Amendments to the Sentencing Guidelines for United States Courts

UNITED STATES SENTENCING COMMISSION

Amendments to the Sentencing Guidelines for United States Courts

agency: United States Sentencing Commission.

action: Notice of submission to Congress of amendments to the

sentencing guidelines.

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summary: Pursuant to its authority under section 994(p) of title 28,

United States Code, the United States

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Sentencing Commission, on May 1, 1996, submitted to the Congress

amendments to the sentencing guidelines, policy statements, and

official commentary together with reasons for the amendments. Pursuant

to 28 U.S.C. 994(p), the Commission has specified an effective date of

November 1, 1996, for these amendments.

addresses: Comments should be sent to: United States Sentencing

Commission, One Columbus Circle, NE., Suite 2-500, South Lobby,

Washington, DC 20002-8002, Attn: Public Information.

for further information contact: Mike Courlander, Public Information

Specialist, telephone: (202) 273-4590.

supplementary information: The United States Sentencing Commission, an

independent agency in the judicial branch of the U.S. Government, is

empowered by 28 U.S.C. 994(a) to promulgate sentencing guidelines and

policy statements for federal sentencing courts. The statute further

directs the Commission periodically to review and revise guidelines

previously promulgated and authorizes it to submit guideline amendments

to the Congress no later than the first day of May each year. See 28

U.S.C. 994(o), (p). Absent action of Congress to the contrary, the

amendments become effective on the date specified by the Commission

(i.e., November 1, 1996) by operation of law.

Notice of the amendments submitted to the Congress on April 30,

1996, was published in the Federal Register of February 23, 1996 (61 FR

7037) and March 15, 1996 (61 FR 10835). A public hearing on the

proposed amendments was held in Washington, DC, on March 11, 1996.

After review of the hearing testimony and additional public comment,

the Commission promulgated the amendments set forth below, each having

been approved by at least four voting Commissioners.

In connection with its ongoing process of guideline review, the

Commission welcomes comment on any aspect of the sentencing guidelines,

policy statements, and official commentary.

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

Richard P. Conaboy,

Chairman.

Amendments to the Sentencing Guidelines

Pursuant to section 994(p) of title 28, United States Code, the

United States Sentencing Commission hereby submits to the Congress the

following amendments to the sentencing guidelines and the reasons

therefor. As authorized by such section, the Commission specifies an

effective date of November 1, 1996, for these amendments.

Amendments to the Sentencing Guidelines, Policy Statements, and

Official Commentary

1. Amendment: Section 2G2.1(a) is amended by striking ``25'' and

inserting ``27''.

Section 2G2.1(b)(1) is amended to read as follows:

``(1) If the offense involved a victim who had (A) not attained the

age of twelve years, increase by 4 levels; or (B) attained the age of

twelve years but not attained the age of sixteen years, increase by 2

levels.''.

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

``(3) If a computer was used to solicit participation by or with a

minor in sexually explicit conduct for the purpose of producing

sexually explicit material, increase by 2 levels.''.

The Commentary to Sec. 2G2.1 captioned ``Statutory Provisions'' is

amended by striking ``Sec. 2251 (a), (b), (c)(1)(B)'' and inserting

``Secs. 2251 (a), (b), (c)(1)(B), 2258 (a), (b)''.

Section 2G2.2(a) is amended by striking ``15'' and inserting

``17''.

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

``(5) If a computer was used for the transmission of the material

or a notice or advertisement of the material, increase by 2 levels.''.

The Commentary to Sec. 2G2.2 captioned ``Statutory Provisions'' is

amended by inserting ``2258 (a), (b)'' after ``2252(a) (1)-(3)''.

The Commentary to Sec. 2G2.2 captioned ``Application Notes'' is

amended by striking Notes 4 and 5; and by amending Notes 1 and 2 to

read as follows:

``1. For purposes of this guideline--

`` `Distribution' includes any act related to distribution for

pecuniary gain, including production, transportation, and possession

with intent to distribute.

`` `Pattern of activity involving the sexual abuse or exploitation

of a minor' means any combination of two or more separate instances of

the sexual abuse or sexual exploitation of a minor by the defendant,

whether or not the abuse or exploitation (A) occurred during the course

of the offense, (B) involved the same or different victims, or (C)

resulted in a conviction for such conduct.

`` `Sexual abuse or exploitation' means conduct constituting

criminal sexual abuse of a minor, sexual exploitation of a minor,

abusive sexual contact of a minor, any similar offense under state law,

or an attempt or conspiracy to commit any of the above offenses.

`Sexual abuse or exploitation' does not include trafficking in material

relating to the sexual abuse or exploitation of a minor.

