Notice of proposed amendment to sentencing guidelines and commentary

BAC2210-40

UNITED STATES SENTENCING COMMISSION

Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission

ACTION: Notice of proposed amendment to sentencing guidelines and commentary. Request for public comment.

SUMMARY: The Commission is considering promulgating an amendment to the sentencing guidelines and commentary. This notice sets forth the proposed amendment and a synopsis of the issues addressed by the amendment as well as an additional issue for comment. The Commission seeks comment on the proposed amendment, alternative proposed amendments, and any other aspect of the sentencing guidelines, policy statements, and commentary. The Commission may submit amendments to the Congress not later than May 1, 1996.

DATES: Written public comment on the amendment and issue for comment set forth in this notice should be received by the Commission not later than March 29, 1996, in order to be considered by the Commission in the promulgation of amendments and in the possible submission of those amendments to the Congress by May 1, 1996.

ADDRESS: Public comment should be sent to: United States Sentencing Commission, One Columbus Circle, N.E., Suite 2-500, Washington, D.C. 20002-8002, Attention: Public Information.

FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Information Specialist, Telephone: (202) 273-4590.

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 sentencing courts pursuant to 28 U.S.C. 994(a). The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. 994(o). If guideline amendments are promulgated, those amendments are submitted to Congress not later than the first day of May pursuant to 28 U.S.C. 994(p).

The proposed amendment as presented in this notice contains bracketed text to indicate alternative proposals; for example, a proposed enhancement of [3][4][5] levels means a proposed enhancement of either three, four, or five levels. The Commission invites comment and suggestions for appropriate policy choices where bracketed text is indicated.

Previously this year, the Commission published proposed amendments for consideration in this year's amendment cycle in order to implement congressional directives in the Sex Crimes Against Children Prevention Act of 1995. (See the notice dated February 23, 1996, 61 F.R. 7037-7039). The amendment presented in this notice is proposed in order to address 18 U.S.C. 2422(b), a new offense created by the Telecommunications Act of 1996. The amendment, which is proposed to be made to 2G1.2 (Transportation of a Minor for the Purpose of Prostitution or Prohibited Sexual Conduct), incorporates the amendments already proposed this year to implement section 4 of the Sex Crimes Against Children Prevention Act of 1995.

Authority. 28 U.S.C. 994(a), (o), (p), (x).

Richard P. Conaboy,
Chairman

Sex Offenses Against Minors

Chapter Two, Part G (Offenses Involving Prostitution, Sexual Exploitation of Minors, and Obscenity)

1. Synopsis of Proposed Amendment: This is a two-part amendment. First, the amendment implements the directive contained in section 4 of the Sex Crimes Against Children Prevention Act of 1995, which directs the Commission to increase the base offense level for an offense under section 2423(a) of title 18, United States Code, by at least three levels.

Second, the amendment addresses 18 U.S.C. 2422(b), a new offense created by section 508 of the Telecommunications Act of 1996. That offense makes it unlawful, through the use of any facility or means of interstate or foreign commerce, including the mail, or within the special maritime or territorial jurisdiction of the United States, to knowingly persuade, induce, entice, or coerce an individual under the age of 18 years to engage in prostitution or any sexual act for which a person may be criminally prosecuted. Currently, 2G1.2 applies to transporting a person for the purpose of prostitution or prohibited sexual conduct and to persuading, inducing, enticing, and coercing a person to travel for either such purpose. By proposing to make 2G1.2 applicable to the new offense under 18 U.S.C. 2422(b), this amendment would expand the scope of 2G1.2 to include an offense that involves promoting prostitution or prohibited sexual conduct through a means other than transportation or travel.

Two options are shown. Each option addresses the issues described in the preceding paragraphs. In an effort to further the Commission's goal of simplifying the operation of the guidelines, Option 2 also consolidates 2G1.1 (Transportation for the Purpose of Prostitution or Prohibited Sexual Conduct) and 2G1.2 (Transportation of a Minor for the Purpose of Prostitution or Prohibited Sexual Conduct). As proposed under Option 2, the base offense level for offenses covered by 2G1.2 is reduced from the current level of 16 to a proposed level of 14 in order to effectuate the consolidation of 2G1.2 and 2G1.1 (which currently has a base offense level of 14). However, Option 2 does not reduce the overall offense level for offenses covered by 2G1.2 because the specific offense characteristic related to the age of the victim is proposed to be increased by two levels to compensate for the reduction in the base offense level. (That two-level increase is in addition to the three-level increase directed to be made by the Sex Crimes Against Children Prevention Act of 1995, as described above.) Additionally under Option 2, the specific offense characteristics and cross references that now apply only to 2G1.2 are added to 2G1.1.

