[Federal Register Volume 61, Number 37 (Friday, February 23, 1996)]
[Notices]
[Pages 7037-7039]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4050]
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UNITED STATES SENTENCING COMMISSION
Sentencing Guidelines for United States Courts
AGENCY: United States Sentencing Commission.
ACTION: Notice of proposed amendments to sentencing guidelines and
commentary. Request for public comment. Notice of hearing.
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SUMMARY: The Commission is considering promulgating certain amendments
to the sentencing guidelines and commentary. This notice sets forth the
proposed amendments and a synopsis of the issues addressed by the
amendments as well as additional issues for comment. The Commission
seeks comment on the proposed amendments, alternative proposed
amendments, and any other aspect of the sentencing guidelines, policy
statements, and commentary. The Commission may submit amendments to the
Congress not later than May 1, 1996.
DATES: The Commission has scheduled a public hearing on the proposed
amendments set forth in this notice and on the money laundering
proposals set forth in the notice dated January 2, 1996, (see 61 F.R.
79-83). Testimony at the public hearing shall be limited to only those
amendments. The public hearing is scheduled for March 11, 1996, at 1:00
p.m. at the Education Center (concourse level), South Lobby, Thurgood
Marshall Federal Judiciary Building, One Columbus Circle, NE.,
Washington, DC 20002-8002.
A person who desires to testify at the public hearing should notify
Michael Courlander, Public Information Specialist, at (202) 273-4590
not later than February 27, 1996.
Written testimony for the hearing should be received by the
Commission not later than March 6, 1996. Comment on the amendments and
issues set forth in this notice (relating to penalties for child
pornography and sex crime offenses) also may be submitted after the
public hearing, but not later than March 29, 1996, in order to be
considered by the Commission in the promulgation of amendments and in
the possible submission of those amendments to the Congress by May 1,
1996.
ADDRESSES: Public comment should be sent to: United States Sentencing
Commission, One Columbus Circle, NE., Suite 2-500, Washington, DC
20002-8002, Attention: Public Information.
FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Information
Specialist, Telephone: (202) 273-4590.
SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is
an independent agency in the judicial branch of the United States
Government. The Commission promulgates sentencing guidelines and policy
statements for federal sentencing courts pursuant to 28 U.S.C.
Sec. 994(a). The Commission also periodically reviews and revises
previously promulgated guidelines pursuant to 28 U.S.C. Sec. 994(o). If
guideline amendments are promulgated, those amendments are submitted to
Congress not later than the first day of May pursuant to 28 U.S.C.
Sec. 994(p).
The proposed amendments are presented in this notice in one of two
formats. First, some of the amendments are proposed as specific
revisions to a guideline or commentary. Bracketed text within a
proposed amendment indicates alternative proposals; for example, a
proposed enhancement of [3][4][5] levels means a proposed enhancement
of either three, four, or five levels. The Commission invites comment
and suggestions for appropriate policy choices where bracketed text is
indicated. Second, the Commission has highlighted certain issues for
comment and invites suggestions for specific amendment language.
As set forth more fully in its notice dated September 22, 1995,
(see 60 FR 49316-17), the Commission currently is engaged in a
comprehensive guideline assessment and simplification effort. This
project is expected to be a two-year initiative that may produce
amendments in the 1996-97 amendment cycle for submission to Congress
not later than May 1, 1997. During this initial year of the project,
the Commission generally plans to promulgate no guideline amendments,
except as may be necessary to implement legislation enacted by
Congress. The amendments presented in this notice are proposed in order
to implement congressional directives in the Sex Crimes Against
Children Prevention Act of 1995. (For additional amendments proposed in
response to enacted legislation, see the notice dated January 2, 1996,
61 FR 79-83).
Authority. 28 U.S.C. Sec. 994(a), (o), (p), (x).
Richard P. Conaboy,
Chairman.