`` `Sexually explicit conduct' has the meaning set forth in 18

U.S.C. Sec. 2256.

``2. If the defendant engaged in the sexual abuse or exploitation

of a minor at any time (whether or not such abuse or exploitation

occurred during the course of the offense or resulted in a conviction

for such conduct) and subsection (b)(4) does not apply, an upward

departure may be warranted. In addition, and upward departure may be

warranted if the defendant received an enhancement under subsection

(b)(4) but that enhancement does not adequately reflect the seriousness

of the sexual abuse or exploitation involved.

``Prior convictions taken into account under subsection (b)(4) are

also counted for purposes of determining criminal history points

pursuant to Chapter Four, Part A (Criminal History).''.

Section 2G2.4(a) is amended by striking ``13'' and inserting

``15''.

Section 2G2.4(b) is amended by adding at the end the following:

``(3) If the defendant's possession of the material resulted from

the defendant's use of a computer, increase by 2 levels.''.

Reason for Amendment

This amendment implements the congressional directives in section 2

of the Sex Crimes Against Children Prevention Act of 1995, Pub. L. 104-

71, 109 Stat. 774, by providing a two-level enhancement for offenses

involving the sexual exploitation of minors under sections 2251 and

2252 of title 18, United States Code. The two-level enhancement is

provided in the base offense levels under Secs. 2G2.1, 2G2.2, and

2G2.4.

This amendment also implements the directive in section 3 of such

Act by providing a two-level enhancement for offenses under sections

2251(c)(1)(A) and 2252 of title 18, United States Code, if a computer

was used to transmit certain notices or advertisements of material

involving minors engaged in sexually explicit conduct or to transport

or ship that material. The enhancement in Sec. 2G2.2(b)(5) applies to

the transmission of the material or of the notice or advertisement of

the material. The enhancement in Sec. 2G2.4(b)(3) applies only if the

defendant's possession of the material resulted from the defendant's

use of a computer. In addition to these congressionally directed

enhancements, the amendment adds a two-level enhancement under

Sec. 2G2.1(b)(3) if a computer was used to solicit participation in

sexually explicit

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conduct by or with a minor for the purpose of producing sexually

explicit material, in violation of 18 U.S.C. Sec. 2251(c)(1)(B).

This amendment also addresses several issues in respect to

Application Notes 4 and 5 of the Commentary to Sec. 2G2.2. First, the

amendment revises the definition of ``pattern of activity involving the

sexual abuse or exploitation of a minor'' to clarify that ``sexual

abuse or exploitation,'' for purposes of Sec. 2G2.2(b)(4), requires

that the defendant personally had participated in such conduct. The

amendment defines ``sexual abuse or exploitation'' to mean conduct

constituting criminal sexual abuse, sexual exploitation, or abusive

sexual contact and to exclude trafficking in child pornography. These

revisions are consistent with United States v. Chapman, 60 F.3d 894

(1st Cir. 1995) and United States v. Ketcham, No. 95-5002, 1996 WL

141628 (3d Cir. Mar. 29, 1996), both of which held that the defendant's

transportation or distribution of child pornography is not sexual

exploitation within the meaning of the ``pattern of activity''

enhancement in Sec. 2G2.2(b)(4). Second, the amendment clarifies that

the ``pattern of activity'' may include acts of sexual abuse or

exploitation that were not committed during the course of the offense

or that did not result in a conviction. This revision responds in part

to the holding in Chapman, 60 F.3d at 901, that the ``pattern of

activity'' enhancement is inapplicable to past sexual abuse or

exploitation unrelated to the offense of conviction. The amended

language provides that conduct involving the defendant's sexual abuse

or exploitation of a minor may be considered even if that conduct did

not occur as part of the offense of conviction. Accordingly, the

conduct considered for purposes of the ``pattern of activity''

enhancement is broader than the scope of relevant conduct typically

considered under Sec. 1B1.3 (Relevant Conduct). Third, the amendment

revises the departure provision of Application Note 5 to specify that

an upward departure may be warranted if the defendant (1) did not

engage in a ``pattern of activity'' but nevertheless abused a minor at

any time, or (2) engaged in a ``pattern of activity'' but the

enhancement does not adequately reflect the seriousness of the sexual

abuse or exploitation. Fourth, the amendment clarifies that prior

convictions counted as part of the ``pattern of activity'' also may be

counted as part of the defendant's criminal history under Chapter Four,

if those convictions meet the criteria set forth in the relevant

guidelines of that chapter.

The amendment also makes the ``Statutory Provisions'' of the

Commentary to Secs. 2G2.1 and 2G2.2 more comprehensive by adding 18

U.S.C. Sec. 2258 (a) and (b) to the list of provisions covered by those

guidelines.