(A) Proposed Amendment - Option 1:

Section 2G1.2 is amended to read as follows:

"2G1.2. Promoting Prostitution Involving a Minor or Prohibited Sexual Conduct Involving a Minor

"(a) Base Offense Level: [19][20][21]

"(b) Specific Offense Characteristics

"(1) If the offense involved the use of physical force, or coercion by threats or drugs or in any manner, increase by 4 levels.

"(2) If the offense involved a victim under the age of twelve years, increase by 4 levels.

"(3) If the offense involved a victim at least twelve years of age but under the age of sixteen years, increase by 2 levels.

"(4) If (A) the defendant was a parent, relative, or legal guardian of the victim involved in the offense, and the victim was less than eighteen years of age, or (B) the victim involved in the offense was less than eighteen years of age and was otherwise in the custody, care, or supervisory control of the defendant, increase by 2 levels.

"(c) Cross References

"(1) If the offense involved causing, transporting, permitting, or offering or seeking by notice or advertisement, a person less than eighteen years of age to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, apply 2G2.1 (Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material; Custodian Permitting Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage in Production).

"(2) If the offense involved criminal sexual abuse, attempted criminal sexual abuse, or assault with intent to commit criminal sexual abuse, apply 2A3.1 (Criminal Sexual Abuse; Attempt or Assault with the Intent to Commit Criminal Sexual Abuse).

"(3) If neither subsection (c)(1) nor (c)(2) is applicable, and the offense did not involve promoting prostitution, apply 2A3.2 (Criminal Sexual Abuse of a Minor or Attempt to Commit Such Acts) or 2A3.4 (Abusive Sexual Contact or Attempt to Commit Abusive Sexual Contact), as appropriate.

"(d) Special Instructions

"(1) If the offense involved more than one victim, Chapter Three, Part D (Multiple Counts) shall be applied as if the promoting of prostitution or prohibited sexual conduct in respect to each victim had been contained in a separate count of conviction.

"(2) For the purposes of this guideline--

"(A) 'Coercion' includes any form of behavior that negates the voluntariness of the behavior of the victim.

(B) 'Promoting prostitution or prohibited sexual conduct' means (i) transporting a person for the purpose of prostitution or prohibited sexual conduct, or (ii) persuading, inducing, enticing, or coercing a person to travel for the purpose of, or to engage in, prostitution or prohibited sexual conduct.

"(C) 'Sexually explicit conduct' has the meaning set forth in 18 U.S.C. 2256.

"(D) 'Victim' means a person transported, persuaded, induced, enticed, or coerced to engage in prostitution or prohibited sexual conduct, whether or not the person consented to the prostitution or prohibited sexual conduct.

"Commentary

"Statutory Provisions: 8 U.S.C. 1328; 18 U.S.C. 2421, 2422, 2423(a).

"Application Notes:

"1. For the purposes of Chapter Three, Part D (Multiple Counts), each person transported, persuaded, induced, enticed, or coerced to engage in prostitution or prohibited sexual conduct is to be treated as a separate victim. Consequently, multiple counts involving more than one victim are not to be grouped together under 3D1.2 (Groups of Closely-Related Counts). Special instruction (d)(1) directs that if the relevant conduct of an offense of conviction includes the promoting of prostitution or prohibited sexual conduct in respect to more than one person, whether specifically cited in the count of conviction or not, each such person shall be treated as if contained in a separate count of conviction.

"2. The enhancement for physical force, or coercion, anticipates no bodily injury. If bodily injury results, an upward departure may be warranted. See Chapter Five, Part K (Departures).

"3. Coercion, as defined in this guideline, would apply, for example, where the ability of the victim to appraise or control conduct was substantially impaired by drugs or alcohol.

"4. Subsection (b)(4) is intended to have broad application and includes offenses involving a victim less than eighteen years of age entrusted to the defendant, whether temporarily or permanently. For example, teachers, day care providers, baby-sitters, or other temporary caretakers are among those who would be subject to this enhancement. In determining whether to apply this adjustment, the court should look to the actual relationship that existed between the defendant and the victim and not simply to the legal status of the defendant-victim relationship.

"5. If the adjustment in subsection (b)(4) applies, do not apply 3B1.3 (Abuse of Position of Trust or Use of Special Skill).

"6. The cross reference in subsection (c)(1) is to be construed broadly to include all instances where the offense involved employing, using, persuading, inducing, enticing, coercing, transporting, permitting, or offering or seeking by notice or advertisement, a person less than eighteen years of age to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct.".

