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Monday,

May 21, 2007

Part II

United States
Sentencing
Commission
Sentencing Guidelines for the United
States Courts; Notices
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28558 Federal Register / Vol. 72, No. 97 / Monday, May 21, 2007 / Notices

UNITED STATES SENTENCING Authority: 28 U.S.C. 994(a), (o), and (p); 2. Transportation
COMMISSION USSC Rule of Practice and Procedure 4.1.
Amendment: The Commentary to
Ricardo H. Hinojosa, § 2A1.1 captioned ‘‘Statutory
Sentencing Guidelines for United Provisions’’ is amended by inserting
Chair.
States Courts ‘‘1992(a)(7),’’ after ‘‘1841(a)(2)(C),’’; and
1. Compassionate Release by inserting ‘‘2199, 2291,’’ after
AGENCY:United States Sentencing ‘‘2118(c)(2),’’.
Commission. Amendment: The Commentary to
§ 1B1.13 captioned ‘‘Application Notes’’ The Commentary to § 2A1.2 captioned
ACTION: Notice of submission to is amended in Note 1 by striking ‘‘Statutory Provisions’’ is amended by
Congress of amendments to the subdivision (A) and inserting the inserting ‘‘2199, 2291,’’ after
sentencing guidelines effective following: ‘‘1841(a)(2)(C),’’.
November 1, 2007. The Commentary to § 2A1.3 captioned
‘‘(A) Extraordinary and Compelling ‘‘Statutory Provisions’’ is amended by
Reasons.—Provided the defendant meets the inserting ‘‘2199, 2291,’’ after
SUMMARY: Pursuant to its authority requirements of subdivision (2), ‘‘1841(a)(2)(C),’’.
under 28 U.S.C. 994(p), the Commission extraordinary and compelling reasons exist The Commentary to § 2A1.4 captioned
has promulgated amendments to the under any of the following circumstances:
‘‘Statutory Provisions’’ is amended by
sentencing guidelines, policy (i) The defendant is suffering from a
terminal illness.
inserting ‘‘2199, 2291,’’ after
statements, commentary, and statutory ‘‘1841(a)(2)(C),’’.
index. This notice sets forth the (ii) The defendant is suffering from a
permanent physical or medical condition, or The Commentary to § 2A1.4 captioned
amendments and the reason for each ‘‘Application Note’’ is amended in Note
is experiencing deteriorating physical or
amendment. mental health because of the aging process, 1 by striking ‘‘18 U.S.C. 1993(c)(5)’’ and
that substantially diminishes the ability of inserting ‘‘18 U.S.C. 1992(d)(7)’’.
DATES: The Commission has specified
the defendant to provide self-care within the The Commentary to § 2A2.1 captioned
an effective date of November 1, 2007,
environment of a correctional facility and for ‘‘Statutory Provisions’’ is amended by
for the amendments set forth in this which conventional treatment promises no striking ‘‘1993(a)(6)’’ and inserting
notice. substantial improvement. ‘‘1992(a)(7), 2199, 2291’’.
(iii) The death or incapacitation of the The Commentary to § 2A2.2 captioned
FOR FURTHER INFORMATION CONTACT:
defendant’s only family member capable of ‘‘Statutory Provisions’’ is amended by
Michael Courlander, Public Affairs caring for the defendant’s minor child or
Officer, 202–502–4590. The striking ‘‘1993(a)(6),’’ and inserting
minor children. ‘‘1992(a)(7), 2199, 2291,’’.
amendments set forth in this notice also (iv) As determined by the Director of the
The Commentary to § 2A2.3 captioned
may be accessed through the Bureau of Prisons, there exists in the
defendant’s case an extraordinary and
‘‘Statutory Provisions’’ is amended by
Commission’s Web site at http:// inserting ‘‘, 2199, 2291’’ after ‘‘1751(e)’’.
www.ussc.gov. compelling reason other than, or in
combination with, the reasons described in The Commentary to § 2A2.4 captioned
SUPPLEMENTARY INFORMATION: The subdivisions (i), (ii), and (iii).’’. ‘‘Statutory Provisions’’ is amended by
United States Sentencing Commission is inserting ‘‘2237(a)(1), (a)(2)(A),’’ after
The Commentary to § 1B1.13 is ‘‘1502,’’.
an independent agency in the judicial
amended by striking ‘‘Background’’ and Section 2A5.2 is amended in the
branch of the United States
all that follows through the end of heading by inserting ‘‘Navigation,’’ after
Government. The Commission
‘‘statute.’’ and inserting the following: ‘‘Dispatch,’’; and by striking ‘‘or Ferry’’.
promulgates sentencing guidelines and Sections 2A5.2(a)(1) and (a)(2) are
policy statements for federal sentencing ‘‘Background: This policy statement
implements 28 U.S.C. 994(t).’’. amended by striking the comma after
courts pursuant to 28 U.S.C. 994(a). The ‘‘facility’’ each place it appears and
Commission also periodically reviews Reason for Amendment: This inserting ‘‘or’’; and by striking ‘‘, or a
and revises previously promulgated amendment modifies the policy ferry’’ each place it appears.
guidelines pursuant to 28 U.S.C. 994(o) statement at § 1B1.13 (Reduction in The Commentary to § 2A5.2 captioned
and generally submits guideline Term of Imprisonment as a Result of ‘‘Statutory Provisions’’ is amended by
amendments to Congress pursuant to 28 Motion by Director of Bureau of Prisons) striking ‘‘1993(a)(4), (5), (6), (b);’’ and
U.S.C. 994(p) not later than the first day to further effectuate the directive in 28 inserting ‘‘1992(a)(1), (a)(4), (a)(5),
of May each year. Absent action of U.S.C. 994(t). Section 994(t) provides (a)(6);’’.
Congress to the contrary, submitted that the Commission ‘‘in promulgating The Commentary to § 2A5.2 captioned
amendments become effective by general policy statements regarding the ‘‘Application Note’’ is amended in Note
operation of law on the date specified sentence modification provisions in 1 in the last paragraph by striking ‘‘18
by the Commission (generally November section 3582(c)(1)(A) of title 18, shall U.S.C. 1993(c)(5)’’ and inserting ‘‘18
1 of the year in which the amendments describe what should be considered U.S.C. 1992(d)(7)’’.
are submitted to Congress). extraordinary and compelling reasons The Commentary to § 2A6.1 captioned
for sentence reduction, including the ‘‘Statutory Provisions’’ is amended by
Notice of proposed amendments was
criteria to be applied and a list of striking ‘‘1993(a)(7), (8),’’ and inserting
published in the Federal Register on specific examples.’’ The amendment ‘‘1992(a)(9), (a)(10), 2291(a)(8), 2291(e),
January 30, 2007 (see 72 FR 4372). The revises Application Note 1(A) of 2292,’’.
Commission held a public hearing on § 1B1.13 to provide four examples of Section 2B1.1(b) is amended by
the proposed amendments in
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circumstances that, provided the striking subdivision (11) and inserting


Washington, DC, on March 20, 2007. On defendant is not a danger to the safety the following:
May 1, 2007, the Commission submitted of any other person or to the ‘‘(11) If the offense involved an organized
these amendments to Congress and community, would constitute scheme to steal or to receive stolen (A)
specified an effective date of November ‘‘extraordinary and compelling reasons’’ vehicles or vehicle parts; or (B) goods or
1, 2007. for purposes of 18 U.S.C. 3582(c)(1)(A). chattels that are part of a cargo shipment,

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increase by 2 levels. If the offense level is less The Commentary to § 2Q1.1 captioned the Safe, Accountable, Flexible,
than level 14, increase to level 14.’’. ‘‘Statutory Provisions’’ is amended by Efficient Transportation Equity Act: A
The Commentary to § 2B1.1 captioned inserting ‘‘18 U.S.C. 1992(b)(3);’’ before Legacy for Users, Pub. L. 109–59
‘‘Statutory Provisions’’ is amended by ‘‘33 U.S.C. 1319(c)(3);’’. (‘‘SAFETEA–LU’’). The PATRIOT
inserting ‘‘(a)(1), (a)(5)’’ after ‘‘1992’’; by Section 2X1.1 is amended in Reauthorization Act created several new
striking ‘‘1993(a)(1), (a)(4),’’; by subsection (d)(1)(A) by inserting ‘‘(a)(1)– offenses and increased the scope of or
inserting ‘‘2291,’’ after ‘‘2113(b),’’; and (a)(7), (a)(9), (a)(10)’’ after ‘‘1992’’; and penalty for several existing offenses.
by inserting ‘‘14915,’’ after ‘‘49 U.S.C. in subsection (d)(1)(B) by inserting SAFETEA–LU also created two new
§ ’’. ‘‘and’’ after ‘‘§ 32;’’; and by striking ‘‘18 offenses. This amendment references
The Commentary to § 2B1.1 captioned U.S.C. 1993; and’’. both the new statutes and those with
‘‘Application Notes’’ is amended by The Commentary to § 2X5.2 captioned increased scope and penalties to
striking Note 10 and inserting the ‘‘Statutory Provisions’’ is amended by existing guidelines. The amendment
following: inserting ‘‘; 49 U.S.C. 31310’’ after also provides a corresponding
‘‘10. Application of Subsection (b)(11).— ‘‘14133’’. amendment to Appendix A (Statutory
Subsection (b)(11) provides a minimum Appendix A (Statutory Index) is Index). The Commission concluded that
offense level in the case of an ongoing, amended by inserting after the line referencing the new offenses to existing
sophisticated operation (e.g., an auto theft referenced to 18 U.S.C. 225 the guidelines was appropriate because the
ring or ’chop shop’) to steal or to receive following: type of conduct criminalized by the new
stolen (A) vehicles or vehicle parts; or (B) statutes was adequately addressed and
goods or chattels that are part of a cargo ‘‘18 U.S.C. 226—2C1.1’’
shipment. For purposes of this subsection, penalized by the guidelines.
by inserting after the line referenced to
’vehicle’ means motor vehicle, vessel, or
18 U.S.C. 1035 the following: Section 307(c) of the PATRIOT
aircraft. A ’cargo shipment’ includes cargo Reauthorization Act directed the
transported on a railroad car, bus, steamboat, ‘‘18 U.S.C. 1036—2B2.3’’; Commission to review the guidelines to
vessel, or airplane.’’.
by striking the line referenced to 18 determine whether a sentencing
Section 2B2.3(b)(1) is amended by U.S.C. 1992 through the end of the line enhancement is appropriate for any
striking ‘‘secured’’ each place it appears referenced to 18 U.S.C. 1993(b) and offense under sections 659 or 2311 of
and inserting ‘‘secure’’; and by inserting inserting the following: title 18, United States Code. This
‘‘or a seaport’’ after ‘‘airport’’. ‘‘18 U.S.C. 1992(a)(1)—2A5.2, 2B1.1, 2K1.4, amendment responds to the directive by
The Commentary to § 2B2.3 captioned 2X1.1 revising the enhancement at subsection
‘‘Statutory Provisions’’ is amended by 18 U.S.C. 1992(a)(2)—2K1.4, 2M6.1, 2X1.1 (b)(11) of § 2B1.1 (Larceny,
inserting ‘‘, 2199’’ after ‘‘1036’’. 18 U.S.C. 1992(a)(3)—2M6.1, 2X1.1 Embezzlement, and Other Forms of
The Commentary to § 2B2.3 captioned 18 U.S.C. 1992(a)(4)—2A5.2, 2K1.4, 2M6.1, Theft; Offenses Involving Stolen
‘‘Application Notes’’ is amended in 2X1.1 Property; Property Damage or
Note 1 by adding at the end the 18 U.S.C. 1992(a)(5)—2A5.2, 2B1.1, 2X1.1 Destruction; Fraud and Deceit; Forgery;
following: 18 U.S.C. 1992(a)(6)—2A5.2, 2X1.1 Offenses Involving Altered or
18 U.S.C. 1992(a)(7)—2A1.1, 2A2.1, 2A2.2,
‘‘ ‘Seaport’ has the meaning given that term
2X1.1
Counterfeit Instruments Other than
in 18 U.S.C. 26.’’. Counterfeit Bearer Obligations of the
18 U.S.C. 1992(a)(8)—2X1.1
The Commentary to § 2B2.3 captioned 18 U.S.C. 1992(a)(9)—2A6.1, 2X1.1 United States). The amendment expands
‘‘Background’’ is amended by striking 18 U.S.C. 1992(a)(10)—2A6.1, 2X1.1’’; the scope of this enhancement to cover
‘‘secured’’ before ‘‘government’’ and cargo theft and adds a reference to the
in the line referenced to 18 U.S.C. 2199
inserting ‘‘secure’’; and by striking ‘‘, receipt of stolen vehicles or goods to
by inserting ‘‘2A1.1, 2A1.2, 2A1.3,
such as nuclear facilities,’’ and inserting ensure application of the enhancement
2A1.4, 2A2.1, 2A2.2, 2A2.3,’’ before
‘‘(such as nuclear facilities) and other is consistent with the scope of 18 U.S.C.
‘‘2B1.1’’;
locations (such as airports and § 659 and 2313. The Commission
by inserting after the line referenced to
seaports)’’. determined that the two-level increase,
18 U.S.C. 2233 the following:
The Commentary to § 2C1.1 captioned and the minimum offense level of 14,
‘‘Statutory Provisions’’ is amended by ’’18 U.S.C. 2237(a)(1), (a)(2)(A)—2A2.4 appropriately responds to concerns
18 U.S.C. 2237(a)(2)(B)—2B1.1’’; regarding the increased instances of
inserting ‘‘226,’’ after ‘‘§§ 201(b)(1),
(2),’’. by inserting after the line referenced to organized cargo theft operations.
The Commentary to § 2K1.4 captioned 18 U.S.C. 2281 the following: 3. Terrorism
‘‘Statutory Provisions’’ is amended by ’’18 U.S.C. 2291—2A1.1, 2A1.2, 2A1.3,
inserting ‘‘(a)(1), (a)(2), (a)(4)’’ after 2A1.4, 2A2.1, 2A2.2, 2A2.3, 2A6.1, Amendment: The Commentary to
‘‘1992’’; by striking ‘‘1993(a)(1), (a)(2), 2B1.1, 2K1.4, 2M6.1 § 2A1.1 captioned ‘‘Statutory
(a)(3), (b),’’; and by inserting ‘‘2291,’’ 18 U.S.C. 2292—2A6.1’’; Provisions’’, as amended by
after ‘‘2275,’’. Amendment 2 of this document, is
by inserting after the line referenced to
The Commentary to § 2K1.4 captioned further amended by inserting ‘‘2282A,’’
49 U.S.C. 14912 the following:
‘‘Application Notes’’ is amended in after ‘‘2199,’’.
Note 1 by striking ‘‘18 U.S.C. ‘‘49 U.S.C. 14915—2B1.1’’;
1993(c)(5)’’ and inserting ‘‘18 U.S.C. The Commentary to § 2A1.2 captioned
and by inserting after the line referenced ‘‘Statutory Provisions’’, as amended by
1992(d)(7)’’. to 49 U.S.C. 30170 the following:
The Commentary to § 2M6.1 Amendment 2 of this document, is
captioned ‘‘Statutory Provisions’’ is ‘‘49 U.S.C. 31310—2X5.2’’. further amended by inserting ‘‘2282A,’’
after ‘‘2199’’.
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amended by striking ‘‘1993(a)(2), (3), (b), Reason for Amendment: This


2332a (only with respect to weapons of amendment implements various The Commentary to § 2B1.1 captioned
mass destruction as defined in 18 U.S.C. provisions of the USA PATRIOT ‘‘Statutory Provisions’’, as amended by
2332a(c)(2)(B), (C), and (D)),’’ and Improvement and Reauthorization Act Amendment 2 of this document, is
inserting ‘‘1992(a)(2), (a)(3), (a)(4), (b)(2), of 2005, Pub. L. 109–177 (the further amended by inserting ‘‘2282A,
2291,’’. ‘‘PATRIOT Reauthorization Act’’) and 2282B,’’ after ‘‘2113(b),’’.

