Sentencing Guidelines for United States Courts, 4802-4823 [E9-1642]

Agencies

• United States Sentencing Commission

[Federal Register Volume 74, Number 16 (Tuesday, January 27, 2009)]
[Notices]
[Pages 4802-4823]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-1642]


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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of proposed amendments to sentencing guidelines, policy 
statements, and commentary. Request for public comment, including 
public comment regarding retroactive application of any of the proposed 
amendments. Notice of public hearing.

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SUMMARY: Pursuant to section 994(a), (o), and (p) of title 28, United 
States Code, the United States Sentencing Commission is considering 
promulgating certain amendments to the sentencing guidelines, policy 
statements, and commentary. This notice sets forth the proposed 
amendments and, for each proposed amendment, a synopsis of the issues 
addressed by that amendment. This notice also sets forth a number of 
issues for comment, some of which are set forth together with the 
proposed amendments; some of which are set forth independent of any 
proposed amendment; and one of which (regarding retroactive application 
of proposed amendments) is set forth in the SUPPLEMENTARY INFORMATION 
portion of this notice.
    The proposed amendments and issues for comment in this notice are 
as follows: (1) A proposed amendment in response to the Identity Theft 
Restitution and Enforcement Act of 2008, title II of Public Law 110-
326, including proposed changes 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), Sec.  2H3.1 (Interception of 
Communications; Eavesdropping; Disclosure of Certain Private or 
Protected Information), and Sec.  3B1.3 (Abuse of Position of Trust or 
Use of Special Skill), and issues for comment regarding the guidelines' 
treatment of offenses involving fraud, identity theft, computers, and 
communications; (2) a proposed amendment in response to the Ryan Haight 
Online Pharmacy Consumer Protection Act of 2008, Public Law 110-465, 
including proposed changes to Sec.  2D1.1 (Unlawful Manufacturing, 
Importing, Exporting, or Trafficking (Including Possession with Intent 
to Commit These Offenses); Attempt or Conspiracy) and Sec.  2D3.1

[[Page 4803]]

(Regulatory Offenses Involving Registration Numbers; Unlawful 
Advertising Relating to Schedule I Substances; Attempt or Conspiracy), 
and issues for comment regarding the guidelines' treatment of Schedule 
III, IV, and V controlled substance offenses; (3) a proposed amendment 
in response to the Drug Trafficking Vessel Interdiction Act of 2008, 
Public Law 110-407, including a proposed change to Sec.  2D1.1 
(Unlawful Manufacturing, Importing, Exporting, or Trafficking 
(Including Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy) and a proposed new guideline for offenses involving 
operating a submersible vessel or semi-submersible vessel without 
nationality, and issues for comment regarding the guidelines' treatment 
of such offenses; (4) an issue for comment in response to the Court 
Security Improvement Act of 2007, Public Law 110-177, regarding the 
guidelines' treatment of homicide, assault, and threat offenses; (5) an 
issue for comment in response to the William Wilberforce Trafficking 
Victims Protection Reauthorization Act of 2008, Public Law 110-457, 
regarding the guidelines' treatment of alien harboring and human 
trafficking offenses; (6) a proposed amendment in response to 
miscellaneous issues arising from legislation recently enacted and 
other miscellaneous guideline application issues, including proposed 
changes to the guidelines' treatment of offenses involving contempt, 
consumer product safety, interest rate limitations, domestic violence, 
child soldiers, veterans' grave markers, child pornography, firearms, 
threats, and copyright infringement and the guidelines' treatment of 
probation and supervised release, and related issues for comment; (7) a 
proposed amendment to Sec.  2A3.2 (Criminal Sexual Abuse of a Minor 
Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit 
Such Acts) and Sec.  2G1.3 (Promoting a Commercial Sex Act or 
Prohibited Sexual Conduct with a Minor; Transportation of Minors to 
Engage in a Commercial Sex Act or Prohibited Sexual Conduct; Travel to 
Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor; 
Sex Trafficking of Children; Use of Interstate Facilities to Transport 
Information about a Minor) in response to a circuit conflict regarding 
application of the undue influence enhancement in those guidelines, and 
a related issue for comment; (8) a proposed amendment to Sec.  3C1.3 
(Commission of Offense While on Release) in response to an application 
issue regarding that guideline; (9) a proposed amendment in response to 
a circuit conflict regarding the guidelines' treatment of 
counterfeiting offenses involving ``bleached notes'', including a 
proposed change to Sec.  2B5.1 (Offenses Involving Counterfeit Bearer 
Obligations of the United States); and (10) a proposed amendment in 
response to certain technical issues that have arisen in the 
guidelines.

DATES: (1) Written Public Comment.--Written public comment regarding 
the proposed amendments and issues for comment set forth in this 
notice, including public comment regarding retroactive application of 
any of the proposed amendments, should be received by the Commission 
not later than March 30, 2009.
    (2) Public Hearing.--The Commission plans to hold a public hearing 
regarding the proposed amendments and issues for comment set forth in 
this notice. Further information regarding the public hearing, 
including requirements for testifying and providing written testimony, 
as well as the location, time, and scope of the hearing, will be 
provided by the Commission on its Web site at https://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 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 https://www.ussc.gov.

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

Ricardo H. Hinojosa,
Acting Chair.

1. Identity Theft

    Synopsis of Proposed Amendment: This proposed amendment addresses 
the Identity Theft Restitution and Enforcement Act of 2008 (the 
``Act''), Title II of Public Law 110-326, and other related issues 
arising from case law. The Act contains a directive to the Commission 
at section 209. Section 209(a) of the Act directs the Commission to--
review its guidelines and policy statements applicable to persons 
convicted of offenses under sections 1028, 1028A, 1030, 2511, and 2701 
of title 18, United States Code, and any other relevant provisions of 
law, in order to reflect the intent of Congress that such penalties be 
increased in comparison to those currently provided by such guidelines 
and policy statements.
    The offenses that are the subject of the directive in section 209 
of the Act, and the guidelines to which they are referenced, are as 
follows:
    (1) 18 U.S.C. 1028 (fraud and related activity in connection with 
identification documents, authentication features, and information) 
makes it unlawful to engage in fraud and related activity in connection 
with ``identification documents'' (e.g., government-issued

