USA v. Wei Lin

Filing

FILED OPINION (J. CLIFFORD WALLACE, JEROME FARRIS and PAUL J. WATFORD) REVERSED, VACATED, and REMANDED. Judge: JF Authoring. FILED AND ENTERED JUDGMENT. [10194567]

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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, 2007, for these amendments.
Amendments to the Sentencing Guidelines,
Policy Statements, and Official Commentary
1.

Compassionate Release
Amendment: The Commentary to §1B1.13 captioned "Application Notes" is amended in
Note 1 by striking subdivision (A) and inserting the following:
"(A)

Extraordinary and Compelling Reasons.—Provided the defendant meets the
requirements of subdivision (2), extraordinary and compelling reasons exist under
any of the following circumstances:
(i)

The defendant is suffering from a terminal illness.

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(ii)
The defendant is suffering from a permanent physical or medical
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a
condition, or is experiencing deteriorating
152
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because of the aging process,
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the defendantLto ,
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facility and for which conventional treatment promises no substantial
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improvement.

(iii)

The death or incapacitation of the defendant’s only family member
capable of caring for the defendant’s minor child or minor children.

(iv)

As determined by the Director of the Bureau of Prisons, there exists in the
defendant’s case an extraordinary and compelling reason other than, or in
combination with, the reasons described in subdivisions (i), (ii), and (iii).".

The Commentary to §1B1.13 is amended by striking "Background" and all that follows
through the end of "statute." and inserting the following:
"Background: This policy statement implements 28 U.S.C. § 994(t).".
Reason for Amendment: This amendment modifies the policy statement at §1B1.13
(Reduction in Term of Imprisonment as a Result of Motion by Director of Bureau of
Prisons) to further effectuate the directive in 28 U.S.C. § 994(t). Section 994(t) provides
that the Commission "in promulgating general policy statements regarding the sentence
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modification provisions in section 3582(c)(1)(A) of title 18, shall describe what should
be considered extraordinary and compelling reasons for sentence reduction, including the
criteria to be applied and a list of specific examples." The amendment revises
Application Note 1(A) of §1B1.13 to provide four examples of circumstances that,
provided the defendant is not a danger to the safety of any other person or to the
community, would constitute "extraordinary and compelling reasons" for purposes of 18
U.S.C. § 3582(c)(1)(A).
2.

Transportation
Amendment: The Commentary to §2A1.1 captioned "Statutory Provisions" is amended
by inserting "1992(a)(7)," after "1841(a)(2)(C),"; and by inserting "2199, 2291," after
"2118(c)(2),".
The Commentary to §2A1.2 captioned "Statutory Provisions" is amended by inserting
"2199, 2291," after "1841(a)(2)(C),".
The Commentary to §2A1.3 captioned "Statutory Provisions" is amended by inserting
"2199, 2291," after "1841(a)(2)(C),".

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The Commentary to §2A1.4 captioned "Statutory Provisions" is amended by inserting
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on
"2199, 2291," after "1841(a)(2)(C),".
ived
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0
The Commentary to §2A1.4 captioned "Application Note" is amended in Note 1 by
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Lin,
striking "18 U.S.C. § 1993(c)(5)" and inserting "18 U.S.C. § 1992(d)(7)".
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cited to §2A2.1 captioned "Statutory Provisions" is amended by striking
The Commentary
"1993(a)(6)" and inserting "1992(a)(7), 2199, 2291".
The Commentary to §2A2.2 captioned "Statutory Provisions" is amended by striking
"1993(a)(6)," and inserting "1992(a)(7), 2199, 2291,".
The Commentary to §2A2.3 captioned "Statutory Provisions" is amended by inserting ",
2199, 2291" after "1751(e)".
The Commentary to §2A2.4 captioned "Statutory Provisions" is amended by inserting
"2237(a)(1), (a)(2)(A)," after "1502,".
Section 2A5.2 is amended in the heading by inserting "Navigation," after "Dispatch,";
and by striking "or Ferry".
Sections 2A5.2(a)(1) and (a)(2) are amended by striking the comma after "facility" each
place it appears and inserting "or"; and by striking ", or a ferry" each place it appears.

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The Commentary to §2A5.2 captioned "Statutory Provisions" is amended by striking
"1993(a)(4), (5), (6), (b);" and inserting "1992(a)(1), (a)(4), (a)(5), (a)(6);".
The Commentary to §2A5.2 captioned "Application Note" is amended in Note 1 in the
last paragraph by striking "18 U.S.C. § 1993(c)(5)" and inserting "18 U.S.C.
§ 1992(d)(7)".
The Commentary to §2A6.1 captioned "Statutory Provisions" is amended by striking
"1993(a)(7), (8)," and inserting "1992(a)(9), (a)(10), 2291(a)(8), 2291(e), 2292,".
Section 2B1.1(b) is amended by striking subdivision (11) and inserting the following:
"(11) If the offense involved an organized scheme to steal or to receive stolen (A)
vehicles or vehicle parts; or (B) goods or chattels that are part of a cargo
shipment, increase by 2 levels. If the offense level is less than level 14, increase
to level 14.".
The Commentary to §2B1.1 captioned "Statutory Provisions" is amended by inserting
"(a)(1), (a)(5)" after "1992"; by striking "1993(a)(1), (a)(4),"; by inserting "2291," after
"2113(b),"; and by inserting "14915," after "49 U.S.C. §§".

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The Commentary to §2B1.1 captioned "Application Notes" is n
ed o amended by striking Note
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a
10 and inserting the following:
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"10. Application of Subsection (b)(11).—Subsection (b)(11) provides a minimum
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offense level in the case of an ongoing, sophisticated operation (e.g., an auto theft
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ring or ‘chop shop’) to steal or to receive stolen (A) vehicles or vehicle parts; or
(B) goods or chattels that are part of a cargo shipment. For purposes of this
subsection, ‘vehicle’ means motor vehicle, vessel, or aircraft. A ‘cargo shipment’
includes cargo transported on a railroad car, bus, steamboat, vessel, or airplane.".

Section 2B2.3(b)(1) is amended by striking "secured" each place it appears and inserting
"secure"; and by inserting "or a seaport" after "airport".
The Commentary to §2B2.3 captioned "Statutory Provisions" is amended by inserting ",
2199" after "1036".
The Commentary to §2B2.3 captioned "Application Notes" is amended in Note 1 by
adding at the end the following:
"‘Seaport’ has the meaning given that term in 18 U.S.C. § 26.".
The Commentary to §2B2.3 captioned "Background" is amended by striking "secured"
before "government" and inserting "secure"; and by striking ", such as nuclear facilities,"
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and inserting "(such as nuclear facilities) and other locations (such as airports and
seaports)".
The Commentary to §2C1.1 captioned "Statutory Provisions" is amended by inserting
"226," after "§§ 201(b)(1), (2),".
The Commentary to §2K1.4 captioned "Statutory Provisions" is amended by inserting
"(a)(1), (a)(2), (a)(4)" after "1992"; by striking "1993(a)(1), (a)(2), (a)(3), (b),"; and by
inserting "2291," after "2275,".
The Commentary to §2K1.4 captioned "Application Notes" is amended in Note 1 by
striking "18 U.S.C. § 1993(c)(5)" and inserting "18 U.S.C. § 1992(d)(7)".
The Commentary to §2M6.1 captioned "Statutory Provisions" is amended by striking
"1993(a)(2), (3), (b), 2332a (only with respect to weapons of mass destruction as defined
in 18 U.S.C. § 2332a(c)(2)(B), (C), and (D))," and inserting "1992(a)(2), (a)(3), (a)(4),
(b)(2), 2291,".
The Commentary to §2Q1.1 captioned "Statutory Provisions" is amended by inserting
"18 U.S.C. § 1992(b)(3);" before "33 U.S.C. § 1319(c)(3);".

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Section 2X1.1 is amended in subsection (d)(1)(A) by inserting "(a)(1)-(a)(7), (a)(9),
d on
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rcinserting "and" after "§ 32;"; and by
(a)(10)" after "1992"; and in subsection (d)(1)(B) a
152 by
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striking "18 U.S.C. § 1993; and". o. 1
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The Commentary to §2X5.2 captioned "Statutory Provisions" is amended by inserting ";
ed in
49 U.S.C. cit31310" after "14133".
§
Appendix A (Statutory Index) is amended by inserting after the line referenced to
18 U.S.C. § 225 the following:
"18 U.S.C. § 226

2C1.1";

by inserting after the line referenced to 18 U.S.C. § 1035 the following:
"18 U.S.C. § 1036

2B2.3";

by striking the line referenced to 18 U.S.C. § 1992 through the end of the line referenced
to 18 U.S.C. § 1993(b) and inserting the following:
"18 U.S.C. § 1992(a)(1)
18 U.S.C. § 1992(a)(2)
18 U.S.C. § 1992(a)(3)
18 U.S.C. § 1992(a)(4)

2A5.2, 2B1.1, 2K1.4, 2X1.1
2K1.4, 2M6.1, 2X1.1
2M6.1, 2X1.1
2A5.2, 2K1.4, 2M6.1, 2X1.1
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18 U.S.C. § 1992(a)(5)
18 U.S.C. § 1992(a)(6)
18 U.S.C. § 1992(a)(7)
18 U.S.C. § 1992(a)(8)
18 U.S.C. § 1992(a)(9)
18 U.S.C. § 1992(a)(10)

2A5.2, 2B1.1, 2X1.1
2A5.2, 2X1.1
2A1.1, 2A2.1, 2A2.2, 2X1.1
2X1.1
2A6.1, 2X1.1
2A6.1, 2X1.1";

in the line referenced to 18 U.S.C. § 2199 by inserting "2A1.1, 2A1.2, 2A1.3, 2A1.4,
2A2.1, 2A2.2, 2A2.3," before "2B1.1";
by inserting after the line referenced to 18 U.S.C. § 2233 the following:
"18 U.S.C. § 2237(a)(1), (a)(2)(A)
18 U.S.C. § 2237(a)(2)(B)

2A2.4
2B1.1";

by inserting after the line referenced to 18 U.S.C. § 2281 the following:
"18 U.S.C. § 2291
18 U.S.C. § 2292

2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.1, 2A2.2, 2A2.3, 2A6.1, 2B1.1,
2K1.4, 2M6.1
2A6.1";

"49 U.S.C. § 31310

2X5.2".

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by inserting after the line referenced to 49 U.S.C. § 14912 d on
the following:
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"49 U.S.C. § 14915 2B1.1"; and o. 15-1
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by inserting aftern US referenced to 49 U.S.C. § 30170 the following:
the line
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Reason for Amendment: This amendment implements various provisions of the USA
PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. 109–177 (the
"PATRIOT Reauthorization Act") and the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users, Pub. L. 109–59 ("SAFETEA-LU").
The PATRIOT Reauthorization Act created several new offenses and increased the scope
of or penalty for several existing offenses. SAFETEA-LU also created two new offenses.
This amendment references both the new statutes and those with increased scope and
penalties to existing guidelines. The amendment also provides a corresponding
amendment to Appendix A (Statutory Index). The Commission concluded that
referencing the new offenses to existing guidelines was appropriate because the type of
conduct criminalized by the new statutes was adequately addressed and penalized by the
guidelines.
Section 307(c) of the PATRIOT Reauthorization Act directed the Commission to review
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the guidelines to determine whether a sentencing enhancement is appropriate for any
offense under sections 659 or 2311 of title 18, United States Code. This amendment
responds to the directive by revising the enhancement at subsection (b)(11) of §2B1.1
(Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property;
Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered
or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United
States). The amendment expands the scope of this enhancement to cover cargo theft and
adds a reference to the receipt of stolen vehicles or goods to ensure application of the
enhancement is consistent with the scope of 18 U.S.C. §§ 659 and 2313. The
Commission determined that the two-level increase, and the minimum offense level of
14, appropriately responds to concerns regarding the increased instances of organized
cargo theft operations.
3.

Terrorism
Amendment: The Commentary to §2A1.1 captioned "Statutory Provisions", as amended
by Amendment 2 of this document, is further amended by inserting "2282A," after
"2199,".
The Commentary to §2A1.2 captioned "Statutory Provisions", as amended by
6
Amendment 2 of this document, is further amended by inserting "2282A," after "2199".
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The Commentary to §2B1.1 captioned "Statutory arc
152 Provisions", as amended by
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Amendment 2 of this document, is o. 1 amended by inserting "2282A, 2282B," after
further
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"2113(b),".
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The Commentary to §2B1.5 captioned "Statutory Provisions" is amended by inserting
"554," before "641,".
Chapter Two, Part D, Subpart One, is amended by adding at the end the following new
guideline and accompanying commentary:
"§2D1.14.

Narco-Terrorism
(a)

Base Offense Level:
(1)

(b)

The offense level from §2D1.1 (Unlawful Manufacturing,
Importing, Exporting, or Trafficking (Including Possession
with Intent to Commit These Offenses); Attempt or
Conspiracy) applicable to the underlying offense, except
that §2D1.1(a)(3)(A), (a)(3)(B), and (b)(11) shall not apply.

Specific Offense Characteristic

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(1)

If §3A1.4 (Terrorism) does not apply, increase by 6 levels.
Commentary

Statutory Provision: 21 U.S.C. § 960a.".
Chapter Two, Part E, Subpart Four, is amended in the heading by adding at the end
"AND SMOKELESS TOBACCO".
Section 2E4.1 is amended in the heading by adding at the end "and Smokeless Tobacco".
The Commentary to §2E4.1 captioned "Background" is amended by striking "60,000"
and inserting "10,000".
The Commentary to §2K1.3 captioned "Statutory Provisions" is amended by inserting ",
2283" after "1716".
Section 2K1.4 is amended in subsections (a)(1) and (a)(2) by striking "a ferry," each
place it appears and inserting "a maritime facility, a vessel, or a vessel’s cargo,"; in
subsection (a)(2) by striking "or" the last place it appears; by redesignating subsection
6
(a)(3) as subsection (a)(4); and by inserting the following after subsection (a)(2):
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"(3) 16, if the offense involved the destruction arc tampering with aids to maritime
152 of or
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navigation; or".
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Section 2K1.4(b)(2) is amended by striking "(a)(3)" and inserting "(a)(4)".
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The Commentary to §2K1.4 captioned "Statutory Provisions", as amended by
Amendment 2 of this document, is further amended by inserting "2282A, 2282B," after
"2275,".
The Commentary to §2K1.4 captioned "Application Notes" is amended in Note 1 by
inserting after "For purposes of this guideline:" the following paragraph:
"‘Aids to maritime navigation’ means any device external to a vessel intended to assist
the navigator to determine position or save course, or to warn of dangers or obstructions
to navigation.";
by inserting after "destructive device." the following paragraph:
"‘Maritime facility’ means any structure or facility of any kind located in, on, under, or
adjacent to any waters subject to the jurisdiction of the United States and used, operated,
or maintained by a public or private entity, including any contiguous or adjoining
property under common ownership or operation.";
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by striking "1993(c)(5)" and inserting "1992(d)(7)"; and by adding at the end the
following:
"‘Vessel’ includes every description of watercraft or other artificial contrivance used, or
capable of being used, as a means of transportation on water.".
The Commentary to §2M5.2 captioned "Statutory Provisions" is amended by inserting
"18 U.S.C. § 554;" before "22 U.S.C. §§ 2778, 2780.".
Section 2M5.3 is amended in the heading by inserting "Specially Designated Global
Terrorists, or" after "Organizations or"
The Commentary to §2M5.3 captioned "Statutory Provisions" is amended by inserting
"2283, 2284," after "18 U.S.C. §§"; and by striking the period at the end and inserting ";
50 U.S.C. §§ 1701, 1705.".
The Commentary to §2M5.3 captioned "Application Notes" is amended in Note 1 by
adding at the end the following paragraph:
"‘Specially designated global terrorist’ has the meaning given that term in 31 C.F.R.
6
§ 594.513.".
1/9/1

1
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Section 2M6.1 is amended in the heading by152 arc"Production, Development,
striking
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Acquisition, Stockpiling, Alteration,.Use, Transfer, or Possession of " and inserting
1
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"Activity Involving".
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The Commentary to §2M6.1 captioned "Statutory Provisions", as amended by
Amendment 2 of this document, is further amended by inserting "2283," before "2291,".
The Commentary to §2Q2.1 captioned "Statutory Provisions" is amended by inserting "§"
before "545" and by inserting ", 554" after "545".
The Commentary to §2Q2.1 captioned "Background" is amended by striking "§ 545
where" and inserting "§§ 545 and 554 if".
The Commentary to §2X1.1 captioned "Statutory Provisions" is amended by inserting ",
2282A, 2282B," after "2271,".
The Commentary to §2X2.1 captioned "Statutory Provisions" is amended by inserting
"2284," after "2,".
The Commentary to §2X3.1 captioned "Statutory Provisions" is amended by inserting
"2284," after "1072,".