Child Sex Offenses
Chapter Two, Part G (Offenses Involving Prostitution, Sexual
Exploitation of Minors, and Obscenity)
1. Synopsis of Proposed Amendments: The Sex Crimes Against Children
Prevention Act of 1995 contains several directives to the Commission to
amend the current guidelines relating to the sexual exploitation of
minors. The amendment set forth below implements sections 2 and 3 of
the Act. Those sections direct the Commission to increase by at least
two levels the base offense level in the current guidelines for
offenses involving the sexual exploitation of minors under sections
2251 and 2252 of title 18, United States Code, and for offenses under
sections 2251(c)(1)(A) and 2252(a) of such title if a computer was used
to transmit certain notices or advertisements of visual depictions
involving minors engaged in sexually explicit conduct or to transport
or ship those visual depictions.
In addition to implementing the congressional directives, the
amendment set forth below includes a proposal to clarify that if an
adjustment under Sec. 2G2.1(b)(2) applies because of the nature of the
defendant's relationship with the minor involved in the offense,
Sec. 3B1.3 does not apply based on an abuse of a position of trust;
Sec. 3B1.3 may nevertheless apply based on the use of a special skill.
(A) Proposed Amendment: Section 2G2.1(a) is amended by striking
``25'' and inserting ``[27][28][29]''.
The Commentary to Sec. 2G2.1 captioned ``Statutory Provisions'' is
amended by striking ``Sec. 2251(a), (b), (c)(1)(B)'' and inserting
``Secs. 2251(a), (b), (c)(1)(B), 2258(a), (b)''.
The Commentary to Sec. 2G2.1 captioned ``Application Notes'' is
amended in Note 3 by inserting ``based on an abuse of a position of
trust'' after ``Use of Special Skill)''.
Section 2G2.2(a) is amended by striking ``15'' and inserting
``[17][18][19]''.
[[Page 7038]]
Section 2G2.2(b) is amended by adding at the end the following new
subdivision:
``(5) If a computer was used to transmit the notice or
advertisement of the material or to transport or ship the material,
increase by [2][3][4] levels.''.
The Commentary to Sec. 2G2.2 captioned ``Statutory Provisions'' is
amended by inserting ``, 2258(a), (b)'' after ``2252(a)(1)-(3)''.
Section 2G2.4(a) is amended by striking ``13'' and inserting
``[15][16][17]''.
Section 2G2.4(b) is amended by adding at the end the following new
subdivision:
``(3) If the defendant's possession of the material resulted from
the defendant's use of a computer, increase by [2][3][4] levels.''.
(B) Additional Issues for Comment: The Commission invites comment
on whether Sec. 2G2.1 should be amended to add an enhancement to the
offense level for the use of a computer comparable to the enhancement
for the use of a computer directed to be added to Secs. 2G2.2 and 2G2.4
by the Sex Crimes Against Children Prevention Act of 1995. Such an
amendment to Sec. 2G2.1 would, for example, apply to the use of a
computer to solicit the participation of minors in sexually explicit
conduct.
In addition, the Commission invites comment on whether the
guidelines in Chapter Two, Part G, Subpart Two should be amended to add
an application note for each such guideline comparable to the
application note included in each of the guidelines of Chapter Two,
Part A, Subpart Three (Criminal Sexual Abuse) which indicates that an
upward departure may be warranted if the defendant's criminal history
includes a prior sentence for conduct that is similar to the instant
offense.
2. Synopsis of Proposed Amendments: The proposed amendments set
forth below as Option 1 and Option 2 implement the directive contained
in section 4 of the Sex Crimes Against Children Prevention Act of 1995.
That section directs the Commission to increase by at least three
levels the base offense level for offenses involving the transportation
of minors with intent to engage in criminal sexual activity under
section 2423(a) of title 18, United States Code.
In an effort to further the Commission's goal of simplifying the
operation of the guidelines, Option 2 also consolidates Secs. 2G1.1
(Transportation for the Purpose of Prostitution or Prohibited Sexual
Conduct) and 2G1.2 (Transportation of a Minor for the Purpose of
Prostitution or Prohibited Sexual Conduct). As proposed under Option 2,
the base offense level for offenses covered by Sec. 2G1.2 is decreased
from the current level of 16 to a proposed level of 14 in order to
effectuate the consolidation of Secs. 2G1.2 and 2G1.1 (which currently
has a base offense level of 14). However, Option 2 does not reduce the
overall offense level for offenses covered by Sec. 2G1.2 because the
specific offense characteristic related to the age of the victim is
proposed to be increased by two levels to compensate for the reduction
in the base offense level. That specific offense characteristic would
then be increased by another three, four, or five levels to implement
the directive contained in section 4 of the Sex Crimes Against Children
Prevention Act of 1995. Additionally under Option 2, the specific
offense characteristics and cross references that now apply only to
Sec. 2G1.2 are added to Sec. 2G1.1.