[[Page 4804]]

documents such as drivers' licenses) or ``authentication features'' 
(i.e., features used on such documents to determine whether such 
documents are authentic, such as watermarks or holograms). A violator 
is subject to a fine under title 18, United States Code, and 
imprisonment. The statutory maximum term of imprisonment varies from 1 
year to 30 years, depending on the circumstances of the offense. For 
example, the statute provides imprisonment up to 30 years (if terrorism 
is involved); 20 years (if a drug trafficking crime or a crime of 
violence is involved, or if the violator is a repeat offender); and 15 
years, 5 years, and 1 year, in other specified circumstances.
    Offenses under 18 U.S.C. 1028 are referenced in Appendix A of the 
Guidelines Manual (Statutory Index) to Sec. Sec.  2B1.1 (Theft, 
Property Destruction, and Fraud), 2L2.1 (Trafficking in a Document 
Relating to Naturalization), and 2L2.2 (Fraudulently Acquiring 
Documents Relating to Naturalization).
    (2) 18 U.S.C. 1028A (aggravated identity theft) makes it unlawful 
to transfer, possess, or use a ``means of identification'' (i.e., a 
name or number used to identify a specific individual, such as a social 
security number) of another person during and in relation to another 
felony (such as a fraud or an immigration violation). A violator is 
subject to a mandatory consecutive term of imprisonment of 2 years or, 
if the other felony was a terrorism offense, 5 years.
    Offenses under 18 U.S.C. 1028A are referenced in Appendix A 
(Statutory Index) to Sec.  2B1.6 (Aggravated Identity Theft).
    (3) 18 U.S.C. 1030 (fraud and related activity in connection with 
computers) provides for several offenses as follows:
    (A) 18 U.S.C. 1030(a)(1) makes it unlawful to retain national 
security information after having obtained it by computer without 
authority, or to disclose such information to a person not entitled to 
receive it. A violator is subject to a fine under title 18, United 
States Code, and imprisonment up to 10 years (for a first offense) or 
20 years (for a repeat offender).
    Offenses under 18 U.S.C. 1030(a)(1) are referenced in the Statutory 
Index to Sec.  2M3.2 (Gathering National Defense Information).
    (B) 18 U.S.C. 1030(a)(2) makes it unlawful to obtain by computer, 
without authority, information of a financial institution or of a 
federal agency. A violator is subject to a fine under title 18, United 
States Code, and imprisonment of up to 1 year (for a first offense), 5 
years (for an offense involving valuable information, an offense for 
purposes of commercial advantage or financial gain, or an offense in 
furtherance of another crime or tort), or 10 years (for a repeat 
offender).
    Offenses under 18 U.S.C. 1030(a)(2) are referenced in the Statutory 
Index to Sec.  2B1.1 (Theft, Property Destruction, and Fraud).
    (C) 18 U.S.C. 1030(a)(3) makes it unlawful to access, without 
authority, a nonpublic computer of a federal agency. A violator is 
subject to a fine under title 18, United States Code, and imprisonment 
of up to 1 year (for a first offense) or 10 years (for a repeat 
offender).
    Offenses under 18 U.S.C. 1030(a)(3) are referenced in the Statutory 
Index to Sec.  2B2.3 (Trespass).
    (D) 18 U.S.C. 1030(a)(4) makes it unlawful to access a ``protected 
computer'' (i.e., a computer of a financial institution or a federal 
agency) without authority and, by means of doing so, further an 
intended fraud and obtain a thing of value. A violator is subject to a 
fine under title 18, United States Code, and imprisonment of up to 5 
years (for a first offense) or 10 years (for a repeat offender).
    Offenses under 18 U.S.C. 1030(a)(4) are referenced in the Statutory 
Index to Sec.  2B1.1 (Theft, Property Destruction, and Fraud).
    (E) 18 U.S.C. 1030(a)(5) makes it unlawful to use a computer to 
cause damage to a ``protected computer'' (i.e., a computer of a 
financial institution or a federal agency). A violator is subject to a 
fine under title 18, United States Code, and imprisonment of up to 1 
year, 5 years, 10 years, 20 years, or life, depending on the 
circumstances.
    Offenses under 18 U.S.C. 1030(a)(5) are referenced in the Statutory 
Index to Sec.  2B1.1 (Theft, Property Destruction, and Fraud).
    (F) 18 U.S.C. 1030(a)(6) makes it unlawful to traffic in any 
password or similar information through which a computer may be 
accessed without authorization, if the trafficking affects interstate 
or foreign commerce or if the computer is used by or for a federal 
agency. A violator is subject to a fine under title 18, United States 
Code, and imprisonment of up to 1 year (for a first offense) or 10 
years (for a repeat offender).
    Offenses under 18 U.S.C. 1030(a)(6) are referenced in the Statutory 
Index to Sec.  2B1.1 (Theft, Property Destruction, and Fraud).
    (G) 18 U.S.C. 1030(a)(7) makes it unlawful to threaten to cause 
damage to, or obtain information from, a ``protected computer'' (i.e., 
a computer of a financial institution or a federal agency), without 
authority and with intent to extort. A violator is subject to a fine 
under title 18, United States Code, and imprisonment of up to 5 years 
(for a first offense) or 10 years (for a repeat offender).
    Offenses under 18 U.S.C. 1030(a)(7) are referenced in the Statutory 
Index to Sec.  2B3.2 (Extortion by Force or Threat of Injury or Serious 
Damage).
    (H) 18 U.S.C. 1030(b) makes it unlawful to conspire to commit, or 
attempt to commit, a section 1030(a) offense. A violator is subject to 
the same penalty as for the section 1030(a) offense.
    Offenses under 18 U.S.C. 1030(b) are referenced in the Statutory 
Index to Sec.  2X1.1 (Attempt, Solicitation, or Conspiracy).
    (4) 18 U.S.C. 2511 (interception and disclosure of wire, oral, or 
electronic communications prohibited) makes it unlawful to intercept or 
disclose any wire, oral, or electronic communication. A violator is 
subject to a fine under title 18, United States Code, and imprisonment 
of up to 5 years.
    Offenses under 18 U.S.C. 2511 are referenced in the Statutory Index 
to Sec. Sec.  2B5.3 (Criminal Infringement of Copyright or Trademark) 
and 2H3.1 (Interception of Communications; Eavesdropping; Disclosure of 
Certain Private or Protected Information).
    (5) 18 U.S.C. 2701 (unlawful access to stored communications) makes 
it unlawful to access, without authority, a facility through which an 
electronic communication service is provided and obtain, alter, or 
prevent authorized access to a wire or electronic communication stored 
in that facility. A violator is subject to a fine under title 18, 
United States Code, and imprisonment. If the offense is committed for 
commercial advantage, malicious damage, or commercial gain, or in 
furtherance of a crime or tort, the maximum term of imprisonment is 5 
years (for a first offender) or 10 years (for a repeat offender); 
otherwise, the maximum term of imprisonment is 1 year (for a first 
offender) or 5 years (for a repeat offender).
    Offenses under 18 U.S.C. 2701 are referenced in the Statutory Index 
to Sec.  2B1.1 (Theft, Property Destruction, and Fraud).
    Section 209(b) of the Act requires that, in determining the 
appropriate sentence for the above referenced crimes, the Commission 
``shall consider the extent to which the current guidelines and policy 
statements may or may not adequately account for the following factors 
in order to create an effective deterrent to computer crime