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Chapter Two, Part X is amended by adding at the end the following new subpart,
guideline, and accompanying commentary:
"7.

OFFENSES INVOLVING BORDER TUNNELS

§2X7.1.

Border Tunnels and Subterranean Passages
(a)

Base Offense Level:
(1)

If the defendant was convicted under 18 U.S.C. § 554(c), 4
plus the offense level applicable to the underlying
smuggling offense. If the resulting offense level is less
than level 16, increase to level 16.

(2)

16, if the defendant was convicted under 18 U.S.C.
§ 554(a); or

(3)

8, if the defendant was convicted under 18 U.S.C. § 554(b).

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Statutory Provision: 18 U.S.C. § 554.
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Application Note:
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1.
Definition.—For purposes of this guideline, ‘underlying smuggling offense’
Commentary

means the smuggling offense the defendant committed through the use of the
tunnel or subterranean passage.".
Chapter Five, Part K is amended by adding at the end the following new policy statement
and accompanying commentary:
"§5K2.24.

Commission of Offense While Wearing or Displaying Unauthorized or
Counterfeit Insignia or Uniform (Policy Statement)
If, during the commission of the offense, the defendant wore or displayed
an official, or counterfeit official, insignia or uniform received in violation
of 18 U.S.C. § 716, an upward departure may be warranted.
Commentary

Application Note:

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1.

Definition.—For purposes of this policy statement, ‘official insignia or uniform’
has the meaning given that term in 18 U.S.C. § 716(c)(3).".

Appendix A (Statutory Index) is amended by inserting after the line referenced to 18
U.S.C. § 553(a)(2) the following:
"18 U.S.C. § 554
(Border tunnels and passages)
2X7.1".
18 U.S.C. § 554
(Smuggling goods from
the United States)
2B1.5, 2M5.2, 2Q2.1".
Appendix A (Statutory Index), as amended by Amendment 2 of this document, is further
amended by inserting after the line referenced to 18 U.S.C. § 2281 the following:
"18 U.S.C. § 2282A 2A1.1, 2A1.2, 2B1.1,
2K1.4, 2X1.1
18 U.S.C. § 2282B 2B1.1, 2K1.4, 2X1.1
18 U.S.C. § 2283
2K1.3, 2M5.3, 2M6.1
18 U.S.C. § 2284
2M5.3, 2X2.1, 2X3.1".

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Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. § 2339 by
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inserting "2M5.3," before "2X2.1";
152
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by inserting after the line v. Lin,
referenced to 21 U.S.C. § 960(d)(7) the following:
USA
ed in
ct
"21 U.S.C. i§ 960a
2D1.14".
by inserting after the line referenced to 50 U.S.C. § 783(c) the following:
"50 U.S.C. § 1701
50 U.S.C. § 1705

2M5.1, 2M5.2, 2M5.3
2M5.3"; and

by striking the line referenced to 50 U.S.C. App. § 1701.
Reason for Amendment: This amendment implements the USA PATRIOT Improvement
and Reauthorization Act of 2005 (the "PATRIOT Reauthorization Act"), Pub. L.
109–177, and the Department of Homeland Security Appropriations Act, 2007 (the
"Homeland Security Act"), Pub. L. 109–295.
First, the amendment addresses section 122 of the PATRIOT Reauthorization Act, which
created a new offense at 21 U.S.C. § 960a covering narco-terrorism. This new offense
prohibits engaging in conduct that would be covered under 21 U.S.C. § 841(a) if
committed under the jurisdiction of the United States, knowing or intending to provide,
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directly or indirectly, anything of pecuniary value to any person or organization that has
engaged or engages in terrorist activity (as defined in section 212(a)(3)(B) of the
Immigration and Nationality Act) or terrorism (as defined in section 140(d)(2) of the
Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 (This act is made up of
separate parts divided by fiscal year)). The penalty is not less than twice the statutory
minimum punishment under 21 U.S.C. § 841(b)(1) and not more than life. Section 960a
also provides a mandatory term of supervised release of
at least five years.
The amendment creates a new guideline at §2D1.14 (Narco-Terrorism) because an
offense under 21 U.S.C. § 960a differs from basic drug offenses because it involves
trafficking that benefits terrorist activity. The guideline also provides that the base
offense level is the offense level determined under §2D1.1 (Unlawful Manufacturing,
Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These
Offenses); Attempt or Conspiracy) for the underlying offense, except that the "mitigating
role cap" in §2D1.1(a)(3)(A) and (B) and the two-level reduction for meeting the criteria
set forth in subdivisions (1)-(5) of subsection (a) of §5C1.2 (Limitation on Applicability
of Statutory Minimum Sentences in Certain Cases) shall not apply. The Commission
determined that these exclusions are appropriate to reflect that this is not a typical drug
offense, in that an individual convicted under this provision must have had knowledge
that the person or organization receiving the funds or support generated6 the drug
1/9/1 by
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trafficking "has engaged or engages in terrorist activityivedor terrorism . . . ." The
...
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guideline also contains a specific offense characteristic that provides a six-level increase
2 arc
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if the adjustment in §3A1.4 (Terrorism)5does not apply. This six-level increase fully
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effectuates the statute’s doubling of the minimum punishment for the underlying drug
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offense, whiled in US potential double counting with the 12-level adjustment at
avoiding
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§3A1.4. The amendment also provides a corresponding reference for the new offense to
§2D1.14 in Appendix A (Statutory Index).
Second, the amendment responds to the directive in section 551 of the Homeland
Security Act, which created a new offense in 18 U.S.C. § 554 regarding the construction
of border tunnels and subterranean passages that cross the international boundary
between the United States and another country. Section 551(c) of the Homeland Security
Act directed the Commission to promulgate or amend the guidelines to provide for
increased penalties for persons convicted of offenses under 18 U.S.C. § 554 and required
the Commission to consider a number of factors. Section 554(a) prohibits the
construction or financing of such tunnels and passages and provides a statutory maximum
term of imprisonment of 20 years. Section 554(b) prohibits the knowing or reckless
disregard of the construction on land the person owns or controls and provides a statutory
maximum term of imprisonment of 10 years. Section 554(c) prohibits the use of the
tunnels to smuggle an alien, goods (in violation of 18 U.S.C. § 545), controlled
substances, weapons of mass destruction (including biological weapons), or a member of
a terrorist organization (defined in 18 U.S.C. § 2339B(g)(6)) and provides a penalty of
twice the maximum term of imprisonment that otherwise would have been applicable had
11

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the unlawful activity not made use of the tunnel or passage.
The amendment creates a new guideline at §2X7.1 (Border Tunnels and Subterranean
Passages) for convictions under 18 U.S.C. § 554. The new guideline provides that a
conviction under 18 U.S.C. § 554(a) receives a base offense level 16, which is
commensurate with certain other offenses with statutory maximum terms of
imprisonment of 20 years and ensures a sentence of imprisonment. A conviction under
18 U.S.C. § 554(c) will receive a four-level increase over the offense level applicable to
the underlying smuggling offense, which ensures that the seriousness of the underlying
offense is the primary measure of offense severity. The four-level increase also satisfies
the directive’s instruction to account for the aggravating nature of the use of a tunnel or
subterranean passage to breach the border to accomplish the smuggling offense and
effectuates the statute’s doubling of the statutory maximum penalty. A conviction under
18 U.S.C. § 554(b) receives a base offense level of 8, which reflects the less aggravated
nature of this offense.
Third, the amendment addresses other new offenses created by the PATRIOT
Reauthorization Act. Based on an assessment of similar offenses already covered by the
relevant guidelines, the amendment provides as follows:
(A)

The new offense in 18 U.S.C. § 554, pertaining to smuggling of 6
1/9/1 goods from the
on 1 to, or Destruction of,
United States, is referenced to §§2B1.5 (Theft of,ed
Damage
hiv
Cultural Heritage Resources; Unlawful Sale,c
2 ar Purchase, Exchange, Transportation,
1015
or Receipt of Cultural Heritage Resources), 2M5.2 (Exportation of Arms,
. 15No
Munitions, or Militaryin,
v. L Equipment or Services Without Required Validated Export
A
License),in US
d and 2Q2.1 (Offenses Involving Fish, Wildlife, and Plants).

cite

(B)

The new offense in 18 U.S.C. § 2282A, pertaining to mining of United States
navigable waters, is referenced to §§2A1.1 (First Degree Murder), 2A1.2 (Second
Degree Murder), 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft;
Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and
Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other
than Counterfeit Bearer Obligations of the United States), 2K1.4 (Arson; Property
Damage by Use of Explosives), and 2X1.1 (Attempt, Solicitation, or Conspiracy
(Not Covered by a Specific Offense Guideline)). The amendment also adds
vessel, maritime facility, and a vessel’s cargo to §2K1.4(a)(1) and (a)(2) to cover
conduct described in 18 U.S.C. § 2282A. The definitions provided for "vessel,"
"maritime facility," and "aids to maritime navigation" come from title 33 of the
Code of Federal Regulations pertaining to the United States Coast Guard,
specifically Navigation and Navigable Waters.
Section 2282B, pertaining to violence against maritime navigational aids, is
referenced to §§2B1.1, 2K1.4, and 2X1.1. Section 2K1.4(a) is amended to
provide a new base offense level of 16 if the offense involved the destruction of
12

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or tampering with aids to maritime navigation.
(C)

The new offense in 18 U.S.C. § 2283 pertaining to transporting biological and
chemical weapons is referenced to §§2K1.3 (Unlawful Receipt, Possession, or
Transportation of Explosive Materials; Prohibited Transactions Involving
Explosive Materials), 2M5.3 (Providing Material Support or Resources to
Designated Foreign Terrorism Organizations or For a Terrorist Purpose), and
2M6.1 (Unlawful Production, Development, Acquisition, Stockpiling, Alteration,
Use, Transfer, or Possession of Nuclear Material, Weapons, or Facilities,
Biological Agents, Toxins, or Delivery Systems, Chemical Weapons, or Other
Weapons of Mass Destruction; Attempt or Conspiracy). The new offense in 18
U.S.C. § 2284 pertaining to transporting terrorists is referenced to §§2M5.3
(Providing Material Support or Resources to Designated Foreign Terrorist
Organizations or For a Terrorist Purpose), 2X2.1 (Aiding and Abetting), and
2X3.1 (Accessory After the Fact).

(D)

Section 2341 of title 18, United States Code, which provides definitions for
offenses involving contraband cigarettes and smokeless tobacco, was amended to
reduce the number of contraband cigarettes necessary to violate the substantive
offenses set forth in 18 U.S.C. §§ 2342 and 2344 from 60,000 to 10,000. The
amendment makes conforming changes to the background1/9/16
1 commentary of §2E4.1
onand expands the headings
(Unlawful Conduct Relating to Contraband Cigarettes)
d
hive
of Chapter Two, Part E, Subpart 4 and 52 arc to include smokeless tobacco.
§2E4.1
1

(E)

0
15-1
No.
The Patriot Reauthorization Act increased the statutory maximum term of
Lin,
A v.
imprisonmentS offenses covered by the International Emergency Economic
in U for
citedAct (50 U.S.C. § 1705) from 10 years to 20 years’ imprisonment. The
Powers

amendment references 50 U.S.C. § 1705 to §2M5.3 and modifies the heading of
the guideline to include "specially designated global terrorist".
Fourth, the amendment sets forth the statutory references in Appendix A (Statutory
Index) for the new offenses. Appendix A is amended to provide a parenthetical
description for the two statutory references to 18 U.S.C. § 554 created by the PATRIOT
Reauthorization Act.
Fifth, the amendment implements a directive in section 1191(c) of the Violence Against
Women and Department of Justice Reauthorization Act of 2005, Pub. L. 109–162. The
Act directed the Commission to amend the guidelines "to assure that the sentence
imposed on a defendant who is convicted of a Federal offense while wearing or
displaying insignia and uniform received in violation of section 716 of title 18, United
States Code, reflects the gravity of this aggravating factor." Section 716 of title 18,
United States Code, is a Class B misdemeanor which is not covered by the guidelines, see
§1B1.9 (Class B or C Misdemeanors and Infractions); however, the amendment creates a
new policy statement at §5K2.24 (Commission of Offense While Wearing or Displaying
13

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Unauthorized or Counterfeit Insignia or Uniform) providing that an upward departure
may be warranted if, during the commission of the offense, the defendant wore or
displayed an official, or counterfeit official, insignia or uniform received in violation of
18 U.S.C. § 716.
4.

Sex Offenses
Amendment: Chapter Two, Part A, Subpart Three, is amended in the heading by adding
at the end "AND OFFENSES RELATED TO REGISTRATION AS A SEX
OFFENDER".
Section 2A3.1(a) is amended by striking "30" and inserting the following:
"(1)

38, if the defendant was convicted under 18 U.S.C. § 2241(c); or

(2)

30, otherwise.".

Section 2A3.1(b)(2) is amended by striking "(A) If" and inserting "If subsection (a)(2)
applies and (A)"; and by striking "if" after "(B)".

/1
The Commentary to §2A3.1 captioned "Application Notes" is amended 6 Note 2 by
11/9 in
on adding at the end the
inserting "(A) Definitions.—" before "For purposes of"; and by
d
hive
following subdivision:
2 arc
15
"(B)

0
15-1
No.
Application in CasesLin,
v. Involving a Conviction under 18 U.S.C. § 2241(c).—If the
USA the basis for a conviction under 18 U.S.C. § 2241(c) is that the
conduct that forms
in
cited
defendant engaged in conduct described in 18 U.S.C. § 2241(a) or (b), do not
apply subsection (b)(1).".

The Commentary to §2A3.1 is amended by striking "Background" and all that follows
through the end of "abduction.".
Section 2A3.3(a) is amended by striking "12" and inserting "14".
The Commentary to §2A3.3 captioned "Application Notes" is amended in Note 1 by
striking "‘Minor’ means an individual who had not attained the age of 18 years." and
inserting the following:
"‘Minor’ means (A) an individual who had not attained the age of 18; (B) an individual,
whether fictitious or not, who a law enforcement officer represented to a participant (i)
had not attained the age of 18 years; and (ii) could be provided for the purposes of
engaging in sexually explicit conduct; or (C) an undercover law enforcement officer who
represented to a participant that the officer had not attained the age of 18 years.".

14

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The Commentary to §2A3.3 captioned "Application Notes" is amended by adding at the
end the following:
"4.

Inapplicability of §3B1.3.—Do not apply §3B1.3 (Abuse of Position of Trust or
Use of Special Skill).".

The Commentary to §2A3.3 is amended by striking "Background" and all that follows
through the end of "year.".
Section 2A3.4(b)(1) is amended by striking "20" each place it appears and inserting "22".
The Commentary to §2A3.4 captioned "Statutory Provisions" is amended by striking
"(a)(1), (2), (3)" after "§ 2244".
The Commentary to §2A3.4 captioned "Background" is amended by striking
"Enhancements are provided" and all that follows through the end of "sixteen years.".
Chapter Two, Part A, Subpart Three, is amended by adding at the end the following new
guidelines and accompanying commentaries:
"§2A3.5.

/16
11/9
n
ed o
rchiv
(a)
Base Offense Level (apply a greatest):
152 the
5-10
o. 1
n, N
(1)v. Li16, if the defendant was required to register as a Tier III
USA
offender;
ed in
cit
Failure to Register as a Sex Offender

(2)

(3)

(b)

14, if the defendant was required to register as a Tier II
offender; or
12, if the defendant was required to register as a Tier I
offender.

Specific Offense Characteristics
(1)

(Apply the greatest):
If, while in a failure to register status, the defendant
committed—
(A)

a sex offense against someone other than a minor
increase by 6 levels;

(B)

a felony offense against a minor not otherwise
15

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covered by subdivision (C), increase by 6 levels; or
(C)
(2)

a sex offense against a minor, increase by 8 levels.

If the defendant voluntarily (A) corrected the failure to
register; or (B) attempted to register but was prevented
from registering by uncontrollable circumstances and the
defendant did not contribute to the creation of those
circumstances, decrease by 3 levels.
Commentary

Statutory Provision: 18 U.S.C. § 2250(a).
Application Notes:
1.

