN1.SGM 28JAN1 mstockstill on PROD1PC66 with NOTICES Federal Register / Vol. 73, No. 18 / Monday, January 28, 2008 / Notices Emergency Assistance Act (42 U.S.C. 5191); and (2) submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives an explanation of actions taken by the Commission pursuant to paragraph (1) and any additional policy recommendations the Commission may have for combating offenses described in that paragraph. * * * Section 5(b) of the Act further requires the Commission to— (1) Ensure that the sentencing guidelines and policy statements reflect the serious nature of the offenses described in subsection (a) and the need for aggressive and appropriate law enforcement action to prevent such offenses; (2) assure reasonable consistency with other relevant directives and with other guidelines; (3) account for any aggravating or mitigating circumstances that might justify exceptions, including circumstances for which the sentencing guidelines currently provide sentencing enhancements; (4) make any necessary conforming changes to the sentencing guidelines; and (5) assure that the guidelines adequately meet the purposes of sentencing as set forth in section 3553(a)(2) of title 18, United States Code. The emergency amendment created a new two-level enhancement in § 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States) if the offense involved fraud or theft involving any benefit authorized, transported, transmitted, transferred, disbursed, or paid in connection with a declaration of a major disaster or an emergency, and added a corresponding application note. The emergency amendment added a new subdivision (IV) to Application Note 3(A)(v) of § 2B1.1 providing that in disaster fraud cases, ‘‘reasonably foreseeable pecuniary harm includes the administrative costs to any federal, state, or local government entity or any commercial or not-for-profit entity of recovering the benefit from any recipient thereof who obtained the benefit through fraud or was otherwise ineligible for the benefit that were reasonably foreseeable.’’ The emergency amendment also provided a reference to § 2B1.1 in VerDate Aug<31>2005 17:56 Jan 25, 2008 Jkt 214001 Appendix A (Statutory Index) for the new offense at 18 U.S.C. § 1040, which criminalizes the commission of a fraud in connection with major disaster or emergency benefits, and is punishable by a maximum term of imprisonment of thirty years. The proposed amendment would repromulgate the emergency amendment as a permanent amendment to § 2B1.1. Several issues for comment follow the proposed amendment. Section 2B1.1(b) is amended by adding at the end the following: ‘‘(16) If the offense involved fraud or theft involving any benefit authorized, transported, transmitted, transferred, disbursed, or paid in connection with a declaration of a major disaster or an emergency, increase by 2 levels’’. The Commentary to § 2B1.1 captioned ‘‘Application Notes’’ is amended in Note 3 by inserting after the paragraph that begins ‘‘(III) Offenses Under 18 U.S.C. § 1030.—’’ the following: ‘‘(IV) Disaster Fraud Cases.—In a case in which subsection (b)(16) applies, reasonably foreseeable pecuniary harm includes the administrative costs to any federal, state, or local government entity or any commercial or not-for-profit entity of recovering the benefit from any recipient thereof who obtained the benefit through fraud or was otherwise ineligible for the benefit that were reasonably foreseeable.’’. The Commentary to § 2B1.1 captioned ‘‘Application Notes’’ is amended by redesignating Notes 15 through 19 as Notes 16 through 20, respectively; and by inserting after Note 14 the following: ‘‘15. Application of Subsection (b)(16).—For purposes of this subsection: ‘Emergency’ has the meaning given that term in 42 U.S.C. § 5122. ‘Major disaster’ has the meaning given that term in 42 U.S.C. § 5122.’’. The Commentary to § 2B1.1 captioned ‘‘Background’’ is amended by adding at the end the following: ‘‘Subsection (b)(16) implements the directive in section 5 of Public Law 110–179.’’. Appendix A (Statutory Index) is amended by inserting after the line reference to 18 U.S.C. 1039 the following: ‘‘18 U.S.C. § 1040 2B1.1’’. Issues for Comment 1. Should the proposed amendment repromulgating the emergency amendment, effective February 6, 2008, that responded to the directive in section 5 of the ‘‘Emergency and Disaster Assistance Fraud Penalty Enhancement Act of 2007,’’ Public Law PO 00000 Frm 00167 Fmt 4703 Sfmt 4703 4933 110–179 (the ‘‘Act’’), include a minimum offense level in the specific offense characteristic? If so, what would be the appropriate level for the minimum offense level? 2. Should the proposed amendment repromulgating the emergency amendment expand the scope of the enhancement to cover fraud or theft involving any benefit authorized, transported, transmitted, transferred, disbursed, or paid ‘‘in connection with any procurement of property or services related to any emergency or major disaster declaration as a prime contractor with the United States or as a subcontractor or supplier on a contract in which there is a prime contract with the United States’’? Such conduct was criminalized by the new offense at 18 U.S.C. § 1040 created by the Act, but was not specifically included within the scope of the directive granting emergency amendment authority to the Commission. 3. Are there any aggravating or mitigating circumstances existing in disaster fraud cases that might justify additional amendments to the guidelines? Honest Leadership and Open Government Act of 2007 2. Synopsis of Proposed Amendment: This proposed amendment implements the Honest Leadership and Open Government Act of 2007, Public Law 110–81 (the ‘‘Act’’). The Act creates a new offense at 18 U.S.C. § 227 (Wrongfully influencing a private entity’s employment decisions by a member of Congress), which provides: ‘‘Whoever, being a Senator or Representative in, or a Delegate or Resident Commissioner to, the Congress or an employee of either House of Congress, with the intent to influence, solely on the basis of partisan political affiliation, an employment decision or employment practice of any private entity—(1) takes or withholds, or offers or threatens to take or withhold, an official act, or (2) influences, or offers or threatens to influence, the official act of another, shall be fined under this title or imprisoned for not more than 15 years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States’’. The proposed amendment amends Appendix A to reference offenses under 18 U.S.C. 227 to § 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). E:\FR\FM\28JAN1.SGM 28JAN1 4934 Federal Register / Vol. 73, No. 18 / Monday, January 28, 2008 / Notices The Commentary to § 2C1.1 captioned ‘‘Statutory Provisions’’ is amended by inserting ‘‘227,’’ after ‘‘226,’’. Appendix A (Statutory Index) is amended by inserting after line reference to 18 U.S.C. § 226 the following: ‘‘18 U.S.C. § 227 2C1.1’’. mstockstill on PROD1PC66 with NOTICES Miscellaneous Food and Drug Offenses 3. Synopsis of Proposed Amendment: This proposed amendment addresses offenses involving human growth hormone (hGH) and offenses involving violations of certain food and drug safety laws. First, the proposed amendment creates guideline penalties for offenses involving the illegal distribution of hGH by amending §§ 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy), 2D1.2 (Drug Offenses Occurring Near Protected Locations or Involving Underage or Pregnant Individuals; Attempt or Conspiracy), 2N2.1 (Violations of Statutes and Regulations Dealing With Any Food, Drug, Biological Product, Device, Cosmetic, or Agricultural Product), and Appendix A (Statutory Index). Specifically, the proposed amendment adds references to §§ 2D1.1 and 2D1.2 in Appendix A for violations of 21 U.S.C. §§ 333(e)(1) and (e)(2), respectively; amends the specific offense characteristic at § 2D1.1(b)(6) to include hGH offenses; and deletes language in the commentary to § 2N2.1 stating that the Commission has not established a guideline for hGH offenses. In addition, there are issues for comment regarding hGH offenses. Second, the proposed amendment addresses how violations of the Federal Food, Drug, and Cometic Act (21 U.S.C. § 301, et seq.) (the ‘‘FDCA’’) and the Prescription Drug Marketing Act of 1987, Public Law 100–293, (the ‘‘PDMA’’) are treated under § 2N2.1. Specifically, the proposed amendment adds a specific offense characteristic at § 2N2.1 that applies if the defendant committed any part of the instant offense after sustaining a conviction of an offense under 21 U.S.C. § 331. Because PDMA offenses at 21 U.S.C. §§ 353 and 381 are incorporated into the FDCA at 21 U.S.C. § 331 the proposed specific offense characteristic also is applicable to a second or subsequent violation of the PDMA. The proposed amendment also amends the commentary to § 2N2.1 to include substantial risk of bodily harm or death as a basis for an upward departure. In addition, there is an issue for comment VerDate Aug<31>2005 17:56 Jan 25, 2008 Jkt 214001 regarding violations of the FDCA and PDMA. Section 2D1.1(b)(6) is amended by inserting ‘‘or human growth hormone’’ after ‘‘substance’’. The Commentary to § 2D1.1 captioned ‘‘Statutory Provisions’’ is amended by inserting ‘‘333(e)(1),’’ after ‘‘21 U.S.C. §§ ’’. The Commentary to § 2D1.1 captioned ‘‘Application Notes’’ is amended in Note 10 in the section captioned ‘‘(E) Drug Equivalency Tables’’ by inserting after the subdivision captioned ‘‘Schedule III Substances (except ketamine) * * * ’’ the following: ‘‘Human Growth Hormone * * * * 1 unit of Human Grown Hormone = 1 gm of marihuana * * * * Provided, that the combined equivalent weight of all human growth hormone units, Schedule III substances, Schedule IV substances (except flunitrazepam), and Schedule V substances shall not exceed 59.99 kilograms of marihuana.’’. The Commentary to § 2D1.1 captioned ‘‘Application Notes’’ is amended in Note 10 in the ‘‘(E) Drug Equivalency Tables’’ in the subdivision captioned ‘‘Schedule IV Substances (except flunitrazepam)’’ by inserting an additional asterisk after ‘‘ * * * ’’ in both instances. The Commentary to § 2D1.1 captioned ‘‘Application Notes’’ is amended in Note 10 in the ‘‘(E) Drug Equivalency Tables’’ in the subdivision captioned ‘‘Schedule V Substances’’ by inserting an additional asterisk after ‘‘ * * * * ’’ in both instances. The Commentary to § 2D1.1 captioned ‘‘Application Notes’’ is amended in Note 10 in the ‘‘(E) Drug Equivalency Tables’’ in the subdivision captioned ‘‘List I Chemicals (relating to the manufacture of amphetamine or methamphetamine)’’ by inserting an additional asterisk after ‘‘ * * * * * * ’’ in both instances. The Commentary to § 2D1.2 captioned ‘‘Statutory Provisions’’ is amended by inserting ‘‘333(e)(2),’’ after ‘‘21 U.S.C. §§ ’’. Section 2N2.1 is amended by redesignating subsection (b) as subsection (c) and inserting after subsection (a) the following new subsection: ‘‘(b) Specific Offense Characteristic (1) If the defendant committed any part of the instant offense after sustaining a conviction of an offense under 21 U.S.C. § 331, increase by [2]– [7] levels.’’. The Commentary to § 2N2.1 captioned ‘‘Application Notes’’ is amended in Note 3 by striking ‘‘Death’’ and inserting PO 00000 Frm 00168 Fmt 4703 Sfmt 4703 ‘‘The offense created a substantial risk of bodily injury or death,’’; and by inserting ‘‘from the offense’’ after ‘‘resulted’’. The Commentary to § 2N2.1 captioned ‘‘Application Notes’’ is amended in Note 4 by striking the first sentence. Appendix A (Statutory Index) is amended by inserting after line reference to 21 U.S.C. § 333(b) the following: ‘‘21 U.S.C. § 333(e)(1) 2D1.1 21 U.S.C. § 333(e)(2) 2D1.2’’. Issues for Comment 1. The Commission requests comment regarding how human growth hormone (hGH) should be quantified under § 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses)). Human growth hormone typically is distributed in vials of varying sizes. The vials may specify the amount of hGH they contain in International Units (IU) or milligrams (mg). For certain controlled substances (including some Schedule I and II depressants, Schedule III, Schedule IV, and Schedule V controlled substances) the base offense level is determined based on the number of ‘‘units’’ involved in the offense. A ‘‘unit’’ is defined generally as ‘‘one pill, capsule or tablet’’ or, if in liquid form (other than GHB), one ‘‘unit’’ means 0.5 ml. See Note F of the Drug Quantity Table in § 2D1.1(c). 2. The existing definition of ‘‘unit’’ applies to trafficking in steroids, which is a Schedule III controlled substance with a penalty scheme similar to distribution offenses involving human growth hormone (hGH). The Commission requests comment regarding the harmfulness of hGH offenses relative to steroid offenses. Are hGH trafficking offenses more harmful, less harmful, or of approximately equal harm? Based on that comparison, what quantity of vials, IU, or mg of hGH should be used to determine a ‘‘unit’’ for purposes of calculating the base offense level (e.g., one vial, 3 IUs, 1 mg)? 3. The Commission requests comment regarding whether a maximum base offense level should apply in § 2D1.1 for an offense involving the distribution of human growth hormone (hGH). For certain types of controlled substances, the marihuana equivalencies in the Drug Equivalency Table in § 2D1.1(c) are ‘‘capped’’ at specified amounts. For example, anabolic steroids and other Schedule III controlled substances, which also have a statutory maximum of 5 years’ imprisonment, are subject to a maximum base offense level of 20. Should the Commission similarly E:\FR\FM\28JAN1.SGM 28JAN1 mstockstill on PROD1PC66 with NOTICES Federal Register / Vol. 73, No. 18 / Monday, January 28, 2008 / Notices provide a maximum base offense level for offenses involving the distribution of hGH and, if so, what maximum base offense level should apply? 4. The Commission requests comment regarding whether it should expand the scope of the enhancements in § 2D1.1(b)(6) (pertaining to masking agents) and § 2D1.1(b)(7) (pertaining to distribution of a steroid to an athlete) to include hGH. Also, should the Commission amend the commentary to § 2D1.1 in Application Note 8 to cover offenses involving human growth hormone (hGH)? Specifically, the enhancement at § 2D1.1(b)(6) 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.’’ Masking agents also can be taken to prevent the detection of other controlled substances, including hGH. Should the Commission expand the definition of masking agent, and thus application of the enhancement, in a manner that covers hGH? Human growth hormone also may be used to enhance an individual’s performance. Should the Commission expand the scope of the enhancement at § 2D1.1(b)(7) pertaining to distribution to an athlete to cover offenses involving hGH? Application Note 8 instructs the court on how to apply § 3B1.3 (Abuse of Position of Trust or Use of Special Skill) in a case in which a coach used his or her position to influence an athlete to use an anabolic steroid. Similarly, a coach may use his or her position to influence an athlete to use hGH. Should the Commission modify Application Note 8 to include cases involving hGH? 5. The Commission requests comment regarding whether § 2N2.1 (Violations of Statutes and Regulations Dealing with Any Food, Drug, Biological Product, Device, Cosmetic, or Agricultural Product) adequately addresses the numerous statutes referenced to that guideline. The statutes referenced to § 2N2.1 prohibit conduct ranging from regulatory offenses with a statutory maximum penalty of 1 year imprisonment (e.g., 21 U.S.C. § 642 (Recordkeeping requirements [for meat processors])) to violations of the Prescription Drug Marketing Act of 1987 that carry a statutory maximum penalty of 10 years imprisonment. Should the Commission provide alternative base offense levels, specific offense characteristics identifying aggravating factors warranting an enhanced sentence, or some combination of these to more adequately address these offenses? If so, what should be the offense levels associated with VerDate Aug<31>2005 17:56 Jan 25, 2008 Jkt 214001 alternative base offense levels and/or specific offense characteristics? Animal Fighting Prohibition Enforcement Act of 2007 4. Synopsis of Proposed Amendment: This proposed amendment implements the Animal Fighting Prohibition Enforcement Act of 2007, Public Law 110–22 (the ‘‘Act’’). The Act amends the Animal Welfare Act, 7 U.S.C. § 2156, to increase penalties for existing offenses and to create a new offense. Specifically, the Act increases penalties for criminal violations of 7 U.S.C. 2156 from a maximum term of one year of imprisonment to a maximum term of not more than three years of imprisonment. The penalties are now set forth in section 49 of title 18, United States Code. In addition, the Act created a new offense at 7 U.S.C. 2156(e) which makes it unlawful to ‘‘sell, buy, transport, or deliver in interstate or foreign commerce a knife, a gaff, or any other sharp instrument attached, or designed or intended to be attached, to the leg of a bird for use in an animal fighting venture.’’ The term ‘‘animal fighting venture’’, an element of each criminal offense in 7 U.S.C. 2156, is defined at subsection (g) as ‘‘ * * * any event which involves a fight between at least two animals and is conducted for purposes of sport, wagering, or entertainment * * *’’. The proposed amendment deletes the reference of 7 U.S.C. 2156 to § 2X5.2 (Class A Misdemeanors) in Appendix A because violations of 7 U.S.C. 2156 are now felony offenses. The proposed amendment references offenses under 7 U.S.C. 2156 to § 2E3.1 (Gambling Offenses). The proposed amendment also creates a new alternative base offense level at § 2E3.1(b)(2) that provides a base offense level of [8][10] if the offense involved an ‘‘animal fighting venture’’, which is defined in proposed Application Note 1 as having the meaning given that term in 7 U.S.C. 2156(g). Additionally, the proposed amendment adds an instruction to apply the greatest applicable base offense level at § 2E3.1(a) because an offense involving an animal fighting venture may also involve conduct covered by subsection (a)(1). The proposed amendment also provides an upward departure provision if an animal fighting offense involves extraordinary cruelty to an animal. Finally, the proposed amendment expands the title of § 2E3.1 to include animal fighting offenses. Section 2E3.1 is amended in the heading by adding at the end ‘‘; Animal Fighting Offenses’’. PO 00000 Frm 00169 Fmt 4703 Sfmt 4703 4935 Section 2E3.1(a) is amended by inserting ‘‘(Apply the Greatest)’’ after ‘‘Level:’’; by redesignating subdivision (2) as subdivision (3); and by inserting after subdivision (1) the following: ‘‘(2) [8][10], if the offense involved an animal fighting venture; or’’. The Commentary to § 2E3.1 captioned ‘‘Statutory Provisions’’ is amended by inserting ‘‘7 U.S.C. § 2156;’’ before ‘‘15 U.S.C. §§ ’’. The Commentary to § 2E3.1 is amended by adding at the end the following: ‘‘Application Notes: 1. ‘Animal fighting venture’ has the meaning given that term in 7 U.S.C. § 2156(g). 2. In the case of an animal fighting offense that involves extraordinary cruelty to an animal, an upward departure may be warranted.’’. Appendix A (Statutory Index) is amended in the line reference to 7 U.S.C. § 2156 by striking ‘‘2X5.2’’ and inserting ‘‘2E3.1’’. Technical Amendment 5. Synopsis of Proposed Amendment: This proposed amendment makes technical corrections to various guidelines. First, the proposed amendment modifies § 2B1.1(b)(11) to correct a clerical error. Second, the proposed amendment addresses section 121 of the USA PATRIOT Improvement and Reauthorization Act of 2005, Public Law 109–177, (the ‘‘USA PATRIOT Act’’). The USA PATRIOT Act changed the definition of ‘‘contraband cigarette’’ in subsection (2) of 21 U.S.C. 2341 (Trafficking in Contraband Cigarettes and Smokeless Tobacco) to include the failure to pay local cigarette taxes. Prior to the USA PATRIOT Act, the definition covered only the failure to pay state cigarette taxes. Section 121 of the PATRIOT Act also reduced the number of contraband cigarettes necessary to violate the substantive offenses set forth in 18 U.S.C. 2342 (Unlawful acts) and 2344 (Penalties) from 60,000 to 10,000. Violations involving contraband cigarettes are referenced to § 2E4.1 (Unlawful Conduct Relating to Contraband Cigarettes and Smokeless Tobacco) in Appendix A (Statutory Index). The Commission amended the background commentary at § 2E4.1 to reflect the change in the number of contraband cigarettes and expanded the headings of Chapter Two, Part E, Subpart 4 and § 2E4.1 to include smokeless tobacco. See Amendment 700, USSG App. C. However, the amendment to § 2E4.1 did not reflect the E:\FR\FM\28JAN1.SGM 28JAN1 mstockstill on PROD1PC66 with NOTICES 4936 Federal Register / Vol. 73, No. 18 / Monday, January 28, 2008 / Notices statutory inclusion of failure to pay local cigarette taxes in 21 U.S.C. 2341. The proposed amendment amends § 2E4.1 to incorporate the statutory language regarding failure to pay local cigarette taxes. Currently, Application Note 1 at § 2E4.1 provides that the ‘‘tax evaded’’ refers to state excise tax. The proposed amendment expands the meaning of ‘‘tax evaded’’ at Application Note 1 to include local excise taxes. The proposed amendment also amends the background commentary at § 2E4.1 to include local excise taxes. Third, the proposed amendment implements the technical corrections made by Public Law 110–161. Fourth, the proposed amendment corrects a statutory reference included in § 3C1.4 (False Registration of Domain Name), which provides a two-level adjustment for a case in which a particular statutory enhancement applies. At the time of promulgation of this guideline, the referenced statutory enhancement was at 18 U.S.C. 3559(f)(1). See Amendment 689, USSG App. C. The Adam Walsh Child Protection and Safety Act of 2006 (the ‘‘Adam Walsh Act’’), Public Law 109– 248, amended 18 U.S.C. 3559 by redesignating subsection (f) as subsection (g) and inserting a new subsection (f). This proposed amendment changes the statutory reference in § 3C1.4 to reflect the redesignation of subsection (f) to subsection (g) of section 3359. Fifth, the proposed amendment addresses statutory changes to 18 U.S.C. 1512. In 2002, Congress amended 18 U.S.C. 1512(a) and (b) (Tampering with a witness, victim, or an informant) as part of the 21st Century Department of Justice Appropriations Authorization Act (the ‘‘Act’’), Public Law 107–273. Section 3001 of the Act moved the elements of ‘‘physical force’’ and ‘‘threat of physical force’’ from 18 U.S.C. 1512(b) into subsection (a). Thus, section 1512(b) now punishes only intimidation, threats, corrupt persuasion, misleading conduct, and attempts. The Act also added at 18 U.S.C. 1512(a)(3)(C) a ten-year statutory maximum penalty in the case of ‘‘the threat of physical force against any person’’. In order to reflect the statutory changes, the proposed amendment modifies the statutory index by deleting the references in Appendix A to §§ 2A1.2 (Second Degree Murder) and 2A2.2 (Aggravated Assault) for 18 U.S.C. § 1512(b), and adding those guidelines as references for 18 U.S.C. 1512(a). The proposed amendment also adds a reference to § 2J1.2 (Obstruction of Justice) for 18 U.S.C. 1512(a) to reflect the broad range of obstructive conduct VerDate Aug<31>2005 17:56 Jan 25, 2008 Jkt 214001 now covered in that section, including the threat of physical force against a witness. Sixth, the proposed amendment refers offenses under 18 U.S.C. 1091 to § 2H1.1 (Offenses Involving Individual Rights) in Appendix A. Appendix A currently refers offenses under 18 U.S.C. 1091 (Genocide) to § 2H1.3 (Use of Force or Threat of Force to Deny Benefits or Rights in Furtherance of Discrimination; Damage to Religious Real Property), but this guideline no longer exists. Amendment 521, which became effective November 1, 1995, consolidated §§ 2H1.2 (Conspiracy to Interfere with Civil Rights), 2H1.3, 2H1.4 (Interference with Civil Rights Under Color of Law) and 2H1.5 (Other Deprivations of Rights or Benefits in Furtherance of Discrimination) into § 2H1.1. This proposed amendment would make a conforming change to Appendix A. Section 2B1.1(b)(11) is amended by inserting ‘‘resulting’’ before ‘‘offense level’’. The Commentary to § 2E4.1 captioned ‘‘Application Notes’’ is amended in Note 1 by inserting ‘‘and local’’ before ‘‘excise’’ and by striking ‘‘tax’’ and inserting ‘‘taxes’’. The Commentary to § 2E4.1 captioned ‘‘Background’’ is amended by inserting ‘‘and local’’ before ‘‘excise’’. Section 2X7.1(a) is amended by striking ‘‘554’’ and inserting ‘‘555’’ each place it appears. The Commentary to § 2X7.1 captioned ‘‘Statutory Provision’’ is amended by striking ‘‘554’’ and inserting ‘‘555’’. Appendix A (Statutory Index) is amended by striking both references to 18 U.S.C. § 554 and inserting the following: ‘‘18 U.S.C. § 554 2B1.5, 2M5.2, 2Q2.1 18 U.S.C. § 555 2X7.1’’. Section 3C1.4 is amended by striking ‘‘(f)’’ and inserting ‘‘(g)’’. Appendix A (Statutory Index) is amended in the line reference to 18 U.S.C. § 1512(a) by inserting ‘‘, 2A2.2, 2A2.3, 2J1.2’’ after ‘‘2A2.1’’. Appendix A (Statutory Index) is amended in the line reference to 18 U.S.C. § 1512(b) by striking ‘‘2A1.2, 2A2.2,’’. Appendix A (Statutory Index) is amended in the line reference to 18 U.S.C. § 1091 by striking ‘‘2H1.3’’ and inserting ‘‘2H1.1.’’. Criminal History 6. Synopsis of Proposed Amendment: The proposed amendment modifies § 4A1.2(a) to clarify the meaning of the term ‘‘arrest’’ as used in determining whether an intervening arrest causes PO 00000 Frm 00170 Fmt 4703 Sfmt 4703 two prior sentences to be counted separately or as a single sentence. First, the proposed amendment provides that an intervening arrest includes an attempted service of an arrest warrant where the defendant escapes the arrest or the service of the arrest warrant. Second, the proposed amendment provides that the issuance of a summons or complaint does not constitute an arrest. Section 4A1.2(a)(2) is amended by adding at the end the following: ‘‘An ‘arrest’ includes an attempted service of an arrest warrant where the defendant escapes the arrest or the service of the arrest warrant. The issuance of a summons or a complaint does not constitute an ‘arrest’.’’. The Commentary to § 4A1.2 captioned ‘‘Application Notes’’ is amended in Note 3 by striking ‘‘Upward Departure Provision’’ and inserting ‘‘Multiple Prior Sentences’’. Immigration 7. Synopsis of Proposed Amendment: The following proposed amendment addresses issues related to § 2L1.2 (Unlawfully Entering or Remaining in the United States). Option 1 addresses discrete application issues identified through comment to the Commission as well as through an analysis of applicable circuit case law. Specifically, Option 1 addresses issues related to the definitions of ‘‘crime of violence’’ and ‘‘drug trafficking offense.’’ Within Option 1, sub-option A (Crime of Violence) provides new language in § 2L1.2(b)(1)(A)(iii) and (b)(1)(B) to provide a graduated enhancement of 16 or 12 levels for ‘‘an offense that, by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense.’’ Specific offense characteristic (b)(1)(A)(iii) provides an increase of 16 levels if the sentence imposed for such conviction exceeded 13 months. Specific offense characteristic (b)(1)(B) provides an increase of 12 levels if the sentence imposed for such conviction was 13 months or less. Sub-option A (Crime of Violence) also adds a definition to Application Note 1(B)(iii) for ‘‘forcible sex offenses.’’ Sub-option B (Crime of Violence) deletes the definition of ‘‘crime of violence’’ in Application Note 1(B)(iii) and defines ‘‘crime of violence’’ as ‘‘an offense described in 8 U.S.C. § 1101(a)(43)(A) and (F), except an offense against the property of another.’’ The aggravated felony definition at 8 U.S.C. § 1101(a)(43)(A) includes convictions for murder, rape and sexual E:\FR\FM\28JAN1.SGM 28JAN1 mstockstill on PROD1PC66 with NOTICES Federal Register / Vol. 73, No. 18 / Monday, January 28, 2008 / Notices abuse of a minor, and 8 U.S.C. 1101(a)(43)(F) refers to the definition of ‘‘crime of violence’’ found at 18 U.S.C. 16. The definition of ‘‘crime of violence’’ at 18 U.S.C. 16 is ‘‘(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.’’ Option B limits the scope of 8 U.S.C. 1101(a)(43)(F) to exclude ‘‘an offense against the property of another’’ for purposes of the enhancement. Option 1 provides two sub-options regarding the definition of ‘‘drug trafficking offense’’ in Application Note 1(B)(iv). Sub-option A (Drug Trafficking Offenses) amends the definition of ‘‘drug trafficking offense’’ in Application Note 1(B)(iv) by adding the terms ‘‘[transportation,] or offer to sell’’ to the definition. Sub-option B (Drug Trafficking Offenses) amends the definition of ‘‘drug trafficking offense’’ by deleting the current definition in Application Note 1(B)(iv) and referring to the aggravated felony definition of ‘‘drug trafficking crime’’ as defined in 18 U.S.C. 924(c). Option 1 also provides a new departure provision that ‘‘in a case in which subsection (b)(1)(A) or (b)(1)(B) does not apply and the defendant has a prior conviction for a drug possession [Sub-option A (Drug Trafficking Offenses): or transportation] [Sub-option B (Drug Trafficking Offenses): , transportation, or offer to sell] offense involving a quantity of a controlled substance that exceeds a quantity consistent with personal use, an upward departure may be warranted.’’ Option 1 also provides a new downward departure provision for cases in which subsection (b)(1)(A) applies, and the prior conviction does not meet the definition of aggravated felony at 8 U.S.C. 1101(a)(43). Option 2 provides a base offense level of [12] [14] [16] and four specific offense characteristics. Subsection (b)(1) provides an increase of [4] [6] levels if the defendant previously was deported or unlawfully remained in the United States after a conviction for which the sentence imposed exceeded 24 months. Subsection (b)(2) provides an increase of 4 levels, and a minimum offense level of 24, if the defendant previously was deported or unlawfully remained in the United States after a conviction for a national security or terrorism offense, or an offense of murder, rape, or sexual abuse of a minor as described in 8 VerDate Aug<31>2005 17:56 Jan 25, 2008 Jkt 214001 U.S.C. 1101(a)(43)(A). Subsection (b)(3) provides an increase of [4] [6] levels if the offender sustained a conviction for another felony offense subsequent to illegally reentering the United States. This enhancement does not apply to convictions for reentry (8 U.S.C. 1325 or 1326) as Application Note 3 defines ‘‘another felony offense’’ as ‘‘any federal, state, or local offense, punishable by imprisonment for a term exceeding one year, other than a conviction under 8 U.S.C. 1325 or 1326.’’ Finally, subsection (b)(4) provides a decrease of [4] [6] [8] levels if the defendant does not have any prior felony convictions. Two departure considerations are also provided in Application Note 4. First, a departure may be warranted in ‘‘a case in which the applicable offense level substantially overstates or understates the seriousness of a prior conviction.’’ Second, ‘‘an upward departure may be warranted in a case in which the defendant has been removed multiple times prior to committing the instant offense.’’ Option 3 provides a base offense level 8. The specific offense characteristics include a 20 level increase for a prior felony conviction for a national security or terrorism offense under § 2L1.2(b)(1)(A). A prior felony conviction for murder, rape, child pornography, or child sexual abuse offense results in a 16 level increase under § 2L1.2(b)(1)(B)(i). The option also has bracketed two enumerated offenses that result in a 16 level increase under § 2L1.2(b)(1)(B)(i), kidnapping and human trafficking offenses. Additionally, a prior felony conviction resulting in a sentence of 48 months, or two prior felony convictions each resulting in a sentence of imprisonment exceeding [12] [13] months, results in a 16 level increase under § 2L1.2(b)(1)(B)(ii) and (iii). If the prior felony conviction resulted in a sentence less than 48 months but more than 24 months, an increase of 12 levels applies under § 2L1.2(b)(1)(C). A prior felony conviction resulting in a sentence of imprisonment exceeding [12] [13] months results in an 8 level increase under § 2L1.2(b)(1)(D). Finally, under § 2L1.2(b)(1)(E) any prior felony conviction, regardless of the sentence imposed, or any three prior convictions, each resulting in a sentence of imprisonment of at least 60 days, results in a 4 level increase. This proposed amendment also includes an issue for comment. [Sub-option 1(A)(Crime of Violence): Section 2L1.2(b) is amended by striking subdivisions (A) and (B) and inserting the following: PO 00000 Frm 00171 Fmt 4703 Sfmt 4703 4937 ‘‘(A) A conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months; (ii) a crime of violence; (iii) an offense that, by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense, for which the sentence imposed exceeded 13 months; (iv) a firearms offense; (v) a child pornography offense; (vi) a national security or terrorism offense; (vii) a human trafficking offense; or (viii) an alien smuggling offense, increase by 16 levels; (B) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed was 13 months or less; or (ii) an offense that, by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense, for which the sentence imposed was 13 months or less, increase by 12 levels;’’. [Sub-option A (Crime of Violence): The Commentary to § 2L1.2 captioned ‘‘Application Notes’’ is amended in Note 1 in the paragraph that begins ‘‘(iii) ‘Crime of violence’ means’’ by adding at the end the following: ‘‘ ‘Forcible sex offense’ includes any sex offense in which consent to the conduct was not given, or was not given voluntarily and/or competently.’’.] [Sub-option B (Crime of Violence): The Commentary to § 2L1.2 captioned ‘‘Application Notes’’ is amended in Note 1 by striking the paragraph that begins ‘‘(iii) ‘Crime of violence’ means’’ and inserting the following: ‘‘(iii) ‘Crime of violence’ means an offense described in 8 U.S.C. § 1101(a)(43)(A) or (F), except an offense against the property of another.’’.] [Sub-option A (Drug Trafficking Offenses): The Commentary to § 2L1.2 captioned ‘‘Application Notes’’ is amended in Note 1 in the paragraph that begins (iv) ‘Drug trafficking offense’ means’’ by striking ‘‘or dispensing’’ and inserting ‘‘dispensing, [transportation,] or offer to sell’’. [Sub-option B (Drug Trafficking Offenses): The Commentary to § 2L1.2 captioned ‘‘Application Notes’’ is amended in Note 1 by striking the paragraph that begins (iv) ‘Drug trafficking offense’ means’’ and inserting the following: ‘‘(iv) ‘Drug trafficking offense’ means a ‘drug trafficking crime’ as defined in 18 U.S.C. § 924(c).’’. The Commentary to § 2L1.2 captioned ‘‘Application Notes’’ is amended by adding at the end the following: ‘‘7. Departure Considerations.— (A) In a case in which subsection (b)(1)(A) or (b)(1)(B) does not apply and the defendant has a prior conviction for E:\FR\FM\28JAN1.SGM 28JAN1 4938 Federal Register / Vol. 73, No. 18 / Monday, January 28, 2008 / Notices mstockstill on PROD1PC66 with NOTICES a drug possession [Sub-option A (Drug Trafficking Offenses): or transportation] [Sub-option B (Drug Trafficking Offenses): , transportation, or offer to sell] offense involving a quantity of a controlled substance that exceeds a quantity consistent with personal use, an upward departure may be warranted. [(B) In a case in which subsection (b)(1)(A) applies, and the prior conviction does not meet the definition of aggravated felony at 8 U.S.C. § 1101(a)(43), a downward departure may be warranted.’’.] [Option 2: Chapter Two, Part L, Subpart One, is amended by striking § 2L1.2 and its accompanying commentary and inserting the following: ‘‘§ 2L1.2. Unlawfully Entering or Remaining in the United States (a) Base Offense Level: [12] [14] [16] (b) Specific Offense Characteristics (1) If the defendant previously was deported, or unlawfully remained in the United States, after a conviction for a felony for which the sentence imposed exceeded 24 months, increase by [4][6] levels. (2) If the defendant previously was deported, or unlawfully remained in the United States after a conviction for a felony that is (A) a national security or terrorism offense; or (B) an offense described in 8 U.S.C. § 1101(a)(43)(A); increase by 4 levels. If the resulting offense level is less than level 24, increase to level 24. (3) If the defendant has sustained a conviction for another felony offense that was committed subsequent to illegally reentering the United States, increase by [4][6] levels. (4) If the defendant does not have any prior felony convictions, decrease the offense level by [4][6][8] levels. Commentary Statutory Provisions: 8 U.S.C. 1325(a) (second or subsequent offense only), 8 U.S.C. 1326. For additional statutory provision(s), see Appendix A (Statutory Index). Application Notes: 1. Definition.—For purposes of this guideline,‘felony’ means any federal, state, or local offense punishable by imprisonment for a term exceeding one year. 2. Computation of Criminal History Points.—A conviction taken into account under subsection (b) is not excluded from consideration of whether that conviction receives criminal history points pursuant to Chapter Four, Part A (Criminal History). 3. Application of Subsection (b)(3).— ‘Another felony offense’ means any federal, state, or local offense, VerDate Aug<31>2005 17:56 Jan 25, 2008 Jkt 214001 punishable by imprisonment for a term exceeding one year, other than a conviction under 8 U.S.C. §§ 1325 or 1326. [Option A: For purposes of applying subsection (b)(3), do not consider any conviction taken into account under subsection (b)(1) or (b)(2).] [Option B: A prior conviction taken into account under subsection (b)(1) or (b)(2) is not excluded from consideration under subsection (b)(3).] 4. Departure Considerations. (A) In a case in which the applicable offense level substantially overstates or understates the seriousness of a prior conviction, a departure may be warranted. (B) In a case in which the defendant has been removed multiple times prior to committing the instant offense, an upward departure may be warranted.’’. [Option 3: Chapter Two, Part L, Subpart One, is amended by striking § 2L1.2 and its accompanying commentary and inserting the following: ‘‘§ 2L1.2. Unlawfully Entering or Remaining in the United States (a) Base Offense Level: 8 (b) Specific Offense Characteristic (1) (Apply the Greatest): If the defendant previously was removed, deported, or unlawfully remained in the United States, after— (A) a prior felony conviction for a national security offense or terrorism offense, increase by 20 levels; (B) (i) a prior felony conviction for murder, rape, [kidnapping,] [a human trafficking offense,] a child pornography offense, or an offense of child sexual abuse; (ii) a prior felony conviction resulting in a sentence of imprisonment of at least 48 months; or (iii) two prior felony convictions each resulting in a sentence of imprisonment exceeding [12][13] months, increase by 16 levels; (C) a prior felony conviction resulting in a sentence of imprisonment of at least 24 months, increase by 12 levels; (D) a prior felony conviction resulting in a sentence of imprisonment exceeding [12][13] months, increase by 8 levels; (E) a prior felony conviction not covered by subdivisions (A) through (D), or any three prior convictions each resulting in a sentence of imprisonment of at least 60 days, increase by 4 levels. Commentary Statutory Provisions: 8 U.S.C. 1325(a) (second or subsequent offense only), 8 U.S.C. 1326. For additional statutory provision(s), see Appendix A (Statutory Index). Application Notes: 1. Application of Subsection (b)(1).— (A) In General.—For purposes of subsection (b)(1): PO 00000 Frm 00172 Fmt 4703 Sfmt 4703 (i) A defendant shall be considered to be deported after a conviction if the defendant has been removed or has departed the United States while an order of exclusion, deportation, or removal was outstanding. (ii) A defendant shall be considered to be deported after a conviction if the deportation was subsequent to the conviction, regardless of whether the deportation was in response to the conviction. (iii) A defendant shall be considered to have unlawfully remained in the United States if the defendant remained in the United States following a removal order issued after a conviction, regardless of whether the removal order was in response to the conviction. (iv) Subsection (b)(1) does not apply to a conviction for an offense committed before the defendant was 18 years of age unless such conviction is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted. (B) Definitions.—For purposes of subsection (b)(1): (i) ‘‘Child pornography offense’’ means an offense (I) described in 18 U.S.C. §§ 2251, 2251A, 2252, 2252A, or 2260; or (II) under state or local law consisting of conduct that would have been an offense under any such section if the offense had occurred within the special maritime or territorial jurisdiction of the United States. (ii) ‘‘Felony’’ means any federal, state, or local offense punishable by imprisonment for a term exceeding 12 months. [(iii) ‘‘Human trafficking offense’’ means (I) any offense described in 18 U.S.C. §§ 1581, 1582, 1583, 1584, 1585, 1588, 1589, 1590, or 1591; or (II) an offense under state or local law consisting of conduct that would have been an offense under any such section if the offense had occurred within the special maritime and territorial jurisdiction of the United States.] (iv) ‘‘Murder’’ means an offense (I) covered by § 2A1.1 (First Degree Murder) or § 2A1.2 (Second Degree Murder); or (II) under state or local law consisting of conduct that would have been an offense under 18 U.S.C. § 1111 if the offense had taken place within the territorial or maritime jurisdiction of the United States. (v) ‘‘National security offense’’ means an offense covered by Chapter Two, Part M (Offenses Involving National Defense and Weapons of Mass Destruction). (vi) ‘‘Offense of child sexual abuse’’ means an offense in which the victim had not attained the age of 18 years and that is any of the following: (I) an offense described in 18 U.S.C. § 2242; E:\FR\FM\28JAN1.SGM 28JAN1 Federal Register / Vol. 73, No. 18 / Monday, January 28, 2008 / Notices (II) a forcible sex offense; or (III) sexual abuse of a minor, except that this term does not include statutory rape. (vii) ‘‘Sentence of imprisonment’’ has the meaning given that term in Application Note 2 and subsection (b) of § 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 imposed upon revocation of probation, parole, or supervised release. (viii) ‘‘Terrorism offense’’ means any offense involving, or intending to promote, a ‘‘Federal crime of terrorism’’, as that term is defined in 18 U.S.C. § 2332b(g)(5). 2. Aiding and Abetting, Conspiracies, and Attempts.—Prior convictions of offenses counted under subsection (b)(1) include the offenses of aiding and abetting, conspiracy to commit, and attempting to commit such offenses. 3. Multiple Prior Sentences.— Sentences of imprisonment are counted separately or as a single sentence as provided by § 4A1.2. 4. Interaction with Chapter Four.—A conviction taken into account under subsection (b)(1) is not excluded from consideration of whether that conviction receives criminal history points pursuant to Chapter Four, Part A (Criminal History).’’. mstockstill on PROD1PC66 with NOTICES Issue for Comment 1. Should any of the specific offense characteristics and departure provisions in one option be adopted by the Commission as part of another option? If so, which provisions should be incorporated into which option? Court Security Improvement Act of 2007 8. Issue for Comment 1. The Commission requests comment regarding two new offenses created by the Court Security Improvement Act of 2007, Public Law 110–177. Specifically, the Commission requests comment regarding whether the Commission should amend Appendix A (Statutory Index) to refer these new provisions to existing guidelines, and if so, to what guideline(s) should each new offense be referenced? The new provision at 18 U.S.C. 1521 prohibits the filing of, attempts, or conspiracies to file, any false lien or encumbrance against the real or personal property of officers or employees of the United States Government, on account of that individual’s performance of official duties. The offense is punishable by a maximum term of 10 years of imprisonment. Are there existing VerDate Aug<31>2005 17:56 Jan 25, 2008 Jkt 214001 guidelines that would be appropriate to cover violations of the new provision at 18 U.S.C. 1521? For example, should violations of 18 U.S.C. 1521 be referenced to § 2J1.2 (Obstruction of Justice), or alternatively or additionally to § 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States)? What, if any, specific offense characteristics should be added? Should an application note be added instructing courts to apply § 3A1.2 (Official Victim)? The new provision at 18 U.S.C. 119 prohibits the public disclosure of restricted personal information about a federal officer or employee, witness, juror, or the immediate family member of such persons, with the intent to threaten or facilitate a crime of violence against such person. The offense is punishable by a maximum term of 5 years of imprisonment. Are there existing guidelines that would be appropriate to cover violations of the new provision at 18 U.S.C. 119 (Protection of individuals performing certain official duties)? For example, should the new provision be referenced to § 2H3.1 (Interception of Communications; Eavesdropping; Disclosure of Certain Private or Protected Information); or alternatively or additionally to the assault guidelines in Chapter Two, Part A (Offenses Against the Person)? What, if any, specific offense characteristics should be added? Should an application note be added instructing courts to apply § 3A1.2 (Official Victim)? 2. Section 209 of the Act directs the Commission to ‘‘review the Sentencing Guidelines as they apply to threats punishable under section 115 of title 18, United States Code, that occur over the Internet, and determine whether and by how much that circumstance should aggravate the punishment pursuant to section 994 of title 28, United States Code. In conducting the study, the Commission shall take into consideration the number of such threats made, the intended number of recipients of such threats, and whether the initial senders of such threats were acting in an individual capacity or as part of a larger group.’’ How should the Commission respond to the directive? What are the aggravating circumstances in such offenses, and how should the PO 00000 Frm 00173 Fmt 4703 Sfmt 4703 4939 Commission address those circumstances? [FR Doc. E8–1425 Filed 1–25–08; 8:45 am] BILLING CODE 2211–01–P UNITED STATES SENTENCING COMMISSION Sentencing Guidelines for United States Courts United States Sentencing Commission. ACTION: Notice of proposed amendments to the Sentencing Commission’s Rules of Practice and Procedure. Request for public comment. AGENCY: SUMMARY: This notice sets forth proposed amendments to the Commission’s Rules of Practice and Procedure and a related issue for comment. The Commission invites public comment on these proposed amendments. Public comment should be received by the Commission not later than March 28, 2008. ADDRESSES: Send comments to: United States Sentencing Commission, One Columbus Circle, NE., Suite 2–500, South Lobby, Washington, DC 20002– 8002, Attention: Public Affairs. FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs Officer, Telephone: (202) 502–4590. SUPPLEMENTARY INFORMATION: Section 995(a)(1) of title 28, United States Code, authorizes the Commission to establish general policies and promulgate rules and regulations as necessary for the Commission to carry out the purposes of the Sentencing Reform Act of 1984. The Commission originally adopted the Rules of Practice and Procedure in July 1997 and now proposes to make amendments to these rules as they pertain to retroactivity consideration. In accordance with Rule 1.2 of its Rules of Practice and Procedure, the Commission hereby invites the public to provide comment on the proposed amendments. DATES: Authority: 28 U.S.C. 995(a)(1); USSC Rules of Practice and Procedure 1.2. Ricardo H. Hinojosa, Chair. 1. Synopsis of Proposed Amendment: This proposed amendment modifies the Commission’s Rules of Practice and Procedure pertaining to retroactivity consideration. Currently, Rule 4.1 (Promulgation of Amendments) provides that ‘‘in those cases in which the Commission considers an amendment for retroactive application to previously sentenced, imprisoned E:\FR\FM\28JAN1.SGM 28JAN1