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The Commentary to § 2B1.5 captioned adjacent to any waters subject to the ‘‘7. OFFENSES INVOLVING BORDER
‘‘Statutory Provisions’’ is amended by jurisdiction of the United States and used, TUNNELS
inserting ‘‘554,’’ before ‘‘641,’’. operated, or maintained by a public or § 2X7.1. Border Tunnels and Subterranean
Chapter Two, Part D, Subpart One, is private entity, including any contiguous or Passages
adjoining property under common ownership
amended by adding at the end the (a) Base Offense Level:
or operation.’’;
following new guideline and (1) If the defendant was convicted under 18
accompanying commentary: by striking ‘‘1993(c)(5)’’ and inserting U.S.C. 554(c), 4 plus the offense level
‘‘1992(d)(7)’’; and by adding at the end applicable to the underlying smuggling
‘‘§ 2D1.14. Narco-Terrorism the following: offense. If the resulting offense level is less
(a) Base Offense Level: ‘‘ ‘Vessel’ includes every description of than level 16, increase to level 16.
(1) The offense level from § 2D1.1 (2) 16, if the defendant was convicted
watercraft or other artificial contrivance
(Unlawful Manufacturing, Importing, under 18 U.S.C. 554(a); or
used, or capable of being used, as a means
Exporting, or Trafficking (Including (3) 8, if the defendant was convicted under
of transportation on water.’’
Possession with Intent to Commit These 18 U.S.C. 554(b).
Offenses); Attempt or Conspiracy) applicable The Commentary to § 2M5.2 Commentary
to the underlying offense, except that captioned ‘‘Statutory Provisions’’ is
§ 2D1.1(a)(3)(A), (a)(3)(B), and (b)(11) shall Statutory Provision: 18 U.S.C. 554.
amended by inserting ‘‘18 U.S.C. 554;’’ Application Note:
not apply. before ‘‘22 U.S.C. 2778, 2780.’’.
(b) Specific Offense Characteristic 1. Definition.—For purposes of this
(1) If § 3A1.4 (Terrorism) does not apply, Section 2M5.3 is amended in the guideline, ‘underlying smuggling offense’
increase by 6 levels. heading by inserting ‘‘Specially means the smuggling offense the defendant
Designated Global Terrorists, or’’ after committed through the use of the tunnel or
Commentary subterranean passage.’’.
‘‘Organizations or’’
Statutory Provision: 21 U.S.C. 960a.’’ The Commentary to § 2M5.3 Chapter Five, Part K is amended by
Chapter Two, Part E, Subpart Four, is captioned ‘‘Statutory Provisions’’ is adding at the end the following new
amended in the heading by adding at amended by inserting ‘‘2283, 2284,’’ policy statement and accompanying
the end ‘‘AND SMOKELESS after ‘‘18 U.S.C. ‘‘; and by striking the commentary:
TOBACCO’’. period at the end and inserting ‘‘; 50 ‘‘§ 5K2.24. Commission of Offense While
Section 2E4.1 is amended in the U.S.C. 1701, 1705.’’. Wearing or Displaying Unauthorized or
heading by adding at the end ‘‘and The Commentary to § 2M5.3 Counterfeit Insignia or Uniform (Policy
Smokeless Tobacco’’. captioned ‘‘Application Notes’’ is Statement)
The Commentary to § 2E4.1 captioned amended in Note 1 by adding at the end If, during the commission of the offense,
‘‘Background’’ is amended by striking the following paragraph: the defendant wore or displayed an official,
‘‘60,000’’ and inserting ‘‘10,000’’. or counterfeit official, insignia or uniform
The Commentary to § 2K1.3 captioned ‘‘ ‘Specially designated global terrorist’ has
received in violation of 18 U.S.C. 716, an
‘‘Statutory Provisions’’ is amended by the meaning given that term in 31 CFR
upward departure may be warranted.
594.513.’’.
inserting ‘‘, 2283’’ after ‘‘1716’’.
Commentary
Section 2K1.4 is amended in Section 2M6.1 is amended in the
subsections (a)(1) and (a)(2) by striking Application Note:
heading by striking ‘‘Production, 1. Definition.—For purposes of this policy
‘‘a ferry,’’ each place it appears and Development, Acquisition, Stockpiling, statement, ‘official insignia or uniform’ has
inserting ‘‘a maritime facility, a vessel, Alteration, Use, Transfer, or Possession the meaning given that term in 18 U.S.C.
or a vessel’s cargo,’’; in subsection (a)(2) of’’ and inserting ‘‘Activity Involving’’. 716(c)(3).’’.
by striking ‘‘or’’ the last place it appears; The Commentary to § 2M6.1
by redesignating subsection (a)(3) as Appendix A (Statutory Index) is
captioned ‘‘Statutory Provisions’’, as amended by inserting after the line
subsection (a)(4); and by inserting the amended by Amendment 2 of this
following after subsection (a)(2): referenced to 18 U.S.C. 553(a)(2) the
document, is further amended by following:
‘‘(3) 16, if the offense involved the inserting ‘‘2283,’’ before ‘‘2291,’’. ‘‘18 U.S.C. 554—(Border tunnels and
destruction of or tampering with aids to The Commentary to § 2Q2.1 captioned passages)—2X7.1’’.
maritime navigation; or’’. 18 U.S.C. 554—(Smuggling goods from the
‘‘Statutory Provisions’’ is amended by
Section 2K1.4(b)(2) is amended by inserting ‘‘§ ’’ before ‘‘545’’ and by United States)—2B1.5, 2M5.2, 2Q2.1’’.
striking ‘‘(a)(3)’’ and inserting ‘‘(a)(4)’’. inserting ‘‘, 554’’ after ‘‘545’’. Appendix A (Statutory Index), as
The Commentary to § 2K1.4 captioned The Commentary to § 2Q2.1 captioned amended by Amendment 2 of this
‘‘Statutory Provisions’’, as amended by ‘‘Background’’ is amended by striking document, is further amended by
Amendment 2 of this document, is ‘‘§ 545 where’’ and inserting ‘‘§§ 545 inserting after the line referenced to 18
further amended by inserting ‘‘2282A, and 554 if’’. U.S.C. 2281 the following:
2282B,’’ after ‘‘2275,’’.
The Commentary to § 2X1.1 captioned ‘‘18 U.S.C. 2282A—2A1.1, 2A1.2, 2B1.1,
The Commentary to § 2K1.4 captioned 2K1.4, 2X1.1
‘‘Statutory Provisions’’ is amended by
‘‘Application Notes’’ is amended in 18 U.S.C. 2282B—2B1.1, 2K1.4, 2X1.1
inserting ‘‘, 2282A, 2282B,’’ after
Note 1 by inserting after ‘‘For purposes 18 U.S.C. 2283—2K1.3, 2M5.3, 2M6.1
‘‘2271,’’.
of this guideline:’’ the following 18 U.S.C. 2284—2M5.3, 2X2.1, 2X3.1’’.
paragraph: The Commentary to § 2X2.1 captioned
‘‘Statutory Provisions’’ is amended by Appendix A (Statutory Index) is
‘‘ ‘Aids to maritime navigation’ means any inserting ‘‘2284,’’ after ‘‘2,’’. amended in the line referenced to 18
device external to a vessel intended to assist U.S.C. 2339 by inserting ‘‘2M5.3,’’
the navigator to determine position or save The Commentary to § 2X3.1 captioned
‘‘Statutory Provisions’’ is amended by before ‘‘2X2.1’’;
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course, or to warn of dangers or obstructions by inserting after the line referenced to


to navigation.’’; inserting ‘‘2284,’’ after ‘‘1072,’’.
21 U.S.C. 960(d)(7) the following:
by inserting after ‘‘destructive device.’’ Chapter Two, Part X is amended by
the following paragraph: adding at the end the following new ‘‘21 U.S.C. 960a—2D1.14’’.
‘‘ ‘Maritime facility’ means any structure or subpart, guideline, and accompanying by inserting after the line referenced to
facility of any kind located in, on, under, or commentary: 50 U.S.C. 783(c) the following:

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‘‘50 U.S.C. 1701—2M5.1, 2M5.2, 2M5.3 terrorist activity * * * or terrorism measure of offense severity. The four-
50 U.S.C. 1705—2M5.3’’; * * *.’’ The guideline also contains a level increase also satisfies the
and by striking the line referenced to 50 specific offense characteristic that directive’s instruction to account for the
U.S.C. App. § 1701. provides a six-level increase if the aggravating nature of the use of a tunnel
adjustment in § 3A1.4 (Terrorism) does or subterranean passage to breach the
Reason for Amendment: This
not apply. This six-level increase fully border to accomplish the smuggling
amendment implements the USA
effectuates the statute’s doubling of the offense and effectuates the statute’s
PATRIOT Improvement and
minimum punishment for the doubling of the statutory maximum
Reauthorization Act of 2005 (the
underlying drug offense, while avoiding penalty. A conviction under 18 U.S.C.
‘‘PATRIOT Reauthorization Act’’), Pub.
potential double counting with the 12- 554(b) receives a base offense level of 8,
L. 109–177, and the Department of
level adjustment at § 3A1.4. The which reflects the less aggravated nature
Homeland Security Appropriations Act,
amendment also provides a of this offense.
2007 (the ‘‘Homeland Security Act’’), Third, the amendment addresses
corresponding reference for the new
Pub. L. 109–295. other new offenses created by the
First, the amendment addresses offense to § 2D1.14 in Appendix A
(Statutory Index). PATRIOT Reauthorization Act. Based
section 122 of the PATRIOT
Second, the amendment responds to on an assessment of similar offenses
Reauthorization Act, which created a
the directive in section 551 of the already covered by the relevant
new offense at 21 U.S.C. 960a covering
Homeland Security Act, which created guidelines, the amendment provides as
narco-terrorism. This new offense
a new offense in 18 U.S.C. 554 regarding follows:
prohibits engaging in conduct that (A) The new offense in 18 U.S.C. 554,
the construction of border tunnels and
would be covered under 21 U.S.C. subterranean passages that cross the pertaining to smuggling of goods from
841(a) if committed under the international boundary between the the United States, is referenced to
jurisdiction of the United States, United States and another country. §§ 2B1.5 (Theft of, Damage to, or
knowing or intending to provide, Section 551(c) of the Homeland Security Destruction of, Cultural Heritage
directly or indirectly, anything of Act directed the Commission to Resources; Unlawful Sale, Purchase,
pecuniary value to any person or promulgate or amend the guidelines to Exchange, Transportation, or Receipt of
organization that has engaged or engages provide for increased penalties for Cultural Heritage Resources), 2M5.2
in terrorist activity (as defined in persons convicted of offenses under 18 (Exportation of Arms, Munitions, or
section 212(a)(3)(B) of the Immigration U.S.C. 554 and required the Military Equipment or Services Without
and Nationality Act) or terrorism (as Commission to consider a number of Required Validated Export License), and
defined in section 140(d)(2) of the factors. Section 554(a) prohibits the 2Q2.1 (Offenses Involving Fish,
Foreign Relations Authorization Act, construction or financing of such Wildlife, and Plants).
Fiscal Years 1988 and 1989 (This act is tunnels and passages and provides a (B) The new offense in 18 U.S.C.
made up of separate parts divided by statutory maximum term of 2282A, pertaining to mining of United
fiscal year)). The penalty is not less than imprisonment of 20 years. Section States navigable waters, is referenced to
twice the statutory minimum 554(b) prohibits the knowing or reckless §§ 2A1.1 (First Degree Murder), 2A1.2
punishment under 21 U.S.C. 841(b)(1) disregard of the construction on land (Second Degree Murder), 2B1.1
and not more than life. Section 960a the person owns or controls and (Larceny, Embezzlement, and Other
also provides a mandatory term of provides a statutory maximum term of Forms of Theft; Offenses Involving
supervised release of at least five years. imprisonment of 10 years. Section Stolen Property; Property Damage or
The amendment creates a new 554(c) prohibits the use of the tunnels Destruction; Fraud and Deceit; Forgery;
guideline at § 2D1.14 (Narco-Terrorism) to smuggle an alien, goods (in violation Offenses Involving Altered or
because an offense under 21 U.S.C. 960a of 18 U.S.C. 545), controlled substances, Counterfeit Instruments Other than
differs from basic drug offenses because weapons of mass destruction (including Counterfeit Bearer Obligations of the
it involves trafficking that benefits biological weapons), or a member of a United States), 2K1.4 (Arson; Property
terrorist activity. The guideline also terrorist organization (defined in 18 Damage by Use of Explosives), and
provides that the base offense level is U.S.C. 2339B(g)(6)) and provides a 2X1.1 (Attempt, Solicitation, or
the offense level determined under penalty of twice the maximum term of Conspiracy (Not Covered by a Specific
§ 2D1.1 (Unlawful Manufacturing, imprisonment that otherwise would Offense Guideline)). The amendment
Importing, Exporting, or Trafficking have been applicable had the unlawful also adds vessel, maritime facility, and
(Including Possession with Intent to activity not made use of the tunnel or a vessel’s cargo to § 2K1.4(a)(1) and
Commit These Offenses); Attempt or passage. (a)(2) to cover conduct described in 18
Conspiracy) for the underlying offense, The amendment creates a new U.S.C. 2282A. The definitions provided
except that the ‘‘mitigating role cap’’ in guideline at § 2X7.1 (Border Tunnels for ‘‘vessel,’’ ‘‘maritime facility,’’ and
§ 2D1.1(a)(3)(A) and (B) and the two- and Subterranean Passages) for ‘‘aids to maritime navigation’’ come
level reduction for meeting the criteria convictions under 18 U.S.C. 554. The from title 33 of the Code of Federal
set forth in subdivisions (1)–(5) of new guideline provides that a Regulations pertaining to the United
subsection (a) of § 5C1.2 (Limitation on conviction under 18 U.S.C. 554(a) States Coast Guard, specifically
Applicability of Statutory Minimum receives a base offense level 16, which Navigation and Navigable Waters.
Sentences in Certain Cases) shall not is commensurate with certain other Section 2282B, pertaining to violence
apply. The Commission determined that offenses with statutory maximum terms against maritime navigational aids, is
these exclusions are appropriate to of imprisonment of 20 years and ensures referenced to §§ 2B1.1, 2K1.4, and
reflect that this is not a typical drug a sentence of imprisonment. A 2X1.1. Section 2K1.4(a) is amended to
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offense, in that an individual convicted conviction under 18 U.S.C. 554(c) will provide a new base offense level of 16
under this provision must have had receive a four-level increase over the if the offense involved the destruction of
knowledge that the person or offense level applicable to the or tampering with aids to maritime
organization receiving the funds or underlying smuggling offense, which navigation.
support generated by the drug ensures that the seriousness of the (C) The new offense in 18 U.S.C. 2283
trafficking ‘‘has engaged or engages in underlying offense is the primary pertaining to transporting biological and

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chemical weapons is referenced to 716 of title 18, United States Code, participant that the officer had not attained
§§ 2K1.3 (Unlawful Receipt, Possession, reflects the gravity of this aggravating the age of 18 years.’’.
or Transportation of Explosive factor.’’ Section 716 of title 18, United The Commentary to § 2A3.3 captioned
Materials; Prohibited Transactions States Code, is a Class B misdemeanor ‘‘Application Notes’’ is amended by
Involving Explosive Materials), 2M5.3 which is not covered by the guidelines, adding at the end the following:
(Providing Material Support or see § 1B1.9 (Class B or C Misdemeanors
‘‘4. Inapplicability of § 3B1.3.—Do not
Resources to Designated Foreign and Infractions); however, the apply § 3B1.3 (Abuse of Position of Trust or
Terrorism Organizations or For a amendment creates a new policy Use of Special Skill).’’.
Terrorist Purpose), and 2M6.1 statement at § 5K2.24 (Commission of
(Unlawful Production, Development, Offense While Wearing or Displaying The Commentary to § 2A3.3 is
Acquisition, Stockpiling, Alteration, Unauthorized or Counterfeit Insignia or amended by striking ‘‘Background’’ and
Use, Transfer, or Possession of Nuclear Uniform) providing that an upward all that follows through the end of
Material, Weapons, or Facilities, departure may be warranted if, during ‘‘year.’’.
Biological Agents, Toxins, or Delivery the commission of the offense, the Section 2A3.4(b)(1) is amended by
Systems, Chemical Weapons, or Other defendant wore or displayed an official, striking ‘‘20’’ each place it appears and
Weapons of Mass Destruction; Attempt or counterfeit official, insignia or inserting ‘‘22’’.
or Conspiracy). The new offense in 18 uniform received in violation of 18 The Commentary to § 2A3.4 captioned
U.S.C. 2284 pertaining to transporting U.S.C. 716. ‘‘Statutory Provisions’’ is amended by
terrorists is referenced to §§ 2M5.3 striking ‘‘(a)(1), (2), (3)’’ after ‘‘§ 2244’’.
(Providing Material Support or 4. Sex Offenses The Commentary to § 2A3.4 captioned
Resources to Designated Foreign Amendment: Chapter Two, Part A, ‘‘Background’’ is amended by striking
Terrorist Organizations or For a Subpart Three, is amended in the ‘‘Enhancements are provided’’ and all
Terrorist Purpose), 2X2.1 (Aiding and heading by adding at the end ‘‘AND that follows through the end of ‘‘sixteen
Abetting), and 2X3.1 (Accessory After OFFENSES RELATED TO years.’’.
the Fact). REGISTRATION AS A SEX Chapter Two, Part A, Subpart Three,
(D) Section 2341 of title 18, United OFFENDER’’. is amended by adding at the end the
States Code, which provides definitions Section 2A3.1(a) is amended by following new guidelines and
for offenses involving contraband striking ‘‘30’’ and inserting the accompanying commentaries:
cigarettes and smokeless tobacco, was following:
amended to reduce the number of ‘‘§ 2A3.5. Failure To Register as a Sex
‘‘(1) 38, if the defendant was convicted Offender
contraband cigarettes necessary to under 18 U.S.C. 2241(c); or
violate the substantive offenses set forth (2) 30, otherwise.’’. (a) Base Offense Level (apply the greatest):
in 18 U.S.C. 2342 and 2344 from 60,000 (1) 16, if the defendant was required to
Section 2A3.1(b)(2) is amended by register as a Tier III offender;
to 10,000. The amendment makes
striking ‘‘(A) If’’ and inserting ‘‘If (2) 14, if the defendant was required to
conforming changes to the background register as a Tier II offender; or
subsection (a)(2) applies and (A)’’; and
commentary of § 2E4.1 (Unlawful (3) 12, if the defendant was required to
by striking ‘‘if’’ after ‘‘(B)’’.
Conduct Relating to Contraband The Commentary to § 2A3.1 captioned register as a Tier I offender.
Cigarettes) and expands the headings of ‘‘Application Notes’’ is amended in (b) Specific Offense Characteristics
Chapter Two, Part E, Subpart 4 and Note 2 by inserting ‘‘(A) Definitions.–’’ (1) (Apply the greatest):
§ 2E4.1 to include smokeless tobacco. If, while in a failure to register status, the
before ‘‘For purposes of’’; and by adding
(E) The Patriot Reauthorization Act defendant committed—
at the end the following subdivision: (A) a sex offense against someone other
increased the statutory maximum term
of imprisonment for offenses covered by ‘‘(B) Application in Cases Involving a than a minor increase by 6 levels;
the International Emergency Economic Conviction under 18 U.S.C. 2241(c).—If the (B) a felony offense against a minor not
conduct that forms the basis for a conviction otherwise covered by subdivision (C),
Powers Act (50 U.S.C. 1705) from 10
under 18 U.S.C. 2241(c) is that the defendant increase by 6 levels; or
years to 20 years’ imprisonment. The engaged in conduct described in 18 U.S.C. (C) a sex offense against a minor, increase
amendment references 50 U.S.C. 1705 to 2241(a) or (b), do not apply subsection by 8 levels.
§ 2M5.3 and modifies the heading of the (b)(1).’’. (2) If the defendant voluntarily (A)
guideline to include ‘‘specially corrected the failure to register; or (B)
designated global terrorist’’. The Commentary to § 2A3.1 is
attempted to register but was prevented from
Fourth, the amendment sets forth the amended by striking ‘‘Background’’ and registering by uncontrollable circumstances
statutory references in Appendix A all that follows through the end of and the defendant did not contribute to the
(Statutory Index) for the new offenses. ‘‘abduction.’’. creation of those circumstances, decrease by
Appendix A is amended to provide a Section 2A3.3(a) is amended by 3 levels.
parenthetical description for the two striking ‘‘12’’ and inserting ‘‘14’’.
The Commentary to § 2A3.3 captioned Commentary
statutory references to 18 U.S.C. 554 Statutory Provision: 18 U.S.C. 2250(a).
‘‘Application Notes’’ is amended in
created by the PATRIOT Application Notes:
Note 1 by striking ‘‘ ‘Minor’ means an
Reauthorization Act. 1. Definitions.—For purposes of this
Fifth, the amendment implements a individual who had not attained the age
guideline:
directive in section 1191(c) of the of 18 years.’’ and inserting the ‘Minor’ means (A) an individual who had
Violence Against Women and following: not attained the age of 18 years; (B) an
Department of Justice Reauthorization ‘‘ ‘Minor’ means (A) an individual who had individual, whether fictitious or not, who a
Act of 2005, Pub. L. 109–162. The Act not attained the age of 18; (B) an individual, law enforcement officer represented to a
whether fictitious or not, who a law participant (i) had not attained the age of 18
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directed the Commission to amend the