In addition, Option 1 and Option 2 both clarify that if an
adjustment under Sec. 2G1.2(b)(4) applies because of the nature of the
defendant's relationship with the minor involved in the offense,
Sec. 3B1.3 does not apply based on an abuse of a position of trust;
Sec. 3B1.3 may nevertheless apply based on the use of a special skill.
(A) Proposed Amendment--Option 1: Section 2G1.2(a) is amended by
striking ``16'' and inserting ``[19][20][21]''.
The Commentary to section 2G1.2 captioned ``Statutory Provisions''
is amended by striking ``2423'' and inserting ``2423(a)''.
The Commentary to section 2G1.2 captioned ``Application Notes'' is
amended in Note 6 by inserting ``based on an abuse of a position of
trust'' after ``Use of Special Skill)''.
(B) Proposed Amendment--Option 2 (Consolidation of Secs. 2G1.1 and
2G1.2): Subpart One of Part G of Chapter Two is amended by striking
Secs. 2G1.1 and 2G1.2 and inserting the following:
``Sec. 2G1.1. Transportation for the Purpose of Prostitution or
Prohibited Sexual Conduct.
``(a) Base Offense Level: 14.
``(b) Specific Offense Characteristics.
``(1) If the offense involved the use of physical force, or
coercion by threats or drugs or in any manner, increase by 4 levels.
``(2) If the offense involved the transportation of a person who
(A) has not attained the age of twelve years, increase by [9][10][11]
levels; (B) has attained the age of twelve years but has not attained
the age of sixteen years, increase by [7][8][9] levels; or (C) has
attained the age of sixteen years but has not attained the age of
eighteen years, increase by [5][6][7] levels.
``(3) If subsection (b)(2) applies, and the defendant was a parent,
relative, or legal guardian of the minor, or if the minor was otherwise
in the custody, care, or supervisory control of the defendant, increase
by 2 levels.
``(c) Cross References.
``(1) If the offense involved causing, transporting, permitting, or
offering or seeking by notice or advertisement, a minor to engage in
sexually explicit conduct for the purpose of producing a visual
depiction of such conduct, apply Sec. 2G2.1 (Sexually Exploiting a
Minor by Production of Sexually Explicit Visual or Printed Material;
Custodian Permitting Minor to Engage in Sexually Explicit Conduct;
Advertisement for Minors to Engage in Production).
``(2) If the offense involved criminal sexual abuse, attempted
criminal sexual abuse, or assault with intent to commit criminal sexual
abuse, apply Sec. 2A3.1 (Criminal Sexual Abuse; Attempt or Assault with
the Intent to Commit Criminal Sexual Abuse).
``(3) If the offense did not involve transportation for the purpose
of prostitution, and neither subsection (c)(1) nor (c)(2) is
applicable, use the offense guideline applicable to the underlying
prohibited sexual conduct. If no offense guideline is applicable to the
prohibited sexual conduct, apply Sec. 2X5.1 (Other Offenses).
``(d) Special Instructions.
``(1) If the offense involved the transportation of more than one
person, Chapter Three, Part D (Multiple Counts) shall be applied as if
the transportation of each person had been contained in a separate
count of conviction.
``(2) For the purposes of this guideline, `transportation' includes
(A) transporting a person for the purpose of prostitution or prohibited
sexual conduct, and (B) persuading, inducing, enticing, or coercing a
person to travel for the purpose of prostitution or prohibited sexual
conduct.
``Commentary
``Statutory Provisions: 8 U.S.C. Sec. 1328; 18 U.S.C. Secs. 2421,
2422, 2423(a).
