BAC2210-40
UNITED STATES SENTENCING COMMISSION
Amendments to the Sentencing Guidelines for United States Courts
AGENCY: United States Sentencing Commission
ACTION: Notice of submission to Congress of amendments to the sentencing guidelines.
_________________________________________________________________
SUMMARY: Pursuant to its authority under section 994(p) of title 28, United States Code, the United States Sentencing Commission, on May 1, 1996, submitted to the Congress amendments to the sentencing guidelines, policy statements, and official commentary together with reasons for the amendments. Pursuant to 28 U.S.C. 994(p), the Commission has specified an effective date of November 1, 1996, for these amendments.
ADDRESSES: Comments should be sent to: United States Sentencing
Commission, One Columbus Circle, N.E., Suite 2-500, South Lobby, Washington, DC 20002-8002, Attn: Public Information.
FOR FURTHER INFORMATION CONTACT: Mike Courlander, Public Information Specialist, telephone: (202) 273-4590.
SUPPLEMENTARY INFORMATION: The United States Sentencing Commission, an independent agency in the judicial branch of the U.S. Government, is empowered by 28 U.S.C. 994(a) to promulgate sentencing guidelines and policy statements for federal sentencing courts. The statute further directs the Commission periodically to review and revise guidelines previously promulgated and authorizes it to submit guideline amendments to the Congress no later than the first day of May each year. See 28 U.S.C. 994(o), (p). Absent action of Congress to the contrary, the amendments become effective on the date specified by the Commission (i.e., November 1, 1996) by operation of law.
Notice of the amendments submitted to the Congress on April 30, 1996, was published in the Federal Registers of February 23, 1996 (61 Fed. Reg. 7037) and March 15, 1996 (61 Fed. Reg. 10835). A public hearing on the proposed amendments was held in Washington, DC, on March 11, 1996. After review of the hearing testimony and additional public comment, the Commission promulgated the amendments set forth below, each having been approved by at least four voting Commissioners.
In connection with its ongoing process of guideline review, the Commission welcomes comment on any aspect of the sentencing guidelines, policy statements, and official commentary.
Authority: 28 U.S.C. 994(a), (o), (p).
Richard P. Conaboy
Chairman
AMENDMENTS TO THE SENTENCING GUIDELINES
Pursuant to section 994(p) of title 28, United States Code, the United States Sentencing Commission hereby submits to the Congress the following amendments to the sentencing guidelines and the reasons therefor. As authorized by such section, the Commission specifies an effective date of November 1, 1996, for these amendments.
1. Amendment: Section 2G2.1(a) is amended by striking "25" and inserting "27".
Section 2G2.1(b)(1) is amended to read as follows:
"(1) If the offense involved a victim who had (A) not attained the age of twelve years, increase by 4 levels; or (B) attained the age of twelve years but not attained the age of sixteen years, increase by 2 levels.".
Section 2G2.1(b) is amended by adding at the end the following:
"(3) If a computer was used to solicit participation by or with a minor in sexually explicit conduct for the purpose of producing sexually explicit material, increase by 2 levels.".
The Commentary to 2G2.1 captioned "Statutory Provisions" is amended by striking " 2251(a), (b), (c)(1)(B)" and inserting " 2251(a), (b), (c)(1)(B), 2258(a), (b)".
Section 2G2.2(a) is amended by striking "15" and inserting "17".
Section 2G2.2(b) is amended by adding at the end the following:
"(5) If a computer was used for the transmission of the material or a notice or advertisement of the material, increase by 2 levels.".
The Commentary to 2G2.2 captioned "Statutory Provisions" is amended by inserting ", 2258(a), (b)" after "2252(a)(1)-(3)".
The Commentary to 2G2.2 captioned "Application Notes" is amended by striking Notes 4 and 5; and by amending Notes 1 and 2 to read as follows:
"1. For purposes of this guideline--
"'Distribution' includes any act related to distribution for pecuniary gain, including production, transportation, and possession with intent to distribute.
"'Pattern of activity involving the sexual abuse or exploitation of a minor' means any combination of two or more separate instances of the sexual abuse or sexual exploitation of a minor by the defendant, whether or not the abuse or exploitation (A) occurred during the course of the offense, (B) involved the same or different victims, or (C) resulted in a conviction for such conduct.
