Federal Register: December 18, 2002 (Volume 67, Number 243)
DOCID: FR Doc 02-31869
UNITED STATES SENTENCING COMMISSION
United States Sentencing Commission
NOTICE: NOTICES
DOCUMENT ACTION: Notice of proposed amendments to sentencing guidelines, policy statements, and commentary. Request for public comment, including public comment regarding retroactive application of any of the proposed amendments.
SUBJECT CATEGORY:
Sentencing Guidelines for United States Courts
DATES: Written public comment regarding (1) the amendments set forth in
this notice, including public comment regarding retroactive application of any of these proposed amendments; and (2) the proposed
repromulgation of the proposed emergency amendments set forth in the
Federal Register on November 27, 2002 (67 FR 70999) as permanent, non
emergency amendments, should be received by the Commission not later
than February 18, 2003.
DOCUMENT SUMMARY:
Pursuant to section 994(a), (o), and (p) of title 28, United States Code, the Commission is considering promulgating certain amendments to the sentencing guidelines, policy statements, and commentary. This notice sets forth the proposed amendments and, for each proposed amendment, a synopsis of the issues addressed by that amendment. Additional proposed amendments the Commission is considering promulgating, as both temporary and permanent amendments, in response to the SarbanesOxley Act of 2002, Pub. L. 107204, and the Bipartisan Campaign Reform Act of 2002, Pub. L. 10755, can be found in the November 22, 2002, Federal Register (67 FR 70999).
The specific amendments proposed in this notice are as follows: (1) A proposed amendment and issues for comment that respond to the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001, Pub. L. 10756; the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, Pub. L. 107188; and the Terrorist Bombings Convention Implementation Act of 2002, Pub. L. 107197; (2) a proposed amendment that addresses various application issues in Sec. 2L1.2 (Unlawful Entering or Remaining in the United States); (3) a proposed amendment and issue for comment that addresses a number of issues in Sec. 5G1.3 (Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment); (4) a proposed amendment that makes technical and conforming changes to various guideline provisions; and (5) a proposed amendment and issue for comment regarding appropriate guideline penalties for offenses involving involuntary manslaughter.
In addition to the issues for comment that are contained within these proposed amendments, this notice sets forth separate issues for comment regarding the following: (1) Section 225 of the Homeland Security Act of 2002 (the Cyber Security Enhancement Act of 2002), Pub. L. 107296, which directs the Commission to review and amend, if appropriate, the sentencing guidelines and policy statements applicable to persons convicted of an offense under section 1030 of title 18, United States Code; and (2) sections 11008 and 11009 of the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. 107273, which direct the Commission to review and amend the sentencing guidelines, as appropriate, to provide an appropriate sentencing enhancement for any crime of violence or drug trafficking crime in which the defendant used body armor and an appropriate enhancement for offenses involving influencing, assaulting, resisting, impeding, retaliating against, or threatening a federal judge, magistrate judge, or any other official described in section 111 or section 115 of title 18, United States Code.
SUMMARY:
Sentencing guidelines and policy statements for Federal courts,
SUPPLEMENTAL 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 courts pursuant to 28 U.S.C. 994(a). The
Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. 994(o)
[[Page 77533]]
and submits guideline amendments to the Congress not later than the
first day of May of each year pursuant to 28 U.S.C. 994(p).
The Commission seeks comment on the proposed amendments, issues for comment, and any other aspect of the sentencing guidelines, policy statements, and commentary.
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 a heightened interest on the Commission's part for comment and suggestions for alternative policy choices; for example, a proposed enhancement of [2] levels indicates that the Commission is considering, and invites comment on, alternative policy choices regarding the appropriate level of enhancement. Similarly, bracketed text within a specific offense characteristic or application note means that the Commission specifically invites comment on whether the proposed provision is appropriate. Second, the Commission has highlighted certain issues for comment and invites suggestions on how the Commission should respond to those issues.
Additional information pertaining to the proposed amendments described in this notice may be accessed through the Commission's Web site at www.ussc.gov.
Authority: 28 U.S.C. 994(a), (o), (p), (x); USSC rules of practice and procedure, rule 4.4.
Diana E. Murphy,
Chair.