[[Page 4805]]

and the theft or misuse of personally identifiable data'':
    (1) The level of sophistication and planning involved in such 
offense.
    (2) Whether such offense was committed for purpose of commercial 
advantage or private financial benefit.
    (3) The potential and actual loss resulting from the offense 
including--
    (A) The value of information obtained from a protected computer, 
regardless of whether the owner was deprived of use of the information; 
and
    (B) Where the information obtained constitutes a trade secret or 
other proprietary information, the cost the victim incurred developing 
or compiling the information.
    (4) Whether the defendant acted with intent to cause either 
physical or property harm in committing the offense.
    (5) The extent to which the offense violated the privacy rights of 
individuals.
    (6) The effect of the offense upon the operations of an agency of 
the United States Government, or of a State or local government.
    (7) Whether the offense involved a computer used by the United 
States Government, a State, or a local government in furtherance of 
national defense, national security, or the administration of justice.
    (8) Whether the offense was intended to, or had the effect of, 
significantly interfering with or disrupting a critical infrastructure.
    (9) Whether the offense was intended to, or had the effect of, 
creating a threat to public health or safety, causing injury to any 
person, or causing death.
    (10) Whether the defendant purposefully involved a juvenile in the 
commission of the offense.
    (11) Whether the defendant's intent to cause damage or intent to 
obtain personal information should be disaggregated and considered 
separately from the other factors set forth in USSG 2B1.1(b)(14) 
[currently Sec.  2B1.1(b)(15)].
    (12) Whether the term ``victim'' as used in USSG 2B1.1, should 
include individuals whose privacy was violated as a result of the 
offense in addition to individuals who suffered monetary harm as a 
result of the offense.
    (13) Whether the defendant disclosed personal information obtained 
during the commission of the offense.
    Section 209(c) of the Act requires that in responding to the 
directive, the Commission:
    (1) Assure reasonable consistency with other relevant directives 
and with other sentencing guidelines;
    (2) Account for any additional aggravating or mitigating 
circumstances that might justify exceptions to the generally applicable 
sentencing ranges;
    (3) Make any conforming changes to the sentencing guidelines; and
    (4) 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 proposed amendment and issues for comment address the factors 
set forth in section 209(b) of the Act, and other related issues 
arising under the Act and under case law, in the following manner:

(A) Level of Sophistication and Planning Involved in the Offense

    Synopsis of Proposed Amendment: The proposed amendment responds to 
subsection (b)(1) of the directive, which concerns the level of 
sophistication involved in the offense, by amending the commentary in 
Sec.  2B1.1 relating to fraud offenses that involve sophisticated 
means. Specifically, the proposed amendment responds to a concern about 
whether, in a case involving computers, the defendant's use of any 
technology or software to conceal the identity or geographic location 
of the perpetrator qualifies as ``especially complex or especially 
intricate offense conduct pertaining to the execution or concealment of 
an offense'' within the meaning of the sophisticated means enhancement 
in Sec.  2B1.1(b)(9) and Application Note 8(B) of that guideline. The 
proposed amendment adds this conduct to the list in Application Note 
8(B) of examples of conduct that ordinarily indicates sophisticated 
means.
    Two issues for comment are also included.
    Proposed Amendment:
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 8(B) by adding at the end the following:
    ``In a scheme involving computers, using any technology or software 
to conceal the identity or geographic location of the perpetrator 
ordinarily indicates sophisticated means.''.
    Issues for Comment:
    1. The Commission requests comment regarding the factor described 
in section 209(b)(1) of the Act (the level of sophistication and 
planning involved in the offense). The guidelines currently address 
this factor as follows:
    (1) Section 2B1.1(b)(9) contains a 2-level enhancement, and a 
minimum offense level of 12, if the offense involved sophisticated 
means.
    (2) Section 2B1.1(b)(4) contains a 2-level enhancement if the 
offense involved receiving stolen property and the defendant was in the 
business of receiving and selling stolen property, which Application 
Note 5 provides is to be determined in part on the regularity and 
sophistication of the defendant's activities.
    Is the factor adequately addressed by these provisions? Should the 
Commission increase the amount, or the scope, of these enhancements, or 
of the minimum offense level, or any combination of those? Should the 
Commission amend other guidelines to which these offenses are 
referenced to address this factor, such as by adding comparable 
enhancements, minimum offense levels, or both?
    2. The Commission requests comment regarding whether Sec.  3B1.3 
(Abuse of Position of Trust or Use of Special Skill) should apply to a 
person who has self-trained computer skills. Does the guideline 
adequately address such a person? Should the guideline include language 
that unequivocally includes such a person, or should it include 
language that unequivocally excludes such a person?

(B) Whether the Offense Was Committed for Purpose of Commercial 
Advantage or Private Financial Benefit

    Issue for Comment:
    1. The Commission requests comment regarding the factor described 
in section 209(b)(2) of the Act (whether the offense was committed for 
purpose of commercial advantage or private financial benefit). The 
guidelines currently address this factor as follows:
    (1) Section 2H3.1 provides a 3-level enhancement at subsection 
(b)(1)(B) if the purpose of an offense under 18 U.S.C. 2511 was to 
obtain direct or indirect commercial advantage or economic gain, and a 
cross reference at subsection (c)(1) that applies if the purpose of the 
offense was to facilitate another offense.
    (2) Section 2B1.5(b)(4) provides a 2-level enhancement if the 
offense was committed for pecuniary gain or otherwise involved a 
commercial purpose.
    (3) Sections 2B1.1(b)(1), 2B2.3(b)(3), and 2B5.3(b)(1) provide 
enhancements based on the monetary amounts involved in the offense.
    Is the factor adequately addressed by these provisions? Should the 
Commission increase the amount, or the scope, of these enhancements, or 
the scope of the cross reference? Should the Commission amend other 
guidelines to which these offenses are referenced to address this 
factor, such as by adding comparable enhancements or cross references?