Agencies

[Federal Register Volume 73, Number 18 (Monday, January 28, 2008)]
[Notices]
[Pages 4931-4939]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-1425]


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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

[[Page 4932]]


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: (1) Proposed amendment to Sec.  2B1.1 (Larceny, 
Embezzlement, and Other Forms of Theft; Offenses Involving Stolen 
Property; Property Damage or Destruction; Fraud and Deceit; Forgery; 
Offenses Involving Altered or Counterfeit Instruments Other than 
Counterfeit Bearer Obligations of the United States) and Appendix A 
repromulgating a temporary, emergency amendment implementing section 5 
of the Emergency and Disaster Assistance Fraud Penalty Enhancement Act 
of 2007, Public Law 110-179, and related issues for comment; (2) a 
proposed amendment 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) and Appendix A implementing the Honest 
Leadership and Open Government Act of 2007, Public Law 110-81; (3) a 
proposed amendment to Sec. Sec.  2D1.1 (Unlawful Manufacturing, 
Importing, Exporting, or Trafficking (Including Possession with Intent 
to Commit These Offenses); Attempt or Conspiracy), 2D1.2 (Drug Offenses 
Occurring Near Protected Locations or Involving Underage or Pregnant 
Individuals; Attempt or Conspiracy), 2N2.1 (Violations of Statutes and 
Regulations Dealing With Any Food, Drug, Biological Product, Device, 
Cosmetic, or Agricultural Product), and Appendix A regarding offenses 
involving human growth hormone (hGH) and offenses involving violations 
of certain food and drug safety laws, and related issues for comment; 
(4) a proposed amendment to Sec.  2E3.1 (Gambling Offenses) and 
Appendix A implementing the Animal Fighting Prohibition Enforcement Act 
of 2007, Public Law 110-22; (5) a proposed amendment making various 
technical amendments to the guidelines; (6) a proposed amendment to 
Sec.  4A1.2 (Definitions and Instructions for Computing Criminal 
History); (7) a proposed amendment to Sec.  2L1.2 (Unlawfully Entering 
or Remaining in the United States) and a related issue for comment; and 
(8) issues for comment regarding a directive and two new offenses 
created by the Court Security Improvement Act of 2007, Public Law 110-
177.

