Sentencing Guidelines for United States Courts

SENTENCING COMMISSION

Sentencing Guidelines for United States Courts

AGENCY:

United States Sentencing Commission.

ACTION:

Notice of (A) proposed temporary, emergency amendments to sentencing guidelines, policy statements, and commentary; (B) proposed permanent, non-emergency amendments to sentencing guidelines, policy statements, and commentary. Request for public comment. Notice of public hearing.

SUMMARY:

Pursuant to section 994(a), (o), and (p) of title 28, United States Code, and section 3664 of Pub. L. 106-310 (with respect to proposed emergency amendment #1), section 3611 of Pub. L. 106-310 (with respect to proposed emergency amendment #2), section 3651 of Pub. L. 106-310 (with respect to proposed emergency amendment #3), and section 112(b) of Pub. L. 106-386 (with respect to proposed emergency amendment #4) the 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.

DATES:

Written public comment on the proposed emergency amendments in part (A) should be received by the Commission not later than February 5, 2001. Written public comment on the proposed permanent, non-emergency amendments in part (B), and on the proposed amendments in part (A) for purposes of promulgating those amendments as permanent, non-emergency amendments, should be received by the Commission not later than March 26, 2001. The Commission requests that, to the extent practicable, commentators submit written public comment on the proposed permanent, non-emergency amendments not later than March 9, 2001, in order for the Commission to consider that comment before its public hearing scheduled for the March 19-20, 2001 session. Note that the Commission may, at its February 2001 public meeting, revise the deadline for submission of written public comment to provide for an earlier deadline than the deadline published in this notice.

See

USSC Rules of Practice and Procedure, Rule 1.2.

The Commission plans to hold a public hearing on the proposed permanent, non-emergency amendments during its March 2001 session in Washington, DC. The public hearing will be held at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, NE., Washington, DC 20002-8002. A person who desires to testify at the public hearing should notify Michael Courlander, Public Affairs Officer, at (202) 502-4590, not later than March 9, 2001. Written testimony for the public hearing must be received by the Commission not later than March 9, 2001. Timely submission of written testimony is a requirement for testifying at the public hearing. The Commission requests that, to the extent practicable, commentators submit an electronic version of the comment and of the testimony for the public hearing.

ADDRESSES:

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

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 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) 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). This year, the Commission may submit non-emergency amendments to the Congress not later than May 1, 2001.

The Commission seeks comment on the proposed amendments, alternative proposed amendments, issues for comment, and any other aspect of the sentencing guidelines, policy statements, and commentary.

The Commission also requests public comment regarding whether the Commission should specify for retroactive application to previously sentenced defendants any of the proposed, permanent, non-emergency amendments published in this notice and in the

Federal Register

notice of November 7, 2000 (

see

65 FR 66792). The Commission requests comment regarding which, if any, of the proposed non-emergency amendments that may result in a lower guideline range should be made retroactive to previously sentenced defendants pursuant to § 1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range).

The proposed amendments are presented in this notice 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 for comment and suggestions for alternative policy choices; for example, a proposed enhancement of [2] 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 for how the Commission should respond to those issues.

Reports and other additional information pertaining to the proposed amendments described in this notice may be accessed through the Commission's website at www.ussc.gov.

Authority:

28 U.S.C. § 994(a), (o), (p), (x); section 112(b) of Pub. L. 106-386; and sections 3611, 3651, and 3664 of Pub. L. 106-310; USSC Rules of Practice and Procedure, Rules 4.3, 4.4.

Diana E. Murphy,

Chair.

Proposed Amendments to the Sentencing Guidelines

Part (A): Proposed Temporary, Emergency Amendments and Intent To Make Permanent Each of the Proposed Temporary, Emergency Amendments

The Commission hereby gives notice of, and requests comment on, its intent to promulgate each of the proposed amendments set forth in this Part as a temporary, emergency amendment and after promulgation as an emergency amendment, to promulgate each such amendment as a permanent, non-emergency amendment.

Proposed Amendment: Ecstasy

1.

Synopsis of Proposed Amendment:

This proposed amendment addresses the directive in the Ecstasy Anti-Proliferation Act of 2000 (the “Act”), section 3664 of Pub. L. 106-310, which instructs the Commission to provide, under emergency amendment authority, increased penalties for the manufacture, importation, exportation, or trafficking of Ecstasy. The directive specifically requires the Commission to increase the base offense level for 3,4-methylenedioxy methamphetamine (MDMA), 3,4-methylenedioxy

amphetamine (MDA), 3,4-methylenedioxy-N-ethylamphetamine (MDEA), paramethoxy-methamphetamine (PMA), and any other controlled substance that is marketed as Ecstasy and that has either a chemical structure similar to MDMA or an effect on the central nervous system substantially similar to or greater than MDMA.

The proposed amendment addresses the directive by amending the Drug Equivalency Table in § 2D1.1, Application Note 10, to increase the marihuana equivalencies for the specified controlled substances. The increased equivalencies make the penalties for these substances comparable to other drugs of abuse. The increases also satisfy the sense of Congress in the Act that the penalties for these substances, particularly for high-level traffickers, are too low.

An issue for comment regarding whether the Commission should base the penalties of Ecstasy on the penalties for other drugs of abuse, such as powder cocaine, methamphetamine mixture, or mescaline follows the proposed amendment.

Proposed Amendment

The Commentary to § 2D1.1 captioned “Application Notes” is amended in Note 10 in the Drug Equivalency Tables in the subdivision captioned “LSD, PCP, and Other Schedule I and II Hallucinogens (and their immediate precursors)*” in the line referenced to “MDA” by striking “50 gm” and inserting “1 kg”; in the line referenced to “MDMA” by striking “35 gm” and inserting “1 kg”; in the line referenced “MDEA” by striking “30 gm” and inserting “1 kg”; and by inserting “1 gm of Paramethoxymethamphetamine/PMA = 1 kg of marihuana” after the line referenced to “MDEA”.

Issue for Comment:

It has been represented to the Commission that Ecstasy (

i.e.,

MDMA, MDEA, MDA and PMA) is similar in its hallucinogenic effect on the user to mescaline, and also has been described as having an added stimulant component that can elevate heart rate, blood pressure, and body temperature. It has also been suggested that the drug is neither physically nor psychologically addictive. The Commission invites comment on these representations and on the appropriate penalty structure for Ecstasy. The proposed amendment treats Ecstasy as being of comparable seriousness to heroin, providing a marihuana equivalency for Ecstasy that is the same as heroin. Accordingly, for sentencing purposes, 1 gm of Ecstasy will be the equivalent of 1 kg of marihuana. Should the Commission alternatively treat Ecstasy comparably to some other major drug of abuse? For example, should the Commission treat Ecstasy as being of comparable seriousness to powder cocaine (which would result in a marihuana equivalency for Ecstasy of 200 gm) or methamphetamine mixture (which would result in a marihuana equivalency for Ecstasy of 2 kg)? Or should the penalty be comparable to that for mescaline (which would result in a marihuana equivalency for Ecstasy of 10 gm) or some multiple of the penalty for mescaline? Comment also is requested regarding whether the Drug Quantity Table in § 2D1.1 should be revised with respect to Ecstacy to provide additional incremental penalties (perhaps with exponential quantity increases) so as to punish more severely those offenders who traffic in larger quantities.

Proposed Amendment: Amphetamine

2.

Synopsis of Proposed Amendment:

This proposed amendment implements the directive in the Methamphetamine Anti-Proliferation Act of 2000, section 3611 of Pub. L. 106-310 (the “Act”), which directs the Commission to provide, under emergency amendment authority, increased guideline penalties for amphetamine such that those penalties are comparable to the base offense level for methamphetamine.

There are no mandatory minimum sentences for amphetamine offenses. Currently, a quantity of amphetamine is sentenced at the same level as an equal quantity of powder cocaine. That is, with no or minimal criminal history, an offender convicted of trafficking 500 grams of amphetamine would receive a guideline range of 63 to 78 months, based solely on the weight of the drug. A weight of 5,000 grams (5 kilograms), and the lowest criminal history category, would result in a sentencing range of 121 to 151 months. The mathematical relationships between the weight of amphetamine and the current five- and ten-year quantity thresholds for methamphetamine-mix and methamphetamine-actual are 10-to-1 and 100-to-1, respectively.

The proposed amendment provides two options for implementing the directive. Both options propose to treat amphetamine and methamphetamine identically, at a 1:1 ratio (

i.e.,

the same quantities of amphetamine and methamphetamine would result in the same base offense level) because of the similarities of the two substances. Specifically, amphetamine and methamphetamine (A) chemically are similar; (B) are produced by a similar method, and are trafficked in a similar manner; (C) share similar methods of use; (D) affect the same parts of the brain; and (E) have similar intoxicating effects. Both options also distinguish between pure amphetamine (

i.e.,

amphetamine (actual)) and amphetamine mixture in the same manner, and at the same quantities, as pure methamphetamine (

i.e.,

methamphetamine (actual) and methamphetamine mixture).

Although both options ultimately achieve the same penalty increase, the proposed options differ in how they implement the directive. Option One amends the Drug Equivalency Table of § 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy). To determine the offense level under this option, the quantity of amphetamine (actual or mixture) is converted to its marijuana weight equivalency using the Drug Equivalency Tables. Option Two, on the other hand, amends § 2D1.1 specifically to include amphetamine in the Drug Quantity Table.

Included in both options is a reference to the controlled substance dextroamphetamine, which is a substance quite similar to amphetamine. Currently, dextroamphetamine has the same marihuana equivalency as amphetamine mixture. The proposed amendment (A) distinguishes between dextroamphetamine mixture and dextroamphetamine (actual); and (B) provides penalties for the dextroamphetamine mixture and dextroamphetamine (actual) that are the same as amphetamine mixture and amphetamine (actual), respectively.

Two issues for comment follows the proposed amendment. The first requests comment regarding whether the Commission should provide an alternative quantity ratio between amphetamine and methamphetamine. The second requests comment regarding whether § 2D1.1(b)(4) should be amended to include amphetamine and dextroamphetamine.

Proposed Amendment

Option 1

The Commentary to § 2D1.1 captioned “Application Notes” is amended in Note 10 in the Drug Equivalency Tables in the subdivision captioned “Cocaine and Other Schedule I and II Stimulants (and their immediate precursors)*” by striking “200 gm” after “1 gm of Amphetamine =” and inserting “2 kg”;

by inserting “1 gm of Amphetamine (Actual) = 20 kg of marihuana” after the line referenced to “Amphetamine”; by striking “200 gm” after “1 gm of Dextroamphetamine =” and inserting “2 kg”; and by inserting “1 gm of Dextroamphetamine (Actual) = 20 kg of marihuana” after the line referenced to “Dextroamphetamine”.

Option 2

Section 2D1.1(c)(1) is amended by inserting after the fifth entry the following:

“15 KG or more of Amphetamine, or 1.5 KG or more of Amphetamine (actual), or 15 KG or more of Dextroamphetamine, or 1.5 KG or more of Dextroamphetamine (actual);”.

Section 2D1.1(c)(2) is amended by inserting after the fifth entry the following:

“At least 5 KG but less than 15 KG of Amphetamine, or at least 500 G but less than 1.5 KG of Amphetamine (actual), or at least 5 KG but less than 15 KG of Dextroamphetamine, or at least 500 G but less than 1.5 KG of Dextroamphetamine (actual);”.

Section 2D1.1(c)(3) is amended by inserting after the fifth entry the following:

“At least 1.5 KG but less than 5 KG of Amphetamine, or at least 150 G but less than 500 G of Amphetamine (actual), or at least 1.5 KG but less than 5 KG of Dextroamphetamine, or at least 150 G but less than 500 G of Dextroamphetamine (actual);”.

Section 2D1.1(c)(4) is amended by inserting after the fifth entry the following:

“At least 500 G but less than 1.5 KG of Amphetamine, or at least 50 G but less than 150 G of Amphetamine (actual), or at least 500 G but less than 1.5 KG of Dextroamphetamine, or at least 50 G but less than 150 G of Dextroamphetamine (actual);”.

Section 2D1.1(c)(5) is amended by inserting after the fifth entry the following:

“At least 350 G but less than 500 G of Amphetamine, or at least 35 G but less than 50 G of Amphetamine (actual), or at least 350 G but less than 500 G of Dextroamphetamine, or at least 35 G but less than 50 G of Dextroamphetamine (actual);”.

Section 2D1.1(c)(6) is amended by inserting after the fifth entry the following:

“At least 200 G but less than 350 G of Amphetamine, or at least 20 G but less than 35 G of Amphetamine (actual), or at least 200 G but less than 350 G of Dextroamphetamine, or at least 20 G but less than 35 G of Dextroamphetamine (actual);”.

Section 2D1.1(c)(7) is amended by inserting after the fifth entry the following:

“At least 50 G but less than 200 G of Amphetamine, or at least 5 G but less than 20 G of Amphetamine (actual), or at least 50 G but less than 200 G of Dextroamphetamine, or at least 5 G but less than 20 G of Dextroamphetamine (actual);”.

Section 2D1.1(c)(8) is amended by inserting after the fifth entry the following:

“At least 40 G but less than 50 G of Amphetamine, or at least 4 G but less than 5 G of Amphetamine (actual), or at least 40 G but less than 50 G of Dextroamphetamine, or at least 4 G but less than 5 G of Dextroamphetamine (actual);”.

Section 2D1.1(c)(9) is amended by inserting after the fifth entry the following:

“At least 30 G but less than 40 G of Amphetamine, or at least 3 G but less than 4 G of Amphetamine (actual), or at least 30 G but less than 40 G of Dextroamphetamine, or at least 3 G but less than 4 G of Dextroamphetamine (actual);”.

Section 2D1.1(c)(10) is amended by inserting after the fifth entry the following:

“At least 20 G but less than 30 G of Amphetamine, or at least 2 G but less than 3 G of Amphetamine (actual), or at least 20 G but less than 30 G of Dextroamphetamine or at least 2 G but less than 3 G of Dextroamphetamine (actual);”.

Section 2D1.1(c)(11) is amended by inserting after the fifth entry the following:

“At least 10 G but less than 20 G of Amphetamine, or at least 1 G but less than 2 G of Amphetamine (actual), or at least 10 G but less than 20 G of Dextroamphetamine, or at least 1 G but less than 2 G of Dextroamphetamine (actual);”.

Section 2D1.1(c)(12) is amended by inserting after the fifth entry the following:

“At least 5 G but less than 10 G of Amphetamine, or at least 500 MG but less than 1 G of Amphetamine (actual), or at least 5 G but less than 10 G of Dextroamphetamine, or at least 500 MG but less than 1 G of Dextroamphetamine (actual);”.

Section 2D1.1(c)(13) is amended by inserting after the fifth entry the following:

“At least 2.5 G but less than 5 G of Amphetamine, or at least 250 MG but less than 500 MG of Amphetamine (actual), or at least 2.5 G but less than 5 G of Dextroamphetamine, or at least 250 MG but less than 500 MG of Dextraomphetamine (actual);”.

Section 2D1.1(c)(14) is amended by inserting after the fifth entry the following:

“Less than 2.5 G of Amphetamine, or less than 250 MG of Amphetamine (actual), or less than 2.5 G of Dextroamphetamine, or less than 250 MG of Dextraomphetamine (actual);”.

Section 2D1.1(c) is amended in Note (B) of the “Notes to Drug Quantity Table”, by inserting “, “Amphetamine (actual), “Dextroamphetamine (actual)',” after “terms “PCP (actual)”; by inserting “, amphetamine, dextroamphetamine,” after “substance containing PCP”; and by inserting “, amphetamine (actual), dextroamphetamine (actual),” after “weight of the PCP (actual)”.

The Commentary to § 2D1.1 captioned “Application Notes” is amended in Note 9 by inserting “, amphetamine, dextroamphetamine,” after “PCP”.

The Commentary to § 2D1.1 captioned “Application Notes” is amended in Note 10 in the Drug Equivalency Tables in the subdivision captioned “Cocaine and Other Schedule I and II Stimulants (and their immediate precursors)” by striking “200 gm” after “1 gm of Amphetamine = and inserting “2 kg”; by inserting “1 gm of Amphetamine (Actual) = 20 kg of marihuana” after the line referenced to “Amphetamine”; by striking “200 gm” after “1 gm of Dextroamphetamine =” and inserting “2 kg”; and by inserting “1 gm of Dextroamphetamine (Actual) = 20 kg of marihuana” after the line referenced to “Dextramphetamine”.

Issues for Comment

(1) In response to the directive in the Methamphetamine Anti-Proliferation Act of 2000 that instructs the Commission to provide, under emergency amendment authority, increased guideline penalties for amphetamine such that those penalties are comparable to the base offense level for methamphetamine, the Commission has proposed two amendment options that use a 1:1 ratio between amphetamine and methamphetamine (

i.e.,

the same quantities of amphetamine and methamphetamine will result in the imposition of the same base offense level from the Drug Quantity Table in § 2D1.1). The Commission invites comment on whether some alternative ratio should be used. For example, should the Commission use a 2:1 ratio or a 5:1 ratio between amphetamine and methamphetamine, and if so, why?

