# Sentencing Guidelines for United States Courts > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A95-271 ## Record - **Collection:** Federal Register - **Document type:** Notice - **Published:** January 9, 1995 - **Citation:** 60 FR 2430 ## Text SUMMARY: The Commission is considering promulgating certain amendments to the sentencing guidelines, policy statements, and commentary. The proposed amendments and a synopsis of issues to be addressed are set forth below. The Commission may report amendments to the Congress on or before May 1, 1995. Comment is sought on all proposals, alternative proposals, and any other aspect of the sentencing guidelines, policy statements, and commentary. DATES: The Commission has scheduled a public hearing on these proposed amendments for March 14, 1995, at 9:30 a.m. in the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, NE., Washington, DC 20002-8002. Persons interested in attending the public hearing should contact the Commission at a later date to learn the room in which the hearing will take place. Anyone wishing to testify at the public hearing should notify Michael Courlander, Public Information Specialist, at (202) 273- 4590 by February 28, 1995. Public comment, including written testimony for the hearing, should be received by the Commission no later than March 7, 1995, to be considered by the Commission in the promulgation of amendments due to the Congress by May 1, 1995. ADDRESSES: Public comment should be sent to: United States Sentencing Commission, One Columbus Circle, NE., Suite 2-500, South Lobby, Washington, DC 20002-8002, Attention: Public Information. FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Information Specialist, Telephone: (202) 273-4590. SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is an independent agency in the judicial branch of the United States Government. The Commission is empowered under 28 U.S.C. Sec. 994(a) to promulgate sentencing guidelines and policy statements for federal courts. The statute further directs the Commission to review and revise periodically guidelines previously promulgated and authorizes it to submit guideline amendments to the Congress no later than the first day of May each year. See 28 U.S.C. Sec. 994(o), (p). Ordinarily, the Administrative Procedure Act rule-making requirements are inapplicable to judicial agencies; however, 28 U.S.C. Sec. 994(x) makes the Administrative Procedure Act rule-making provisions of 5 U.S.C. Sec. 553 applicable to the promulgation of sentencing guidelines by the Commission. The proposed amendments are presented in one of three formats. First, a number of the amendments are proposed as specific revisions of a guideline, policy statement, or commentary. Second, for some amendments, the Commission has published alternative methods of addressing an issue, shown in brackets. Commentators are encouraged to state their preference among listed alternatives or to suggest a new alternative. Third, the Commission has highlighted certain issues for comment and invites suggestions for specific amendment language. Section 1B1.10 of the United States Sentencing Commission Guidelines Manual sets forth the Commission's policy statement regarding retroactivity of amended guideline ranges. Comment is requested as to whether any of the proposed amendments should be made retroactive under this policy statement. Although the amendments below are specifically proposed for public comment and possible submission to the Congress by May 1, 1995, the Commission emphasizes that it welcomes comment on any aspect of the sentencing guidelines, policy statements, and commentary, whether or not the subject of a proposed amendment. Publication of a proposed amendment or issue for comment signifies only that at least three Commissioners consider the amendment or issue worthy of comment by interested groups and individuals. Publication should not be regarded as an indication that the Commission or any individual Commissioner has formed a view on the merits of the proposed amendment or issue. Authority: 28 U.S.C. Sec. 994(a), (o), (p), (x). Phyllis J. Newton, Staff Director. I. Amendments Relating to Congressional Directives to the Commission and Other Statutory Changes Chapter One, Part B (General Application Principles) 1. Issue for Comment: Section 40503 of the Violent Crime Control and Law Enforcement Act of 1994 directs the Commission to conduct a study and consider appropriate guideline amendments relating to offenses in which an HIV-infected individual engages in sexual activity with knowledge of his or her HIV infection status and with the intent through such sexual activity to expose another to HIV. A report is to be submitted to Congress by March 13, 1995. The Commission invites comment on any aspect of this issue. In addition, the Commission invites comment on whether the infectious bodily fluid of a person should be defined expressly as a ``dangerous weapon.'' The Commission further invites comment on whether the definitions relating to serious bodily injury and permanent or life-threatening bodily injury should be amended to expressly include infection by HIV-infected bodily fluid. The Commission also invites comment on whether basing enhanced penalties for willful sexual exposure to HIV will have any implications for HIV testing behavior. Chapter Two, Part A (Offenses Against the Person) 2. Issue for Comment: Section 170201 of the Violent Crime Control and Law Enforcement Act of 1994 establishes a new offense with a five- year statutory maximum for an assault against a person under the age of 16 years that results in substantial bodily injury (18 U.S.C. Sec. 113(a)(7)). Substantial bodily injury is defined as ``bodily injury that involves a temporary but substantial disfigurement or a temporary but substantial loss or impairment of the function of any bodily member, organ, or mental facility.'' The Commission invites comment as to whether Sec. 2A2.3 provides an adequate penalty for a violation of 18 U.S.C. Sec. 113(a)(7). If not, how and to what extent should Sec. 2A2.3 be amended? For example, should the Commission amend Sec. 2A2.3(a)(1) by deleting ``physical contact'' and inserting ``bodily injury,'' thus providing a base offense level of six for bodily injury or weapon possession with a threat of use and a base offense level of three for other cases? Should the [[Page 2431]] Commission instead add a specific offense characteristic for bodily injury or a specific offense characteristic if the defendant is convicted of a violation of 18 U.S.C. Sec. 113(a)(7)? Should Sec. 2A2.3 be amended by providing a cross reference to Sec. 2A2.2 (Aggravated Assault) to account for cases in which the underlying conduct involves serious bodily injury or use of a weapon with intent to cause bodily harm although the offense of conviction does not qualify as aggravated assault? 3. Issue for Comment: Section 320102 of the Violent Crime Control and Law Enforcement Act of 1994 increases the maximum imprisonment penalty for involuntary manslaughter from three years to six years. The proposed amendment responds to the Commission's recommendation that Congress raise the penalty in order to achieve parity with the sentencing practices of the majority of the states and to allow the guideline sentence for this offense to operate without undue constraint. Guideline 2A1.4 (Involuntary Manslaughter) applies a base offense level of level 10 (if the conduct was criminally negligent) or level 14 (if the conduct was reckless) to offenses under 18 U.S.C. Sec. 1112. These offense levels may have reflected, in part, the previous relatively low maximum term of imprisonment authorized for this offense. The Commission invites comment on whether the base offense levels under Sec. 2A1.4 (Involuntary Manslaughter) provide adequate punishment and, if not, to what extent they should be increased. 4. Synopsis of Proposed Amendment: The International Parental Kidnapping Crime Act of 1993 (Public Law 103-73, codified at 18 U.S.C. Sec. 1204) makes it unlawful to remove a child from the United States with intent to obstruct the lawful exercise of parental rights. The statutorily authorized maximum term of imprisonment for this offense is three years. In contrast, other kidnapping offenses (e.g., 18 U.S.C. Sec. 1201) have a statutory maximum sentence of life or death. Two options are shown. Option 1 references this statute to Sec. 2A4.1 (Kidnapping, Abduction, Unlawful Restraint) with a separate base offense level for a conviction under this statute. Option 2 references this statute to Sec. 2J1.2 (Obstruction of Justice) because the underlying conduct involves interference with a court's child-custody order. Proposed Amendment: [Option 1: Section Sec. 2A4.1(a) is amended by deleting ``24'' and inserting in lieu thereof: ``(1) 24, except as provided below; (2) 12, if the defendant was convicted under 18 U.S.C. Sec. 1204.''; and by inserting the following additional subsection: ``(d) Special Instruction (1) If the base offense level is determined under subsection (a)(2), do not apply subsection (b)(4).''. Appendix A (Statutory Index) is amended by inserting the following at the appropriate place by title and section: ``18 U.S.C. Sec. 1204 2A4.1''.] [Option 2: Appendix A (Statutory Index) is amended by inserting the following at the appropriate place by title and section: ``18 U.S.C. Sec. 1204 2J1.2''.] 5. Issue for Comment: Section 40112 of the Violent Crime Control and Law Enforcement Act of 1994 directs the Commission to conduct a study and consider appropriate amendments to Secs. 2A3.1 (Aggravated Sexual Abuse) and 2A3.2 (Sexual Abuse) to address four concerns: (1) enhancing the sentence if more than one defendant is involved in the offense; (2) reducing unwarranted disparity between defendants who are known by the victim and those who are unknown by the victim; (3) making federal penalties commensurate with state penalties; and (4) considering the general problem of recidivism, severity of the offense, and devastating effects on survivors. The provision also requires the preparation of a report to Congress analyzing federal rape sentences and obtaining comment from independent experts on: (1) comparative federal sentences between assailants who were known vs. unknown to their victims; (2) comparative federal sentences with those of states; and (3) the effect of rape sentences on Native American and U.S. military populations relative to the impact of sentences for other federal offenses on these populations. This report is to be submitted to Congress by March 13, 1995. The Commission invites comment on any aspect of this directive or any amendment to the guidelines appropriate to address this directive. Specifically, comment is requested on whether Sec. 2A3.1 (Criminal Sexual Abuse) should be amended to include an enhancement for more than one assailant. If such a factor is added, comment is requested as to the weight to be given to that factor and how its inclusion should affect the application of an adjustment for the defendant's role in the offense under Chapter Three, Part B. Comment is further invited as to whether the guidelines adequately account for the seriousness of the sexual abuse offense (including the effects on the victim of sexual abuse) and how any suggested changes should be applied. Currently, through specific offense characteristics and other instructions in Sec. 2A3.1, the guidelines consider the degree of bodily injury, age of victim, sexual abuse of a person held within a correctional facility, use of a dangerous weapon, circumstances in which the defendant holds a supervisory or custodial role, circumstances in which the victim was abducted, and death of the victim. The Commission invites comment on additional factors that might appropriately be considered and the weights such factors should be given. Chapter Two, Parts A (Offenses Against the Person); G (Offenses Involving Prostitution, Sexual Exploitation of Minors, and Obscenity); J (Offenses Involving the Administration of Justice); and L (Offenses Involving Immigration, Naturalization, and Passports) 6. Synopsis of Proposed Amendment: Sections 60010, 60011, 60016, 60017, and 60024 of the Violent Crime Control and Law Enforcement Act of 1994 increase the penalty for various offenses resulting in the death of a victim. It is not clear whether imposition of the penalties in the new law will require proof of the conduct by a preponderance of the evidence or beyond a reasonable doubt. For example, the ``beyond a reasonable doubt standard'' contemplated in some instances by McMillan v. United States, 477 U.S. 79 (1986), might be triggered by section 60010, which increases the six-month maximum imprisonment penalty for abusive sexual contact of a ward to a maximum sentence of death or imprisonment for any term of years or life if death results from that contact. Two options are shown. Option 1 amends the Statutory Index to reference the new provisions to guidelines in Chapter Two, Part A, when death results from the underlying offense. Under Sec. 1B1.2 (Applicable Guidelines), this reference will apply only if it is found beyond a reasonable doubt that death resulted from the offense. Option 2 amends the guidelines for the underlying offenses to include a cross reference to Chapter Two, Part A, if death results from the offense. Under Option 2, it need only be found by a preponderance of the evidence that death resulted from the offense for the cross reference to apply, consistent with Sec. 1B1.3 (Relevant Conduct). Proposed Amendment: [Option 1: Appendix A (Statutory Index) is amended in the line referenced to 8 U.S.C. Sec. 1324(a) by inserting ``2A1.1, [[Page 2432]] 2A1.2, 2A1.3, 2A1.4, 2A2.1, 2A2.2,'' immediately before ``2L1.1''; In the line referenced to 18 U.S.C. Sec. 1503 by inserting ``2A1.1, 2A1.2, 2A1.3, 2A2.1,'' immediately before ``2J1.2''; In the line referenced to 18 U.S.C. Sec. 1513 by inserting ``(b)'' immediately following ``1513''; By inserting the following at the appropriate place by title and section: ``18 U.S.C. Sec. 1513(a) 2A1.1, 2A1.2, 2A1.3, 2A2.1 (2J1.2 for offenses committed prior to September 13, 1994)''; In the line referenced to 18 U.S.C. Sec. 2243(a) by inserting ``2A1.1, 2A1.2, 2A1.3, 2A1.4,'' immediately before ``2A3.2''; In the line referenced to 18 U.S.C. Sec. 2243(b) by inserting ``2A1.1, 2A1.2, 2A1.3, 2A1.4,'' immediately before ``2A3.3''; In the line referenced to 18 U.S.C. Sec. 2244 by inserting ``2A1.1, 2A1.2, 2A1.3, 2A1.4,'' immediately before ``2A3.4''; and In the lines referenced to 18 U.S.C. Sec. 2251(a), (b) and to 18 U.S.C. Sec. 2251(c)(1)(B) by inserting ``2A1.1, 2A1.2, 2A1.3, 2A1.4,'' immediately before ``2G2.1''.] [Option 2: Section 2A3.2(c) is amended by inserting the following additional subdivision: ``(2) If death resulted, apply the most analogous offense guideline from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting offense level is greater than that determined above.''