DATES: (1) 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 28, 2008.
    (2) 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) 502-4590.

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is 
an independent agency in the judicial branch of the United States 
Government. The Commission promulgates sentencing guidelines and policy 
statements for federal courts pursuant to 28 U.S.C. Sec.  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 proposed amendments in this notice are presented in one of two 
formats. First, some of the amendments are proposed as specific 
revisions to a guideline or commentary. Bracketed text within a 
proposed amendment indicates a heightened interest on the Commission's 
part in comment and suggestions regarding alternative policy choices; 
for example, a proposed enhancement of [2][4][6] levels indicates that 
the Commission is considering, and invites comment on, alternative 
policy choices regarding the appropriate level of enhancement. 
Similarly, bracketed text within a specific offense characteristic or 
application note means that the Commission specifically invites comment 
on whether the proposed provision is appropriate. Second, the 
Commission has highlighted certain issues for comment and invites 
suggestions on how the Commission should respond to those issues.
    The Commission also requests public comment regarding whether the 
Commission should specify for retroactive application to previously 
sentenced defendants any of the proposed amendments published in this 
notice. The Commission requests comment regarding which, if any, of the 
proposed amendments that may result in a lower guideline range should 
be made retroactive to previously sentenced defendants pursuant to 
Sec.  1B1.10 (Reduction in Term of Imprisonment as a Result of Amended 
Guideline Range).
    Additional information pertaining to the proposed amendments 
described in this notice may be accessed through the Commission's Web 
site at 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.

Repromulgation of the Emergency Disaster Fraud Amendment

    1. Synopsis of Proposed Amendment: This proposed amendment 
repromulgates the temporary emergency amendment, effective February 6, 
2008, that responded to the directive in section 5 of the ``Emergency 
and Disaster Assistance Fraud Penalty Enhancement Act of 2007,'' Public 
Law 110-179 (the ``Act''). The directive, which required the Commission 
to promulgate an amendment under emergency amendment authority by 
February 6, 2008, provides that the Commission forthwith shall--
promulgate sentencing guidelines or amend existing sentencing 
guidelines to provide for increased penalties for persons convicted of 
fraud or theft offenses in connection with a major disaster declaration 
under section 401 of the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act (42 U.S.C. 5170) or an emergency declaration 
under section 501 of the Robert T. Stafford Disaster Relief and

[[Page 4933]]

Emergency Assistance Act (42 U.S.C. 5191); and
    (2) submit to the Committee on the Judiciary of the Senate and the 
Committee on the Judiciary of the House of Representatives an 
explanation of actions taken by the Commission pursuant to paragraph 
(1) and any additional policy recommendations the Commission may have 
for combating offenses described in that paragraph. * * *
    Section 5(b) of the Act further requires the Commission to--
    (1) Ensure that the sentencing guidelines and policy statements 
reflect the serious nature of the offenses described in subsection (a) 
and the need for aggressive and appropriate law enforcement action to 
prevent such offenses;
    (2) assure reasonable consistency with other relevant directives 
and with other guidelines;
    (3) account for any aggravating or mitigating circumstances that 
might justify exceptions, including circumstances for which the 
sentencing guidelines currently provide sentencing enhancements;
    (4) make any necessary conforming changes to the sentencing 
guidelines; and
    (5) assure that the guidelines adequately meet the purposes of 
sentencing as set forth in section 3553(a)(2) of title 18, United 
States Code.
    The emergency amendment created a new two-level enhancement in 
Sec.  2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses 
Involving Stolen Property; Property Damage or Destruction; Fraud and 
Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments 
Other than Counterfeit Bearer Obligations of the United States) if the 
offense involved fraud or theft involving any benefit authorized, 
transported, transmitted, transferred, disbursed, or paid in connection 
with a declaration of a major disaster or an emergency, and added a 
corresponding application note.
    The emergency amendment added a new subdivision (IV) to Application 
Note 3(A)(v) of Sec.  2B1.1 providing that in disaster fraud cases, 
``reasonably foreseeable pecuniary harm includes the administrative 
costs to any federal, state, or local government entity or any 
commercial or not-for-profit entity of recovering the benefit from any 
recipient thereof who obtained the benefit through fraud or was 
otherwise ineligible for the benefit that were reasonably 
foreseeable.''
    The emergency amendment also provided a reference to Sec.  2B1.1 in 
Appendix A (Statutory Index) for the new offense at 18 U.S.C. Sec.  
1040, which criminalizes the commission of a fraud in connection with 
major disaster or emergency benefits, and is punishable by a maximum 
term of imprisonment of thirty years.
    The proposed amendment would repromulgate the emergency amendment 
as a permanent amendment to Sec.  2B1.1.
    Several issues for comment follow the proposed amendment.
    Section 2B1.1(b) is amended by adding at the end the following:
    ``(16) If the offense involved fraud or theft involving any benefit 
authorized, transported, transmitted, transferred, disbursed, or paid 
in connection with a declaration of a major disaster or an emergency, 
increase by 2 levels''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 3 by inserting after the paragraph that begins ``(III) 
Offenses Under 18 U.S.C. Sec.  1030.--'' the following:
    ``(IV) Disaster Fraud Cases.--In a case in which subsection (b)(16) 
applies, reasonably foreseeable pecuniary harm includes the 
administrative costs to any federal, state, or local government entity 
or any commercial or not-for-profit entity of recovering the benefit 
from any recipient thereof who obtained the benefit through fraud or 
was otherwise ineligible for the benefit that were reasonably 
foreseeable.''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended by redesignating Notes 15 through 19 as Notes 16 through 20, 
respectively; and by inserting after Note 14 the following:
    ``15. Application of Subsection (b)(16).--For purposes of this 
subsection:
    `Emergency' has the meaning given that term in 42 U.S.C. Sec.  
5122.
    `Major disaster' has the meaning given that term in 42 U.S.C. Sec.  
5122.''.
    The Commentary to Sec.  2B1.1 captioned ``Background'' is amended 
by adding at the end the following:
    ``Subsection (b)(16) implements the directive in section 5 of 
Public Law 110-179.''.
    Appendix A (Statutory Index) is amended by inserting after the line 
reference to 18 U.S.C. 1039 the following:

``18 U.S.C. Sec.  1040 2B1.1''.

Issues for Comment

    1. Should the proposed amendment repromulgating the emergency 
amendment, effective February 6, 2008, that responded to the directive 
in section 5 of the ``Emergency and Disaster Assistance Fraud Penalty 
Enhancement Act of 2007,'' Public Law 110-179 (the ``Act''), include a 
minimum offense level in the specific offense characteristic? If so, 
what would be the appropriate level for the minimum offense level?
    2. Should the proposed amendment repromulgating the emergency 
amendment expand the scope of the enhancement to cover fraud or theft 
involving any benefit authorized, transported, transmitted, 
transferred, disbursed, or paid ``in connection with any procurement of 
property or services related to any emergency or major disaster 
declaration as a prime contractor with the United States or as a 
subcontractor or supplier on a contract in which there is a prime 
contract with the United States''? Such conduct was criminalized by the 
new offense at 18 U.S.C. Sec.  1040 created by the Act, but was not 
specifically included within the scope of the directive granting 
emergency amendment authority to the Commission.
    3. Are there any aggravating or mitigating circumstances existing 
in disaster fraud cases that might justify additional amendments to the 
guidelines?

Honest Leadership and Open Government Act of 2007

    2. Synopsis of Proposed Amendment: This proposed amendment 
implements the Honest Leadership and Open Government Act of 2007, 
Public Law 110-81 (the ``Act''). The Act creates a new offense at 18 
U.S.C. Sec.  227 (Wrongfully influencing a private entity's employment 
decisions by a member of Congress), which provides: ``Whoever, being a 
Senator or Representative in, or a Delegate or Resident Commissioner 
to, the Congress or an employee of either House of Congress, with the 
intent to influence, solely on the basis of partisan political 
affiliation, an employment decision or employment practice of any 
private entity--(1) takes or withholds, or offers or threatens to take 
or withhold, an official act, or (2) influences, or offers or threatens 
to influence, the official act of another, shall be fined under this 
title or imprisoned for not more than 15 years, or both, and may be 
disqualified from holding any office of honor, trust, or profit under 
the United States''.
    The proposed amendment amends Appendix A to reference offenses 
under 18 U.S.C. 227 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).

[[Page 4934]]

    The Commentary to Sec.  2C1.1 captioned ``Statutory Provisions'' is 
amended by inserting ``227,'' after ``226,''.
    Appendix A (Statutory Index) is amended by inserting after line 
reference to 18 U.S.C. Sec.  226 the following:

``18 U.S.C. Sec.  227 2C1.1''.

Miscellaneous Food and Drug Offenses

    3. Synopsis of Proposed Amendment: This proposed amendment 
addresses offenses involving human growth hormone (hGH) and offenses 
involving violations of certain food and drug safety laws.
    First, the proposed amendment creates guideline penalties for 
offenses involving the illegal distribution of hGH by amending 
Sec. Sec.  2D1.1 (Unlawful Manufacturing, Importing, Exporting, or 
Trafficking (Including Possession with Intent to Commit These 
Offenses); Attempt or Conspiracy), 2D1.2 (Drug Offenses Occurring Near 
Protected Locations or Involving Underage or Pregnant Individuals; 
Attempt or Conspiracy), 2N2.1 (Violations of Statutes and Regulations 
Dealing With Any Food, Drug, Biological Product, Device, Cosmetic, or 
Agricultural Product), and Appendix A (Statutory Index). Specifically, 
the proposed amendment adds references to Sec. Sec.  2D1.1 and 2D1.2 in 
Appendix A for violations of 21 U.S.C. Sec. Sec.  333(e)(1) and (e)(2), 
respectively; amends the specific offense characteristic at Sec.  
2D1.1(b)(6) to include hGH offenses; and deletes language in the 
commentary to Sec.  2N2.1 stating that the Commission has not 
established a guideline for hGH offenses. In addition, there are issues 
for comment regarding hGH offenses.
    Second, the proposed amendment addresses how violations of the 
Federal Food, Drug, and Cometic Act (21 U.S.C. Sec.  301, et seq.) (the 
``FDCA'') and the Prescription Drug Marketing Act of 1987, Public Law 
100-293, (the ``PDMA'') are treated under Sec.  2N2.1. Specifically, 
the proposed amendment adds a specific offense characteristic at Sec.  
2N2.1 that applies if the defendant committed any part of the instant 
offense after sustaining a conviction of an offense under 21 U.S.C. 
Sec.  331. Because PDMA offenses at 21 U.S.C. Sec. Sec.  353 and 381 
are incorporated into the FDCA at 21 U.S.C. Sec.  331 the proposed 
specific offense characteristic also is applicable to a second or 
subsequent violation of the PDMA. The proposed amendment also amends 
the commentary to Sec.  2N2.1 to include substantial risk of bodily 
harm or death as a basis for an upward departure. In addition, there is 
an issue for comment regarding violations of the FDCA and PDMA.
    Section 2D1.1(b)(6) is amended by inserting ``or human growth 
hormone'' after ``substance''.
    The Commentary to Sec.  2D1.1 captioned ``Statutory Provisions'' is 
amended by inserting ``333(e)(1),'' after ``21 U.S.C. Sec. Sec.  ''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 10 in the section captioned ``(E) Drug Equivalency 
Tables'' by inserting after the subdivision captioned ``Schedule III 
Substances (except ketamine) * * * '' the following:

``Human Growth Hormone * * * *
1 unit of Human Grown Hormone = 1 gm of marihuana

     * * * * Provided, that the combined equivalent weight of all human 
growth hormone units, Schedule III substances, Schedule IV substances 
(except flunitrazepam), and Schedule V substances shall not exceed 
59.99 kilograms of marihuana.''.