1. Terrorism
Synopsis of Proposed Amendment: This proposed amendment is a continuation of the Commission's work over the past two years to ensure that the guidelines provide appropriate guideline penalties for offenses involving terrorism. Specifically, this proposed amendment responds to the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001, Pub.L. 10756; the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, Pub.L. 10788; and the Terrorist Bombings Convention Implementation Act of 2002, Pub.L. 10797.
I. Remaining USA PATRIOT Act Amendments
The following amendments build on the Commission's response during the last amendment cycle to the USA PATRIOT Act.
A. Terrorism Enhancement in Money Laundering Guideline
This amendment provides two options for treatment of the current 6 level terrorism enhancement in the money laundering guideline, Sec. 2S1.1 (Laundering of Monetary Instruments; Engaging in Monetary Transactions in Property Derived from Unlawful Activity). Option One eliminates the terrorism enhancement. Elimination of the enhancement is appropriate because it prevents ``doublecounting'' with the terrorism adjustment in Sec. 3A1.4 (Terrorism). Specifically, the money laundering terrorism enhancement applies if the defendant knew or believed that any of the laundered funds were the proceeds of, or were intended to promote, an offense involving terrorism. The terrorism adjustment at Sec. 3A1.4 applies if the offense is a felony that involved, or was intended to promote, a federal crime of terrorism as defined in 18 U.S.C. 2332b(g)(5). Therefore, if the money laundering terrorism enhancement applied, the terrorism adjustment at Sec. 3A1.4 also would apply based on the same conduct.
In the event the Commission determines that the money laundering
terrorism adjustment should not be eliminated, Option Two provides a
definition of terrorism in the money laundering guideline that mirrors the definition in Sec. 3A1.4.
Proposed Amendment (Part IA):
[Option One:
Section Sec. 2S1.1(b)(1)(B)(iii) is amended by striking ``terrorism,''.]
[Option Two:
The Commentary to Sec. 2S1.1 captioned ``Application Notes'' is
amended in Note 1 by inserting at the end the following new paragraph:
`` `Terrorism' means a federal crime of terrorism as defined in 18 U.S.C. 2332b(g)(5).''.]
B. Reference of 18 U.S.C. 1960 to Money Laundering Guideline
This amendment provides two options for the treatment of certain offenses under 18 U.S.C. 1960. These offenses prohibit knowingly conducting, controlling, managing, supervising, directing, or owning all or part of an unlicensed money transmitting business, as defined in 18 U.S.C. 1960(b)(1)(C). That provision defines an unlicensed money transmitting business as ``a money transmitting business which affects interstate or foreign commerce in any manner or degree and otherwise involves the transportation or transmission of funds that are known to the defendant to have been derived from a criminal offense or are intended to be used to promote or support unlawful activity.'' The statutory maximum term of imprisonment is 5 years.
Option One changes the Statutory Index reference for these offenses from Sec. 2S1.3 (Structuring Transactions to Evade Reporting Requirements) to the main money laundering guideline, Sec. 2S1.1. This change is appropriate for this offense because its essence is money laundering rather than structuring to evade reporting requirements.
In contrast, other offenses under 18 U.S.C. 1960 would remain in the structuring guideline under Option One because they are essentially structuring offenses. Specifically, they prohibit knowingly conducting, controlling, managing, supervising, directing, or owning all or part of an unlicensed money transmitting business, as defined in 18 U.S.C. 1960(b)(1)(A) and (B). Those provisions define an unlicensed money transmitting business as ``a money transmitting business which affects interstate or foreign commerce in any manner or degree and (A) is operated without an appropriate money transmitting license * * *; or (B) fails to comply with the money transmitting business registration requirements under section 5330 of title 31, United States Code, or regulations prescribed under such section.''
Option Two maintains the initial Statutory Index reference for 18 U.S.C. 1960(b)(1)(C) offenses in the structuring guideline but provides a cross reference to the main money laundering guideline for conduct that falls under 18 U.S.C. 1960(b)(1)(C).
An issue for comment requests comment regarding whether the proposed cross reference should be broadened so that any structuring offense that involves the intent to promote unlawful activity, knowledge or belief that the funds were the proceeds of unlawful activity, or reckless disregard of the illicit source of the funds would be cross referenced to main money laundering guideline, leaving the structuring guideline to cover purely regulatory offenses. Proposed Amendment (Part IB):
[Option One:
The Commentary to Sec. 2S1.1 captioned ``Statutory Provisions'' is amended by inserting ``, 1960 (but only with respect to unlicensed money transmitting businesses as defined in 18 U.S.C. 1960(b)(1)(C))'' after ``1957''.