. Section 2A3.3 is amended by inserting the following additional subsection: ``(b) Cross Reference (1) If death resulted, apply the most analogous offense guideline from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting offense level is greater than that determined above.''. Section 2A3.4(c) is amended by inserting the following additional subdivision: ``(3) If death resulted, apply the most analogous offense guideline from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting offense level is greater than that determined above.''. Section 2G2.1 is amended by redesignating subsection (c) as (d); and by inserting the following as subsection (c): ``(c) Cross Reference (1) If death resulted, apply the most analogous offense guideline from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting offense level is greater than that determined above.''. Section 2J1.2(c) is amended by deleting ``Reference'' and inserting in lieu thereof ``References''; and by inserting the following additional subdivision: ``(2) If death resulted, apply the most analogous offense guideline from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting offense level is greater than that determined above.''. Section 2L1.1 is amended by inserting the following additional subsection: ``(c) Cross Reference (1) If death resulted, apply the most analogous offense guideline from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting offense level is greater than that determined above.''. Chapter Two, Part A (Offenses Against the Person) Chapter Four, Part A (Criminal History) 7. Synopsis of Proposed Amendment: Section 40111 of the Violent Crime Control and Law Enforcement Act of 1994 adds a new section 2247 to title 18 that doubles the statutory maximum term of imprisonment for defendants convicted of offenses under chapter 109A (Sexual Abuse) of title 18 who have been convicted previously in federal or state court of aggravated sexual abuse, sexual abuse, or aggravated sexual contact. The section also directs the Sentencing Commission to implement this provision ``by promulgating amendments, if appropriate, in the sentencing guidelines applicable to chapter 109A offenses.'' None of the Chapter Two sexual abuse guidelines currently provides for enhancement for repeat sex offenses. However, Chapter Four (Criminal History and Criminal Livelihood) does include a determination of the seriousness of the defendant's criminal record based upon prior convictions (Sec. 4A1.1). Guideline 4B1.1 (Career Offender) also provides enhanced penalties for offenders who engage in a crime of violence or controlled substance offense, having been sentenced previously for two or more crimes of either type. Crimes of violence include sexual abuse offenses committed with violence or force or threat of force (Sec. 4B1.2(1)). For cases in which a defendant is sentenced for a current sexual offense, has only one prior sexual offense, and no other prior crimes of violence or controlled substance offenses, the prior sexual offense is accounted for within the calculation of Criminal History Score. The Criminal History Score classifies prior convictions based upon type and length of prior sentence. Consequently, the sexual nature of the prior offense is not considered specifically although it may be related to the type and length of prior sentence. Although, as noted above, the guidelines currently do not enhance specifically for one prior repeat sex crime, Sec. 4A1.3 (Adequacy of Criminal History Category) generally provides that an upward departure may be considered ``[i]f reliable information indicates that the criminal history category does not reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes.'' The proposed amendment builds on Sec. 4A1.3 by specifically listing as a basis for upward departure the fact that the defendant has a prior sentence for conduct similar to the instant sexual offense. This approach implements the directive to the Commission in a broader but more flexible form. Proposed Amendment: The Commentary to Sec. 2A3.1 captioned ``Application Notes'' is amended by inserting the following additional note: ``6. If the defendant's criminal history includes a prior sentence for conduct that is similar to the instant offense, an upward departure may be warranted under Sec. 4A1.3 (Adequacy of Criminal History Category).''. The Commentary to Sec. 2A3.2 captioned ``Application Notes'' is amended by inserting the following additional note: ``4. If the defendant's criminal history includes a prior sentence for conduct that is similar to the instant offense, an upward departure may be warranted under Sec. 4A1.3 (Adequacy of Criminal History Category).''. The Commentary to Sec. 2A3.3 captioned ``Application Notes'' is amended by inserting the following additional note: ``2. If the defendant's criminal history includes a prior sentence for conduct that is similar to the instant offense, an upward departure may be warranted under Sec. 4A1.3 (Adequacy of Criminal History Category).''. The Commentary to Sec. 2A3.4 captioned ``Application Notes'' is amended by inserting the following additional note: ``5. If the defendant's criminal history includes a prior sentence for conduct that is similar to the instant offense, an upward departure may be warranted under Sec. 4A1.3 (Adequacy of Criminal History Category).''. Section 4A1.3 is amended by inserting the following new paragraph as the third paragraph: ``An upward departure under this provision, to reflect a defendant's demonstrated pattern of particularly egregious criminal conduct, also may be warranted if all of the following apply: (A) the instant offense involves death, serious bodily injury, the attempted [[Page 2433]] infliction of death or serious bodily injury, or a forcible sexual offense; (B) the defendant's prior criminal history includes one or more sentences for conduct that is similar to the instant offense; and (C) the provisions of Secs. 4A1.1 (Career Offender) or 4A1.4 (Armed Career Criminal) do not apply.''. Additional Issue for Comment: The Commission invites comment on whether, as an alternative to the proposed amendment, it should amend the guidelines in Chapter Two, Part A, Subpart 3 (Criminal Sexual Abuse) to provide higher offense levels if the defendant has a prior conviction in federal or state court for aggravated sexual abuse, sexual abuse, or aggravated sexual contact, and, if so, how such a provision might best be drafted to account for the wide variations in offenses of conviction that may involve such underlying conduct. The Commission also invites comment on the appropriate amount of any such increase in offense levels. Note that in circumstances in which the defendant has two or more prior felony convictions of either a crime of violence (which includes forcible sex offenses) or a controlled substance offense, Sec. 4B1.1 (Career Offender) will provide a sentence at or near the statutory maximum for the current offense. Chapter Two, Part B (Offenses Involving Property) Chapter Two, Part F (Offenses Involving Fraud Or Deceit) 8. Synopsis of Proposed Amendment: Section 110512 of the Violent Crime Control and Law Enforcement Act of 1994 directs the Commission to ``amend its sentencing guidelines to provide an appropriate enhancement of the punishment for a defendant convicted of a felony under chapter 25 (Counterfeiting and Forgery) of title 18, United States Code (sections 471-513), if the defendant used or carried a firearm (as defined in section 921(a)(3) of title 18, United States Code) during and in relation to the felony.'' The vast majority of offenses in chapter 25 are covered by Secs. 2B5.1 (Offenses Involving Counterfeit Bearer Obligations of the United States) and 2F1.1 (Fraud and Deceit; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States). Neither Sec. 2B5.1 nor Sec. 2F1.1 provides an adjustment for possession of a firearm during and in relation to a felony. Commission data suggest that the frequency of firearm possession in such cases is very low. Two options are shown. Option 1 amends Secs. 2B5.1 and 2F1.1 to provide an adjustment for using or carrying a weapon in connection with the offense. Option 2 amends Secs. 2B5.1 and 2F1.1 to recommend an upward departure in such circumstances. Proposed Amendment: [Option 1: Section 2B5.1(b) is amended by inserting the following additional subdivision: ``(3) If a dangerous weapon (including a firearm) was possessed in connection with the offense, increase by 2 levels. If the resulting offense level is less than level 13, increase to level 13.'' The Commentary to Sec. 2B5.1 captioned ``Background'' is amended by inserting the following additional paragraph as the second paragraph: ``Subsection (b)(3) implements, in a broader form, the instruction to the Commission in section 110512 of Public Law 103-322.''. Section 2F1.1(b)(4) is amended by inserting ``(A)'' immediately after ``involved'' and by inserting ``or (B) possession of a dangerous weapon (including a firearm) in connection with the offense,'' immediately after ``injury,''. The Commentary to Sec. 2F1.1 captioned ``Background'' is amended by inserting the following additional paragraph as the next to the last paragraph: ``Subsection (b)(4)(B) implements, in a broader form, the instruction to the Commission in section 110512 of Public Law 103- 322.''.] [Option 2: The Commentary to Sec. 2B5.1 captioned ``Application Notes'' is amended by inserting the following additional Note: ``4. If a dangerous weapon (including a firearm) was possessed in connection with the offense, an upward departure may be warranted.''. The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is amended by inserting the following additional Note: ``19. If a dangerous weapon (including a firearm) was possessed in connection with the offense, an upward departure may be warranted.''.] Additional Issue for Comment: The Commission, at the request of the Department of Justice, invites comment on whether the form of any enhancement for a dangerous weapon should be that used in Sec. 2B3.1 (Robbery) or that used in Chapter Two, Part D (Offenses Involving Drugs). Chapter Two, Part D (Offenses Involving Drugs) 9. Synopsis of Proposed Amendment: Section 60008 of the Violent Crime Control and Law Enforcement Act of 1994 creates a new offense codified at 18 U.S.C. Sec. 36 that makes it unlawful to fire a weapon into a group of two or more persons in furtherance of, or to escape detection of, a major drug offense with intent to intimidate, harass, injure, or maim, and in the course of such conduct cause grave risk to any human life or kill any person. A ``major drug offense'' is defined to mean a continuing criminal enterprise, 21 U.S.C. Sec. 848(c), a drug distribution conspiracy under 21 U.S.C. Sec. 846 or Sec. 963, or an offense involving large quantities of drugs that is punishable under 21 U.S.C. Sec. 841(b)(1)(A) or Sec. 960(b)(1). Two options are shown. Option 1 references this offense to Sec. 2D1.1 in the Statutory Index. Option 2, in addition, references the applicable Chapter Two, Part A, offenses. Proposed Amendment: [Option 1: Appendix A (Statutory Index) is amended by inserting the following in the appropriate place by title and section: ``18 U.S.C. Sec. 36 2D1.1''.] [Option 2: Appendix A (Statutory Index) is amended by inserting the following in the appropriate place by title and section: ``18 U.S.C. Sec. 36 2A1.1, 2A1.2, 2A2.1, 2A2.2, 2D1.1''.] Additional Issue for Comment: The Commission, at the request of the Department of Justice, invites comment as to whether there should be an enhancement under Sec. 2D1.1 for reckless endangerment by firing a weapon into a group of two or more persons in a circumstance set forth in section 60008 when no injury occurs. 10(A). Issue for Comment: Section 90101 of the Violent Crime Control and Law Enforcement Act of 1994 amends 18 U.S.C. Sec. 1791 (providing or possessing contraband in prison) to provide four different maximum penalties depending on the type of controlled substance. The Commission invites comment on the appropriate treatment of offenses under 18 U.S.C. Sec. 1791 involving drug trafficking in correctional facilities. Specifically, should the enhanced offense level in the cross reference in Sec. 2P1.2 (two levels plus the offense level from Sec. 2D1.1) be expanded to apply to all drug trafficking offenses under 18 U.S.C. Sec. 1791? Should the minimum offense level of 26 in this cross reference be applied to methamphetamine offenses to reflect that such offenses now have the same 20-year statutory maximum penalty as the other controlled substance distribution offenses to which this cross reference applies? The Commission also invites comment on the appropriate offense levels under Sec. 2P1.2 for offenses involving the simple possession of controlled substances that occur in correctional facilities. [[Page 2434]] (B). Issue for Comment: Section 90103 of the Violent Crime and Law Enforcement Act of 1994 directs the Commission to amend the guidelines to provide an adequate enhancement for (1) an offense of simple possession of a controlled substance under 21 U.S.C. Sec. 844 that occurs in a federal prison or detention facility, and (2) an offense under 21 U.S.C. Sec. 841 that involves distributing a controlled substance in a federal prison or detention facility. The Commission invites comment as to the best methods of implementing this directive. With respect to distribution offenses, the Commission specifically invites comment as to whether such offenses should be referenced to Sec. 2D1.2, which provides enhanced penalties for controlled substance distribution offenses involving protected locations. With respect to simple possession offenses, the Commission specifically invites comment as to whether an enhancement of two levels would be an appropriate enhancement, or whether a higher or lower enhancement should be used. In addition, the Commission invites comment on how the offense levels for simple possession offenses in a correctional facility under Secs. 2D2.1 and 2P1.2 might better be coordinated. 