    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 10 in the ``(E) Drug Equivalency Tables'' in the 
subdivision captioned ``Schedule IV Substances (except flunitrazepam)'' 
by inserting an additional asterisk after `` * * * '' in both 
instances.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 10 in the ``(E) Drug Equivalency Tables'' in the 
subdivision captioned ``Schedule V Substances'' by inserting an 
additional asterisk after `` * * * * '' in both instances.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 10 in the ``(E) Drug Equivalency Tables'' in the 
subdivision captioned ``List I Chemicals (relating to the manufacture 
of amphetamine or methamphetamine)'' by inserting an additional 
asterisk after `` * * * * * * '' in both instances.
    The Commentary to Sec.  2D1.2 captioned ``Statutory Provisions'' is 
amended by inserting ``333(e)(2),'' after ``21 U.S.C. Sec. Sec.  ''.
    Section 2N2.1 is amended by redesignating subsection (b) as 
subsection (c) and inserting after subsection (a) the following new 
subsection:
    ``(b) Specific Offense Characteristic
    (1) If the defendant committed any part of the instant offense 
after sustaining a conviction of an offense under 21 U.S.C. Sec.  331, 
increase by [2]-[7] levels.''.
    The Commentary to Sec.  2N2.1 captioned ``Application Notes'' is 
amended in Note 3 by striking ``Death'' and inserting ``The offense 
created a substantial risk of bodily injury or death,''; and by 
inserting ``from the offense'' after ``resulted''.
    The Commentary to Sec.  2N2.1 captioned ``Application Notes'' is 
amended in Note 4 by striking the first sentence.
    Appendix A (Statutory Index) is amended by inserting after line 
reference to 21 U.S.C. Sec.  333(b) the following:

``21 U.S.C. Sec.  333(e)(1) 2D1.1
21 U.S.C. Sec.  333(e)(2) 2D1.2''.

Issues for Comment

    1. The Commission requests comment regarding how human growth 
hormone (hGH) should be quantified under Sec.  2D1.1 (Unlawful 
Manufacturing, Importing, Exporting, or Trafficking (Including 
Possession with Intent to Commit These Offenses)). Human growth hormone 
typically is distributed in vials of varying sizes. The vials may 
specify the amount of hGH they contain in International Units (IU) or 
milligrams (mg). For certain controlled substances (including some 
Schedule I and II depressants, Schedule III, Schedule IV, and Schedule 
V controlled substances) the base offense level is determined based on 
the number of ``units'' involved in the offense. A ``unit'' is defined 
generally as ``one pill, capsule or tablet'' or, if in liquid form 
(other than GHB), one ``unit'' means 0.5 ml. See Note F of the Drug 
Quantity Table in Sec.  2D1.1(c).
    2. The existing definition of ``unit'' applies to trafficking in 
steroids, which is a Schedule III controlled substance with a penalty 
scheme similar to distribution offenses involving human growth hormone 
(hGH). The Commission requests comment regarding the harmfulness of hGH 
offenses relative to steroid offenses. Are hGH trafficking offenses 
more harmful, less harmful, or of approximately equal harm? Based on 
that comparison, what quantity of vials, IU, or mg of hGH should be 
used to determine a ``unit'' for purposes of calculating the base 
offense level (e.g., one vial, 3 IUs, 1 mg)?
    3. The Commission requests comment regarding whether a maximum base 
offense level should apply in Sec.  2D1.1 for an offense involving the 
distribution of human growth hormone (hGH). For certain types of 
controlled substances, the marihuana equivalencies in the Drug 
Equivalency Table in Sec.  2D1.1(c) are ``capped'' at specified 
amounts. For example, anabolic steroids and other Schedule III 
controlled substances, which also have a statutory maximum of 5 years' 
imprisonment, are subject to a maximum base offense level of 20. Should 
the Commission similarly

[[Page 4935]]

provide a maximum base offense level for offenses involving the 
distribution of hGH and, if so, what maximum base offense level should 
apply?
    4. The Commission requests comment regarding whether it should 
expand the scope of the enhancements in Sec.  2D1.1(b)(6) (pertaining 
to masking agents) and Sec.  2D1.1(b)(7) (pertaining to distribution of 
a steroid to an athlete) to include hGH. Also, should the Commission 
amend the commentary to Sec.  2D1.1 in Application Note 8 to cover 
offenses involving human growth hormone (hGH)? Specifically, the 
enhancement at Sec.  2D1.1(b)(6) 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.'' Masking 
agents also can be taken to prevent the detection of other controlled 
substances, including hGH. Should the Commission expand the definition 
of masking agent, and thus application of the enhancement, in a manner 
that covers hGH? Human growth hormone also may be used to enhance an 
individual's performance. Should the Commission expand the scope of the 
enhancement at Sec.  2D1.1(b)(7) pertaining to distribution to an 
athlete to cover offenses involving hGH? Application Note 8 instructs 
the court on how to apply Sec.  3B1.3 (Abuse of Position of Trust or 
Use of Special Skill) in a case in which a coach used his or her 
position to influence an athlete to use an anabolic steroid. Similarly, 
a coach may use his or her position to influence an athlete to use hGH. 
Should the Commission modify Application Note 8 to include cases 
involving hGH?
    5. The Commission requests comment regarding whether Sec.  2N2.1 
(Violations of Statutes and Regulations Dealing with Any Food, Drug, 
Biological Product, Device, Cosmetic, or Agricultural Product) 
adequately addresses the numerous statutes referenced to that 
guideline. The statutes referenced to Sec.  2N2.1 prohibit conduct 
ranging from regulatory offenses with a statutory maximum penalty of 1 
year imprisonment (e.g., 21 U.S.C. Sec.  642 (Recordkeeping 
requirements [for meat processors])) to violations of the Prescription 
Drug Marketing Act of 1987 that carry a statutory maximum penalty of 10 
years imprisonment. Should the Commission provide alternative base 
offense levels, specific offense characteristics identifying 
aggravating factors warranting an enhanced sentence, or some 
combination of these to more adequately address these offenses? If so, 
what should be the offense levels associated with alternative base 
offense levels and/or specific offense characteristics?

Animal Fighting Prohibition Enforcement Act of 2007

    4. Synopsis of Proposed Amendment: This proposed amendment 
implements the Animal Fighting Prohibition Enforcement Act of 2007, 
Public Law 110-22 (the ``Act''). The Act amends the Animal Welfare Act, 
7 U.S.C. Sec.  2156, to increase penalties for existing offenses and to 
create a new offense. Specifically, the Act increases penalties for 
criminal violations of 7 U.S.C. 2156 from a maximum term of one year of 
imprisonment to a maximum term of not more than three years of 
imprisonment. The penalties are now set forth in section 49 of title 
18, United States Code. In addition, the Act created a new offense at 7 
U.S.C. 2156(e) which makes it unlawful to ``sell, buy, transport, or 
deliver in interstate or foreign commerce a knife, a gaff, or any other 
sharp instrument attached, or designed or intended to be attached, to 
the leg of a bird for use in an animal fighting venture.'' The term 
``animal fighting venture'', an element of each criminal offense in 7 
U.S.C. 2156, is defined at subsection (g) as `` * * * any event which 
involves a fight between at least two animals and is conducted for 
purposes of sport, wagering, or entertainment * * *''.
    The proposed amendment deletes the reference of 7 U.S.C. 2156 to 
Sec.  2X5.2 (Class A Misdemeanors) in Appendix A because violations of 
7 U.S.C. 2156 are now felony offenses. The proposed amendment 
references offenses under 7 U.S.C. 2156 to Sec.  2E3.1 (Gambling 
Offenses).
    The proposed amendment also creates a new alternative base offense 
level at Sec.  2E3.1(b)(2) that provides a base offense level of 
[8][10] if the offense involved an ``animal fighting venture'', which 
is defined in proposed Application Note 1 as having the meaning given 
that term in 7 U.S.C. 2156(g). Additionally, the proposed amendment 
adds an instruction to apply the greatest applicable base offense level 
at Sec.  2E3.1(a) because an offense involving an animal fighting 
venture may also involve conduct covered by subsection (a)(1).
    The proposed amendment also provides an upward departure provision 
if an animal fighting offense involves extraordinary cruelty to an 
animal.
    Finally, the proposed amendment expands the title of Sec.  2E3.1 to 
include animal fighting offenses.
    Section 2E3.1 is amended in the heading by adding at the end ``; 
Animal Fighting Offenses''.
    Section 2E3.1(a) is amended by inserting ``(Apply the Greatest)'' 
after ``Level:''; by redesignating subdivision (2) as subdivision (3); 
and by inserting after subdivision (1) the following:
    ``(2) [8][10], if the offense involved an animal fighting venture; 
or''.
    The Commentary to Sec.  2E3.1 captioned ``Statutory Provisions'' is 
amended by inserting ``7 U.S.C. Sec.  2156;'' before ``15 U.S.C. 
Sec. Sec.  ''.
    The Commentary to Sec.  2E3.1 is amended by adding at the end the 
following:
    ``Application Notes:
    1. `Animal fighting venture' has the meaning given that term in 7 
U.S.C. Sec.  2156(g).
    2. In the case of an animal fighting offense that involves 
extraordinary cruelty to an animal, an upward departure may be 
warranted.''.
    Appendix A (Statutory Index) is amended in the line reference to 7 
U.S.C. Sec.  2156 by striking ``2X5.2'' and inserting ``2E3.1''.

Technical Amendment

    5. Synopsis of Proposed Amendment: This proposed amendment makes 
technical corrections to various guidelines.
    First, the proposed amendment modifies Sec.  2B1.1(b)(11) to 
correct a clerical error.
    Second, the proposed amendment addresses section 121 of the USA 
PATRIOT Improvement and Reauthorization Act of 2005, Public Law 109-
177, (the ``USA PATRIOT Act''). The USA PATRIOT Act changed the 
definition of ``contraband cigarette'' in subsection (2) of 21 U.S.C. 
2341 (Trafficking in Contraband Cigarettes and Smokeless Tobacco) to 
include the failure to pay local cigarette taxes. Prior to the USA 
PATRIOT Act, the definition covered only the failure to pay state 
cigarette taxes. Section 121 of the PATRIOT Act also reduced the number 
of contraband cigarettes necessary to violate the substantive offenses 
set forth in 18 U.S.C. 2342 (Unlawful acts) and 2344 (Penalties) from 
60,000 to 10,000.
    Violations involving contraband cigarettes are referenced to Sec.  
2E4.1 (Unlawful Conduct Relating to Contraband Cigarettes and Smokeless 
Tobacco) in Appendix A (Statutory Index). The Commission amended the 
background commentary at Sec.  2E4.1 to reflect the change in the 
number of contraband cigarettes and expanded the headings of Chapter 
Two, Part E, Subpart 4 and Sec.  2E4.1 to include smokeless tobacco. 
See Amendment 700, USSG App. C. However, the amendment to Sec.  2E4.1 
did not reflect the