Definitions.—For purposes of this guideline:
‘Minor’ means (A) an individual who had not attained the age of 18 years; (B) an
individual, whether fictitious or not, who a law enforcement officer represented to
a participant (i) had not attained the age of 18 years; and (ii) 9/16 be provided for
1/ could
on 1 an undercover law
the purposes of engaging in sexually explicit conduct; or (C)
d
hive
enforcement officer who represented 152 participant that the officer had not
to a arc
0
attained the age of 18 years. . 15-1
o

. Li
SA v

n, N

U
‘Sex offense’ has the meaning given that term in 42 U.S.C. § 16911(5).
d in
cite

‘Tier I offender’, ‘tier II offender’, and ‘tier III offender’ have the meaning given
those terms in 42 U.S.C. § 16911(2), (3) and (4), respectively.
2.

Application of Subsection (b)(2).—
(A)

In General.—In order for subsection (b)(2) to apply, the defendant’s
voluntary attempt to register or to correct the failure to register must have
occurred prior to the time the defendant knew or reasonably should have
known a jurisdiction had detected the failure to register.

(B)

Interaction with Subsection (b)(1).—Do not apply subsection (b)(2) if
subsection (b)(1) also applies.

§2A3.6.

Aggravated Offenses Relating to Registration as a Sex Offender
If the defendant was convicted under—

16

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(a)

18 U.S.C. § 2250(c), the guideline sentence is the minimum term
of imprisonment required by statute; or

(b)

18 U.S.C. § 2260A, the guideline sentence is the term of
imprisonment required by statute.

Chapters Three (Adjustments) and Four (Criminal History and Criminal
Livelihood) shall not apply to any count of conviction covered by this
guideline.
Commentary
Statutory Provisions: 18 U.S.C. §§ 2250(c), 2260A.
Application Notes:
1.

2.

In General.—Section 2250(c) of title 18, United States Code, provides a
mandatory minimum term of five years’ imprisonment and a statutory maximum
term of 30 years’ imprisonment. The statute also requires a sentence to be
imposed consecutively to any sentence imposed for a conviction under 18 U.S.C.
§ 2250(a). Section 2260A of title 18, United States Code, provides a term of
/16
imprisonment of 10 years that is required to be imposed consecutively to any
11/9
sentence imposed for an offense enumerated underd onsection.
ive that

arch
152
0
Inapplicability of Chapters Three-and Four.—Do not apply Chapters Three
15 1
No.
(Adjustments) and . Lin,(Criminal History and Criminal Livelihood) to any
vFour
USA under this guideline. Such offenses are excluded from
offense sentenced
in
cited
application of those chapters because the guideline sentence for each offense is

determined only by the relevant statute. See §§3D1.1 (Procedure for Determining
Offense Level on Multiple Counts) and 5G1.2 (Sentencing on Multiple Counts of
Conviction).
3.

Inapplicability of Chapter Two Enhancement.—If a sentence under this guideline
is imposed in conjunction with a sentence for an underlying offense, do not apply
any specific offense characteristic that is based on the same conduct as the
conduct comprising the conviction under 18 U.S.C. § 2250(c) or § 2260A.

4.

Upward Departure.—In a case in which the guideline sentence is determined
under subsection (a), a sentence above the minimum term required by 18 U.S.C.
§ 2250(c) is an upward departure from the guideline sentence. A departure may
be warranted, for example, in a case involving a sex offense committed against a
minor or if the offense resulted in serious bodily injury to a minor.".

Section 2G1.1(a) is amended by striking "14" and inserting the following:

17

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"(1)

34, if the offense of conviction is 18 U.S.C. § 1591(b)(1); or

(2)

14, otherwise.".

Section 2G1.1(b)(1) is amended by inserting "(A) subsection (a)(2) applies; and (B)"
after "If".
The Commentary to §2G1.1 is amended by striking "Background" and all that follows
through the end of "Minor).".
Section 2G1.3(a) is amended by striking "24" and inserting the following:
"(1)

34, if the defendant was convicted under 18 U.S.C. § 1591(b)(1);

(2)

30, if the defendant was convicted under 18 U.S.C. § 1591(b)(2);

(3)

28, if the defendant was convicted under 18 U.S.C. § 2422(b) or § 2423(a); or

(4)

24, otherwise.".

Section 2G1.3(b) is amended by striking subdivision (4) and inserting 16 following:
1/9/ the
"(4)

1
d on
hive
a
If (A) the offense involved the commission rc a sex act or sexual contact; or (B)
152 of
5-10 the offense involved a commercial sex act,
subsection (a)(3) or (a)(4) applies and
1
No.
L
increase by 2 levels.". in,
A v.
in US
cited

Section 2G1.3(b)(5) is amended by inserting "(A) subsection (a)(3) or (a)(4) applies; and
(B)" after "If".
The Commentary to §2G1.3 captioned "Statutory Provisions" is amended by striking
"2422(b),".
The Commentary to §2G1.3 is amended by striking "Background" and all that follows
through the end of "Minor).".
The Commentary to §2G2.5 captioned "Statutory Provisions" is amended by inserting "§"
after "18 U.S. C. §"; and by inserting ", 2257A" after "2257".
Chapter Two, Part G, Subpart Two, is amended by adding at the end the following new
guideline and accompanying commentary:
"§2G2.6.

Child Exploitation Enterprises
(a)

Base Offense Level: 35
18

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(b)

Specific Offense Characteristics
(1)

If a victim (A) had not attained the age of 12 years,
increase by 4 levels; or (B) had attained the age of 12 years
but had not attained the age of 16 years, increase by 2
levels.

(2)

If (A) the defendant was a parent, relative, or legal
guardian of a minor victim; or (B) a minor victim was
otherwise in the custody, care, or supervisory control of the
defendant, increase by 2 levels.

(3)

If the offense involved conduct described in 18 U.S.C.
§ 2241(a) or (b), increase by 2 levels.

(4)

If a computer or an interactive computer service was used
in furtherance of the offense, increase by 2 levels.
Commentary

/16

/9
n 11
Statutory Provision: 18 U.S.C. § 2252A(g).
ed o
iv
arch
152
0
Application Notes:
15-1
No.
Lin,
A v.
1.
Definitions.—For purposes of this guideline:
in US
cited

‘Computer’ has the meaning given that term in 18 U.S.C. § 1030(e)(1).
‘Interactive computer service’ has the meaning given that term in section
230(e)(2) of the Communications Act of 1934 (47 U.S.C. § 230(f)(2)).
‘Minor’ means (A) an individual who had not attained the age of 18 years; (B) an
individual, whether fictitious or not, who a law enforcement officer represented to
a participant (i) had not attained the age of 18 years; and (ii) could be provided for
the purposes of engaging in sexually explicit conduct; or (C) an undercover law
enforcement officer who represented to a participant that the officer had not
attained the age of 18 years.
2.

Application of Subsection (b)(2).—
(A)

Custody, Care, or Supervisory Control.—Subsection (b)(2) is intended to
have broad application and includes offenses involving a victim less than
18 years of age entrusted to the defendant, whether temporarily or
19

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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 enhancement, the
court should look to the actual relationship that existed between the
defendant and the minor and not simply to the legal status of the
defendant-minor relationship.
(B)

3.

Inapplicability of Chapter Three Adjustment.—If the enhancement under
subsection (b)(2) applies, do not apply §3B1.3 (Abuse of Position of Trust
or Use of Special Skill).

Application of Subsection (b)(3).—For purposes of subsection (b)(3), ‘conduct
described in 18 U.S.C. § 2241(a) or (b)’ is: (i) using force against the minor; (ii)
threatening or placing the minor in fear that any person will be subject to death,
serious bodily injury, or kidnapping; (iii) rendering the minor unconscious; or (iv)
administering by force or threat of force, or without the knowledge or permission
of the minor, a drug, intoxicant, or other similar substance and thereby
substantially impairing the ability of the minor to appraise or control conduct.
This provision would apply, for example, if any dangerous weapon was used or
brandished, or in a case in which the ability of the minor to appraise or control
conduct was substantially impaired by drugs or alcohol.". 1/9/16

1
d on
hive
arc
Section 2G3.1(b) is amended by striking subdivision (2) and inserting the following:
0152
-1
o. 15
n, N a minor into viewing material that is harmful to
"(2) If, with the intent v. Li
to deceive
USA involved the use of (A) a misleading domain name on the
minors, the offense
in
cited
Internet; or (B) embedded words or digital images in the source code of a website,
increase by 2 levels.".
The Commentary to §2G3.1 captioned "Statutory Provisions" is amended by inserting ",
2252C" after "2252B".
The Commentary to §2G3.1 captioned "Application Notes" is amended in Note 2 by
inserting "or § 2252C" after "2252B".
Section 2J1.2(b) is amended in subdivision (1) by striking "greater" and inserting
"greatest"; by redesignating subdivisions (A) and (B) as subdivisions (B) and (C),
respectively; by inserting before subdivision (B), as redesignated by this amendment, the
following:
"(A)

If the (i) defendant was convicted under 18 U.S.C. § 1001; and (ii) statutory
maximum term of eight years’ imprisonment applies because the matter relates to
sex offenses under 18 U.S.C. § 1591 or chapters 109A, 109B, 110, or 117 of title
18, United States Code, increase by 4 levels.";
20

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and by striking subdivision (C), as redesignated by this amendment, and inserting the
following:
"(C)

If the (i) defendant was convicted under 18 U.S.C. § 1001 or § 1505; and (ii)
statutory maximum term of eight years’ imprisonment applies because the matter
relates to international terrorism or domestic terrorism, increase by 12 levels.".

The Commentary to §2J1.2 captioned "Statutory Provisions" is amended by striking
"when the statutory maximum" and all that follows through "applicable," and inserting
the following:
"(when the statutory maximum term of eight years’ imprisonment applies because the
matter relates to international terrorism or domestic terrorism, or to sex offenses under 18
U.S.C. § 1591 or chapters 109A, 109B, 110, or 117 of title 18, United States Code),".
The Commentary to §2J1.2 captioned "Application Notes" is amended in Note 2(B) by
striking "(b)(1)(B)" and inserting "(b)(1)(C)".
The Commentary to §2J1.2 captioned "Application Notes" is amended in Note 4 by
inserting "or a particularly serious sex offense" after "face)".

/16
11/9
n
The Commentary to §2J1.2 captioned "Application Notes"disoamended in Note 5 by
e
c appears; and by inserting "(B)"
rit hiv
a
inserting "(B)" after "Subsection (b)(1)" each place
152
5-10
after "under subsection (b)(1)". o. 1
n, N
v. Li
A
Section 3D1.2(d)n US
is amended by inserting as a new line "§2A3.5;" before the line that
ed i
cit
begins "§§2B1.1"; and by inserting "(except §2A3.5)" after "Chapter Two, Part A".

The Commentary to §4B1.5 captioned "Application Notes" is amended by striking Note
1 and inserting the following:
"1.

Definition.—For purposes of this guideline, ‘minor’ means (A) an individual who
had not attained the age of 18 years; (B) an individual, whether fictitious or not,
who a law enforcement officer represented to a participant (i) had not attained the
age of 18 years; and (ii) could be provided for the purposes of engaging in
sexually explicit conduct; or (C) an undercover law enforcement officer who
represented to a participant that the officer had not attained the age of 18 years.".

The Commentary to §4B1.5 captioned "Application Notes" is amended in Note 2 by
inserting "or (iv) 18 U.S.C. § 1591;" after "individual;"; and by striking "(iii)" after
"through" and inserting "(iv)".
The Commentary to §4B1.5 captioned "Background" is amended by striking the first and
second sentences and inserting:
21

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"This guideline applies to offenders whose instant offense of conviction is a sex offense
committed against a minor and who present a continuing danger to the public.".
Section 5B1.3(a)(9) is amended by inserting "(A) in a state in which the requirements of
the Sex Offender Registration and Notification Act (see 42 U.S.C. §§ 16911 and 16913)
do not apply," before "a defendant convicted"; by inserting "(Pub. L. 105–119,
§ 115(a)(8), Nov. 26, 1997)" after "4042(c)(4)"; by inserting "or" after "student;" and by
adding at the end the following:
"(B)

in a state in which the requirements of Sex Offender Registration and Notification
Act apply, a sex offender shall (i) register, and keep such registration current,
where the offender resides, where the offender is an employee, and where the
offender is a student, and for the initial registration, a sex offender also shall
register in the jurisdiction in which convicted if such jurisdiction is different from
the jurisdiction of residence; (ii) provide information required by 42 U.S.C.
§ 16914; and (iii) keep such registration current for the full registration period as
set forth in 42 U.S.C. § 16915;".

Section 5B1.3(d)(7) is amended by adding at the end the following:
"(C)

A condition requiring the defendant to submit to a search, 1/9/16time, with or
at any
on 1 officer, of the
without a warrant, and by any law enforcement ior probation
d
h ve
defendant’s person and any property,152 arc
house, residence, vehicle, papers, computer,
0
other electronic communication5-1
1 or data storage devices or media, and effects,
No.
Lin,
upon reasonable suspicion concerning a violation of a condition of probation or
A v.
unlawfulin US by the defendant, or by any probation officer in the lawful
conduct
cited
discharge of the officer’s supervision functions.".

Section 5B1.3 is amended by adding at the end the following:
"

Commentary

Application Note:
1.

Application of Subsection (b)(9)(A) and (B).—Some jurisdictions continue to
register sex offenders pursuant to the sex offender registry in place prior to
July 27, 2006, the date of enactment of the Adam Walsh Act, which contained the
Sex Offender Registration and Notification Act. In such a jurisdiction, subsection
(b)(9)(A) will apply. In a jurisdiction that has implemented the requirements of
the Sex Offender Registration and Notification Act, subsection (b)(9)(B) will
apply. (See 42 U.S.C. §§ 16911 and 16913.)".

The Commentary to §5D1.2 captioned "Application Notes" is amended by striking Note
1 and inserting:
22

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"1.

Definitions.—For purposes of this guideline:
‘Sex offense’ means (A) an offense, perpetrated against a minor, under (i) chapter
109A of title 18, United States Code; (ii) chapter 109B of such title; (iii) chapter
110 of such title, not including a recordkeeping offense; (iv) chapter 117 of such
title, not including transmitting information about a minor or filing a factual
statement about an alien individual; (v) an offense under 18 U.S.C. § 1201; or (vi)
an offense under 18 U.S.C. § 1591; or (B) an attempt or a conspiracy to commit
any offense described in subdivisions (A)(i) through (vi) of this note.
‘Minor’ means (A) an individual who had not attained the age of 18 years; (B) an
individual, whether fictitious or not, who a law enforcement officer represented to
a participant (i) had not attained the age of 18 years; and (ii) could be provided for
the purposes of engaging in sexually explicit conduct; or (C) an undercover law
enforcement officer who represented to a participant that the officer had not
attained the age of 18 years.".

Section 5D1.3(a)(7) is amended by inserting "(A) in a state in which the requirements of
the Sex Offender Registration and Notification Act (see 42 U.S.C. §§ 16911 and 16913)
do not apply," before "a defendant"; by inserting "(Pub. L. 105–119, § 115(a)(8), Nov.
6
26, 1997)" after "4042(c)(4)"; by inserting "or" after "student;" and/9/1adding at the end
11 by
on
the following:
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"(B)

arch
152
0
in a state in which the requirements of Sex Offender Registration and Notification
15-1
No.
Lin,
Act apply, a sex offender shall (i) register, and keep such registration current,
A v.
where d inoffender resides, where the offender is an employee, and where the
the US
cite is a student, and for the initial registration, a sex offender also shall
offender
register in the jurisdiction in which convicted if such jurisdiction is different from
the jurisdiction of residence; (ii) provide information required by 42 U.S.C.
§ 16914; and (iii) keep such registration current for the full registration period as
set forth in 42 U.S.C. § 16915;".

Section 5D1.3(d)(7) is amended by adding at the end the following:
"(C)

A condition requiring the defendant to submit to a search, at any time, with or
without a warrant, and by any law enforcement or probation officer, of the
defendant’s person and any property, house, residence, vehicle, papers, computer,
other electronic communication or data storage devices or media, and effects
upon reasonable suspicion concerning a violation of a condition of supervised
release or unlawful conduct by the defendant, or by any probation officer in the
lawful discharge of the officer’s supervision functions.".

Section 5D1.3 is amended by adding at the end the following:

23

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"

Commentary

Application Note:
1.

Application of Subsection (b)(7)(A) and (B).—Some jurisdictions continue to
register sex offenders pursuant to the sex offender registry in place prior to
July 27, 2006, the date of enactment of the Adam Walsh Act, which contained the
Sex Offender Registration and Notification Act. In such a jurisdiction, subsection
(b)(7)(A) will apply. In a jurisdiction that has implemented the requirements of
the Sex Offender Registration and Notification Act, subsection (b)(7)(B) will
apply. (See 42 U.S.C. §§ 16911 and 16913.)".

Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. § 1001 by
striking "when the statutory" and all that follows through "applicable" and inserting the
following:
"(when the statutory maximum term of eight years’ imprisonment applies because the
matter relates to international terrorism or domestic terrorism, or to sex offenses under 18
U.S.C. § 1591 or chapters 109A, 109B, 110, or 117 of title 18, United States Code)".
Appendix A (Statutory Index) is amended by inserting after the line9/16
1/ referenced to 18
on 1
U.S.C. § 2245 the following:
ived

arc
0152
1
. 15-

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"18 U.S.C. § 2250(a) 2A3.5
No
18 U.S.C. § 2250(c) 2A3.6";n,
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by inserting after the line referenced to 18 U.S.C. § 2252B the following:
"18 U.S.C. § 2252C 2G3.1";
by inserting after the line referenced to 18 U.S.C. § 2257 the following:
"18 U.S.C. § 2257A 2G2.5"; and
by inserting after the line referenced to 18 U.S.C. § 2260(b) the following:
"18 U.S.C. § 2260A 2A3.6".
Reason for Amendment: This amendment responds to the Adam Walsh Child Protection
and Safety Act of 2006 (the "Adam Walsh Act"), Pub. L. 109–248, which contained a
directive to the Commission, created new sexual offenses, and enhanced penalties for
existing sexual offenses. The amendment implements the directive by creating two new
guidelines, §§2A3.5 (Criminal Sexual Abuse and Offenses Related to Registration as a
Sex Offender) and 2A3.6 (Aggravated Offenses Relating to Registration as a Sex
24

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Offender). It further addresses relevant provisions in the Adam Walsh Act by making
changes to Chapter Two, Part A, Subpart 3 (Criminal Sexual Abuse) and Part G
(Offenses Involving Commercial Sex Acts, Sexual Exploitation of Minors, and
Obscenity), §2J1.2 (Obstruction of Justice), §3D1.2 (Groups of Closely Related Counts),
§4B1.5 (Repeat and Dangerous Sex Offender Against Minors), §5B1.3 (Conditions of
Probation), §5D1.2 (Term of Supervised Release), §5D1.3 (Conditions of Supervised
Release) and Appendix A (Statutory Index).
First, section 206 of the Adam Walsh Act amended 18 U.S.C. § 2241(c) to add a new
mandatory minimum tern of imprisonment of 30 years for offenses related to the
aggravated sexual abuse of a child under 12 years old, or of a child between 12 and 16
years old if force, threat, or other means was used. In response to the new mandatory
minimum for these offenses, the amendment increases the base offense level at §2A3.1
(Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse) from level 30 to
level 38. The base offense level of 30 has been retained for all other offenses. At least
one specific offense characteristic applied to every conviction under 18 U.S.C. § 2241(c)
sentenced under §2A3.1 in fiscal year 2006. Accordingly, the mandatory minimum 360
months’ imprisonment is expected to be reached or exceeded in every case with a base
offense level of 38.

/16
The amendment provides a new application note that precludes application of the specific
11/9
offense characteristic at §2A3.1(b)(1) regarding conduct ed on
described in 18 U.S.C. §
hiv
2241(a) or (b) if the conduct that forms the basis forc conviction under 18 U.S.C. §
2 ar a
1015
2241(c) is that the defendant engaged 15conduct described in 18 U.S.C. § 2241(a) or (b)
. in No
(force, threat, or other means).n,
v. Li The amendment also precludes application of the specific
A
U for
offense characteristicS the age of a victim at §2A3.1(b)(2) if the defendant was
ed in
convicted cit
under section 2241(c). The heightened base offense level of 38 takes into
account the age of the victim. These instructions, therefore, avoid unwarranted double
counting.
Second, section 207 of the Adam Walsh Act increased the statutory maximum term of
imprisonment under 18 U.S.C. § 2243(b) from 5 years to 15 years for the sexual abuse of
a person in official detention or under custodial authority. In response to increased
penalty, the amendment increases the base offense level from 12 to 14 in §2A3.3
(Criminal Sexual Abuse of a Ward or Attempt to Commit Such Acts). The amendment
also adds a new definition of "minor" consistent with how this term is defined elsewhere
in the guidelines manual. In addition, the amendment includes an application note
precluding application of §3B1.3 (Abuse of Position of Trust or Use of Special Skill) for
these offenses because an abuse of position of trust is assumed in all such cases and,
therefore, is built into the base offense level.
Third, section 206 of the Adam Walsh Act created a new subsection at 18 U.S.C. § 2244.
Section 2244(a)(5) provides a penalty of any term of years if the sexual conduct would
have violated 18 U.S.C. § 2241(c) had the contact been a sexual act. Section 2241(c)
25

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conduct involves the aggravated sexual abuse of a child under 12 years old or of a child
between 12 and 16 years old if force, threat, or other means was used, as defined in 18
U.S.C. § 2241(a) and (b). Prior to the Adam Walsh Act, the penalty for offenses
involving children under 12 years old was "twice that otherwise provided," and the
penalty for sexual contact involving behavior described in 18 U.S.C. § 2241 was a
statutory maximum term of imprisonment of 10 years.
The amendment addresses this new offense by increasing the minimum offense level in
the age enhancement in subsection (b)(1) of §2A3.4 (Abusive Sexual Contact or Attempt
to Commit Abusive Sexual Contact) from level 20 to level 22.
Fourth, section 141 of the Adam Walsh Act created a new offense under 18 U.S.C.
§ 2250(a) for the failure to register as a sex offender. The basic offense carries a
statutory maximum term of imprisonment of 10 years. Section 141 also included a
directive to the Commission that when promulgating guidelines for the offense, to
consider, among other factors, the seriousness of the sex offender’s conviction that gave
rise to the requirement to register; relevant further offense conduct during the period for
which the defendant failed to register; and the offender’s criminal history.
The amendment creates a new guideline, §2A3.5 (Failure to Register as a Sex Offender),
to address the directive. The new guideline provides three alternative/16 offense levels
11/9 base
on defendant was required to
based on the tiered category of the sex offender: level iveif the
16 d
h
register as a Tier III offender; level 14 if the 152 arc was required to register as a Tier
defendant
10
II offender; and level 12 if the defendant -was required to register as a Tier I offender.
o. 15

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The amendment ialso provides two specific offense characteristics. First, subsection
nU
cited a tiered enhancement to address criminal conduct committed while the
(b)(1) provides
defendant is in a failure to register status. Specifically, §2A3.5(b)(1) provides a six-level
increase if, while in a failure to register status, the defendant committed a sex offense
against an adult, a six-level increase if the defendant committed a felony offense against a
minor, and an eight-level increase if the defendant committed a sex offense against a
minor. Second, §2A3.5(b)(2) provides a three-level decrease if the defendant voluntarily
corrected the failure to register or voluntarily attempted to register but was prevented
from registering by uncontrollable circumstances, and the defendant did not contribute to
the creation of those circumstances. The reduction covers cases in which (1) the
defendant either does not attempt to register until after the relevant registration period has
expired but subsequently successfully registers, thereby correcting the failure to register
status, or (2) the defendant, either before or after the registration period has expired,
attempted to register but circumstances beyond the defendant’s control prevented the
defendant from successfully registering. An application note specifies that the voluntary
attempt to register or to correct the failure to register must have occurred prior to the time
the defendant knew or reasonably should have known a jurisdiction had detected the
failure to register. The application note also provides that the reduction does not apply if
the enhancement for committing one of the enumerated offenses in §2A3.5(b)(1) applies.
26

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Additionally, the amendment adds §2A3.5 to the list of offenses that are considered
groupable under §3D1.2(d) because the failure to register offense is an ongoing and
continuous offense.
Fifth, section 141 of the Adam Walsh Act created two new aggravated offenses relating
to the registration as a sex offender. Section 141 of the Act created 18 U.S.C. § 2250(c),
which carries a mandatory minimum term of imprisonment of 5 years and a statutory
maximum term of imprisonment of 30 years if a defendant commits a crime of violence
while in a failure to register status, with the sentence to be consecutive to the punishment
provided for the failure to register. Section 702 of the Adam Walsh Act created a new
offense at 18 U.S.C. § 2260A that prohibits the commission of various enumerated
offenses while in a failure to register status. The penalty for this offense is a mandatory
term of imprisonment of 10 years to be imposed consecutively to the underlying offense.
The amendment creates a new guideline at §2A3.6 (Aggravated Offenses Relating to
Registration as a Sex Offender) to address these new offenses. The new guideline
provides that for offenses under section 2250(c), the guideline sentence is the minimum
term of imprisonment required by statute, and for offenses under section 2260A, the
guideline sentence is the term of imprisonment required by statute. Chapters Three and
Four are not to apply. This is consistent with how the guidelines treat other offenses that
/16
carry both a specified term of imprisonment and a requirement that/such term be imposed
11 9
Offense
consecutively. See §§3D1.1 (Procedure for Determininged on Level on Multiple
hiv
Counts) and 5G1.2 (Sentencing on Multiple Countsrc Conviction).
2 a of
15

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The guideline includes an application note that provides an upward departure stating that
A v.
a sentence aboven US
i the minimum term required by section 2250(c) is an upward departure
cited
from the guideline sentence. An upward departure may be warranted, for example, in a
case involving a sex offense committed against a minor or if the offense resulted in
serious bodily injury to a minor.

Sixth, section 208 of the Adam Walsh Act added a new mandatory minimum term of
imprisonment of 15 years under 18 U.S.C. § 1591(b)(1) for sex trafficking of an adult by
force, fraud, or coercion. In response, the amendment provides a new base offense level
of 34 in §2G1.1 (Promoting a Commercial Sex Act or Prohibited Sexual Conduct with an
Individual Other than a Minor) if the offense of conviction is 18 U.S.C. § 1591(b)(1), but
retains a base offense level of 14 for all other offenses. In addition, the amendment limits
application of the specific offense characteristic at §2G1.1(b)(1) that applies if the
offense involved fraud or coercion only to those offenses receiving a base offense level
of 14. Offenses under 18 U.S.C. § 1591(b)(1) necessarily involve fraud and coercion
and, therefore, such conduct is built into the heightened base offense level of 34. This
limitation thus avoids unwarranted double counting.
Seventh, section 208 of the Adam Walsh Act added a new mandatory minimum term of
imprisonment of 15 years under 18 U.S.C. § 1591(b)(1) for sex trafficking of children
27

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under 14 years of age and added a new mandatory minimum term of imprisonment of 10
years and increased the statutory maximum term of imprisonment from 40 years to life
under 18 U.S.C. § 1591(b)(2) for sex trafficking of children who had attained the age of
14 years but had not attained the age of 18 years. Further, the Adam Walsh Act increased
the mandatory minimum term of imprisonment from 5 years to 10 years and increased the
statutory maximum term of imprisonment from 30 years to life under both 18 U.S.C.
§ 2422(b), for persuading or enticing any person who has not attained the age of 18 years
to engage in prostitution or any sexual activity for which any person can be charged with
a criminal offense, and 18 U.S.C. § 2423(a), for transporting a person who has not
attained the age of 18 years in interstate or foreign commerce, with the intent that the
person engage in prostitution, or in any sexual activity for which any person can be
charged with a criminal offense.
In response, the amendment provides alternative base offense levels in §2G1.3
(Promoting a Commercial Sex Act or Prohibited Sexual Conduct with a Minor;
Transportation of Minors to Engage in a Commercial Sex Act or Prohibited Sexual
Conduct; Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct with a
Minor; Sex Trafficking of Children; Use of Interstate Facilities to Transport Information
about a Minor) based on the statute of conviction and the conduct described in that
conviction. For convictions under 18 U.S.C. § 1591(b)(1), the base offense level is 34.
For convictions under 18 U.S.C. § 1591(b)(2), the base offense level /16
1/9is 30.

1
d on
hive
The amendment further provides a base offense2 arc of 28 for convictions under 18
15 level
5-10 enhancement for the use of a computer at
U.S.C. §§ 2422(b) and 2423(a). The. two-level
1
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Lin,
§2G1.3(b)(3) applied to 95. percent of offenders convicted under 18 U.S.C. § 2422(b) and
Av
sentenced under i§2G1.3 in fiscal year 2006. In addition, the two-level enhancement for
n US
c ted
the offense iinvolving a sexual act or sexual contact at §2G1.3(b)(4) applied to 95 percent
of offenders convicted under 18 U.S.C. § 2423(a) and sentenced under this guideline in
fiscal year 2006 . With application of either enhancement, the mandatory minimum term
of imprisonment of 120 months will be reached in the majority of convictions under 18
U.S.C. §§ 2422(b) and 2423(a), before application of other guidelines adjustments.
Further, the amendment addresses the interaction of two specific offense characteristics
with the alternative base offense levels. First, every conviction under 18 U.S.C. § 1591
necessarily involves a commercial sex act. With the base offense levels being
determined based on the statute of conviction, the amendment clarifies that
§2G1.3(b)(4)(B), which provides a two-level enhancement if the offense involved a
commercial sex act, does not apply if the defendant is convicted under 18 U.S.C. § 1591.
Second, the amendment precludes application of the age enhancement in §2G1.3(b)(5) if
the base offense level is determined under subsection (a)(1) of §2G1.3 for a conviction
under 18 U.S.C. § 1591(b)(1). The base offense level provided by subsection (a)(1) of
§2G1.3 takes into account the age of the victim and, therefore, limitations on application
of subsections (b)(4)(B) and (b)(5) of §2G1.3 avoid unwarranted double counting.

28

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Eighth, section 503 of the Adam Walsh Act created a new section, 18 U.S.C. § 2257A,
adopting new recordkeeping obligations for the production of any book, magazine,
periodical, film, videotape, or digital image that contains a visual depiction of simulated
sexually explicit conduct. Section 2257A has a statutory maximum of one year
imprisonment for the failure to comply with the recordkeeping requirements and a
statutory maximum term of imprisonment of five years if the violation was to conceal a
substantive offense that involves either causing a minor to engage in sexually explicit
conduct for the purpose of producing a visual depiction or trafficking in material
involving the sexual exploitation of a minor. The new offense is similar to 18 U.S.C.
§ 2257, which is referenced to §2G2.5 (Recordkeeping Offenses Involving the
Production of Sexually Explicit Materials; Failure to Provide Required Marks in
Commercial Electronic Mail). Accordingly, the amendment refers the new offense to
§2G2.5.
Ninth, section 701 of the Adam Walsh Act created a new offense in 18 U.S.C.
§ 2252A(g) that prohibits engaging in child exploitation enterprises, defined as violating
18 U.S.C. §§ 1591, 1201 (if the victim is a minor), chapter 109A (involving a minor
victim), chapter 110 (except for 18 U.S.C. §§ 2257 and 2257A), or chapter 117
(involving a minor victim), as part of a series of felony violations constituting three or
more separate incidents and involving more than one victim, and committing those
/16
offenses in concert with three or more other people. The statute provides a mandatory
11/9
on
minimum term of imprisonment of 20 years.
ived

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The amendment creates a new guideline -1 §2G2.6 (Child Exploitation Enterprises) to
15at
No.
cover this new offense. TheLin,
v. guideline provides a base offense level of 35 and four
USA
specific offense in
characteristics. The Commission anticipates these offenses typically will
cited
involve conduct encompassing at least one of the specific offense characteristics,
resulting in an offense level of at least level 37. Thus, the mandatory minimum term of
imprisonment of 240 months typically is expected to be reached or exceeded, before
application of other guideline adjustments.

Tenth, section 206 of the Adam Walsh Act increased the statutory maximum term of
imprisonment from 4 years to 10 years under 18 U.S.C. § 2252B(b) for knowingly using
a misleading domain name with the intent to deceive a minor into viewing material
harmful to minors on the Internet. In addition, section 703 of the Act created a new
section, 18 U.S.C. § 2252C, that carries a statutory maximum term of imprisonment of 10
years for knowingly embedding words or digital images into the source code of a website
with the intent to deceive a person into viewing material constituting obscenity. Section
2252C(b) carries a statutory maximum term of imprisonment of 20 years for knowingly
embedding words or digital images into the source code of a website with the intent to
deceive a minor into viewing material harmful to minors on the Internet.
In response to the new offense, the amendment expands the scope of subsection (b)(2) of
§2G3.1 (Importing, Mailing, or Transporting Obscene Matter; Transferring Obscene
29

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Matter to a Minor; Misleading Domain Names) by adding to this enhancement
"embedded words or digital images into the source code on a website."
Eleventh, section 141 of the Adam Walsh Act added a new provision in 18 U.S.C. § 1001
that carries a statutory maximum term of imprisonment of 8 years for falsifying or
covering up by any scheme or making materially false or fraudulent statements or making
or using any false writings or documents that relate to offenses under chapters 109A,
109B, 110, and 117, and under section 1591 of chapter 77. The amendment adds a new
specific offense characteristic at subsection (b)(1)(A) of §2J1.2 (Obstruction of Justice)
enhancing the offense level by four levels if the defendant was convicted under 18 U.S.C.
§ 1001 and the statutory maximum term of 8 years’ imprisonment applies because the
matter relates to sex offenses. The amendment also added language to Application Note
4 stating an upward departure may be warranted under the guideline in a case involving a
particularly serious sex offense.
Twelfth, section 206 of the Adam Walsh Act added 18 U.S.C. § 1591 to the list of
offenses for which a defendant is to be sentenced to life under 18 U.S.C. § 3559(e)(2)(A).
The amendment adds 18 U.S.C. § 1591 to the list of instant offenses of convictions that
are covered sex crimes under §4B1.5.

