Sentencing Guidelines for United States Courts

UNITED STATES SENTENCING COMMISSION

Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of proposed amendments to sentencing guidelines and

commentary. Request for public comment. Notice of hearing.

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SUMMARY: The Commission is considering promulgating certain amendments

to the sentencing guidelines and commentary. This notice sets forth the

proposed amendments and a synopsis of the issues addressed by the

amendments as well as additional issues for comment. The Commission

seeks comment on the proposed amendments, alternative proposed

amendments, and any other aspect of the sentencing guidelines, policy

statements, and commentary. The Commission may submit amendments to the

Congress not later than May 1, 1996.

DATES: The Commission has scheduled a public hearing on the proposed

amendments set forth in this notice and on the money laundering

proposals set forth in the notice dated January 2, 1996, (see 61 F.R.

79-83). Testimony at the public hearing shall be limited to only those

amendments. The public hearing is scheduled for March 11, 1996, at 1:00

p.m. at the Education Center (concourse level), South Lobby, Thurgood

Marshall Federal Judiciary Building, One Columbus Circle, NE.,

Washington, DC 20002-8002.

A person who desires to testify at the public hearing should notify

Michael Courlander, Public Information Specialist, at (202) 273-4590

not later than February 27, 1996.

Written testimony for the hearing should be received by the

Commission not later than March 6, 1996. Comment on the amendments and

issues set forth in this notice (relating to penalties for child

pornography and sex crime offenses) also may be submitted after the

public hearing, but not later than March 29, 1996, in order to be

considered by the Commission in the promulgation of amendments and in

the possible submission of those amendments to the Congress by May 1,

1996.

ADDRESSES: Public comment should be sent to: United States Sentencing

Commission, One Columbus Circle, NE., Suite 2-500, Washington, DC

20002-8002, Attention: Public Information.

FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Information

Specialist, Telephone: (202) 273-4590.

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is

an independent agency in the judicial branch of the United States

Government. The Commission promulgates sentencing guidelines and policy

statements for federal sentencing courts pursuant to 28 U.S.C.

Sec. 994(a). The Commission also periodically reviews and revises

previously promulgated guidelines pursuant to 28 U.S.C. Sec. 994(o). If

guideline amendments are promulgated, those amendments are submitted to

Congress not later than the first day of May pursuant to 28 U.S.C.

Sec. 994(p).

The proposed amendments are presented in this notice in one of two

formats. First, some of the amendments are proposed as specific

revisions to a guideline or commentary. Bracketed text within a

proposed amendment indicates alternative proposals; for example, a

proposed enhancement of [3][4][5] levels means a proposed enhancement

of either three, four, or five levels. The Commission invites comment

and suggestions for appropriate policy choices where bracketed text is

indicated. Second, the Commission has highlighted certain issues for

comment and invites suggestions for specific amendment language.

As set forth more fully in its notice dated September 22, 1995,

(see 60 FR 49316-17), the Commission currently is engaged in a

comprehensive guideline assessment and simplification effort. This

project is expected to be a two-year initiative that may produce

amendments in the 1996-97 amendment cycle for submission to Congress

not later than May 1, 1997. During this initial year of the project,

the Commission generally plans to promulgate no guideline amendments,

except as may be necessary to implement legislation enacted by

Congress. The amendments presented in this notice are proposed in order

to implement congressional directives in the Sex Crimes Against

Children Prevention Act of 1995. (For additional amendments proposed in

response to enacted legislation, see the notice dated January 2, 1996,

61 FR 79-83).

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

Richard P. Conaboy,

Chairman.

Child Sex Offenses

Chapter Two, Part G (Offenses Involving Prostitution, Sexual

Exploitation of Minors, and Obscenity)

1. Synopsis of Proposed Amendments: The Sex Crimes Against Children

Prevention Act of 1995 contains several directives to the Commission to

amend the current guidelines relating to the sexual exploitation of

minors. The amendment set forth below implements sections 2 and 3 of

the Act. Those sections direct the Commission to increase by at least

two levels the base offense level in the current guidelines for

offenses involving the sexual exploitation of minors under sections

2251 and 2252 of title 18, United States Code, and for offenses under

sections 2251(c)(1)(A) and 2252(a) of such title if a computer was used

to transmit certain notices or advertisements of visual depictions

involving minors engaged in sexually explicit conduct or to transport

or ship those visual depictions.