(2) Section 2D1.1(b)(4) currently provides a two-level enhancement if the

offense involved the importation of methamphetamine or the manufacture of methamphetamine from listed chemicals that the defendant knew were imported unlawfully. The Commission invites comment regarding whether this enhancement should be amended to include the importation of amphetamine or the manufacture of amphetamine from listed chemicals that the defendant knew were imported unlawfully. If so, should the Commission also include the importation of dextroamphetamine or the manufacture of dextroamphetamine from listed chemicals that the defendant knew were imported unlawfully, particularly because dextroamphetamine is so similar to amphetamine and would be treated the same as amphetamine under the proposed amendment options?

Proposed Amendment: Trafficking in List I Chemicals

3.

Synopsis of Proposed Amendment:

This proposed amendment addresses the three-part directive in the Methamphetamine Anti-Proliferation Act of 2000, section 3651 of Pub. L. 106-310 (the “Act”), regarding enhanced punishment for trafficking in List I chemicals. That section requires the Commission to promulgate an amendment implementing the directive under emergency amendment authority.

First, the directive instructs the Commission “to provide increased penalties for offenses involving ephedrine, phenylpropanolamine (PPA), or pseudoephedrine (including their salts, optical isomers, and salts of optical isomers) to correspond to the quantity of controlled substance that reasonably could have been manufactured using the quantity of ephedrine, PPA, and pseudoephedrine possessed or distributed.” In response to this directive, the proposed amendment provides a new chemical table specifically for ephedrine, pseudoephedrine, and PPA. The table ties the base offense levels for these chemicals to the base offense levels for methamphetamine (actual) set forth in § 2D1.1, assuming a 50 percent yield of the controlled substance from the chemicals. Methamphetamine (actual) is used rather than methamphetamine mixture because ephedrine, PPA, and pseudoephedrine produce methamphetamine (actual).

This new table has a maximum base offense level of level 38 (as opposed to a maximum base offense level of 30 for all other precursor chemicals). Providing a maximum base offense level of level 38 increases the sentences for ephedrine, pseudoephedrine, and PPA by linking the theoretical yield of these chemicals to methamphetamine (actual) instead of methamphetamine (mixture) as had been done in the past. Additionally, this adjustment will have an impact on the relationship between §§ 2D1.1 and 2D1.11 by eliminating the six-level distinction that currently exists between offenses that involve possession of these precursor chemicals with intent to manufacture methamphetamine and offenses that involve an attempt to manufacture methamphetamine, at least for offenses involving ephedrine, PPA, and pseudoephedrine.

In order to address cases that involve more than one chemical, the proposed amendment eliminates the ephedrine equivalency table and instead proposes a rule that would require the court to determine the base offense level by using the quantity of the single chemical that results in the greatest base offense level. An upward departure is provided for cases in which the offense level does not adequately address the seriousness of the offense.

However, the proposed amendment provides an exception to this rule for offenses that involve a combination of ephedrine, pseudoephedrine, or phenylpropanolamine because these chemicals often are used in the same manufacturing process. In a case that involves two or more of these chemicals, the base offense level will be determined using the total quantity of the chemicals involved, based on an ephedrine equivalency.

Second, the directive instructs the Commission “to establish, based on scientific, law enforcement, and other data the Commission considers appropriate, a table in which the quantity of controlled substance that could reasonably have been manufactured shall be determined by using a table of manufacturing conversion ratios for ephedrine, PPA, and pseudoephedrine.” In response to the directive, the proposed amendment adds to the Drug Equivalency Tables in § 2D1.1 a conversion table for ephedrine, PPA, and pseudoephedrine for cases that are cross-referenced out of § 2D1.11 because the offense involved the manufacture of methamphetamine. This table, which provides for a 50 percent conversion ratio for ephedrine, PPA, and pseudoephedrine, was developed using data from the Drug Enforcement Agency, Office of Diversion Control, as published on the web site of the Office of National Drug Control Policy (ONDCP). These data indicate that the actual yield of methamphetamine from ephedrine and pseudoephedrine is “typically in the range of 50 to 75 percent”.

Third, the directive instructs the Commission “to increase penalties for offenses involving any List I chemical other than ephedrine, PPA, and pseudoephedrine, such that those penalties reflect the dangerous nature of such offenses, the need for aggressive law enforcement action to fight such offenses, and the extreme dangers associated with unlawful activity involving methamphetamine and amphetamine.” In response to this directive, the proposed amendment increases the base offense level for Benzaldehyde, Hydriodic Acid, Methylamine, Nitroethane, and Norpseudoephedrine by two levels. These five additional List I chemicals also are associated with methamphetamine and amphetamine production. The maximum base offense level for these five chemicals will increase from level 30 to level 32. All other List I chemicals will remain at their current maximum base offense level of level 30.

An issue for comment follows the proposed amendment regarding whether, as an alternative, the maximum base offense level in the proposed Ephedrine, Pseudoephedrine, Phenylpropanolamine Table in § 2D1.11 should be set lower than the maximum base offense level in § 2D1.1. This reduction would maintain the existing distinction between offenses involving possession of precursor chemicals with intent to manufacture versus attempt to manufacture for ephedrine, PPA, and pseudoephedrine currently captured by the maximum base offense level of 30 in § 2D1.11. The original relationship between controlled substances in § 2D1.1 and list I chemicals in § 2D1.11 presumed a 50 percent yield of controlled substances from each chemical and then reduced the entire table by eight levels. The eight level distinction later was reduced to six levels in response to a congressional directive.

Proposed Amendment

Section 2D1.11(d) is amended by striking the Chemical Quantity Table and the Notes that follow the Table in their entirety and inserting the following:

(d)(1)

Ephedrine, Pseudoephedrine, and Phenylpropanolamine Quantity Table*

[Methamphetamine and amphetamine precursor chemicals]

Quantity

Base offense level

(1) 3 KG or more of Ephedrine; 3 KG or more of Phenylpropanolamine; 3 KG or more of Pseudoephedrine

Level 38.

(2) At least 1 KG but less than 3 KG of Ephedrine; At least 1 KG but less than 3 KG of Phenylpropanolamine; At least 1 KG but less than 3 KG of Pseudoephedrine

Level 36.

(3) At least 300 G but less than 1 KG of Ephedrine; At least 300 G but less than 1 KG of Phenylpropanolamine; At least 300 G but less than 1 KG of Pseudoephedrine

Level 34.

(4) At least 100 G but less than 300 G of Ephedrine; At least 100 G but less than 300 G of Phenylpropanolamine; At least 100 G but less than 300 G of Pseudoephedrine

Level 32.

(5) At least 70 G but less than 100 G of Ephedrine; At least 70 G but less than 100 G of Phenylpropanolamine; At least 70 G but less than 100 G of Pseuodoephedrine

Level 30.

(6) At least 40 G but less than 70 G of Ephedrine; At least 40 G but less than 70 G of Phenylpropanolamine; At least 40 G but less than 70 G of Pseudoephedrine

Level 28.

(7) At least 10 G but less than 40 G of Ephedrine; At least 10 G but less than 40 G of Phenylpropanolamine; At least 10 G but less than 40 G of Pseudoephedrine

Level 26.

(8) At least 8 G but less than 10 G of Ephedrine; At least 8 G but less than 10 G of Phenylpropanolamine; At least 8 G but less than 10 G of Pseudoephedrine

Level 24.

(9) At least 6 G but less than 8 G of Ephedrine; At least 6 G but less than 8 G of Phenylpropanolamine; At least 6 G but less than 8 G of Pseudoephedrine

Level 22.

(10) At least 4 G but less than 6 G of Ephedrine; At least 4 G but less than 6 G of Phenylpropanolamine; At least 4 G but less than 6 G of Pseudoephedrine

Level 20.

(11) At least 2 G but less than 4 G of Ephedrine; At least 2 G but less than 4 G of Phenylpropanolamine; At least 2 G but less than 4 G of Pseudoephedrine

Level 18.

(12) At least 1 G but less than 2 G of Ephedrine; At least 1 G but less than 2 G of Phenylpropanolamine; At least 1 G but less than 2 G of Pseudoephedrine

Level 16.

(13) At least 500 MG but less than 1 G of Ephedrine; At least 500 MG but less than 1 G of Phenylpropanolamine; At least 500 MG but less than 1 G of Pseudoephedrine

Level 14.

(14) Less than 500 MG of Ephedrine; Less than 500 MG of Phenylpropanolamine; Less than 500 MG of Pseudoephedrine

Level 12

(d)(2) Chemical Quantity Table *

[All other precursor chemicals]

Listed chemicals and quantity

Base offense level

(1) List I Chemicals:

Level 32.

51 KG or more of Benzaldehyde;

132 KG or more of Hydriodic Acid;

12 KG or more of Methylamine;

37.8 KG or more of Nitroethane;

600 KG or more of Norpseudoephedrine.

(2) List I Chemicals:

Level 30.

At least 17 KG but less than 51 KG of Benzaldehyde;

20 KG or more of Benzyl Cyanide;

200 G or more of Ergonovine;

400 G or more of Ergotamine;

20 KG or more of Ethylamine;

At least 44 KG but less than 132 KG of Hydriodic Acid;

320 KG or more of Isosafrole;

At least 4 KG but less than 12 KG of Methylamine;

500 KG or more of N-Methylephedrine;

500 KG or more of N-Methylpseudoephedrine;

At least 12.6 KG but less than 37.8 KG of Nitroethane;

At least 200 KG but less than 600 KG of Norpseudoephedrine;

20 KG or more of Phenylacetic Acid;

10 KG or more of Piperidine;

320 KG or more of Piperonal;

1.6 KG or more of Propionic Anhydride;

320 KG or more of Safrole;

400 KG or more of 3, 4-Methylenedioxyphenyl-2-propanone.

(3) List I Chemicals:

Level 28.

At least 5.3 KG but less than 17.8 KG of Benzaldehyde;

At least 6 KG but less than 20 KG of Benzyl Cyanide;

At least 60 G but less than 200 G of Ergonovine;

At least 120 G but less than 400 G of Ergotamine;

At least 6 KG but less than 20 KG of Ethylamine;

At least 13.2 KG but less than 44 KG of Hydriodic Acid;

At least 96 KG but less than 320 KG of Isosafrole;

At least 1.2 KG but less than 4 KG of Methylamine;

At least 150 KG but less than 500 KG of N-Methylephedrine;

At least 150 KG but less than 500 KG of N-Methylpseudoephedrine;

At least 3.8 KG but less than 12.6 KG of Nitroethane;

At least 60 KG but less than 200 KG of Norpseudoephedrine;

At least 6 KG but less than 20 KG of Phenylacetic Acid;

At least 3 KG but less than 10 KG of Piperidine;

At least 96 KG but less than 320 KG of Piperonal;

At least 480 G but less than 1.6 KG of Propionic Anhydride;

At least 96 KG but less than 320 KG of Safrole;

At least 120 KG but less than 400 KG of 3, 4-Methylenedioxyphenyl-2-propanone;

List II Chemicals:

11 KG or more of Acetic Anhydride;

1175 KG or more of Acetone;

20 KG or more of Benzyl Chloride;

1075 KG or more of Ethyl Ether;

1200 KG or more of Methyl Ethyl Ketone;

10 KG or more of Potassium Permanganate;

1300 KG or more of Toluene.

(4) List I Chemicals:

Level 26.

At least 1.8 KG but less than 5.3 KG of Benzaldehyde;

At least 2 KG but less than 6 KG of Benzyl Cyanide;

At least 20 G but less than 60 G of Ergonovine;

At least 40 G but less than 120 G of Ergotamine;

At least 2 KG but less than 6 KG of Ethylamine;

At least 4.4 KG but less than 13.2 KG of Hydriodic Acid;

At least 32 KG but less than 96 KG of Isosafrole;

At least 400 G but less than 1.2 KG of Methylamine;

At least 50 KG but less than 150 KG of N-Methylephedrine;

At least 50 KG but less than 150 KG of N-Methylpseudoephedrine;

At least 1.3 KG but less than 3.8 KG of Nitroethane;

At least 20 KG but less than 60 KG of Norpseudoephedrine;

At least 2 KG but less than 6 KG of Phenylacetic Acid;

At least 1 KG but less than 3 KG of Piperidine;

At least 32 KG but less than 96 KG of Piperonal;

At least 160 G but less than 480 G of Propionic Anhydride;

At least 32 KG but less than 96 KG of Safrole;

At least 40 KG but less than 120 KG of 3, 4-Methylenedioxyphenyl-2-propanone;

List II Chemicals:

At least 3.3 KG but less than 11 KG of Acetic Anhydride;

At least 352.5 KG but less than 1175 KG of Acetone;

At least 6 KG but less than 20 KG of Benzyl Chloride;

At least 322.5 KG but less than 1075 KG of Ethyl Ether;

At least 360 KG but less than 1200 KG of Methyl Ethyl Ketone;

At least 3 KG but less than 10 KG of Potassium Permanganate;

At least 390 KG but less than 1300 KG of Toluene.

(5) List I Chemicals:

Level 24.

At least 1.2 KG but less than 1.8 KG of Benzaldehyde;

At least 1.4 KG but less than 2 KG of Benzyl Cyanide;

At least 14 G but less than 20 G of Ergonovine;

At least 28 G but less than 40 G of Ergotamine;

At least 1.4 KG but less than 2 KG of Ethylamine;

At least 3.08 KG but less than 4.4 KG of Hydriodic Acid;

At least 22.4 KG but less than 32 KG of Isosafrole;

At least 280 G but less than 400 G of Methylamine;

At least 35 KG but less than 50 KG of N-Methylephedrine;

At least 35 KG but less than 50 KG of N-Methylpseudoephedrine;

At least 879 G but less than 1.3 KG of Nitroethane;

At least 14 KG but less than 20 KG of Norpseudoephedrine;

At least 1.4 KG but less than 2 KG of Phenylacetic Acid;

At least 700 G but less than 1 KG of Piperidine;

At least 22.4 KG but less than 32 KG of Piperonal;

At least 112 G but less than 160 G of Propionic Anhydride;

At least 22.4 KG but less than 32 KG of Safrole;

At least 28 KG but less than 40 KG of 3, 4-Methylenedioxyphenyl-2-propanone;

List II Chemicals:

At least 1.1 KG but less than 3.3 KG of Acetic Anhydride;

At least 117.5 KG but less than 352.5 KG of Acetone;

At least 2 KG but less than 6 KG of Benzyl Chloride;

At least 107.5 KG but less than 322.5 KG of Ethyl Ether;

At least 120 KG but less than 360 KG of Methyl Ethyl Ketone;

At least 1 KG but less than 3 KG of Potassium Permanganate;

At least 130 KG but less than 390 KG of Toluene.

(6) List I Chemicals:

Level 22.

At least 712 G but less than 1.2 KG of Benzaldehyde;

At least 800 G but less than 1.4 KG of Benzyl Cyanide;

At least 8 G but less than 14 G of Ergonovine;

At least 16 G but less than 28 G of Ergotamine;

At least 800 G but less than 1.4 KG of Ethylamine;

At least 1.76 KG but less than 3.08 KG of Hydriodic Acid;

At least 12.8 KG but less than 22.4 KG of Isosafrole;

At least 160 G but less than 280 G of Methylamine;

At least 20 KG but less than 35 KG of N-Methylephedrine;

At least 20 KG but less than 35 KG of N-Methylpseudoephedrine;

At least 503 G but less than 879 G of Nitroethane;

At least 8 KG but less than 14 KG of Norpseudoephedrine;

At least 800 G but less than 1.4 KG of Phenylacetic Acid;

At least 400 G but less than 700 G of Piperidine;

At least 12.8 KG but less than 22.4 KG of Piperonal;

At least 64 G but less than 112 G of Propionic Anhydride;

At least 12.8 KG but less than 22.4 KG of Safrole;

At least 16 KG but less than 28 KG of 3, 4-Methylenedioxyphenyl-2-propanone;

List II Chemicals:

At least 726 G but less than 1.1 KG of Acetic Anhydride;

At least 82.25 KG but less than 117.5 KG of Acetone;

At least 1.4 KG but less than 2 KG of Benzyl Chloride;

At least 75.25 KG but less than 107.5 KG of Ethyl Ether;

At least 84 KG but less than 120 KG of Methyl Ethyl Ketone;

At least 700 G but less than 1 KG of Potassium Permanganate;

At least 91 KG but less than 130 KG of Toluene.

(7) List I Chemicals:

Level 20.