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The Commentary to Sec. 2S1.3 captioned ``Statutory Provisions'' is amended by inserting ``(but only with respect to unlicensed money transmitting businesses as defined in 18 U.S.C. 1960(b)(1)(A) and (B))'' after ``1960''.
Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. 1960 by inserting ``2S1.1,'' before ``2S1.3''.]
[Option Two:
Section 2S1.3(c) is amended by striking ``Reference'' and inserting ``References''; and by adding at the end the following:
``(2) If the offense involved (A) a money transmitting business;
and (B) the transportation or transmission of funds that are known to
the defendant to have been derived from a criminal offense or are
intended to be used to promote or support unlawful activity, apply
Sec. 2S1.1 (Laundering of Monetary Instruments; Engaging in Monetary
Transactions in Property Derived from Unlawful Activity).''.
The Commentary to Sec. 2S1.3 captioned ``Application Notes'' is amended by adding at the end the following:
``4. Cross Reference in Subsection (c)(2).For purposes of
subsection (c)(2), `money transmitting business' means a money
transmitting business that affects interstate or foreign commerce.
`Money transmitting' includes transferring funds on behalf of the
public by any means, including transfers within the United States or to
foreign locations by wire, check, draft, facsimile, or courier.''.]
Issue for Comment: The proposed amendment provides two options for the treatment of offenses under 18 U.S.C. 1960(b)(1)(C). Option One provides for a Statutory Index reference for these offenses to the main money laundering guideline, Sec. 2S1.1, rather than the structuring guideline, Sec. 2S1.3, because such an offense is essentially a money laundering offense. Option Two references this offense to Sec. 2S1.3 in the first instance but provides a cross reference for this offense from Sec. 2S1.3 to Sec. 2S1.1.
The Commission requests comment regarding whether the proposed
cross reference to Sec. 2S1.1 in Option Two should be expanded to
cover any offense initially referenced to Sec. 2S1.3 in the Statutory
Index that involved the intent to promote unlawful activity, knowledge
or belief that the funds were the proceeds of unlawful activity, or
reckless disregard of the illicit source of the funds. Such an approach
effectively would limit the application of Sec. 2S1.3 to regulatory
offenses (such as the failure to file transaction reports or
structuring transactions to evade reporting requirements) unaccompanied
by aggravated, real offense money laundering conduct. To effectuate
such cross reference, Sec. 2S1.3 would likely need to be amended as
follows: First, the base offense level of 8 in subsection (a)(1) would
be maintained for offenses under 31 U.S.C. 5318 and 5318A, but the
alternative base offense level in subsection (a)(2) would be amended to
level 6 without any increase from the loss table in Sec. 2B1.1. An
alternative base offense level of level 6 for a regulatory offense
unaccompanied by aggravated conduct is proportionate to other
regulatory offenses under the guidelines. Second, the aggravated
conduct described in Sec. 2S1.3(b)(1) and the aggravated conduct the
absence of which is described in Sec. 2S1.3(b)(3) would form the basis
for the new cross reference. Accordingly, the cross reference to the
main money laundering guideline would apply if: (1) The defendant knew
or believed that the funds were the proceeds of unlawful activity or
were intended to promote unlawful activity; [(2) the offense involved
bulk cash smuggling;] or (3) the defendant acted with reckless
disregard for the illegal source of the funds. The major possible
effects of cross referencing offenses involving real offense money
laundering conduct to the money laundering guideline are application of
the sixlevel enhancement in Sec. 2S1.1(b)(1) if the defendant knew or
believed that the funds were the proceeds of or were intended to
promote certain specified crimes, and application of the enhancement in Sec. 2S1.1(b)(3) for sophisticated laundering.
C. Enhancement in Accessory After the Fact Guideline for Harboring Terrorists
Currently in Sec. 2X3.1 (Accessory After the Fact) there exists an offense level ``cap'' of level 20 for offenses in which the conduct is limited to harboring a fugitive (and an offense level ``cap'' of level 30 for all other offenses sentenced under the accessory guideline). This proposed amendment makes the lower offense level ``cap'' of level 20 inapplicable to offenses involving the harboring of terrorists because of the relative seriousness of those offenses.