6
Thirteenth, section 141 of the Adam Walsh Act amended 18 U.S.C. 9/13563 and 3583.
11/ §§
n
The amendment adds a new subdivision to (a)(9) of §5B1.3 and to (a)(7) of §5D1.3 to
ed o
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require a defendant to comply with the new registration requirements provided by the
52 a
-101
5modifies the language in §§5B1.3(a)(9) and
Adam Walsh Act. The amendmentoalso
1
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Lin,
5D1.3(a)(7) relating to defendants convicted of a sexual offense described in 18 U.S.C.
A v.
§ 4042(c)(4). d in allS
Not U states have implemented the new requirements, continuing to
e
c offenders pursuant to the sex offender registry in place prior to July 27, 2006,
register sexit
the date of enactment of the Adam Walsh Act. Thus, it is necessary to maintain the
language in the guidelines providing for conditions of probation and supervised release
for those offenders.
Fourteenth, section 141 of the Act amended 18 U.S.C. § 3583(k), which provides that the
authorized term of supervised release for any offense under enumerated sex offenses is
any term of years or life. In response, the amendment adds offenses under chapter 109B
and sections 1201 and 1591 of title 18 United States Code or 18 U.S.C. §§ 1201 and 1591
to the definition of sex offense under §5D1.2(b)(2) for which the length of the term of
supervised release shall be not less than the minimum term of years specified for the
offense and may be up to life.
Finally, the amendment provides a definition of "minor" in relevant guidelines that is
consistent with how this term is defined elsewhere in the guidelines. Outdated
background commentary also is deleted by this amendment.
5.

Corrections to §§2B1.1 and 2L1.1
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Amendment: Section 2B1.1(b)(13)(C) is amended by striking "(b)(12)(B)" and inserting
"(b)(13)(B)".
Section 2L1.1(b)(1) is amended by striking "(a)(2)" and inserting "(a)(3)".
Reason for Amendment: This amendment corrects typographical errors in subsection
(b)(13)(C) of §2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses
Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery;
Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer
Obligations of the United States) and subsection (b)(1) of §2L1.1 (Smuggling,
Transporting, or Harboring an Unlawful Alien).
The typographical error to §2B1.1(b)(13)(C) stems from redesignations made to §2B1.1
in 2004 when the Commission added a new subsection (b)(7) in response to the
Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003
("CAN-SPAM Act"), Pub. L. 108–187. (USSG App. C Amendment 665) (November 1,
2004).
The typographical error in §2L1.1(b)(1) stems from redesignations made to §2L1.1 in
2006 when the Commission added a new subsection (a)(1) for aliens who are
inadmissible for national security related reasons. (USSG App. C1/9/16
Amendment 692)
on 1
(November 1, 2006).
ived

arch
152
0
The Commission has determined that 15-1
this amendment should be applied retroactively
No.
Lin,
because (A) the purpose of. the amendment is to correct typographical errors; (B) the
Av
number of cases iinvolved is minimal even given the potential change in guideline ranges
n US
cited
(i.e., ensuring application of the maximum increase of 8 levels in §2B1.1(b)(13)(C) and
providing correct application of the three-level reduction in §2L1.1(b)(1)); and (C) the
amendment would not be difficult to apply retroactively. These factors, combined, meet
the standards set forth in the relevant background commentary to §1B1.10 (Reduction in
Term of Imprisonment as a Result of Amended Guideline Range).
6.

Miscellaneous Laws
Amendment: Section 2B2.3(b)(1) is amended by redesignating subdivision (F) as
subdivision (G); and by inserting "(F) at Arlington National Cemetery or a cemetery
under the control of the National Cemetery Administration;" after "residence;".
The Commentary to §2B2.3 captioned "Statutory Provisions" is amended by inserting
"38 U.S.C. § 2413;" after "1036;".
The Commentary to §2E3.1 captioned "Statutory Provisions" is amended by inserting ";
31 U.S.C. § 5363" after "1955".

31

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Appendix A (Statutory Index) is amended by inserting after the line referenced to 31
U.S.C. § 5332 the following:
"31 U.S.C. § 5363

2E3.1"; and

by inserting after the line referenced to 38 U.S.C. § 787 the following:
"38 U.S.C. § 2413

2B2.3".

Reason for Amendment: This amendment addresses two new offenses, 38 U.S.C.
§ 2413, which was created by the Respect for America’s Fallen Heroes Act, Pub. L.
109–228, and 31 U.S.C. § 5363, which was created by the Security and Accountability
for Every Port Act of 2006, Pub. L. 109–347.
The new offense at 38 U.S.C. § 2413 prohibits certain demonstrations at Arlington
National Cemetery and at cemeteries controlled by the National Cemetery Administration
and provides a statutory maximum penalty of imprisonment of not more than one year, a
fine, or both. The amendment references convictions under 38 U.S.C. § 2413 to §2B2.3
(Trespass) and expands the scope of the two-level enhancement at §2B2.3(b)(1) for
trespass offenses that occur in certain locations to include trespass at Arlington National
Cemetery or a cemetery under the control of the National Cemetery 9/16
1/ Administration. The
on 1
Commission determined that the need to protect the finaled
resting places of the nation’s
hiv
war dead and the need to discourage violent confrontations at the funerals of veterans
2 arc
1015
who are killed in action justifies expanding the scope of the enhancement to cover such
. 15o
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conduct.
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The new offense at 31 U.S.C. § 5363 prohibits acceptance of any financial instrument for
unlawful Internet gambling and provides a statutory maximum term of imprisonment of
five years. The amendment references convictions under 31 U.S.C. § 5363 to §2E3.1
(Gambling Offenses).
7.

Repromulgation of Emergency Amendment on Intellectual Property
Amendment: The amendment to §2B5.3, effective September 12, 2006 (see Appendix C
amendment 682), is repromulgated with the following changes:
Section 2B5.3(b)(3) is amended by inserting "(A)" before "offense involved" and by
inserting "; or (B) defendant was convicted under 17 U.S.C. §§ 1201 and 1204 for
trafficking in circumvention devices" after "items".
The Commentary to §2B5.3 captioned "Statutory Provisions" is amended by inserting "§"
after "17 U.S.C. §"; and by inserting ", 1201, 1204" after "506(a)".
The Commentary to §2B5.3 captioned "Application Notes" is amended in Note 1 by
32

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inserting after "Definitions.—For purposes of this guideline:" the following paragraph:
"‘Circumvention devices’ are devices used to perform the activity described in 17 U.S.C.
§§ 1201(a)(3)(A) and 1201(b)(2)(A).".
The Commentary to §2B5.3 captioned "Application Notes" is amended in Note 2(A) by
adding at the end the following:
"(vii) A case under 18 U.S.C. § 2318 or § 2320 that involves a counterfeit label, patch,
sticker, wrapper, badge, emblem, medallion, charm, box, container, can, case,
hangtag, documentation, or packaging of any type or nature (I) that has not been
affixed to, or does not enclose or accompany a good or service; and (II) which,
had it been so used, would appear to a reasonably informed purchaser to be
affixed to, enclosing or accompanying an identifiable, genuine good or service. In
such a case, the ‘infringed item’ is the identifiable, genuine good or service.
(viii) A case under 17 U.S.C. §§ 1201 and 1204 in which the defendant used a
circumvention device. In such an offense, the ‘retail value of the infringed item’
is the price the user would have paid to access lawfully the copyrighted work, and
the ‘infringed item’ is the accessed work.".

/16
11/9 in Note 3 by
The Commentary to §2B5.3 captioned "Application Notes" is n
amended
ed o
striking "shall" and inserting "may".
rchiv
a
152
5-10
.1
The Commentary to §2B5.3Lin, No "Application Notes" is amended in Note 4 by
captioned
.
A "Departure"; by inserting "or overstates" after "understates";
striking "Upward" beforev
in US
and by striking "an upward" each place it appears and inserting "a"; and by adding at the
cited
end the following:
"(C)

The method used to calculate the infringement amount is based upon a formula or
extrapolation that results in an estimated amount that may substantially exceed
the actual pecuniary harm to the copyright or trademark owner.".

Appendix A (Statutory Index) is amended by inserting after the line referenced to 17
U.S.C. § 506(a) the following new lines:
"17 U.S.C. § 1201
17 U.S.C. § 1204

2B5.3
2B5.3".

Reason for Amendment: This amendment re-promulgates as permanent the temporary,
emergency amendment (effective Sept. 12, 2006) that implemented the emergency
directive in section 1(c) of the Stop Counterfeiting in Manufactured Goods Act, Pub. L.
109–181 (2006). The directive, which required the Commission to promulgate an
amendment under emergency amendment authority by September 12, 2006, instructs the
33

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Commission to "review, and if appropriate, amend the Federal sentencing guidelines and
policy statements applicable to persons convicted of any offense under section 2318 or
2320 of title 18, United States Code."
In carrying out [the directive], the United States Sentencing Commission shall
determine whether the definition of "infringement amount" set forth in application
note 2 of section 2B5.3 of the Federal sentencing guidelines is adequate to
address situations in which the defendant has been convicted of one of the
offenses [under section 2318 or 2320 of title 18, United States Code,] and the
item in which the defendant trafficked was not an infringing item but rather was
intended to facilitate infringement, such as an anti-circumvention device, or the
item in which the defendant trafficked was infringing and also was intended to
facilitate infringement in another good or service, such as a counterfeit label,
documentation, or packaging, taking into account cases such as U.S. v. Sung, 87
F.3d 194 (7th Cir. 1996).
The amendment adds subdivision (vii) to Application Note 2(A) of §2B5.3 (Criminal
Infringement of Copyright or Trademark) to provide that the infringement amount is
based on the retail value of the infringed item in a case under 18 U.S.C. § 2318 or § 2320
that involves a counterfeit label, patch, sticker, wrapper, badge, emblem, medallion,
charm, box, container, can, case, hangtag, documentation, or packaging6 any type or
/1 of
11/9 a good or
nature (i) that has not been affixed to, or does not enclose or on
accompany
ed
service; and (II) which, had it been so used, would appear to a reasonably informed
rchiv
52 a
purchaser to be affixed to, enclosing or 5-101
accompanying an identifiable, genuine good or
1
No.
service. In such a case, the "infringed item" is the identifiable, genuine good or service.
Lin,

A v.

n US
ted i

In addition ito re-promulgating the emergency amendment, the amendment responds to
c
the directive by addressing violations of 17 U.S.C. §§ 1201 and 1204 involving
circumvention devices. The amendment addresses circumvention devices in two ways.
First, the amendment adds an application note regarding the determination of the
infringement amount in cases under 17 U.S.C. §§ 1201 and 1204 in which the defendant
used a circumvention device and thus obtained unauthorized access to a copyrighted
work. Such an offense would involve an identifiable copyrighted work. Accordingly,
consistent with the existing rules in §2B5.3, the "retail value of the infringed item" would
be used for purposes of determining the infringement amount. The amendment adds
subsection (viii) to Application Note 2(A), and explains that the "retail value of the
infringed item" is the price the user would have paid to access lawfully the copyrighted
work, and the "infringed item" is the accessed work. If the defendant violated 17 U.S.C.
§§ 1201 and 1204 by conduct that did not include use of a circumvention device,
Application Note 2(B) would apply by default. Thus, as it does in any case not otherwise
covered by Application Note 2(A), the infringement amount would be determined by
reference to the value of the infringing item, which in these cases would be the
circumvention device.

34

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Second, the amendment expands the sentencing enhancement in §2B5.3(b)(3) to include
convictions under 17 U.S.C. §§ 1201 and 1204 for trafficking in circumvention devices.
Prior to the amendment, §2B5.3(b)(3) provided a two-level enhancement and a minimum
offense level of 12 for cases involving the manufacture, importation, or uploading of
infringing items. The purpose of the enhancement in §2B5.3(b)(3) is to provide greater
punishment for defendants who put infringing items into the stream of commerce in a
manner that enables others to infringe the copyright or trademark. The Commission
determined that trafficking in circumvention devices similarly enables others to infringe a
copyright and warrants greater punishment.
The amendment also strikes language in Application Note 3 mandating an adjustment
under §3B1.3 (Abuse of Position of Trust or Use of Special Skill) in every case in which
the defendant de-encrypted or otherwise circumvented a technological security measure
to gain initial access to an infringed item. Instead, the note indicates that application of
the adjustment may be appropriate in such a case because the Commission determined
that not every case involving de-encryption or circumvention requires the level of skill
contemplated by the special skill adjustment.
Finally, the amendment modifies Application Note 4 to address downward departures.
The addition of this language recognizes that in some instances the method for
calculating the infringement amount may be based on a formula or extrapolation that
/16
11/9
n
overstates the actual pecuniary harm to the copyright or trademark owner. This language
ed o
is analogous to departure language in §2B1.1 (Larceny,v
rchi Embezzlement, and Other Forms
a
152
of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud
5-10
.1
and Deceit; Forgery; Offensesn, No
Li Involving Altered or Counterfeit Instruments Other than
.
Counterfeit Bearer USA v
Obligations of the United States) and thus promotes consistency
in
between thesed economic crime guidelines.
cite two
8.

Drugs
Amendment: Section 2D1.1(b) is amended by redesingating subdivisions (8) and (9), as
subdivisions (10) and (11), respectively; by redesignating subdivisions (5) through (7) as
subdivisions (6) through (8), respectively; by inserting after subdivision (4) the
following:
"(5)

If the defendant is convicted under 21 U.S.C. § 865, increase by 2 levels.";

and by inserting after subdivision (8), as redesignated by this amendment, the following:
"(9)

If the defendant was convicted under 21 U.S.C. § 841(g)(1)(A), increase by 2
levels.".

Section 2D1.1(b) is amended in subdivision (10), as redesignated by this amendment, by
striking "greater" and inserting "greatest"; by redesignating subdivision (C) as
35

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subdivision (D); and by striking subdivision (B) and inserting the following:
"(B)

If the defendant was convicted under 21 U.S.C. § 860a of distributing, or
possessing with intent to distribute, methamphetamine on premises where a minor
is present or resides, increase by 2 levels. If the resulting offense level is less than
level 14, increase to level 14.

(C)

If—
(i)

the defendant was convicted under 21 U.S.C. § 860a of manufacturing, or
possessing with intent to manufacture, methamphetamine on premises
where a minor is present or resides; or

(ii)

the offense involved the manufacture of amphetamine or
methamphetamine and the offense created a substantial risk of harm to (I)
human life other than a life described in subdivision (D); or (II) the
environment,

increase by 3 levels. If the resulting offense level is less than level 27, increase to
level 27.".