"'Sexual abuse or exploitation' means conduct constituting criminal sexual abuse of a minor, sexual exploitation of a minor, abusive sexual contact of a minor, any similar offense under state law, or an attempt or conspiracy to commit any of the above offenses. 'Sexual abuse or exploitation' does not include trafficking in material relating to the sexual abuse or exploitation of a minor.
"'Sexually explicit conduct' has the meaning set forth in 18 U.S.C. 2256.
"2. If the defendant engaged in the sexual abuse or exploitation of a minor at any time (whether or not such abuse or exploitation occurred during the course of the offense or resulted in a conviction for such conduct) and subsection (b)(4) does not apply, an upward departure may be warranted. In addition, an upward departure may be warranted if the defendant received an enhancement under subsection (b)(4) but that enhancement does not adequately reflect the seriousness of the sexual abuse or exploitation involved.
"Prior convictions taken into account under subsection (b)(4) are also counted for purposes of determining criminal history points pursuant to Chapter Four, Part A (Criminal History).".
Section 2G2.4(a) is amended by striking "13" and inserting "15".
Section 2G2.4(b) is amended by adding at the end the following:
"(3) If the defendant's possession of the material resulted from the defendant's use of a computer, increase by 2 levels.".
Reason for Amendment: This amendment implements the congressional directives in section 2 of the Sex Crimes Against Children Prevention Act of 1995, Pub. L. No. 104-71, 109 Stat. 774, by providing a two-level enhancement for offenses involving the sexual exploitation of minors under sections 2251 and 2252 of title 18, United States Code. The two-level enhancement is provided in the base offense levels under 2G2.1, 2G2.2, and 2G2.4.
This amendment also implements the directive in section 3 of such Act by providing a two-level enhancement for offenses under sections 2251(c)(1)(A) and 2252 of title 18, United States Code, if a computer was used to transmit certain notices or advertisements of material involving minors engaged in sexually explicit conduct or to transport or ship that material. The enhancement in 2G2.2(b)(5) applies to the transmission of the material or of the notice or advertisement of the material. The enhancement in 2G2.4(b)(3) applies only if the defendant's possession of the material resulted from the defendant's use of a computer. In addition to these congressionally directed enhancements, the amendment adds a two-level enhancement under 2G2.1(b)(3) if a computer was used to solicit participation in sexually explicit conduct by or with a minor for the purpose of producing sexually explicit material, in violation of 18 U.S.C.
2251(c)(1)(B).
This amendment also addresses several issues in respect to Application Notes 4 and 5 of the Commentary to 2G2.2. First, the amendment revises the definition of "pattern of activity involving the sexual abuse or exploitation of a minor" to clarify that "sexual abuse or exploitation," for purposes of 2G2.2(b)(4), requires that the defendant personally had participated in such conduct. The amendment defines "sexual abuse or exploitation" to mean conduct constituting criminal sexual abuse, sexual exploitation, or abusive sexual contact and to exclude trafficking in child pornography. These revisions are consistent with United States v. Chapman, 60 F.3d 894 (1st Cir. 1995) and United States v. Ketcham, No. 95-5002, 1996 WL 141628 (3d Cir. Mar. 29, 1996), both of which held that the defendant's transportation or distribution of child pornography is not sexual exploitation within the meaning of the "pattern of activity" enhancement in 2G2.2(b)(4). Second, the amendment clarifies that the "pattern of activity" may include acts of sexual abuse or exploitation that were not committed during the course of the offense or that did not result in a conviction. This revision responds in part to the holding in Chapman, 60 F.3d at 901, that the "pattern of activity" enhancement is inapplicable to past sexual abuse or exploitation unrelated to the offense of conviction. The amended language provides that conduct involving the defendant's sexual abuse or exploitation of a minor may be considered even if that conduct did not occur as part of the offense of conviction. Accordingly, the conduct considered for purposes of the "pattern of activity" enhancement is broader than the scope of relevant conduct typically considered under 1B1.3 (Relevant Conduct). Third, the amendment revises the departure provision of Application Note 5 to specify that an upward departure may be warranted if the defendant (1) did not engage in a "pattern of activity" but nevertheless abused a minor at any time, or (2) engaged in a "pattern of activity" but the enhancement does not adequately reflect the seriousness of the sexual abuse or exploitation. Fourth, the amendment clarifies that prior convictions counted as part of the "pattern of activity" also may be counted as part of the defendant's criminal history under Chapter Four, if those convictions meet the criteria set forth in the relevant guidelines of that chapter.