In addition to implementing the congressional directives, the

amendment set forth below includes a proposal to clarify that if an

adjustment under Sec. 2G2.1(b)(2) applies because of the nature of the

defendant's relationship with the minor involved in the offense,

Sec. 3B1.3 does not apply based on an abuse of a position of trust;

Sec. 3B1.3 may nevertheless apply based on the use of a special skill.

(A) Proposed Amendment: Section 2G2.1(a) is amended by striking

``25'' and inserting ``[27][28][29]''.

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)''.

The Commentary to Sec. 2G2.1 captioned ``Application Notes'' is

amended in Note 3 by inserting ``based on an abuse of a position of

trust'' after ``Use of Special Skill)''.

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

``[17][18][19]''.

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

subdivision:

``(5) If a computer was used to transmit the notice or

advertisement of the material or to transport or ship the material,

increase by [2][3][4] levels.''.

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

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

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

``[15][16][17]''.

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

subdivision:

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

the defendant's use of a computer, increase by [2][3][4] levels.''.

(B) Additional Issues for Comment: The Commission invites comment

on whether Sec. 2G2.1 should be amended to add an enhancement to the

offense level for the use of a computer comparable to the enhancement

for the use of a computer directed to be added to Secs. 2G2.2 and 2G2.4

by the Sex Crimes Against Children Prevention Act of 1995. Such an

amendment to Sec. 2G2.1 would, for example, apply to the use of a

computer to solicit the participation of minors in sexually explicit

conduct.

In addition, the Commission invites comment on whether the

guidelines in Chapter Two, Part G, Subpart Two should be amended to add

an application note for each such guideline comparable to the

application note included in each of the guidelines of Chapter Two,

Part A, Subpart Three (Criminal Sexual Abuse) which indicates that an

upward departure may be warranted if the defendant's criminal history

includes a prior sentence for conduct that is similar to the instant

offense.

2. Synopsis of Proposed Amendments: The proposed amendments set

forth below as Option 1 and Option 2 implement the directive contained

in section 4 of the Sex Crimes Against Children Prevention Act of 1995.

That section directs the Commission to increase by at least three

levels the base offense level for offenses involving the transportation

of minors with intent to engage in criminal sexual activity under

section 2423(a) of title 18, United States Code.

In an effort to further the Commission's goal of simplifying the

operation of the guidelines, Option 2 also 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). As proposed under Option 2,

the base offense level for offenses covered by Sec. 2G1.2 is decreased

from the current level of 16 to a proposed level of 14 in order to

effectuate the consolidation of Secs. 2G1.2 and 2G1.1 (which currently

has a base offense level of 14). However, Option 2 does not reduce the

overall offense level for offenses covered by Sec. 2G1.2 because the

specific offense characteristic related to the age of the victim is

proposed to be increased by two levels to compensate for the reduction

in the base offense level. That specific offense characteristic would

then be increased by another three, four, or five levels to implement

the directive contained in section 4 of the Sex Crimes Against Children

Prevention Act of 1995. Additionally under Option 2, the specific

offense characteristics and cross references that now apply only to

Sec. 2G1.2 are added to Sec. 2G1.1.

In addition, Option 1 and Option 2 both clarify that if an

adjustment under Sec. 2G1.2(b)(4) applies because of the nature of the

defendant's relationship with the minor involved in the offense,

Sec. 3B1.3 does not apply based on an abuse of a position of trust;

Sec. 3B1.3 may nevertheless apply based on the use of a special skill.

(A) Proposed Amendment--Option 1: Section 2G1.2(a) is amended by

striking ``16'' and inserting ``[19][20][21]''.

The Commentary to section 2G1.2 captioned ``Statutory Provisions''

is amended by striking ``2423'' and inserting ``2423(a)''.