[[Page 4936]]

statutory inclusion of failure to pay local cigarette taxes in 21 
U.S.C. 2341.
    The proposed amendment amends Sec.  2E4.1 to incorporate the 
statutory language regarding failure to pay local cigarette taxes. 
Currently, Application Note 1 at Sec.  2E4.1 provides that the ``tax 
evaded'' refers to state excise tax. The proposed amendment expands the 
meaning of ``tax evaded'' at Application Note 1 to include local excise 
taxes. The proposed amendment also amends the background commentary at 
Sec.  2E4.1 to include local excise taxes.
    Third, the proposed amendment implements the technical corrections 
made by Public Law 110-161.
    Fourth, the proposed amendment corrects a statutory reference 
included in Sec.  3C1.4 (False Registration of Domain Name), which 
provides a two-level adjustment for a case in which a particular 
statutory enhancement applies. At the time of promulgation of this 
guideline, the referenced statutory enhancement was at 18 U.S.C. 
3559(f)(1). See Amendment 689, USSG App. C. The Adam Walsh Child 
Protection and Safety Act of 2006 (the ``Adam Walsh Act''), Public Law 
109-248, amended 18 U.S.C. 3559 by redesignating subsection (f) as 
subsection (g) and inserting a new subsection (f). This proposed 
amendment changes the statutory reference in Sec.  3C1.4 to reflect the 
redesignation of subsection (f) to subsection (g) of section 3359.
    Fifth, the proposed amendment addresses statutory changes to 18 
U.S.C. 1512. In 2002, Congress amended 18 U.S.C. 1512(a) and (b) 
(Tampering with a witness, victim, or an informant) as part of the 21st 
Century Department of Justice Appropriations Authorization Act (the 
``Act''), Public Law 107-273. Section 3001 of the Act moved the 
elements of ``physical force'' and ``threat of physical force'' from 18 
U.S.C. 1512(b) into subsection (a). Thus, section 1512(b) now punishes 
only intimidation, threats, corrupt persuasion, misleading conduct, and 
attempts. The Act also added at 18 U.S.C. 1512(a)(3)(C) a ten-year 
statutory maximum penalty in the case of ``the threat of physical force 
against any person''. In order to reflect the statutory changes, the 
proposed amendment modifies the statutory index by deleting the 
references in Appendix A to Sec. Sec.  2A1.2 (Second Degree Murder) and 
2A2.2 (Aggravated Assault) for 18 U.S.C. Sec.  1512(b), and adding 
those guidelines as references for 18 U.S.C. 1512(a). The proposed 
amendment also adds a reference to Sec.  2J1.2 (Obstruction of Justice) 
for 18 U.S.C. 1512(a) to reflect the broad range of obstructive conduct 
now covered in that section, including the threat of physical force 
against a witness.
    Sixth, the proposed amendment refers offenses under 18 U.S.C. 1091 
to Sec.  2H1.1 (Offenses Involving Individual Rights) in Appendix A. 
Appendix A currently refers offenses under 18 U.S.C. 1091 (Genocide) to 
Sec.  2H1.3 (Use of Force or Threat of Force to Deny Benefits or Rights 
in Furtherance of Discrimination; Damage to Religious Real Property), 
but this guideline no longer exists. Amendment 521, which became 
effective November 1, 1995, consolidated Sec. Sec.  2H1.2 (Conspiracy 
to Interfere with Civil Rights), 2H1.3, 2H1.4 (Interference with Civil 
Rights Under Color of Law) and 2H1.5 (Other Deprivations of Rights or 
Benefits in Furtherance of Discrimination) into Sec.  2H1.1. This 
proposed amendment would make a conforming change to Appendix A.
    Section 2B1.1(b)(11) is amended by inserting ``resulting'' before 
``offense level''.
    The Commentary to Sec.  2E4.1 captioned ``Application Notes'' is 
amended in Note 1 by inserting ``and local'' before ``excise'' and by 
striking ``tax'' and inserting ``taxes''.
    The Commentary to Sec.  2E4.1 captioned ``Background'' is amended 
by inserting ``and local'' before ``excise''.
    Section 2X7.1(a) is amended by striking ``554'' and inserting 
``555'' each place it appears.
    The Commentary to Sec.  2X7.1 captioned ``Statutory Provision'' is 
amended by striking ``554'' and inserting ``555''.
    Appendix A (Statutory Index) is amended by striking both references 
to 18 U.S.C. Sec.  554 and inserting the following:

``18 U.S.C. Sec.  554 2B1.5, 2M5.2, 2Q2.1
18 U.S.C. Sec.  555 2X7.1''.
    Section 3C1.4 is amended by striking ``(f)'' and inserting ``(g)''.
    Appendix A (Statutory Index) is amended in the line reference to 18 
U.S.C. Sec.  1512(a) by inserting ``, 2A2.2, 2A2.3, 2J1.2'' after 
``2A2.1''.
    Appendix A (Statutory Index) is amended in the line reference to 18 
U.S.C. Sec.  1512(b) by striking ``2A1.2, 2A2.2,''.
    Appendix A (Statutory Index) is amended in the line reference to 18 
U.S.C. Sec.  1091 by striking ``2H1.3'' and inserting ``2H1.1.''.

Criminal History

    6. Synopsis of Proposed Amendment: The proposed amendment modifies 
Sec.  4A1.2(a) to clarify the meaning of the term ``arrest'' as used in 
determining whether an intervening arrest causes two prior sentences to 
be counted separately or as a single sentence. First, the proposed 
amendment provides that an intervening arrest includes an attempted 
service of an arrest warrant where the defendant escapes the arrest or 
the service of the arrest warrant. Second, the proposed amendment 
provides that the issuance of a summons or complaint does not 
constitute an arrest.
    Section 4A1.2(a)(2) is amended by adding at the end the following:
    ``An `arrest' includes an attempted service of an arrest warrant 
where the defendant escapes the arrest or the service of the arrest 
warrant. The issuance of a summons or a complaint does not constitute 
an `arrest'.''.
    The Commentary to Sec.  4A1.2 captioned ``Application Notes'' is 
amended in Note 3 by striking ``Upward Departure Provision'' and 
inserting ``Multiple Prior Sentences''.

Immigration

    7. Synopsis of Proposed Amendment: The following proposed amendment 
addresses issues related to Sec.  2L1.2 (Unlawfully Entering or 
Remaining in the United States).
    Option 1 addresses discrete application issues identified through 
comment to the Commission as well as through an analysis of applicable 
circuit case law. Specifically, Option 1 addresses issues related to 
the definitions of ``crime of violence'' and ``drug trafficking 
offense.''
    Within Option 1, sub-option A (Crime of Violence) provides new 
language in Sec.  2L1.2(b)(1)(A)(iii) and (b)(1)(B) to provide a 
graduated enhancement of 16 or 12 levels for ``an offense that, by its 
nature, involves a substantial risk that physical force against the 
person of another may be used in the course of committing the 
offense.'' Specific offense characteristic (b)(1)(A)(iii) provides an 
increase of 16 levels if the sentence imposed for such conviction 
exceeded 13 months. Specific offense characteristic (b)(1)(B) provides 
an increase of 12 levels if the sentence imposed for such conviction 
was 13 months or less. Sub-option A (Crime of Violence) also adds a 
definition to Application Note 1(B)(iii) for ``forcible sex offenses.''
    Sub-option B (Crime of Violence) deletes the definition of ``crime 
of violence'' in Application Note 1(B)(iii) and defines ``crime of 
violence'' as ``an offense described in 8 U.S.C. Sec.  1101(a)(43)(A) 
and (F), except an offense against the property of another.'' The 
aggravated felony definition at 8 U.S.C. Sec.  1101(a)(43)(A) includes 
convictions for murder, rape and sexual

[[Page 4937]]

abuse of a minor, and 8 U.S.C. 1101(a)(43)(F) refers to the definition 
of ``crime of violence'' found at 18 U.S.C. 16. The definition of 
``crime of violence'' at 18 U.S.C. 16 is ``(a) an offense that has as 
an element the use, attempted use, or threatened use of physical force 
against the person or property of another, or (b) any other offense 
that is a felony and that, by its nature, involves a substantial risk 
that physical force against the person or property of another may be 
used in the course of committing the offense.'' Option B limits the 
scope of 8 U.S.C. 1101(a)(43)(F) to exclude ``an offense against the 
property of another'' for purposes of the enhancement.
    Option 1 provides two sub-options regarding the definition of 
``drug trafficking offense'' in Application Note 1(B)(iv). Sub-option A 
(Drug Trafficking Offenses) amends the definition of ``drug trafficking 
offense'' in Application Note 1(B)(iv) by adding the terms 
``[transportation,] or offer to sell'' to the definition. Sub-option B 
(Drug Trafficking Offenses) amends the definition of ``drug trafficking 
offense'' by deleting the current definition in Application Note 
1(B)(iv) and referring to the aggravated felony definition of ``drug 
trafficking crime'' as defined in 18 U.S.C. 924(c).
    Option 1 also provides a new departure provision that ``in a case 
in which subsection (b)(1)(A) or (b)(1)(B) does not apply and the 
defendant has a prior conviction for a drug possession [Sub-option A 
(Drug Trafficking Offenses): or transportation] [Sub-option B (Drug 
Trafficking Offenses): , transportation, or offer to sell] offense 
involving a quantity of a controlled substance that exceeds a quantity 
consistent with personal use, an upward departure may be warranted.''
    Option 1 also provides a new downward departure provision for cases 
in which subsection (b)(1)(A) applies, and the prior conviction does 
not meet the definition of aggravated felony at 8 U.S.C. 1101(a)(43).
    Option 2 provides a base offense level of [12] [14] [16] and four 
specific offense characteristics. Subsection (b)(1) provides an 
increase of [4] [6] levels if the defendant previously was deported or 
unlawfully remained in the United States after a conviction for which 
the sentence imposed exceeded 24 months. Subsection (b)(2) provides an 
increase of 4 levels, and a minimum offense level of 24, if the 
defendant previously was deported or unlawfully remained in the United 
States after a conviction for a national security or terrorism offense, 
or an offense of murder, rape, or sexual abuse of a minor as described 
in 8 U.S.C. 1101(a)(43)(A). Subsection (b)(3) provides an increase of 
[4] [6] levels if the offender sustained a conviction for another 
felony offense subsequent to illegally reentering the United States. 
This enhancement does not apply to convictions for reentry (8 U.S.C. 
1325 or 1326) as Application Note 3 defines ``another felony offense'' 
as ``any federal, state, or local offense, punishable by imprisonment 
for a term exceeding one year, other than a conviction under 8 U.S.C. 
1325 or 1326.'' Finally, subsection (b)(4) provides a decrease of [4] 
[6] [8] levels if the defendant does not have any prior felony 
convictions.
    Two departure considerations are also provided in Application Note 
4. First, a departure may be warranted in ``a case in which the 
applicable offense level substantially overstates or understates the 
seriousness of a prior conviction.'' Second, ``an upward departure may 
be warranted in a case in which the defendant has been removed multiple 
times prior to committing the instant offense.''
    Option 3 provides a base offense level 8. The specific offense 
characteristics include a 20 level increase for a prior felony 
conviction for a national security or terrorism offense under Sec.  
2L1.2(b)(1)(A). A prior felony conviction for murder, rape, child 
pornography, or child sexual abuse offense results in a 16 level 
increase under Sec.  2L1.2(b)(1)(B)(i). The option also has bracketed 
two enumerated offenses that result in a 16 level increase under Sec.  
2L1.2(b)(1)(B)(i), kidnapping and human trafficking offenses. 
Additionally, a prior felony conviction resulting in a sentence of 48 
months, or two prior felony convictions each resulting in a sentence of 
imprisonment exceeding [12] [13] months, results in a 16 level increase 
under Sec.  2L1.2(b)(1)(B)(ii) and (iii). If the prior felony 
conviction resulted in a sentence less than 48 months but more than 24 
months, an increase of 12 levels applies under Sec.  2L1.2(b)(1)(C). A 
prior felony conviction resulting in a sentence of imprisonment 
exceeding [12] [13] months results in an 8 level increase under Sec.  
2L1.2(b)(1)(D). Finally, under Sec.  2L1.2(b)(1)(E) any prior felony 
conviction, regardless of the sentence imposed, or any three prior 
convictions, each resulting in a sentence of imprisonment of at least 
60 days, results in a 4 level increase.
    This proposed amendment also includes an issue for comment.
    [Sub-option 1(A)(Crime of Violence): Section 2L1.2(b) is amended by 
striking subdivisions (A) and (B) and inserting the following:
    ``(A) A conviction for a felony that is (i) a drug trafficking 
offense for which the sentence imposed exceeded 13 months; (ii) a crime 
of violence; (iii) an offense that, by its nature, involves a 
substantial risk that physical force against the person of another may 
be used in the course of committing the offense, for which the sentence 
imposed exceeded 13 months; (iv) a firearms offense; (v) a child 
pornography offense; (vi) a national security or terrorism offense; 
(vii) a human trafficking offense; or (viii) an alien smuggling 
offense, increase by 16 levels;
    (B) a conviction for a felony that is (i) a drug trafficking 
offense for which the sentence imposed was 13 months or less; or (ii) 
an offense that, by its nature, involves a substantial risk that 
physical force against the person of another may be used in the course 
of committing the offense, for which the sentence imposed was 13 months 
or less, increase by 12 levels;''.
    [Sub-option A (Crime of Violence): The Commentary to Sec.  2L1.2 
captioned ``Application Notes'' is amended in Note 1 in the paragraph 
that begins ``(iii) `Crime of violence' means'' by adding at the end 
the following:
    `` `Forcible sex offense' includes any sex offense in which consent 
to the conduct was not given, or was not given voluntarily and/or 
competently.''.]
    [Sub-option B (Crime of Violence): The Commentary to Sec.  2L1.2 
captioned ``Application Notes'' is amended in Note 1 by striking the 
paragraph that begins ``(iii) `Crime of violence' means'' and inserting 
the following:
    ``(iii) `Crime of violence' means an offense described in 8 U.S.C. 
Sec.  1101(a)(43)(A) or (F), except an offense against the property of 
another.''.]
    [Sub-option A (Drug Trafficking Offenses): The Commentary to Sec.  
2L1.2 captioned ``Application Notes'' is amended in Note 1 in the 
paragraph that begins (iv) `Drug trafficking offense' means'' by 
striking ``or dispensing'' and inserting ``dispensing, 
[transportation,] or offer to sell''.
    [Sub-option B (Drug Trafficking Offenses): The Commentary to Sec.  
2L1.2 captioned ``Application Notes'' is amended in Note 1 by striking 
the paragraph that begins (iv) `Drug trafficking offense' means'' and 
inserting the following: ``(iv) `Drug trafficking offense' means a 
`drug trafficking crime' as defined in 18 U.S.C. Sec.  924(c).''.
    The Commentary to Sec.  2L1.2 captioned ``Application Notes'' is 
amended by adding at the end the following:
    ``7. Departure Considerations.--
    (A) In a case in which subsection (b)(1)(A) or (b)(1)(B) does not 
apply and the defendant has a prior conviction for