At least 178 G but less than 712 G of Benzaldehyde;

At least 200 G but less than 800 G of Benzyl Cyanide;

At least 2 G but less than 8 G of Ergonovine;

At least 4 G but less than 16 G of Ergotamine;

At least 200 G but less than 800 G of Ethylamine;

At least 440 G but less than 1.76 KG of Hydriodic Acid;

At least 3.2 KG but less than 12.8 KG of Isosafrole;

At least 40 G but less than 160 G of Methylamine;

At least 5 KG but less than 20 KG of N-Methylephedrine;

At least 5 KG but less than 20 KG of N-Methylpseudoephedrine;

At least 126 G but less than 503 G of Nitroethane;

At least 2 KG but less than 8 KG of Norpseudoephedrine;

At least 200 G but less than 800 G of Phenylacetic Acid;

At least 100 G but less than 400 G of Piperidine;

At least 3.2 KG but less than 12.8 KG of Piperonal;

At least 16 G but less than 64 G of Propionic Anhydride;

At least 3.2 KG but less than 12.8 KG of Safrole;

At least 4 KG but less than 16 KG of 3,4-Methylenedioxyphenyl-2-propanone;

List II Chemicals:

At least 440 G but less than 726 G of Acetic Anhydride;

At least 47 KG but less than 82.25 KG of Acetone;

At least 800 G but less than 1.4 KG of Benzyl Chloride;

At least 43 KG but less than 75.25 KG of Ethyl Ether;

At least 48 KG but less than 84 KG of Methyl Ethyl Ketone;

At least 400 G but less than 700 G of Potassium Permanganate;

At least 52 KG but less than 91 KG of Toluene.

(8) List I Chemicals:

Level 18.

At least 142 G but less than 178 G of Benzaldehyde;

At least 160 G but less than 200 G of Benzyl Cyanide;

At least 1.6 G but less than 2 G of Ergonovine;

At least 3.2 G but less than 4 G of Ergotamine;

At least 160 G but less than 200 G of Ethylamine;

At least 352 G but less than 440 G of Hydriodic Acid;

At least 2.56 KG but less than 3.2 KG of Isosafrole;

At least 32 G but less than 40 G of Methylamine;

At least 4 KG but less than 5 KG of N-Methylephedrine;

At least 4 KG but less than 5 KG of N-Methylpseudoephedrine;

At least 100 G but less than 126 G of Nitroethane;

At least 1.6 KG but less than 2 KG of Norpseudoephedrine;

At least 160 G but less than 200 G of Phenylacetic Acid;

At least 80 G but less than 100 G of Piperidine;

At least 2.56 KG but less than 3.2 KG of Piperonal;

At least 12.8 G but less than 16 G of Propionic Anhydride;

At least 2.56 KG but less than 3.2 KG of Safrole;

At least 3.2 KG but less than 4 KG of 3,4-Methylenedioxyphenyl-2-propanone;

List II Chemicals:

At least 110 G but less than 440 G of Acetic Anhydride;

At least 11.75 KG but less than 47 KG of Acetone;

At least 200 G but less than 800 G of Benzyl Chloride;

At least 10.75 KG but less than 43 KG of Ethyl Ether;

At least 12 KG but less than 48 KG of Methyl Ethyl Ketone;

At least 100 G but less than 400 G of Potassium Permanganate;

At least 13 KG but less than 52 KG of Toluene.

(9) List I Chemicals:

Level 16.

3.6 KG or more of Anthranilic Acid;

At least 107 G but less than 142 G of Benzaldehyde;

At least 120 G but less than 160 G of Benzyl Cyanide;

At least 1.2 G but less than 1.6 G of Ergonovine;

At least 2.4 G but less than 3.2 G of Ergotamine;

At least 120 G but less than 160 G of Ethylamine;

At least 264 G but less than 352 G of Hydriodic Acid;

At least 1.92 KG but less than 2.56 KG of Isosafrole;

At least 24 G but less than 32 G of Methylamine;

4.8 KG or more of N-Acetylanthranilic Acid;

At least 3 KG but less than 4 KG of N-Methylephedrine;

At least 3 KG but less than 4 KG of N-Methylpseudoephedrine;

At least 75 G but less than 100 G of Nitroethane;

At least 1.2 KG but less than 1.6 KG of Norpseudoephedrine;

At least 120 G but less than 160 G of Phenylacetic Acid;

At least 60 G but less than 80 G of Piperidine;

At least 1.92 KG but less than 2.56 KG of Piperonal;

At least 9.6 G but less than 12.8 G of Propionic Anhydride;

At least 1.92 KG but less than 2.56 KG of Safrole;

At least 2.4 KG but less than 3.2 KG of 3,4-Methylenedioxyphenyl-2-propanone;

List II Chemicals:

At least 88 G but less than 110 G of Acetic Anhydride;

At least 9.4 KG but less than 11.75 KG of Acetone;

At least 160 G but less than 200 G of Benzyl Chloride;

At least 8.6 KG but less than 10.75 KG of Ethyl Ether;

At least 9.6 KG but less than 12 KG of Methyl Ethyl Ketone;

At least 80 G but less than 100 G of Potassium Permanganate;

At least 10.4 KG but less than 13 KG of Toluene.

(10) List I Chemicals:

Level 14.

At least 2.7 KG but less than 3.6 KG of Anthranilic Acid;

At least 71.2 G but less than 107 G of Benzaldehyde;

At least 80 G but less than 120 G of Benzyl Cyanide;

At least 800 MG but less than 1.2 G of Ergonovine;

At least 1.6 G but less than 2.4 G of Ergotamine;

At least 80 G but less than 120 G of Ethylamine;

At least 176 G but less than 264 G of Hydriodic Acid;

At least 1.44 KG but less than 1.92 KG of Isosafrole;

At least 16 G but less than 24 G of Methylamine;

At least 3.6 KG but less than 4.8 KG of N-Acetylanthranilic Acid;

At least 2.25 KG but less than 3 KG of N-Methylephedrine;

At least 2.25 KG but less than 3 KG of N-Methylpseudoephedrine;

At least 56.25 G but less than 75 G of Nitroethane;

At least 800 G but less than 1.2 KG of Norpseudoephedrine;

At least 80 G but less than 120 G of Phenylacetic Acid;

At least 40 G but less than 60 G of Piperidine;

At least 1.44 KG but less than 1.92 KG of Piperonal;

At least 7.2 G but less than 9.6 G of Propionic Anhydride;

At least 1.44 KG but less than 1.92 KG of Safrole;

At least 1.8 KG but less than 2.4 KG of 3, 4-Methylenedioxyphenyl-2-propanone;

List II Chemicals:

At least 66 G but less than 88 G of Acetic Anhydride;

At least 7.05 KG but less than 9.4 KG of Acetone;

At least 120 G but less than 160 G of Benzyl Chloride;

At least 6.45 KG but less than 8.6 KG of Ethyl Ether;

At least 7.2 KG but less than 9.6 KG of Methyl Ethyl Ketone;

At least 60 G but less than 80 G of Potassium Permanganate;

At least 7.8 KG but less than 10.4 KG of Toluene.

(11) List I Chemicals:

Less than 2.7 KG of Anthranilic Acid;

Less than 71.2 G of Benzaldehyde;

Less than 80 G of Benzyl Cyanide;

Less than 800 MG of Ergonovine;

Less than 1.6 G of Ergotamine;

Less than 80 G of Ethylamine;

Less than 176 G of Hydriodic Acid;

Less than 1.44 KG of Isosafrole;

Less than 16 G of Methylamine;

Less than 3.6 KG of N-Acetylanthranilic Acid;

Less than 2.25 KG of N-Methylephedrine;

Less than 2.25 KG of N-Methylpseudoephedrine;

Less than 56.25 G of Nitroethane;

Less than 800 G of Norpseudoephedrine;

Less than 80 G of Phenylacetic Acid;

Less than 40 G of Piperidine;

Less than 1.44 KG of Piperonal;

Less than 7.2 G of Propionic Anhydride;

Less than 1.44 KG of Safrole;

Less than 1.8 KG of 3, 4-Methylenedioxyphenyl-2-propanone;

List II Chemicals:

Less than 66 G of Acetic Anhydride;

Less than 7.05 KG of Acetone;

Less than 120 G of Benzyl Chloride;

Less than 6.45 KG of Ethyl Ether;

Less than 7.2 KG of Methyl Ethyl Ketone;

Less than 60 G of Potassium Permanganate;

Less than 7.8 KG of Toluene.

*

Notes:

(A) Except as provided in subdivision (B), to calculate the base offense level in an offense that involves two or more chemicals, use the quantity of the single chemical that results in the greatest offense level, regardless of whether the chemicals are set forth in different tables or in different categories (

i.e.

list I or list II) under subsection (d) of this guideline.

(B) To calculate the base offense level in an offense that involves two or more chemicals set forth in the Ephedrine, Pseudoephedrine, and Phenylpropanolamine Quantity Table, (i) convert each chemical to its ephedrine equivalency using the table below; (ii) add the quantities that result from that equivalency; and (iii) use the Ephedrine, Pseudoephedrine, and Phenylpropanolamine Quantity Table to determine the base offense level.

Pseudoephedrine and Phenylpropanolamine Equivalency Table

1 gm of Pseudoephedrine=1 gm of Ephedrine

1 gm of Phenylpropanolamine=1 gm of Ephedrine

(C) In a case involving ephedrine, pseudoephedrine, or phenylpropanolamine tablets, use the weight of the ephedrine, pseudoephedrine, or phenylpropanolamine contained in the tablets, not the weight of the entire tablets, in calculating the base offense level.”.

The Commentary to § 2D1.11 captioned “Application Notes” is amended by striking the text of Note 4 in its entirety and inserting the following:

“(A) Determining the Base Offense Level for Two or More Chemicals.—Except as provided in subdivision B, if the offense involves two or more chemicals, use the quantity of the single chemical that results in the greatest offense level, regardless of whether the chemicals are set forth in different tables or in different categories (

i.e.,

list I or list II) under subsection (d) of this guideline.

Example:

The defendant was in possession of five kilograms of ephedrine and 300 grams of hydriodic acid. Ephedrine and hydriodic acid typically are used together in the same manufacturing process to manufacture methamphetamine. The base offense level for each chemical is calculated separately and the chemical with the higher base offense level is used. Five kilograms of ephedrine result in a base offense level of level 38; 300 grams of hydriodic acid result in a base offense level of 16. In this case, the base offense level would be level 38.

(B) Determining the Base Offense Level for Offenses Involving Ephedrine, Pseudoephedrine, or Phenylpropanolamine.—If the offense involves two or more chemicals set forth in the Ephedrine, Pseudoephedrine, and Phenylpropanolamine Quantity Table, (i) convert each chemical to its ephedrine equivalency; (ii) add the quantities that result from that equivalency; and (iii) use the Ephedrine, Pseudoephedrine, and Phenylpropanolamine Quantity Table to determine the base offense level.

Example:

The defendant was in possession of 80 grams of ephedrine and 50 grams of phenylpropanolamine. The 50 grams of phenylpropanolamine converts to 50 grams of ephedrine, which when added to the quantity of ephedrine, results in a total of 130 grams of ephedrine. In this case, the base offense level would be level 32.

(C) Upward Departure.—In a case involving two or more chemicals used to manufacture different controlled substances, or to manufacture one controlled substance by different manufacturing processes, an upward departure may be warranted if the offense level does not adequately address the seriousness of the offense.”.

The Commentary to § 2D1.11 captioned “Application Notes” is amended by striking Notes 5 and 6 in their entirety; and by redesignating Notes 7 and 8 as Notes 5 and 6, respectively.

The Commentary to § 2D1.11 captioned “Background” is amended in the first sentence by inserting

“(including ephedrine, pseudoephedrine, and phenylpropanolamine)” after “list I chemicals”.

The Commentary to 2D1.1 captioned “Application Notes” is amended in Note 10 in the “Drug Equivalency Tables” by inserting after the subdivision captioned “Schedule V Substances” the following new subdivision:

List I Chemicals (Relating to the Manufacture of Amphetamine or Methamphetamine) * * *

1 gm of Ephedrine=10 kg of marihuana

1 gm of Phenylpropanolamine=10 kg of marihuana

1 gm of Pseudoephedrine=10 kg of marihuana

* * * Provided, that in a case involving ephedrine, pseudoephedrine, or phenylpropanolamine tablets, use the weight of the ephedrine, pseudoephedrine, or phenylpropanolamine contained in the tablets, not the weight of the entire tablets, in calculating the base offense level.”.

Issues for Comment

(1) Currently, there is a six level difference between the base offense levels in the Drug Quantity Table of § 2D1.1 and the Chemical Quantity Table in § 2D1.11. (The original relationship between controlled substances in § 2D1.1 and list I chemicals in § 2D1.11 presumed a 50 percent yield of controlled substances from each chemical and then reduced the entire table in § 2D1.11 by eight levels. The eight level distinction was later reduced to six levels as a result of a congressional directive.) This six level difference effectively creates a distinction between offenses involving possession of precursor chemicals with intent to manufacture a controlled substance and offenses involving an actual attempt to manufacture a controlled substance. However, the proposed amendment essentially will eliminate this distinction for cases involving ephedrine, pseudoephedrine, and phenylpropanolamine by (1) Eliminating that six-level difference in offense level from the § 2D1.1 offense level that corresponds to the amount of controlled substance that could be manufactured from a given quantity of precursor chemical (assuming a 50% yield); and (2) setting the maximum base offense level at level 38, the maximum base offense level provided for the manufacture of methamphetamine in § 2D1.1. The Commission invites comment regarding whether the maximum base offense level for the proposed Ephedrine, Pseudoephedrine, Phenylpropanolamine Table in § 2D1.11 should be lower than level 38. A lower maximum base offense level would maintain a distinction between offenses involving possession of precursor chemicals with intent to manufacture methamphetamine and offenses involving an actual attempt to manufacture methamphetamine.

(2) In response to the congressional directive to increase penalties for offenses involving List I chemicals other than ephedrine, PPA, and pseudoephedrine, the Commission invites comment regarding whether, in addition to or instead of the proposed amendment, the penalty structure in § 2D1.11 should be changed to increase penalties for Benzaldehyde, Hydriodic Acid, Methylamine, Nitroethane, and Norpseudoephedrine at each quantity level in the Chemical Quantity Table, and if so, by how much.

Proposed Amendment: Human Trafficking

4.

Synopsis of Proposed Amendment:

This amendment implements the directive found at section 112(b) of the Victims of Trafficking and Violence Protection Act of 2000 (the “Act”), Pub. L. 106-386.

The directive confers emergency authority on the Commission to amend the federal sentencing guidelines to reflect changes to 18 U.S.C. 1581(a) (Peonage), 1583 (Enticement into Slavery), and 1584 (Sale into Involuntary Servitude). The Commission is also directed to consider how to address four new statutes: 18 U.S.C. 1589 (Forced Labor); 18 U.S.C. 1590 (Trafficking with Respect to Peonage, Involuntary Servitude or Forced Labor); 18 U.S.C. 1591 (Sex Trafficking of Children by Force, Fraud or Coercion); and 18 U.S.C. § 1592 (Unlawful Conduct with Respect to Documents in Furtherance of Peonage, Involuntary Servitude or Forced Labor).

Specifically, the Commission is directed to “review and, if appropriate, amend the sentencing guidelines applicable to * * * the trafficking of persons including * * * peonage, involuntary servitude, slave trade offenses, and possession, transfer or sale of false immigration documents in furtherance of trafficking, and the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act.”

The Commission is directed to “take all appropriate measures to ensure that these sentencing guidelines * * * are sufficiently stringent to deter and adequately reflect the heinous nature of these offenses.” The Commission is also directed to “consider providing sentencing enhancements” in cases which involve: (A) a large number of victims; (B) a pattern of continued and flagrant violations; (C) the use or threatened use of a dangerous weapon; or (D) the death or bodily injury of any person.

To address this multi-faceted directive, this proposed amendment makes changes to several existing guidelines and creates a new guideline for criminal violations of the Migrant and Seasonal Agricultural Worker Protection Act. Although the directive instructs the Commission to amend the guidelines applicable to the Fair Labor Standards Act (29 U.S.C. 201 et. seq.), a criminal violation of the Act is only a Class B misdemeanor.

See

29 U.S.C. 216. Thus, the guidelines are not applicable to those offenses.

The proposed amendment references the new offense at 18 U.S.C. 1591 to § 2G1.1 (Promoting Prostitution or Prohibited Sexual Conduct). Section 1591 punishes a defendant who participates in the transporting or harboring of a person, or who benefits from participating in such a venture, with the knowledge that force, fraud or coercion will be used to cause that person to engage in a commercial sex act or with knowledge that the person is not 18 years old and will be forced to engage in a commercial sex act. Despite the statute's inclusion in a chapter of title 18 devoted mainly to peonage offenses, section 1591 offenses are analogous to the offenses referenced to the prostitution guideline.

Section 2G1.1(b)(2) is proposed to be amended to include a [6][9] level increase for victimization of children who have not attained the age of 12 years, a [4][6] level increase for victimization of children who have not attained the age of 14 years, and a [2][3] level increase for children who have not attained the age of 16 years. This change increases by [2][5] levels the punishment for victimization of a child under 12 years of age and creates an additional category of victims—children between the ages of 12 and 14 years. These changes were proposed in recognition of Congress's distinction in section 1591 between offenses involving minors under 14 years of age (statutory cap of “any term of years or life”) and offenses involving minors between 14 and 18 years of age (statutory cap of “not more than 20 years”). This change conforms the guidelines to the penalties of section 1591.