[[Page 4806]]

(C) The Potential and Actual Loss Resulting From the Offense Including 
(A) the Value of Information Obtained From a Protected Computer, 
Regardless of Whether the Owner Was Deprived of Use of the Information; 
and (B) Where the Information Obtained Constitutes a Trade Secret or 
Other Proprietary Information, the Cost the Victim Incurred Developing 
or Compiling the Information

    Synopsis of Proposed Amendment: The proposed amendment responds to 
subsection (b)(3) of the directive by revising Sec.  2B1.1 (Theft, 
Property Destruction, and Fraud). Specifically, it addresses two types 
of information: information that the victim retains but that is copied 
by the defendant, and information that constitutes a trade secret or 
other proprietary information of the victim. Two options are presented. 
Option 1 adds to the rule of construction for cases under 18 U.S.C.1030 
(Fraud and related activity in connection with computers) regarding 
pecuniary harm in Application Note 3(A)(v)(III), specifying that any 
reduction in the value of proprietary information that resulted from 
the offense should be included in the loss calculation. Option 2 adds a 
provision in Application Note 3(C), specifying that, if the fair market 
value of copied information is unavailable or insufficient, the court 
may consider the cost the victim incurred in originally developing the 
information or the reduction in the value of the information that 
resulted from the offense.
    Four issues for comment are also included.
    Proposed Amendment:
    [Option 1:
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 3(A)(v)(III) by striking ``, and'' after ``prior to the 
offense'' and inserting a semicolon; and by inserting after ``service'' 
the following:
    ``; and any reduction in the value of proprietary information 
(e.g., trade secrets) that resulted from the offense''.]
    [Option 2:
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 3(C)(i) by inserting ``copied,'' after ``taken,''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 3(C) by redesignating clauses (ii) through (v) as (iii) 
through (vi); and by inserting after clause (i) the following new 
clause:
    ``(ii) In the case of proprietary information (e.g., trade 
secrets), the cost of developing that information or the reduction that 
resulted from the offense in the value of that information.''.]
    Issues for Comment:
    1. The Commission requests comment regarding the factor described 
in section 209(b)(3) of the Act (the potential and actual loss 
resulting from the offense including (A) the value of information 
obtained from a protected computer, regardless of whether the owner was 
deprived of use of the information; and (B) where the information 
obtained constitutes a trade secret or other proprietary information, 
the cost the victim incurred developing or compiling the information). 
The guidelines currently address this factor as follows:
    (1) Sections 2B1.1(b)(1), 2B2.3(b)(3), and 2B5.3(b)(1) provide 
enhancements based on the monetary amounts involved in the offense.
    (2) Section 2B1.1, Application Note 19(A)(iv), provides an upward 
departure if the offense created a risk of substantial loss beyond the 
loss determined for purposes of Sec.  2B1.1(b)(1).
    (3) Section 2B1.1, Application Note 19(A)(v), provides an upward 
departure if, in a case involving stolen information from a ``protected 
computer,'' the defendant sought the stolen information to further a 
broader criminal purpose.
    Is the factor adequately addressed by these provisions? Should the 
Commission increase the amount, or the scope, of these enhancements? 
Should the Commission amend other guidelines to which these offenses 
are referenced to address this factor, such as by adding comparable 
enhancements? Should these upward departure provisions be incorporated 
as enhancements in the guidelines to which these offenses are 
referenced?
    2. Should the definition of ``loss'' in Sec.  2B1.1 be amended to 
provide greater guidance to the court on how to estimate loss in cases 
involving information obtained from a protected computer without 
depriving the owner of the use of the information, or information 
obtained that constitutes a trade secret or other proprietary 
information? For such cases, should Sec.  2B1.1 include a special rule 
for including and quantifying (or providing a stipulated amount for) 
the loss, such as the special rule in Application Note 3(F)(i) relating 
to credit cards?
    3. The Commission requests comment regarding whether Sec.  2B1.1 
adequately accounts for a case in which an individual suffers pecuniary 
harm, but the pecuniary harm is immediately reimbursed by a third 
party. In such a case, the pecuniary harm may not be treated as 
``loss,'' and the individual may not be treated as a ``victim,'' for 
purposes of Sec.  2B1.1.
    Five circuit courts have addressed the issue of whether an 
individual who is fully reimbursed for his or her temporary financial 
loss by a third party is a ``victim'' for purposes of Sec.  
2B1.1(b)(2). The Fifth Circuit in United States v. Conner, 537 F.3d 
480, 489 (5th Cir. 2008), and the Sixth Circuit in United States v. 
Yagar, 404 F.3d 967, 971 (6th Cir. 2005), have held that individuals 
who have been fully reimbursed for temporary financial losses by a 
third party are not ``victims'' within the meaning of Sec.  
2B1.1(b)(2). Although the Second Circuit in United States v. Abiodun, 
536 F.3d 162, 168 (2d Cir.), cert. denied, --S. Ct. --, 2008 WL 4619522 
(2008), and the Ninth Circuit in United States v. Pham, 545 F.3d 712, 
721 (9th Cir. 2008), have agreed with the reasoning of these courts, 
they have further held that individuals who were fully reimbursed for 
their financial losses by third parties may be deemed victims for 
purposes of Sec.  2B1.1(b)(2) so long as they suffered an adverse 
effect, measurable in monetary terms, as a result of the defendant's 
conduct (e.g., the costs associated with obtaining reimbursements from 
banks or credit card companies). The Eleventh Circuit in United States 
v. Lee, 427 F.3d 881, 895 (11th Cir. 2005), did not agree. While 
acknowledging that the facts of its case were significantly different 
in that the monetary losses were neither short-lived nor immediately 
reimbursed by third parties, the Lee court held that the operative time 
for determining whether someone is a victim is the time of the offense, 
irrespective of any subsequent remedial action.
    Should the Commission amend the guidelines to address this 
circumstance and, if so, how?
    4. The Commission requests comment regarding whether Sec.  3B1.3 
(Abuse of Position of Trust or Use of Special Skill) should apply to a 
person who is an officer, employee, or insider of a business who 
participates in an offense involving proprietary information (e.g., 
trade secrets) of that business. Does the guideline adequately address 
such a person? Should the guideline include language that unequivocally 
includes such a person, or should it include language that 
unequivocally excludes such a person?

[[Page 4807]]

(D) Whether the Defendant Acted With Intent To Cause Either Physical or 
Property Harm in Committing the Offense

Issue for Comment
    1. The Commission requests comment regarding the factor described 
in section 209(b)(4) of the Act (whether the defendant acted with 
intent to cause either physical or property harm in committing the 
offense). The guidelines currently address this factor as follows:
    (1) Section 2B1.1(b)(13) provides a 2-level enhancement if the 
offense involved the conscious or reckless risk of death or serious 
bodily injury, or possession of a dangerous weapon in connection with 
the offense.
    (2) Section 2B1.1(c) provides a cross reference under which the 
court applies a firearms or explosives guideline if firearms or 
explosives are involved.
    (3) Section 2H3.1(c) provides a cross reference under which the 
court applies another offense guideline if the purpose was to 
facilitate another offense.
    (4) Section 2B1.1, Application Note 19, provides an upward 
departure if the offense caused or risked substantial non-monetary 
harm, such as physical harm or property harm.
    (5) Section 2H3.1, Application Note 5, provides an upward departure 
if the offense caused or risked substantial non-monetary harm, such as 
physical harm or property harm.
    (6) Section 5K2.5 (Property Damage or Loss) provides an upward 
departure if the offense caused property damage or loss not taken into 
account by the guidelines.
    Is the factor adequately addressed by these provisions? If not, 
should the Commission increase the amount, or the scope, of these 
enhancements, or the scope of the cross reference or departure 
provisions? Should the Commission amend other guidelines to which these 
offenses are referenced to address this factor, such as by adding 
comparable enhancements or cross references? Alternatively, should 
these upward departure provisions be incorporated as enhancements in 
the guidelines to which these offenses are referenced?