[[Page 4938]]

a drug possession [Sub-option A (Drug Trafficking Offenses): or 
transportation] [Sub-option B (Drug Trafficking Offenses): , 
transportation, or offer to sell] offense involving a quantity of a 
controlled substance that exceeds a quantity consistent with personal 
use, an upward departure may be warranted.
    [(B) In a case in which subsection (b)(1)(A) applies, and the prior 
conviction does not meet the definition of aggravated felony at 8 
U.S.C. Sec.  1101(a)(43), a downward departure may be warranted.''.]
    [Option 2: Chapter Two, Part L, Subpart One, is amended by striking 
Sec.  2L1.2 and its accompanying commentary and inserting the 
following:
    ``Sec.  2L1.2. Unlawfully Entering or Remaining in the United 
States
    (a) Base Offense Level: [12] [14] [16]
    (b) Specific Offense Characteristics
    (1) If the defendant previously was deported, or unlawfully 
remained in the United States, after a conviction for a felony for 
which the sentence imposed exceeded 24 months, increase by [4][6] 
levels.
    (2) If the defendant previously was deported, or unlawfully 
remained in the United States after a conviction for a felony that is 
(A) a national security or terrorism offense; or (B) an offense 
described in 8 U.S.C. Sec.  1101(a)(43)(A); increase by 4 levels. If 
the resulting offense level is less than level 24, increase to level 
24.
    (3) If the defendant has sustained a conviction for another felony 
offense that was committed subsequent to illegally reentering the 
United States, increase by [4][6] levels.
    (4) If the defendant does not have any prior felony convictions, 
decrease the offense level by [4][6][8] levels.

Commentary

    Statutory Provisions: 8 U.S.C. 1325(a) (second or subsequent 
offense only), 8 U.S.C. 1326. For additional statutory provision(s), 
see Appendix A (Statutory Index).
    Application Notes:
    1. Definition.--For purposes of this guideline,`felony' means any 
federal, state, or local offense punishable by imprisonment for a term 
exceeding one year.
    2. Computation of Criminal History Points.--A conviction taken into 
account under subsection (b) is not excluded from consideration of 
whether that conviction receives criminal history points pursuant to 
Chapter Four, Part A (Criminal History).
    3. Application of Subsection (b)(3).--
    `Another felony offense' means any federal, state, or local 
offense, punishable by imprisonment for a term exceeding one year, 
other than a conviction under 8 U.S.C. Sec. Sec.  1325 or 1326.
    [Option A: For purposes of applying subsection (b)(3), do not 
consider any conviction taken into account under subsection (b)(1) or 
(b)(2).] [Option B: A prior conviction taken into account under 
subsection (b)(1) or (b)(2) is not excluded from consideration under 
subsection (b)(3).]
    4. Departure Considerations.
    (A) In a case in which the applicable offense level substantially 
overstates or understates the seriousness of a prior conviction, a 
departure may be warranted.
    (B) In a case in which the defendant has been removed multiple 
times prior to committing the instant offense, an upward departure may 
be warranted.''.
    [Option 3: Chapter Two, Part L, Subpart One, is amended by striking 
Sec.  2L1.2 and its accompanying commentary and inserting the 
following:
    ``Sec.  2L1.2. Unlawfully Entering or Remaining in the United 
States
    (a) Base Offense Level: 8
    (b) Specific Offense Characteristic
    (1) (Apply the Greatest):
    If the defendant previously was removed, deported, or unlawfully 
remained in the United States, after--
    (A) a prior felony conviction for a national security offense or 
terrorism offense, increase by 20 levels;
    (B) (i) a prior felony conviction for murder, rape, [kidnapping,] 
[a human trafficking offense,] a child pornography offense, or an 
offense of child sexual abuse; (ii) a prior felony conviction resulting 
in a sentence of imprisonment of at least 48 months; or (iii) two prior 
felony convictions each resulting in a sentence of imprisonment 
exceeding [12][13] months, increase by 16 levels;
    (C) a prior felony conviction resulting in a sentence of 
imprisonment of at least 24 months, increase by 12 levels;
    (D) a prior felony conviction resulting in a sentence of 
imprisonment exceeding [12][13] months, increase by 8 levels;
    (E) a prior felony conviction not covered by subdivisions (A) 
through (D), or any three prior convictions each resulting in a 
sentence of imprisonment of at least 60 days, increase by 4 levels.

Commentary

    Statutory Provisions: 8 U.S.C. 1325(a) (second or subsequent 
offense only), 8 U.S.C. 1326. For additional statutory provision(s), 
see Appendix A (Statutory Index).
    Application Notes:
    1. Application of Subsection (b)(1).--
    (A) In General.--For purposes of subsection (b)(1):
    (i) A defendant shall be considered to be deported after a 
conviction if the defendant has been removed or has departed the United 
States while an order of exclusion, deportation, or removal was 
outstanding.
    (ii) A defendant shall be considered to be deported after a 
conviction if the deportation was subsequent to the conviction, 
regardless of whether the deportation was in response to the 
conviction.
    (iii) A defendant shall be considered to have unlawfully remained 
in the United States if the defendant remained in the United States 
following a removal order issued after a conviction, regardless of 
whether the removal order was in response to the conviction.
    (iv) Subsection (b)(1) does not apply to a conviction for an 
offense committed before the defendant was 18 years of age unless such 
conviction is classified as an adult conviction under the laws of the 
jurisdiction in which the defendant was convicted.
    (B) Definitions.--For purposes of subsection (b)(1):
    (i) ``Child pornography offense'' means an offense (I) described in 
18 U.S.C. Sec. Sec.  2251, 2251A, 2252, 2252A, or 2260; or (II) under 
state or local law consisting of conduct that would have been an 
offense under any such section if the offense had occurred within the 
special maritime or territorial jurisdiction of the United States.
    (ii) ``Felony'' means any federal, state, or local offense 
punishable by imprisonment for a term exceeding 12 months.
    [(iii) ``Human trafficking offense'' means (I) any offense 
described in 18 U.S.C. Sec. Sec.  1581, 1582, 1583, 1584, 1585, 1588, 
1589, 1590, or 1591; or (II) an offense under state or local law 
consisting of conduct that would have been an offense under any such 
section if the offense had occurred within the special maritime and 
territorial jurisdiction of the United States.]
    (iv) ``Murder'' means an offense (I) covered by Sec.  2A1.1 (First 
Degree Murder) or Sec.  2A1.2 (Second Degree Murder); or (II) under 
state or local law consisting of conduct that would have been an 
offense under 18 U.S.C. Sec.  1111 if the offense had taken place 
within the territorial or maritime jurisdiction of the United States.
    (v) ``National security offense'' means an offense covered by 
Chapter Two, Part M (Offenses Involving National Defense and Weapons of 
Mass Destruction).
    (vi) ``Offense of child sexual abuse'' means an offense in which 
the victim had not attained the age of 18 years and that is any of the 
following: (I) an offense described in 18 U.S.C. Sec.  2242;

[[Page 4939]]

(II) a forcible sex offense; or (III) sexual abuse of a minor, except 
that this term does not include statutory rape.
    (vii) ``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 imposed upon revocation of probation, parole, or 
supervised release.
    (viii) ``Terrorism offense'' means any offense involving, or 
intending to promote, a ``Federal crime of terrorism'', as that term is 
defined in 18 U.S.C. Sec.  2332b(g)(5).
    2. Aiding and Abetting, Conspiracies, and Attempts.--Prior 
convictions of offenses counted under subsection (b)(1) include the 
offenses of aiding and abetting, conspiracy to commit, and attempting 
to commit such offenses.
    3. Multiple Prior Sentences.--Sentences of imprisonment are counted 
separately or as a single sentence as provided by Sec.  4A1.2.
    4. Interaction with Chapter Four.--A conviction taken into account 
under subsection (b)(1) is not excluded from consideration of whether 
that conviction receives criminal history points pursuant to Chapter 
Four, Part A (Criminal History).''.

Issue for Comment

    1. Should any of the specific offense characteristics and departure 
provisions in one option be adopted by the Commission as part of 
another option? If so, which provisions should be incorporated into 
which option?

Court Security Improvement Act of 2007

    8. Issue for Comment
    1. The Commission requests comment regarding two new offenses 
created by the Court Security Improvement Act of 2007, Public Law 110-
177. Specifically, the Commission requests comment regarding whether 
the Commission should amend Appendix A (Statutory Index) to refer these 
new provisions to existing guidelines, and if so, to what guideline(s) 
should each new offense be referenced?
    The new provision at 18 U.S.C. 1521 prohibits the filing of, 
attempts, or conspiracies to file, any false lien or encumbrance 
against the real or personal property of officers or employees of the 
United States Government, on account of that individual's performance 
of official duties. The offense is punishable by a maximum term of 10 
years of imprisonment. Are there existing guidelines that would be 
appropriate to cover violations of the new provision at 18 U.S.C. 1521? 
For example, should violations of 18 U.S.C. 1521 be referenced to Sec.  
2J1.2 (Obstruction of Justice), or alternatively or additionally to 
Sec.  2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses 
Involving Stolen Property; Property Damage or Destruction; Fraud and 
Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments 
Other than Counterfeit Bearer Obligations of the United States)? What, 
if any, specific offense characteristics should be added? Should an 
application note be added instructing courts to apply Sec.  3A1.2 
(Official Victim)?
    The new provision at 18 U.S.C. 119 prohibits the public disclosure 
of restricted personal information about a federal officer or employee, 
witness, juror, or the immediate family member of such persons, with 
the intent to threaten or facilitate a crime of violence against such 
person. The offense is punishable by a maximum term of 5 years of 
imprisonment. Are there existing guidelines that would be appropriate 
to cover violations of the new provision at 18 U.S.C. 119 (Protection 
of individuals performing certain official duties)? For example, should 
the new provision be referenced to Sec.  2H3.1 (Interception of 
Communications; Eavesdropping; Disclosure of Certain Private or 
Protected Information); or alternatively or additionally to the assault 
guidelines in Chapter Two, Part A (Offenses Against the Person)? What, 
if any, specific offense characteristics should be added? Should an 
application note be added instructing courts to apply Sec.  3A1.2 
(Official Victim)?
    2. Section 209 of the Act directs the Commission to ``review the 
Sentencing Guidelines as they apply to threats punishable under section 
115 of title 18, United States Code, that occur over the Internet, and 
determine whether and by how much that circumstance should aggravate 
the punishment pursuant to section 994 of title 28, United States Code. 
In conducting the study, the Commission shall take into consideration 
the number of such threats made, the intended number of recipients of 
such threats, and whether the initial senders of such threats were 
acting in an individual capacity or as part of a larger group.'' How 
should the Commission respond to the directive? What are the 
aggravating circumstances in such offenses, and how should the 
Commission address those circumstances?

[FR Doc. E8-1425 Filed 1-25-08; 8:45 am]
BILLING CODE 2211-01-P