The special instruction at § 2G1.1(d)(2) has been added to ensure that attempts to violate section 1591 are

not to be referred to § 2X1.1 (Attempt, Solicitation, or Conspiracy). This change implements Congress's direction in 18 U.S.C. 1594 that “whoever attempts to violate section * * * 1591 shall be punishable in the same manner as a completed violation of that section.”

An additional application note—Application Note 12—has been added to § 2G1.1 to provide an encouraged upward departure when an offense “involved substantially more than [6][10][25] victims.” This encouraged upward departure was added in response to Congress's directive that the Commission consider enhanced sentencing in cases which involve “a large number of victims.” A departure note is provided, rather than an enhancement, because of the current special grouping rule in § 2G1.1(d)(1) regarding multiple victims that requires that counts involving different victims not be grouped.

Section 1591 cases have been alternatively referred in Appendix A to § 2G2.1 (Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material). This has been done in anticipation that some portion of section 1591 cases will involve children being forced or coerced to engage in commercial sex acts for the purpose of producing pornography. Such offenses, as recognized by the higher base offense level at § 2G2.1, are more serious because they both involve specific harm to an individual victim and further an additional criminal purpose, commercial pornography. In the interest of consistency and proportionality, the same changes have been made to § 2G2.1 as those discussed above for § 2G1.1.

The proposed amendment conforms to the view that § 2H4.1 (Peonage, Involuntary Servitude, and Slave Trade) continues to be an appropriate tool for determining sentences for violations of 18 U.S.C. 1581, 1583, and 1584 . Section 2H4.1 is also designed to cover offenses under three new statutes, 18 U.S.C. 1589, 1590, and 1592. Section 1589 punishes defendants who provide or obtain the labor services of another by the use of threats of serious harm or physical restraint against a person, or by a scheme or plan intended to make the person believe that if he or she did not perform the labor or services, he or she would suffer physical restraint or serious harm. This statute also applies to defendants who provide or obtain labor services of another by abusing or threatening abuse of the law or the legal process.

See

18 U.S.C. 1589. Section 1590 punishes defendants who harbor, transport, or are otherwise involved in obtaining, a person for labor or services. Section 1592 punishes a defendant who knowingly possesses, destroys, or removes an actual passport, other immigration document, or government identification document of another person in the course of a violation of §§ 1581 (peonage), 1583 (enticement into slavery), 1584 (sale into involuntary servitude), 1589 (forced labor), 1590 (trafficking with respect to these offenses), 1591 (sex trafficking of children by force, fraud or coercion), or 1594(a) (attempts to violate these offenses). Section 1592 also punishes a defendant who, with intent to violate § 1581, § 1583, § 1584, § 1589, § 1590, or § 1591, knowingly possesses, destroys, or removes an actual passport, other immigration document, or government identification document of another person. These statutes prohibit the types of behaviors which have been traditionally sentenced under § 2H4.1.

The proposed amendment provides an alternative, less punitive base offense level for those who violate 18 U.S.C. 1592, an offense which limits participation in peonage cases to the destruction or wrongful confiscation of a passport or other immigration document. This alternative, lower base level reflects the lower statutory maximum sentence set for section 1592 offenses (

i.e.,

5 years). The amendment proposes level [15] as the appropriate level because similar offenses involving documents are punishable at level 15 under § 2L2.1 (Trafficking in a Document Relating to Naturalization, Citizenship or Legal Resident Status or a United States Passport). However, the proposed amendment also includes an additional, bracketed base offense level of [18].

Section 2H4.1(b)(2) has been expanded to provide a 2-level increase if a dangerous weapon was brandished or its use was threatened, with an increase to 4 levels for actual use. Currently, only actual use of a dangerous weapon is covered. This change reflects Congress's directive to consider an enhancement for the “use or threatened use of a dangerous weapon.”

The proposed amendment adds an enhancement at § 2H4.1(b)(3), for offenses involving more than [6][10][25] victims. This change reflects Congress's directive to consider an enhancement for cases “involving a large number of victims.” Also, § 2H4.1, Application Note 3, which formerly provided an encouraged upward departure for offenses involving more than 10 victims, has been altered to encourage departure “if the offense involved substantially more than [6][10][25] victims.”

The proposed amendment also adds § 2H4.1 to the list of guidelines in § 2X1.1 that expressly cover attempts and conspiracies. This change implements Congress's direction in 18 U.S.C. 1594 that “whoever attempts to violate § 1581, § 1583, § 1584, § 1589, § 1590, or § 1591 shall be punishable in the same manner as a completed violation of that section.” With the exception of section 1591, all the specified statutes are referenced to § 2H4.1. Conforming amendments are made to the title of § 2H4.1.

The proposed amendment creates a new guideline, § 2H4.2 (Willful Violations of the Migrant and Seasonal Agricultural Worker Protection Act), in response to Congress's directive to amend the guidelines applicable to such offenses. These offenses, which have a statutory maximum sentence of one year imprisonment for first offenses and three years imprisonment for subsequent offenses, currently are not referred to any specific guideline. The Department of Justice and Department of Labor both recommend creation of a discrete guideline for these offenses. The proposed base offense level (level [4][6]) has been proposed in recognition of the small statutory maximum sentences set for these cases by Congress. Similarly, § 2H4.2(b)(1), an enhancement for bodily injury, and § 2H4.2(b)(2), an enhancement for offenders who commit their offenses after previously sustaining a civil penalty for similar misconduct, have been established to respond to Congress's directive that the Commission consider sentencing enhancement for these offense characteristics. This section addresses the Department of Justice's and the Department of Labor's concern regarding prior administrative and civil adjudications.

This proposed amendment also addresses that portion of section 112 of the Act that amends chapter 77 of title 18, United States Code, to provide mandatory restitution for peonage and involuntary servitude offenses. The proposed amendment amends § 5E1.1 (Restitution) to include a reference to 18 U.S.C. 1593 in the guideline provision regarding mandatory restitution.

Proposed Amendment

Section 2G1.1 is amended by striking subsection (b)(2) in its entirety and inserting the following:

“[(2) If the offense involved a victim who had (A) not attained the age of 12 years, increase by [6][9] levels; (B) attained the age of 12 years but not attained the age of 14 years, increase by [4][6] levels; or (C) attained the age of 14

years but had not attained the age of 16 years, increase by [2][3] levels.]”.

Section 2G1.1(d) is amended by adding at the end the following:

“(2) If the defendant was convicted of an attempt to commit an offense under 18 U.S.C. 1591, do not apply § 2X1.1 (Attempt, Solicitation, or Conspiracy (Not Covered by a Specific Offense Guideline)).”.

The Commentary to § 2G1.1 captioned “Statutory Provisions” is amended by inserting “1591,” before “2421”.

The Commentary to § 2G1.1 captioned “Application Notes” is amended in Note 2 in the fourth sentence by adding “(B)” after “purposes of subsection (b)(1).”.

The Commentary to § 2G1.1 captioned “Application Notes” is amended by adding at the end the following:

“[12.Upward Departure.—If the offense involved substantially more than [6][10][25] victims, an upward departure may be warranted.]”.

The Commentary to § 2G1.1 captioned “Background” is amended by adding at the end the following paragraph:

“This guideline also covers offenses under section 1591 of title 18, United States Code. These offenses involve recruiting or transporting a person in interstate commerce knowing either that (A) force, fraud, or coercion will be used to cause the person to engage in a commercial sex act; or (B) the person (i) had not attained the age of 18 years; and (ii) will be caused to engage in a commercial sex act.”.

Section 2G2.1 is amended by striking subsection (b)(1) in its entirety and inserting the following:

“[(1) If the offense involved a victim who had (A) not attained the age of 12 years, increase by [6][9] levels; (B) attained the age of 12 years but not attained the age of 14 years, increase by [4][6] levels; or (C) attained the age of 14 years but had not attained the age of 16 years, increase by [2][3] levels.]”.

Section 2G2.1(c) is amended by adding at the end the following:

“(2) If the defendant was convicted of an attempt to commit an offense under 18 U.S.C. 1591, do not apply § 2X1.1 (Attempt, Solicitation, or Conspiracy (Not Covered by a Specific Offense Guideline)).”.

The Commentary to § 2G2.1 captioned “Statutory Provisions” is amended by inserting “1591,” before “2251(a)”.

The Commentary to § 2G2.1 captioned “Application Notes” is amended by adding at the end the following:

“[6. Upward Departure.—If the offense involved substantially more than [6][10][25] victims, an upward departure may be warranted.]”.

Section 2H4.1 is amended in the title by adding “; Attempt or Conspiracy” after “Trade”.

Section 2H4.1(a) is amended by striking “22” and inserting the following:

“(1) 22; or

(2) [15][18], if the defendant was convicted only of an offense under 18 U.S.C. 1592.”.

Section 2H4.1(b) is amended by striking subdivision (2) in its entirety and inserting the following:

“[(2) If (i) a dangerous weapon was used, increase by 4 levels; or (ii) a dangerous weapon was brandished or its use was threatened, increase by 2 levels.]”.

Section 2H4.1(b) is amended by redesignating subdivisions (3) and (4) as subdivisions (4) and (5), respectively, and inserting after subdivision (2) the following:

“[(3) If the offense involved more than [6][10][25] victims, increase by [2][4] levels.]”.

The Commentary to § 2H4.1 captioned “Statutory Provisions” is amended by striking “1588” and inserting “1590, 1592”.

The Commentary to § 2H4.1 captioned “Application Notes” is amended by striking the text of Note 3 in its entirety and inserting the following:

“Upward Departure.” If the offense involved substantially more than [6][10][25] victims, an upward departure may be warranted.”.

The Commentary to § 2X1.1 captioned “Application Notes” is amended in Note 1 in the second paragraph by inserting after “2E5.1;” the following new lines:

“§ 2G1.1 (if the defendant was convicted of an attempt to commit an offense under 18 U.S.C. 1591 (

See

18 U.S.C. 1594(a));

§ 2H4.1;”.

The Commentary to § 2X1.1 captioned “Application Notes” is amended in Note 1 in the third paragraph by inserting “2H4.1” after “2H1.1”.

Appendix A (Statutory Index) is amended by inserting after the line referenced to “18 U.S.C. 1588” the following new lines:

“18 U.S.C. 1589 2H4.1

18 U.S.C. 1590 2H4.1

18 U.S.C. 1591 2G1.1, 2G2.1

18 U.S.C. 1592 2H4.1”.

Chapter Two, Part H, is amended in Subpart 4 by adding at the end the following:

“§ 2H4.2. Willful Violations of the Migrant and Seasonal Agricultural Worker Protection Act

(a) Base Offense Level: [4][6].

(b) Specific Offense Characteristics.

(1) If the offense involved (i) serious bodily injury, increase by [4] levels; or (ii) bodily injury, increase by [2] levels.

(2) If the defendant committed any part of the instant offense subsequent to sustaining a civil or administrative adjudication for similar misconduct, increase by [2] levels.

Commentary

Statutory Provision: 29 U.S.C. 1851

Application Notes:

1. Definitions.—For purposes of subsection (b)(1), “bodily injury” and “serious bodily injury” have the meaning given those terms in Application Note 1 of the Commentary to § 1B1.1 (Application Instructions).

2. Application of Subsection (b)(2).—Section 1851 of title 29, United States Code, covers a wide range of conduct. Accordingly, the enhancement in subsection (b)(2) applies only if the instant offense is similar to previous misconduct that resulted in a civil or administrative adjudication under the provisions of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1801

et seq.

).”.

Appendix A (Statutory Index) is amended by inserting after the line referenced to “29 U.S.C. 1141” the following:

“29 U.S.C. 1851 2H4.2”.

Section 5E1.1(a)(1) is amended by inserting “§ 1593,” after “18 U.S.C.”.

The Commentary to § 5E1.1 captioned “Background” is amended in the first paragraph by inserting “1593,” after “18 U.S.C. §§ ”.

Part (B): Proposed Non-Emergency Amendments

Proposed Amendment: Sexual Predators

5.

Synopsis of Proposed Amendment:

This is a three-part amendment that includes:

(A) Amendments to implement the “pattern of activity” directive in the Protection of Children from Sexual Predators Act of 1998, Pub. L. 105-314 (the “Act”), and related amendments.

(B) Amendments related to grouping certain child pornography counts of conviction.

(C) Amendments to implement the directive in the Act to provide an enhancement for transportation offenses under chapter 117 of title 18, United States Code, and other related amendments.

Part (A): Enhancement for Pattern of Activity

Synopsis:

Part A proposes several options, including a possible combination of approaches to satisfy the

Congressional directive in the Act that requires the Commission to increase the penalties in any case in which the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor. There are many types of conduct that may indicate that a defendant is a high risk sex offender engaging in a pattern of prohibited sexual conduct. Each of these components considers various aspects of sex offenders and the types of activity involved in a pattern of behavior. There are four options presented by this amendment that could be used either in combination or alone to implement the directive. In addition to these four options, the proposal amends the guideline covering terms of supervised release, § 5D1.2, to provide that the term of supervised release for a defendant convicted of a sex crime shall be the maximum term authorized by statute.

The first option would create a new Chapter Four guideline, § 4B1.5, that aims to incapacitate high risk sex offenders who have an instant offense of conviction of sexual abuse and a prior felony conviction for sexual abuse. Two options are contained within this option. Option 1A sanctions defendants whose instant offense of conviction and prior conviction involve prohibited sexual conduct. In contrast to option 1B, option 1A increases the defendant's criminal history to not less than category IV or V, as opposed to criminal history category VI. Option 1A also includes a wider range of offenses involving prohibited sexual conduct. Under Option 1A, chapter 109A offenses are bracketed for either (1) possible exclusion from the scope of instant offenses of conviction that would trigger the guideline, or (2) limiting those offenses to those that are perpetrated against a minor. Excluding chapter 109A offenses focuses application of the guideline to those defendants who use the internet or other interstate means to prey on minors.

Option 1B tracks legislation from the 106th Congress that proposed a mandatory minimum life sentence for defendants whose instant offense of conviction and prior conviction involved direct sexual contact. This option provides for sentences at or near the statutory maximum for these types of defendants.

The second option would create a Chapter Four guideline, § 4B1.6, that provides a five-level increase (and a minimum offense level of level 32) for defendants who engage in a pattern of activity involving prohibited sexual conduct. This guideline requires that (1) the defendant's instant offense of conviction is a sex crime; and (2) the defendant previously has engaged in two or more instances of prohibited sexual conduct, whether or not that conduct resulted in a conviction.

The third option would provide a Chapter Two specific offense characteristic in the sexual abuse guidelines. This specific offense characteristic mirrors the current pattern of activity adjustment in § 2G2.2 (Trafficking in Material Involving the Sexual Exploitation of a Minor). A defendant who abuses or exploits a minor on two or more occasions will receive a two-level increase in offense level pursuant to this enhancement.

The fourth option provides language encouraging an upward departure for a defendant who commits repeated acts of sexual abuse of the same minor. This component would allow courts to sanction a defendant for a pattern of multiple acts of abuse of the same victim over a period of time.

Proposed Amendment

(1) Option 1: Chapter Four, Part B, is amended by adding at the end the following:

“§ 4B1.5. Repeat and Dangerous Sex Offender

(a) A defendant is a repeat and dangerous sex offender if—

(1) The instant offense of conviction is a sex crime; and

(2) The defendant committed the instant offense of conviction subsequent to sustaining at least one sex offense conviction.

(b) If (1) a repeat and dangerous sex offender is not a career offender pursuant to § 4B1.1 (Career Offender); and (2) the offense level for that repeat and dangerous sex offender from the table below is greater than the offense level otherwise applicable, the offense level from the table below shall apply.

Offense statutory maximum

Offense level

(A) Life

[37]

(B) 25 years or more

[34]

(C) 20 years or more, but less than 25 years

[32]

(D) 15 years or more, but less than 20 years

[29]

(E) 10 years or more, but less than 15 years

[24]

(F) 5 years or more, but less than 10 years

[17]

(G) More than 1 year, but less than 5 years

[12]

(c) If an adjustment from § 3E1.1 (Acceptance of Responsibility) applies, decrease the applicable offense level in subsection (b) by the number of levels corresponding to that adjustment.

(d) A repeat and dangerous sex offender's criminal history category in every case shall be [Option 1A: not less than Category [IV][V]] [Option 1B: Category VI].

Commentary

Application Notes:

1. Definitions.—For purposes of this guideline:

‘Offense Statutory Maximum’ means the maximum term of imprisonment authorized for the instant offense of conviction that is a sex crime, including any increase in that maximum term under a sentencing enhancement provision that applies to that sex crime because of the defendant's prior criminal record (such as the sentencing enhancement provisions contained in 18 U.S.C. §§ 2247(a) and 2426(a)).

[Option 1A:

‘Sex offense conviction’ has the meaning given that term in 18 U.S.C. § 2426, but such term does not include trafficking in, receipt of, or possession of, child pornography.