Last year, the Commission promulgated an amendment that referenced 18 U.S.C. 2339 and 2339A to 2X2.1 (Aiding and Abetting) and 2X3.1 (Accessory After the Fact). The offense at 18 U.S.C. 2339 prohibits harboring or concealing any person who the defendant knows, or has reasonable grounds to believe, has committed or is about to commit one of several enumerated offenses. The maximum term of imprisonment is 10 years. The offense at 18 U.S.C. 2339A prohibits the provision of material support or resources to terrorists, knowing or intending that they will be used in the preparation for, or in carrying out, specified crimes (i.e., those designated as predicate offenses for ``federal crimes of terrorism'') or in preparation for, or in carrying out, the concealment or an escape from the commission of any such violation. The maximum term of imprisonment is 15 years. In contrast, a violation of the general harboring statute, 18 U.S.C. 1071, has a maximum term of imprisonment of 5 years.
For consistency and proportionality, the proposed amendment not only makes the ``cap'' of level 20 inapplicable to harboring a person who is convicted under 18 U.S.C. 2339 or 2339A but also to the conduct of harboring an individual who commits a terrorism offense, i.e., one of the offenses listed in 18 U.S.C. 2339 or 2339A or an offense involving or intending to promote a federal crime of terrorism, as defined in 18 U.S.C. 2332b(g)(5).
Proposed Amendment (Part IC):
Section 2X3.1 is amended by striking subsection (a) and inserting the following:
``(a) Base Offense Level:
(1) Six levels lower than the offense level for the underlying offense, except as provided in subdivisions (2) and (3).
(2) The base offense level under this guideline shall be not less than level 4.
(3)(A) The base offense level under this guideline shall be not more than level 30, except as provided in subdivision (B).
(B) In any case in which the conduct is limited to harboring a
fugitive, other than a case described in subdivision (C), the base
offense level under this guideline shall not be more than level 20.
(C) The limitation in subdivision (B) shall not apply in any case
in which (i) the defendant is convicted under 18 U.S.C. 2339 or 2339A;
or (ii) the conduct involved (I) harboring a person who committed any
offense listed in 18 U.S.C. 2339 or 2339A or who committed any offense
involving or intending to promote a federal crime of terrorism, as
defined in 18 U.S.C. 2332b(g)(5); or (II) obstructing the investigation
of, or committing perjury with respect to, any offense described in
subdivision (I). In such a case, the base offense level under this
guideline shall be not more than level 30, as provided in subdivision (A).''.
[[Page 77535]]
II. Amendments Required by the Public Health Security and Bioterrorism Preparedness and Response Act of 2002
The following amendments to the guidelines are proposed in response to the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, Pub. L. 107188.
A. Biological AGents and Toxins
First, the proposed amendment amends the Statutory Index to refer
new offenses involving biological agents and toxins to the guideline
covering nuclear, biological, and chemical weapons and materials, Sec.
2M6.1. Specifically, the Public Health Security and Bioterrorism
Preparedness and Response Act of 2002 amends 18 U.S.C. 175b to
redesignate the existing offense and create new offenses as follows:
(1) The existing offense, redesignated at 18 U.S.C. 175b(a)(1),
prohibits any restricted person (as defined in subsection (b)) from
transporting, receiving, or possessing any biological agent or toxin
that the Secretary of Health and Human Services has listed under
regulations as a ``select agent''. The maximum term of imprisonment is
10 years. During the last amendment cycle, the Commission referred this
offense to Sec. 2M6.1 and provided an alternative base offense level of level 22.
(2) Two new offenses, at 18 U.S.C. 175b(b)(1) and (2), prohibit a
person from transferring a select agent listed in regulations by the
Secretary of Health and Human Services, or a biological agent or toxin
listed in regulations by the Secretary of Agriculture as posing a
severe threat to animal or plant health or products, to any person the
transferor knows or has reason to believe is not registered to receive
or possess such agent or toxin, as required under regulations
prescribed by the pertinent Secretary. The maximum term of imprisonment is 5 years.