/16
11/9 of Ketamine;"
n
Section 2D1.1(c)(1) is amended by inserting "30,000,000 units or more
ed o
after the line referenced to "Hashish Oil".
rchiv
a
152
5-10
.1
N inserting "At least 10,000,000 but less than
Section 2D1.1(c)(2) is amended, byo
Lin
.
30,000,000 units n USA v
of Ketamine;" after the line referenced to "Hashish Oil".
i
cited

Section 2D1.1(c)(3) is amended by inserting "At least 3,000,000 but less than 10,000,000
units of Ketamine;" after the line referenced to "Hashish Oil".
Section 2D1.1(c)(4) is amended by inserting "At least 1,000,000 but less than 3,000,000
units of Ketamine;" after the line referenced to "Hashish Oil".
Section 2D1.1(c)(5) is amended by inserting "At least 700,000 but less than 1,000,000
units of Ketamine;" after the line referenced to "Hashish Oil".
Section 2D1.1(c)(6) is amended by inserting "At least 400,000 but less than 700,000
units of Ketamine;" after the line referenced to "Hashish Oil".
Section 2D1.1(c)(7) is amended by inserting "At least 100,000 but less than 400,000
units of Ketamine;" after the line referenced to "Hashish Oil".
Section 2D1.1(c)(8) is amended by inserting "At least 80,000 but less than 100,000 units
of Ketamine;" after the line referenced to "Hashish Oil".
36

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Section 2D1.1(c)(9) is amended by inserting "At least 60,000 but less than 80,000 units
of Ketamine;" after the line referenced to "Hashish Oil".
Section 2D1.1(c)(10) is amended by inserting "At least 40,000 but less than 60,000 units
of Ketamine;" after the line referenced to "Hashish Oil"; and by inserting "(except
Ketamine)" after "Schedule III substances".
Section 2D1.1(c)(11) is amended by inserting "At least 20,000 but less than 40,000 units
of Ketamine;" after the line referenced to "Hashish Oil"; and by inserting "(except
Ketamine)" after "Schedule III substances".
Section 2D1.1(c)(12) is amended by inserting "At least 10,000 but less than 20,000 units
of Ketamine;" after the line referenced to "Hashish Oil"; and by inserting "(except
Ketamine)" after "Schedule III substances".
Section 2D1.1(c)(13) is amended by inserting "At least 5,000 but less than 10,000 units
of Ketamine;" after the line referenced to "Hashish Oil"; and by inserting "(except
Ketamine)" after "Schedule III substances".
Section 2D1.1(c)(14) is amended by inserting "At least 2,500 but less than 5,000 units of
Ketamine;" after the line referenced to "Hashish Oil"; and by inserting1"(except
/ 6
11/9
Ketamine)" after "Schedule III substances".
d on

hive
2 arc
1015
Section 2D1.1(c)(15) is amended by inserting "At least 1,000 units but less than 2,500
. 15units of Ketamine; " after the ilineNo
L n, referenced to "Hashish Oil"; and by inserting "(except
A v. III substances".
Ketamine)" after n US
"Schedule
i
cited

Section 2D1.1(c)(16) is amended by inserting "At least 250 units but less than 1,000 units
of Ketamine;" after the line referenced to "Hashish Oil"; and by inserting "(except
Ketamine)" after "Schedule III substances".
Section 2D1.1(c)(17) is amended by inserting "Less than 250 units of Ketamine;" after
the line referenced to "Hashish Oil"; and by inserting "(except Ketamine)" after
"Schedule III substances".
The Commentary to §2D1.1 captioned "Statutory Provisions" is amended by inserting
"(g), 860a, 865," after "(3), (7),".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 10 in the
section captioned "Drug Equivalency Tables" in the subdivision captioned "Schedule III
Substances" by inserting in the heading "(except ketamine)" after "Substances";
by adding after the subdivision captioned "Schedule III Substances" the following new
subdivision:
37

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"Ketamine
1 unit of ketamine = 1 gm of marihuana";
and by adding after the subdivision captioned "List I Chemicals (relating to the
manufacture of amphetamine or methamphetamine)" the following new subdivision:
"Date Rape Drugs (except flunitrazipam, GHB, or ketamine)
1 ml of 1,4-butanediol =
1 ml of gamma butyrolactone =

8.8 gm marihuana
8.8 gm marihuana".

The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 19 by
striking "(b)(8)" each place it appears and inserting "(b)(10)".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 20 in
subdivision (A) by striking "(b)(8)(B) or (C)" and inserting "(b)(10)(C)(ii) or (D)"; and in
subdivision (B) by striking "(b)(8)(C)" and inserting (b)(10)(D)".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 21 by
striking "(9)" each place it appears and inserting "(11)".
9/16

/
n 11
ed o
The Commentary to §2D1.1 captioned "Application chiv is amended by redesignating
r Notes"
52 a
01respectively; and by inserting after Note 21
Notes 22 through 25 as Notes 23 through-1
26,
o. 15
the following:
n, N
v. Li
USA
in
"22. Imposition of Consecutive Sentence for 21 U.S.C. § 860a or § 865.—Sections
cited
860a and 865 of title 21, United States Code, require the imposition of a
mandatory consecutive term of imprisonment of not more than 20 years and 15
years, respectively. In order to comply with the relevant statute, the court should
determine the appropriate ‘total punishment’ and divide the sentence on the
judgment form between the sentence attributable to the underlying drug offense
and the sentence attributable to 21 U.S.C. § 860a or § 865, specifying the number
of months to be served consecutively for the conviction under 21 U.S.C. § 860a or
§ 865. For example, if the applicable adjusted guideline range is 151-188 months
and the court determines a ‘total punishment’ of 151 months is appropriate, a
sentence of 130 months for the underlying offense plus 21 months for the conduct
covered by 21 U.S.C. § 860a or § 865 would achieve the ‘total punishment’ in a
manner that satisfies the statutory requirement of a consecutive sentence.".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 23, as
redesignated by this amendment, by striking "(5)" each place it appears and inserting
"(6)".

38

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The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 25, as
redesignated by this amendment, by striking "(6)" each place it appears and inserting
"(7)".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 26, as
redesignated by this amendment, by striking "(7)" each place it appears and inserting
"(8)".
The Commentary to §2D1.1 captioned "Background" is amended in the ninth paragraph
by striking "(b)(8)" and inserting "(b)(10)"; and in the last paragraph by striking
"(b)(8)(B) and (C)" and inserting "(b)(10)(C)(ii) and (D)".
Section 2D1.11(b) is amended by adding at the end the following subdivision:
"(5)

If the defendant is convicted under 21 U.S.C. § 865, increase by 2 levels.".

The Commentary to §2D1.11 captioned "Statutory Provisions" is amended by inserting
"865," after "(f)(1),".
The Commentary to §2D1.11 captioned "Application Notes" is amended by adding at the
end the following:
9/16
"8.

/
n 11
ed o
Imposition of Consecutive Sentence for 2 aU.S.C. § 865.—Section 865 of title 21,
21 rchiv
15
0
United States Code, requires the5imposition of a mandatory consecutive term of
1 -1
No. 15 years. In order to comply with the relevant
imprisonment of not Lin, than
more
v.
A should determine the appropriate ‘total punishment’ and, on the
statute, the court
in US
judgment form, divide the sentence between the sentence attributable to the
cited
underlying drug offense and the sentence attributable to 21 U.S.C. § 865,
specifying the number of months to be served consecutively for the conviction
under 21 U.S.C. § 865. For example, if the applicable adjusted guideline range is
151-188 months and the court determines a ‘total punishment’ of 151 months is
appropriate, a sentence of 130 months for the underlying offense plus 21 months
for the conduct covered by 21 U.S.C. § 865 would achieve the ‘total punishment’
in a manner that satisfies the statutory requirement of a consecutive sentence.".

Appendix A (Statutory Index) is amended by inserting after the line referenced to 21
U.S.C. § 841(f)(1) the following:
"21 U.S.C. § 841(g) 2D1.1";
by inserting after the line referenced to 21 U.S.C. § 860 the following:
"21 U.S.C. § 860a

2D1.1";

39

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and by inserting after the line referenced to 21 U.S.C. § 864 the following:
"21 U.S.C. § 865

2D1.1, 2D1.11".

Reason for Amendment: This amendment responds to the new offenses created by the
USA PATRIOT Improvement and Reauthorization Act of 2005 (the "PATRIOT
Reauthorization Act"), Pub. L. 109–177, and the Adam Walsh Child Protection and
Safety Act of 2006 (the "Adam Walsh Act"), Pub. L. 109–248.
First, the amendment addresses section 731 of the PATRIOT Reauthorization Act, which
created a new offense at 21 U.S.C. § 865. The new offense provides a mandatory
consecutive sentence of 15 years’ imprisonment for smuggling of methamphetamine or
its precursor chemicals into the United States by a person enrolled in, or acting on behalf
of someone or some entity enrolled in, any dedicated commuter lane, alternative or
accelerated inspection system, or other facilitated entry program administered by the
federal government for use in entering the United States. The amendment refers the new
offense to both §§2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking
(Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy)
and 2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed
Chemical; Attempt or Conspiracy), and provides a new two-level enhancement in
§§2D1.1(b)(5) and 2D1.11(b)(5) if the defendant is convicted under9/16
21 U.S.C. § 865.
11/
The Commission determined that a two-level enhancement is n
appropriate because such
ed o
conduct is analogous to abusing a position of trust, rchiv receives a two-level adjustment
which
52 a
under §3B1.3 (Abuse of Position of Trust 101 of Special Skill).
5- or Use
1

o.

n, N
v. Li

Second, the amendment modifies §2D1.1 to address the new offense in 21 U.S.C.
USA
ed inSales of Date Rape Drugs) created by the Adam Walsh Act. This
§ 841(g) (Internet
cit
offense, which is punishable up to statutory maximum term of imprisonment of 20 years,
prohibits the use of the Internet to distribute a date rape drug to any person, "knowing or
with reasonable cause to believe that — (A) the drug would be used in the commission of
criminal sexual conduct; or (B) the person is not an authorized purchaser." The statute
defines "date rape drug" as "(i) gamma hydroxybutyric acid (GHB) or any controlled
substance analogue of GHB, including gamma butyrolactone (GBL) or 1,4-butanediol;
(ii) ketamine; (iii) flunitrazipam; or (iv) any substance which the Attorney General
designates . . . to be used in committing rape or sexual assault." The amendment
provides a new two-level enhancement in §2D1.1(b)(9) that is tailored to focus on the
more serious conduct covered by the new statute, specifically conviction under 21 U.S.C.
§ 841(g)(A), which covers individuals who know or have reasonable cause to believe the
drug would be used in the commission of criminal sexual conduct.
Third, the amendment eliminates the maximum base offense level of level 20 for
ketamine offenses. Ketamine is a Schedule III controlled substance. The Drug Quantity
Table at §2D1.1(c) provides a maximum offense level of 20 for most Schedule III
substances because such substances are subject to a statutory maximum term of
40

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imprisonment of 5 years. If a defendant is convicted under 21 U.S.C. § 841(g) for
distributing ketamine, however, the defendant is subject to a statutory maximum term of
imprisonment of 20 years. Accordingly, the amendment modifies the Drug Quantity
Table in order to allow for appropriate sentencing of 21 U.S.C. § 841(g) offenses
involving larger quantities of ketamine that correspond to offense levels greater than
level 20. This approach is consistent with how other drug offenses with a statutory
maximum term of imprisonment of 20 years are penalized and with how other date rape
drugs are penalized. The amendment also provides a marihuana equivalency in
Application Note 10 for ketamine (1 unit of ketamine = 1 gram of marihuana).
Fourth, the amendment adds to §2D1.1, Application Note 10, a new drug equivalency for
1,4-butanediol (BD) and gamma butyrolactone (GBL), both of which are included in the
definition of date rape drugs under 21 U.S.C. § 841(g). Neither is a controlled substance.
The drug equivalency is 1 ml of BD or GBL equals 8.8 grams of marihuana. The
Commission has received testimony that both substances are at least equipotent as GHB,
which is punished at the same marihuana equivalency.
Fifth, the amendment addresses the new offense in 21 U.S.C. § 860a (Consecutive
sentence for manufacturing or distributing, or possessing with intent to manufacture or
distribute, methamphetamine on premises where children are present or reside), created
by the PATRIOT Reauthorization Act. The new offense provides that1a term of not more
6
1/9/
1other sentence imposed,
than 20 years’ imprisonment is to be imposed, in addition d on
to any
e
for manufacturing, distributing, or possessing with rchiv
the intent to manufacture or distribute,
52 a
methamphetamine on a premises where5-101 is present or resides. The amendment
a minor
o. 1
modifies §2D1.1(b)(8)(C) toLprovide a two-level increase (with a minimum offense level
in, N
.
of 14) if the defendant A convicted under 21 U.S.C. § 860a involving the distribution or
is v
in US
possession with intent to distribute methamphetamine and a three-level increase (with a
cited
minimum offense level of 27) if the defendant is convicted under 21 U.S.C. § 860a
involving the manufacture or possession with intent to manufacture methamphetamine.
To account for the spectrum of harms created by methamphetamine offenses, and to
address the specific harms created by 21 U.S.C. § 860a, the amendment builds on the
"substantial risk enhancement." This multi-tiered enhancement was added to §2D1.1 in
2000 in response to the Methamphetamine Anti-Proliferation Act of 2000, Pub. L.
106–310, Title XXXVI. See USSG App. C (Amendments 608 and 620 (effective
Dec. 12, 2000, and Nov. 1, 2001, respectively)). Prior to this amendment, the first tier
provided a two-level increase for basic environmental harms, such as discharging
hazardous substances into the environment. The second tier provided a three-level
increase, and a minimum offense level of 27, for the substantial risk of harm to the life of
someone other than a minor or an incompetent. The final tier provided a
six-level increase and a minimum offense level of 30 for the substantial risk of harm to
the life of a minor or incompetent or the environment.
The Commission determined that distributing, or possessing with the intent to distribute,
41

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methamphetamine on a premises where a minor is present or resides presents a greater
harm than discharging a hazardous substance into the environment, but is a lesser harm
than the substantial risk of harm to adults or to the environment created by the
manufacture of methamphetamine. Therefore, the amendment adds a new tier to the
enhancement in the new subdivision (b)(10)(B) in order to account for this conduct. A
defendant convicted under 21 U.S.C. § 860a for distributing, or possessing with the intent
to distribute, methamphetamine on a premises where a minor is present or resides will
receive a two-level enhancement, with a minimum offense level of 14.
To address the overlap of conduct covered by the enhancement for the substantial risk of
harm to the life of a minor and the new offense of manufacturing, or possessing with the
intent to manufacture, methamphetamine on a premises where a minor is present or
resides, a three-level enhancement and a minimum offense level of level 27 will apply in
a case in which a minor is present, but in which the offense did not create a substantial
risk of harm to the life of a minor. In any methamphetamine manufacturing offense
which creates a substantial risk of harm to the life of a minor, a six-level enhancement
and a minimum offense level of level 30 will apply.
Sixth, the amendment updates Appendix A (Statutory Index) to include references to the
new offenses created by the PATRIOT Reauthorization and Adam Walsh Acts.
9.

/16
11/9
n
Cocaine Base Sentencing
ed o
rchiv
a
152
Amendment: Section 2D1.1(c)(1) is amended by striking "1.5 KG or more of Cocaine
5-10
o. 1
Base" and inserting "4.5 KGLor ,more of Cocaine Base".
in N
A v.
in US
Section 2D1.1(c)(2) is amended by striking "At least 500 G but less than 1.5 KG of
cited
Cocaine Base" and inserting "At least 1.5 KG but less than 4.5 KG of Cocaine Base".
Section 2D1.1(c)(3) is amended by striking "At least 150 G but less than 500 G of
Cocaine Base" and inserting "At least 500 G but less than 1.5 KG of Cocaine Base".

Section 2D1.1(c)(4) is amended by striking "At least 50 G but less than 150 G of Cocaine
Base" and inserting "At least 150 G but less than 500 G of Cocaine Base".
Section 2D1.1(c)(5) is amended by striking "At least 35 G but less than 50 G of Cocaine
Base" and inserting "At least 50 G but less than 150 G of Cocaine Base".
Section 2D1.1(c)(6) is amended by striking "At least 20 G but less than 35 G of Cocaine
Base" and inserting "At least 35 G but less than 50 G of Cocaine Base".
Section 2D1.1(c)(7) is amended by striking "At least 5 G but less than 20 G of Cocaine
Base" and inserting "At least 20 G but less than 35 G of Cocaine Base".

42

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Section 2D1.1(c)(8) is amended by striking "At least 4 G but less than 5 G of Cocaine
Base" and inserting "At least 5 G but less than 20 G of Cocaine Base".
Section 2D1.1(c)(9) is amended by striking "At least 3 G but less than 4 G of Cocaine
Base" and inserting "At least 4 G but less than 5 G of Cocaine Base".
Section 2D1.1(c)(10) is amended by striking "At least 2 G but less than 3 G of Cocaine
Base" and inserting "At least 3 G but less than 4 G of Cocaine Base".
Section 2D1.1(c)(11) is amended by striking "At least 1 G but less than 2 G of Cocaine
Base" and inserting "At least 2 G but less than 3 G of Cocaine Base".
Section 2D1.1(c)(12) is amended by striking "At least 500 MG but less than 1 G of
Cocaine Base" and inserting "At least 1 G but less than 2 G of Cocaine Base".
Section 2D1.1(c)(13) is amended by striking "At least 250 MG but less than 500 MG of
Cocaine Base" and inserting "At least 500 MG but less than 1 G of Cocaine Base".
Section 2D1.1(c)(14) is amended by striking "Less than 250 MG of Cocaine Base" and
inserting "Less than 500 MG of Cocaine Base".