enforcement officer represented to a years; and (ii) could be provided for the
guidelines ‘‘to assure that the sentence participant (i) had not attained the age of 18 purposes of engaging in sexually explicit
imposed on a defendant who is years; and (ii) could be provided for the conduct; or (C) an undercover law
convicted of a Federal offense while purposes of engaging in sexually explicit enforcement officer who represented to a
wearing or displaying insignia and conduct; or (C) an undercover law participant that the officer had not attained
uniform received in violation of section enforcement officer who represented to a the age of 18 years.

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Federal Register / Vol. 72, No. 97 / Monday, May 21, 2007 / Notices 28563

‘Sex offense’ has the meaning given that committed against a minor or if the offense Commentary
term in 42 U.S.C. 16911(5). resulted in serious bodily injury to a minor.’’. Statutory Provision: 18 U.S.C. 2252A(g).
‘‘Tier I offender’,‘‘tier II offender’, and ‘‘tier Application Notes:
Section 2G1.1(a) is amended by
III offender’ have the meaning given those 1. Definitions.—For purposes of this
terms in 42 U.S.C. 16911(2), (3) and (4), striking ‘‘14’’ and inserting the
guideline:
respectively. following: ‘Computer’ has the meaning given that
2. Application of Subsection (b)(2).— ‘‘(1) 34, if the offense of conviction is 18 term in 18 U.S.C. 1030(e)(1).
(A) In General.—In order for subsection U.S.C. 1591(b)(1); or ‘Interactive computer service’ has the
(b)(2) to apply, the defendant’s voluntary (2) 14, otherwise.’’. meaning given that term in section 230(e)(2)
attempt to register or to correct the failure to Section 2G1.1(b)(1) is amended by of the Communications Act of 1934 (47
register must have occurred prior to the time inserting ‘‘(A) subsection (a)(2) applies; and U.S.C. 230(f)(2)).
the defendant knew or reasonably should (B)’’ after ‘‘If’’. ‘Minor’ means (A) an individual who had
have known a jurisdiction had detected the The Commentary to § 2G1.1 is amended by not attained the age of 18 years; (B) an
failure to register. striking ‘‘Background’’ and all that follows individual, whether fictitious or not, who a
(B) Interaction with Subsection (b)(1).—Do through the end of ‘‘Minor).’’. law enforcement officer represented to a
not apply subsection (b)(2) if subsection participant (i) had not attained the age of 18
Section 2G1.3(a) is amended by years; and (ii) could be provided for the
(b)(1) also applies.
striking ‘‘24’’ and inserting the purposes of engaging in sexually explicit
§ 2A3.6. Aggravated Offenses Relating to following: conduct; or (C) an undercover law
Registration as a Sex Offender enforcement officer who represented to a
’’(1) 34, if the defendant was convicted
If the defendant was convicted under— participant that the officer had not attained
under 18 U.S.C. 1591(b)(1);
(a) 18 U.S.C. 2250(c), the guideline the age of 18 years.
(2) 30, if the defendant was convicted
sentence is the minimum term of 2. Application of Subsection (b)(2).—
under 18 U.S.C. 1591(b)(2);
imprisonment required by statute; or (A) Custody, Care, or Supervisory
(3) 28, if the defendant was convicted
(b) 18 U.S.C. 2260A, the guideline sentence Control.—Subsection (b)(2) is intended to
under 18 U.S.C. 2422(b) or § 2423(a); or have broad application and includes offenses
is the term of imprisonment required by (4) 24, otherwise.’’.
statute. involving a victim less than 18 years of age
Chapters Three (Adjustments) and Four Section 2G1.3(b) is amended by entrusted to the defendant, whether
(Criminal History and Criminal Livelihood) striking subdivision (4) and inserting temporarily or permanently. For example,
shall not apply to any count of conviction the following: teachers, day care providers, baby-sitters, or
covered by this guideline. other temporary caretakers are among those
‘‘(4) If (A) the offense involved the who would be subject to this enhancement.
Commentary commission of a sex act or sexual contact; or In determining whether to apply this
Statutory Provisions: 18 U.S.C. 2250(c), (B) subsection (a)(3) or (a)(4) applies and the enhancement, the court should look to the
2260A. offense involved a commercial sex act, actual relationship that existed between the
Application Notes: increase by 2 levels.’’. defendant and the minor and not simply to
1. In General.—Section 2250(c) of title 18, the legal status of the defendant-minor
Section 2G1.3(b)(5) is amended by
United States Code, provides a mandatory relationship.
inserting ‘‘(A) subsection (a)(3) or (a)(4) (B) Inapplicability of Chapter Three
minimum term of five years’ imprisonment applies; and (B)’’ after ‘‘If’’.
and a statutory maximum term of 30 years’ Adjustment.—If the enhancement under
imprisonment. The statute also requires a
The Commentary to § 2G1.3 captioned subsection (b)(2) applies, do not apply
sentence to be imposed consecutively to any ‘‘Statutory Provisions’’ is amended by § 3B1.3 (Abuse of Position of Trust or Use of
sentence imposed for a conviction under 18 striking ‘‘2422(b),’’. Special Skill).
U.S.C. 2250(a). Section 2260A of title 18, The Commentary to § 2G1.3 is 3. Application of Subsection (b)(3).—For
United States Code, provides a term of amended by striking ‘‘Background’’ and purposes of subsection (b)(3), ‘conduct
described in 18 U.S.C. 2241(a) or (b)’ is: (i)
imprisonment of 10 years that is required to all that follows through the end of
using force against the minor; (ii) threatening
be imposed consecutively to any sentence ‘‘Minor).’’. or placing the minor in fear that any person
imposed for an offense enumerated under The Commentary to § 2G2.5 captioned will be subject to death, serious bodily
that section. ‘‘Statutory Provisions’’ is amended by injury, or kidnapping; (iii) rendering the
2. Inapplicability of Chapters Three and inserting ‘‘§ ’’ after ‘‘18 U.S.C. § ’’; and minor unconscious; or (iv) administering by
Four.—Do not apply Chapters Three
by inserting ‘‘, 2257A’’ after ‘‘2257’’. force or threat of force, or without the
(Adjustments) and Four (Criminal History knowledge or permission of the minor, a
and Criminal Livelihood) to any offense Chapter Two, Part G, Subpart Two, is
amended by adding at the end the drug, intoxicant, or other similar substance
sentenced under this guideline. Such and thereby substantially impairing the
offenses are excluded from application of following new guideline and
ability of the minor to appraise or control
those chapters because the guideline accompanying commentary: conduct. This provision would apply, for
sentence for each offense is determined only example, if any dangerous weapon was used
by the relevant statute. See §§ 3D1.1 ‘‘§ 2G2.6. Child Exploitation Enterprises
or brandished, or in a case in which the
(Procedure for Determining Offense Level on (a) Base Offense Level: 35 ability of the minor to appraise or control
Multiple Counts) and 5G1.2 (Sentencing on (b) Specific Offense Characteristics conduct was substantially impaired by drugs
Multiple Counts of Conviction). (1) If a victim (A) had not attained the age or alcohol.’’.
3. Inapplicability of Chapter Two of 12 years, increase by 4 levels; or (B) had
Enhancement.—If a sentence under this attained the age of 12 years but had not Section 2G3.1(b) is amended by
guideline is imposed in conjunction with a attained the age of 16 years, increase by 2 striking subdivision (2) and inserting
sentence for an underlying offense, do not levels. the following:
apply any specific offense characteristic that (2) If (A) the defendant was a parent, ‘‘(2) If, with the intent to deceive a minor
is based on the same conduct as the conduct relative, or legal guardian of a minor victim; into viewing material that is harmful to
comprising the conviction under 18 U.S.C. or (B) a minor victim was otherwise in the minors, the offense involved the use of (A)
2250(c) or § 2260A. custody, care, or supervisory control of the a misleading domain name on the Internet;
4. Upward Departure.—In a case in which defendant, increase by 2 levels.
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or (B) embedded words or digital images in


the guideline sentence is determined under (3) If the offense involved conduct the source code of a Web site, increase by 2
subsection (a), a sentence above the described in 18 U.S.C. 2241(a) or (b), increase levels.’’.
minimum term required by 18 U.S.C. 2250(c) by 2 levels.
is an upward departure from the guideline (4) If a computer or an interactive The Commentary to § 2G3.1 captioned
sentence. A departure may be warranted, for computer service was used in furtherance of ‘‘Statutory Provisions’’ is amended by
example, in a case involving a sex offense the offense, increase by 2 levels. inserting ‘‘, 2252C’’ after ‘‘2252B’’.

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28564 Federal Register / Vol. 72, No. 97 / Monday, May 21, 2007 / Notices

The Commentary to § 2G3.1 captioned years; and (ii) could be provided for the jurisdiction, subsection (b)(9)(A) will apply.
‘‘Application Notes’’ is amended in purposes of engaging in sexually explicit In a jurisdiction that has implemented the
Note 2 by inserting ‘‘or § 2252C’’ after conduct; or (C) an undercover law requirements of the Sex Offender Registration
enforcement officer who represented to a and Notification Act, subsection (b)(9)(B) will
‘‘2252B’’. apply. (See 42 U.S.C. 16911 and 16913.)’’.
participant that the officer had not attained
Section 2J1.2(b) is amended in the age of 18 years.’’.
subdivision (1) by striking ‘‘greater’’ and The Commentary to § 5D1.2 captioned
inserting ‘‘greatest’’; by redesignating The Commentary to § 4B1.5 captioned ‘‘Application Notes’’ is amended by
subdivisions (A) and (B) as subdivisions ‘‘Application Notes’’ is amended in striking Note 1 and inserting:
(B) and (C), respectively; by inserting Note 2 by inserting ‘‘or (iv) 18 U.S.C. ‘‘1. Definitions.—For purposes of this
before subdivision (B), as redesignated 1591;’’ after ‘‘individual;’’; and by guideline:
by this amendment, the following: striking ‘‘(iii)’’ after ‘‘through’’ and ‘Sex offense’ means (A) an offense,
inserting ‘‘(iv)’’. perpetrated against a minor, under (i) chapter
‘‘(A) If the (i) defendant was convicted The Commentary to § 4B1.5 captioned 109A of title 18, United States Code; (ii)
under 18 U.S.C. 1001; and (ii) statutory chapter 109B of such title; (iii) chapter 110
‘‘Background’’ is amended by striking
maximum term of eight years’ imprisonment of such title, not including a recordkeeping
applies because the matter relates to sex the first and second sentences and
offense; (iv) chapter 117 of such title, not
offenses under 18 U.S.C. 1591 or chapters inserting: ‘‘This guideline applies to
including transmitting information about a
109A, 109B, 110, or 117 of title 18, United offenders whose instant offense of minor or filing a factual statement about an
States Code, increase by 4 levels.’’; conviction is a sex offense committed alien individual; (v) an offense under 18
and by striking subdivision (C), as against a minor and who present a U.S.C. 1201; or (vi) an offense under 18
redesignated by this amendment, and continuing danger to the public.’’. U.S.C. 1591; or (B) an attempt or a conspiracy
inserting the following: Section 5B1.3(a)(9) is amended by to commit any offense described in
inserting ‘‘(A) in a state in which the subdivisions (A)(i) through (vi) of this note.
‘‘(C) If the (i) defendant was convicted ‘Minor’ means (A) an individual who had
under 18 U.S.C. 1001 or 1505; and (ii) requirements of the Sex Offender
not attained the age of 18 years; (B) an
statutory maximum term of eight years’ Registration and Notification Act (see 42
individual, whether fictitious or not, who a
imprisonment applies because the matter U.S.C. 16911 and 16913) do not apply,’’ law enforcement officer represented to a
relates to international terrorism or domestic before ‘‘a defendant convicted’’; by participant (i) had not attained the age of 18
terrorism, increase by 12 levels.’’. inserting ‘‘(Pub. L. 105–119, § 115(a)(8), years; and (ii) could be provided for the
The Commentary to § 2J1.2 captioned Nov. 26, 1997)’’ after ‘‘4042(c)(4)’’; by purposes of engaging in sexually explicit
inserting ‘‘or’’ after ‘‘student;’’ and by conduct; or (C) an undercover law
‘‘Statutory Provisions’’ is amended by enforcement officer who represented to a
striking ‘‘when the statutory maximum’’ adding at the end the following:
participant that the officer had not attained
and all that follows through ‘‘(B) in a state in which the requirements the age of 18 years.’’.
‘‘applicable,’’ and inserting the of Sex Offender Registration and Notification
Act apply, a sex offender shall (i) register, Section 5D1.3(a)(7) is amended by
following:
and keep such registration current, where the inserting ‘‘(A) in a state in which the
‘‘(when the statutory maximum term of offender resides, where the offender is an requirements of the Sex Offender
eight years’ imprisonment applies because employee, and where the offender is a Registration and Notification Act (see 42
the matter relates to international terrorism student, and for the initial registration, a sex U.S.C. 16911 and 16913) do not apply,’’
or domestic terrorism, or to sex offenses offender also shall register in the jurisdiction
under 18 U.S.C. 1591 or chapters 109A, before ‘‘a defendant’’; by inserting
in which convicted if such jurisdiction is ‘‘(Pub. L. 105–119, § 115(a)(8), Nov. 26,
109B, 110, or 117 of title 18, United States different from the jurisdiction of residence;
Code),’’. (ii) provide information required by 42 U.S.C. 1997)’’ after ‘‘4042(c)(4)’’; by inserting
16914; and (iii) keep such registration current ‘‘or’’ after ‘‘student;’’ and by adding at
The Commentary to § 2J1.2 captioned the end the following:
‘‘Application Notes’’ is amended in for the full registration period as set forth in
42 U.S.C. 16915;’’. ‘‘(B) in a state in which the requirements
Note 2(B) by striking ‘‘(b)(1)(B)’’ and
inserting ‘‘(b)(1)(C)’’. Section 5B1.3(d)(7) is amended by of Sex Offender Registration and Notification
adding at the end the following: Act apply, a sex offender shall (i) register,
The Commentary to § 2J1.2 captioned and keep such registration current, where the
‘‘Application Notes’’ is amended in ‘‘(C) A condition requiring the defendant to offender resides, where the offender is an
Note 4 by inserting ‘‘or a particularly submit to a search, at any time, with or employee, and where the offender is a
serious sex offense’’ after ‘‘face)’’. without a warrant, and by any law student, and for the initial registration, a sex
The Commentary to § 2J1.2 captioned enforcement or probation officer, of the offender also shall register in the jurisdiction
‘‘Application Notes’’ is amended in defendant’s person and any property, house, in which convicted if such jurisdiction is
residence, vehicle, papers, computer, other different from the jurisdiction of residence;
Note 5 by inserting ‘‘(B)’’ after
electronic communication or data storage (ii) provide information required by 42 U.S.C.
‘‘Subsection (b)(1)’’ each place it devices or media, and effects, upon 16914; and (iii) keep such registration current
appears; and by inserting ‘‘(B)’’ after reasonable suspicion concerning a violation for the full registration period as set forth in
‘‘under subsection (b)(1)’’. of a condition of probation or unlawful 42 U.S.C. 16915;’’.
Section 3D1.2(d) is amended by conduct by the defendant, or by any
Section 5D1.3(d)(7) is amended by
inserting as a new line ‘‘§ 2A3.5;’’ before probation officer in the lawful discharge of
the officer’s supervision functions.’’. adding at the end the following:
the line that begins ‘‘§§ 2B1.1’’; and by
inserting ‘‘(except § 2A3.5)’’ after Section 5B1.3 is amended by adding ’’(C) A condition requiring the defendant to
‘‘Chapter Two, Part A’’. submit to a search, at any time, with or
at the end the following: without a warrant, and by any law
The Commentary to § 4B1.5 captioned
enforcement or probation officer, of the
‘‘Application Notes’’ is amended by Commentary defendant’s person and any property, house,
striking Note 1 and inserting the Application Note: residence, vehicle, papers, computer, other
following: 1. Application of Subsection (b)(9)(A) and electronic communication or data storage
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‘‘1. Definition.—For purposes of this (B).—Some jurisdictions continue to register devices or media, and effects upon
guideline, ‘minor’’ means (A) an individual sex offenders pursuant to the sex offender reasonable suspicion concerning a violation
who had not attained the age of 18 years; (B) registry in place prior to July 27, 2006, the of a condition of supervised release or
an individual, whether fictitious or not, who date of enactment of the Adam Walsh Act, unlawful conduct by the defendant, or by any
a law enforcement officer represented to a which contained the Sex Offender probation officer in the lawful discharge of
participant (i) had not attained the age of 18 Registration and Notification Act. In such a the officer’s supervision functions.’’.