(3) Two new offenses, at 18 U.S.C. 175b(c)(1) and (2), prohibit any
person from knowingly possessing a select agent listed in regulations
by the Secretary of Health and Human Services, or a biological agent or
toxin listed in regulations by the Secretary of Agriculture as posing a
severe threat to animal or plant health or products, if that person has
not registered to receive or possess such agent or toxin, as required
under regulations prescribed by the pertinent Secretary. The maximum term of imprisonment is 5 years.
Like the existing offense at 18 U.S.C. 175b(a)(1), reference of the new offenses to Sec. 2M6.1 is appropriate. (An amendment to the statutory index is not necessary because there already exists a reference to Sec. 2M6.1 for section 175b offenses.)
Second, the proposed amendment provides for a base offense level of level 22 for the new offenses involving transfer to, or possession of, select biological agents by unregistered persons. This proposed base offense level is the same as the existing base offense level for offenses involving transfer to, or possession of, select biological agents by restricted persons. The proposed amendment exempts these offenses from application of Sec. 2M6.1(b)(1), which provides a two level enhancement for offenses involving select agents, because that factor is incorporated into the proposed base offense levels.
Third, in response to Act, the proposed amendment makes two modifications to the definition of ``select biological agent'' in Sec. 2M6.1. That definition exists in the guideline for purposes of the two level enhancement in Sec. 2M6.1(b)(1) for offenses that involved such an agent. First, in response to section 212 of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, the amendment proposes to expand the definition of ``select biological agent'' to include biological agents and toxins the Secretary of Agriculture has determined pose a severe threat to animal and plant health and products. Second, section 201 of the Act codified a number of provisions of the Antiterrorism and Effective Death Penalty Act of 1996 in the Public Health Service Act. This codification necessitates a conforming amendment to the definition of ``select agent'' in Application Note 1 of Sec. 2M6.1.
Proposed Amendment (Part IIA)
Section 2M6.1(a)(2) is amended by inserting ``and'' after ``(a)(3),''; and by striking ``, and (a)(5)''.
Section 2M6.1(a)(3) is amended by inserting ``or'' after the semicolon.
Section 2M6.1(a)(4) is amended by inserting ``(A)'' after ``if''; and by inserting ``(B) the offense (i) involved a threat to use a nuclear weapon, nuclear material, or nuclear byproduct material, a chemical weapon, a biological agent, toxin, or delivery system, or a weapon of mass destruction; but (ii) did not involve any conduct evidencing an intent or ability to carry out the threat.'' after ``or''.
Section 2M6.1(a) is amended by striking subdivision (5).
Section 2M6.1(b)(1) is amended by striking the comma after ``(a)(2)'' and inserting ``or''; and by striking ``, or (a)(5)''.
Section 2M6.1(b)(2) is amended by inserting ``(A)'' after ``(a)(4)''.
Section 2M6.1(b)(3) is amended by inserting ``or'' after ``(a)(3),'' and by striking ``, or (a)(5)''.
The Commentary to Sec. 2M6.1 captioned ``Application Notes'' is amended in Note 1 in the paragraph that begins ``Select biological agent'' by inserting ``(A)'' after ``identified''; by inserting ``and maintained'' after ``established''; and by striking ``511(d) of the Antiterrorism and Effective Death Penalty Act, Pub. L. 104132. See 42 CFR part 72'' and inserting ``351A of the Public Health Service Act (42 U.S.C. 262a); or (B) by the Secretary of Agriculture on the list established and maintained pursuant to section 212 of the Agricultural Bioterrorism Protection Act of 2002 (7 U.S.C. 8401)''.
The Commentary to Sec. 2M6.1 captioned ``Application Notes'' is amended in Note 2 by striking ``(a)(3)'' each place it appears and inserting ``(a)(4)(B)''.