(E) The Extent to Which the Offense Violated the Privacy Rights of 
Individuals

    Synopsis of Proposed Amendment: The proposed amendment responds to 
subsection (b)(5) of the directive (the extent to which the offense 
violated the privacy rights of individuals) by revising Sec.  2H3.1 
(Interception of Communications; Eavesdropping; Disclosure of Certain 
Private or Protected Information). Two options are presented. Option 1 
creates a new specific offense characteristic in Sec.  2H3.1 with three 
alternative enhancements if the offense involved the personal 
information or means of identification of specified numbers of 
individuals. Specifically, it provides an enhancement of [2] levels for 
offenses involving the personal information or means of identification 
of [10]-[50] or more individuals; an enhancement of [4] levels for 
[50]-[250] or more individuals; and an enhancement of [6] levels for 
[250]-[1,000] or more individuals. The graduated levels ensure 
incremental punishment for increasingly serious conduct. Option 2 
amends Application Note 5 to Sec.  2H3.1, suggesting that an upward 
departure may be warranted not only in a case in which the offense 
involved confidential phone records information or tax return 
information of a substantial number of individuals (as the application 
note currently provides), but also in a case in which the offense 
involved personal information or means of identification of a 
substantial number of individuals.
    The proposed amendment defines the term ``personal information'', 
for purposes of Sec.  2H3.1, in the same manner as the term ``personal 
information'' is defined for purposes of Sec.  2B1.1(b)(15). The 
proposed amendment clarifies, for purposes of both guidelines, that 
information is ``personal information'' only if it involves an 
identifiable individual.
    An issue for comment is also included.
    Proposed Amendment:
    [Option 1:
    Section 2H3.1(b) is amended by adding at the end the following:
    ``(3) (Apply the greatest) If the defendant is convicted under 18 
U.S.C. Sec.  2511 and the offense involved personal information or 
means of identification of--
    (A) [10]-[50] or more individuals, increase by [2] levels;
    (B) [50]-[250] or more individuals, increase by [4] levels; or
    (C) [250]-[1,000] or more individuals, increase by [6] levels.''.]
    The Commentary to Sec.  2H3.1 captioned ``Application Notes'' is 
amended in Note 4 by striking ``subsection (b)(2)(B)'' and inserting 
``this guideline''; and by adding after the paragraph that begins `` 
`Interactive computer service' '' the following:
    `` `Means of identification' has the meaning given that term in 18 
U.S.C. 1028(d)(7), except that such means of identification shall be of 
an actual (i.e., not fictitious) individual, other than the defendant 
or a person for whose conduct the defendant is accountable under Sec.  
1B1.3 (Relevant Conduct).
    `Personal information' means sensitive or private information 
involving an identifiable individual (including such information in the 
possession of a third party), including (i) medical records; (ii) 
wills; (iii) diaries; (iv) private correspondence, including e-mail; 
(v) financial records; (vi) photographs of a sensitive or private 
nature; or (vii) similar information.''.
    [Option 2:
    The Commentary to Sec.  2H3.1 captioned ``Application Notes'' is 
amended in Note 5(i) by inserting ``personal information, means of 
identification,'' after ``involved''; and by inserting a comma before 
``or tax''.]
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 13(A) in the paragraph that begins `` `Personal 
information' '' by inserting ``involving an identifiable individual'' 
after ``private information''.
    Issue for Comment:
    1. The Commission requests comment regarding the factor described 
in section 209(b)(5) of the Act (the extent to which the offense 
violated the privacy rights of individuals). In many cases, non-
monetary harm (such as a violation of privacy rights) may be difficult 
or impossible to quantify. See, e.g., Sec.  2B1.1, comment. (backg'd.). 
For that reason, non-monetary harm is typically accounted for by the 
guidelines through a minimum offense level or an upward departure. The 
guidelines currently address this factor as follows:
    (1) Section 2B1.1, Application Note 19, provides an upward 
departure if the offense resulted in a substantial invasion of a 
privacy interest. It also provides an upward departure if, in a case 
involving access devices or unlawfully produced or unlawfully obtained 
means of identification, (i) the offense caused substantial harm to the 
victim's reputation or credit record, or the victim suffered a 
substantial inconvenience related to repairing the victim's reputation 
or a damaged credit record; (ii) an individual whose means of 
identification the defendant used to obtain unlawful means of 
identification is erroneously arrested or denied a job because an 
arrest record has been made in that individual's name; or (iii) the 
defendant produced or obtained numerous means of identification with 
respect to one individual and essentially assumed that individual's 
identity.
    (2) Section 2H3.1, Application Note 5, provides an upward departure 
if the offense involved private information or resulted in a 
substantial invasion of a privacy interest.

[[Page 4808]]

    (3) Section 2B1.1(b)(15)(A) provides a 2-level enhancement if an 
offense under 18 U.S.C. 1030 involved an intent to obtain personal 
information, and Sec.  2H3.1(b)(2)(B) provides a 10-level enhancement 
if an offense under 18 U.S.C. 119 involved the use of a computer to 
make restricted personal information about a covered person publicly 
available.
    Is the factor adequately addressed through these provisions? If 
not, should the Commission increase the amount, or the scope, of these 
enhancements? Should the Commission amend other guidelines to which 
these offenses are referenced to address this factor, such as by adding 
comparable enhancements? Should these upward departure provisions be 
incorporated as enhancements in the guidelines to which these offenses 
are referenced?

(F) The Effect of the Offense Upon the Operations of an Agency of the 
United States Government, or of a State or Local Government

    Issue for Comment:
    1. The Commission requests comment regarding the factor described 
in section 209(b)(6) of the Act (the effect of the offense upon the 
operations of an agency of the United States Government, or of a State 
or local government). The guidelines currently address this factor as 
follows:
    (1) Section 5K2.7 (Disruption of Government Function) provides an 
upward departure if the defendant's conduct resulted in a significant 
disruption of a governmental function.
    (2) Section 5K2.14 (Public Welfare) provides an upward departure if 
national security, public health, or safety was significantly 
endangered.
    Is the factor adequately addressed through these upward departure 
provisions? Alternatively, should these upward departure provisions be 
incorporated as enhancements in the guidelines to which these offenses 
are referenced?