11. Issue for Comment: Section 90102 of the Violent Crime Control and Law Enforcement Act of 1994 directs the Commission to amend the guidelines to provide ``an appropriate enhancement'' for a defendant convicted of violating 21 U.S.C. Sec. 860. This statute prohibits drug trafficking in protected locations (e.g., near schools, playgrounds, video arcades). Guideline 2D1.2 currently contains an enhanced penalty for such offenses based on a congressional directive to the Commission in section 6454 of Public Law 100-690 (pertaining to drug offenses involving persons less than 18 years of age). The Commission seeks comment on whether the enhancement for these offenses in Sec. 2D1.2 is adequate to account for the directive set forth in section 90102 or, if the current enhancement is not adequate, how and to what extent Sec. 2D1.2 should be amended to provide an appropriate enhancement. Additional Issue for Comment: The Commission, at the request of the Federal and Community Defenders, invites comment as to whether the guidelines should be amended to provide a lower base offense level if an offense is committed in a protected location selected by law enforcement or its agents. The Commission specifically invites comment on the following proposal. Section 2D1.2(a)(4) is amended by deleting ``otherwise'' and inserting in lieu thereof: ``(A) if the offense involved a protected location and the protected location was selected by law enforcement personnel, or someone acting under the direction or control of law enforcement personnel, or (B) in any case not covered by subdivisions 1 through 3 of this subsection.''. 12. Synopsis of Proposed Amendment: Section Two of the Domestic Chemical Diversion Act of 1993 (Public Law 103-200) changes the designations of the listed chemicals from ``listed precursor chemicals'' and ``listed essential chemicals'' to ``list I chemicals'' and ``list II chemicals,'' respectively. Guideline 2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy) currently refers to ``listed precursor chemicals'' and ``listed essential chemicals.'' This amendment conforms Sec. 2D1.11 to the new terminology to avoid confusion. Section Two of the Act also adds pills containing ephedrine as a list I chemical. Ephedrine is a list I chemical under 21 U.S.C. Sec. 802(34). Pills containing ephedrine previously were not covered by the statute and thus legally could be purchased ``over the counter.'' Purchases of these pills were sometimes made in large quantities and the pills crushed and processed to extract the ephedrine (which could be used to make methamphetamine). Unlike ephedrine, which is purchased from a chemical company and is virtually 100 percent pure, these tablets contain about 25 percent ephedrine. To avoid unwarranted disparity, this amendment adds a note to Sec. 2D1.11 providing that only the amount of actual ephedrine contained in the pill is to be used in determining the offense level. Section Eight of the Act removes three chemicals from the listed chemicals controlled under the Controlled Substances Act and adds two chemicals. Two of the chemicals removed from the list are not currently listed in Sec. 2D1.11 because the Commission was aware that they were erroneously included in the statute (they are not used in the manufacture of any controlled substance). The third chemical removed from the list, d-lysergic acid, was listed both as a listed chemical in Sec. 2D1.11 and as a controlled substance in Sec. 2D1.1. To conform Sec. 2D1.11 to this change, the proposed amendment deletes all references to d-lysergic acid. The two chemicals added as listed chemicals are benzaldehyde and nitroethane. Both of these chemicals are used to make methamphetamine. Base offense levels for listed chemicals in Sec. 2D1.11 are determined by their relationship to the most common controlled substance they are used to manufacture. The proposed amendment adds these chemicals to the Chemical Quantity Table in Sec. 2D1.11 based on information provided by the Drug Enforcement Administration regarding their use in the production of methamphetamine. Several of the chemicals in the Chemical Quantity Table are used in the same process to make a controlled substance, such as hydriodic acid and ephedrine as well the two chemicals added above. The current note at the end of the Precursor Chemical Equivalency Table states ``[i]n cases involving both hydriodic acid and ephedrine, calculate the offense level for each separately and use the quantity that results in the greatest offense level.'' The proposed amendment expands this note to cover other chemicals that may be used together, including the two chemicals added by the statute. Proposed Amendment: Section 2D1.11 and the commentary thereto is amended by deleting ``listed precursor'' wherever it appears and inserting in lieu thereof ``list I''; by deleting ``listed essential'' wherever it appears and inserting in lieu thereof ``list II''; and by deleting ``Precursor Chemical Equivalency Table'' wherever it appears and inserting in lieu thereof ``List I Chemical Equivalency Table''. Section 2D1.11(d) is amended by deleting all lines referencing d- lysergic acid. The Chemical Quantity Table in Sec. 2D1.11(d) is amended in subdivisions (1)-(9) by adding the following list I chemicals (formerly Listed Precursor Chemicals) in the appropriate place in alphabetical order by subdivision as follows: (1) ``17.8 KG or more of Benzaldehyde;'', ``12.56 KG or more of Nitroethane;'', (2) ``At least 5.34 KG but less than 17.8 KG of Benzaldehyde;'', ``At least 3.768 KG but less than 12.56 KG of Nitroethane;'', (3) ``At least 1.78 KG but less than 5.34 KG of Benzaldehyde;'', ``At least 1.256 KG but less than 3.768 KG of Nitroethane;'', (4) ``At least 1.25 KG but less than 5.34 KG of Benzaldehyde;'', ``At least 879 G but less than 1.256 KG of Nitroethane;'', (5) ``At least 712 G but less than 1.25 KG of Benzaldehyde;'', ``At least 502 G but less than 879 G of Nitroethane;'', [[Page 2435]] (6) ``At least 178 G but less than 712 G of Benzaldehyde;'', ``At least 126 G but less than 879 G of Nitroethane;'', (7) ``At least 142 G but less than 178 G of Benzaldehyde;'', ``At least 100 G but less than 126 G of Nitroethane;'', (8) ``At least 107 G but less than 142 G of Benzaldehyde;'', ``At least 75 G but less than 100 G of Nitroethane;'', (9) ``Less than 107 G of Benzaldehyde;'', ``Less than 75 G of Nitroethane;''; And by adding the following chemicals, in the appropriate place in alphabetical order, to the List I Chemical Equivalency Table: ``1 gm of Benzaldehyde = 1.121 gm of Ephedrine'', ``1 gm of Nitroethane = 1.6 gm of Ephedrine''. Section 2D1.11(d) is amended in the notes following the Chemical Quantity Table by deleting Note (A) and inserting in lieu thereof: ``(A) The List I Chemical Equivalency Table provides a means for combining different precursor chemicals to obtain a single offense level. In a case involving two or more list I chemicals used to manufacture different controlled substances or to manufacture one controlled substance by different manufacturing processes, convert each to its ephedrine equivalency from the table below, add the quantities, and use the Chemical Quantity Table to determine the base offense level. In a case involving two or more list I chemicals used together to manufacture a controlled substance in the same manufacturing process, use the quantity of the single list I chemical that results in the greatest base offense level.''; By deleting Note D and inserting in lieu thereof: ``(D) In a case involving ephedrine tablets, use the weight of the ephedrine contained in the tablets, not the weight of the entire tablets, in calculating the base offense level.''. Section 2D1.11(d) is amended in the note following the List I Chemical Equivalency Table (formerly the Precursor Chemical Equivalency Table) designated by two asterisks by deleting ``both hydriodic acid and ephedrine'' and inserting in lieu thereof ``two or more list I chemicals used together in the same manufacturing process''. The Commentary to Sec. 2D1.11 captioned ``Application Notes'' is amended by deleting Note 4 in its entirety and inserting in lieu thereof: ``4. When two or more list I chemicals are used together in the same manufacturing process, calculate the offense level for each separately and use the quantity that results in the greatest base offense level. In any other case, the quantities should be added together (using the List I Chemical Equivalency Table) for the purposes of calculating the base offense level. Examples: (a) The defendant was in possession of five kilograms of ephedrine and three kilograms of hydriodic acid. Both of these list I chemicals are typically used together to manufacture methamphetamine. Therefore, the base offense level for each listed chemical would be calculated separately and the list I chemical with the highest base offense level would be used. Five kilograms of ephedrine result in a base offense level of 24; 300 grams of hydriodic acid result in base offense level of 14. In this case, the base offense level would be 24. (b) The defendant was in possession of five kilograms of ephedrine and two kilograms of phenylacetic acid. Although both of these chemicals are used to manufacture methamphetamine, they are used in two different manufacturing processes and thus would not be used together. In this case, the two kilograms of phenylacetic acid would convert to two kilograms of ephedrine (see List I Chemical Equivalency Table), resulting in a total equivalency of seven kilograms of ephedrine.''. The Commentary to Sec. 2D1.11 captioned ``Background'' is amended in the second sentence by deleting ``Listed precursor'' and inserting in lieu thereof ``List I''; by deleting ``critical to the formation'' and inserting in lieu thereof ``important to the manufacture''; and by inserting ``usually'' immediately before ``become''. The Commentary to Sec. 2D1.11 captioned ``Background'' is amended in the last sentence by deleting ``Listed essential'' and inserting in lieu thereof ``List II''; by inserting ``used as'' immediately following ``generally''; and by deleting ``and do not become part of the finished product''. The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is amended by deleting Note 14 in its entirety, and by renumbering the remaining notes accordingly. 13. Synopsis of Proposed Amendment: Section Three of the Domestic Chemical Diversion Act of 1993 (Public Law 103-200) broadens the prohibition in 21 U.S.C. Sec. 843(a) to cover possessing, manufacturing, distributing, exporting, or importing three-neck round- bottom flasks, tableting machines, encapsulating machines, or gelatin capsules having reasonable cause to believe they will be used to manufacture a controlled substance. Guideline 2D1.12 (Unlawful Possession, Manufacture, Distribution, or Importation of Prohibited Flask or Equipment; Attempt or Conspiracy) applies to this conduct. Consistent with the treatment of similar conduct under Secs. 2D1.11(b)(2) and 2D1.13(b)(2), this amendment revises Sec. 2D1.12 to provide a three-level reduction in the offense level for cases in which the defendant had reasonable cause to believe, but not actual knowledge or belief, that the equipment was to be used to manufacture a controlled substance. Proposed Amendment: Section 2D1.12 is amended by inserting ``(Apply the greatest)'' immediately after ``Base Offense Level''; and by deleting ``12'' and inserting in lieu thereof: ``(1) 12, if the defendant intended to manufacture a controlled substance or knew or believed the prohibited equipment was to be used to manufacture a controlled substance; or (2) 9, if the defendant had reasonable cause to believe the prohibited equipment was to be used to manufacture a controlled substance.''. Chapter Two, Part H (Offenses Involving Individual Rights) Chapter Three, Part A (Victim-Related Adjustments) 14. Synopsis of Proposed Amendment: This is a three-part amendment. First, the amendment adds an additional subsection to Sec. 3A1.1 to implement the directive contained in Section 280003 of the Violent Crime Control and Law Enforcement Act of 1994. Second, the amendment consolidates Secs. 2H1.1, 2H1.3, 2H1.4, and 2H1.5, and adjusts the offense levels in these guidelines to harmonize them with each other, better reflect the seriousness of the underlying conduct, and reflect the revision of Sec. 3A1.1. Third, the amendment references violations of 18 U.S.C. Sec. 248 (the Freedom of Access to Clinic Entrances Act of 1994, Public Law 103-259) to the consolidated guideline. Section 280003 of the Violent Crime Control and Law Enforcement Act of 1994 directs the Commission to provide a minimum enhancement of three levels for offenses that the finder of fact at trial determines are hate crimes. This directive also instructs the Commission to ensure that there is reasonable consistency with other guidelines and that duplicative punishments for the same offense are avoided. The Freedom of Access to Clinic Entrances Act of 1994 makes it a crime to interfere with access to reproductive services or to interfere with certain religious activities. Since their inception, the guidelines have provided enhanced penalties for [[Page 2436]] offenses involving individual rights (hate crimes or other offenses committed under color of law). These enhanced penalties reflect that, in such offenses, the harm includes both the underlying criminal conduct and an added civil rights component. Under the current civil rights offense guidelines, there is a two-level enhancement for hate crimes committed by a person other than a public official. There is a six-level enhancement for all offenses committed under color of law, including both hate and non-hate crimes. The existing civil rights offense guidelines provide alternative base offense levels: (1) the offense level applicable to the underlying offense plus the additional levels for the civil rights component; and (2) a minimum or ``default'' offense level. The enhanced offense levels for civil rights offenses do not apply to hate crimes prosecuted under other statutes. Official misconduct offenses (offenses committed under color of law) prosecuted under other statutes generally receive an enhanced penalty of two levels under Sec. 3B1.3 (Abuse of Position of Special Trust) rather than the six levels applicable under the civil rights offense guidelines. The congressional directive in section 280003 requires that the three-level hate crimes enhancement apply where ``the finder of fact at trial determines beyond a reasonable doubt'' that the offense of conviction was a hate crime. The proposed amendment makes the enhancement applicable if either the finder of fact at trial or, in the case of a guilty or nolo contendere plea, the court at sentencing, determines that the offense was a hate crime. By broadening the applicability of the congressionally mandated enhancement, the Commission will avoid unwarranted sentencing disparity based on the mode of conviction. The Commission's authority, pursuant to 28 U.S.C. Sec. 994, permits such a broadening of the enhancement. The addition of a generally applicable Chapter Three hate crimes enhancement requires amendment of the civil rights offense guidelines to avoid duplicative punishments. In addition, to further the Commission's goal of simplifying the operation of the guidelines, the proposed