B. Safe Drinking Water Provisions
This proposed amendment responds to amendments to the Safe Drinking Water Act made by section 403 of the Public Health Security and Bioterrorism Preparedness and Response of 2002. Section 1432(a) of the Safe Drinking Water Act (42 U.S.C. 300i1(a)) prohibits any person from tampering with a public water system. The statutory maximum penalty was increased from 5 years imprisonment to 20 years imprisonment. This offense is the only offense referenced to Sec. 2Q1.4 (Tampering or Attempted Tampering with Public Water System). Section 1432(b) of such Act (42 U.S.C. 300i1(b)) prohibits anyone from attempting or threatening to tamper with a public water system. The statutory maximum penalty was increased from 3 years imprisonment to 10 years imprisonment. This offense is the only offense referenced to Sec. 2Q1.5 (Threatened Tampering with Public Water System). For purposes of both offenses, ``tamper'' means ``to introduce a contaminant into a public water system with the intention of harming persons'' or ``to otherwise interfere with the operation of a public water system with the intention of harming persons''.
First, the amendment proposes to consolidate the guidelines
covering tampering with consumer products, Sec. 2N1.1, and tampering
with a public water system, Sec. 2Q1.4, and to consolidate the
guidelines covering threatened tampering with consumer products, Sec.
2N1.2, and threatened tampering with a public water system, Sec. 2Q1.5. Consolidation is proposed
[[Page 77536]]
because of the infrequency of occurrence of these offenses and because
these guidelines cover very similar conduct; accordingly, the treatment of these offenses under the same guideline would promote
proportionality in punishment. The substantive changes resulting from
the proposed consolidation would include (1) increased base offense
levels for public water system offenses, as discussed in the following
paragraph; (2) application to consumer product cases of an existing
enhancement in the public water system guidelines if the offense
involved substantial disruption of governmental functions or
substantial expenditure of funds to respond to the offense; (3)
elimination of the existing enhancement in the public water system
guideline for ongoing, continuous, or repetitive release of a
contaminant into the water supply (elimination is proposed because of
definitional difficulties); (4) replacement of the existing enhancement
in the public water system guideline if the purpose of the offense was
to influence government action or to extort money with an application
note inviting an upward departure if a terrorist motive was present and
a cross reference to the extortion guideline if the offense involved
extortion; and (5) application to public water system offenses of an
existing cross reference in the consumer products guideline to the
murder guidelines if death resulted. Conforming changes are made to the Statutory Index.
An issue for comment follows regarding whether the proposed consolidations also should effectuate a consolidation of the tampering guidelines with the threatened tampering guidelines, similar to the manner in which offenses involving threats to use nuclear, biological, or chemical weapons are subsumed within the nuclear, biological and chemical guideline, Sec. 2M6.1.
Second, the amendment proposes to increase the base offense level for offenses involving tampering and threatened tampering with a public water system. Under the proposed consolidation, the base offense level for tampering with a public water system would increase from level 18 to level 25, and the six level enhancement for the risk of death or serious bodily injury would be eliminated and replaced with a graduated enhancement for actual bodily injury. Likewise, the base offense level for threatening to tamper with a public water system is proposed to increase from level 10 to level 16. For point of comparison, the existing base offense level for threatening communications under Sec. 2A6.1 is level 12 and for threatened use of nuclear, biological, and chemical weapons under Sec. 2M6.1 is level 20. These substantial increases in the base offense levels are proposed to ensure proportionality with similar offenses and to respond to the increased statutory maximum penalties made by section 403 of the Public Health Security and Bioterrorism Preparedness and Response of 2002.
Third, the amendment proposes to provide an application note in the consolidated guideline that an upward departure (as provided in Application Note 4 of the terrorism adjustment in Sec. 3A1.4 (Terrorism)) may be warranted if the tampering or threatened tampering was accompanied by a terrorist motive. The amendments to the Safe Drinking Water Act made by the Public Health Security and Bioterrorism Preparedness and Response of 2002 contemplated that terrorism may be the motive behind tampering with the public water supply. Section 1431 of the Safe Drinking Water Act (42 U.S.C. 300i1) was amended to expand the authority of the Administrator of the Environmental Protection Agency to take emergency action to protect the public health if the Administrator determines that ``there is a threatened or potential terrorist attack or other intentional act designed to disrupt the provision of safe drinking water or to impact adversely the safety of drinking water supplied to communities and individuals, which may present an imminent and substantial endangerment'' to the public health. Terrorist motives similarly may be present in offenses involving tampering with consumer products.