2. Requirement of Sex Crime as Instant Offense of Conviction.—For purposes of subsection (a)(1), the instant offense of conviction must be an instant offense of conviction under [chapter 109A,] [chapter 109A perpetrated against a minor,] chapter 110 (not including trafficking in, receipt of, or possession of, child pornography, or recordkeeping offenses), or chapter 117 (not including transmitting information about a minor or filing a factual statement about alien individual), of title 18, United States Code, or an attempt or a conspiracy to commit such an offense.]

[Option 1B:

‘Sex offense conviction’ means a prior conviction for (A) any sex crime referred to in Application Note 2; or (B) any offense under State law consisting of conduct that would have been such a sex crime if the conduct had occurred within the special maritime and territorial jurisdiction of the United States. The term “State” has the meaning given that term in 18 U.S.C. § 2426(b)(2).

2. Requirement of Sex Crime as Instant Offense of Conviction.—For purposes of subsection (a)(1), the instant offense of conviction must be an instant offense of conviction under 18 U.S.C. § 2241, § 2242, § 2243, § 2244, § 2245, § 2251A, or § 2423, including an attempt or conspiracy to commit such an offense.]

3. Determination of Prior Sex Offense Convictions Under Subsection (a)(2).—For purposes of subsection (a)(2), the date that a defendant sustained a conviction shall be the date that the

guilt of the defendant was established, whether by guilty plea, trial or plea of nolo contendere.

4. Determination of Offense Statutory Maximum in the Case of Multiple Counts of Conviction.—In a case in which more than one count of the instant offense of conviction is a felony that is a sex crime, the court shall use the maximum authorized term of imprisonment for the count that has the greatest offense statutory maximum, for purposes of determining the offense statutory maximum under subsection (b).

[5. Departure Provision.—There may be cases in which reliable information indicates that the guideline sentence resulting from application of this guideline either understates or overstates the likelihood that the defendant will commit another sexual offense, or the seriousness of the defendant's criminal history. In such cases, an upward or a downward departure, respectively, may be warranted. Such reliable information may include, for example, risk assessments and other expert testimony regarding the likelihood of recidivism.]”.

(2) Option 2:

Chapter Four, Part B, [as amended by this amendment,] is amended by adding at the end the following:

“§ 4B1.6 Sexual Predator

If—

(a) the defendant is not a career offender pursuant to § 4B1.1 (Career Offender) and is not a repeat and dangerous sex offender pursuant to § 4B1.5 (Repeat and Dangerous Sex Offender); and

(b)(1) the instant offense of conviction is a sex offense that the defendant committed as part of a pattern of activity involving prohibited sexual conduct [with a minor]; [[and][or] (2) the instant offense of conviction is a sex offense and the defendant is a sexual predator],

increase by [5] levels; but if the resulting offense level is less than [32][30], increase to level [32][30].

Commentary

Application Notes:

1. Definitions.—For purposes of this guideline:

‘Sex offense’ means an offense under [chapter 109A,] [chapter 109A perpetrated against a minor,] chapter 110 (not including trafficking, receipt, or possession of, child pornography), or chapter 117 of title 18, United States Code, or an attempt or a conspiracy to commit any such offense.

‘Pattern of activity’ means any combination of two or more prior separate instances of prohibited sexual conduct by the defendant with a minor victim other than a minor victim of the instant offense of conviction, whether or not the conduct resulted in a conviction for such conduct.

‘Prohibited sexual conduct’ (A) means any sexual activity for which a person can be charged with a criminal offense; (B) includes the production of child pornography; (C) includes trafficking in child pornography if the defendant has a prior felony conviction for trafficking in child pornography; and (D) does not include possession of child pornography. ‘Child pornography’ has the meaning given that term in 18 U.S.C. 2256(8).

[2. Sexual Predator Determination.—For purposes of this guideline, the defendant is a sexual predator if the court determines, under the totality of the circumstances, that the defendant is likely to continue to engage in prohibited sexual conduct with minors in the future. [In making this determination, the court may rely on information such as expert psychosexual evaluations and other reliable evidence.]]

Background: This guideline is intended to provide lengthy incarceration for offenders who present a continuing danger to the public. It applies to any offender whose instant offense of conviction is a sex offense, regardless of the specific sex offense of conviction or Chapter Two guideline under which the offender is sentenced. The relevant criminal provisions provide for increased statutory maximum penalties for repeat sex offenders and make those increased statutory maximum penalties available if the defendant was convicted of any of several federal and state sex offenses (see 18 U.S.C. 2247, 2426). In addition, section 632 of Pub. L. 102-141 and section 505 of Pub. L. 105-314 directed the Commission to ensure lengthy incarceration for offenders who engage in a pattern of activity involving the sexual abuse or exploitation of minors.

[The guideline is intended to target those dangerous offenders for whom future sex offending is likely. Research has shown that recidivism rates vary depending on characteristics of the offender that may be determined at the time of sentencing, such as a proven sexual preference for minors or other psychopathy. Psychosexual evaluations by certified professionals using empirically-validated risk assessment instruments may be useful to identify those offenders who are most likely to reoffend.]

The statutory maximum term of supervised release is recommended for offenders sentenced under this guideline. In addition, treatment and monitoring are important tools for supervising offenders and should be considered as special conditions of the term of supervised release that is imposed.]”.

(3) Option Three: Section 2A3.1(b) is amended by adding at the end the following:

“(7) If the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor, increase by [2] levels.”.

The Commentary to § 2A3.1 captioned “Application Notes” is amended by adding at the end the following:

“8. Pattern of Activity Enhancement.—

‘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 (including trafficking in material relating to the sexual abuse or exploitation of a minor), abusive sexual contact of a minor, any similar offense under state law, any offense involving the promotion or enticement of minors to engage in sexual activity, or an attempt or a conspiracy to commit any of the above offenses.

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)(7) 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)(7) but that enhancement does not adequately reflect the seriousness of the sexual abuse or exploitation involved or the likelihood of recidivism.

Prior convictions taken into account under subsection (b)(7) are also counted for purposes of determining criminal history points pursuant to Chapter Four, Part A (Criminal History).”.

Section 2A3.2(b) is amended by adding at the end the following:

“(5) If the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor, increase by [2] levels.”.

The Commentary to § 2A3.2 captioned “Application Notes” is amended by adding at the end the following:

“9. Pattern of Activity Enhancement.—

‘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 (including trafficking in material relating to the sexual abuse or exploitation of a minor), abusive sexual contact of a minor, any similar offense under state law, any offense involving the promotion or enticement of minors to engage in sexual activity, or an attempt or a conspiracy to commit any of the above offenses.

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)(5) 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)(5) but that enhancement does not adequately reflect the seriousness of the sexual abuse or exploitation involved or the likelihood of recidivism.

Prior convictions taken into account under subsection (b)(5) are also counted for purposes of determining criminal history points pursuant to Chapter Four, Part A (Criminal History).”.

Section 2A3.3(b) is amended by adding at the end the following:

“(3) If the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor, increase by [2] levels.”.

The Commentary to § 2A3.3 captioned “Application Notes” is amended by adding at the end the following:

“5. Pattern of Activity Enhancement.—

‘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 (including trafficking in material relating to the sexual abuse or exploitation of a minor), abusive sexual contact of a minor, any similar offense under state law, any offense involving the promotion or enticement of minors to engage in sexual activity, or an attempt or a conspiracy to commit any of the above offenses.

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)(3) 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)(3) but that enhancement does not adequately reflect the seriousness of the sexual abuse or exploitation involved or the likelihood of recidivism.

Prior convictions taken into account under subsection (b)(3) are also counted for purposes of determining criminal history points pursuant to Chapter Four, Part A (Criminal History).”.

Section 2A3.4(b) is amended by adding at the end the following:

“(6) If the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor, increase by [2] levels.”.

The Commentary to § 2A3.4 captioned “Application Notes” is amended by adding at the end the following:

“9. Pattern of Activity Enhancement.—

‘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 (including trafficking in material relating to the sexual abuse or exploitation of a minor), abusive sexual contact of a minor, any similar offense under state law, any offense involving the promotion or enticement of minors to engage in sexual activity, or an attempt or a conspiracy to commit any of the above offenses.

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)(6) 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)(6) but that enhancement does not adequately reflect the seriousness of the sexual abuse or exploitation involved or the likelihood of recidivism.

Prior convictions taken into account under subsection (b)(6) are also counted for purposes of determining criminal history points pursuant to Chapter Four, Part A (Criminal History).”.

(4) Option Four: The Commentary to § 2A3.1 captioned “Application Notes” is amended by adding at the end the following:

“8. Upward Departure Provision.—If the defendant committed repeated acts of sexual abuse of the same minor over a period of time and the court determines that the guideline has not adequately taken these repeated acts into account, an upward departure may be warranted.”.

The Commentary to § 2A3.2 captioned “Application Notes” is amended by adding at the end the following:

“9. Upward Departure Provision.—If the defendant committed repeated acts of sexual abuse of the same minor over a period of time and the court determines that the guideline has not adequately taken these repeated acts into account, an upward departure may be warranted.”.

The Commentary to § 2A3.3 captioned “Application Notes” is amended by adding at the end the following:

“5. Upward Departure Provision.—If the defendant committed repeated acts of sexual abuse of the same minor over a period of time and the court determines that the guideline has not adequately taken these repeated acts into account, an upward departure may be warranted.”.

The Commentary to § 2A3.4 captioned “Application Notes” is amended by adding at the end the following:

“9. Upward Departure Provision.—If the defendant committed repeated acts of sexual abuse of the same minor over a period of time and the court determines that the guideline has not adequately taken these repeated acts into account, an upward departure may be warranted.”.

(5) Conforming Amendments: The Commentary to § 2A3.1 captioned “Application Notes” is amended by striking Notes 5 and 7 in their entirety; and by redesignating Note 6 as Note 5.

The Commentary to § 2A3.2 captioned “Application Notes” is amended by striking Note 8.

The Commentary to § 2A3.3 captioned “Application Notes” is amended by striking Note 4.

The Commentary to § 2A3.4 captioned “Application Notes” is amended by striking Note 8.

(6) Supervised Release Provision: Section 5D1.2 is amended by striking subsection (b) in its entirety and inserting the following:

“(b) Except as otherwise provided—

(1) The term of supervised release imposed shall be not less than any statutorily required term of supervised release; and

(2) If the instant offense of conviction is a sex offense, the term of supervised release shall be the maximum term of supervised release authorized by statute.”.

The Commentary to § 5D1.2 captioned “Application Notes” is amended in Note 1 by inserting “Safety Valve Cases.—” before “A defendant who qualifies”; in Note 2 by inserting “Supervised Release Cases.—” before “Upon motion of the Government”; by redesignating Notes 1 and 2 as Notes 2 and 3, respectively; and by inserting before Note 2, as redesignated by this amendment, the following:

“1. Definition.—For purposes of this guideline, the term ‘sex offense’ means an offense under [chapter 109A,] [chapter 109A perpetrated against a minor,] chapter 110 (not including trafficking, receipt, or possession of, child pornography), or chapter 117 of title 18, United States Code, or an attempt or a conspiracy to commit any such offense.”.

Issue for Comment:

Option Two proposes a new guideline at § 4B1.6 that would provide a five-level increase and a minimum offense level of level [32] if the defendant is a sexual predator. As highlighted by the bracketed language “[and][or]” in § 4B1.6(b)(2), the Commission invites comment regarding whether the court must find both that the defendant is a sexual predator and that the defendant engaged in a pattern of activity involving sexual abuse or exploitation, or whether a finding of one of these factors would be sufficient in order for the five-level increase to apply.

Part (B): Grouping

Synopsis:

Part B of the proposed amendment resolves a circuit conflict regarding who the “victim” is in child pornography cases for purposes of grouping of multiple counts. The amendment proposes two options for resolving the circuit conflict on the grouping of multiple counts of child pornography trafficking, receipt, and possession. Option One would allow grouping of child pornography trafficking and possession counts pursuant to § 3D1.2(d). This grouping provision does not require a determination of whether counts involve the same victim in order to calculate a combined adjusted offense level for multiple counts of conviction. Option Two would not permit the grouping of multiple counts of child pornography trafficking and possession pursuant to § 3D1.2. This option is based on the premise that multiple acts of possession or trafficking represent separate instances of fear and risk of harm, and would require the assignment of units pursuant to § 3D1.4.

Proposed Amendment

(1) Option One: Section 3D1.2(d) is amended by inserting after “§§ 2F1.1, 2F1.2;” the following new line:

“§§ 2G2.2, 2G2.4;”.

(2) Option Two: The Commentary to § 2G2.1 captioned “Application Notes” is amended in Note 2 by adding at the end the following new paragraph:

“Similarly, [multiple counts involving the exploitation of the same minor are not to be grouped under § 3D1.2 and] counts involving the production of material involving the exploitation of a minor are not to be grouped under § 3D1.2 with counts involving the trafficking of material involving the exploitation of a minor, even in cases in which the production count and the trafficking count involve the same minor (

i.e.

, cases that involve both a count of producing material involving the exploitation of a minor and a count of trafficking in the same material). In such cases, the harm involved in producing the material is separate and distinct from the harm involved in trafficking in that material.”.

The Commentary to § 2G2.2 captioned “Application Notes” is amended by adding at the end the following application note:

“4. For purposes of Chapter Three, Part D (Multiple Counts), multiple counts involving trafficking in, receiving, transporting, shipping, advertising, or possessing with the intent to distribute, material involving the exploitation of a minor are not to be grouped under § 3D1.2 (Groups of Closely Related Counts). Such counts do not involve ‘substantially the same harm’ for purposes of § 3D1.2.

Similarly, such counts are not to be grouped under § 3D1.2 with counts involving the production of material involving the exploitation of a minor, even in cases in which the production count and the trafficking count involve the same minor (

i.e.

, cases that involve both a count of producing material involving the exploitation of a minor and a count of trafficking in the same material). In such cases, the harm involved in producing the material is separate and distinct from the harm involved in trafficking in that material.”.

The Commentary to § 2G2.4 captioned “Application Notes” is amended by adding at the end the following application note:

“3. For purposes of Chapter Three, Part D (Multiple Counts), multiple counts involving the possession of material involving the exploitation of a minor are not to be grouped under § 3D1.2 (Groups of Closely Related Counts). Such counts do not involve ‘substantially the same harm’ for purposes of § 3D1.2.”.

Section 3D1.2(d) is amended by inserting “, 2G2.2, 2G2.4;” after “2G2.1”.

Part (C): Enhancement for Transportation Offenses and Other Amendments

Synopsis:

Part C of the proposed amendment responds to the directive in the Act to provide an enhancement for offenses under chapter 117 of title 18, United States Code, involving the transportation of minors for prostitution or prohibited sexual conduct. Pursuant to the authority in the Act and pursuant to the Commission's general authority under 28 U.S.C. 994 to promulgate guideline amendments, the amendment proposes a number of offense level increases in § 2A3.2, the “statutory rape” guideline, and in § 2A3.4, the abusive sexual contact guideline. Specifically, the amendment proposes to do the following:

(1) Distinguish between chapter 117 violations that involve the commission of an underlying sexual act and those violations (

e.g.

, sting cases) that do not, by providing in an alternative base offense level in § 2A3.2 three additional levels for chapter 117 violations that also involve an underlying sexual act.

(2) Provide an across-the-board three-level increase in the base offense level for offenses sentenced under § 2A3.2, such that the base offense level (A) for statutory rape in its most basic form unaccompanied by aggravating conduct is increased from level 15 to level 18; (B) for a chapter 117 violation (unaccompanied by a sexual act) is increased from level 18 to level 21; and (C) a chapter 117 violation (accompanied by a sexual act) results in a base offense level of level 24. This increase also maintains the proportionality between §§ 2A3.2 and 2G2.2.

(3) Provide an enhancement of 2 levels if the offense involved incest as

an additional enhancement to the two-level enhancement for custody, care, or supervisory control, and provide in the Commentary a definition of “incest” that tracks that found in the Model Penal Code. A review of the 228 case files from FY 99 that involved sex crimes against children revealed that 26% of the offenders were parents or relatives of the victim. Additionally, 45 other offenders were either the boyfriend/girlfriend of the parent, or a step-parent or step grandparent of the victim.

(4) Amend the Statutory Index to include a reference to the statutory rape guideline, § 2A3.2, for chapter 117 offenses. Often in “sting” cases, the defendant travels across state lines in order to meet a minor for what the defendant believes will be an encounter involving consensual sexual activity.

(5) Make conforming changes to the existing three-level decrease for chapter 117 violations that do not include aggravating conduct so that such violations receive the offense level applicable to statutory rape in its basic form.

(6) Make technical changes (such as the addition of headings and the reordering of applications notes) not intended to have substantive effect.

In addition, the amendment proposes to amend the guideline covering the production of child pornography, § 2G2.1, to provide additional enhancements to account for aggravating conduct that may be present in such cases, specifically, the production of sadistic or masochistic material, serious bodily injury, or the trafficking of produced materials. Note that the addition of the enhancement in § 2G2.1 for the production of sadistic or masochistic material would result in the grouping of child pornography trafficking and production counts of conviction under § 3D1.2(c), contrary to the proposal in Option 2 of Part B of this amendment. These amendments also are intended to restore proportionality in sentences between child pornography production offenses and child pornography trafficking offenses.