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Section 5D1.3 is amended by adding § 4B1.5 (Repeat and Dangerous Sex in all such cases and, therefore, is built
at the end the following: Offender Against Minors), § 5B1.3 into the base offense level.
(Conditions of Probation), § 5D1.2 (Term Third, section 206 of the Adam Walsh
‘‘Commentary of Supervised Release), § 5D1.3 Act created a new subsection at 18
Application Note: (Conditions of Supervised Release) and U.S.C. 2244. Section 2244(a)(5) provides
1. Application of Subsection (b)(7)(A) and Appendix A (Statutory Index). a penalty of any term of years if the
(B).—Some jurisdictions continue to register First, section 206 of the Adam Walsh sexual conduct would have violated 18
sex offenders pursuant to the sex offender U.S.C. 2241(c) had the contact been a
registry in place prior to July 27, 2006, the
Act amended 18 U.S.C. 2241(c) to add
a new mandatory minimum term of sexual act. Section 2241(c) conduct
date of enactment of the Adam Walsh Act,
which contained the Sex Offender imprisonment of 30 years for offenses involves the aggravated sexual abuse of
Registration and Notification Act. In such a related to the aggravated sexual abuse of a child under 12 years old or of a child
jurisdiction, subsection (b)(7)(A) will apply. a child under 12 years old, or of a child between 12 and 16 years old if force,
In a jurisdiction that has implemented the between 12 and 16 years old if force, threat, or other means was used, as
requirements of the Sex Offender Registration threat, or other means was used. In defined in 18 U.S.C. 2241(a) and (b).
and Notification Act, subsection (b)(7)(B) will response to the new mandatory Prior to the Adam Walsh Act, the
apply. (See 42 U.S.C. 16911 and 16913.)’’. penalty for offenses involving children
minimum for these offenses, the
Appendix A (Statutory Index) is amendment increases the base offense under 12 years old was ‘‘twice that
amended in the line referenced to 18 level at § 2A3.1 (Criminal Sexual Abuse; otherwise provided,’’ and the penalty
U.S.C. 1001 by striking ‘‘when the Attempt to Commit Criminal Sexual for sexual contact involving behavior
statutory’’ and all that follows through Abuse) from level 30 to level 38. The described in 18 U.S.C. 2241 was a
‘‘applicable’’ and inserting the base offense level of 30 has been statutory maximum term of
following: retained for all other offenses. At least imprisonment of 10 years.
one specific offense characteristic The amendment addresses this new
‘‘(when the statutory maximum term of
applied to every conviction under 18 offense by increasing the minimum
eight years’ imprisonment applies because
the matter relates to international terrorism offense level in the age enhancement in
U.S.C. 2241(c) sentenced under § 2A3.1
or domestic terrorism, or to sex offenses subsection (b)(1) of § 2A3.4 (Abusive
in fiscal year 2006. Accordingly, the
under 18 U.S.C. 1591 or chapters 109A, Sexual Contact or Attempt to Commit
mandatory minimum 360 months’
109B, 110, or 117 of title 18, United States Abusive Sexual Contact) from level 20
imprisonment is expected to be reached
Code)’’. to level 22.
or exceeded in every case with a base Fourth, section 141 of the Adam
Appendix A (Statutory Index) is offense level of 38.
amended by inserting after the line Walsh Act created a new offense under
The amendment provides a new 18 U.S.C. 2250(a) for the failure to
referenced to 18 U.S.C. 2245 the application note that precludes
following: register as a sex offender. The basic
application of the specific offense offense carries a statutory maximum
‘‘18 U.S.C. 2250(a)—2A3.5 characteristic at § 2A3.1(b)(1) regarding term of imprisonment of 10 years.
18 U.S.C. 2250(c)—2A3.6’’; conduct described in 18 U.S.C. 2241(a) Section 141 also included a directive to
by inserting after the line referenced to or (b) if the conduct that forms the basis the Commission that when
18 U.S.C. 2252B the following: for a conviction under 18 U.S.C. 2241(c) promulgating guidelines for the offense,
‘‘18 U.S.C. 2252C—2G3.1’’; is that the defendant engaged in conduct to consider, among other factors, the
by inserting after the line referenced to described in 18 U.S.C. 2241(a) or (b) seriousness of the sex offender’s
18 U.S.C. 2257 the following: (force, threat, or other means). The conviction that gave rise to the
‘‘18 U.S.C. 2257A—2G2.5’’; amendment also precludes application requirement to register; relevant further
of the specific offense characteristic for offense conduct during the period for
and by inserting after the line referenced
the age of a victim at § 2A3.1(b)(2) if the which the defendant failed to register;
to 18 U.S.C. 2260(b) the following:
defendant was convicted under section and the offender’s criminal history.
‘‘18 U.S.C. 2260A 2A3.6’’— 2241(c). The heightened base offense The amendment creates a new
Reason for Amendment: This level of 38 takes into account the age of guideline, § 2A3.5 (Failure to Register as
amendment responds to the Adam the victim. These instructions, therefore, a Sex Offender), to address the directive.
Walsh Child Protection and Safety Act avoid unwarranted double counting. The new guideline provides three
of 2006 (the ‘‘Adam Walsh Act’’), Pub. Second, section 207 of the Adam alternative base offense levels based on
L. 109–248, which contained a directive Walsh Act increased the statutory the tiered category of the sex offender:
to the Commission, created new sexual maximum term of imprisonment under level 16 if the defendant was required
offenses, and enhanced penalties for 18 U.S.C. 2243(b) from 5 years to 15 to register as a Tier III offender; level 14
existing sexual offenses. The years for the sexual abuse of a person in if the defendant was required to register
amendment implements the directive by official detention or under custodial as a Tier II offender; and level 12 if the
creating two new guidelines, §§ 2A3.5 authority. In response to increased defendant was required to register as a
(Criminal Sexual Abuse and Offenses penalty, the amendment increases the Tier I offender.
Related to Registration as a Sex base offense level from 12 to 14 in The amendment also provides two
Offender) and 2A3.6 (Aggravated § 2A3.3 (Criminal Sexual Abuse of a specific offense characteristics. First,
Offenses Relating to Registration as a Ward or Attempt to Commit Such Acts). subsection (b)(1) provides a tiered
Sex Offender). It further addresses The amendment also adds a new enhancement to address criminal
relevant provisions in the Adam Walsh definition of ‘‘minor’’ consistent with conduct committed while the defendant
Act by making changes to Chapter Two, how this term is defined elsewhere in is in a failure to register status.
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Part A, Subpart 3 (Criminal Sexual the guidelines manual. In addition, the Specifically, § 2A3.5(b)(1) provides a
Abuse) and Part G (Offenses Involving amendment includes an application six-level increase if, while in a failure to
Commercial Sex Acts, Sexual note precluding application of § 3B1.3 register status, the defendant committed
Exploitation of Minors, and Obscenity), (Abuse of Position of Trust or Use of a sex offense against an adult, a six-level
§ 2J1.2 (Obstruction of Justice), § 3D1.2 Special Skill) for these offenses because increase if the defendant committed a
(Groups of Closely Related Counts), an abuse of position of trust is assumed felony offense against a minor, and an

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28566 Federal Register / Vol. 72, No. 97 / Monday, May 21, 2007 / Notices

eight-level increase if the defendant term of imprisonment required by activity for which any person can be
committed a sex offense against a minor. statute. Chapters Three and Four are not charged with a criminal offense, and 18
Second, § 2A3.5(b)(2) provides a three- to apply. This is consistent with how U.S.C. 2423(a), for transporting a person
level decrease if the defendant the guidelines treat other offenses that who has not attained the age of 18 years
voluntarily corrected the failure to carry both a specified term of in interstate or foreign commerce, with
register or voluntarily attempted to imprisonment and a requirement that the intent that the person engage in
register but was prevented from such term be imposed consecutively. prostitution, or in any sexual activity for
registering by uncontrollable See §§ 3D1.1 (Procedure for Determining which any person can be charged with
circumstances, and the defendant did Offense Level on Multiple Counts) and a criminal offense.
not contribute to the creation of those 5G1.2 (Sentencing on Multiple Counts In response, the amendment provides
circumstances. The reduction covers of Conviction). alternative base offense levels in § 2G1.3
cases in which (1) the defendant either The guideline includes an application (Promoting a Commercial Sex Act or
does not attempt to register until after note that provides an upward departure Prohibited Sexual Conduct with a
the relevant registration period has stating that a sentence above the Minor; Transportation of Minors to
expired but subsequently successfully minimum term required by section Engage in a Commercial Sex Act or
registers, thereby correcting the failure 2250(c) is an upward departure from the Prohibited Sexual Conduct; Travel to
to register status, or (2) the defendant, guideline sentence. An upward Engage in Commercial Sex Act or
either before or after the registration departure may be warranted, for Prohibited Sexual Conduct with a
period has expired, attempted to register example, in a case involving a sex Minor; Sex Trafficking of Children; Use
but circumstances beyond the offense committed against a minor or if of Interstate Facilities to Transport
defendant’s control prevented the the offense resulted in serious bodily Information about a Minor) based on the
defendant from successfully registering. injury to a minor. statute of conviction and the conduct
An application note specifies that the Sixth, section 208 of the Adam Walsh described in that conviction. For
voluntary attempt to register or to Act added a new mandatory minimum convictions under 18 U.S.C. 1591(b)(1),
correct the failure to register must have term of imprisonment of 15 years under the base offense level is 34. For
occurred prior to the time the defendant 18 U.S.C. 1591(b)(1) for sex trafficking convictions under 18 U.S.C. 1591(b)(2),
knew or reasonably should have known of an adult by force, fraud, or coercion. the base offense level is 30.
a jurisdiction had detected the failure to In response, the amendment provides a The amendment further provides a
register. The application note also new base offense level of 34 in § 2G1.1 base offense level of 28 for convictions
provides that the reduction does not (Promoting a Commercial Sex Act or under 18 U.S.C. § 2422(b) and 2423(a).
apply if the enhancement for Prohibited Sexual Conduct with an The two-level enhancement for the use
committing one of the enumerated Individual Other than a Minor) if the of a computer at § 2G1.3(b)(3) applied to
offenses in § 2A3.5(b)(1) applies. offense of conviction is 18 U.S.C. 95 percent of offenders convicted under
Additionally, the amendment adds 1591(b)(1), but retains a base offense 18 U.S.C. 2422(b) and sentenced under
§ 2A3.5 to the list of offenses that are level of 14 for all other offenses. In § 2G1.3 in fiscal year 2006. In addition,
considered groupable under § 3D1.2(d) addition, the amendment limits the two-level enhancement for the
because the failure to register offense is application of the specific offense offense involving a sexual act or sexual
an ongoing and continuous offense. characteristic at § 2G1.1(b)(1) that contact at § 2G1.3(b)(4) applied to 95
Fifth, section 141 of the Adam Walsh applies if the offense involved fraud or percent of offenders convicted under 18
Act created two new aggravated offenses coercion only to those offenses receiving U.S.C. 2423(a) and sentenced under this
relating to the registration as a sex a base offense level of 14. Offenses guideline in fiscal year 2006. With
offender. Section 141 of the Act created under 18 U.S.C. 1591(b)(1) necessarily application of either enhancement, the
18 U.S.C. 2250(c), which carries a involve fraud and coercion and, mandatory minimum term of
mandatory minimum term of therefore, such conduct is built into the imprisonment of 120 months will be
imprisonment of 5 years and a statutory heightened base offense level of 34. This reached in the majority of convictions
maximum term of imprisonment of 30 limitation thus avoids unwarranted under 18 U.S.C. 2422(b) and 2423(a),
years if a defendant commits a crime of double counting. before application of other guidelines
violence while in a failure to register Seventh, section 208 of the Adam adjustments.
status, with the sentence to be Walsh Act added a new mandatory Further, the amendment addresses the
consecutive to the punishment provided minimum term of imprisonment of 15 interaction of two specific offense
for the failure to register. Section 702 of years under 18 U.S.C. 1591(b)(1) for sex characteristics with the alternative base
the Adam Walsh Act created a new trafficking of children under 14 years of offense levels. First, every conviction
offense at 18 U.S.C. 2260A that age and added a new mandatory under 18 U.S.C. 1591 necessarily
prohibits the commission of various minimum term of imprisonment of 10 involves a commercial sex act. With the
enumerated offenses while in a failure years and increased the statutory base offense levels being determined
to register status. The penalty for this maximum term of imprisonment from based on the statute of conviction, the
offense is a mandatory term of 40 years to life under 18 U.S.C. amendment clarifies that
imprisonment of 10 years to be imposed 1591(b)(2) for sex trafficking of children § 2G1.3(b)(4)(B), which provides a two-
consecutively to the underlying offense. who had attained the age of 14 years but level enhancement if the offense
The amendment creates a new had not attained the age of 18 years. involved a commercial sex act, does not
guideline at § 2A3.6 (Aggravated Further, the Adam Walsh Act increased apply if the defendant is convicted
Offenses Relating to Registration as a the mandatory minimum term of under 18 U.S.C. 1591. Second, the
Sex Offender) to address these new imprisonment from 5 years to 10 years amendment precludes application of the
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offenses. The new guideline provides and increased the statutory maximum age enhancement in § 2G1.3(b)(5) if the
that for offenses under section 2250(c), term of imprisonment from 30 years to base offense level is determined under
the guideline sentence is the minimum life under both 18 U.S.C. 2422(b), for subsection (a)(1) of § 2G1.3 for a
term of imprisonment required by persuading or enticing any person who conviction under 18 U.S.C. 1591(b)(1).
statute, and for offenses under section has not attained the age of 18 years to The base offense level provided by
2260A, the guideline sentence is the engage in prostitution or any sexual subsection (a)(1) of § 2G1.3 takes into