The Commentary to section 2G1.2 captioned ``Application Notes'' is

amended in Note 6 by inserting ``based on an abuse of a position of

trust'' after ``Use of Special Skill)''.

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

2G1.2): Subpart One of Part G of Chapter Two is amended by striking

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

``Sec. 2G1.1. Transportation for the Purpose of 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 the transportation of a person who

(A) has not attained the age of twelve years, increase by [9][10][11]

levels; (B) has attained the age of twelve years but has not attained

the age of sixteen years, increase by [7][8][9] levels; or (C) has

attained the age of sixteen years but has not attained the age of

eighteen years, increase by [5][6][7] levels.

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

relative, or legal guardian of the minor, or if the minor 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 minor 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 transportation for the purpose

of 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 Instructions.

``(1) If the offense involved the transportation of more than one

person, Chapter Three, Part D (Multiple Counts) shall be applied as if

the transportation of each person had been contained in a separate

count of conviction.

``(2) For the purposes of this guideline, `transportation' includes

(A) transporting a person for the purpose of prostitution or prohibited

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

person to travel for the purpose of prostitution or prohibited sexual

conduct.

``Commentary

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

2422, 2423(a).

``Application Notes:

``1. `Sexually explicit conduct', as used in this guideline, has

the meaning set forth in 18 U.S.C. Sec. 2256.

``2. The enhancement for physical force, or coercion, anticipates

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

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

``3. `Coercion', as used in this guideline, includes any form of

conduct that negates the voluntariness of the behavior of the person

transported. This factor would apply, for example, where the ability of

the person being

[[Page 7039]]

transported to appraise or control conduct was substantially impaired

by drugs or alcohol. In the case of transportation involving an adult,

rather than a minor, this characteristic generally will not apply where

the alcohol or drug was voluntarily taken.

``4. For the purposes of Sec. 3B1.1 (Aggravating Role), the persons

transported are considered participants only if they assisted in the

unlawful transportation of others.

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

each person transported is to be treated as a separate victim.

Consequently, multiple counts involving the transportation of different

persons are not to be grouped together under Sec. 3D1.2 (Groups of

Closely-Related Counts). Special instruction (c)(1) directs that if the

relevant conduct of an offense of conviction includes more than one

person being transported, whether specifically cited in the count of

conviction or not, each such person shall be treated as if contained in

a separate count of conviction.

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

includes offenses involving a minor 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 child and not simply to the legal

status of the defendant-child relationship.

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

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

on an abuse of a position of trust.

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

broadly to include all instances where the offense involved employing,

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

permitting, or offering or seeking by notice or advertisement, a minor

to engage in sexually explicit conduct for the purpose of producing any

visual depiction of such conduct.

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

case in which the offense did not involve transportation for the

purpose of 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 a Minor (Statutory Rape) or Attempt to Commit Such Acts) or

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

Contact). If there is no offense guideline for the underlying

prohibited sexual conduct, Sec. 2X5.1 (Other Offenses) is to be

used.''.

(C) Additional Issue for Comment: The Commission invites comment on

whether, as an alternative to the proposed amendments set forth above

as Option 1 and Option 2, the Commission should apply the enhanced

offense level required by the congressional directive only if the

defendant is convicted of 18 U.S.C. 2243(a). Note that section 4 of the

Sex Crimes Against Children Prevention Act of 1995 directs the

Commission to increase by at least three levels the base offense level

for an offense under 18 U.S.C. 2243(a). As proposed for comment under

Option 1, the enhanced base offense level (increasing the current level

of 16 to a proposed level of 19, 20, or 21) would apply to all offenses

to which Sec. 2G1.2 currently applies, not just offenses under 18

U.S.C. 2243(a). Similarly, as proposed for comment under Option 2, the

enhanced specific offense characteristic related to the age of the

victim (increasing the current levels by three, four, or five levels,

in addition to the two-level increase for that specific offense

characteristic proposed to be made under Option 2 as a result of the

consolidation of Secs. 2G1.2 and 2G1.1) would apply to all offenses to

which Sec. 2G1.2 currently applies.

[FR Doc. 96-4050 Filed 2-22-96; 8:45 am]

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