(G) Whether the Offense Involved a Computer Used by the United States 
Government, a State, or a Local Government in Furtherance of National 
Defense, National Security, or the Administration of Justice

    Issue for Comment:
    1. The Commission requests comment regarding the factor described 
in section 209(b)(7) of the Act (whether the offense involved a 
computer used by the United States Government, a State, or a local 
government in furtherance of national defense, national security, or 
the administration of justice). The guidelines currently address this 
factor as follows:
    (1) Section 2B1.1 provides a 2-level enhancement at subsection 
(b)(15)(A)(i) if an offense under 18 U.S.C. 1030 involved a computer 
system used by or for a government entity in furtherance of the 
administration of justice, national defense, or national security.
    (2) Section 2B2.3(b)(1) provides a 2-level enhancement if a 
trespass occurred on a computer system used by or for a government 
entity in furtherance of the administration of justice, national 
defense, or national security.
    (3) Section 2B3.2(b)(3)(B) provides a 3-level enhancement if the 
offense involved preparation to carry out a threat of damage to a 
computer system used by or for a government entity in furtherance of 
the administration of justice, national defense, or national security.
    (4) Section 2B1.1, Application Note 19, provides an upward 
departure in a case in which subsection (b)(15)(A)(iii) applies and the 
disruption to the critical infrastructure is so substantial as to have 
a debilitating impact on national security, national economic security, 
or national public health or safety.
    (5) Section 5K2.7 (Disruption of Government Function) provides an 
upward departure if the defendant's conduct resulted in a significant 
disruption of a governmental function.
    (6) Section 5K2.14 (Public Welfare) provides an upward departure if 
national security, public health, or safety was significantly 
endangered.
    Is the factor adequately addressed through these provisions? Should 
the Commission increase the amount, or the scope, of these 
enhancements? Should the Commission amend other guidelines to which 
these offenses are referenced to address this factor, such as by adding 
comparable enhancements? Should these upward departure provisions be 
incorporated as enhancements in the guidelines to which these offenses 
are referenced?

(H) Whether the Offense Was Intended to, or Had the Effect of, 
Significantly Interfering With or Disrupting a Critical Infrastructure

    Issue for Comment:
    1. The Commission requests comment regarding the factor described 
in section 209(b)(8) of the Act (whether the offense was intended to, 
or had the effect of, significantly interfering with or disrupting a 
critical infrastructure). The guidelines currently address this factor 
as follows:
    (1) Section 2B1.1 provides a 2-level enhancement at subsection 
(b)(15)(A)(i) if an offense under 18 U.S.C. 1030 involved a computer 
system used to maintain or operate a critical infrastructure, and a 6-
level enhancement (and a minimum offense level of 24) at subsection 
(b)(15)(A)(iii) if an offense under section 1030 caused a substantial 
disruption of a critical infrastructure.
    (2) Section 2B2.3(b)(1) provides a 2-level enhancement if a 
trespass occurred on a computer system used to maintain or operate a 
critical infrastructure.
    (3) Section 2B3.2(b)(3)(B) provides a 3-level enhancement if the 
offense involved preparation to carry out a threat of damage to such a 
computer system.
    (4) Section 2B1.1, Application Note 19, provides an upward 
departure in a case in which subsection (b)(15)(A)(iii) applies and the 
disruption to the critical infrastructure is so substantial as to have 
a debilitating impact on national security, national economic security, 
or national public health or safety.
    (5) Section 5K2.14 (Public Welfare) provides an upward departure if 
national security, public health, or safety was significantly 
endangered.
    Is the factor adequately addressed through these provisions? Should 
the Commission increase the amount, or the scope, of these enhancements 
(or of the minimum offense level)? Should the Commission amend other 
guidelines to which these offenses are referenced to address this 
factor, such as by adding comparable enhancements (or minimum offense 
levels)? Should these upward departure provisions be incorporated as 
enhancements in the guidelines to which these offenses are referenced?

(I) Whether the Offense Was Intended to, or Had the Effect of, Creating 
a Threat to Public Health or Safety, Causing Injury to any Person, or 
Causing Death

    Issue for Comment:
    1. The Commission requests comment regarding the factor described 
in section 209(b)(9) of the Act (whether the offense was intended to, 
or had the effect of, creating a threat to public health or safety, 
causing injury to any person, or causing death). The guidelines 
currently address this factor as follows:
    (1) Section 2B1.1(b)(13) provides a 2-level enhancement, and a 
minimum offense level of 14, if the offense involved the conscious or 
reckless risk of death or serious bodily injury.
    (2) Section 2B3.2(b)(3)(B) provides a 3-level enhancement if the 
offense involved preparation to carry out a threat of serious bodily 
injury, and Sec.  2B3.2(b)(4) provides an enhancement if the victim 
sustained bodily injury, with the amount of the enhancement

[[Page 4809]]

ranging from 2 to 6 levels according to the seriousness of the injury.
    (3) Section 2B5.3(b)(5) provides a 2-level enhancement, and a 
minimum offense level of 13, if the offense involved the conscious or 
reckless risk of serious bodily injury.
    (4) Section 2B1.1, Application Note 19, provides an upward 
departure if the offense caused or risked substantial non-monetary 
harm, or in a case in which subsection (b)(15)(A)(iii) applies and the 
disruption to the critical infrastructure is so substantial as to have 
a debilitating impact on national security, national economic security, 
or national public health or safety.
    (5) Section 5K2.14 (Public Welfare) provides an upward departure if 
national security, public health, or safety was significantly 
endangered.
    Is the factor adequately addressed through these provisions? If 
not, should the Commission increase the amount, or the scope, of these 
enhancements (or minimum offense levels)? Should the Commission amend 
other guidelines to address this factor, such as by adding comparable 
enhancements (or minimum offense levels)? Should these upward departure 
provisions be incorporated as enhancements in the guidelines to which 
these offenses are referenced?

(J) Whether the Defendant Purposefully Involved a Juvenile in the 
Commission of the Offense

    Issue for Comment:
    1. The Commission requests comment regarding the factor described 
in section 209(b)(10) of the Act (whether the defendant purposefully 
involved a juvenile in the commission of the offense). The guidelines 
currently address this factor in Sec.  3B1.4 (Using a Minor to Commit a 
Crime), which provides a 2-level adjustment if the defendant used or 
attempted to use a minor to commit the offense or assist in avoiding 
detection of, or apprehension for, the offense.
    Is the factor adequately addressed by this adjustment? Should the 
Commission increase the amount, or the scope, of this adjustment? 
Should the Commission amend other guidelines to address this factor, 
such as by adding enhancements comparable to this adjustment?

(K) Whether the Defendant's Intent To Cause Damage or Intent To Obtain 
Personal Information Should Be Disaggregated and Considered Separately 
From the Other Factors Set Forth in Sec.  2B1.1(b)(15)

    Issue for Comment:
    1. The Commission requests comment regarding the factor described 
in section 209(b)(11) of the Act (whether the defendant's intent to 
cause damage or intent to obtain personal information should be 
disaggregated and considered separately from the other factors set 
forth in Sec.  2B1.1(b)(15)).
    For example, subsection (b)(15) currently applies only to offenses 
under 18 U.S.C. 1030. Should the intent to cause damage or intent to 
obtain personal information be disaggregated only within the context of 
18 U.S.C. 1030 cases? Should the defendant's intent to cause damage or 
intent to obtain personal information be a factor that applies to other 
offenses as well?