amendment consolidates the four current civil rights offense guidelines into one guideline. Proposed Sec. 2H1.1 provides alternative offense levels using the greatest of the following: (1) the base offense level for the underlying offense; (2) level 10, for offenses involving the use or threatened use of force or the actual or threatened destruction of property; or (3) level 6, otherwise. In addition, two options for setting the default offense level for conspiracies involving individual rights are shown. One option sets a default level of 12 for offenses involving two or more participants. This option is two levels higher than the default offense level for substantive offenses involving force or the threat of force and six levels higher than the default offense level for substantive offenses not involving force or the threat of force. A second option sets the default offense level of 10, which is consistent with the default offense level for substantive civil rights offenses involving force or the threat of force and four levels higher than the offense level for substantive civil rights offenses not involving force or the threat of force. Proposed Sec. 2H1.1, working together with the proposed Sec. 3A1.1, provides enhanced penalties for civil rights offenses. For hate crimes committed by persons who are not public officials, the enhancement is three levels under proposed Sec. 3A1.1, one level greater than under the current guidelines. Unlike the current guidelines, however, the proposed guideline differentiates between hate crimes and non-hate crimes committed under color of law, punishing hate crimes committed by public officials more severely than non-hate crimes. Proposed Sec. 2H1.1 provides an enhancement for non-hate crimes committed under color of law of either two, three, or four levels above the offense level for the underlying offense. A two-level enhancement would be consistent with the generally applicable enhancement under Sec. 3B1.3 (Abuse of Position of Special Trust). A three- or four-level enhancement would be higher than the generally applicable enhancement under Sec. 3B1.3 and arguably would reflect the greater harm done by those in positions of authority when the harm involves violations of individual rights. Because of the additional three-level hate crime enhancement under Sec. 3A1.1, the proposed amendment would provide a combined enhancement for hate crimes committed by public officials of five, six, or seven levels. The clinic access law, like the other criminal civil rights statutes, criminalizes a broad array of conduct, from non-violent obstruction of the entrance to a clinic to murder. The proposed amendment treats these violations in the same way as other offenses involving individual rights. Two options are shown. Option 1 sets forth an amendment consistent with the preceding discussion. An alternative to this proposed amendment, published at the request of the Department of Justice, is set forth as Option 2. Proposed Amendment: [Option 1: Section 3A1.1 and accompanying commentary is deleted in its entirety and the following inserted in lieu thereof: ``Sec. 3A1.1. Hate Crime Motivation or Vulnerable Victim (a) If the finder of fact at trial or, in the case of a plea of guilty or nolo contendere, the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person, increase by 3 levels; or (b) If the defendant knew or should have known that a victim of the offense was unusually vulnerable due to age, physical or mental condition, or that a victim was otherwise particularly susceptible to the criminal conduct, increase by 2 levels. Commentary Application Notes: 1. Subsection (a) applies to offenses that are hate crimes. Note that special evidentiary requirements govern the application of this subsection. 2. Subsection (b) applies to offenses in which an unusually vulnerable victim is made a target of criminal activity by the defendant and the defendant knew or should have known of the victim's unusual vulnerability. The adjustment would apply, for example, in a fraud case where the defendant marketed an ineffective cancer cure or in a robbery where the defendant selected a handicapped victim. But it would not apply in a case where the defendant sold fraudulent securities by mail to the general public and one of the victims happened to be senile. Similarly, for example, a bank teller is not an unusually vulnerable victim solely by virtue of the teller's position in a bank. 3. Do not apply subsection (a) on the basis of gender in the case of a sexual offense. In such cases, this factor is taken into account by the offense level of the Chapter Two offense guideline. 4. Do not apply subsection (b) if the offense guideline specifically incorporates this factor. For example, if the offense guideline provides an enhancement for the age of the victim, this subsection should not be applied unless the victim was unusually vulnerable for reasons unrelated to age. 5. If subsection (a) applies, do not apply subsection (b). In the case of an offense that both is a ``hate'' crime and involves an unusually vulnerable [[Page 2437]] victim, a sentence at or near the upper limit of the applicable guideline range (which will include a 3- level enhancement from subsection (a)) typically will be appropriate. Background: Subsection (a) reflects the directive to the Commission, contained in Section 280003 of the Violent Crime Control and Law Enforcement Act of 1994, to provide an enhancement of not less than three levels for an offense when the finder of fact at trial determines beyond a reasonable doubt that the defendant had a hate crime motivation (i.e., a primary motivation for the offense was the race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of the victim). To avoid unwarranted sentencing disparity based on the method of conviction, the Commission has broadened the application of this enhancement to include offenses that, in the case of a plea of guilty or nolo contendere, the court at sentencing determines are hate crimes.''. The Introductory Commentary to Chapter Two, Part H, Subpart I and Secs. 2H1.1, 2H1.3, 2H1.4, and 2H1.5 are deleted in their entirety and the following inserted in lieu thereof: ``Sec. 2H1.1. Offenses Involving Individual Rights (a) Base Offense Level (Apply the greatest): (1) the offense level from the offense guideline applicable to any underlying offense; [(2) 10, if the offense involved (A) the use or threat of force against a person; or (B) property damage or the threat of property damage; or (C) two or more participants; or (3) 6, otherwise.] [(2) 12, if the offense involved two or more participants; or (3) 10, if the offense involved (A) the use or threat of force against a person; or (B) property damage or the threat of property damage; or (4) 6, otherwise.] (b) Specific Offense Characteristics (1) If (A) the defendant was a public official at the time of the offense; or (B) the offense was committed under color of law, increase by [2][3][4] levels. If the resulting offense level is less than level 10, increase to level 10. Commentary Statutory Provisions: 18 U.S.C. Sec. 241, 242, 245(b), 246, 247, 248, 1091; 42 U.S.C. Sec. 3631. Application Notes: 1. `Offense guideline applicable to any underlying offense' means the offense guideline applicable to any conduct established by the offense of conviction that constitutes an offense under federal, state, or local law (other than an offense that is itself covered under Chapter Two, Part H, Subpart 1). In certain cases, conduct set forth in the count of conviction may constitute more than one underlying offense (e.g., two instances of assault, or one instance of assault and one instance of arson). In such cases, determine the number and nature of underlying offenses by applying the procedure set forth in Application Note 5 of Sec. 1B1.2 (Applicable Guidelines). If the Chapter Two offense level for any of the underlying offenses under subsection (a)(1) is the same as, or greater than, the alternative base offense level under subsection [(a)(2) or (3)] [(a)(2), (3), (4)], as applicable, use subsection (a)(1) and treat each underlying offense as if contained in a separate count of conviction. Otherwise, use subsection [(a)(2) or (3)] [(a)(2), (3), (4)], as applicable, to determine the base offense level. 2. `Participant' is defined in the Commentary to Sec. 3B1.1 (Aggravating Role). 3. The burning or defacement of a religious symbol with an intent to intimidate shall be deemed to involve the threat of force against a person for the purposes of subsection (a)[(2)][(3)](A). 4. If the finder of fact at trial or, in the case of a plea of guilty or nolo contendere, the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person, an additional 3-level enhancement from Sec. 3A1.1(a) will apply. 5. If subsection (b)(1) applies, do not apply Sec. 3B1.3 (Abuse of Position of Trust or Use of Special Skill).''.] [Option 2: Section 2H1.1(b) is amended by inserting the following additional subdivision: ``(2) If proof of the conspiracy requires a showing that a defendant acted for an improper purpose as defined in 18 U.S.C. Secs. 245, or 247, or 42 U.S.C. Sec. 3631, increase by [1] level.''. Section 2H1.3(a) is amended-- (1) in subdivision (1) by deleting ``10'' and inserting in lieu thereof ``[11]''; (2) in subdivision (2) by deleting ``15'' and inserting in lieu thereof ``[16]''; and (3) in subdivision (3) by deleting ``2'' and inserting in lieu thereof ``[3]''. Chapter Three, Part A, is amended by adding the following additional section: Sec. 3A1.4. Hate Crime Motivation If the finder of fact at trial or, in the case of a plea of guilty or nolo contendere, the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person, increase by [3] levels. Commentary Application Notes: 1. Do not apply this adjustment if the offense guideline specifically incorporates this factor. For example, do not apply this adjustment if Sec. 2H1.1(b)(2) or Sec. 2H1.3 applies. Similarly, do not apply this adjustment on the basis of gender in the case of a sexual offense. In such cases, this factor is taken into account by the offense level established by the Chapter Two offense guideline. 2. Note that special evidentiary requirements govern the application of this subsection. Background: This section reflects the directive to the Commission in section 280003 of the Violent Crime Control and Law Enforcement Act of 1994, to provide an enhancement of not less than three levels for an offense when the finder of fact at trial determines beyond a reasonable doubt that the defendant had a hate crime motivation (i.e., that the defendant intentionally selected a victim or property as the object of the offense because of a factor listed in this section). To avoid unwarranted sentencing disparity based on the method of conviction, the Commission has broadened the application of this enhancement to include offenses that, in the case of a plea of guilty or nolo contendere, the court at sentencing determines are hate crimes.''. Additional Issue for Comment: If Option 2 is adopted, the Commission seeks comment on how it should implement the penalty provisions of the Freedom of Access to Clinic Entrances Act of 1994.] Chapter Two, Part K (Offenses Involving Public Safety) 15. Synopsis of Proposed Amendment: Section 110102 of the Violent Crime Control and Law Enforcement Act of 1994 amends 18 U.S.C. Sec. 922 to add subsection (v), making it unlawful to manufacture, transfer, or possess ``semiautomatic assault weapons.'' Previously, only importation and possession (pursuant to 18 U.S.C. Sec. 925(d)(3)) and assembly of imported parts (pursuant to 18 U.S.C. Sec. 922(r)) of semiautomatic assault rifles [[Page 2438]] and shotguns (but not pistols) were prohibited. Section 110102 also increases the penalty for using or carrying a semiautomatic assault weapon ``during and in relation to any crime of violence or drug trafficking crime'' to a fixed, mandatory consecutive term of 10 years or, in the case of a second or subsequent conviction, 20 years. The term ``semiautomatic assault weapon'' is defined at new 18 U.S.C. Sec. 921(a)(30). Guideline 2K2.1 covers other firearm offenses involving semiautomatic assault weapons. For example, the base offense level for possession of an unlawfully imported semiautomatic assault weapon is level 12. Additional adjustments may apply and an upward departure is recommended if the offense involved multiple military-style assault rifles. Proposed Amendment: Appendix A (Statutory Index) is amended by inserting the following in the appropriate place by title and section: ``18 U.S.C. Sec. 922(v) 2K2.1''. Additional Issue for Comment: At the request of the Department of Justice, the Commission invites comment as to whether there should be an enhanced offense level under Sec. 2K2.1 for a conviction under 18 U.S.C. Sec. 922(v). 