2. Amendment: Chapter 2, Part G, Subpart 1 is amended by striking

Secs. 2G1.1 and 2G1.2 and inserting the following:

``Sec. 2G1.1. Promoting Prostitution or Prohibited Sexual Conduct

``(a) Base Offense Level: 14

``(b) Specific Offense Characteristics

``(1) If the offense involved the use of physical force, or

coercion by threats or drugs or in any manner, increase by 4 levels.

``(2) If the offense involved a victim who had (A) not attained the

age of twelve years, increase by 9 levels; (B) attained the age of

twelve years but not attained the age of sixteen years, increase by 7

levels; or (C) attained the age of sixteen years but not attained the

age of eighteen years, increase by 5 levels.

``(3) If subsection (b)(2) applies, and (A) the defendant was a

parent, relative, or legal guardian of the victim, or (B) the victim

was otherwise in the custody, care, or supervisory control of the

defendant, increase by 2 levels.

``(c) Cross References

``(1) If the offense involved causing, transporting, permitting, or

offering or seeking by notice or advertisement, a person less than

eighteen years of age to engage in sexually explicit conduct for the

purpose of producing a visual depiction of such conduct, apply

Sec. 2G2.1 (Sexually Exploiting a Minor by Production of Sexually

Explicit Visual or Printed Material; Custodian Permitting Minor to

Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage

in Production).

``(2) If the offense involved criminal sexual abuse, attempted

criminal sexual abuse, or assault with intent to commit criminal sexual

abuse, apply Sec. 2A3.1 (Criminal Sexual Abuse; Attempt or Assault with

the Intent to Commit Criminal Sexual Abuse).

``(3) If the offense did not involve promoting prostitution, and

neither subsection (c)(1) nor (c)(2) is applicable, use the offense

guideline applicable to the underlying prohibited sexual conduct. If no

offense guideline is applicable to the prohibited sexual conduct, apply

Sec. 2X5.1 (Other Offenses).

``(d) Special Instruction

``(1) If the offense involved more than one victim, Chapter Three,

Part D (Multiple Counts) shall be applied as if the promoting of

prostitution or prohibited sexual conduct in respect to each victim had

been contained in a separate count of conviction.

``Commentary

``Statutory Provisions: 8 U.S.C. Sec. 1328; 18 U.S.C. Secs. 2421,

2422, 2423(a).

``Application Notes:

``1. For purposes of this guideline--

`` `Coercion' includes any form of conduct that negates the

voluntariness of the behavior of the victim. Coercion would apply, for

example, where the ability of the victim to appraise or control conduct

was substantially impaired by drugs or alcohol. In the case of an adult

victim, rather than a victim less than eighteen years of age, this

characteristic generally will not apply if the drug or alcohol was

voluntarily taken.

`` `Promoting prostitution or prohibited sexaul conduct' means (A)

transporting a person for the purpose of prostitution or prohibited

sexual conduct, or (B) persuading, inducing, enticing, or coercing a

person to engage in, or travel for the propose of engaging in,

prostitution or prohibited sexual conduct.

`` `Sexually explicit conduct' has the meaning set forth in 18

U.S.C. Sec. 2256.

`` `Victim' means a person transported, persuaded, induced,

enticed, or coerced to engage in, or travel for the purpose of engaging

in, prostitution or prohibited sexual conduct, whether or not the

person consented to the prostitution or prohibited sexual conduct.

``(2). The enactment for physical force, or coercion, anticipates

no bodily injury. If bodily injury results, an upward departure may be

warranted. See Chapter Five, part K (Departures).

``3. For the purposes of Sec. 3B1.1 (Aggravating Role), a victim,

as defined in this guideline, is considered a participant only if that

victim assisted in the promoting of prostitution or prohibited sexual

conduct in respect to another victim.

``4. For the purposes of Chapter Three, Part D (Multiple Counts),

each person transported, persuaded, induced, enticed, or coerced to

engage in, or travel to engage in, prostitution or prohibited sexual

conduct is to be treated as a separate victim. Consequently, multiple

counts involving more than one victim are not to be grouped together

under Sec. 3D1.2 (Groups of Closely-Related Counts). In addition,

subsection (d)(1) directs that if the relevant conduct of an offense of

conviction includes the promoting of prostitution or prohibited sexual

conduct in respect to more than one

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victim, whether specifically cited in the count of conviction or not,

each such victim shall be treated as if contained in a separate count

of conviction.