``Application Notes:
``1. `Sexually explicit conduct', as used in this guideline, has
the meaning set forth in 18 U.S.C. Sec. 2256.
``2. The enhancement for physical force, or coercion, anticipates
no bodily injury. If bodily injury results, an upward departure may be
warranted. See Chapter Five, Part K (Departures).
``3. `Coercion', as used in this guideline, includes any form of
conduct that negates the voluntariness of the behavior of the person
transported. This factor would apply, for example, where the ability of
the person being
[[Page 7039]]
transported to appraise or control conduct was substantially impaired
by drugs or alcohol. In the case of transportation involving an adult,
rather than a minor, this characteristic generally will not apply where
the alcohol or drug was voluntarily taken.
``4. For the purposes of Sec. 3B1.1 (Aggravating Role), the persons
transported are considered participants only if they assisted in the
unlawful transportation of others.
``5. For the purposes of Chapter Three, Part D (Multiple Counts),
each person transported is to be treated as a separate victim.
Consequently, multiple counts involving the transportation of different
persons are not to be grouped together under Sec. 3D1.2 (Groups of
Closely-Related Counts). Special instruction (c)(1) directs that if the
relevant conduct of an offense of conviction includes more than one
person being transported, whether specifically cited in the count of
conviction or not, each such person shall be treated as if contained in
a separate count of conviction.
``6. Subsection (b)(3) is intended to have broad application and
includes offenses involving a minor entrusted to the defendant, whether
temporarily or permanently. For example, teachers, day care providers,
baby-sitters, or other temporary caretakers are among those who would
be subject to this enhancement. In determining whether to apply this
adjustment, the court should look to the actual relationship that
existed between the defendant and the child and not simply to the legal
status of the defendant-child relationship.
``7. If the adjustment in subsection (b)(3) applies, do not apply
Sec. 3B1.3 (Abuse of Position of Trust or Use of Special Skill) based
on an abuse of a position of trust.
``8. The cross reference in subsection (c)(1) is to be construed
broadly to include all instances where the offense involved employing,
using, persuading, inducing, enticing, coercing, transporting,
permitting, or offering or seeking by notice or advertisement, a minor
to engage in sexually explicit conduct for the purpose of producing any
visual depiction of such conduct.
``9. The cross reference at subsection (c)(3) addresses the unusual
case in which the offense did not involve transportation for the
purpose of prostitution and neither subsection (c)(1) nor (c)(2) is
applicable. In such case, the guideline for the underlying prohibited
sexual conduct is to be used, e.g., Sec. 2A3.2 (Criminal Sexual Abuse
of a Minor (Statutory Rape) or Attempt to Commit Such Acts) or
Sec. 2A3.4 (Abusive Sexual Contact or Attempt to Commit Abusive Sexual
Contact). If there is no offense guideline for the underlying
prohibited sexual conduct, Sec. 2X5.1 (Other Offenses) is to be
used.''.
(C) Additional Issue for Comment: The Commission invites comment on
whether, as an alternative to the proposed amendments set forth above
as Option 1 and Option 2, the Commission should apply the enhanced
offense level required by the congressional directive only if the
defendant is convicted of 18 U.S.C. 2243(a). Note that section 4 of the
Sex Crimes Against Children Prevention Act of 1995 directs the
Commission to increase by at least three levels the base offense level
for an offense under 18 U.S.C. 2243(a). As proposed for comment under
Option 1, the enhanced base offense level (increasing the current level
of 16 to a proposed level of 19, 20, or 21) would apply to all offenses
to which Sec. 2G1.2 currently applies, not just offenses under 18
U.S.C. 2243(a). Similarly, as proposed for comment under Option 2, the
enhanced specific offense characteristic related to the age of the
victim (increasing the current levels by three, four, or five levels,
in addition to the two-level increase for that specific offense
characteristic proposed to be made under Option 2 as a result of the
consolidation of Secs. 2G1.2 and 2G1.1) would apply to all offenses to
which Sec. 2G1.2 currently applies.
[FR Doc. 96-4050 Filed 2-22-96; 8:45 am]
BILLING CODE 2210-40-P