(L) Whether the Term ``Victim'' as Used in Sec.  2B1.1 Should Include 
Individuals Whose Privacy Was Violated as a Result of the Offense in 
Addition to Individuals Who Suffered Monetary Harm as a Result of the 
Offense

    Issue for Comment:
    1. The Commission requests comment regarding the factor described 
in section 209(b)(12) of the Act (whether the term ``victim'' as used 
in Sec.  2B1.1 should include individuals whose privacy was violated as 
a result of the offense in addition to individuals who suffered 
monetary harm as a result of the offense). In many cases, non-monetary 
harm (such as a violation of privacy rights) may be difficult or 
impossible to quantify. See, e.g., Sec.  2B1.1, comment. (backg'd.). 
For that reason, non-monetary harm is typically accounted for by the 
guidelines through a minimum offense level or an upward departure.
    The guidelines currently address this factor as follows:
    (1) Section 2B1.1, Application Note 19, provides an upward 
departure if the offense resulted in a substantial invasion of a 
privacy interest. It also provides an upward departure if, in a case 
involving access devices or unlawfully produced or unlawfully obtained 
means of identification, (i) the offense caused substantial harm to the 
victim's reputation or credit record, or the victim suffered a 
substantial inconvenience related to repairing the victim's reputation 
or a damaged credit record; (ii) an individual whose means of 
identification the defendant used to obtain unlawful means of 
identification is erroneously arrested or denied a job because an 
arrest record has been made in that individual's name; or (iii) the 
defendant produced or obtained numerous means of identification with 
respect to one individual and essentially assumed that individual's 
identity.
    (2) Section 2H3.1, Application Note 5, provides an upward departure 
if the offense involved private information, or resulted in a 
substantial invasion of privacy interest.
    Is the factor adequately addressed through these upward departure 
provisions? Alternatively, should these upward departure provisions be 
incorporated as enhancements in the guidelines to which these offenses 
are referenced?
    The definition of ``victim'' in Sec.  2B1.1, Application Note 1, 
currently applies only to a person who sustained any part of the 
``actual loss'' or to an individual who sustained bodily injury. Should 
the Commission modify that definition to also apply to an individual 
whose privacy was violated? If so, what standard should be used to 
determine whether an individual's privacy was violated? Should the 
guidelines seek to quantify the loss of such an individual, for 
purposes of the loss table in subsection (b)(1)? If so, what standard 
would be used to quantify the loss? For example, in a case in which a 
computer-related invasion of privacy occurs, should the guidelines 
include a special rule for including and quantifying (or providing a 
stipulated amount for) the loss, such as the special rule in 
Application Note 3(F)(i) relating to credit cards? If the Commission 
were to revise the applicability of Sec.  2B1.1 to individuals whose 
privacy was violated, should the Commission do so for all offenses 
under Sec.  2B1.1, or only for certain categories of cases, such as 
cases involving identity theft, cases involving computers, or cases 
involving violations of certain specified statutes?
    Should the definition of ``reasonably foreseeable pecuniary harm'' 
in Sec.  2B1.1 be amended to expressly include such harm as the 
reasonably foreseeable costs to the victim of correcting business, 
financial, and government records that erroneously indicate the 
victim's responsibility for particular transactions or applications; 
the reasonably foreseeable costs of repairing any computer data, 
program, system, or information that was altered or impaired in 
connection with the offense; and the value of the time reasonably spent 
by the victim in an attempt to remediate the intended or actual harm 
incurred by the victim from the offense? Should the Commission make 
such a change only for identity theft cases, such as by amending Sec.  
2B1.1, Application Note 3(A)(v), to provide a special rule for identity 
theft cases? Alternatively, should the Commission make such a change 
for all cases under Sec.  2B1.1, such as by amending Application Note 
3(A)(iv), or for some other category of cases?

[[Page 4810]]

(M) Whether the Defendant Disclosed Personal Information Obtained 
During the Commission of the Offense

    Issue for Comment:
    1. The Commission requests comment regarding the factor described 
in section 209(b)(13) of the Act (whether the defendant disclosed 
personal information obtained during the commission of the offense). 
The guidelines currently address this factor as follows:
    (1) Section 2B1.1, Application Note 19, provides an upward 
departure if the offense resulted in a substantial invasion of a 
privacy interest.
    (2) Section 2H3.1, Application Note 5, provides an upward departure 
if the offense involved private information or resulted in a 
substantial invasion of a privacy interest.
    (3) Section 2B1.1(b)(15)(A) provides a 2-level enhancement if an 
offense under 18 U.S.C.1030 involved an intent to obtain personal 
information.
    (4) Section 2H3.1(b)(2)(B) provides a 10-level enhancement if an 
offense under 18 U.S.C.119 (protection of individuals performing 
certain official duties) involved the use of a computer to make 
restricted personal information about a covered person publicly 
available.
    Is the factor adequately addressed through these provisions? Should 
the Commission increase the amount, or the scope, of these 
enhancements? Should the Commission amend other guidelines to which 
these offenses are referenced to address this factor, such as by adding 
comparable enhancements? Should these upward departure provisions be 
incorporated as enhancements in the guidelines to which these offenses 
are referenced?
    If the Commission were to amend the guidelines to more adequately 
address this factor, what should constitute a ``disclosure'', and what 
should constitute ``personal information''?

(N) Other Issues Relating to the Directive Not Otherwise Addressed 
Above

    Issues for Comment:
    1. The Commission requests comment regarding section 209(a) of the 
Act, which directs the Commission to review its guidelines and policy 
statements applicable to persons convicted of offenses under 18 U.S.C. 
1028 (fraud and related activity in connection with identification 
documents, authentication features, and information), 1028A (aggravated 
identity theft), 1030 (fraud and related activity in connection with 
computers), 2511 (interception and disclosure of wire, oral, or 
electronic communications prohibited), and 2701 (unlawful access to 
stored communications), and any other relevant provisions of law, in 
order to reflect the intent of Congress that such penalties be 
increased in comparison to those currently provided by such guidelines 
and policy statements. Section 209(b) of the Act directed the 
Commission, in determining the appropriate sentence for those offenses, 
to ``consider the extent to which the current guidelines and policy 
statements may or may not adequately account for the following factors 
in order to create an effective deterrent to computer crime and the 
theft or misuse of personally identifiable data'', and provided a list 
of factors. Other than the specific factors set forth in section 
209(b), which are addressed more specifically in the issues for comment 
set forth above, are there aggravating or mitigating circumstances 
existing in cases involving those offenses that might justify 
additional amendments to the guidelines?
    2. Should the Commission create a new guideline specifically for 
identity theft cases? If so, what should the new guideline provide?

