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 amendment to sentencing guidelines and

commentary. Request for public comment.

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SUMMARY: The Commission is considering promulgating an amendment to the

sentencing guidelines and commentary. This notice sets forth the

proposed amendment and a synopsis of the issues addressed by the

amendment as well as an additional issue for comment. The Commission

seeks comment on the proposed amendment, 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: Written public comment on the amendment and issue for comment

set forth in this notice should be received by the Commission not later

than March 29, 1996, in order to be considered by the Commission in the

promulgation of amendments and in the possible

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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, N.E., Suite 2-500, Washington, D.C.

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. 994(a).

The Commission also periodically reviews and revises previously

promulgated guidelines pursuant to 28 U.S.C. 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. 994(p).

The proposed amendment as presented in this notice contains

bracketed text to indicate 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.

Previously this year, the Commission published proposed amendments

for consideration in this year's amendment cycle in order to implement

congressional directives in the Sex Crimes Against Children Prevention

Act of 1995. (See the notice dated February 23, 1996, 61 FR 7037-7039).

The amendment presented in this notice is proposed in order to address

18 U.S.C. 2422(b), a new offense created by the Telecommunications Act

of 1996. The amendment, which is proposed to be made to 2G1.2

(Transportation of a Minor for the Purpose of Prostitution or

Prohibited Sexual Conduct), incorporates the amendments already

proposed this year to implement section 4 of the Sex Crimes Against

Children Prevention Act of 1995.

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

Richard P. Conaboy,

Chairman.

Sex Offenses Against Minors

Chapter Two, Part G (Offenses Involving Prostitution, Sexual

Exploitation of Minors, and Obscenity)

1. Synopsis of Proposed Amendment

This is a two-part amendment. First, the amendment implements the

directive contained in section 4 of the Sex Crimes Against Children

Prevention Act of 1995, which directs the Commission to increase the

base offense level for an offense under section 2423(a) of title 18,

United States Code, by at least three levels. Second, the amendment

addresses 18 U.S.C. 2422(b), a new offense created by section 508 of

the Telecommunications Act of 1996. That offense makes it unlawful,

through the use of any facility or means of interstate or foreign

commerce, including 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 any sexual act for which a person may be

criminally prosecuted. Currently, Sec. 2G1.2 applies to transporting a

person for the purpose of prostitution or prohibited sexual conduct and

to persuading, inducing, enticing, and coercing a person to travel for

either such purpose. By proposing to make Sec. 2G1.2 applicable to the

new offense under 18 U.S.C. 2422(b), this amendment would expand the

scope of Sec. 2G1.2 to include an offense that involves promoting

prostitution or prohibited sexual conduct through a means other than

transportation or travel.

Two options are shown. Each option addresses the issues described

in the preceding paragraphs. 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 reduced 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 two-level

increase is in addition to the three-level increase directed to be made

by the Sex Crimes Against Children Prevention Act of 1995, as described

above.) 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.

(A) Proposed Amendment--Option 1:

Section 2G1.2 is amended to read as follows:

``Sec. 2G1.2. Promoting Prostitution Involving a Minor or Prohibited

Sexual Conduct Involving a Minor

``(a) Base Offense Level: [19][20][21]

``(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 under the age of twelve

years, increase by 4 levels.

``(3) If the offense involved a victim at least twelve years of age

but under the age of sixteen years, increase by 2 levels.

``(4) If (A) the defendant was a parent, relative, or legal

guardian of the victim involved in the offense, and the victim was less

than eighteen years of age, or (B) the victim involved in the offense

was less than eighteen years of age and 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 neither subsection (c)(1) nor (c)(2) is applicable, and

the offense did not involve promoting

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prostitution, apply Sec. 2A3.2 (Criminal Sexual Abuse of a Minor or

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

Attempt to Commit Abusive Sexual Contact), as appropriate.

``(d) Special Instructions

``(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.

``(2) For the purposes of this guideline--

``(A) `Coercion' includes any form of behavior that negates the

voluntariness of the behavior of the victim.

``(B) `Promoting prostitution or prohibited sexual conduct' means

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

sexual conduct, or

(ii) persuading, inducing, enticing, or coercing a person to travel

for the purpose of, or to engage in, prostitution or prohibited sexual

conduct.

``(C) `Sexually explicit conduct has the meaning set forth in 18

U.S.C. Sec. 2256.

``(D) `Victim' means a person transported, persuaded, induced,

enticed, or coerced to engage in prostitution or prohibited sexual

conduct, whether or not the person consented to the 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. For the purposes of Chapter Three, Part D (Multiple Counts),

each person transported, persuaded, induced, enticed, or coerced 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). Special instruction (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

person, 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.

``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 defined in this guideline, would apply, for

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

was substantially impaired by drugs or alcohol.

``4. Subsection (b)(4) 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.

``5. If the adjustment in subsection (b)(4) applies, do not apply

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

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

broadly to include all instances where the offense involved employing,

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

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

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

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

(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. 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 has (A) not attained the

age of twelve years, increase by [9][10][11] levels; (B) attained the

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

by [7][8][9] levels; or (C) attained the age of sixteen years but not

attained the age of eighteen years, increase by [5][6][7] 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 Instructions

``(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.

``(2) For the purposes of this guideline--

``(A) `Coercion' includes any form of conduct that negates the

voluntariness of the behavior of the victim.

``(B) `Promoting prostitution or prohibited sexual conduct' means

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

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

person to travel for the purpose of, or to engage in, prostitution or

prohibited sexual conduct.

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

U.S.C. 2256.

``(D) `Victim' means a person transported, persuaded, induced,

enticed, or coerced to engage in prostitution or prohibited sexual

conduct, whether or not the person consented to the prostitution or

prohibited sexual conduct.

``Commentary

[[Page 10838]]

``Statutory Provisions: 8 U.S.C. 1328; 18 U.S.C. 2421, 2422,

2423(a).

``Application Notes:

``1. 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).

``2. Coercion, as defined in this guideline, 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 where the alcohol or drug was

voluntarily taken.

``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 others.

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

each person transported, persuaded, induced, enticed, or coerced 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). Special instruction (c)(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

person, 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.

``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 or advertisement, a person

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

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

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

case in which the offense did not involve promoting prostitution and

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

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

e.g., 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.''.

[FR Doc. 96-6271 Filed 3-14-96; 8:45 am]

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