16. Synopsis of Proposed Amendment: Section 110201 of the Violent Crime Control and Law Enforcement Act of 1994 adds a new provision at 18 U.S.C. Sec. 922(x) making it unlawful, with some exceptions, to sell or transfer a handgun, or ammunition that is suitable for use only in a handgun, to a juvenile. The provision also prohibits, with some exceptions, a juvenile from possessing a handgun or ammunition. A juvenile is defined as a person who is less than eighteen years of age. The maximum imprisonment penalty for a person who violates this section is one year. However, if an adult defendant transfers a handgun or ammunition to a juvenile ``knowing or having reasonable cause to know that the juvenile intended to carry or otherwise possess or discharge or otherwise use the handgun or ammunition in the commission of a crime of violence,'' the maximum authorized term of imprisonment is ten years. In addition, section 110401 of the Violent Crime Control and Law Enforcement Act of 1994 amends 18 U.S.C. Sec. 922(d) to make it unlawful to sell or otherwise dispose of any firearm or ammunition to any person, knowing or having reasonable grounds to believe that such person ``is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child.'' This section also amends 18 U.S.C. Sec. 922(g) to make it unlawful for a person who is subject to such a court order to possess or receive any firearm or ammunition in or affecting commerce. Guideline 1B1.12 provides that the guidelines do not apply to a juvenile sentenced under the Juvenile Delinquency Act, 18 U.S.C. Sec. 5031-5042. Guideline 2K2.1 typically applies a base offense level of 6 to a misdemeanor offense or to a felony recordkeeping offense. Guideline 2K2.1 provides a base offense level of 12 for the transfer of a firearm by a licensed dealer to a juvenile or to a person prohibited under 18 U.S.C. Sec. 922(g) from possessing a firearm. The section also provides a base offense level of 14 for possession of a firearm by a prohibited person and increases the base offense level depending on the prior criminal history of the defendant. A specific offense characteristic may apply in the case of multiple firearms. A defendant who transfers a firearm knowing or having reason to believe that it may be used in connection with another felony offense is subject to the greater of a four-level adjustment with a minimum offense level of 18, or a cross reference to the guideline for the other offense. The proposed amendment adds a person under the court order described in section 110401 to the definition of a ``prohibited person.'' In addition, three amendment options are shown regarding the offense level for transfer of a firearm to a juvenile. Option 1 would result in a base offense level of 6; Option 2 would result in a base offense level of 12; Option 3, published at the request of the Department of Justice, would result in a base offense level of 14 if the defendant transferred a firearm to an underage person or to another prohibited person. Such a defendant currently would receive a base offense level of 12 under Sec. 2K2.1. Proposed Amendment: The Commentary to Sec. 2K2.1 captioned ``Application Notes'' is amended in Note 6 by deleting ``or (v)'' and inserting ``(v)'' in lieu thereof; and by inserting ``; or (vi) is subject to a court order that restrains the defendant from harassing, stalking, or threatening an intimate partner or child or from engaging in related conduct.'' immediately following ``States''. [Option 1: Section Sec. 2K2.1(a)(8) is amended by deleting ``or'' and by inserting ``, or (x)'' immediately following ``(m)''. Appendix A (Statutory Index) is amended by inserting the following in the appropriate place by title and section: ``18 U.S.C. Sec. 922(x) 2K2.1''.] [Option 2: Appendix A (Statutory Index) is amended by inserting the following in the appropriate place by title and section: ``18 U.S.C. Sec. 922(x) 2K2.1''.] [Option 3: Section 2K2.1(a)(6) is amended by inserting ``or if the transferor knew or had reasonable cause to believe that the transferee was a prohibited person or was underage'' immediately following ``prohibited person''. The Commentary to Sec. 2K2.1 captioned ``Application Notes'' is amended in Note 6 by inserting the following at the end thereof: ```Underage,' as used in subsection (a)(6), means under the ages set forth in 18 U.S.C. Sec. 922(b)(1). Appendix A (Statutory Index) is amended by inserting the following in the appropriate place by title and section: ``18 U.S.C. Sec. 922(x) 2K2.1''.] 17. Issue for Comment: Section 110501 of the Violent Crime Control and Law Enforcement Act of 1994 directs the Commission to provide an appropriate enhancement for a crime of violence or drug trafficking crime if a semiautomatic firearm is involved. The Commission requests comment on the most appropriate way to implement this directive. Information available to the Commission indicates that 50 to 70 percent of offenses involving a firearm involve a semiautomatic firearm; thus, offenses involving semiautomatic firearms represent the typical or ``heartland'' cases. Specifically, the Commission requests comment on how the offense level for an offense involving a semiautomatic firearm should be modified to address the directive. The Commission also requests comment on whether such an increase should apply to all semiautomatic firearms or whether the Commission should focus this enhancement on firearms that have characteristics that make them more dangerous than other firearms (e.g., semiautomatic firearms with a large magazine capacity). In addition, the Commission requests comment on whether any such enhancement should apply only to crimes of violence and drug trafficking offenses as specified in the directive or whether it should apply to other offenses such as firearms offenses covered by Sec. 2K2.1 or to all offenses. 18. Issue for Comment: Section 110502 of the Violent Crime Control and [[Page 2439]] Law Enforcement Act of 1994 directs the Commission to ``appropriately enhance penalties for cases in which a defendant convicted under 18 U.S.C. Sec. 844(h) has previously been convicted under that section.'' Section 320106 revises the previous fixed, mandatory consecutive 5-year penalty for a first offense under 18 U.S.C. Sec. 844(h) to provide a range of 5 to 15 years, and changes the previous fixed, mandatory consecutive penalty for a second offense from 10 years to a range of 10 to 25 years. The Commission requests comment as to how Sec. 2K2.4 can be amended appropriately to address this directive and statutory change. Possible approaches might include: (1) an amendment to Sec. 2K2.4 to increase the sentence by a specific amount if the defendant previously has been convicted under 18 U.S.C. Sec. 844(h); (2) application under Sec. 2K2.4 of the minimum term of imprisonment required by statute, with a departure recommended when this sentence, combined with the sentence for the underlying offense, does not provide adequate punishment; or (3) an amendment to Sec. 2K2.4 to reference the underlying offense plus an appropriate enhancement for the weapon or explosive, and a provision for apportioning the sentence imposed to avoid double counting. 19. Issue for Comment: Section 110513 of the Violent Crime Control and Law Enforcement Act of 1994 directs the Commission to ``appropriately enhance'' penalties (1) for cases in which a defendant convicted under 18 U.S.C. Sec. 922(g) has one prior conviction for a violent felony (as defined in 18 U.S.C. Sec. 924(e)(2)(B)) or a serious drug offense (as defined in 18 U.S.C. Sec. 924(e)(2)(A)); and (2) for cases in which a defendant has two such prior convictions. The statutory maximum for the offense remains at ten years. Guideline 2K2.1 covers violations of 18 U.S.C. Sec. 922(g). Alternative base offense level apply depending on the number of prior convictions of one or more ``crime[s] of violence'' or ``controlled substance offense[s].'' For example, a defendant with one such prior conviction would receive a base offense level of at least 20. A defendant with two or more such prior convictions would receive a base offense level of at least 24. In addition, a four-level enhancement or a cross reference may apply if the weapon was to be used in another felony. Other enhancements may apply depending on the type and number of weapons, and whether the weapon was stolen. The Commission's definitions of ``crime of violence'' and ``controlled substance offense'' are similar but not identical to those referenced in the directive. Guideline 2K2.1 draws its definition of ``crime of violence'' from 18 U.S.C. Sec. 924(e) with a minor modification. Whereas the section 924(e) definition of ``violent felony'' includes any burglary, including a burglary of an abandoned commercial building, Taylor v. United States, 495 U.S. 575, 602 (1990), the definition of ``crime of violence'' in Sec. 2K2.1 includes only burglary of a dwelling, consistent with the career offender provisions of the guidelines. United States v. Talbott, 902 F.2d 1129, 1133 (4th Cir. 1990). Further, the Sec. 2K2.1 definition of ``controlled substance offense,'' drawn from 18 U.S.C. Sec. 924(c) and the career offender provisions of the guidelines, is slightly different from that in 18 U.S.C. Sec. 924(e). The section 924(e) definition of ``serious drug offense'' requires that the drug offense (whether federal or state) have a maximum term of imprisonment of ten years or more. This narrower definition precludes, for example, counting a federal conviction under 21 U.S.C. Sec. 843(b) (four year statutory maximum for using a communication facility to facilitate drug distribution). By contrast, the definition of ``controlled substance offense'' in Sec. 2K2.1 includes such ``telephone counts.'' United States v. Vea-Gonzales, 999 F.2d 1326, 1329-30 (9th Cir. 1993). Moreover, where one state imposes a five-year maximum for certain drug conduct while another state imposes a ten-year maximum for the identical conduct, the section 924(e) definition would not count a defendant's conviction in the first state but would count the defendant's conviction in the second state. The Commission invites comment on whether the current offense levels in these guidelines should be increased and, if so, by what amount. The Commission also invites comment on whether, for consistency, the definitions and counting of prior conviction of crime of violence and drug trafficking offense used in these guidelines should be the same as those used in Sec. 4B1.1 (Career Offender). 20. Synopsis of Proposed Amendment: Section 110504 of the Violent Crime Control and Law Enforcement Act of 1994 amends 18 U.S.C. Sec. 924 to add subsection (k) making it unlawful to steal any firearm that is moving or has moved in interstate commerce. Likewise, 18 U.S.C. Sec. 844 is amended to add subsection (k) making it unlawful to steal any explosive that is moving or has moved in interstate commerce. Section 110511 amends 18 U.S.C. Sec. 922(j) to clarify that it is unlawful to receive or possess any stolen firearm that has moved in interstate commerce regardless of whether the movement occurred ``before or after it [the firearm] was stolen.'' Section 110515 amends 18 U.S.C. Sec. 924 to add a new subsection (l) making it a federal crime to steal any firearm from a licensed importer, manufacturer, dealer, or collector. The section also amends 18 U.S.C. Sec. 844 to add a new subsection (l) with regard to stealing explosives from licensees. Current law also proscribes shipping a stolen firearm (18 U.S.C. Sec. 922(i)), stealing from the person or premises of a licensee any firearm in the business inventory (18 U.S.C. Sec. 922(u)), and shipping stolen explosives (18 U.S.C. Sec. 842(h)). Further, the general theft statute, 18 U.S.C. Sec. 659, provides a maximum imprisonment penalty of ten years for stealing ``goods or chattels,'' including a firearm, ``moving as or which are part of or which constitute an interstate or foreign shipment of freight, express, or other property.'' Other theft and receipt of stolen property statutes may also apply to a theft of a firearm. Guideline 2K2.1 covers offenses involving stolen firearms. These offenses are subject to a base offense level of 12. Additional adjustments may also apply. A two-level enhancement applies if a firearm is stolen unless the only count of conviction is a stolen firearm offense. This conditional adjustment has resulted in several calls to the Commission's hotline regarding cases involving a felon in possession of a stolen firearm who may be charged either under 18 U.S.C. Sec. 922(g) (felon in possession) or with 18 U.S.C. Sec. 922(j) (receipt of stolen firearm). A conviction under section 922(g) will result in a total offense level of 16 (base offense level of 14 plus two-level adjustment for stolen firearm). A conviction under section 922(j) will result in a total offense level of 14 (base offense level of 14 but, per application note 12, no two-level adjustment for stolen firearm because the only offense of conviction is a stolen firearm offense). Further, the list of stolen firearm statutes has not been updated to reflect recent amendments to the code. Indeed, 18 U.S.C. Sec. 922(u) (theft from dealer) as well as 18 U.S.C. Secs. 922(s) and 922(t) (Brady bill provisions) are not listed in the Statutory Index. Guideline 2B1.1 governs general theft offenses, including offenses of goods traveling in interstate commerce and offenses within the special federal maritime or territorial jurisdiction or within Indian territory. Guideline [[Page 2440]] 2B1.1(b)(2)(A) provides for a one- level increase (to no less than level 7) if a firearm or destructive device was taken, compared with a base offense level 12 under Sec. 2K2.1. Two options are proposed to address the disparity in Sec. 2B1.1 and Sec. 2K2.1 penalties. Option 1 amends Sec. 2B1.1 to include a cross reference to Sec. 2K2.1. Option 2 amends Sec. 2B1.1 to recommend an upward departure. The amendment also specifies a base offense level of 6 for convictions under 18 U.S.C. Sec. 922 (s) or (t) and clarifies application of Note 6 only to cases in which the base offense level is determined under Sec. 2K2.1(a)(7). Proposed Amendment: Section 2K2.1(a)(8) is amended by deleting ``or'' and inserting in lieu thereof ``(s), or (t)''. The Commentary to Sec. 2K2.1 captioned ``Application Notes'' is amended in Note 12 by deleting ``or (k),'' and inserting in lieu thereof ``(u), or Sec. 924 (j) or (k),''; and by inserting ``and the base offense level is determined under Sec. 2K2.1(a)(7),'' immediately following ``guideline,''. [Option 1: Section 2B1.1(b) is amended by deleting subdivision (2). Section 2B1.1 is amended by inserting the following additional subsection: ``(c) Cross Reference (1) If (A) a firearm, destructive device, explosive material, or controlled substance was taken, or the taking of such item was an object of the offense, or (B) the stolen property received, transported, transferred, transmitted, or possessed was a firearm, destructive device, explosive material, or controlled substance, apply Sec. 2D1.1, Sec. 2D2.1, Sec. 2K1.3, or Sec. 2K2.1, as appropriate, if the resulting offense level is greater than that determined above.''.] [Option 2: Section 2B1.1(b) is amended by deleting subdivision (2). The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is amended by inserting the following additional Note: ``15. If the offense involved the unlawful taking, receipt, transportation, transfer, transmittal, or possession of a firearm, destructive device, explosive material, or controlled substance, an upward departure to an offense level comparable to that provided under Sec. 2D1.1, Sec. 2D2.1, Sec. 2K1.3, or Sec. 2K2.1, as appropriate, may be warranted.''.] Appendix A (Statutory Index) is amended by inserting the following in the appropriate place by title and section: ``18 U.S.C. Sec. 922(s)-(u) 2K2.1'', ``18 U.S.C. Sec. 924(k),(l) 2K2.1''. 