(B) Proposed Amendment - Option 2 (Consolidation of 2G1.1 and 2G1.2):

Subpart One of Part G of Chapter Two is amended by striking 2G1.1 and 2G1.2 and inserting the following:

"2G1.1. Promoting Prostitution or Prohibited Sexual Conduct

"(a) Base Offense Level: 14

"(b) Specific Offense Characteristics

"(1) If the offense involved the use of physical force, or coercion by threats or drugs or in any manner, increase by 4 levels.

"(2) If the offense involved a victim who has (A) not attained the age of twelve years, increase by [9][10][11] levels; (B) attained the age of twelve years but not attained the age of sixteen years, increase by [7][8][9] levels; or (C) attained the age of sixteen years but not attained the age of eighteen years, increase by [5][6][7] levels.

"(3) If subsection (b)(2) applies, and (A) the defendant was a parent, relative, or legal guardian of the victim, or (B) the victim was otherwise in the custody, care, or supervisory control of the defendant, increase by 2 levels.

"(c) Cross References

"(3) If the offense did not involve promoting prostitution, and neither subsection (c)(1) nor (c)(2) is applicable, use the offense guideline applicable to the underlying prohibited sexual conduct. If no offense guideline is applicable to the prohibited sexual conduct, apply 2X5.1 (Other Offenses).

"(d) Special Instructions

"(2) For the purposes of this guideline--

"(A) 'Coercion' includes any form of conduct that negates the voluntariness of the behavior of the victim.

"(B) 'Promoting prostitution or prohibited sexual conduct' means (i) transporting a person for the purpose of prostitution or prohibited sexual conduct, or (ii) persuading, inducing, enticing, or coercing a person to travel for the purpose of, or to engage in, prostitution or prohibited sexual conduct.

"(C) 'Sexually explicit conduct' has the meaning set forth in 18 U.S.C. 2256.

"Commentary

"Statutory Provisions: 8 U.S.C. 1328; 18 U.S.C. 2421, 2422, 2423(a).

"Application Notes:

"1. The enhancement for physical force, or coercion, anticipates no bodily injury. If bodily injury results, an upward departure may be warranted. See Chapter Five, Part K (Departures).

"2. Coercion, as defined in this guideline, would apply, for example, where the ability of the victim to appraise or control conduct was substantially impaired by drugs or alcohol. In the case of an adult victim, rather than a victim less than eighteen years of age, this characteristic generally will not apply where the alcohol or drug was voluntarily taken.

"3. For the purposes of 3B1.1 (Aggravating Role), a victim, as defined in this guideline, is considered a participant only if that victim assisted in the promoting of prostitution or prohibited sexual conduct in respect to others.

"4. For the purposes of Chapter Three, Part D (Multiple Counts), each person transported, persuaded, induced, enticed, or coerced to engage in prostitution or prohibited sexual conduct is to be treated as a separate victim. Consequently, multiple counts involving more than one victim are not to be grouped together under 3D1.2 (Groups of Closely Related Counts). Special instruction (c)(1) directs that if the relevant conduct of an offense of conviction includes the promoting of prostitution or prohibited sexual conduct in respect to more than one person, whether specifically cited in the count of conviction or not, each such person shall be treated as if contained in a separate count of conviction.

"5. Subsection (b)(3) is intended to have broad application and includes offenses involving a victim less than eighteen years of age entrusted to the defendant, whether temporarily or permanently. For example, teachers, day care providers, baby-sitters, or other temporary caretakers are among those who would be subject to this enhancement. In determining whether to apply this adjustment, the court should look to the actual relationship that existed between the defendant and the victim and not simply to the legal status of the defendant-victim relationship.

"6. If the adjustment in subsection (b)(3) applies, do not apply 3B1.3 (Abuse of Position of Trust or Use of Special Skill).

"7. The cross reference in subsection (c)(1) is to be construed broadly to include all instances where the offense involved employing, using, persuading, inducing, enticing, coercing, transporting, permitting, or offering or seeking by notice or advertisement, a person less than eighteen years of age to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct.

"8. The cross reference at subsection (c)(3) addresses the unusual case in which the offense did not involve promoting prostitution and neither subsection (c)(1) nor (c)(2) is applicable. In such case, the guideline for the underlying prohibited sexual conduct is to be used, e.g., 2A3.2 (Criminal Sexual Abuse of a Minor (Statutory Rape) or Attempt to Commit Such Acts) or 2A3.4 (Abusive Sexual Contact or Attempt to Commit Abusive Sexual Contact). If there is no offense guideline for the underlying prohibited sexual conduct, 2X5.1 (Other Offenses) is to be used.".

United States Sentencing Commission