/16
11/9 in Note 10 in the
The Commentary to §2D1.1 captioned "Application Notes" is n
amended
ed o
first paragraph by inserting before "The Commission hiv used the sentences" the
rc has
a
152
following :
5-10
1
No.
Lin,
A v.
"Use of Drug Equivalency Tables.—
in US
cited
(A)

Controlled Substances Not Referenced in Drug Quantity Table.—";

by striking "(A)" before "Use" and inserting "(i)"; by striking "(B)" before "Find" and
inserting "(ii)"; and by striking "(C)" before "Use" and inserting "(iii)";
in the second paragraph by striking "The Drug Equivalency Tables also provide" and
inserting the following:
"(B)

Combining Differing Controlled Substances (Except Cocaine Base).—The Drug
Equivalency Tables also provide";

and by adding at the end the following:
"To determine a single offense level in a case involving cocaine base and other controlled
substances, see subdivision (D) of this note.".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 10 in the
43

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subdivision captioned "Examples:" by striking "Examples:" and inserting the following:
"(C)

Examples for Combining Differing Controlled Substances (Except Cocaine
Base).—";

and by redesignating examples "a." through "d." as examples (i) through (iv),
respectively.
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 10 by
inserting after example (iv), as redesignated by this amendment, the following:
"(D)

Determining Base Offense Level in Offenses Involving Cocaine Base and Other
Controlled Substances.—
(i)

In General.—If the offense involves cocaine base (‘crack’) and one or
more other controlled substance, determine the base offense level as
follows:
(I)

Determine the combined base offense level for the other controlled
substance or controlled substances as provided in subdivision (B)
of this note.
9/16

/
n 11
ed o
(II)
Use the combined base offensehiv determined under subdivision
arc level
0152 appropriate marihuana equivalency
(B) of this note 15-1
to obtain the
o.
for the icocaine base involved in the offense using the following
n, N
L
A v.
UStable:
in
cited
Base Offense Level
38
36
34
32
30
28
26
24
22
20
18
16
14
12

Marihuana Equivalency
6.7 kg of marihuana
6.7 kg of marihuana
6 kg of marihuana
6.7 kg of marihuana
14 kg of marihuana
11.4 kg of marihuana
5 kg of marihuana
16 kg of marihuana
15 kg of marihuana
13.3 kg of marihuana
10 kg of marihuana
10 kg of marihuana
10 kg of marihuana
10 kg of marihuana.

44

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(III)

(IV)

(ii)

Using the marihuana equivalency obtained from the table in
subdivision (II), convert the quantity of cocaine base involved in
the offense to its equivalent quantity of marihuana.
Add the quantity of marihuana determined under subdivisions (i)
and (III), and look up the total in the Drug Quantity Table to obtain
the combined base offense level for all the controlled substances
involved in the offense.

Example.—The case involves 1.5 kg of cocaine, 10 kg of marihuana, and
20 g of cocaine base. Pursuant to subdivision (B), the equivalent quantity
of marihuana for the cocaine and the marihuana is 310 kg. (The cocaine
converts to an equivalent of 300 kg of marihuana (1.5 kg x 200 g = 300
kg), which when added to the quantity of marihuana involved in the
offense, results in an equivalent quantity of 310 kg of marihuana.) This
corresponds to a base offense level 26. Pursuant to the table in
subdivision (II), the base offense level of 26 results in a marihuana
equivalency of 5 kg for the cocaine base. Using this marihuana
equivalency for the cocaine base results in a marihuana equivalency of
100 kg (20 g x 5 kg = 100 kg). Adding the quantities of marihuana of all
three controlled substances results in a combined quantity of 410 kg of
/16
11/9
marihuana, which corresponds to a combinedon offense level of 28 in
base
ed
the Drug Quantity Table.".
rchiv
2a

1015
. 15No

The Commentary to §2D1.1Lin,
captioned "Application Notes" is amended in Note 10 by
A v.
striking "DRUG n US
EQUIVALENCY TABLES" and inserting the following:

cited

"(E)

i

Drug Equivalency Tables.—";

and in the subdivision captioned "Cocaine and Other Schedule I and II Stimulants (and
their immediate precursors)" by striking "1 gm of Cocaine Base (‘Crack’) = 20 kg of
marihuana".
Reason for Amendment: The Commission identified as a policy priority for the
amendment cycle ending May 1, 2007, "continuation of its work with the congressional,
executive, and judicial branches of the government and other interested parties on
cocaine sentencing policy," including reevaluating the Commission’s 2002 report to
Congress, Cocaine and Federal Sentencing Policy. As a result of the Anti-Drug Abuse
Act of 1986, Pub. L. 99–570, 21 U.S.C. § 841(b)(1) requires a five-year mandatory
minimum penalty for a first-time trafficking offense involving 5 grams or more of crack
cocaine, or 500 grams of powder cocaine, and a ten-year mandatory minimum penalty for
a first-time trafficking offense involving 50 grams or more of crack cocaine, or 5,000
grams or more of powder cocaine. Because 100 times more powder cocaine than crack
cocaine is required to trigger the same mandatory minimum penalty, this penalty
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structure is commonly referred to as the "100-to-1 drug quantity ratio."
To assist the Commission in its consideration of Federal cocaine sentencing policy, the
Commission received statements and heard expert testimony from the Executive Branch,
the Federal judiciary, defense practitioners, state and local law enforcement
representatives, medical and treatment experts, academicians, social scientists, and
interested community representatives at hearings on November 14, 2006, and March 20,
2007. The Commission also received substantial written public comment on Federal
cocaine sentencing policy throughout the amendment cycle.
During the amendment cycle, the Commission updated its analysis of key sentencing data
about cocaine offenses and offenders; reviewed recent scientific literature regarding
cocaine use, effects, dependency, prenatal effects, and prevalence; researched trends in
cocaine trafficking patterns, price, and use; surveyed the state laws regarding cocaine
penalties; and monitored case law developments.
Current data and information continue to support the Commission’s consistently held
position that the 100-to-1 drug quantity ratio significantly undermines various
congressional objectives set forth in the Sentencing Reform Act and elsewhere. These
findings will be more thoroughly explained in a forthcoming report that will present to
Congress, on or before May 15, 2007, a number of recommendations /for modifications to
16
11/9
the statutory penalties for crack cocaine offenses. It is the d on
Commission’s firm desire that
e
this report will facilitate prompt congressional action hiv
rc addressing the 100-to-1 drug
a
152
quantity ratio.
5-10
1

o.

n, N
v. Li

The Commission’s USA
recommendation and strong desire for prompt legislative action
in
notwithstanding, the problems associated with the 100-to-1 drug quantity ratio are so
cited
urgent and compelling that this amendment is promulgated as an interim measure to
alleviate some of those problems. The Commission has concluded that the manner in
which the Drug Quantity Table in §2D1.1 (Unlawful Manufacturing, Importing,
Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses);
Attempt or Conspiracy)) was constructed to incorporate the statutory mandatory
minimum penalties for crack cocaine offenses is an area in which the Federal sentencing
guidelines contribute to the problems associated with the 100-to-1 drug quantity ratio.
When Congress passed the 1986 Act, the Commission responded by generally
incorporating the statutory mandatory minimum sentences into the guidelines and
extrapolating upward and downward to set guideline sentencing ranges for all drug
quantities. The drug quantity thresholds in the Drug Quantity Table are set so as to
provide base offense levels corresponding to guideline ranges that are above the statutory
mandatory minimum penalties. Accordingly, offenses involving 5 grams or more of
crack cocaine were assigned a base offense level (level 26) corresponding to a sentencing
guideline range of 63 to 78 months for a defendant in Criminal History Category I (a
guideline range that exceeds the five-year statutory minimum for such offenses by at least
46

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three months). Similarly, offenses involving 50 grams or more of crack cocaine were
assigned a base offense level (level 32) corresponding to a sentencing guideline range of
121 to 151 months for a defendant in Criminal History Category I (a guideline range that
exceeds the ten-year statutory minimum for such offenses by at least one month). Crack
cocaine offenses for quantities above and below the mandatory minimum threshold
quantities were set accordingly using the 100-to-1 drug quantity ratio.
This amendment modifies the drug quantity thresholds in the Drug Quantity Table so as
to assign, for crack cocaine offenses, base offense levels corresponding to guideline
ranges that include the statutory mandatory minimum penalties. Accordingly, pursuant to
the amendment, 5 grams of cocaine base are assigned a base offense level of 24 (51 to 63
months at Criminal History Category I, which includes the five-year (60 month) statutory
minimum for such offenses), and 50 grams of cocaine base are assigned a base offense
level of 30 (97 to 121 months at Criminal History Category I, which includes the ten-year
(120 month) statutory minimum for such offenses). Crack cocaine offenses for quantities
above and below the mandatory minimum threshold quantities similarly are adjusted
downward by two levels. The amendment also includes a mechanism to determine a
combined base offense level in an offense involving crack cocaine and other controlled
substances.
The Commission’s prison impact model predicts that, assuming no change in the existing
6
1/9/1
1Drug Quantity Table
statutory mandatory minimum penalties, this modification d on
to the
e
will affect 69.7 percent of crack cocaine offenses archiv under §2D1.1 and will result
sentenced
152
in a reduction in the estimated average sentence of all crack cocaine offenses from 121
5-10
1
N .
months to 106 months, based ion anoanalysis of cases sentenced in fiscal year 2006 under
L n,
A v.
§2D1.1 involving crack cocaine.
n US

cited

i

Having concluded once again that the 100-to-1 drug quantity ratio should be modified,
the Commission recognizes that establishing federal cocaine sentencing policy ultimately
is Congress’s prerogative. Accordingly, the Commission tailored the amendment to fit
within the existing statutory penalty scheme by assigning base offense levels that provide
guideline ranges that include the statutory mandatory minimum penalties for crack
cocaine offenses. The Commission, however, views the amendment only as an interim
solution to some of the problems associated with the 100-to-1 drug quantity ratio. It is
neither a permanent nor a complete solution to those problems. Any comprehensive
solution to the 100-to-1 drug quantity ratio requires appropriate legislative action by
Congress.
10.

Technical Amendments
Amendment: Section 2D1.11(a) is amended by striking "(e)" after "under subsection"
and inserting "(d)".
The Commentary to §2K2.1 captioned "Application Notes" is amended in Note 14 in
47

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subdivision (B) by striking "(b)(1)" and inserting "(b)(6)".
Appendix A (Statutory Index) is amended by inserting after the line referenced to 18
U.S.C. § 930 the following:
"18 U.S.C. § 931

2K2.6";

and by striking the following:
"18 U.S.C. § 3147

2J1.7".

Chapter Three, Part D is amended in the Introductory Commentary in the first paragraph
by inserting after the first sentence the following:
"These rules apply to multiple counts of conviction (A) contained in the same indictment
or information; or (B) contained in different indictments or informations for which
sentences are to be imposed at the same time or in a consolidated proceeding.".
The Commentary to §3D1.1 captioned "Application Note" is amended by striking "Note"
and inserting "Notes"; by redesignating Note 1 as Note 2; and by inserting the following
as new Note 1:
9/16
"1.

/
n 11
ed o
iv
In General.—For purposes of sentencing multiple counts of conviction, counts
arch
152 or information; or (B) contained in
can be (A) contained in the same -10
indictment
. 15
different indictmentsLin, No
or informations for which sentences are to be imposed at the
.
same time or inA v
a consolidated proceeding.".
in US
cited

Reason for Amendment: This amendment makes various technical and conforming
changes to the guidelines.
First, the amendment corrects typographical errors in subsection (a) of §2D1.11
(Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt
or Conspiracy) and Application Note 14 of §2K2.1 (Unlawful Receipt, Possession, or
Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms
or Ammunition).
Second, the amendment addresses application of the grouping rules when a defendant is
sentenced on multiple counts contained in different indictments as, for example, when a
case is transferred to another district for purposes of sentencing, pursuant to Fed. R.
Crim. P. 20(a).
The amendment adopts the reasoning of recent case law and clarifies that the grouping
rules apply not only to multiple counts in the same indictment, but also to multiple counts
contained in different indictments when a defendant is sentenced on the indictments
48

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simultaneously. The amendment provides clarifying language in the Introductory
Commentary of Chapter Three, Part D, as well as in §3D1.1 (Procedure for Determining
Offense Level on Multiple Counts). The language is the same as that provided in §5G1.2
(Sentencing on Multiple Counts of Conviction).
11.

Repromulgation of Emergency Amendment on Pretexting
Amendment: The amendments to §2H3.1 and Appendix A, effective May 1, 2007 (see
72 FR 20576 (April 25, 2007)), are repromulgated with the following changes:
Section 2H3.1 is amended in the heading by striking "Tax Return Information" and
inserting "Certain Private or Protected Information".
Section 2H3.1(a) is amended by striking subdivision (2) and inserting the following:
"(2)

6, if the offense of conviction has a statutory maximum term of imprisonment of
one year or less but more than six months.".

Section 2H3.1(b)(1) is amended by inserting "(A) the defendant is convicted under 18
U.S.C. § 1039(d) or (e); or (B)" after "If".

/16
11/9
The Commentary to §2H3.1 captioned "Statutory Provisions" n amended by inserting "8
is
ed o
U.S.C. § 1375a(d)(3)(C), (d)(5)(B);" before "182 archiv by inserting "§ 1039, 1905,"
U.S.C.";
5
after "18 U.S.C. §"; and by inserting "42 -101 §§ 16962, 16984" after "7216;".
U.S.C.
. 15
o
n, N
v. Li
The Commentary to §2H3.1 captioned "Application Notes" is amended by striking Note
USA
ed in Note 2 as Note 1; and by adding at the end the following:
1; by redesignating
cit
"2.

Imposition of Sentence for 18 U.S.C. § 1039(d) and (e).—Subsections 1039(d)
and (e) of title 18, United States Code, require a term of imprisonment of not
more than 5 years to be imposed in addition to any sentence imposed for a
conviction under 18 U.S.C. § 1039(a), (b), or (c). In order to comply with the
statute, the court should determine the appropriate ‘total punishment’ and divide
the sentence on the judgment form between the sentence attributable to the
conviction under 18 U.S.C. § 1039(d) or (e) and the sentence attributable to the
conviction under 18 U.S.C. § 1039(a), (b), or (c), specifying the number of
months to be served for the conviction under 18 U.S.C. § 1039(d) or (e). For
example, if the applicable adjusted guideline range is 15-21 months and the court
determines a ‘total punishment’ of 21 months is appropriate, a sentence of 9
months for conduct under 18 U.S.C. § 1039(a) plus 12 months for 18 U.S.C.
§ 1039(d) conduct would achieve the ‘total punishment’ in a manner that satisfies
the statutory requirement.

3.

Upward Departure.—There may be cases in which the offense level determined
49

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under this guideline substantially understates the seriousness of the offense. In
such a case, an upward departure may be warranted. The following are examples
of cases in which an upward departure may be warranted:
(i)

The offense involved confidential phone records information or tax return
information of a substantial number of individuals.

(ii)

The offense caused or risked substantial non-monetary harm (e.g. physical
harm, psychological harm, or severe emotional trauma, or resulted in a
substantial invasion of privacy interest) to individuals whose private or
protected information was obtained.".

The Commentary to §2H3.1 is amended by striking "Background" through the end of
"and 7216.".
Appendix A (Statutory Index) is amended by inserting after the line referenced to 8
U.S.C. § 1328 the following:
"8 U.S.C. § 1375a(d)(3)(C), (d)(5)(B)

2H3.1";

by inserting after the line referenced to 18 U.S.C. § 1038 the following:6
9/1

/
n 11
ed o
iv
"18 U.S.C. § 1039
2H3.1"; and
arch
152
0
15-1
No.to 42 U.S.C. § 14905 the following:
by inserting after the line referenced
Lin,
A v.
in US
"42 U.S.C. i§ed
c t 16962 2H3.1
42 U.S.C. § 16984

2H3.1".