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Federal Register / Vol. 72, No. 97 / Monday, May 21, 2007 / Notices 28567

account the age of the victim and, years under 18 U.S.C. 2252B(b) for Walsh Act. The amendment also
therefore, limitations on application of knowingly using a misleading domain modifies the language in §§ 5B1.3(a)(9)
subsections (b)(4)(B) and (b)(5) of name with the intent to deceive a minor and 5D1.3(a)(7) relating to defendants
§ 2G1.3 avoid unwarranted double into viewing material harmful to minors convicted of a sexual offense described
counting. on the Internet. In addition, section 703 in 18 U.S.C. 4042(c)(4). Not all states
Eighth, section 503 of the Adam of the Act created a new section, 18 have implemented the new
Walsh Act created a new section, 18 U.S.C. 2252C, that carries a statutory requirements, continuing to register sex
U.S.C. 2257A, adopting new maximum term of imprisonment of 10 offenders pursuant to the sex offender
recordkeeping obligations for the years for knowingly embedding words registry in place prior to July 27, 2006,
production of any book, magazine, or digital images into the source code of the date of enactment of the Adam
periodical, film, videotape, or digital a Web site with the intent to deceive a Walsh Act. Thus, it is necessary to
image that contains a visual depiction of person into viewing material maintain the language in the guidelines
simulated sexually explicit conduct. constituting obscenity. Section 2252C(b) providing for conditions of probation
Section 2257A has a statutory maximum carries a statutory maximum term of and supervised release for those
of one year imprisonment for the failure imprisonment of 20 years for knowingly offenders.
to comply with the recordkeeping embedding words or digital images into Fourteenth, section 141 of the Act
requirements and a statutory maximum the source code of a Web site with the amended 18 U.S.C. 3583(k), which
term of imprisonment of five years if the intent to deceive a minor into viewing provides that the authorized term of
violation was to conceal a substantive material harmful to minors on the supervised release for any offense under
offense that involves either causing a Internet. enumerated sex offenses is any term of
minor to engage in sexually explicit In response to the new offense, the years or life. In response, the
conduct for the purpose of producing a amendment expands the scope of amendment adds offenses under chapter
visual depiction or trafficking in subsection (b)(2) of § 2G3.1 (Importing, 109B and sections 1201 and 1591 of title
material involving the sexual Mailing, or Transporting Obscene 18 United States Code or 18 U.S.C.
exploitation of a minor. The new offense Matter; Transferring Obscene Matter to § 1201 and 1591 to the definition of sex
is similar to 18 U.S.C. 2257, which is a Minor; Misleading Domain Names) by offense under § 5D1.2(b)(2) for which
referenced to § 2G2.5 (Recordkeeping adding to this enhancement ‘‘embedded the length of the term of supervised
Offenses Involving the Production of words or digital images into the source release shall be not less than the
Sexually Explicit Materials; Failure to code on a Web site.’’ minimum term of years specified for the
Provide Required Marks in Commercial Eleventh, section 141 of the Adam offense and may be up to life.
Electronic Mail). Accordingly, the Walsh Act added a new provision in 18 Finally, the amendment provides a
amendment refers the new offense to U.S.C. 1001 that carries a statutory definition of ‘‘minor’’ in relevant
§ 2G2.5. maximum term of imprisonment of 8 guidelines that is consistent with how
Ninth, section 701 of the Adam Walsh years for falsifying or covering up by this term is defined elsewhere in the
Act created a new offense in 18 U.S.C. any scheme or making materially false guidelines. Outdated background
2252A(g) that prohibits engaging in or fraudulent statements or making or commentary also is deleted by this
child exploitation enterprises, defined using any false writings or documents amendment.
as violating 18 U.S.C. 1591, 1201 (if the that relate to offenses under chapters
victim is a minor), chapter 109A 109A, 109B, 110, and 117, and under 5. Corrections to §§ 2B1.1 and 2L1.1
(involving a minor victim), chapter 110 section 1591 of chapter 77. The Amendment: Section 2B1.1(b)(13)(C)
(except for 18 U.S.C. 2257 and 2257A), amendment adds a new specific offense is amended by striking ‘‘(b)(12)(B)’’ and
or chapter 117 (involving a minor characteristic at subsection (b)(1)(A) of inserting ‘‘(b)(13)(B)’’.
victim), as part of a series of felony § 2J1.2 (Obstruction of Justice) Section 2L1.1(b)(1) is amended by
violations constituting three or more enhancing the offense level by four striking ‘‘(a)(2)’’ and inserting ‘‘(a)(3)’’.
separate incidents and involving more levels if the defendant was convicted Reason for Amendment: This
than one victim, and committing those under 18 U.S.C. 1001 and the statutory amendment corrects typographical
offenses in concert with three or more maximum term of 8 years’ errors in subsection (b)(13)(C) of § 2B1.1
other people. The statute provides a imprisonment applies because the (Larceny, Embezzlement, and Other
mandatory minimum term of matter relates to sex offenses. The Forms of Theft; Offenses Involving
imprisonment of 20 years. amendment also added language to Stolen Property; Property Damage or
The amendment creates a new Application Note 4 stating an upward Destruction; Fraud and Deceit; Forgery;
guideline at § 2G2.6 (Child Exploitation departure may be warranted under the Offenses Involving Altered or
Enterprises) to cover this new offense. guideline in a case involving a Counterfeit Instruments Other than
The guideline provides a base offense particularly serious sex offense. Counterfeit Bearer Obligations of the
level of 35 and four specific offense Twelfth, section 206 of the Adam United States) and subsection (b)(1) of
characteristics. The Commission Walsh Act added 18 U.S.C. 1591 to the § 2L1.1 (Smuggling, Transporting, or
anticipates these offenses typically will list of offenses for which a defendant is Harboring an Unlawful Alien).
involve conduct encompassing at least to be sentenced to life under 18 U.S.C. The typographical error to
one of the specific offense 3559(e)(2)(A). The amendment adds 18 § 2B1.1(b)(13)(C) stems from
characteristics, resulting in an offense U.S.C. 1591 to the list of instant offenses redesignations made to § 2B1.1 in 2004
level of at least level 37. Thus, the of convictions that are covered sex when the Commission added a new
mandatory minimum term of crimes under § 4B1.5. subsection (b)(7) in response to the
imprisonment of 240 months typically Thirteenth, section 141 of the Adam Controlling the Assault of Non-Solicited
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is expected to be reached or exceeded, Walsh Act amended 18 U.S.C. 3563 and Pornography and Marketing Act of 2003
before application of other guideline 3583. The amendment adds a new (‘‘CAN–SPAM Act’’), Pub. L. 108–187.
adjustments. subdivision to (a)(9) of § 5B1.3 and to (USSG App. C Amendment 665)
Tenth, section 206 of the Adam Walsh (a)(7) of § 5D1.3 to require a defendant (November 1, 2004).
Act increased the statutory maximum to comply with the new registration The typographical error in
term of imprisonment from 4 years to 10 requirements provided by the Adam § 2L1.1(b)(1) stems from redesignations

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28568 Federal Register / Vol. 72, No. 97 / Monday, May 21, 2007 / Notices

made to § 2L1.1 in 2006 when the 2413 to § 2B2.3 (Trespass) and expands the copyrighted work, and the ‘infringed
Commission added a new subsection the scope of the two-level enhancement item’ is the accessed work.’’.
(a)(1) for aliens who are inadmissible for at § 2B2.3(b)(1) for trespass offenses that The Commentary to § 2B5.3 captioned
national security related reasons. (USSG occur in certain locations to include ‘‘Application Notes’’ is amended in
App. C Amendment 692) (November 1, trespass at Arlington National Cemetery Note 3 by striking ‘‘shall’’ and inserting
2006). or a cemetery under the control of the ‘‘may’’.
The Commission has determined that National Cemetery Administration. The The Commentary to § 2B5.3 captioned
this amendment should be applied Commission determined that the need ‘‘Application Notes’’ is amended in
retroactively because (A) the purpose of to protect the final resting places of the Note 4 by striking ‘‘Upward’’ before
the amendment is to correct nation’s war dead and the need to ‘‘Departure’’; by inserting ‘‘or
typographical errors; (B) the number of discourage violent confrontations at the overstates’’ after ‘‘understates’’; and by
cases involved is minimal even given funerals of veterans who are killed in striking ‘‘an upward’’ each place it
the potential change in guideline ranges action justifies expanding the scope of appears and inserting ‘‘a’’; and by
(i.e., ensuring application of the the enhancement to cover such conduct. adding at the end the following:
maximum increase of 8 levels in The new offense at 31 U.S.C. 5363
§ 2B1.1(b)(13)(C) and providing correct prohibits acceptance of any financial ‘‘(C) The method used to calculate the
infringement amount is based upon a formula
application of the three-level reduction instrument for unlawful Internet
or extrapolation that results in an estimated
in § 2L1.1(b)(1)); and (C) the amendment gambling and provides a statutory amount that may substantially exceed the
would not be difficult to apply maximum term of imprisonment of five actual pecuniary harm to the copyright or
retroactively. These factors, combined, years. The amendment references trademark owner.’’.
meet the standards set forth in the convictions under 31 U.S.C. 5363 to
§ 2E3.1 (Gambling Offenses). Appendix A (Statutory Index) is
relevant background commentary to
amended by inserting after the line
§ 1B1.10 (Reduction in Term of 7. Repromulgation of Emergency referenced to 17 U.S.C. 506(a) the
Imprisonment as a Result of Amended Amendment on Intellectual Property following new lines:
Guideline Range).
Amendment: The amendment to ‘‘17 U.S.C. 1201—2B5.3
6. Miscellaneous Laws § 2B5.3, effective September 12, 2006 17 U.S.C. 1204—2B5.3’’.
Amendment: Section 2B2.3(b)(1) is (see Appendix C amendment 682), is Reason for Amendment: This
amended by redesignating subdivision repromulgated with the following amendment re-promulgates as
(F) as subdivision (G); and by inserting changes: permanent the temporary, emergency
‘‘(F) at Arlington National Cemetery or Section 2B5.3(b)(3) is amended by
amendment (effective Sept. 12, 2006)
a cemetery under the control of the inserting ‘‘(A)’’ before ‘‘offense
that implemented the emergency
National Cemetery Administration;’’ involved’’ and by inserting ‘‘; or (B)
directive in section 1(c) of the Stop
after ‘‘residence;’’. defendant was convicted under 17
Counterfeiting in Manufactured Goods
The Commentary to § 2B2.3 captioned U.S.C. 1201 and 1204 for trafficking in
Act, Pub. L. 109–181 (2006). The
‘‘Statutory Provisions’’ is amended by circumvention devices’’ after ‘‘items’’.
The Commentary to § 2B5.3 captioned directive, which required the
inserting ‘‘38 U.S.C. 2413;’’ after Commission to promulgate an
‘‘1036;’’. ‘‘Statutory Provisions’’ is amended by
inserting ‘‘§ ’’ after ‘‘17 U.S.C. ‘‘; and by amendment under emergency
The Commentary to § 2E3.1 captioned amendment authority by September 12,
‘‘Statutory Provisions’’ is amended by inserting ‘‘, 1201, 1204’’ after ‘‘506(a)’’.
The Commentary to § 2B5.3 captioned 2006, instructs the Commission to
inserting ‘‘; 31 U.S.C. 5363’’ after ‘‘review, and if appropriate, amend the
‘‘1955’’. ‘‘Application Notes’’ is amended in
Note 1 by inserting after ‘‘Definitions.— Federal sentencing guidelines and
Appendix A (Statutory Index) is policy statements applicable to persons
amended by inserting after the line For purposes of this guideline:’’ the
following paragraph: convicted of any offense under section
referenced to 31 U.S.C. 5332 the 2318 or 2320 of title 18, United States
following: ‘‘ ‘Circumvention devices’ are devices used Code.’’
to perform the activity described in 17 U.S.C.
‘‘31 U.S.C. 5363—2E3.1’’; § 1201(a)(3)(A) and 1201(b)(2)(A).’’. In carrying out [the directive], the
and by inserting after the line referenced United States Sentencing Commission
The Commentary to § 2B5.3 captioned shall determine whether the definition
to 38 U.S.C. 787 the following: ‘‘Application Notes’’ is amended in of ‘‘infringement amount’’ set forth in
‘‘38 U.S.C. 2413—2B2.3’’. Note 2(A) by adding at the end the application note 2 of section 2B5.3 of
Reason for Amendment: This following: the Federal sentencing guidelines is
amendment addresses two new offenses, ‘‘(vii) A case under 18 U.S.C. 2318 or adequate to address situations in which
38 U.S.C. 2413, which was created by § 2320 that involves a counterfeit label, the defendant has been convicted of one
the Respect for America’s Fallen Heroes patch, sticker, wrapper, badge, emblem, of the offenses [under section 2318 or
medallion, charm, box, container, can, case,
Act, Pub. L. 109–228, and 31 U.S.C. hangtag, documentation, or packaging of any
2320 of title 18, United States Code,]
5363, which was created by the Security type or nature (I) that has not been affixed and the item in which the defendant
and Accountability for Every Port Act of to, or does not enclose or accompany a good trafficked was not an infringing item but
2006, Pub. L. 109–347. or service; and (II) which, had it been so rather was intended to facilitate
The new offense at 38 U.S.C. 2413 used, would appear to a reasonably informed infringement, such as an anti-
prohibits certain demonstrations at purchaser to be affixed to, enclosing or circumvention device, or the item in
Arlington National Cemetery and at accompanying an identifiable, genuine good which the defendant trafficked was
or service. In such a case, the ‘infringed item’
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cemeteries controlled by the National infringing and also was intended to


is the identifiable, genuine good or service.
Cemetery Administration and provides (viii) A case under 17 U.S.C. § 1201 and
facilitate infringement in another good
a statutory maximum penalty of 1204 in which the defendant used a or service, such as a counterfeit label,
imprisonment of not more than one circumvention device. In such an offense, the documentation, or packaging, taking
year, a fine, or both. The amendment ‘retail value of the infringed item’ is the price into account cases such as U.S. v. Sung,
references convictions under 38 U.S.C. the user would have paid to access lawfully 87 F.3d 194 (7th Cir. 1996).

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The amendment adds subdivision § 2B5.3(b)(3) is to provide greater inserting ‘‘greatest’’; by redesignating
(vii) to Application Note 2(A) of § 2B5.3 punishment for defendants who put subdivision (C) as subdivision (D); and
(Criminal Infringement of Copyright or infringing items into the stream of by striking subdivision (B) and inserting
Trademark) to provide that the commerce in a manner that enables the following:
infringement amount is based on the others to infringe the copyright or ‘‘(B) If the defendant was convicted under
retail value of the infringed item in a trademark. The Commission determined 21 U.S.C. 860a of distributing, or possessing
case under 18 U.S.C. 2318 or 2320 that that trafficking in circumvention with intent to distribute, methamphetamine
involves a counterfeit label, patch, devices similarly enables others to on premises where a minor is present or
sticker, wrapper, badge, emblem, infringe a copyright and warrants resides, increase by 2 levels. If the resulting
medallion, charm, box, container, can, greater punishment. offense level is less than level 14, increase to
case, hangtag, documentation, or level 14.
The amendment also strikes language
(C) If—
packaging of any type or nature (i) that in Application Note 3 mandating an (i) the defendant was convicted under 21
has not been affixed to, or does not adjustment under § 3B1.3 (Abuse of U.S.C. 860a of manufacturing, or possessing
enclose or accompany a good or service; Position of Trust or Use of Special Skill) with intent to manufacture,
and (II) which, had it been so used, in every case in which the defendant de- methamphetamine on premises where a
would appear to a reasonably informed encrypted or otherwise circumvented a minor is present or resides; or
purchaser to be affixed to, enclosing or technological security measure to gain (ii) the offense involved the manufacture of
accompanying an identifiable, genuine initial access to an infringed item. amphetamine or methamphetamine and the
good or service. In such a case, the offense created a substantial risk of harm to
Instead, the note indicates that (I) human life other than a life described in
‘‘infringed item’’ is the identifiable, application of the adjustment may be subdivision (D); or (II) the environment,
genuine good or service. appropriate in such a case because the increase by 3 levels. If the resulting offense
In addition to re-promulgating the Commission determined that not every level is less than level 27, increase to level
emergency amendment, the amendment case involving de-encryption or 27.’’.
responds to the directive by addressing circumvention requires the level of skill Section 2D1.1(c)(1) is amended by
violations of 17 U.S.C. 1201 and 1204 contemplated by the special skill inserting ‘‘30,000,000 units or more of
involving circumvention devices. The adjustment. Ketamine;’’ after the line referenced to
amendment addresses circumvention Finally, the amendment modifies ‘‘Hashish Oil’’.
devices in two ways. First, the Application Note 4 to address Section 2D1.1(c)(2) is amended by
amendment adds an application note downward departures. The addition of inserting ‘‘At least 10,000,000 but less
regarding the determination of the this language recognizes that in some than 30,000,000 units of Ketamine;’’
infringement amount in cases under 17 instances the method for calculating the after the line referenced to ‘‘Hashish
U.S.C. 1201 and 1204 in which the infringement amount may be based on Oil’’.
defendant used a circumvention device a formula or extrapolation that Section 2D1.1(c)(3) is amended by
and thus obtained unauthorized access overstates the actual pecuniary harm to inserting ‘‘At least 3,000,000 but less
to a copyrighted work. Such an offense the copyright or trademark owner. This than 10,000,000 units of Ketamine;’’
would involve an identifiable language is analogous to departure after the line referenced to ‘‘Hashish
copyrighted work. Accordingly, language in § 2B1.1 (Larceny, Oil’’.
consistent with the existing rules in Embezzlement, and Other Forms of Section 2D1.1(c)(4) is amended by
§ 2B5.3, the ‘‘retail value of the Theft; Offenses Involving Stolen inserting ‘‘At least 1,000,000 but less
infringed item’’ would be used for Property; Property Damage or than 3,000,000 units of Ketamine;’’ after
purposes of determining the Destruction; Fraud and Deceit; Forgery; the line referenced to ‘‘Hashish Oil’’.
infringement amount. The amendment Offenses Involving Altered or Section 2D1.1(c)(5) is amended by
adds subsection (viii) to Application Counterfeit Instruments Other than inserting ‘‘At least 700,000 but less than
Note 2(A), and explains that the ‘‘retail Counterfeit Bearer Obligations of the 1,000,000 units of Ketamine;’’ after the
value of the infringed item’’ is the price United States) and thus promotes line referenced to ‘‘Hashish Oil’’.
the user would have paid to access consistency between these two Section 2D1.1(c)(6) is amended by
lawfully the copyrighted work, and the economic crime guidelines. inserting ‘‘At least 400,000 but less than
‘‘infringed item’’ is the accessed work. 700,000 units of Ketamine;’’ after the
If the defendant violated 17 U.S.C. 1201 8. Drugs line referenced to ‘‘Hashish Oil’’.
and 1204 by conduct that did not Amendment: Section 2D1.1(b) is Section 2D1.1(c)(7) is amended by
include use of a circumvention device, amended by redesingating subdivisions inserting ‘‘At least 100,000 but less than
Application Note 2(B) would apply by (8) and (9), as subdivisions (10) and 400,000 units of Ketamine;’’ after the
default. Thus, as it does in any case not (11), respectively; by redesignating line referenced to ‘‘Hashish Oil’’.
otherwise covered by Application Note subdivisions (5) through (7) as Section 2D1.1(c)(8) is amended by
2(A), the infringement amount would be subdivisions (6) through (8), inserting ‘‘At least 80,000 but less than
determined by reference to the value of respectively; by inserting after 100,000 units of Ketamine;’’ after the
the infringing item, which in these cases subdivision (4) the following: line referenced to ‘‘Hashish Oil’’.
would be the circumvention device. Section 2D1.1(c)(9) is amended by
Second, the amendment expands the ‘‘(5) If the defendant is convicted under 21 inserting ‘‘At least 60,000 but less than
sentencing enhancement in § 2B5.3(b)(3) U.S.C. 865, increase by 2 levels.’’;
80,000 units of Ketamine;’’ after the line
to include convictions under 17 U.S.C. and by inserting after subdivision (8), as referenced to ‘‘Hashish Oil’’.
1201 and 1204 for trafficking in redesignated by this amendment, the Section 2D1.1(c)(10) is amended by
circumvention devices. Prior to the following: inserting ‘‘At least 40,000 but less than
pwalker on PROD1PC71 with NOTICES2

amendment, § 2B5.3(b)(3) provided a 60,000 units of Ketamine;’’ after the line


two-level enhancement and a minimum ‘‘(9) If the defendant was convicted under referenced to ‘‘Hashish Oil’’; and by
offense level of 12 for cases involving 21 U.S.C. 841(g)(1)(A), increase by 2 levels.’’.
inserting ‘‘(except Ketamine)’’ after
the manufacture, importation, or Section 2D1.1(b) is amended in ‘‘Schedule III substances’’.
uploading of infringing items. The subdivision (10), as redesignated by this Section 2D1.1(c)(11) is amended by
purpose of the enhancement in amendment, by striking ‘‘greater’’ and inserting ‘‘At least 20,000 but less than