21. Synopsis of Proposed Amendment: Section 110518 of the Violent Crime Control and Law Enforcement Act of 1994 amends 18 U.S.C. Sec. 924 to add a new subsection (n) to provide that ``[a] person who conspires to commit an offense under subsection (c) shall be imprisoned for not more than 20 years, fined under this title, or both; and if the firearm is a machinegun or destructive device, or is equipped with a firearm silencer or muffler, shall be imprisoned for any term of years or life.'' This section also amends 18 U.S.C. Sec. 844 to add a new subsection (m) increasing to 20 years the maximum imprisonment penalty for a conspiracy to violate 18 U.S.C. Sec. 844(h). This section does not alter the fixed, mandatory consecutive penalty for the underlying substantive offenses of using or carrying a firearm or explosive during and in relation to a crime of violence or drug trafficking crime. Thus, identical offense conduct covered by these statutes may be subject, for example, to a fixed, mandatory five-year term to run consecutively to any underlying offense if indicted under 18 U.S.C. Sec. 924(c), a 5- year mandatory minimum term and 15-year maximum term to run consecutively to any underlying offense if indicted under 18 U.S.C. Sec. 844(h), a 5-year maximum term under 18 U.S.C. Sec. 371, or a 20- year maximum term under 18 U.S.C. Sec. 924(n). Guideline 2K2.4 provides for the term of imprisonment required by 18 U.S.C. Sec. 924(c). Guideline 2K2.1 applies to an offense under 18 U.S.C. Sec. 371 involving conspiracy to violate 18 U.S.C. Sec. 924(c) and provides for an offense level of at least 18 (base offense level 12 plus increase to an offense level of at least 18 if the firearm or ammunition was used or intended to be used in connection with another offense). Additional adjustments may apply. The explosives guideline, Sec. 2K1.3, also provides an offense level of at least 18 for a conviction under 18 U.S.C. Sec. 371 for conspiracy to violate 18 U.S.C. Sec. 844(h). Proposed Amendment: Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. Sec. 371 by inserting ``2K2.1 (if a conspiracy to violate 18 U.S.C. Sec. 924(c)),'' immediately before ``2X1.1''. Appendix A (Statutory Index) is amended by inserting the following in the appropriate place by title and section: ``18 U.S.C. Sec. 844(m) 2K1.3 18 U.S.C. Sec. 924(n) 2K2.1''. Additional Issue for Comment: At the request of the Department of Justice, the Commission invites comment as to whether a conviction for a conspiracy to violate section 924(c) should be more closely referenced to the penalty in 18 U.S.C. Sec. 924(c) or to the guideline for the underlying offense. Chapter Two, Part L (Offenses Involving Immigration, Naturalization, and Passports) 22(A). Issue for Comment: Section 60024 of the Violent Crime Control and Law Enforcement Act of 1994 increases the statutory penalty for bringing in or harboring an alien from five to ten years, establishes a penalty of up to 20 years imprisonment if serious bodily injury results, and establishes a penalty of imprisonment for any term of years or life, if death results. In view of these statutory penalty changes, the Commission invites comment on whether the offense levels under the applicable guideline, Sec. 2L1.1 (Smuggling, Transporting, or Harboring an Unlawful Alien), should be increased, and if so, by what amount. (B). Issue for Comment: Section 130001 of the Violent Crime Control and Law Enforcement Act of 1994 alters the penalties for failing to depart and for reentering the United States in violation of 8 U.S.C. Secs. 1252(e) and 1326(b), respectively. This provision reduces the statutory maximum penalties for some offenses from ten years to four years, and increases the statutory maximum penalties for reentry after commission of a felony or an aggravated felony from five to ten years, and from 15 to 20 years, respectively. This provision also establishes the offense of reentry after conviction for three or more misdemeanors involving drugs, crimes against the person, or both. The Commission invites comment on whether amendment of the applicable guideline is appropriate. Specifically, are the current offense levels provided for reentry after conviction of a felony or aggravated felony appropriate, and if not, how should the guidelines be amended? Should the offense level currently applicable for reentry after deportation for a felony also be applied to deportation after conviction of three or more misdemeanors involving drugs, crimes against the person, or both? (C). Synopsis of Proposed Amendment: This proposed amendment, published at the request of the Department of Justice, increases the base offense level for immigration offenses committed by certain means and increases the offense level if any person sustained bodily injury. Proposed Amendment: Section 2L1.1(a) is amended by redesignating subdivision (2) as subdivision (3) and inserting the following new subdivision: ``(2) 13, if the offense was committed by means set forth in 8 U.S.C. Sec. 1324(a)(1)(A)(i) or 1324(a)(2)(B).''. [[Page 2441]] Section 2L1.1(b) is amended by inserting the following additional subdivision: ``(4) If any person sustained bodily injury, increase the offense level according to the seriousness of the injury: ------------------------------------------------------------------------ Increase in Degree of bodily Injury level ------------------------------------------------------------------------ (A) Bodily Injury......................................... Add 2. (B) Serious Bodily Injury................................. Add 4. (C) Permanent or Life-Threatening Bodily Injury........... Add 6. (D) If the degree of injury is between that specified in Add 3. subdivisions (A) and (B). (E) If the degree of injury is between that specified in Add 5.''. subdivisions (B) and (C). ------------------------------------------------------------------------ The Commentary to Sec. 2L1.1 captioned ``Application Notes'' is amended in Note 5 by deleting ``dangerous or inhumane treatment, death or bodily injury,''. (D). Synopsis of Proposed Amendment: This proposed amendment, published at the request of the Department of Justice, suggests an additional ground for an upward departure for certain cases under Sec. 2L1.2. Proposed Amendment: The Commentary to Sec. 2L1.2 captioned ``Application Notes'' is amended in Note 2 by deleting ``a sentence at or near the maximum of the applicable guideline range'' and inserting ``an upward departure'' in lieu thereof. 23(A). Issue for Comment: Section 130009 of the Violent Crime Control and Law Enforcement Act of 1994 increases the statutory maximum penalties for passport and visa offenses to ten years. Previously, these offenses had statutory maximum penalties of one year or five years. It also provides an increased statutory maximum penalty of 15 years if the offense is committed to facilitate a drug trafficking crime, and 20 years if the offense is committed to facilitate an act of international terrorism. Considering the existing policy statements at Secs. 5K2.9 and 5K2.15 suggesting an upward departure in cases where the offense was committed to facilitate another offense or in furtherance of a terroristic action, the Commission invites comment on whether, and if so, how, the guidelines should be amended with respect to passport and visa offenses. (B). Synopsis of Proposed Amendment: This proposed amendment, published at the request of the Department of Justice, consolidates Secs. 2L2.1 and 2L2.2 and provides additional enhancements if the offense was committed to facilitate certain unlawful conduct. Proposed Amendment: Sections 2L2.1 and 2L2.2 are deleted in their entirety and the following is inserted in lieu thereof. ``Sec. 2L2.1. Fraudulently Issuing, Acquiring or Improperly Using Passports or Visas; False Statements in Respect to Passports and Visas; Forging, Counterfeiting or Altering Passports or Visas; Trafficking in International Travel Documents, or Birth Certificates, Driver Licenses or Other Documents to Fraudulently Obtain Issuance of Passports or Visas; Use of Passports or Visas to Facilitate Narcotics Trafficking or International Terrorism. (a) Base Offense Level: (1) 26, if the offense was committed to facilitate an act of international terrorism. (2) 20, if the offense was committed to facilitate a drug trafficking crime; (3) 13, otherwise. (b) Specific Offense Characteristics (1) If the offense involves six or more documents or passports, increase as follows: ------------------------------------------------------------------------ Passports Number of documents increase in level ------------------------------------------------------------------------ (A) 6-24.................................................. Add 2. (B) 25-99................................................. Add 4. (C) 100 or more........................................... Add 6. ------------------------------------------------------------------------ (2) If the defendant is an unlawful alien who has been previously deported (voluntarily or involuntarily) on one or more occasions prior to the instant offense, increase by 2 levels. (3) If the offense was committed to facilitate racketeering activity, increase by 3 levels. (4) If the offense was committed to facilitate unlawful flight from justice, increase by 3 levels. (5) If the defendant committed the offense other than for profit (except as provided in paragraph (3) or (4)), decrease by 3 levels. Commentary Statutory Provisions: 8 U.S.C. Secs. 1160(b)(7)(A), 1185(a)(3), (4), (5), 1325(b), (c); 18 U.S.C. Secs. 911, 1015, 1028, 1423-1427, 1541-1544, 1546, 1547. Application Notes: 1. Where it is established that multiple documents are part of a set intended for use by one person, treat the documents in the set as one document for the purposes of subsection (b). 2. If the offense involved possession of a dangerous weapon, an upward departure may be warranted. 3. `Racketeering activity' is defined at 18 U.S.C. Sec. 1961. 4. `Drug trafficking crime' is defined at 18 U.S.C. Sec. 929(a). 5. `International terrorism' is defined at 18 U.S.C. Sec. 2331. 6. If two or more factors warranting an upward departure as enumerated in subsection (b) apply, only the paragraph specifying the highest level will be used. 7. `For profit' means for financial gain or commercial advantage. 8. If the offense was committed only for the purpose of concealing age, a downward departure may be warranted. 9. For the purposes of Chapter Three, Part D (Multiple Counts), a conviction for unlawfully entering or remaining in the United States (Sec. 2L1.2) arising from the same course of conduct is treated as a closely related count, and is therefore grouped with an offense covered by this guideline.''. Chapter Three (Adjustments) Chapter Five, Part K (Departures) 24. Issue for Comment: Section 120004 of the Violent Crime Control and Law Enforcement Act of 1994 directs the Commission to provide an appropriate enhancement for any felony that involves or is intended to promote international terrorism (unless such involvement or intent is itself an element of the crime). Considering the existing policy statement in Sec. 5K2.15 recommending an upward departure in such cases, the Commission invites comment on whether, and if so how, the guidelines should be amended to address this directive appropriately. For example, should the Commission add an adjustment to Chapter Three that would apply to all Chapter Two offenses and that would prescribe a specific increase in offense level if the offense involved or was intended to promote terrorism? If so, what level of enhancement would be appropriate? Or, should the Commission amend Sec. 4B1.1 (Career Offender) to enhance the sentences of such defendants under this section as if they were career offenders? 25(A). Issue for Comment: Section 140008 of the Violent Crime Control and Law Enforcement Act of 1994 directs the Commission to provide an enhancement applicable to a defendant 21 or older who involved a person under 18 in the offense. The directive further specifies that the Commission consider the severity of the crime, the number of minors used, the relevance of the proximity in age between the offender and the minor, and the fact that involving a minor in a crime of violence is often more serious than involving a minor in a drug offense (for which the Commission has already provided a [[Page 2442]] two-level enhancement). The Commission invites comment as to whether it should implement section 140008 by creating (1) a generally applicable departure policy statement in Chapter Five, Part K (Departures), or (2) a Chapter Three adjustment. The Commission also invites comment as to whether, if a Chapter Three adjustment is appropriate, the adjustment should be two levels, commensurate with the adjustment for abuse of position of trust, or a higher or lower number of levels. (B). Synopsis of Proposed Amendment: This proposed amendment, published at the request of the Department of Justice, sets forth Chapter Three adjustments for using a minor to commit a crime. Proposed Amendment: Part B of Chapter Three is amended by redesignating Sec. 3B1.4 as Sec. 3B1.5 and by inserting the following new section: ``Sec. 3B1.4. Using a Minor to Commit a Crime (a) If a defendant 21 years of age or older used or attempted to use any person less than 18 years of age with the intent that the minor would commit an offense or assist in avoiding detection of or apprehension for an offense, increase by 2 levels. (b) If the defendant used or attempted to use 5 or more minors, increase by 1 additional level; if the defendant used or attempted to use 15 or more minors, increase by 2 additional levels. Commentary Application Notes: 1. To `use a person less than 18 years of age' includes soliciting, procuring, recruiting, counseling, encouraging, training, directing, commanding, intimidating, or otherwise using such a person. 2. Do not apply this adjustment if the offense guideline specifically incorporates this factor. However, if the adjustment under this section is greater, apply this section in lieu of the adjustment under the offense guideline.''. 