Reason for Amendment: This amendment addresses several offenses that pertain to
unauthorized access or disclosure of private or protected information. Specifically, this
amendment pertains to (A) the re-promulgation of the emergency amendment that
implemented the directive in section 4 of the Telephone Records and Privacy Protection
Act of 2006, Pub. L. 109–476 (the "Telephone Records Act"); (B) offenses involving
improper use of a child’s fingerprints under 42 U.S.C. §§ 16984 and 16962; and (C)
various other offenses related to private or protected information.
This amendment re-promulgates as permanent the temporary emergency amendment
(effective May 1, 2007) that implemented the directive in section 4 of the Telephone
Records Act. The amendment refers the new offense at 18 U.S.C. § 1039 to §2H3.1
(Interception of Communications; Eavesdropping; Disclosure of Tax Information). The
Commission concluded that disclosure of telephone records is similar to the types of
privacy offenses referenced to this guideline. In addition, this guideline includes a cross
reference, instructing that if the purpose of the 18 U.S.C. § 1039 offense was to facilitate
50

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another offense, the guideline applicable to an attempt to commit the other offense should
be applied, if the resulting offense level is higher. The Commission concluded that
operation of the cross reference would capture the harms associated with the aggravated
forms of this offense referenced at 18 U.S.C. § 1039(d) or (e). The amendment also
expands the scope of the existing three-level enhancement in the guideline to include
cases in which the defendant is convicted under 18 U.S.C. § 1039(d) or (e). Thus, in a
case in which the cross reference does not apply, application of the enhancement will
capture the increased harms associated with the aggravated offenses. Finally, the
amendment expands the upward departure note to include tax return information of a
substantial number of individuals.
Section 153 of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L.
109–248 (the "Adam Walsh Act"), added a new offense at 42 U.S.C. § 16962, which
provides a statutory maximum term of imprisonment of 10 years for the improper release
of information obtained in fingerprint-based checks for the background check of either
foster or adoptive parents or of individuals employed by, or considering employment
with, a private or public educational agency. Additionally, section 627 of the Adam
Walsh Act added a new Class A Misdemeanor offense at 42 U.S.C. § 16984 prohibiting
the use of a child’s fingerprints for any purpose other than providing those fingerprints to
the child’s parent or legal guardian. This amendment references both offenses to §2H3.1,
providing a base offense level of 9 under §2H3.1(a)(1) if the defendant 6 convicted of
/1 was
11/9
violating 42 U.S.C. § 16962, and a base offense level of 6 d on defendant was convicted
if the
e
of violating 42 U.S.C. § 16984.
rchiv
2a

1015
. 15No

Finally, this amendment implements the Violence Against Women and Department of
n,
v. Li
AAct of 2005, Pub. L. 109–162 ("VAWA"). VAWA included the
Justice Reauthorization
in US
Internationaled
cit Marriage Broker Regulation Act of 2005 ("IMBRA"), which requires
marriage brokers to keep private information gathered in the course of their business
confidential. New offenses at 8 U.S.C. §§ 1375a(d)(3)(C) and 1375a(d)(5)(B) involve
invasions of protected privacy interests and, as such, are referenced to §2H3.1.
The Commission concluded that referencing these new offenses to §2H3.1 was
appropriate because each of the new offenses is similar to the types of privacy offenses
referenced to this guideline.
12.

Criminal History
Amendment: Section 4A1.1(f) is amended by striking "was considered related to another
sentence resulting from a conviction of a crime of violence" and inserting "was counted
as a single sentence"; and by striking the last sentence.
The Commentary to §4A1.1 captioned "Application Notes" is amended in Note 6 by
striking the first paragraph and inserting the following:

51

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"§4A1.1(f). In a case in which the defendant received two or more prior sentences as a
result of convictions for crimes of violence that are counted as a single sentence (see
§4A1.2(a)(2)), one point is added under §4A1.1(f) for each such sentence that did not
result in any additional points under §4A1.1(a), (b), or (c). A total of up to 3 points may
be added under §4A1.1(f). For purposes of this guideline, ‘crime of violence’ has the
meaning given that term in §4B1.2(a). See §4A1.2(p).";
and in the second paragraph by striking "that were consolidated for sentencing and
therefore are treated as related." and inserting ". The sentences for these offenses were
imposed on the same day and are counted as a single prior sentence. See §4A1.2(a)(2).".
Section 4A1.2(a) is amended in the heading by striking "Defined"; and by striking
subdivision (2) and inserting the following:
"(2)

If the defendant has multiple prior sentences, determine whether those sentences
are counted separately or as a single sentence. Prior sentences always are counted
separately if the sentences were imposed for offenses that were separated by an
intervening arrest (i.e., the defendant is arrested for the first offense prior to
committing the second offense). If there is no intervening arrest, prior sentences
are counted separately unless (A) the sentences resulted from offenses contained
in the same charging instrument; or (B) the sentences were imposed on the same
6
1/9/1
1single sentence. See
day. Count any prior sentence covered by (A) or (B)on a
as
ed
also §4A1.1(f).
rchiv
2a

1015
. 15No

For purposes of applying §4A1.1(a), (b), and (c), if prior sentences are counted as
Lin,
A v. the longest sentence of imprisonment if concurrent
a single sentence, use
in US
sentences were imposed. If consecutive sentences were imposed, use the
cited
aggregate sentence of imprisonment.".
Section 4A1.2(c)(1) is amended by striking "at least one" and inserting "more than one";
by striking "Fish and game violations"; and by striking "Local ordinance violations
(excluding local ordinance violations that are also criminal offenses under state law)".
Section 4A1.2(c)(2) is amended by inserting "Fish and game violations" as a new line
before the line referenced to "Hitchhiking"; and by inserting "Local ordinance violations
(except those violations that are also violations under state criminal law)" as a new line
before the line referenced to "Loitering".
The Commentary to §4A1.2 captioned "Application Notes" is amended by striking Note
3 and inserting the following:
"3.

Upward Departure Provision.—Counting multiple prior sentences as a single
sentence may result in a criminal history score that underrepresents the
seriousness of the defendant’s criminal history and the danger that the defendant
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presents to the public. In such a case, an upward departure may be warranted.
For example, if a defendant was convicted of a number of serious non-violent
offenses committed on different occasions, and the resulting sentences were
counted as a single sentence because either the sentences resulted from offenses
contained in the same charging instrument or the defendant was sentenced for
these offenses on the same day, the assignment of a single set of points may not
adequately reflect the seriousness of the defendant’s criminal history or the
frequency with which the defendant has committed crimes.".
The Commentary to §4A1.2 captioned "Application Notes" is amended in Note 12 by
striking "Local Ordinance Violations." and inserting the following:
"Application of Subsection (c).—
(A)

In General.—In determining whether an unlisted offense is similar to an offense
listed in subdivision (c)(1) or (c)(2), the court should use a common sense
approach that includes consideration of relevant factors such as (i) a comparison
of punishments imposed for the listed and unlisted offenses; (ii) the perceived
seriousness of the offense as indicated by the level of punishment; (iii) the
elements of the offense; (iv) the level of culpability involved; and (v) the degree
to which the commission of the offense indicates a likelihood /of6
1 recurring
11/9
criminal conduct.
d on

hive
2 arc
5
(B)
Local Ordinance Violations.—"; -101
. 15
No
Lin,
v.after "violations in" and inserting "§4A1.2(c)(2)"; and by
A
by striking "§4A1.2(c)(1)"
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edend the following:
inserting at ithe
ct
"(C)

Insufficient Funds Check.—‘Insufficient funds check,’ as used in §4A1.2(c)(1),
does not include any conviction establishing that the defendant used a false name
or non-existent account.".

The Commentary to §4A1.2 captioned "Application Notes" is amended by striking Note
13.
The Commentary to §4B1.2 captioned "Application Notes" is amended in Note 1 in the
paragraph that begins "A violation of 18 U.S.C. § 924(c)" by inserting "sentences for the"
before "two prior"; and by striking "treated as related cases" and inserting "counted as a
single sentence".
The Commentary to §2L1.2 captioned "Application Notes" is amended in Note 4(B) by
striking "considered ‘related cases’, as that term is defined in Application Note 3" and
inserting "counted as a single sentence pursuant to subsection (a)(2)".

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Reason for Amendment: This amendment addresses two areas of the Chapter Four
criminal history rules: the counting of multiple prior sentences and the use of
misdemeanor and petty offenses in determining a defendant’s criminal history score. In
November 2006 the Commission hosted round-table discussions to receive input on
criminal history issues from federal judges, prosecutors, defense attorneys, probation
officers, and members of academia. In addition, the Commission gathered information
through its training programs, the public comment process, and comments received
during a public hearing of the Commission in March 2007. This amendment addresses
two issues that were raised during this process.
First, the amendment addresses the counting of multiple prior sentences. The
Commission has heard from a number of practitioners throughout the criminal justice
system that the "related cases" rules at subsection (a)(2) of §4A1.2 (Definitions and
Instructions for Computing Criminal History) and Application Note 3 of §4A1.2 are too
complex and lead to confusion. Moreover, a significant amount of litigation has arisen
concerning application of the rules, and circuit conflicts have developed over the
meaning of terms in the commentary that define when prior sentences may be considered
"related." For example, the commentary provides that prior sentences for offenses not
separated by an intervening arrest are to be considered related if the sentences resulted
from offenses that were consolidated for sentencing. In determining whether offenses
were consolidated for sentencing, some courts have required that the /16 reflect a
record
11/9United States v.
n
formal order of consolidation, while others have not. Compare, e.g.,
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Correa, 114 F.3d 314, 317 (1st Cir. 1997) (order required) with United States v. Huskey,
rchiv
52 a
137 F.3d 283, 288 (5th Cir. 1998) (order -101
5 not required).
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The amendment simplifies the rules for counting multiple prior sentences and promotes
USA
ed in application of the guideline. The amendment eliminates use of the
consistencyitin the
c
term "related cases" at §4A1.2(a)(2) and instead uses the terms "single" and "separate"
sentences. This change in terminology was made because some have misunderstood the
term "related cases" to suggest a relationship between the prior sentences and the instant
offense. Prior sentences for conduct that is part of the instant offense are separately
addressed at §4A1.2(a)(1) and Application Note 1 of that guideline.
Under the amendment, the initial inquiry will be whether the prior sentences were for
offenses that were separated by an intervening arrest (i.e., the defendant was arrested for
the first offense prior to committing the second offense). If so, they are to be considered
separate sentences, counted separately, and no further inquiry is required.
If the prior sentences were for offenses that were not separated by an intervening arrest,
the sentences are to be counted as separate sentences unless the sentences (1) were for
offenses that were named in the same charging document, or (2) were imposed on the
same day. In either of these situations they are treated as a single sentence.
The amendment further provides that in the case of a single sentence that comprises
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multiple concurrent sentences of varying lengths, the longest sentence is to be used for
purposes of applying subsection (a), (b) and (c) of §4A1.1 (Criminal History Category).
In the case of a single sentence that comprises multiple sentences that include one or
more consecutive sentences, the aggregate sentence is to be used for purposes of applying
§4A1.1(a), (b), and (c).
Instances may arise in which a single sentence comprises multiple prior sentences for
crimes of violence. In such a case, §4A1.1(f) will apply. Consistent with §4A1.1(f) and
Application Note 6 to §4A1.1, additional criminal history points will be awarded for
certain sentences that otherwise do not receive points because they have been determined
to be part of a single sentence. For example, if a defendant’s criminal history contains
two robbery convictions for which the defendant received concurrent five-year sentences
of imprisonment and the sentences are considered a single sentence because the offenses
were not separated by an intervening arrest and were imposed on the same day, a total of
3 points would be added under §4A1.1(a). An additional point would be added under
§4A1.1(f) because the second sentence was for a crime of violence that did not receive
any points under §4A1.1(a), (b), or (c).
The amendment also provides for an upward departure at Application Note 12(A) to
§4A1.1 if counting multiple prior sentences as a single sentence would underrepresent
the seriousness of the defendant’s criminal history and the danger that16 defendant
/ the
11/9
presents to the public.
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Second, the amendment addresses the15-101
use of misdemeanor and petty offenses in
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determining a defendant’s criminalo
. Lin history score. Sections 4A1.2(c)(1) and (2) govern
vmisdemeanor and petty offenses are counted. Section
whether and when certain
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ed in
4A1.2(c)(1)tlists offenses that are counted only when the prior sentence was a term of
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probation of at least one year or a term of imprisonment of at least 30 days. Section
4A1.2(c)(2) lists offenses that are never counted toward the defendant’s criminal history
score. The amendment responds to concerns that (1) some misdemeanor and petty
offenses counted under the guidelines involve conduct that is not serious enough to
warrant increased punishment upon sentencing for a subsequent offense; (2) the presence
of a prior misdemeanor or petty offense in a rare case can affect the sentence in the
instant offense in a way that is greatly disproportionate to the seriousness of the prior
offense (such as when such a prior offense alone disqualifies a defendant from safety
valve eligibility); and (3) jurisdictional differences in defining misdemeanor and petty
offenses can result in inconsistent application of criminal history points for substantially
similar conduct.
To evaluate these concerns, the Commission conducted a study of misdemeanor and petty
offenses and the criminal history rules that govern them, particularly §4A1.2(c)(1). The
Commission examined a sample of 11,300 offenders sentenced in fiscal year 2006 to
determine the type of misdemeanor and petty offenses counted in the criminal history
score, the frequency with which they occurred, and the particular guideline provisions
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that caused them to be counted. In addition, the Commission examined a sample of
offenders sentenced in 1992 who were subsequently released from imprisonment and
monitored for two years for evidence of recidivism. (See U.S. Sentencing Commission
Measuring Recidivism: The Criminal History Computation of the Federal Sentencing
Guidelines (2004) for additional information concerning this sample.) Furthermore, the
Commission examined how state guidelines treat minor offenses.
The results of these analyses led the Commission to make three modifications to
§4A1.2(c)(1) and (2). First, the amendment moves from §4A1.2(c)(1) to §4A1.2(c)(2)
two classes of offenses: fish and game violations and local ordinance violations (except
those violations that are also violations under state criminal law). Second, the
amendment changes the probation criterion at §4A1.2(c)(1) from a term of "at least" one
year to a term of "more than" one year. Finally, the amendment resolves a circuit conflict
over the manner in which a non-listed offense is determined to be "similar to" an offense
listed at §4A1.2(c)(1) and (2).
Fish and game violations were moved from §4A1.2(c)(1) to §4A1.2(c)(2) so that they
will not be counted in a defendant’s criminal history score. Fish and game violations
generally do not involve criminal conduct that is more serious than the offense of
conviction, and the relatively minor sentences received by fish and game offenders in the
fiscal year 2006 study suggest that these offenses are not considered9to be among the
/16
11/
more serious offenses listed at §4A1.2(c)(1).
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In addition, local ordinance violations15-101 those that are also violations of state law)
(except
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were moved from §4A1.2(c)(1) ,to §4A1.2(c)(2) so that they also will not be counted in a
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defendant’s criminal SA
history score. Similar to fish and game violations, local ordinance
in U
violations cited
generally do not represent conduct criminalized under state law. Moreover,

these offenses also frequently received minor sentences. The exception in this
amendment for violations that are also criminal violations under state law will ensure that
only the more serious prior criminal conduct will continue to be included in the criminal
history score.
Section 4A1.2(c)(1)(A) is amended to provide that the offenses listed at §4A1.2(c)(1)
will be counted "only if (A) the sentence was a term of probation of more than one year
or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to
the instant offense" (emphasis added). The Commission received comment that some
sentences of a one-year term of probation constitute a default punishment summarily
imposed by the state sentencing authority, particularly in those instances in which the
probation imposed lacked a supervision component or was imposed in lieu of a fine or to
enable the payment of a fine. The Commission determined that prior misdemeanor and
petty offenses that receive such a relatively minor default sentence should not be counted
for criminal history purposes.
The amendment resolves a circuit conflict over the manner in which a court should
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determine whether a non-listed offense is "similar to" an offense listed at §4A1.2(c)(1) or
(2). Some courts have adopted a "common sense approach," first articulated by the Fifth
Circuit in United States v. Hardeman, 933 F.2d 278, 281 (5th Cir. 1991). This common
sense approach includes consideration of all relevant factors of similarity such as
"punishments imposed for the listed and unlisted offenses, the perceived seriousness of
the offense as indicated by the level of punishment, the elements of the offense, the level
of culpability involved, and the degree to which the commission of the offense indicates a
likelihood of recurring criminal conduct." Id. See also United States v. Martinez-Santos,
184 F.3d 196, 205-06 (2d Cir. 1999) (adopting Hardeman approach); United States v.
Booker, 71 F.3d 685, 689 (7th Cir. 1995) (same). Other courts have adopted a strict
"elements" test, which involves solely a comparison between the elements of the two
offenses to determine whether or not the offenses are similar. See United States v.
Elmore, 108 F.3d 23, 27 (3d Cir. 1997); United States v. Tigney, 367 F.3d 200, 201-02
(4th Cir. 2004); United States v. Borer, 412 F.3d 987, 992 (8th Cir. 2005). This
amendment, at Application Note 12(A), adopts the Hardeman "common sense approach"
as a means of ensuring that courts are guided by a number of relevant factors that may
help them determine whether a non-listed offense is similar to a listed one.

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