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28570 Federal Register / Vol. 72, No. 97 / Monday, May 21, 2007 / Notices

40,000 units of Ketamine;’’ after the line The Commentary to § 2D1.1 captioned The Commentary to § 2D1.11
referenced to ‘‘Hashish Oil’’; and by ‘‘Application Notes’’ is amended in captioned ‘‘Statutory Provisions’’ is
inserting ‘‘(except Ketamine)’’ after Note 19 by striking ‘‘(b)(8)’’ each place amended by inserting ‘‘865,’’ after
‘‘Schedule III substances’’. it appears and inserting ‘‘(b)(10)’’. ‘‘(f)(1),’’.
Section 2D1.1(c)(12) is amended by The Commentary to § 2D1.1 captioned The Commentary to § 2D1.11
inserting ‘‘At least 10,000 but less than ‘‘Application Notes’’ is amended in captioned ‘‘Application Notes’’ is
20,000 units of Ketamine;’’ after the line Note 20 in subdivision (A) by striking amended by adding at the end the
referenced to ‘‘Hashish Oil’’; and by ‘‘(b)(8)(B) or (C)’’ and inserting following:
inserting ‘‘(except Ketamine)’’ after ‘‘(b)(10)(C)(ii) or (D)’’; and in ‘‘8. Imposition of Consecutive Sentence for
‘‘Schedule III substances’’. subdivision (B) by striking ‘‘(b)(8)(C)’’ 21 U.S.C. 865.—Section 865 of title 21,
Section 2D1.1(c)(13) is amended by and inserting ‘‘(b)(10)(D)’’. United States Code, requires the imposition
inserting ‘‘At least 5,000 but less than The Commentary to § 2D1.1 captioned of a mandatory consecutive term of
10,000 units of Ketamine;’’ after the line ‘‘Application Notes’’ is amended in imprisonment of not more than 15 years. In
referenced to ‘‘Hashish Oil’’; and by Note 21 by striking ‘‘(9)’’ each place it order to comply with the relevant statute, the
inserting ‘‘(except Ketamine)’’ after appears and inserting ‘‘(11)’’. court should determine the appropriate ‘total
The Commentary to § 2D1.1 captioned punishment’ and, on the judgment form,
‘‘Schedule III substances’’.
‘‘Application Notes’’ is amended by divide the sentence between the sentence
Section 2D1.1(c)(14) is amended by attributable to the underlying drug offense
inserting ‘‘At least 2,500 but less than redesignating Notes 22 through 25 as
Notes 23 through 26, respectively; and and the sentence attributable to 21 U.S.C.
5,000 units of Ketamine;’’ after the line 865, specifying the number of months to be
referenced to ‘‘Hashish Oil’’; and by by inserting after Note 21 the following: served consecutively for the conviction
inserting ‘‘(except Ketamine)’’ after ‘‘22. Imposition of Consecutive Sentence under 21 U.S.C. 865. For example, if the
‘‘Schedule III substances’’. for 21 U.S.C. 860a or 865.—Sections 860a applicable adjusted guideline range is 151–
Section 2D1.1(c)(15) is amended by and 865 of title 21, United States Code, 188 months and the court determines a ‘total
require the imposition of a mandatory punishment’ of 151 months is appropriate, a
inserting ‘‘At least 1,000 units but less consecutive term of imprisonment of not sentence of 130 months for the underlying
than 2,500 units of Ketamine; ‘‘ after the more than 20 years and 15 years, offense plus 21 months for the conduct
line referenced to ‘‘Hashish Oil’’; and by respectively. In order to comply with the covered by 21 U.S.C. 865 would achieve the
inserting ‘‘(except Ketamine)’’ after relevant statute, the court should determine ‘total punishment’ in a manner that satisfies
‘‘Schedule III substances’’. the appropriate ‘total punishment’ and divide the statutory requirement of a consecutive
Section 2D1.1(c)(16) is amended by the sentence on the judgment form between sentence.’’.
inserting ‘‘At least 250 units but less the sentence attributable to the underlying
drug offense and the sentence attributable to Appendix A (Statutory Index) is
than 1,000 units of Ketamine;’’ after the amended by inserting after the line
21 U.S.C. 860a or 865, specifying the number
line referenced to ‘‘Hashish Oil’’; and by of months to be served consecutively for the referenced to 21 U.S.C. 841(f)(1) the
inserting ‘‘(except Ketamine)’’ after conviction under 21 U.S.C. 860a or 865. For following:
‘‘Schedule III substances’’. example, if the applicable adjusted guideline
Section 2D1.1(c)(17) is amended by range is 151–188 months and the court ‘‘21 U.S.C. 841(g)—2D1.1’’;
inserting ‘‘Less than 250 units of determines a ‘total punishment’ of 151 by inserting after the line referenced to
Ketamine;’’ after the line referenced to months is appropriate, a sentence of 130 21 U.S.C. 860 the following:
‘‘Hashish Oil’’; and by inserting months for the underlying offense plus 21
months for the conduct covered by 21 U.S.C. ‘‘21 U.S.C. 860a—2D1.1’’;
‘‘(except Ketamine)’’ after ‘‘Schedule III 860a or 865 would achieve the ‘total
substances’’. and by inserting after the line referenced
punishment’ in a manner that satisfies the to 21 U.S.C. 864 the following:
The Commentary to § 2D1.1 captioned statutory requirement of a consecutive
‘‘Statutory Provisions’’ is amended by sentence.’’. ‘‘21 U.S.C. 865—2D1.1, 2D1.11’’.
inserting ‘‘(g), 860a, 865,’’ after ‘‘(3), The Commentary to § 2D1.1 captioned Reason for Amendment: This
(7),’’. ‘‘Application Notes’’ is amended in amendment responds to the new
The Commentary to § 2D1.1 captioned Note 23, as redesignated by this offenses created by the USA PATRIOT
‘‘Application Notes’’ is amended in amendment, by striking ‘‘(5)’’ each place Improvement and Reauthorization Act
Note 10 in the section captioned ‘‘Drug it appears and inserting ‘‘(6)’’. of 2005 (the ‘‘PATRIOT Reauthorization
Equivalency Tables’’ in the subdivision The Commentary to § 2D1.1 captioned Act’’), Pub. L. 109–177, and the Adam
captioned ‘‘Schedule III Substances’’ by ‘‘Application Notes’’ is amended in Walsh Child Protection and Safety Act
inserting in the heading ‘‘(except Note 25, as redesignated by this of 2006 (the ‘‘Adam Walsh Act’’), Pub.
ketamine)’’ after ‘‘Substances’’; amendment, by striking ‘‘(6)’’ each place L. 109–248.
by adding after the subdivision it appears and inserting ‘‘(7)’’. First, the amendment addresses
captioned ‘‘Schedule III Substances’’ the The Commentary to § 2D1.1 captioned section 731 of the PATRIOT
following new subdivision: ‘‘Application Notes’’ is amended in Reauthorization Act, which created a
‘‘Ketamine Note 26, as redesignated by this new offense at 21 U.S.C. 865. The new
1 unit of ketamine = 1 gm of marihuana’’; amendment, by striking ‘‘(7)’’ each place offense provides a mandatory
and by adding after the subdivision it appears and inserting ‘‘(8)’’. consecutive sentence of 15 years’
The Commentary to § 2D1.1 captioned imprisonment for smuggling of
captioned ‘‘List I Chemicals (relating to
‘‘Background’’ is amended in the ninth methamphetamine or its precursor
the manufacture of amphetamine or
paragraph by striking ‘‘(b)(8)’’ and chemicals into the United States by a
methamphetamine)’’ the following new
inserting ‘‘(b)(10)’’; and in the last person enrolled in, or acting on behalf
subdivision:
paragraph by striking ‘‘(b)(8)(B) and (C)’’ of someone or some entity enrolled in,
‘‘Date Rape Drugs (except and inserting ‘‘(b)(10)(C)(ii) and (D)’’.
pwalker on PROD1PC71 with NOTICES2

any dedicated commuter lane,


flunitrazipam, GHB, or ketamine) Section 2D1.11(b) is amended by alternative or accelerated inspection
1 ml of 1,4-butanediol = 8.8 gm adding at the end the following system, or other facilitated entry
marihuana subdivision: program administered by the federal
1 ml of gamma butyrolactone = 8.8 gm ‘‘(5) If the defendant is convicted under 21 government for use in entering the
marihuana’’. U.S.C. 865, increase by 2 levels.’’. United States. The amendment refers

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Federal Register / Vol. 72, No. 97 / Monday, May 21, 2007 / Notices 28571

the new offense to both §§ 2D1.1 involving larger quantities of ketamine a two-level increase for basic
(Unlawful Manufacturing, Importing, that correspond to offense levels greater environmental harms, such as
Exporting, or Trafficking (Including than level 20. This approach is discharging hazardous substances into
Possession with Intent to Commit These consistent with how other drug offenses the environment. The second tier
Offenses); Attempt or Conspiracy) and with a statutory maximum term of provided a three-level increase, and a
2D1.11 (Unlawfully Distributing, imprisonment of 20 years are penalized minimum offense level of 27, for the
Importing, Exporting or Possessing a and with how other date rape drugs are substantial risk of harm to the life of
Listed Chemical; Attempt or penalized. The amendment also someone other than a minor or an
Conspiracy), and provides a new two- provides a marihuana equivalency in incompetent. The final tier provided a
level enhancement in §§ 2D1.1(b)(5) and Application Note 10 for ketamine (1 six-level increase and a minimum
2D1.11(b)(5) if the defendant is unit of ketamine = 1 gram of offense level of 30 for the substantial
convicted under 21 U.S.C. 865. The marihuana). risk of harm to the life of a minor or
Commission determined that a two-level Fourth, the amendment adds to incompetent or the environment.
enhancement is appropriate because § 2D1.1, Application Note 10, a new The Commission determined that
such conduct is analogous to abusing a drug equivalency for 1,4-butanediol distributing, or possessing with the
position of trust, which receives a two- (BD) and gamma butyrolactone (GBL), intent to distribute, methamphetamine
level adjustment under § 3B1.3 (Abuse both of which are included in the on a premises where a minor is present
of Position of Trust or Use of Special definition of date rape drugs under 21 or resides presents a greater harm than
Skill). U.S.C. 841(g). Neither is a controlled discharging a hazardous substance into
Second, the amendment modifies substance. The drug equivalency is 1 ml the environment, but is a lesser harm
§ 2D1.1 to address the new offense in 21 of BD or GBL equals 8.8 grams of than the substantial risk of harm to
U.S.C. 841(g) (Internet Sales of Date marihuana. The Commission has adults or to the environment created by
Rape Drugs) created by the Adam Walsh received testimony that both substances the manufacture of methamphetamine.
Act. This offense, which is punishable are at least equipotent as GHB, which is Therefore, the amendment adds a new
up to statutory maximum term of punished at the same marihuana tier to the enhancement in the new
imprisonment of 20 years, prohibits the equivalency. subdivision (b)(10)(B) in order to
use of the Internet to distribute a date Fifth, the amendment addresses the account for this conduct. A defendant
rape drug to any person, ‘‘knowing or new offense in 21 U.S.C. 860a convicted under 21 U.S.C. 860a for
with reasonable cause to believe that— (Consecutive sentence for distributing, or possessing with the
(A) The drug would be used in the manufacturing or distributing, or intent to distribute, methamphetamine
commission of criminal sexual conduct; possessing with intent to manufacture on a premises where a minor is present
or (B) the person is not an authorized or distribute, methamphetamine on or resides will receive a two-level
purchaser.’’ The statute defines ‘‘date premises where children are present or enhancement, with a minimum offense
rape drug’’ as ‘‘(i) gamma reside), created by the PATRIOT level of 14.
hydroxybutyric acid (GHB) or any Reauthorization Act. The new offense To address the overlap of conduct
controlled substance analogue of GHB, provides that a term of not more than 20 covered by the enhancement for the
including gamma butyrolactone (GBL) years’ imprisonment is to be imposed, substantial risk of harm to the life of a
or 1,4-butanediol; (ii) ketamine; (iii) in addition to any other sentence minor and the new offense of
flunitrazipam; or (iv) any substance imposed, for manufacturing, manufacturing, or possessing with the
which the Attorney General designates distributing, or possessing with the intent to manufacture,
* * * to be used in committing rape or intent to manufacture or distribute, methamphetamine on a premises where
sexual assault.’’ The amendment methamphetamine on a premises where a minor is present or resides, a three-
provides a new two-level enhancement a minor is present or resides. The level enhancement and a minimum
in § 2D1.1(b)(9) that is tailored to focus amendment modifies § 2D1.1(b)(8)(C) to offense level of level 27 will apply in a
on the more serious conduct covered by provide a two-level increase (with a case in which a minor is present, but in
the new statute, specifically conviction minimum offense level of 14) if the which the offense did not create a
under 21 U.S.C. 841(g)(A), which covers defendant is convicted under 21 U.S.C. substantial risk of harm to the life of a
individuals who know or have 860a involving the distribution or minor. In any methamphetamine
reasonable cause to believe the drug possession with intent to distribute manufacturing offense which creates a
would be used in the commission of methamphetamine and a three-level substantial risk of harm to the life of a
criminal sexual conduct. increase (with a minimum offense level minor, a six-level enhancement and a
Third, the amendment eliminates the of 27) if the defendant is convicted minimum offense level of level 30 will
maximum base offense level of level 20 under 21 U.S.C. 860a involving the apply.
for ketamine offenses. Ketamine is a manufacture or possession with intent Sixth, the amendment updates
Schedule III controlled substance. The to manufacture methamphetamine. Appendix A (Statutory Index) to include
Drug Quantity Table at § 2D1.1(c) To account for the spectrum of harms references to the new offenses created
provides a maximum offense level of 20 created by methamphetamine offenses, by the PATRIOT Reauthorization and
for most Schedule III substances and to address the specific harms Adam Walsh Acts.
because such substances are subject to created by 21 U.S.C. 860a, the
a statutory maximum term of amendment builds on the ‘‘substantial 9. Cocaine Base Sentencing
imprisonment of 5 years. If a defendant risk enhancement.’’ This multi-tiered Amendment: Section 2D1.1(c)(1) is
is convicted under 21 U.S.C. 841(g) for enhancement was added to § 2D1.1 in amended by striking ‘‘1.5 KG or more of
distributing ketamine, however, the 2000 in response to the Cocaine Base’’ and inserting ‘‘4.5 KG or
pwalker on PROD1PC71 with NOTICES2

defendant is subject to a statutory Methamphetamine Anti-Proliferation more of Cocaine Base’’.


maximum term of imprisonment of 20 Act of 2000, Pub. L. 106–310, Title Section 2D1.1(c)(2) is amended by
years. Accordingly, the amendment XXXVI. See USSG App. C (Amendments striking ‘‘At least 500 G but less than 1.5
modifies the Drug Quantity Table in 608 and 620 (effective Dec. 12, 2000, KG of Cocaine Base’’ and inserting ‘‘At
order to allow for appropriate and Nov. 1, 2001, respectively)). Prior to least 1.5 KG but less than 4.5 KG of
sentencing of 21 U.S.C. 841(g) offenses this amendment, the first tier provided Cocaine Base’’.