Proposed Amendment

Section 2A3.1(b) is amended by adding at the end the following:

“(7) If the offense involved incest, increase by 2 levels.”.

The Commentary to § 2A3.1 captioned “Application Notes” is amended in Note 1 by striking “For purposes of this guideline—” and inserting the following:

“Definitions.—For purposes of this guideline:

‘Incest’ means any sexual act between the defendant and the victim in any case in which the defendant-victim relationship is that of (A) ancestor-descendant (

e.g.

, parent-child and grandparent-child); (B) brother-sister of the whole or half blood; (C) sister-brother of the whole or half blood; (D) uncle-nephew of the whole blood; (E) uncle-niece of the whole blood; (F) aunt-nephew of the whole blood; or (G) aunt-niece of the whole blood. The relationships referred to in this definition include blood relationships without regard to legitimacy, the relationship of parent-child by adoption, and the relationship of step parent-step child.”; and by inserting after “18 U.S.C. 2256(8).” the following new paragraph:

“ ‘Sexual act’ has the meaning given that term in 18 U.S.C. 2246(2).”.

The Commentary to § 2A3.1 captioned “Application Notes” is amended in Note 2 by inserting “Custody, Care, and Supervisory Control Enhancement.—” before “Subsection”.

Section 2A3.2(a) is amended by redesignating subdivisions (1) and (2) as subdivisions (2) and (3), respectively; and by inserting after “Base Offense Level:” the following:

“(1) [24], if the offense involved a violation of chapter 117 of title 18, United States Code and the commission, or attempted commission, of a sexual act;”.

Section 2A3.2(a) is amended in redesignated subdivision (2) by striking “18” and inserting “[21]”; and by inserting “, but not the commission, or attempted commission, of a sexual act” before the semicolon.

Section 2A3.2(a) is amended in redesignated subdivision (3) by striking “15” and inserting “[18]”.

Section 2A3.2(b) is amended by striking subdivision (4) in its entirety and inserting the following:

“(4) If (A) none of subsections (b)(1) through (b)(3) applies; and (B) subsection (a)(1) applies, decrease by 6 levels.”;

By redesignating subdivision (4) as subdivision (5); and by inserting after subdivision (3) the following:

“(4) If the offense involved incest, increase by 2 levels.”.

The Commentary to § 2A3.2 captioned “Application Notes” is amended in Note 1 by striking “For purposes of this guideline—” and inserting the following:

“Definitions.—For purposes of this guideline:

‘Incest’ means any sexual act between the defendant and the victim in any case in which the defendant-victim relationship is that of (A) ancestor-descendant (

e.g.

, parent-child and grandparent-child); (B) brother-sister of the whole or half blood; (C) sister-brother of the whole or half blood; (D) uncle-nephew of the whole blood; (E) uncle-niece of the whole blood; (F) aunt-nephew of the whole blood; or (G) aunt-niece of the whole blood. The relationships referred to in this definition include blood relationships without regard to legitimacy, the relationship of parent-child by adoption, and the relationship of step parent-step child.”; and by inserting after “(sexual abuse)” the following paragraph:

“ ‘Sexual act’ has the meaning given that term in 18 U.S.C. 2246(2).”.

The Commentary to § 2A3.2 captioned “Application Notes” is amended by striking Note 2 in its entirety; and by redesignating Notes 3 through 7 as Notes 2 through 6, respectively.

The Commentary to § 2A3.2 captioned “Application Notes” is amended in redesignated Note 2 (formerly Note 3) by inserting “Custody, Care, and Supervisory Control Enhancement.—” before “Subsection”; and by inserting “(A)” after “(b)(1)”.

The Commentary to § 2A3.2 captioned “Application Notes” is amended in redesignated Note 3 (formerly Note 4) by inserting “Abuse of Position of Trust.—” before “If the”; and by inserting “(A) or (B)” after “(b)(1)”.

The Commentary to § 2A3.2 captioned “Application Notes” is amended in redesignated Note 4 (formerly Note 5) by inserting “Misrepresentation of Identity.—” before “The enhancement”.

The Commentary to § 2A3.2 captioned “Application Notes” is amended in redesignated Note 5 (formerly Note 6) by inserting “Use of Computer or Internet-Access Device.—” before “Subsection (b)(3) provides”.

The Commentary to § 2A3.2 captioned “Application Notes” is amended in redesignated Note 6 (formerly Note 7) by inserting “Cross Reference.—” before “Subsection (c)(1)”.

The Commentary to § 2A3.2 captioned “Application Notes” is amended by striking Note 8 in its entirety and inserting the following:

“7. Upward Departure Considerations.—There may be cases in which the offense level determined under this guideline substantially understates the seriousness of the offense. In such cases, an upward departure may be warranted. The following is a non-exhaustive list of factors that the court may consider in determining whether an upward departure is warranted:

(A) The defendant's criminal history includes a prior sentence for conduct that is similar to the instant offense.

(B) The defendant committed the criminal sexual act in furtherance of a commercial scheme such as pandering, transporting persons for the purpose of prostitution, or the production of pornography.”.

Section 2A3.4(b) is amended by adding at the end the following:

“(6) If the offense involved incest, increase by 2 levels.

(7) If the offense involved a violation of chapter 117 of title 18, United States Code, increase by 3 levels.”.

The Commentary to § 2A3.4 captioned “Application Notes” is amended in Note 1 by striking “For purposes of this guideline—” and inserting the following:

“Definitions.—For purposes of this guideline:

‘Incest’ means any sexual act between the defendant and the victim in any case in which the defendant-victim relationship is that of (A) ancestor-descendant (

e.g.

, parent-child and grandparent-child); (B) brother-sister of the whole or half blood; (C) sister-brother of the whole or half blood; (D) uncle-nephew of the whole blood; (E) uncle-niece of the whole blood; (F) aunt-nephew of the whole blood; or (G) aunt-niece of the whole blood. The relationships referred to in this definition include blood relationships without regard to legitimacy, the relationship of parent-child by adoption, and the relationship of step parent-step child.”;

and by inserting at the end the following:

“ ‘Sexual act’ has the meaning given that term in 18 U.S.C. § 2246(2).”.

Section 2G2.1(b) is amended by adding at the end the following:

“(4) If (A) the offense involved the production of sexually explicit material that portrays sadistic or masochistic conduct or other depictions of violence; or (B) the victim sustained serious bodily injury, increase by [2][4] levels.

(5) If the offense involved any distribution of the sexually explicit material, increase by [2] levels.”.

The Commentary to § 2G2.1 captioned “Application Notes” is amended by striking Note 1 in its entirety and inserting the following:

“1. Definitions.—For purposes of this guideline:

‘Minor’ means an individual who had not attained the age of 18 years.

‘Distribution’ has the meaning given that term in Application Note 1 of the Commentary to § 2G2.2 (Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving, Transporting, Advertising, or Possessing Material Involving the Sexual Exploitation of a Minor with Intent to Traffic).”.

Appendix A (Statutory Index) is amended in the line referenced to “18 U.S.C. § 2423(b)” by inserting “, 2A3.4” after “2A3.3”.

Issues for Comment

(1) The Commission invites comment on whether and, if so, to what extent, the guidelines covering sexual abuse, §§ 2A3.1 (Criminal Sexual Abuse), 2A3.2 (Criminal Sexual Abuse of a Minor (Statutory Rape)), 2A3.3 (Criminal Sexual Abuse of a Ward), and 2A3.4 (Abusive Sexual Contact), should be amended to provide an enhancement if the offense involved the transportation, persuasion, inducement, enticement, or coercion of a child to engage in prohibited sexual conduct. Do enhancements added to these guidelines (that became effective November 1, 2000) for use of a computer and/or misrepresentation of a criminal participant's identity sufficiently provide an appropriate enhancement, or is an additional enhancement in these guidelines for other aggravating conduct needed?

(2) The Commission invites comment on whether and, if so, to what extent, the guidelines covering sexual abuse, §§ 2A3.1 (Criminal Sexual Abuse), 2A3.2 (Criminal Sexual Abuse of a Minor (Statutory Rape)), 2A3.3 (Criminal Sexual Abuse of a Ward), and 2A3.4 (Abusive Sexual Contact), should be amended to provide an enhancement in order to maintain proportionality between these guidelines and the guidelines covering pornography offenses, particularly, 2G2.2 (Trafficking In Material Involving the Sexual Exploitation of a Minor).

Proposed Amendment: Stalking and Domestic Violence

6.

Synopsis of Proposed Amendment:

This proposed amendment addresses section 1107 of the Victims of Trafficking and Violence Act 2000 (the “Act”), Pub. L. 106-386. That section amends 18 U.S.C. 2261, 2261A, and 2262 to broaden the reach of these statutes to include international travel to stalk, commit domestic violence, or violate a protective order. Section 2261A also is amended to broaden the category of persons protected by this statute to include intimate partners of the person. The Act also amends section 2261A to provide a new offense at section 2262A(2) which prohibits the use of the mail or any facility of interstate or foreign commerce to commit a stalking offense. Several technical changes were also made to these statutes.

The Act also includes a directive to the Commission to amend the federal sentencing guidelines to reflect the changes made to 18 U.S.C. 2261 with specific consideration to be given to the following factors:

(i) Whether the Federal Sentencing Guidelines relating to stalking offences should be modified in light of the amendment made by this subsection; and

(ii) Whether any changes the Commission may make to the Federal Sentencing Guidelines pursuant to clause (i) should also be made with respect to offenses under chapter 110A of title 18, United States Code (stalking and domestic violence offenses).

This proposed amendment increases the base offense level in § 2A6.2 (Stalking or Domestic Violence) and adds a cross reference to § 1B1.5 (Interpretation of References to Other Offense Guidelines).

For several reasons, the proposed amendment treats the new stalking by mail offense the same under the guidelines as other stalking offenses and covers it under § 2A6.2 (Stalking or Domestic Violence). First, the statutory penalties for stalking by mail are the same as the statutory penalties for other stalking offenses. Second, although there was some consideration to referring this new offense to § 2A6.1 (Threatening or Harassing Communications), stalking by mail offenses differ significantly from threatening communications in that stalking by mail offenses require the defendant's intent to kill, or injure a person, or place a person in reasonable fear of death or serious bodily injury. Third, referencing stalking by mail offenses to § 2A6.1, could possibly result in these offenses receiving higher penalties than other stalking offenses. For example, a defendant who writes a threatening letter, violates a protective order and engages in some conduct evidencing an intent to carry out such threat, receives an offense level of level 20 under § 2A6.1. A defendant who commits a stalking offense, violates a protective order, and actually commits bodily injury on the person who is the subject of the protection order, receives an offense level of level 18 under § 2A6.2. Arguably, the second defendant should receive punishment, equal to, or perhaps greater than that received by the first defendant.

Because of the concern with regard to the proportionality in sentencing stalking and domestic violence offenses vis-a-vis other crimes, such as

threatening or harassing communications, this amendment proposes to increase the base offense level in § 2A6.2 from level 14 to level [16][18]. Setting the base offense level at level [16] [18] for stalking and domestic violence crimes ensures that these offenses are sentenced at or above the offense levels for offenses involving threatening and harassing communications.

This amendment also amends Application Note 3 to § 1B1.5 (Interpretation of References to Other Offense Guidelines) to clarify generally the operation of cross references. A review of the 16 cases sentenced under this guideline in fiscal years 1998 and 1999 indicated that there is some confusion as to whether a cross reference can and should be applied to conduct that is not within federal jurisdiction (

e.g.

, conduct in violation of state or local law) as is often the case in stalking and domestic violence offenses. This new application note makes clear that, unless otherwise specified, cross references in Chapter Two are to be determined consistent with the provisions of § 1B1.3 (Relevant Conduct). Therefore, in a case in which the guideline includes a reference to use another guideline if the conduct involved another offense, the other offense includes conduct that may be a state or local offense or conduct that occurred under circumstances that would constitute a federal offense had the conduct taken place within the territorial or maritime jurisdiction of the United States.

Proposed Amendment

Section 2A6.2(a) is amended by striking “14” and inserting “[16][18]”.

The Commentary to § 2A6.2 captioned “Application Notes” is amended in Note 1 by striking the last paragraph in its entirety and inserting:

“Stalking’ means (A) traveling with the intent to kill, injure, harass, or intimidate another person and, in the course of, or as a result of, such travel, placing the person in reasonable fear of death or serious bodily injury to that person, the person's immediate family, including that person's spouse or intimate partner; or (B) using the mail or any facility of interstate or foreign commerce to engage in a course of conduct that places that person in reasonable fear of the death of, or serious bodily injury to, any of the persons described in subdivision (A) of this note.

See

18 U.S.C. § 2261A. ‘Immediate family’ has the meaning set forth in 18 U.S.C. § 115(c)(2). ‘Course of conduct’ and ‘spouse or intimate partner’ have the meaning given those terms in 18 U.S.C. § 2266(2) and (7), respectively.”.

The Commentary to § 1B1.5 captioned “Application Notes” is amended in Note 3 by inserting after the first sentence the following:

“Consistent with the provisions of § 1B1.3 (Relevant Conduct), such other offense includes conduct that may be a state or local offense or conduct that occurred under circumstances that would constitute a federal offense had the conduct taken place within the territorial or maritime jurisdiction of the United States.”.

Proposed Amendment: Re-Promulgation of Emergency Amendment Regarding Enhanced Penalties for Amphetamine or Methamphetamine Laboratory Operators as Permanent Amendment

7.

Synopsis of Proposed Amendment:

This proposed amendment addresses the “substantial risk” directive in the Methamphetamine and Club Drug Anti-Proliferation Act of 2000 (the “Act”), section 102 of Pub. L. 106-310.

The Act requires the Commission to promulgate amendments under emergency amendment authority. Although the Act generally provides that the Commission shall promulgate various amendments “as soon as practicable,” the substantial risk directive specifically requires that the amendment implementing the directive shall apply “to any offense occurring on or after the date that is 60 days after the date of the enactment” of the Act. Because of ex post facto concerns raised by this 60-day clause, the Commission promulgated an amendment in November 2000 that implemented the substantial risk directive. The amendment became effective December 16, 2000.

The directive instructs the Commission to amend the federal sentencing guidelines with respect to any offense relating to the manufacture, attempt to manufacture, or conspiracy to manufacture amphetamine or methamphetamine in (A) the Controlled Substances Act (21 U.S.C. 801

et seq.

); (B) the Controlled Substances Import and Export Act (21 U.S.C. 951

et seq.

); or (C) the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901

et seq.

).

In carrying out this directive, the Act requires the Commission to provide the following enhancements—

(A) if the offense created a substantial risk of harm to human life (other than a life described in subparagraph (B)) or the environment, increase the base offense level for the offense—

(i) By not less than 3 offense levels above the applicable level in effect on the date of the enactment of this Act; or

(ii) If the resulting base offense level after an increase under clause (i) would be less than level 27, to not less than level 27; or

(B) If the offense created a substantial risk of harm to the life of a minor or incompetent, increase the base offense level for the offense—

(i) By not less than 6 offense levels above the applicable level in effect on the date of the enactment of this Act; or

(ii) if the resulting base offense level after an increase under clause (i) would be less than level 30, to not less than level 30.

Three options are now presented to implement the directive on a permanent basis.

Option 1.—Option 1 proposes to re-promulgate the emergency amendment without any changes. The pertinent parts of Option 1 are as follows:

(1) Guidelines Amended.—The amendment provides new enhancements in §§ 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking) and 2D1.10 (Endangering Human Life While Illegally Manufacturing a Controlled Substance) that also apply in the case of an attempt or a conspiracy to manufacture amphetamine or methamphetamine. The amendment does not amend § 2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical) or § 2D1.12 (Unlawful Possession, Manufacture, Distribution, or Importation or Prohibited Flask or Equipment). Although offenses that involve the manufacture of amphetamine or methamphetamine also are referenced in Appendix (A) (Statutory Index) to §§ 2D1.11 and 2D1.12, the cross reference in these guidelines, which applies if the offense involved the manufacture of a controlled substance, will result in application of § 2D1.1 and accordingly, the new enhancements.

(2) Structure.—The basic structure of the amendment to §§ 2D1.1 and 2D1.10 tracks the structure of the directive. Accordingly, in § 2D1.1, the amendment provides a three-level increase and a minimum offense level of level 27 if the offense (A) involved the manufacture of amphetamine or methamphetamine; and (B) created a substantial risk of either harm to human life or the environment. For offenses that created a substantial risk of harm to the life of a minor or an incompetent, the amendment provides a six-level increase and a minimum offense level of 30.

However, the structure of the amendment in § 2D1.10 differs from that

in § 2D1.1 with respect to the first prong of the enhancement (regarding substantial risk of harm to human life or to the environment). Specifically, the amendment provides a three-level increase and a minimum offense level of level 27 if the offense involved the manufacture of amphetamine or methamphetamine without making application of the enhancement dependent upon whether the offense also involved a substantial risk of either harm to human life or the environment. Consideration of whether the offense involved a substantial risk of harm to human life is unnecessary because § 2D1.10 applies only to convictions under 21 U.S.C. 858, and the creation of a substantial risk of harm to human life is an element of a § 858 offense. Therefore, the base offense level already takes into account the substantial risk of harm to human life. Consideration of whether the offense involved a substantial risk of harm to the environment is unnecessary because the directive predicated application of the enhancement on substantial risk of harm either to human life or to the environment, and the creation of a substantial risk of harm to human life is necessarily present because it is an element of the offense.