``5. Subsection (b)(3) is intended to have broad application and

includes offenses involving a victim less than eighteen years of age

entrusted to the defendant, whether temporarily or permanently. For

example, teachers, day care providers, baby-sitters, or other temporary

caretakers are among those who would be subject to this enhancement. In

determining whether to apply this adjustment, the court should look to

the actual relationship that existed between the defendant and the

victim and not simply to the legal status of the defendant-victim

relationship.

``6. If the adjustment in subsection (b)(3) applies, do not apply

Sec. 3B1.3 (Abuse of Position of Trust or Use of Special Skill).

``7. The cross reference in subsection (c)(1) is to be construed

broadly to include all instances where the offense involved employing,

using, persuading, inducing, enticing, coercing, transporting,

permitting, or offering or seeking by notice of advertisement, a person

less than eighteen years of age to engage in sexually explicit conduct

for the purpose of producing any visual depiction of such conduct.

``8. The cross reference at subsection (c)(3) addresses the unusual

case in which the offense did not involve promoting prostitution and

neither subsection (c)(1) nor (c)(2) is applicable. In such case, the

guideline for the underlying prohibited sexual conduct is to be used;

e.g., Sec. 2A3.2 (Criminal Sexual Abuse of Minor (Statutory Rape) or

Attempt to Commit Such Acts) or Sec. 2A3.4 (Abusive Sexual Contact or

Attempt to Commit Abusive Sexual Contact). If three is no offense

guideline for the underlying prohibited sexual conduct, Sec. 2X5.1

(Other Offenses) is to be used.''.

Chapter 1, Part A, Subpart 4(b) is amended in the fourth paragraph

by striking the third sentence.

Section 3D1.2(d) is amended in the third paragraph by striking

``2G1.2,''.

Appendix A is amended--

in the line referenced to 8 U.S.C. Sec. 1328, by striking ``, 2G1.2'';

in the line referenced to 18 U.S.C. Sec. 2421, by striking ``, 2G1.2'';

in the line referenced to 18 U.S.C. Sec. 2422, by striking ``, 2G1.2'';

and

in the line referenced to 18 U.S.C. Sec. 2423(a), by striking ``,

2G1.2'' and inserting ``2G1.1''.

Reason for Amendment

This is a three-part amendment. First, this amendment implements

the congressional directive in section 4 of the Sex Crimes Against

Children Prevention Act of 1995, Pub. L. No. 104-71, 109 Stat. 774, by

providing a three-level enhancement for offenses involving the

transportation of minors with intent to engage in prostitution or other

prohibited sexual conduct under 18 U.S.C. Sec. 2423(a). The three-level

enhancement is provided in the specific offense characteristic in

subsection (b)(2) related to the age of the victim.

Second, this amendment addresses 18 U.S.C. Sec. 2422(b), a new

offense created by section 508 of the Telecommunications Act of 1996,

Pub. L. No. 104-104, 110 Stat. 56. That offense makes it unlawful, in

interstate or foreign commerce, including through the mail, or within

the special maritime or territorial jurisdiction of the United States,

to knowingly persuade, induce, entice, or coerce an individual under

the age of 18 years to engage in prostitution or other prohibited

sexual conduct. The amendment brings this new offense within the scope

of the consolidated, expanded guideline. As revised, the guideline is

broadly applicable to offenses that involve ``promoting prostitution or

prohibited sexual conduct.'' That term is defined to encompass conduct

covered by the new Telecommunications Act offense as well as conduct

previously covered by the guideline; i.e., transporting a person, or

inducing a person to travel, for the purpose of prostitution or other

prohibited sexual conduct.

Third, this amendment consolidates Secs. 2G1.1 (Transportation for

the Purpose of prostitution or Prohibited Sexual Conduct) and 2G1.2

(Transportation of a Minor for the Purpose of Prostitution or

Prohibited Sexual Conduct) in furtherance of the Commission's goal to

simplify the operation of the guidelines. Because the consolidated

guideline covers both offenses involving adult victims and those

involving minors, a two-level increase is provided in the specific

offense characteristic related to the age of the victim to increase the

offense level when a minor is involved. The two-level increase is in

addition to the three-level enhancement directed to be made by the Sex

Crimes Against Children Prevention Act of 1995. In addition, the

consolidated guideline defines the term ``victim'' and incorporates the

cross references of Sec. 2G1.2 into the consolidate guideline. The

amendment also clarifies that the ``Statutory Provisions'' in the

Commentary of the consolidated guideline cover offenses under 18 U.S.C.

Sec. 2423(a (but not Sec. 2423b), which is referenced in Appendix A to

Secs. 2A3.1, 2A3.2, and 2A3.3).

[FR Doc. 96-11174 Filed 5-3-96; 8:45 am]

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