The amendment also makes the "Statutory Provisions" of the Commentary to 2G2.1 and 2G2.2 more comprehensive by adding
18 U.S.C. 2258(a) and (b) to the list of provisions covered by those guidelines.
2. Amendment: Chapter 2, Part G, Subpart 1 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 had (A) not attained the age of twelve years, increase by 9 levels; (B) attained the age of twelve years but not attained the age of sixteen years, increase by 7 levels; or (C) attained the age of sixteen years but not attained the age of eighteen years, increase by 5 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
"(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 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 Instruction
"(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.
"Commentary
"Statutory Provisions: 8 U.S.C. 1328; 18 U.S.C. 2421, 2422, 2423(a).
"Application Notes:
"1. For purposes of this guideline--
"'Coercion' includes any form of conduct that negates the voluntariness of the behavior of the victim. Coercion 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 if the drug or alcohol was voluntarily taken.
"'Promoting prostitution or prohibited sexual conduct' means (A) transporting a person for the purpose of prostitution or prohibited sexual conduct, or (B) persuading, inducing, enticing, or coercing a person to engage in, or travel for the purpose of engaging in, prostitution or prohibited sexual conduct.
"'Sexually explicit conduct' has the meaning set forth in 18 U.S.C. 2256.
"'Victim' means a person transported, persuaded, induced, enticed, or coerced to engage in, or travel for the purpose of engaging in, prostitution or prohibited sexual conduct, whether or not the person consented to the prostitution or prohibited sexual conduct.
"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. 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 another victim.
"4. For the purposes of Chapter Three, Part D (Multiple Counts), each person transported, persuaded, induced, enticed, or coerced to engage in, or travel 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). In addition, subsection (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 victim, whether specifically cited in the count of conviction or not, each such victim 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.".
Chapter 1, Part A, Subpart 4(b) is amended in the fourth paragraph by striking the third sentence.
Section 3D1.2(d) is amended in the third paragraph by striking "2G1.2,".
Appendix A is amended--
in the line referenced to 8 U.S.C. 1328, by striking ", 2G1.2";
in the line referenced to 18 U.S.C. 2421, by striking ", 2G1.2";
in the line referenced to 18 U.S.C. 2422, by striking ", 2G1.2"; and
in the line referenced to 18 U.S.C. 2423(a), by striking "2G1.2" and inserting "2G1.1".
Reason for Amendment: This is a three-part amendment. First, this amendment implements the congressional directive in section 4 of the Sex Crimes Against Children Prevention Act of 1995, Pub. L. No. 104-71, 109 Stat. 774, by providing a three-level enhancement for offenses involving the transportation of minors with intent to engage in prostitution or other prohibited sexual conduct under 18 U.S.C. 2423(a). The three-level enhancement is provided in the specific offense characteristic in subsection (b)(2) related to the age of the victim.
Second, this amendment addresses 18 U.S.C. 2422(b), a new offense created by section 508 of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56. That offense makes it unlawful, in interstate or foreign commerce, including through 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 other prohibited sexual conduct. The amendment brings this new offense within the scope of the consolidated, expanded guideline. As revised, the guideline is broadly applicable to offenses that involve "promoting prostitution or prohibited sexual conduct." That term is defined to encompass conduct covered by the new Telecommunications Act offense as well as conduct previously covered by the guideline; i.e., transporting a person, or inducing a person to travel, for the purpose of prostitution or other prohibited sexual conduct.
Third, this amendment 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) in furtherance of the Commission's goal to simplify the operation of the guidelines. Because the consolidated guideline covers both offenses involving adult victims and those involving minors, a two-level increase is provided in the specific offense characteristic related to the age of the victim to increase the offense level when a minor is involved. The two-level increase is in addition to the three-level enhancement directed to be made by the Sex Crimes Against Children Prevention Act of 1995. In addition, the consolidated guideline defines the term "victim" and incorporates the cross references of 2G1.2 into the consolidated guideline.
The amendment also clarifies that the "Statutory Provisions" in the Commentary of the consolidated guideline cover offenses under 18 U.S.C. 2423(a)(but not 2423(b), which is referenced in Appendix A to 2A3.1, 2A3.2, and 2A3.3).
United States Sentencing Commission