(3) Determining “Substantial Risk of Harm”.—Neither the directive nor any statutory provision defines “substantial risk of harm”. Based on an analysis of relevant case law that interpreted “substantial risk of harm”, the amendment provides commentary setting forth factors that may be relevant in determining whether a particular offense created a substantial risk of harm.

(4) Definitions.—The definition of “incompetent” is modeled after several state statutes, which proved useful for purposes of this amendment.

The definition of “minor” has the meaning given that term in Application Note 1 of the Commentary to § 2A3.1 (Criminal Sexual Abuse).

Option 2.—Option 2 proposes to expand the emergency amendment, as set forth in Option 1, to apply to the manufacture of all controlled substances rather than only amphetamine or methamphetamine. Although the directive specifically instructs the Commission to provide increased penalties for the manufacture of amphetamine and methamphetamine, the Commission may, under its general promulgation authority, expand the scope of an emergency amendment when it re-promulgates the amendment as a permanent amendment. The reason for the proposed expansion is that if the manufacture of any controlled substance creates a substantial risk of harm to human life or the environment, there is a strong argument that the increased penalties should apply regardless of the type of controlled substances involved in the offense. The pertinent parts of Option 2 are as follows:

(1) § 2D1.1.—The enhancement in subsection (b)(6) is proposed to apply to the manufacture of any controlled substance, not just to the manufacture of amphetamine or methamphetamine. The expansion to all controlled substances in § 2D1.1 is rather straightforward. Conforming changes are made to the Commentary, but the amendment to § 2D1.1 otherwise remains the same as the emergency amendment.

(2) § 2D1.10.—Option 2's proposed expansion to all controlled substances in § 2D1.10 requires a restructuring of the guideline (as it was amended by the emergency amendment).

First, Option 2 proposes to increase the alternative base offense level in subsection (a)(1) from “3 plus” to “6 plus the offense level from the Drug Quantity Table in § 2D1.1”. This proposed increase corresponds to the proposed deletion of subsection (b)(1)(A) of the emergency amendment. As explained above in the description of Option 1 under “Structure,” subsection (b)(1)(A) provides a three-level increase “if the offense involved the manufacture of amphetamine or methamphetamine,” without making application of the enhancement dependent upon whether the offense also involved a substantial risk of either harm to human life or the environment. However, if the emergency amendment is to be expanded to apply to the manufacture of all controlled substances, this enhancement no longer is appropriate. In order not to lose the three-level increase that was provided by this enhancement, the three levels from this enhancement are built into the alternative base offense level in subsection (a)(1).

Second, Option 2 proposes two alternatives for addressing the minimum offense level of level 27 that also was provided by the enhancement in subsection (b)(1)(A). Option 2(a) increases the current alternative base offense level in subsection (a)(2) from level 20 to level 27. Although this option is consistent with expanding the entire emergency amendment to all controlled substances, the impact of this change is likely to be significant for lower level drug offenders. Option 2(b) proposes to add an additional alternative base offense level of level 27 if the offense involved the manufacture of amphetamine or methamphetamine, but maintains the alternative base offense level 20 for all other controlled substances. Although this option has less of an impact on lower level drug offenders than Option 2(a), it is not consistent with the approach otherwise taken in Option 2 of expanding the emergency amendment to cover all controlled substances.

Finally, Option 2 makes the enhancement that applies if the offense created a substantial risk of harm to the life of a minor or an incompetent applicable to all controlled substances. Conforming amendments are made to the Commentary.

Option 3.—This option assumes that the manufacture of amphetamine or methamphetamine is inherently dangerous and poses a substantial risk of harm to human life or the environment. Thus, the statutorily directed minimum enhancement and minimum offense level is automatic for the manufacture of amphetamine or methamphetamine. For all other controlled substances, it must be proved that the manufacturing process created the substantial risk of harm.

This option also combines the substantial risk enhancement with the environmental damage enhancement in § 2D1.1(b)(5).

Proposed Amendment

Option 1:

Sections 2D1.1 and 2D1.10, as amended by Amendment 608 (

see

Supplement to the 2000 Supplement to Appendix C), are repromulgated with the following minor, editorial changes:

The Commentary to § 2D1.1 captioned “Background” is amended by striking “Public Law 106-878” and inserting “Public Law 106-310”.

The Commentary to § 2D1.10 captioned “Background” is amended by striking “Public Law 106-878” and inserting “Public Law 106-310”.

Option 2:

Section 2D1.1(b)(6)(A) is amended in subdivision (i) by striking “amphetamine or methamphetamine” and inserting “a controlled substance”.

Section 2D1.1(b)(6)(B) is amended in subdivision (i) by striking “amphetamine or methamphetamine” and inserting “a controlled substance”.

The Commentary to § 2D1.1 captioned “Application Notes” is amended in Note 20 by inserting “Hazardous or Toxic Substances.—”before “Subsection (b)(5) applies”.

The Commentary to § 2D1.1 captioned “Application Notes” is amended in the heading to Note 21 by striking “Amphetamine and Methamphetamine” and inserting “Controlled Substances”.

The Commentary to § 2D1.1 captioned “Application Notes” is amended in Note 21(A)(iv) by striking “amphetamine or methamphetamine” and inserting “illicit”.

The Commentary to § 2D1.1 captioned “Background” is amended by inserting “, in a broader form,” after “Subsection (b)(6) implements”.

Section 2D1.10 is amended by striking subdivisions (a) and (b) in their entirety and inserting the following:

“(a) Base Offense Level (Apply the greater):

(1) 6 plus the offense level from the Drug Quantity Table in § 2D1.1; or

[Option 2(a): (2) 27.]

[Option 2(b): (2) 27, if the offense involved the manufacture of amphetamine or methamphetamine; or

(3) 20, otherwise.]

(b) Specific Offense Characteristic

(1) If the offense created a substantial risk of harm to the life of a minor or an incompetent, increase by 3 levels. If the resulting offense level is less than level 30, increase to level 30.”

The Commentary to § 2D1.10 captioned “Application Notes” is amended in the heading to Note 1 by striking “Associated with the Manufacture of Amphetamine and Methamphetamine”.

The Commentary to § 2D1.10 captioned “Application Notes” is amended in Note 1(A)(iv) by striking “amphetamine or methamphetamine laboratory” and inserting “illicit”.

The Commentary to § 2D1.10 captioned “Background” is amended by striking “Subsection” and inserting “Subsections (a)(2) and”; by striking “implements” and inserting “implement , in a broader form,”; and by striking “Public Law 106-878” and inserting “Public Law 106-310”.

Option 3:

Section 2D1.1(b) is amended by redesignating subdivision (7) as (6); and by striking subdivisions (5) and (6) in their entirety and inserting the following:

“(5) (Apply the greater):

(A) If the offense involved (i) an unlawful discharge, emission, or release into the environment of a hazardous or toxic substance; or (ii) the unlawful transportation, treatment, storage, or disposal of a hazardous waste, increase by 2 levels.

(B) If the offense (i) involved the manufacture of amphetamine or methamphetamine; or (ii)(I) involved the manufacture of a controlled substance other than amphetamine or methamphetamine; and (II) created a substantial risk of harm to human life or the environment, increase by 3 levels. If the resulting offense level is less than level 27, increase to level 27.

(C) If the offense (i) involved the manufacture of a controlled substance; and (ii) created a substantial risk of harm to the life of a minor or an incompetent, increase by 6 levels. If the resulting offense level is less than level 30, increase to level 30.”.

The Commentary to § 2D1.1 captioned “Application Notes” is amended in Note 20 by inserting “(A)” after “Subsection (b)(5)”.

The Commentary to § 2D1.1 captioned “Application Notes” is amended in the heading to Note 21 by striking “Amphetamine and Methamphetamine” and inserting “Controlled Substances”.

The Commentary to § 2D1.1 captioned “Application Notes is amended in Note 21(A) by striking “subsection (b)(6)” and inserting “subsections (b)(5)(B) and (b)(5)(C)”.

The Commentary to § 2D1.1 captioned “Application Notes” is amended in Note 21(A)(iv) by striking “amphetamine or methamphetamine” and inserting “illicit”.

The Commentary to § 2D1.1 captioned “Application Notes” is amended in Note 21 subdivision (B) by striking “(b)(6)” and inserting “(b)(5)”.

The Commentary to § 2D1.1 captioned “Background” is amended by inserting “(A)” after “Subsection (b)(5)”; by striking “Subsection (b)(6)” and inserting “Subsections (b)(5)(B) and (b)(5)(C)”; by striking implements” and inserting “implement, in a broader form,”; and by striking “Public Law 106-878” and inserting “Public Law 106-310”.

Section 2D1.10(a) is amended in subdivision (2) by striking “20” and inserting “27”.

Section 2D1.10(b) is amended by striking subdivision (1) in its entirety and inserting the following:

“(1) If the offense created a substantial risk of harm to the life of a minor or an incompetent, increase by 3 levels. If the resulting offense level is less than level 30, increase to level 30.”

The Commentary to 2D1.10 captioned “Application Notes” is amended in the title to Note 1 by striking “Associated with the Manufacture of Amphetamine and Methamphetamine”.

The Commentary to 2D1.10 captioned “Application Notes” is amended in Note 1(A)(iv) by striking “amphetamine or methamphetamine” and inserting “illicit”.

The Commentary to 2D1.10 captioned “Background” is amended by striking “Subsection” and inserting “Subsections (a)(2) and”; by striking “implements” and inserting “implement, in a broader form,”; and by striking “Public Law 106-878” and inserting “Public Law 106-310”.

Issue for Comment:

The Commission invites comment regarding whether it should provide, for controlled substances other than amphetamine or methamphetamine, an upward departure rather than an enhancement provision if the manufacture of the controlled substance created a substantial risk of harm to human life or the environment.

Proposed Amendment: Mandatory Restitution for Amphetamine and Methamphetamine Offenses

8.

Synopsis of Proposed Amendment:

This proposed amendment implements the provision in the Methamphetamine Anti-Proliferation Act of 2000, section 3613 of Pub. L. 106-310, that amends 21 U.S.C. 853(q) to provide mandatory restitution for offenses that involve the manufacture of methamphetamine. The proposed amendment amends § 5E1.1 (Restitution) to include a reference to 21 U.S.C. § 853(q) in the guideline provision regarding mandatory restitution.

Proposed Amendment

Section 5E1.1 is amended in subsection (a)(1) by inserting “, or 21 U.S.C. § 853(q)” after “3663A”.

The Commentary to § 5E1.1 captioned “Background” is amended in the first paragraph by inserting “, and 21 U.S.C. § 853(q)” after “3663A”.

Proposed Amendment: Safety Valve

9.

Synopsis of Proposed Amendment:

This amendment proposes to delete the language in § 2D1.1(b)(6) that limits application of the safety valve to defendants at offense levels 26 and greater. The proposed amendment also deletes commentary that is outdated because of the operation of § 5C1.2 (Limitation on Applicability on Statutory Minimum Sentences in Certain Cases). Conforming changes are made to § 5C1.2.

Proposed Amendment

Section 2D1.1(b)(6) is amended by striking “subdivisions (1)-(5)” and inserting “subsections (a)(1)-(5)”; and by striking “and the offense level determined above is level 26 or greater”.

The Commentary to § 2D1.1 captioned “Application Notes” is amended by striking Note 14 in its entirety; and by redesignating Notes 15 through 20 as Notes 14 through 19, respectively.

Section 5C1.2 is amended in the first paragraph by striking “In” and inserting “(a) Except as provided in subsection (b), in”.

Section 5C1.2 is amended by inserting after subsection (a), as so designated by this amendment, the following:

“(b) In the case of a defendant (1) who meets the criteria set forth in subsection (a); and (2) for whom the statutorily required minimum sentence is at least five years, the offense level applicable from Chapters Two (Offense Conduct) and Three (Adjustments) shall be not less than level 17.”.

The Commentary to § 5C1.2 captioned “Application Notes” is amended in Notes 2 through 7 by striking “subdivision” each place it appears and inserting “subsection (a)”; and by striking “subdivisions” in Note 3 and inserting “subsection (a)”.

Proposed Amendment: Anhydrous Ammonia

10.

Synopsis of Proposed Amendment:

This proposed amendment addresses the new offense, at section 423 of the Controlled Substances Act (21 U.S.C. 864), of stealing or transporting across state lines anhydrous ammonia knowing, intending, or having reasonable cause to believe that such anhydrous ammonia will be used to manufacture a controlled substance. This new offense, created by the Methamphetamine Anti-Proliferation Act of 2000, section 3653 of Pub. L. 106-310, carries the statutory penalties contained in section 403 of the Controlled Substances Act (21 U.S.C. 843),

i.e.,

not more than fours years' imprisonment (or not more than eight years' imprisonment in the case of certain prior convictions) or not more than 10 years' imprisonment (or not more than 20 years' imprisonment in the case of certain prior convictions) if the offense involved the manufacture of methamphetamine.

The proposed amendment references the new offense to § 2D1.12 (Unlawful Possession, Manufacture, Distribution, or Importation of Prohibited Flask or Equipment; Attempt or Conspiracy). Reference to this guideline is appropriate because the new offense is similar to other offenses already referenced to the guideline and having the same penalty structure, such as 21 U.S.C. 843(a)(6), which among other things makes it unlawful to possess any chemical, product, or material which may be used to manufacture a controlled substance. The proposed amendment also makes minor, non-substantive changes to the guideline in order to fully reference the new and existing offenses into the guideline.

Proposed Amendment

Section 2D1.12 is amended in the heading by inserting “Transportation, Exportation,” after “Distribution,”; by striking “or” before “Equipment” and inserting a comma; and by inserting “, Chemical, Product, or Material” after “Equipment”.

Section 2D1.12 is amended in each of subsections (a)(1), (a)(2), and (b)(1), by inserting “flask,” after “prohibited”; and by inserting “, chemical, product, or material” after “equipment”.

The Commentary to § 2D1.12 captioned “Statutory Provisions” is amended by inserting “§ ” before “843”; and by inserting “, 864” after “(7)”.

The Commentary to § 2D1.12 captioned “Application Notes” is amended by striking the text of Note 1 in its entirety and inserting the following:

“If the offense involved the large-scale [(A)] manufacture, distribution, transportation, exportation, or importation of prohibited flasks, equipment, chemicals, products, or material [; or (B) theft of anhydrous ammonia,] an upward departure may be warranted.”.

Appendix A (Statutory Index) is amended by inserting after the line referenced to “21 U.S.C. § 863” the following:

“21 U.S.C. § 864 2D1.12”.

Issue for Comment:

The Commission invites comment regarding whether the enhancement at § 2D1.12(b)(1) is sufficient to account for the seriousness of attempting or intending to manufacture methamphetamine through the use of anhydrous ammonia. Should, for example, subsection (b)(1) of § 2D1.12 provide for an enhancement of up to [10] levels, or should an alternative method be provided to account for the seriousness of using anhydrous ammonia, such as a cross reference to § 2D1.11 using a conversion to methamphetamine if anhydrous ammonia is involved? Generally, what is the most appropriate penalty structure for offenses involving anhydrous ammonia?

Proposed Amendment: GHB

11.

Synopsis of Proposed Amendment:

This proposed amendment implements the Hillory J. Farias and Samantha Reid Date-Rape Drug Prohibition Act of 2000, Pub. L. 106-172 (the “Act”), which provides the emergency scheduling of gamma hydroxybutyric acid (“GHB”) as a Schedule I controlled substance under the Controlled Substances Act when the drug is used illicitly. (There are approved applications of GHB under the Federal Food, Drug, and Cosmetic Act, for which the drug is scheduled in Schedule III.) The Act also amended section 401(b)(1)(C) of the Controlled Substances Act (21 U.S.C. 841(b)(1)(C)) and section 1010(b)(3) of the Controlled Substances Import and Export Act (21 U.S.C. § 960(b)(3)) to provide penalties of not more than 20 years for an offense that involves GHB. Additionally, the Act added gamma butyrolactone (“GBL”) to the list of List I chemicals in section 401(b)(1)(C) of the Controlled Substances Act (21 U.S.C. 841(b)(1)(C)).

Under the current structure of the Drug Quantity Table in § 2D1.1, GHB and other Schedule I and II depressants, with statutory maximum terms of imprisonment of 20 years, are sentenced identically to Schedule III substances, which have a five-year statutory maximum. The guidelines provide a maximum offense level of level 20 for these substances, which equates to a sentencing range of 33 to 44 months for offenders with minimal or no criminal history (Criminal History Category I). The lack of penalty distinctions between offenses with such divergent statutory maxima raises proportionality concerns. Recognizing the need to provide higher penalties for the more serious offenses involving Schedule I and II depressants, the proposed amendment eliminates the maximum base offense level of level 20 in the Drug Quantity Table of § 2D1.1 for Schedule I and II depressants (including GHB). The same change is made with respect to flunitrazepam, which, for sentencing purposes, is tied to Schedule I and II depressants.