26(A). Issue for Comment: Section 150001 of the Violent Crime Control and Law Enforcement Act of 1994 creates a new section, 18 U.S.C. Sec. 521, that provides a statutory sentence enhancement of up to ten years if a person commits a specified felony controlled substance offense or crime of violence and participates in, intends to further the felonious activities of, or seeks to maintain or increase his or her position in, a criminal street gang. Section 150001 defines a ``criminal street gang'' as an ongoing group, club, organization, or association of five or more persons: (A) that has as one of its primary purposes the commission of one or more of the following offenses: a federal felony involving a controlled substance for which the maximum penalty is not less than five years, a federal felony crime of violence that has as an element the use or attempted use of physical force against another, and the corresponding conspiracies; (B) whose members engage (or have engaged during the past five years) in a continuing series of these same offenses; and (C) the activities of which affect interstate or foreign commerce. The Commission invites comment on whether, and how, it should incorporate into the sentencing guidelines the statutory sentence enhancement described above. Specifically, the Commission invites comment as to whether it should implement section 150001 by creating a generally applicable departure policy statement in Chapter Five, Part K (Departures) providing that if the enhancement contained in 18 U.S.C. Sec. 521 (Criminal Street Gangs) is determined to apply, the court may increase the sentence above the authorized guideline range. Alternatively, the Commission could create a Chapter Three adjustment that would apply to all Chapter Two offenses and that would provide a specific enhancement. (B). Synopsis of Proposed Amendment: This proposed amendment is published at the request of the Department of Justice. The proposed amendment would increase the offense level provided under Secs. 2K2.1 and 2K2.5 by four levels if the defendant committed the offense in connection with a criminal street gang. In addition, the amendment would increase the offense level provided under Sec. 2K2.5 by two to seven levels, depending on the nature of the possession or use of the firearm involved in the offense. With respect to the amendment to Sec. 2K2.1, the enhancement would apply in addition to the existing four-level enhancement for an offense involving a firearm that was used or possessed in connection with another felony offense, or with knowledge or reason to believe it would be used or possessed in such connection. If a Chapter Three adjustment is adopted that provides a general enhancement for offenses related to criminal street gangs, that amendment would replace the portion of this amendment dealing with criminal street gangs. Proposed Amendment: Section 2K2.1(b) is amended by inserting the following additional subdivision: ``(7) If the defendant committed the offense as a member of, on behalf of, or in association with a criminal street gang, increase by 4 levels.''. The Commentary to Sec. 2K2.1 captioned ``Application Notes'' is amended by inserting the following additional Note: ``20. `Criminal street gang' is defined as a group, club, organization, or association of five or more persons whose members engage, or have engaged within the past five years, in a continuing series of crimes of violence and/or controlled substance offenses as defined in Sec. 4B1.2 (Definitions of Terms Used in Section 4B1.1).''. Section 2K2.5(b) is amended by inserting the following additional subdivision: ``(2) If the defendant was convicted of violating 18 U.S.C. Sec. 922(q) and (A) the firearm was discharged, increase by 7 levels; (B) the firearm was otherwise used, increase by 6 levels; (C) the firearm was brandished, increased by 5 levels; (D) the firearm was loaded, increase by 3 levels; (E) an express threat of death was made or ammunition was possessed, increase by 2 levels. (3) If the defendant was convicted of violating 18 U.S.C. Sec. 922(q) and committed the offense as a member of, on behalf of, or in association with a criminal street gang, increase by 4 levels.''. The Commentary to Sec. 2K2.5 captioned ``Application Notes'' is amended in Note 4 by deleting ``federal facility, federal court facility, or school zone'' and inserting in lieu thereof ``federal facility or federal court facility.'' The Commentary to Sec. 2K2.5 captioned ``Application Notes'' is amended by inserting the following additional Note: ``5. `Criminal street gang' is defined as a group, club, organization, or association of five or more persons whose members engage, or have engaged within the past five years, in a continuing series of crimes of violence and/or controlled substance offenses as defined in Sec. 4B1.2 (Definitions of Terms Used in Section 4B1.1).''. Chapter Three, Part A (Victim-Related Adjustments) 27(A). Issue for Comment: Section 240002 of the Violent Crime Control and Law Enforcement Act of 1994 directs the Commission to ensure that the guidelines provide sufficiently stringent punishment for a defendant convicted of a ``crime of violence'' against an ``elderly victim.'' The directive requires that the guidelines: (1) provide for increasingly severe punishment commensurate with the degree of physical harm caused to the elderly victim; (2) take appropriate account of the vulnerability of the victim; and (3) provide enhanced punishment for a [[Page 2443]] subsequent conviction for a crime of violence against an elderly victim. Currently, the guidelines account for victim harm in a number of ways. For federal offenses that are most apt to cause physical harm (e.g., assault, criminal sexual abuse, kidnapping, robbery), the guidelines expressly require a higher sentence, regardless of the victim's age, if the victim sustained bodily injury. Additionally, Sec. 3A1.1 (Vulnerable Victim), provides a two-level upward adjustment if the defendant knew or should have known that a victim was unusually vulnerable due to, among other factors, the victim's age. Furthermore, the guidelines, both generally, through Sec. 5K2.0 (Grounds for Departure), and specifically, through, e.g., Sec. 5K2.8 (Extreme Conduct) (involving unusually heinous, cruel, brutal, or degrading conduct), invite courts to depart upward for circumstances that potentially involve elderly victims. The guidelines also account for the seriousness, recency, and relatedness of a defendant's prior record of criminal conduct. See Chapter Four (Criminal History and Criminal Livelihood). The Commission invites comment on whether the guidelines provide sufficiently stringent punishment for a defendant convicted of a crime of violence against an elderly victim. If not, the Commission invites comment on how, and to what extent, existing factors might be modified as well as how, and to what extent, additional factors should be considered. (B). Synopsis of Proposed Amendment: This proposed amendment implements the third criterion of the directive in section 240002, pertaining to enhanced punishment for a defendant with a prior conviction for a crime of violence against an elderly victim. This amendment recommends a departure under Sec. 3A1.1 (Vulnerable Victim). Proposed Amendment: The Commentary to Sec. 3A1.1 captioned ``Application Notes'' is amended by inserting the following additional note: ``3. If (A) an adjustment applies under this section; and (B) the defendant's criminal history includes a prior sentence for an offense that involved the selection of a vulnerable victim, an upward departure may be warranted.''. (C). Issue for Comment: Section 250002 of the Violent Crime Control and Law Enforcement Act of 1994 provides enhanced imprisonment penalties of up to five years when certain fraud offenses involve telemarketing conduct and enhanced imprisonment penalties of up to ten years when a telemarketing fraud offense involves victimizing ten or more persons over the age of 55 or targeting persons over the age of 55. Section 250003 directs the Commission to review and, if necessary, amend the sentencing guidelines to ensure that victim-related adjustments for fraud offenses against older victims (defined as over the age of 55) are adequate. Violations of fraud statutes are covered under Sec. 2F1.1 (Fraud and Deceit), which increases penalties proportionately based on a number of factors, including the amount of loss sustained by victims, the sophistication of the offense, and whether particular types of harm occurred. In addition, a two-level increase under Sec. 3A1.1 (Vulnerable Victim) applies if the fraud exploited vulnerable victims, including victims who are vulnerable because of age. The Commission invites comment on whether the current victim- related adjustments are adequate to address such cases or whether Sec. 2F1.1 or Sec. 3A1.1 should be amended. Focusing on Sec. 3A1.1 as a possible vehicle for remedying any inadequately addressed concerns regarding older victims, the Commission specifically invites comment as to how this adjustment might best be amended. For example, should commentary be added to establish a rebuttable presumption related to age? If so, what threshold victim age should be equated with victim vulnerability (recognizing that section 250002 uses age 55 for fraud offenses while section 240002 uses age 65 for certain violent offenses)? If such a presumption for older victims is established, should there also be a counterpart presumptive age for vulnerability of young victims (e.g., victims under age 16)? In lieu of a rebuttable presumption, should Sec. 3A1.1 be amended to require an upward adjustment in the offense level if the offense involved victim(s) older or younger than the designated threshold ages? The Commission also invites comment on whether the provisions concerning vulnerable victims should be different for telemarketing fraud than other types of fraud offenses. Chapter Four, Part B (Career Offenders and Criminal Livelihood) 28. Issue for Comment: Section 70001 of the Violent Crime Control and Law Enforcement Act of 1994 amends 18 U.S.C. Sec. 3559 to mandate a sentence of life imprisonment for a defendant convicted of a ``serious violent felony'' if the defendant has been convicted on separate prior occasions in federal or state court of two or more serious violent felonies or one or more serious violent felonies and one or more serious drug offenses. The Commission invites comment on how it should incorporate into the sentencing guidelines the amendments to 18 U.S.C. Sec. 3559. In particular, the Commission invites comment as to whether the career offender guidelines should be replaced with a new guideline incorporating the current career offender provisions and the statutory requirements of section 70001. Alternatively, the Commission could add an application note to Sec. 4B1.1 directing the court to refer to 18 U.S.C. Sec. 3559 for offenses to which this statute applies. The Commission also invites comment as to whether no action need be taken because Sec. 5G1.1 already provides instructions on the application of mandatory statutory penalties that conflict with the guidelines. Chapter Five, Part C (Imprisonment) 29. Synopsis of Proposed Amendment: Section 80001(b) of the Violent Crime Control and Law Enforcement Act of 1994 (the ``Safety Valve'' provision) authorized and directed the Commission to promulgate guidelines and policy statements to implement section 80001(a), providing an exception to otherwise applicable statutory mandatory minimum sentences for certain defendants convicted of specified drug offenses. Pursuant to this provision, the Commission promulgated Sec. 5C1.2. Under the terms of the congressionally-granted authority, this amendment is temporary unless repromulgated in the next amendment cycle under regularly applicable amendment procedures. See Pub. L. No. 100-182, Sec. 21, set forth as an editorial note under 28 U.S.C. Sec. 994. Proposed Amendment: Pursuant to its ``permanent'' amendment authority under 28 U.S.C. Sec. 994(p), the Commission proposes to repromulgate Sec. 5C1.2, as set forth in the Guidelines Manual effective November 1, 1994. See also 59 Fed. Reg. 52210-13. Additional Issue for Comment: The Commission also invites comment on any aspect of Sec. 5C1.2 or other guideline that should be modified to effectuate congressional intent regarding the ``safety valve'' provision. Chapter Five, Part E (Restitution, Fines, Assessments, Forfeitures) 30. Synopsis of Proposed Amendment: Section 40113 of the Violent Crime Control and Law Enforcement Act of 1994 requires mandatory restitution for sexual abuse and sexual exploitation of children offenses under 18 U.S.C. Secs. 2241-2258. These provisions also require that compliance with a restitution order be a condition of probation or supervised release. When there is more than one [[Page 2444]] offender, the court can apportion liability for payment of the full amount of restitution. When the court finds that more than one victim has sustained a loss requiring restitution, the court must provide full restitution for each victim, but may provide different payment schedules to the victims. A victim or the offender may petition the court for modification of the restitution order in light of a change in the economic circumstances of the victim. Although the sections are termed ``mandatory restitution,'' the statutes provide for the court to order less than the full amount or no restitution at all if the court finds ``the economic circumstances of the defendant are not sufficient to satisfy the order in the foreseeable future.'' These new mandatory restitution provisions have broader definitions of loss than 18 U.S.C. Sec. 3663, and apply ``notwithstanding section 3663, and in addition to any civil or criminal penalty authorized by law.'' Congress has also added similar mandatory restitution provisions for offenses involving telemarketing fraud (18 U.S.C. Sec. 2327) and domestic violence (18 U.S.C. Sec. 2264). The proposed amendment alerts the courts to the new statutory requirements and directs application of the statutory provisions if there is a conflict between the statutory provisions and the guidelines. Proposed Amendment: The Commentary to Sec. 5E1.1 is amended by inserting the following immediately before ``Background'': ``Application Note: 1. In the case of a conviction under certain statutes, additional requirements regarding restitution apply. See 18 U.S.C. Secs. 2248 and 2259 (pertaining to convictions under 18 U.S.C. Secs. 2241-2258 in connection with sexual abuse or exploitation of minors); 18 U.S.C. Sec. 2327 (pertaining to convictions under 18 U.S.C. Secs. 1028-1029, 1341-1344 in connection with telemarketing fraud); 18 U.S.C. Sec. 2264 (pertaining to convictions under 18 U.S.C. Secs. 2261-2262 in connection with domestic violence). To the extent that any of the above-noted statutory provisions conflict with the provisions of this guideline, the applicable statutory provision shall control.''. Chapter Seven (Violations of Probation and Supervised Release) 31(A). Synopsis of Proposed Amendment: Section 110505 of the Violent Crime Control and Law Enforcement Act of 1994, a version of which was proposed by the Commission, amends 18 U.S.C. Sec. 3583(e)(3) by specifying that a defendant whose supervised release term is revoked may not be required to serve more than five years in prison if the offense that resulted in the term of supervised release is a class A felony. The provision also amends section 3583(g) by eliminating the mandatory re-imprisonment period of at least one-third of the term of supervised release if the defendant possesses a controlled substance or a firearm, or refuses to participate in drug testing. Finally, the provision expressly authorizes the court to order an additional, limited period of supervision following revocation of supervised release and re-imprisonment. The courts of appeal were split as to whether a sentencing court had authority to reimpose a term of supervised release upon revocation of the original term of supervised release. Chapter Seven of the Guidelines Manual contains the policy statements that must be considered by courts when determining the sentence to be imposed upon revocation of probation or supervised release. The policy statements were originally drafted under the assumption that reimposition of supervised release was possible. The proposed amendment eliminates outdated statutory references in those policy statements. Proposed Amendment: Section 7B1.3(g)(2) is amended by deleting ``, to the extent permitted by law,''. The Commentary to Sec. 7B1.3 captioned ``Application Notes'' is amended in Note 2 by deleting the second sentence and inserting in lieu thereof: ``This statute, as amended by Public Law 103-322, effective September 13, 1994, expressly authorizes the court to order an additional, limited period of supervision following revocation of supervised release and reimprisonment.''; By deleting Note 3 in its entirety; and by renumbering the remaining notes accordingly. (B). Synopsis of Proposed Amendment: Section 20414 of the Violent Crime Control and Law Enforcement Act of 1994 makes mandatory a condition of probation requiring that the defendant refrain from any unlawful use of a controlled substance. 