(O) Technical Amendments

    Synopsis of Proposed Amendment: The proposed amendment makes two 
technical changes. First, it corrects several places in the Guidelines 
Manual that erroneously refer to subsection ``(b)(15)(iii)'' of Sec.  
2B1.1; the reference should be to subsection (b)(15)(A)(iii).
    Second, it clarifies Application Note 2(B) of Sec.  3B1.3 (Abuse of 
Position of Trust or Use of Special Skill). There is a concern that 
Application Note 2(B) is internally inconsistent in a case in which the 
defendant, as discussed in the example in Application Note 2(B)(i), is 
an employee of a state motor vehicle department who knowingly issues 
without proper authority a driver's license based on false, incomplete, 
or misleading information. Arguably, to ``obtain'' or ``use'' a means 
of identification (the terms used in the first sentence of Application 
Note 2(B)) does not necessarily include to ``issue'' a means of 
identification (the term used in the example in Application Note 
2(B)(i)). The proposed amendment clarifies the first sentence of 
Application Note 2(B) so that it expressly covers not only obtaining or 
using, but also issuing or transferring, a means of identification.
    Proposed Amendment:
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 13(B) by inserting ``(A)'' after ``(15)'' each place it 
appears.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 19(B) by inserting ``(A)'' after (15)''.
    The Commentary to Sec.  3B1.3 captioned ``Application Notes'' is 
amended in Note 2(B) by inserting ``, transfer, or issue'' after 
``obtain''.

2. Online Pharmacy

    Synopsis of Proposed Amendment: This proposed amendment addresses 
changes made by the Ryan Haight Online Pharmacy Consumer Protection Act 
of 2008, Public Law 110-465 (the ``Act''). The Act amends the 
Controlled Substances Act (21 U.S.C. 801 et seq.) to create two new 
offenses involving controlled substances. The first is 21 U.S.C. 841(h) 
(Offenses Involving Dispensing of Controlled Substances by Means of the 
Internet), which prohibits the delivery, distribution, or dispensing of 
controlled substances over the Internet without a valid prescription. 
The applicable statutory maximum term of imprisonment is determined 
based upon the controlled substance being distributed. The second new 
offense is 21 U.S.C. 843(c)(2)(A) (Prohibiting the Use of the Internet 
to Advertise for Sale a Controlled Substance), which prohibits the use 
of the Internet to advertise for sale a controlled substance. This 
offense has a statutory maximum term of imprisonment of four years.
    In addition to the new offenses, the Act increased the statutory 
maximum terms of imprisonment for all Schedule III controlled substance 
offenses (from 5 years to 10 years), for all Schedule IV controlled 
substance offenses (from 3 years to 5 years), and for Schedule V 
controlled substance offenses if the offense is committed after a prior 
drug conviction (from 2 years to 5 years). The Act added a sentencing 
enhancement for Schedule III controlled substance offenses where 
``death or serious bodily injury results from the use of such 
substance.'' The Act also includes a directive to the Commission that 
states:
    The United States Sentencing Commission, in determining whether to 
amend, or establish new, guidelines or policy statements, to conform 
the Federal sentencing guidelines and policy statements to this Act and 
the amendments made by this Act, should not construe any change in the 
maximum penalty for a violation involving a controlled substance in a 
particular schedule as being the sole reason to amend, or establish a 
new, guideline or policy statement.
    First, the proposed amendment provides three options for 
incorporating the new sentencing enhancement for cases involving 
Schedule III controlled substances where ``death or serious

[[Page 4811]]

bodily injury results from the use of such substance.'' The enhancement 
carries a statutory maximum term of imprisonment of 15 years. Option 1 
proposes a new alternative base offense level at Sec.  2D1.1 (Unlawful 
Manufacturing, Importing, Exporting, or Trafficking (Including 
Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy) of [12]-[34]. Option 2 proposes a new specific offense 
characteristic at Sec.  2D1.1 that provides an enhancement of [4]-[11] 
levels; Option 2 also includes, as a sub-option, a minimum offense 
level of [12]-[34]. Option 3 proposes a new invited upward departure 
provision for Sec.  2D1.1.
    Second, the proposed amendment revises the title of Sec.  2D3.1 
(Regulatory Offenses Involving Registration Numbers; Unlawful 
Advertising Relating to Schedule I Substances; Attempt or Conspiracy) 
to reflect the new offense at 21 U.S.C.843(c)(2)(A) (Prohibiting the 
Use of the Internet to Advertise for Sale a Controlled Substance). The 
new offense is already referenced in Appendix A (Statutory Index) to 
Sec.  2D3.1.
    Third, the proposed amendment amends Appendix A (Statutory Index) 
to refer the new offense at 21 U.S.C. 841(h) (Offenses Involving 
Dispensing of Controlled Substances by Means of the Internet) to Sec.  
2D1.1.
    Several issues for comment are also included.
    Proposed Amendment:
    [Option 1:
    Section 2D1.1(a) is amended by redesignating subdivision (3) as 
subdivision (4); and by inserting after subdivision (2) the following 
new subdivision:
    ``(3)[12]-[34], if the defendant is convicted under 21 U.S.C. 
841(b)(1)(E) or 21 U.S.C. 960(b)(5), and the offense of conviction 
establishes that death or serious bodily injury resulted from the use 
of the substance; or''.]
    [Option 2:
    Section 2D1.1(b) is amended by redesignating subdivision (11) as 
subdivision (12); and by inserting after subdivision (10) the following 
new subdivision:
    ``(11) If the defendant is convicted under 21 U.S.C. 841(b)(1)(E) 
or 21 U.S.C. 960(b)(5), and the offense of conviction establishes that 
death or serious bodily injury resulted from the use of the substance, 
increase by [4]-[11] levels. [If the resulting offense level is less 
than level [12]-[34], increase to level [12]-[34].]''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 21 by striking ``(11)'' and inserting ``(12)'' each 
place it appears.]
    [Option 3:
    The Commentary to Sec.  2D1.1 captioned ``Application Notes is 
amended by adding at the end the following:
    ``27. Upward Departure Provision.--If the defendant is convicted 
under 21 U.S.C.841(b)(1)(E) or 21 U.S.C.960(b)(5), and the offense of 
conviction establishes that death or serious bodily injury resulted 
from the use of the substance, an upward departure may be 
warranted.''.]
    Section 2D3.1 is amended in the heading by striking ``Schedule I'' 
and inserting ``Scheduled''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 21 U.S.C. 841(g) the following:
    ``21 U.S.C. 841(h) 2D1.1''.
    Issues for Comment:
    1. The Commission requests comment regarding whether offenses 
involving Schedule III substances are adequately addressed by the 
guidelines. The Ryan Haight Online Pharmacy Consumer Protection Act of 
2008, Public Law 110-465 (the ``Act''), increased the statutory maximum 
term of imprisonment for those offenses from 5 years to 10 years. 
Should the Commission revise the guidelines to more adequately address 
these offenses and, if s