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28572 Federal Register / Vol. 72, No. 97 / Monday, May 21, 2007 / Notices

Section 2D1.1(c)(3) is amended by in the second paragraph by striking level for all the controlled substances
striking ‘‘At least 150 G but less than ‘‘The Drug Equivalency Tables also involved in the offense.
500 G of Cocaine Base’’ and inserting provide’’ and inserting the following: (ii) Example.—The case involves 1.5 kg of
cocaine, 10 kg of marihuana, and 20 g of
‘‘At least 500 G but less than 1.5 KG of ‘‘(B) Combining Differing Controlled cocaine base. Pursuant to subdivision (B), the
Cocaine Base’’. Substances (Except Cocaine Base).—The equivalent quantity of marihuana for the
Section 2D1.1(c)(4) is amended by Drug Equivalency Tables also provide’’; cocaine and the marihuana is 310 kg. (The
striking ‘‘At least 50 G but less than 150 and by adding at the end the following: cocaine converts to an equivalent of 300 kg
G of Cocaine Base’’ and inserting ‘‘At of marihuana (1.5 kg × 200 g = 300 kg), which
least 150 G but less than 500 G of ‘‘To determine a single offense level in a when added to the quantity of marihuana
Cocaine Base’’. case involving cocaine base and other involved in the offense, results in an
controlled substances, see subdivision (D) of equivalent quantity of 310 kg of marihuana.)
Section 2D1.1(c)(5) is amended by this note.’’.
striking ‘‘At least 35 G but less than 50 This corresponds to a base offense level 26.
The Commentary to § 2D1.1 captioned Pursuant to the table in subdivision (II), the
G of Cocaine Base’’ and inserting ‘‘At base offense level of 26 results in a
least 50 G but less than 150 G of Cocaine ‘‘Application Notes’’ is amended in
marihuana equivalency of 5 kg for the
Base’’. Note 10 in the subdivision captioned cocaine base. Using this marihuana
Section 2D1.1(c)(6) is amended by ‘‘Examples:’’ by striking ‘‘Examples:’’ equivalency for the cocaine base results in a
striking ‘‘At least 20 G but less than 35 and inserting the following: marihuana equivalency of 100 kg (20 g × 5
G of Cocaine Base’’ and inserting ‘‘At ‘‘(C) Examples for Combining Differing kg = 100 kg). Adding the quantities of
least 35 G but less than 50 G of Cocaine Controlled Substances (Except Cocaine marihuana of all three controlled substances
Base’’. Base).—’’; results in a combined quantity of 410 kg of
marihuana, which corresponds to a
Section 2D1.1(c)(7) is amended by and by redesignating examples ‘‘a.’’ combined base offense level of 28 in the Drug
striking ‘‘At least 5 G but less than 20 through ‘‘d.’’ as examples (i) through Quantity Table.’’.
G of Cocaine Base’’ and inserting ‘‘At (iv), respectively.
least 20 G but less than 35 G of Cocaine The Commentary to § 2D1.1 captioned
The Commentary to § 2D1.1 captioned ‘‘Application Notes’’ is amended in
Base’’. ‘‘Application Notes’’ is amended in
Section 2D1.1(c)(8) is amended by Note 10 by striking ‘‘DRUG
Note 10 by inserting after example (iv), EQUIVALENCY TABLES’’ and inserting
striking ‘‘At least 4 G but less than 5 G as redesignated by this amendment, the
of Cocaine Base’’ and inserting ‘‘At least the following:
following:
5 G but less than 20 G of Cocaine Base’’. ‘‘(E) Drug Equivalency Tables.—’’;
Section 2D1.1(c)(9) is amended by ‘‘(D) Determining Base Offense Level in
Offenses Involving Cocaine Base and Other
and in the subdivision captioned
striking ‘‘At least 3 G but less than 4 G Controlled Substances.— ‘‘Cocaine and Other Schedule I and II
of Cocaine Base’’ and inserting ‘‘At least (i) In General.—If the offense involves Stimulants (and their immediate
4 G but less than 5 G of Cocaine Base’’. cocaine base (‘crack’) and one or more other precursors)’’ by striking ‘‘1 gm of
Section 2D1.1(c)(10) is amended by controlled substance, determine the base Cocaine Base (‘Crack’) = 20 kg of
striking ‘‘At least 2 G but less than 3 G offense level as follows: marihuana’’.
of Cocaine Base’’ and inserting ‘‘At least (I) Determine the combined base offense
level for the other controlled substance or
Reason for Amendment: The
3 G but less than 4 G of Cocaine Base’’.
controlled substances as provided in Commission identified as a policy
Section 2D1.1(c)(11) is amended by
subdivision (B) of this note. priority for the amendment cycle ending
striking ‘‘At least 1 G but less than 2 G
(II) Use the combined base offense level May 1, 2007, ‘‘continuation of its work
of Cocaine Base’’ and inserting ‘‘At least
determined under subdivision (B) of this note with the congressional, executive, and
2 G but less than 3 G of Cocaine Base’’. to obtain the appropriate marihuana judicial branches of the government and
Section 2D1.1(c)(12) is amended by equivalency for the cocaine base involved in other interested parties on cocaine
striking ‘‘At least 500 MG but less than the offense using the following table: sentencing policy,’’ including
1 G of Cocaine Base’’ and inserting ‘‘At
reevaluating the Commission’s 2002
least 1 G but less than 2 G of Cocaine Marihuana
Base offense level equivalency report to Congress, Cocaine and Federal
Base’’.
Sentencing Policy. As a result of the
Section 2D1.1(c)(13) is amended by
38 .............................. 6.7 kg of marihuana Anti-Drug Abuse Act of 1986, Pub. L.
striking ‘‘At least 250 MG but less than
36 .............................. 6.7 kg of marihuana 99–570, 21 U.S.C. 841(b)(1) requires a
500 MG of Cocaine Base’’ and inserting 34 .............................. 6 kg of marihuana. five-year mandatory minimum penalty
‘‘At least 500 MG but less than 1 G of 32 .............................. 6.7 kg of marihuana. for a first-time trafficking offense
Cocaine Base’’. 30 .............................. 14 kg of marihuana. involving 5 grams or more of crack
Section 2D1.1(c)(14) is amended by 28 .............................. 11.4 kg of marihuana. cocaine, or 500 grams of powder
striking ‘‘Less than 250 MG of Cocaine 26 .............................. 5 kg of marihuana.
cocaine, and a ten-year mandatory
Base’’ and inserting ‘‘Less than 500 MG 24 .............................. 16 kg of marihuana.
22 .............................. 15 kg of marihuana. minimum penalty for a first-time
of Cocaine Base’’.
The Commentary to § 2D1.1 captioned 20 .............................. 13.3 kg of marihuana. trafficking offense involving 50 grams or
‘‘Application Notes’’ is amended in 18 .............................. 10 kg of marihuana. more of crack cocaine, or 5,000 grams or
Note 10 in the first paragraph by 16 .............................. 10 kg of marihuana. more of powder cocaine. Because 100
inserting before ‘‘The Commission has
14 .............................. 10 kg of marihuana. times more powder cocaine than crack
12 .............................. 10 kg of marihuana. cocaine is required to trigger the same
used the sentences’’ the following:
mandatory minimum penalty, this
‘‘Use of Drug Equivalency Tables.— (III) Using the marihuana equivalency penalty structure is commonly referred
(A) Controlled Substances Not Referenced obtained from the table in subdivision (II),
to as the ‘‘100-to-1 drug quantity ratio.’’
in Drug Quantity Table.—’’; convert the quantity of cocaine base involved
pwalker on PROD1PC71 with NOTICES2

To assist the Commission in its


in the offense to its equivalent quantity of
by striking ‘‘(A)’’ before ‘‘Use’’ and marihuana. consideration of Federal cocaine
inserting ‘‘(i)’’; by striking ‘‘(B)’’ before (IV) Add the quantity of marihuana sentencing policy, the Commission
‘‘Find’’ and inserting ‘‘(ii)’’; and by determined under subdivisions (I) and (III), received statements and heard expert
striking ‘‘(C)’’ before ‘‘Use’’ and and look up the total in the Drug Quantity testimony from the Executive Branch,
inserting ‘‘(iii)’’; Table to obtain the combined base offense the Federal judiciary, defense

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practitioners, state and local law guideline ranges that are above the sentencing policy ultimately is
enforcement representatives, medical statutory mandatory minimum Congress’s prerogative. Accordingly, the
and treatment experts, academicians, penalties. Accordingly, offenses Commission tailored the amendment to
social scientists, and interested involving 5 grams or more of crack fit within the existing statutory penalty
community representatives at hearings cocaine were assigned a base offense scheme by assigning base offense levels
on November 14, 2006, and March 20, level (level 26) corresponding to a that provide guideline ranges that
2007. The Commission also received sentencing guideline range of 63 to 78 include the statutory mandatory
substantial written public comment on months for a defendant in Criminal minimum penalties for crack cocaine
Federal cocaine sentencing policy History Category I (a guideline range offenses. The Commission, however,
throughout the amendment cycle. that exceeds the five-year statutory views the amendment only as an
During the amendment cycle, the minimum for such offenses by at least interim solution to some of the
Commission updated its analysis of key three months). Similarly, offenses problems associated with the 100-to-1
sentencing data about cocaine offenses involving 50 grams or more of crack drug quantity ratio. It is neither a
and offenders; reviewed recent scientific cocaine were assigned a base offense permanent nor a complete solution to
literature regarding cocaine use, effects, level (level 32) corresponding to a those problems. Any comprehensive
dependency, prenatal effects, and sentencing guideline range of 121 to 151 solution to the 100-to-1 drug quantity
prevalence; researched trends in cocaine months for a defendant in Criminal ratio requires appropriate legislative
trafficking patterns, price, and use; History Category I (a guideline range action by Congress.
surveyed the state laws regarding that exceeds the ten-year statutory
cocaine penalties; and monitored case minimum for such offenses by at least 10. Technical Amendments
law developments. one month). Crack cocaine offenses for Amendment: Section 2D1.11(a) is
Current data and information quantities above and below the amended by striking ‘‘(e)’’ after ‘‘under
continue to support the Commission’s mandatory minimum threshold subsection’’ and inserting ‘‘(d)’’.
consistently held position that the 100- quantities were set accordingly using The Commentary to § 2K2.1 captioned
to-1 drug quantity ratio significantly the 100-to-1 drug quantity ratio. ‘‘Application Notes’’ is amended in
undermines various congressional This amendment modifies the drug Note 14 in subdivision (B) by striking
objectives set forth in the Sentencing quantity thresholds in the Drug ‘‘(b)(1)’’ and inserting ‘‘(b)(6)’’.
Reform Act and elsewhere. These Quantity Table so as to assign, for crack Appendix A (Statutory Index) is
findings will be more thoroughly cocaine offenses, base offense levels amended by inserting after the line
explained in a forthcoming report that corresponding to guideline ranges that referenced to 18 U.S.C. 930 the
will present to Congress, on or before include the statutory mandatory following:
May 15, 2007, a number of minimum penalties. Accordingly,
‘‘18 U.S.C. 931—2K2.6’’:
recommendations for modifications to pursuant to the amendment, 5 grams of
the statutory penalties for crack cocaine cocaine base are assigned a base offense and by striking the following:
offenses. It is the Commission’s firm level of 24 (51 to 63 months at Criminal ‘‘18 U.S.C. 3147—2J1.7’’.
desire that this report will facilitate History Category I, which includes the Chapter Three, Part D is amended in
prompt congressional action addressing five-year (60 month) statutory minimum the Introductory Commentary in the
the 100-to-1 drug quantity ratio. for such offenses), and 50 grams of first paragraph by inserting after the first
The Commission’s recommendation cocaine base are assigned a base offense
and strong desire for prompt legislative sentence the following:
level of 30 (97 to 121 months at
action notwithstanding, the problems Criminal History Category I, which ‘‘These rules apply to multiple counts of
associated with the 100-to-1 drug includes the ten-year (120 month) conviction (A) contained in the same
quantity ratio are so urgent and indictment or information; or (B) contained
statutory minimum for such offenses).
compelling that this amendment is in different indictments or informations for
Crack cocaine offenses for quantities which sentences are to be imposed at the
promulgated as an interim measure to above and below the mandatory same time or in a consolidated proceeding.’’.
alleviate some of those problems. The minimum threshold quantities similarly
Commission has concluded that the are adjusted downward by two levels. The Commentary to § 3D1.1 captioned
manner in which the Drug Quantity The amendment also includes a ‘‘Application Note’’ is amended by
Table in § 2D1.1 (Unlawful mechanism to determine a combined striking ‘‘Note’’ and inserting ‘‘Notes’’;
Manufacturing, Importing, Exporting, or base offense level in an offense by redesignating Note 1 as Note 2; and
Trafficking (Including Possession with involving crack cocaine and other by inserting the following as new Note
Intent to Commit These Offenses); controlled substances. 1:
Attempt or Conspiracy) was constructed The Commission’s prison impact ‘‘1. In General—For purposes of sentencing
to incorporate the statutory mandatory model predicts that, assuming no multiple counts of conviction, counts can be
minimum penalties for crack cocaine change in the existing statutory (A) contained in the same indictment or
offenses is an area in which the Federal mandatory minimum penalties, this information; or (B) contained in different
sentencing guidelines contribute to the modification to the Drug Quantity Table indictments or informations for which
problems associated with the 100-to-1 will affect 69.7 percent of crack cocaine sentences are to be imposed at the same time
or in a consolidated proceeding.’’.
drug quantity ratio. offenses sentenced under § 2D1.1 and
When Congress passed the 1986 Act, will result in a reduction in the Reason for Amendment: This
the Commission responded by generally estimated average sentence of all crack amendment makes various technical
incorporating the statutory mandatory cocaine offenses from 121 months to and conforming changes to the
minimum sentences into the guidelines 106 months, based on an analysis of guidelines.
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and extrapolating upward and cases sentenced in fiscal year 2006 First, the amendment corrects
downward to set guideline sentencing under § 2D1.1 involving crack cocaine. typographical errors in subsection (a) of
ranges for all drug quantities. The drug Having concluded once again that the § 2D1.11 (Unlawfully Distributing,
quantity thresholds in the Drug 100-to-1 drug quantity ratio should be Importing, Exporting or Possessing a
Quantity Table are set so as to provide modified, the Commission recognizes Listed Chemical; Attempt or
base offense levels corresponding to that establishing federal cocaine Conspiracy) and Application Note 14 of

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§ 2K2.1 (Unlawful Receipt, Possession, 1039(a), (b), or (c). In order to comply with of the Telephone Records Act. The
or Transportation of Firearms or the statute, the court should determine the amendment refers the new offense at 18
Ammunition; Prohibited Transactions appropriate ‘total punishment’ and divide the U.S.C. 1039 to § 2H3.1 (Interception of
sentence on the judgment form between the Communications; Eavesdropping;
Involving Firearms or Ammunition).
sentence attributable to the conviction under
Second, the amendment addresses 18 U.S.C. 1039(d) or (e) and the sentence Disclosure of Tax Information). The
application of the grouping rules when attributable to the conviction under 18 U.S.C. Commission concluded that disclosure
a defendant is sentenced on multiple 1039(a), (b), or (c), specifying the number of of telephone records is similar to the
counts contained in different months to be served for the conviction under types of privacy offenses referenced to
indictments as, for example, when a 18 U.S.C. 1039(d) or (e). For example, if the this guideline. In addition, this
case is transferred to another district for applicable adjusted guideline range is 15–21 guideline includes a cross reference,
purposes of sentencing, pursuant to Fed. months and the court determines a ‘total instructing that if the purpose of the 18
punishment’ of 21 months is appropriate, a U.S.C. 1039 offense was to facilitate
R. Crim. P. 20(a).
sentence of 9 months for conduct under 18
The amendment adopts the reasoning another offense, the guideline
U.S.C. 1039(a) plus 12 months for 18 U.S.C.
of recent case law and clarifies that the 1039(d) conduct would achieve the ‘total applicable to an attempt to commit the
grouping rules apply not only to punishment’ in a manner that satisfies the other offense should be applied, if the
multiple counts in the same indictment, statutory requirement. resulting offense level is higher. The
but also to multiple counts contained in 3. Upward Departure.—There may be cases Commission concluded that operation
different indictments when a defendant in which the offense level determined under of the cross reference would capture the
is sentenced on the indictments this guideline substantially understates the harms associated with the aggravated
seriousness of the offense. In such a case, an forms of this offense referenced at 18
simultaneously. The amendment
upward departure may be warranted. The U.S.C. 1039(d) or (e). The amendment
provides clarifying language in the following are examples of cases in which an
Introductory Commentary of Chapter also expands the scope of the existing
upward departure may be warranted:
Three, Part D, as well as in § 3D1.1 (i) The offense involved confidential phone
three-level enhancement in the
(Procedure for Determining Offense records information or tax return information guideline to include cases in which the
Level on Multiple Counts). The of a substantial number of individuals. defendant is convicted under 18 U.S.C.
language is the same as that provided in (ii) The offense caused or risked substantial 1039(d) or (e). Thus, in a case in which
*5G1.2 (Sentencing on Multiple Counts non-monetary harm (e.g. physical harm, the cross reference does not apply,
of Conviction). psychological harm, or severe emotional application of the enhancement will
trauma, or resulted in a substantial invasion capture the increased harms associated
11. Repromulgation of Emergency of privacy interest) to individuals whose with the aggravated offenses. Finally,
Amendment on Pretexting private or protected information was the amendment expands the upward
obtained.’’.
Amendment: The amendments to departure note to include tax return
§ 2H3.1 and Appendix A, effective May The Commentary to § 2H3.1 is information of a substantial number of
1, 2007 (see 72 FR 20576 (April 25, amended by striking ‘‘Background’’ individuals.
2007)), are repromulgated with the through the end of ‘‘and 7216.’’. Section 153 of the Adam Walsh Child
following changes: Appendix A (Statutory Index) is Protection and Safety Act of 2006, Pub.
Section 2H3.1 is amended in the amended by inserting after the line L. 109–248 (the ‘‘Adam Walsh Act’’),
heading by striking ‘‘Tax Return referenced to 8 U.S.C. 1328 the added a new offense at 42 U.S.C. 16962,
Information’’ and inserting ‘‘Certain following: which provides a statutory maximum
Private or Protected Information’’. ‘‘8 U.S.C. 1375a(d)(3)(C), (d)(5)(B)2H3.1’’; term of imprisonment of 10 years for the
Section 2H3.1(a) is amended by improper release of information
by inserting after the line referenced to obtained in fingerprint-based checks for
striking subdivision (2) and inserting 18 U.S.C. 1038 the following:
the following: the background check of either foster or
‘‘18 U.S.C. 1039—2H3.1’’ adoptive parents or of individuals
‘‘(2) 6, if the offense of conviction has a employed by, or considering
statutory maximum term of imprisonment of and by inserting after the line referenced
to 42 U.S.C. 14905 the following: employment with, a private or public
one year or less but more than six months.’’.
educational agency. Additionally,
Section 2H3.1(b)(1) is amended by ‘‘42 U.S.C. 16962—2H3.1 section 627 of the Adam Walsh Act
42 U.S.C. 16984—2H3.1’’.
inserting ‘‘(A) the defendant is added a new Class A Misdemeanor
convicted under 18 U.S.C. 1039(d) or Reason for Amendment: This offense at 42 U.S.C. 16984 prohibiting
(e); or (B)’’ after ‘‘If’’. amendment addresses several offenses the use of a child’s fingerprints for any
The Commentary to § 2H3.1 captioned that pertain to unauthorized access or purpose other than providing those
‘‘Statutory Provisions’’ is amended by disclosure of private or protected fingerprints to the child’s parent or legal
inserting ‘‘8 U.S.C. 1375a(d)(3)(C), information. Specifically, this guardian. This amendment references
(d)(5)(B);’’ before ‘‘18 U.S.C.’’; by amendment pertains to (A) the re- both offenses to § 2H3.1, providing a
inserting ‘‘§ 1039, 1905,’’ after ‘‘18 promulgation of the emergency base offense level of 9 under
U.S.C.’’; and by inserting ‘‘42 U.S.C. amendment that implemented the § 2H3.1(a)(1) if the defendant was
16962, 16984’’ after ‘‘7216;’’. directive in section 4 of the Telephone convicted of violating 42 U.S.C. 16962,
The Commentary to § 2H3.1 captioned Records and Privacy Protection Act of and a base offense level of 6 if the
‘‘Application Notes’’ is amended by 2006, Pub. L. 109–476 (the ‘‘Telephone defendant was convicted of violating 42
striking Note 1; by redesignating Note 2 Records Act’’); (B) offenses involving U.S.C. 16984.
as Note 1; and by adding at the end the improper use of a child’s fingerprints Finally, this amendment implements
following: under 42 U.S.C. 16984 and 16962; and the Violence Against Women and
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(C) various other offenses related to Department of Justice Reauthorization