The proposed amendment also amends the Chemical Quantity Table in § 2D1.11 to include GBL, a precursor for GHB, as a List I chemical. Offense levels for GBL were established in the same fashion as other list I chemicals. The offense level for a specific quantity of GHB that can be produced from a given quantity of GBL, assuming a 50 percent yield, was determined using the Drug Quantity Table in § 2D1.1. From this offense level, six levels were subtracted. This result identifies the corresponding offense level in the Chemical Quantity Table in § 2D1.11.

The proposed amendment also adds Iodine to the Chemical Quantity Table in response to a recent classification of iodine as a List II chemical. Iodine is used to produce hydrogen iodide which, in the presence of water, becomes hydriodic acid, a list I chemical that is a reagent used in the production of amphetamine and methamphetamine. The penalties for Iodine were established based upon its conversion to hydriodic acid.

Proposed Amendment

(1) Uncap Schedule I and II Depressants

Section 2D1.1(c)(1) is amended by striking the period after “Hashish Oil” and inserting a semi-colon; and by inserting at the end the following:

“30,000,000 units or more of Schedule I or II Depressants; 1,875,000 units or more of Flunitrazepam.”.

Section 2D1.1(c)(2) is amended by striking the period after “Hashish Oil” and inserting a semi-colon; and by inserting at the end the following:

“At least 10,000,000 but less than 30,000,000 units of Schedule I or II Depressants; At least 625,000 but less than 1,875,000 units of Flunitrazepam.”.

Section 2D1.1(c)(3) is amended by striking the period after “Hashish Oil” and inserting a semi-colon; and by inserting at the end the following:

“At least 3,000,000 but less than 10,000,000 units of Schedule I or II Depressants; At least 187,500 but less than 625,000 units of Flunitrazepam.”.

Section 2D1.1(c)(4) is amended by striking the period after “Hashish Oil” and inserting a semi-colon; and by inserting at the end the following:

“At least 1,000,000 but less than 3,000,000 units of Schedule I or II Depressants; At least 62,500 but less than 187,500 units of Flunitrazepam.”.

Section 2D1.1(c)(5) is amended by striking the period after “Hashish Oil” and inserting a semi-colon; and by inserting at the end the following:

“At least 700,000 but less than 1,000,000 units of Schedule I or II Depressants; At least 43,750 but less than 62,500 units of Flunitrazepam.”.

Section 2D1.1(c)(6) is amended by striking the period after “Hashish Oil” and inserting a semi-colon; and by inserting at the end the following:

“At least 400,000 but less than 700,000 units of Schedule I or II Depressants; At least 25,000 but less than 43,750 units of Flunitrazepam.”.

Section 2D1.1(c)(7) is amended by striking the period after “Hashish Oil” and inserting a semi-colon; and by inserting at the end the following:

“At least 100,000 but less than 400,000 units of Schedule I or II Depressants; At least 6,250 but less than 25,000 units of Flunitrazepam.”

Section 2D1.1(c)(8) is amended by striking the period after “Hashish Oil” and inserting a semi-colon; and by inserting at the end the following:

“At least 80,000 but less than 100,000 units of Schedule I or II Depressants; At least 5,000 but less than 6,250 units of Flunitrazepam.”.

Section 2D1.1(c)(9) is amended by striking the period after “Hashish Oil” and inserting a semi-colon; and by inserting at the end the following:

“At least 60,000 but less than 80,000 units of Schedule I or II Depressants; At least 3,750 but less than 5,000 units of Flunitrazepam.”.

Section 2D1.1(c)(10) is amended in the line referenced to Schedule I or II Depressants by striking “40,000 or more” and inserting “At least 40,000 but less than 60,000”; and in the line referenced to Flunitrazepam, by striking “2,500 or more” and inserting “At least 2,500 but less than 3,750”.

The Commentary to § 2D1.1 captioned “Application Notes” is amended in Note 10 in the Drug Equivalency Tables in the subdivision captioned “Flunitrazepam * * * ” in the heading by striking “ * * * ” after “Flunitrazepam”; and by striking the following:

“ * * * Provided, that the combined equivalent weight of flunitrazepam, all Schedule I or II depressants, Schedule III substances, Schedule IV substances, and Schedule V substances shall not exceed 99.99 kilograms of marihuana.”.

The Commentary to § 2D1.1 captioned “Application Notes” is amended in Note 10 in the Drug Equivalency Tables in the subdivision captioned “Schedule I or II Depressants * * * ” in the heading by striking “* * * ” after “Schedule I or II Depressants”; and by striking the following:

“ * * * Provided, that the combined equivalent weight of all Schedule I or II depressants, Schedule III substances, Schedule IV substances (except flunitrazepam), and Schedule V substances shall not exceed 59.99 kilograms of marihuana.”.

(2) Adding GBL and Iodine to the Chemical Quantity Table in § 2D1.11

Section 2D1.11(d)(1) is amended by inserting at the end the following:

“10,000 KG or more of Gamma-butyrolactone.”.

Section 2D1.11(d)(2) is amended in the subdivision captioned “List I Chemicals” by inserting at the end the following:

“At least 3,000 KG but less than 10,000 KG of Gamma-butyrolactone;”;

and in the subdivision captioned “List II Chemicals” by striking the period after “Toluene” and inserting a semi-colon; and by inserting at the end the following:

“7.52 KG or more of Iodine.”.

Section 2D1.11(d)(3) is amended in the subdivision captioned “List I Chemicals” by inserting at the end the following:

“At least 1,000 KG but less than 3,000 KG of Gamma-butyrolactone;”;

and in the subdivision captioned “List II Chemicals” by striking the period after “Toluene” and inserting a semi-colon; and by inserting at the end the following:

“At least 2.51 KG but less than 7.52 KG of Iodine.”.

Section 2D1.11(d)(4) is amended in the subdivision captioned “List I Chemicals” by inserting at the end the following:

“At least 700 KG but less than 1,000 KG of Gamma-butyrolactone;”;

and in the subdivision captioned “List II Chemicals” by striking the period after “Toluene” and inserting a semi-colon; and by inserting at the end the following:

“At least 1.76 KG but less than 2.51 KG of Iodine.”.

Section 2D1.11(d)(5) is amended in the subdivision captioned “List I Chemicals” by inserting at the end the following:

“At least 400 KG but less than 700 KG of Gamma-butyrolactone;”;

and in the subdivision captioned “List II Chemicals” by striking the period after “Toluene” and inserting a semi-colon; and by inserting at the end the following:

“At least 1 KG but less than 1.76 KG of Iodine.”.

Section 2D1.11(d)(6) is amended in the subdivision captioned “List I Chemicals” by inserting at the end the following:

“At least 100 KG but less than 400 KG of Gamma-butyrolactone;”;

and in the subdivision captioned “List II Chemicals” by striking the period after “Toluene” and inserting a semi-colon; and by inserting at the end the following:

“At least 250.8 G but less than 1 KG of Iodine.”.

Section 2D1.11(d)(7) is amended in the subdivision captioned “List I Chemicals” by inserting at the end the following:

“At least 80 KG but less than 100 KG of Gamma-butyrolactone;”;

and in the subdivision captioned “List II Chemicals” by striking the period after “Toluene” and inserting a semi-colon; and by inserting at the end the following:

“At least 200.64 G but less than 250.8 G of Iodine.”.

Section 2D1.11(d)(8) is amended in the subdivision captioned “List I Chemicals” by inserting at the end the following:

“At least 60 KG but less than 80 KG of Gamma-butyrolactone;”;

and in the subdivision captioned “List II Chemicals” by striking the period after “Toluene” and inserting a semi-colon; and by inserting at the end the following:

“At least 150.48 G but less than 200.64 KG of Iodine.”.

Section 2D1.11(d)(9) is amended in the subdivision captioned “List I Chemicals” by inserting at the end the following:

“At least 40 KG but less than 60 KG of Gamma-butyrolactone;”;

and in the subdivision captioned “List II Chemicals” by striking the period after “Toluene” and inserting a semi-colon; and by inserting at the end the following:

“At least 100.32 G but less than 150.48 G of Iodine.”.

Section 2D1.11(d)(10) is amended in the subdivision captioned “List I Chemicals” by inserting at the end the following:

“Less than 40 KG of Gamma-butyrolactone;”;

and in the subdivision captioned “List II Chemicals” by striking the period after “Toluene” and inserting a semi-colon; and by inserting at the end the following:

“Less than 100.32 G of Iodine.”.

Proposed Amendment: Economic Crime Package

12.

Synopsis of Proposed Amendment:

The Economic Crime Package consists of six parts. Part A is a proposal to consolidate the theft, property destruction and fraud guidelines. Part B contains three options for the loss table for the consolidated guideline and two options for a revised loss table in § 2T4.1 (Tax Table). Part C contains two proposals to amend the definition of loss for the consolidated guideline. Part D proposes necessary changes to several guidelines which refer to the loss tables in either § 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft) or § 2F1.1 (Fraud and Deceit) if the Commission were to adopt one of the proposed new loss tables. Part E contains the technical and conforming amendments to the guidelines that would be necessary as a result of the theft and fraud consolidation. Part F contains a proposal to resolve a circuit split regarding the computation of tax loss in § 2T1.1.

Part A. Consolidation of Theft, Property Destruction and Fraud

Synopsis of Proposed Amendment:

This amendment consolidates the three guidelines covering theft (§ 2B1.1), property destruction (§ 2B1.3), and fraud (§ 2F1.1). Consolidation of these guidelines is proposed in response to concerns raised by probation officers, judges, and practitioners over several years. The issues were among those discussed during Commission public hearings in 1997 and 1998 on difficulties posed by having different commentary in the theft and fraud guidelines applicable to the calculation and definition of loss and related issues. Commentators have also noted that although theft and fraud offenses are conceptually similar, differences in guideline structure can lead to disparate penalty levels among similar cases, depending on how the offense is charged, and the court's choice of the applicable guideline pursuant to § 1B1.2.

Bracketed place holders are indicated for the loss table (see Part B), definition of loss (see Part C), and the options regarding two circuit conflicts: Tax loss (see Part F) and new commentary regarding the application of subsection (b)(3) regarding a “person in the business of receiving and selling receiving stolen property,” and a scholarship fraud enhancement and accompanying application note. In the event that the Commission does not promulgate the consolidation proposal, these bracketed options can be promulgated separately.

Base Offense Level:

The proposal calls for a base offense level of level 6. The current base offense level for fraud offenses is level 6; the base offense level for theft and property destruction offenses currently is level 4. Starting with the base offense level 6, the proposed loss table for the consolidated guideline envisions two-level increments for increasing loss amounts beginning at $5,000. Currently the loss table for theft offenses provides one-level enhancements when loss exceeds $100, $1,000, $2,000, and $5,000, respectively, so that a theft offense involving more than $2,000 in loss results in an offense level of level 7, with the possibility of an additional increase for more-than-minimal planning. Under the proposed consolidated loss table, a theft offense involving more than $2,000 (but less than $5,000) would receive the base offense level of level 6, with no possible increase for more-than-minimal planning.

In contrast, under the proposed table, a fraud offense involving the same amount of loss would start with the same base offense level of level 6 but would receive no additional increase based on the loss amount. Under the current fraud table, this offense would result in an offense level of level 7 for loss because the current fraud loss table provides a one-level increase for loss amounts in excess of $2,000 (but less than $5,000).

More than Minimal Planning:

Section 2F1.1(b)(2) currently provides a two-level increase if the offense involved (A) more than minimal planning, or (B) a scheme to defraud more than one victim. The proposal deletes this enhancement from the consolidated guideline. The more than minimal planning enhancement is deleted due to the potential overlap between this enhancement and the sophisticated means enhancement. The scheme to defraud more than one victim enhancement is deleted for two reasons: (1) If the adjustment were retained unmodified in a consolidated guideline, it would apply to cases currently sentenced under § 2B1.1 where it is not currently applicable; and (2) in its current form it might be hard to justify providing a two-level increase in every case in which there is more-than-one victim, particularly in the face of the new Chapter Three adjustment in the vulnerable victim guideline (§ 3A1.1) that provides (only) a two-level increase if the offense involved “a large number of vulnerable victims.”

As an alternative to the scheme to defraud more than one victim enhancement, this amendment provides an enhancement based on the number of victims, to provide additional punishment for offenses involving multiple victims. The victim table proposes building in the current “mass-marketing” enhancement as an alternative way of triggering the two-level increase provided if there were more than 4 and less than 50 victims. The amendment proposes that if the proposed victim table is adopted, and a victim enhancement is applicable in a given case, then the enhancement under 3A1.1(b)(2) for “a large number of vulnerable victims” could not also apply in that case.

Theft of Undelivered U.S. Mail:

The current “floor” offense level of level 6 for the theft of undelivered United States mail is proposed to be deleted because the proposal raises the base offense level from level 4 to 6 for such offenses, making the floor unnecessary. However, if the Commission adopts the enhancement providing for a two-level reduction if loss is less than $2,000, it might be necessary to retain this floor of level 6.

In the Business of Receiving and Selling Stolen Property:

Section 2B1.1(b)(4)(B) provides a 2-level enhancement if the offense involved receiving stolen property and the defendant was in the business of receiving and selling stolen property. The proposed amendment addresses an issue that has arisen in case law regarding what conduct qualifies a defendant for the 4-level enhancement.

In determining the meaning of “in the business of”, three circuits apply what has been coined the “fence test” in which the court must consider (1) if the stolen property was bought and sold, and (2) to what extent the stolen property transactions encouraged others to commit property crimes. Three other circuits have adopted the “totality of the

circumstances test” that focuses on the “regularity and sophistication” of the defendant's operation. Though the factors considered by all of these circuits are similar, the approaches are different.

The fence test involves making an ultimate determination of whether (1) the stolen property was bought and sold, and (2) the stolen property transactions encouraged others to commit property crimes. In making this determination, the court considers factors such as the regularity of the defendant's operation, the volume of the business, the quick turnover of the stolen items, the value of the stolen items, the sophistication of the defendant's operation, any use of a legitimate business to facilitate the turnover of the stolen items, the defendant's connections with thieves and purchasers of the stolen items, and the use of technology and communications.

The totality of the circumstances test involves consideration of the circumstances in each case with particular emphasis on the regularity and sophistication of the defendant's operation, looking at such factors as the amount of income generated through fencing activities, the value of the property handled, the defendant's past activities, the defendant's demonstrated interest in continuing or expanding the operation, the use of technology and communication, and the defendant's connections with thieves and purchasers of stolen property.

This amendment adopts the totality of the circumstances test, basing application of the enhancement on the circumstances surrounding the defendant and his business as opposed to the effect the fencing operation has in encouraging others to commit crimes.

College Scholarship Fraud

Subsection (b)(9)(D) implements the the directive in section 3 of the College Scholarship Fraud Prevention Act of 1999, Pub. L. 106-420. The directive requires the Commission to amend the guidelines:

* * * in order to provide for enhanced penalties for any offense involving fraud or misrepresentation in connection with the obtaining or providing of, or the furnishing of information to a consumer on, any scholarship, grant, loan, tuition, discount, award, or other financial assistance for purposes of financing an education at an institution of higher education, such that those penalties are comparable to the base offense level for misrepresentation that the defendant was acting on behalf of a charitable, educational, religious, or political organization, or a government agency.

The amendment adds an additional alternative enhancement that applies if the offense involves a misrepresentation to a consumer in connection with obtaining, providing, or furnishing financial assistance for an institution of higher education. This proposed enhancement is targeted at the provider of the financial assistance or scholarship services, not the individual applicant for such assistance or scholarship, consistent with the intent of the legislation.

Risk of Bodily Injury Enhancement:

The proposal provides for two substantive changes with respect to the enhancement involving conscious or reckless risk of serious bodily injury. First, it increases the “floor” offense level from level 13 to level 14. Second, it inserts “death” before the term “or serious bodily injury” because, as a practical matter, a risk of serious bodily injury is likely also to entail a risk of death. Including “of death” also will provide consistency throughout the

Guidelines Manual.

Currently, “risk of death or serious bodily injury” appears in a number of other guidelines as either an alternative base offense level, specific offense characteristic, or invited upward departure (

see, e.g.,

§ 2A2.2 comment (n.3); § 2K1.4(a)(1)(2); § 2Q1.4(b)(1)). The fraud guideline is the only guideline in which risk of serious bodily injury appears as a sentencing factor without a reference to “risk of death”.

This enhancement stems from a 1988 congressional directive in which the Commission was instructed to amend the fraud guideline to provide an appropriate enhancement for a fraud offense that creates a conscious or reckless risk of serious bodily injury. The Commission was further instructed to consider the appropriateness of a minimum enhancement of two offense levels for this conduct. The legislation did not require a “floor” offense level.

The proposal increases the “floor” from level 13 to level 14 to

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