18 U.S.C. Sec. 3563(a)(4). The section also establishes a condition that the defendant, with certain exceptions, submit to periodic drug tests. The existing mandatory condition of probation requiring the defendant not to possess a controlled substance remains unchanged. 18 U.S.C. Sec. 3563(a)(3). Similar requirements are made with respect to conditions of supervised release. 18 U.S.C. Sec. 3583(d). Section 110506 of the Violent Crime Control and Law Enforcement Act of 1994, a version of which was proposed by the Commission, mandates revocation of probation and a term of imprisonment if the defendant unlawfully possesses a controlled substance (in violation of section 3563(a)(3)), possesses a firearm, or refuses to comply with drug testing (in violation of section 3563(a)(4)). It does not require revocation in the case of use of a controlled substance (although use presumptively may establish possession). No minimum term of imprisonment is required other than a sentence that includes a ``term of imprisonment'' consistent with the sentencing guidelines and revocation policy statements. Similar requirements are made in 18 U.S.C. Sec. 3583(g) with respect to conditions of supervised release. See discussion of section 110505, supra. Section 20414 permits ``an exception in accordance with United States Sentencing Commission guidelines'' from the mandatory revocation provisions of section 3565(b), ``when considering any action against a defendant who fails a drug test administered in accordance with [section 3563(a)(4)].'' The exception from the mandatory revocation provisions appears limited to a defendant who fails the test and would not cover a defendant who refuses to take the test. In at least two circuits (the Fourth and Tenth), a defendant who failed a drug test was presumed to have possessed the drugs and consequently was subject to the mandatory revocation provisions. However, in other circuits, failing a drug test was considered no more than evidence of possession and a separate finding of possession was required by the court. The apparent congressional view of the matter is that failure of a drug test may or may not be subject to mandatory revocation, as evidenced by the conditional statement ``if the results [of the drug test] are positive [and] the defendant is subject to possible imprisonment.'' 18 U.S.C. Sec. 3563(a)(4). It is not clear whether the Fourth and Tenth Circuits will consider their view of the issue superseded by this provision. The proposed amendment adds commentary that expressly reflects the statutory exception from mandatory revocation if the offender fails a drug test and amends the Commentary to Chapter Seven to eliminate outdated statutory references. Proposed Amendment: The Commentary to Sec. 7B1.4 captioned ``Application Notes'' is amended by deleting Notes 5 and 6 in their entirety [[Page 2445]] and by inserting in lieu thereof the following new notes: ``5. Under 18 U.S.C. Sec. 3565(b), upon a finding that a defendant violated a condition of probation by being in possession of a controlled substance or firearm, or by refusing to comply with drug testing, the court is required to `revoke the sentence of probation and resentence the defendant under subchapter A [of title 18, Chapter 227] to a sentence that includes a term of imprisonment.' Under 18 U.S.C. Sec. 3583(g), upon a finding that a defendant violated a condition of supervised release by being in possession of a controlled substance, the court is required to `revoke the term of supervised release and require the defendant to serve a term of imprisonment not to exceed the maximum term of imprisonment authorized under 18 U.S.C. Sec. 3583(e)(3).' 6. Under 18 U.S.C. Sec. 3563(a), `[t]he court shall consider whether the availability of appropriate substance abuse treatment programs, or an individual's current or past participation in such programs, warrants an exception from the rule of section 3565(b) when considering any action against a defendant who fails a drug test administered in accordance with 18 U.S.C. Sec. 3563(a)(4).'''. Appendix A (Statutory Index) 32. Synopsis of Proposed Amendment: This proposed amendment makes Appendix A more comprehensive by adding new offenses enacted by the Violent Crime Control and Law Enforcement Act of 1994 (Public Law 103- 322). The amendment addresses provisions found in sections 40221, 60005, 60009, 60012, 60013, 60015, 60019, 60021, 60023, 90106, 110103, 110503, 110517, 120003, 160001, 170201, 180201, 320108, 320601, 320602, 320603, 320902, of the Act. In addition, the amendment adds new offenses enacted by section 11 of the Fresh Cut Flowers and Fresh Cut Greens Promotion and Information Act of 1993 (Public Law 103-190), section 202 of the Food Stamp Program Improvements Act of 1994 (Public Law 103-225), sections 312 and 313 of the Social Security Independence and Program Improvements Act of 1994 (Public Law 103-296), and sections 3, 4, and 5 of the Domestic Chemical Diversion Act of 1993 (Public Law 103-200). Furthermore, the amendment conforms Appendix A to revisions in existing statutes made by the above Acts. Finally, the amendment revises the titles of several offense guidelines to better reflect their scope. Proposed Amendment: Appendix A (Statutory Index) is amended by inserting the following at the appropriate place by title and section: ``7 U.S.C. Sec. 2018(c) Sec. 2N2.1'', ``7 U.S.C. Sec. 6810 Sec. 2N2.1'', ``18 U.S.C. Sec. 37 2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.1, 2A2.2, 2A2.3, 2A3.1, 2A3.4, 2A4.1, 2A5.1, 2A5.2, 2B1.3, 2B3.1, 2K1.4'', ``18 U.S.C. Sec. 113(a)(1) 2A2.1'', ``18 U.S.C. Sec. 113(a)(2) 2A2.2'', ``18 U.S.C. Sec. 113(a)(3) 2A2.2'', ``18 U.S.C. Sec. 113(a)(5) 2A2.3'', (Class A misdemeanor provisions only) ``18 U.S.C. Sec. 113(a)(6) 2A2.2'', ``18 U.S.C. Sec. 113(a)(7) 2A2.3'', ``18 U.S.C. Sec. 333 2F1.1'', ``18 U.S.C. Sec. 470 2B5.1, 2F1.1'', ``18 U.S.C. Sec. 668 2B1.1'', ``18 U.S.C. Sec. 880 2B1.1'', ``18 U.S.C. Sec. 922(w) 2K2.1'', ``18 U.S.C. Sec. 924(i) 2A1.1, 2A1.2'', ``18 U.S.C. Sec. 924(j) 2K2.1'', ``18 U.S.C. Sec. 924(m) 2K2.1'', ``18 U.S.C. Sec. 1033 2B1.1, 2F1.1, 2J1.2'', ``18 U.S.C. Sec. 1118 2A1.1, 2A1.2'', ``18 U.S.C. Sec. 1119 2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.1'', ``18 U.S.C. Sec. 1120 2A1.1, 2A1.2, 2A1.3, 2A1.4'', ``18 U.S.C. Sec. 1121 2A1.1, 2A1.2'', ``18 U.S.C. Sec. 1716D 2Q2.1'', ``18 U.S.C. Sec. 2114(b) 2B1.1'', ``18 U.S.C. Sec. 2332a 2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A1.5, 2A2.1, 2A2.2, 2B1.3, 2K1.4'', ``18 U.S.C. Sec. 2258(a),(b) 2G2.1, 2G2.2'', ``18 U.S.C. Sec. 2261 2A1.1, 2A1.2, 2A2.1, 2A2.2, 2A2.3, 2A3.1, 2A3.4, 2A4.1, 2B3.1, 2B3.2, 2K1.4'', ``18 U.S.C. Sec. 2262 2A1.1, 2A1.2, 2A2.1, 2A2.2, 2A2.3, 2A3.1, 2A3.4, 2A4.1, 2B3.1, 2B3.2, 2K1.4'', ``18 U.S.C. Sec. 2280 2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.1, 2A2.2, 2A2.3, 2A4.1, 2B1.3 2B3.1, 2B3.2, 2K1.4'', ``18 U.S.C. Sec. 2281 2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.1, 2A2.2, 2A2.3, 2A4.1, 2B1.3, 2B3.1, 2B3.2, 2K1.4'', ``18 U.S.C. Sec. 2423(b) 2A3.1, 2A3.2, 2A3.3 [, 2G1.2], ``21 U.S.C. Sec. 843(a)(9) 2D3.2'', ``21 U.S.C. Sec. 843(c) Sec. 2D3.1'', ``21 U.S.C. Sec. 849 Sec. 2D1.2'', ``21 U.S.C. Sec. 960(d)(3), (4) 2D1.11'', ``21 U.S.C. Sec. 960(d)(5) 2D1.13'', ``21 U.S.C. Sec. 960(d)(6) 2D3.2'', ``42 U.S.C. Sec. 1307(b) 2F1.1''. In the line referenced to 18 U.S.C. Sec. 113(a) by inserting ``(for offenses committed prior to September 13, 1994)'' immediately following ``2A2.1''; In the line referenced to 18 U.S.C. Sec. 113(b) by inserting ``(for offenses committed prior to September 13, 1994)'' immediately following ``2A2.2''; In the line referenced to 18 U.S.C. Sec. 113(c) by inserting ``(for offenses committed prior to September 13, 1994)'' immediately following ``2A2.2''; In the line referenced to 18 U.S.C. Sec. 113(f) by inserting ``(for offenses committed prior to September 13, 1994)'' immediately following ``2A2.2''; In the line referenced to 18 U.S.C. Sec. 1153 by inserting ``2A2.3,'' immediately before ``2A3.1''; In the line referenced to 18 U.S.C. Sec. 2114 by deleting ``2114'' and inserting in lieu thereof ``2114(a)''; And in the line referenced to 18 U.S.C. Sec. 2423 by deleting ``2423'' and by inserting in lieu thereof ``2423(a)''. Section 2D3.1 is amended in the title by inserting at the end ``; Unlawful Advertising Relating to Schedule I Controlled Substances''. Section 2D3.2 is amended by inserting ``or Listed Chemicals'' immediately after ``Controlled Substances''. Section 2Q2.1 is amended by deleting the title and inserting in lieu thereof ``Offenses Involving Fish, Wildlife, and Plants''. II. Amendments Relating to Drug Offense Guidelines and Role in the Offense This Part contains two approaches to the revision of the guidelines for controlled substance offenses. The premise of Approach 1 (proposed amendments 33-42) is that the type and quantity of the controlled substance involved in the offense, as adjusted by the defendant's role in the offense, is an important and appropriate measure of the seriousness of the offense, but that the Commission assigned too much weight to drug quantity in constructing its initial guidelines. Therefore, the proposed amendments in Approach 1 would compress the Drug Quantity Table; limit its impact on lower- level defendants; somewhat increase the weight given to weapons, serious bodily injury, and leadership role; and address anomalies in the offense levels assigned to ``crack'' offenses and marijuana-plant offenses compared to other drug offenses. In addition, Approach 1 contains proposed amendments, addressing narrower issues, that would improve and make fairer the operation of these guidelines. The proposed amendments are set forth separately because they address different issues and, for the most part, operate independently. The premise of Approach 2 is that the use of drug quantity to measure the seriousness of drug trafficking offenses should be abandoned or severely limited. Amendment 43 displays this approach. [[Page 2446]] Approach 1 33. Synopsis of Proposed Amendment: In the 1994 amendment cycle, the Commission took a first step in compressing the Drug Quantity Table by eliminating levels 40 and 42 from the table. Three options for compressing the Drug Quantity Table further are shown in Attachment 1. The thrust of this proposed amendment is that although drug quantity (in conjunction with role in the offense) is an appropriate factor in assessing offense seriousness (drug quantity directly measures the scale of the offense and potential for harm) and thus should be retained, the Commission's current guidelines contain too many quantity distinctions. That is, the drug table increases too quickly for small differences in quantity, particularly at certain offense levels. Under this proposal, the Drug Quantity Table would be compressed so that its contribution to the determination of the offense level would be somewhat reduced. Three options are shown. Although the different options reflect somewhat different rationales, the effect of each option would be to reduce the number of gradations in the Drug Quantity Table, thereby making the guidelines somewhat less sensitive to drug quantity. Note that each one-level increment in offense level changes the final guideline range by about 12 percent above level 19, and increments of more than one level are compounded (e.g., a six-level change roughly doubles or halves the final guideline range). Thus, reductions of 2, 4, or 6 levels, as shown in the various options below, can have a substantial impact on the final guideline range. For ease of presentation, only the current and proposed offense levels for heroin offenses are shown. Because the controlled substances in the Drug Quantity Table are related by established ratios, the offense levels for the other controlled substances would be conformed accordingly. Option A. When the Commission initially developed the Drug Quantity Table, it keyed the offense level for 1 KG of heroin (ten-year mandatory minimum) at level 32 (121-151 months for a first offender) and 100 grams of heroin (five-year mandatory minimum) at level 26 (63- 78 months for a first offender) because these guideline ranges included, or were close to, the five- and ten-year mandatory minimum sentences. However, offense levels 30 (97-121 months) and 24 (51-63 months) also include the five- and ten-year mandatory minimum sentences, as do offense levels 31 (108-135 months) and 25 (57-71 months). Option A displays how the heroin offense levels would look if the Commission used the offense levels corresponding to the lowest (rather than the highest) guideline ranges that include the statutory minimum sentence. The drug table is compressed because offense levels lower than level 22 are not changed (offense levels 22 and 24 from the current Drug Quantity Table are combined). Option B. The legislative history of the Anti-Drug Abuse Act of 1986 provides support for the proposition that the heartland of the conduct that the Congress envisioned it was addressing with the ten- year mandatory minimum was the ringleader in large scale drug offenses. Senator Byrd, then the Senate Minority Leader, explained the intent during floor debate: For the kingpins--the masterminds who are really running these operations--and they can be identified by the amount of drugs with which they are involved--we require a jail term upon conviction. If it is their first conviction, the minimum term is 10 years. * * * Our proposal would also provide mandatory minimum penalties for the middle-level dealers as well. Those criminals would also have to serve time in jail. The minimum sentences would be slightly less than t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A95-271. Public record. Not legal advice.