‘‘2. Imposition of Sentence for 18 U.S.C.
1039(d) and (e).—Subsections 1039(d) and (e) private or protected information. Act of 2005, Pub. L. 109–162
of title 18, United States Code, require a term This amendment re-promulgates as (‘‘VAWA’’). VAWA included the
of imprisonment of not more than 5 years to permanent the temporary emergency International Marriage Broker
be imposed in addition to any sentence amendment (effective May 1, 2007) that Regulation Act of 2005 (‘‘IMBRA’’),
imposed for a conviction under 18 U.S.C. implemented the directive in section 4 which requires marriage brokers to keep

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private information gathered in the imposed, use the aggregate sentence of The Commentary to § 4A1.2 captioned
course of their business confidential. imprisonment.’’. ‘‘Application Notes’’ is amended by
New offenses at 8 U.S.C. Section 4A1.2(c)(1) is amended by striking Note 13.
§ 1375a(d)(3)(C) and 1375a(d)(5)(B) striking ‘‘at least one’’ and inserting The Commentary to § 4B1.2 captioned
involve invasions of protected privacy ‘‘more than one’’; by striking ‘‘Fish and ‘‘Application Notes’’ is amended in
interests and, as such, are referenced to game violations’’; and by striking ‘‘Local Note 1 in the paragraph that begins ‘‘A
§ 2H3.1. ordinance violations (excluding local violation of 18 U.S.C. 924(c)’’ by
The Commission concluded that ordinance violations that are also inserting ‘‘sentences for the’’ before
referencing these new offenses to criminal offenses under state law)’’. ‘‘two prior’’; and by striking ‘‘treated as
§ 2H3.1 was appropriate because each of Section 4A1.2(c)(2) is amended by related cases’’ and inserting ‘‘counted as
the new offenses is similar to the types inserting ‘‘Fish and game violations’’ as a single sentence’’.
of privacy offenses referenced to this a new line before the line referenced to The Commentary to § 2L1.2 captioned
guideline. ‘‘Hitchhiking’’; and by inserting ‘‘Local ‘‘Application Notes’’ is amended in
ordinance violations (except those Note 4(B) by striking ‘‘considered
12. Criminal History
violations that are also violations under ‘related cases’, as that term is defined in
Amendment: Section 4A1.1(f) is state criminal law)’’ as a new line before Application Note 3’’ and inserting
amended by striking ‘‘was considered the line referenced to ‘‘Loitering’’. ‘‘counted as a single sentence pursuant
related to another sentence resulting The Commentary to § 4A1.2 captioned to subsection (a)(2)’’.
from a conviction of a crime of ‘‘Application Notes’’ is amended by Reason for Amendment: This
violence’’ and inserting ‘‘was counted as striking Note 3 and inserting the amendment addresses two areas of the
a single sentence’’; and by striking the following: Chapter Four criminal history rules: The
last sentence. ‘‘3. Upward Departure Provision.— counting of multiple prior sentences
The Commentary to § 4A1.1 captioned Counting multiple prior sentences as a single and the use of misdemeanor and petty
‘‘Application Notes’’ is amended in sentence may result in a criminal history offenses in determining a defendant’s
Note 6 by striking the first paragraph score that underrepresents the seriousness of criminal history score. In November
and inserting the following: the defendant’s criminal history and the 2006 the Commission hosted round-
danger that the defendant presents to the
‘‘§ 4A1.1(f). In a case in which the public. In such a case, an upward departure
table discussions to receive input on
defendant received two or more prior may be warranted. For example, if a criminal history issues from federal
sentences as a result of convictions for crimes defendant was convicted of a number of judges, prosecutors, defense attorneys,
of violence that are counted as a single serious non-violent offenses committed on probation officers, and members of
sentence (see § 4A1.2(a)(2)), one point is different occasions, and the resulting academia. In addition, the Commission
added under § 4A1.1(f) for each such sentences were counted as a single sentence gathered information through its
sentence that did not result in any additional because either the sentences resulted from training programs, the public comment
points under § 4A1.1(a), (b), or (c). A total of offenses contained in the same charging
up to 3 points may be added under process, and comments received during
instrument or the defendant was sentenced
§ 4A1.1(f). For purposes of this guideline, for these offenses on the same day, the
a public hearing of the Commission in
‘crime of violence’ has the meaning given assignment of a single set of points may not March 2007. This amendment addresses
that term in § 4B1.2(a). See § 4A1.2(p).’’; adequately reflect the seriousness of the two issues that were raised during this
defendant’s criminal history or the frequency process.
and in the second paragraph by striking
with which the defendant has committed First, the amendment addresses the
‘‘that were consolidated for sentencing crimes.’’. counting of multiple prior sentences.
and therefore are treated as related.’’
The Commentary to § 4A1.2 captioned The Commission has heard from a
and inserting ‘‘. The sentences for these
‘‘Application Notes’’ is amended in number of practitioners throughout the
offenses were imposed on the same day
Note 12 by striking ‘‘Local Ordinance criminal justice system that the ‘‘related
and are counted as a single prior
Violations.’’ and inserting the following: cases’’ rules at subsection (a)(2) of
sentence. See § 4A1.2(a)(2).’’.
§ 4A1.2 (Definitions and Instructions for
Section 4A1.2(a) is amended in the ‘‘Application of Subsection (c).—
(A) In General.—In determining whether Computing Criminal History) and
heading by striking ‘‘Defined’’; and by Application Note 3 of § 4A1.2 are too
an unlisted offense is similar to an offense
striking subdivision (2) and inserting listed in subdivision (c)(1) or (c)(2), the court complex and lead to confusion.
the following: should use a common sense approach that Moreover, a significant amount of
‘‘(2) If the defendant has multiple prior includes consideration of relevant factors litigation has arisen concerning
sentences, determine whether those such as (i) a comparison of punishments application of the rules, and circuit
sentences are counted separately or as a imposed for the listed and unlisted offenses; conflicts have developed over the
single sentence. Prior sentences always are (ii) the perceived seriousness of the offense
meaning of terms in the commentary
counted separately if the sentences were as indicated by the level of punishment; (iii)
the elements of the offense; (iv) the level of that define when prior sentences may be
imposed for offenses that were separated by
an intervening arrest (i.e., the defendant is culpability involved; and (v) the degree to considered ‘‘related.’’ For example, the
arrested for the first offense prior to which the commission of the offense commentary provides that prior
committing the second offense). If there is no indicates a likelihood of recurring criminal sentences for offenses not separated by
intervening arrest, prior sentences are conduct. an intervening arrest are to be
counted separately unless (A) the sentences (B) Local Ordinance Violations.—’’; considered related if the sentences
resulted from offenses contained in the same by striking ‘‘§ 4A1.2(c)(1)’’ after resulted from offenses that were
charging instrument; or (B) the sentences ‘‘violations in’’ and inserting consolidated for sentencing. In
were imposed on the same day. Count any determining whether offenses were
‘‘§ 4A1.2(c)(2)’’; and by inserting at the
prior sentence covered by (A) or (B) as a
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end the following: consolidated for sentencing, some


single sentence. See also § 4A1.1(f).
For purposes of applying § 4A1.1(a), (b), ‘‘(C) Insufficient Funds Check.—
courts have required that the record
and (c), if prior sentences are counted as a ‘Insufficient funds check,’ as used in reflect a formal order of consolidation,
single sentence, use the longest sentence of § 4A1.2(c)(1), does not include any while others have not. Compare, e.g.,
imprisonment if concurrent sentences were conviction establishing that the defendant United States v. Correa, 114 F.3d 314,
imposed. If consecutive sentences were used a false name or non-existent account.’’. 317 (1st Cir. 1997) (order required) with

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28576 Federal Register / Vol. 72, No. 97 / Monday, May 21, 2007 / Notices

United States v. Huskey, 137 F.3d 283, be added under § 4A1.1(a). An Sentencing Guidelines (2004) for
288 (5th Cir. 1998) (order not required). additional point would be added under additional information concerning this
The amendment simplifies the rules § 4A1.1(f) because the second sentence sample.) Furthermore, the Commission
for counting multiple prior sentences was for a crime of violence that did not examined how state guidelines treat
and promotes consistency in the receive any points under § 4A1.1(a), (b), minor offenses.
application of the guideline. The or (c). The results of these analyses led the
amendment eliminates use of the term The amendment also provides for an Commission to make three
‘‘related cases’’ at § 4A1.2(a)(2) and upward departure at Application Note modifications to § 4A1.2(c)(1) and (2).
instead uses the terms ‘‘single’’ and 12(A) to § 4A1.1 if counting multiple First, the amendment moves from
‘‘separate’’ sentences. This change in prior sentences as a single sentence § 4A1.2(c)(1) to § 4A1.2(c)(2) two classes
terminology was made because some would underrepresent the seriousness of of offenses: fish and game violations and
have misunderstood the term ‘‘related the defendant’s criminal history and the local ordinance violations (except those
cases’’ to suggest a relationship between danger that the defendant presents to violations that are also violations under
the prior sentences and the instant the public. state criminal law). Second, the
offense. Prior sentences for conduct that Second, the amendment addresses the amendment changes the probation
is part of the instant offense are use of misdemeanor and petty offenses criterion at § 4A1.2(c)(1) from a term of
separately addressed at § 4A1.2(a)(1) in determining a defendant’s criminal ‘‘at least’’ one year to a term of ‘‘more
and Application Note 1 of that history score. Sections 4A1.2(c)(1) and than’’ one year. Finally, the amendment
guideline. (2) govern whether and when certain resolves a circuit conflict over the
Under the amendment, the initial misdemeanor and petty offenses are manner in which a non-listed offense is
inquiry will be whether the prior counted. Section 4A1.2(c)(1) lists determined to be ‘‘similar to’’ an offense
sentences were for offenses that were offenses that are counted only when the listed at § 4A1.2(c)(1) and (2).
separated by an intervening arrest (i.e., prior sentence was a term of probation Fish and game violations were moved
the defendant was arrested for the first of at least one year or a term of from § 4A1.2(c)(1) to § 4A1.2(c)(2) so
offense prior to committing the second imprisonment of at least 30 days. that they will not be counted in a
offense). If so, they are to be considered Section 4A1.2(c)(2) lists offenses that defendant’s criminal history score. Fish
separate sentences, counted separately, are never counted toward the and game violations generally do not
and no further inquiry is required. defendant’s criminal history score. The involve criminal conduct that is more
If the prior sentences were for amendment responds to concerns that serious than the offense of conviction,
offenses that were not separated by an (1) some misdemeanor and petty and the relatively minor sentences
intervening arrest, the sentences are to offenses counted under the guidelines received by fish and game offenders in
be counted as separate sentences unless involve conduct that is not serious the fiscal year 2006 study suggest that
the sentences (1) were for offenses that enough to warrant increased these offenses are not considered to be
were named in the same charging punishment upon sentencing for a among the more serious offenses listed
document, or (2) were imposed on the subsequent offense; (2) the presence of at § 4A1.2(c)(1).
same day. In either of these situations a prior misdemeanor or petty offense in In addition, local ordinance violations
they are treated as a single sentence. a rare case can affect the sentence in the (except those that are also violations of
The amendment further provides that instant offense in a way that is greatly state law) were moved from
in the case of a single sentence that disproportionate to the seriousness of § 4A1.2(c)(1) to § 4A1.2(c)(2) so that
comprises multiple concurrent the prior offense (such as when such a they also will not be counted in a
sentences of varying lengths, the longest prior offense alone disqualifies a defendant’s criminal history score.
sentence is to be used for purposes of defendant from safety valve eligibility); Similar to fish and game violations,
applying subsection (a), (b) and (c) of and (3) jurisdictional differences in local ordinance violations generally do
§ 4A1.1 (Criminal History Category). In defining misdemeanor and petty not represent conduct criminalized
the case of a single sentence that offenses can result in inconsistent under state law. Moreover, these
comprises multiple sentences that application of criminal history points offenses also frequently received minor
include one or more consecutive for substantially similar conduct. sentences. The exception in this
sentences, the aggregate sentence is to To evaluate these concerns, the amendment for violations that are also
be used for purposes of applying Commission conducted a study of criminal violations under state law will
§ 4A1.1(a), (b), and (c). misdemeanor and petty offenses and the ensure that only the more serious prior
Instances may arise in which a single criminal history rules that govern them, criminal conduct will continue to be
sentence comprises multiple prior particularly § 4A1.2(c)(1). The included in the criminal history score.
sentences for crimes of violence. In such Commission examined a sample of Section 4A1.2(c)(1)(A) is amended to
a case, § 4A1.1(f) will apply. Consistent 11,300 offenders sentenced in fiscal year provide that the offenses listed at
with § 4A1.1(f) and Application Note 6 2006 to determine the type of § 4A1.2(c)(1) will be counted ‘‘only if
to § 4A1.1, additional criminal history misdemeanor and petty offenses (A) the sentence was a term of probation
points will be awarded for certain counted in the criminal history score, of more than one year or a term of
sentences that otherwise do not receive the frequency with which they imprisonment of at least thirty days, or
points because they have been occurred, and the particular guideline (B) the prior offense was similar to the
determined to be part of a single provisions that caused them to be instant offense’’ (emphasis added). The
sentence. For example, if a defendant’s counted. In addition, the Commission Commission received comment that
criminal history contains two robbery examined a sample of offenders some sentences of a one-year term of
convictions for which the defendant sentenced in 1992 who were probation constitute a default
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received concurrent five-year sentences subsequently released from punishment summarily imposed by the
of imprisonment and the sentences are imprisonment and monitored for two state sentencing authority, particularly
considered a single sentence because years for evidence of recidivism. (See in those instances in which the
the offenses were not separated by an U.S. Sentencing Commission, probation imposed lacked a supervision
intervening arrest and were imposed on Measuring Recidivism: The Criminal component or was imposed in lieu of a
the same day, a total of 3 points would History Computation of the Federal fine or to enable the payment of a fine.

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The Commission determined that prior similarity such as ‘‘punishments the elements of the two offenses to
misdemeanor and petty offenses that imposed for the listed and unlisted determine whether or not the offenses
receive such a relatively minor default offenses, the perceived seriousness of are similar. See United States v. Elmore,
sentence should not be counted for the offense as indicated by the level of 108 F.3d 23, 27 (3d Cir. 1997); United
criminal history purposes. punishment, the elements of the offense, States v. Tigney, 367 F.3d 200, 201–02
The amendment resolves a circuit the level of culpability involved, and (4th Cir. 2004); United States v. Borer,
conflict over the manner in which a the degree to which the commission of 412 F.3d 987, 992 (8th Cir. 2005). This
court should determine whether a non- the offense indicates a likelihood of amendment, at Application Note 12(A),
recurring criminal conduct.’’ Id. See adopts the Hardeman ‘‘common sense
listed offense is ‘‘similar to’’ an offense
also United States v. Martinez-Santos, approach’’ as a means of ensuring that
listed at § 4A1.2(c)(1) or (2). Some
184 F.3d 196, 205–06 (2d Cir. 1999) courts are guided by a number of
courts have adopted a ‘‘common sense
(adopting Hardeman approach); United relevant factors that may help them
approach,’’ first articulated by the Fifth
States v. Booker, 71 F.3d 685, 689 (7th determine whether a non-listed offense
Circuit in United States v. Hardeman,
is similar to a listed one.
933 F.2d 278, 281 (5th Cir. 1991). This Cir. 1995) (same). Other courts have
common sense approach includes adopted a strict ‘‘elements’’ test, which [FR Doc. E7–9421 Filed 5–11–07; 11:54 am]
consideration of all relevant factors of involves solely a comparison between BILLING CODE 2211–01–P
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