One other criminal provision was added by the Act, but it may be appropriate not to list this provision in the Statutory Index at this time. Section 401 of the Public Health Security and Bioterrorism Preparedness and Response of 2002 added section 1433 to the Safe Drinking Water Act. This provision requires local communities to conduct assessments of the vulnerability of their public water systems to terrorist and other intentional acts. Section 1433(a)(6) of the Safe Drinking Water Act (42 U.S.C. 300i2(a)(6)) provides that any person who acquires information from this assessment and knowingly or recklessly reveals such information to a person other than to specified persons authorized to receive such information shall be imprisoned for not more than one year and/or fined in accordance with the fines applicable to Class A misdemeanors. This provision does not provide a neat fit within the guidelines. Most of the environmental regulatory guidelines cover the failure to report information or the falsification of information, rather than the reckless disclosure of information. Rather than provide a Statutory Index reference at this point, it may be best to assess over the next few years the frequency of prosecution of this offense and what conduct typically occurs in connection with the offense.
Proposed Amendment (Part IIB)
Chapter two, part N is amended in the heading by inserting ``Public Water Systems,'' after ``Involving''.
Chapter two, part N, subpart 1 is amended in the heading by inserting ``Or Public Water Systems'' after ``Products''.
Section 2N1.1 is amended in the heading by inserting ``with Consumer
Products'' after ``Tampering''; by inserting ``with Consumer Products'' after ``Tamper''; and by adding ``; Tampering or Attempting to Tamper with a Public Water System'' after ``Injury''.
Section 2N1.1(b) is amended by striking ``Characteristic'' and inserting ``Characteristics''; and by adding at the end the following: ``(2) If the offense resulted in (A) substantial disruption of public, governmental, or business functions or services; or (B) a substantial expenditure of funds to clean up, decontaminate, or otherwise respond to the offense, increase by 4 levels.''.
The Commentary to Sec. 2N1.1 captioned ``Statutory Provisions'' is amended by inserting ``; 42 U.S.C. 300i1'' after ``(e)''.
The Commentary to Sec. 2N1.1 captioned ``Application Notes'' is
amended by striking Notes 1 and 2 and inserting the following:
``1. Application of Special Instruction.Subsection (d) applies in
any case in which the defendant is convicted of a single count
involving (A) the death or permanent, lifethreatening, or serious
bodily injury of more than one victim; or (B) conduct tantamount to the
attempted murder of more than one victim, regardless of whether the
offense level is determined under this guideline or under another
guideline in Chapter Two (Offense Conduct) by use of a cross reference under subsection (c).
2. Departure Provisions.
(A) Downward Departure Provision.The base offense level reflects
that offenses covered by this guideline typically pose a risk of death
or serious bodily injury to one or more victims; or cause, or are
intended to cause, bodily injury. In the unusual case in which the
offense did not cause a risk of death or serious bodily injury, and neither
[[Page 77537]]
caused nor was intended to cause bodily injury, a downward departure may be warranted.
(B) Upward Departure Provisions.If the offense posed a
substantial risk of death or serious bodily injury to numerous victims,
caused extreme psychological injury, or caused substantial property
damage or monetary loss, an upward departure may be warranted.
If the offense was calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct, an upward departure may be warranted. See Application Note 4 of Sec. 3A1.4 (Terrorism).''.
Section 2N1.2 is amended in the heading by adding at the end ``; Threatening to Tamper with a Public Water System''.
Section 2N1.2 is amended by redesignating subsection (b) as
subsection (c); and by inserting after subsection (a) the following: ``(b) Specific Offense Characteristic
(1) If the offense resulted in (A) substantial disruption of
public, governmental, or business functions or services; or (B) a
substantial expenditure of funds to clean up, decontaminate, or otherwise respond to the offense, increase by 4 levels.''.
The Commentary to Sec. 2N1.2 captioned ``Statutory Provisions'' is amended by inserting ``; 42 U.S.C. 300i1'' after ``(d)''.
The Commentary to Sec. 2N1.2 captioned ``Application Note'' is amended in Note 1 by inserting ``Upward Departure Provisions.'' before ``If''; and by adding at the end the following paragraph: ``If the offense was calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct, an upward departure may be warranted. See Application Note 4 of Sec. 3A1.4 (Terrorism).''.
Chapter two, part Q is amended by striking Sec. Sec. 2Q1.4 and 2Q1.5 in their entirety.
Appendix A (Statutory Index) is amended in the line referenced to 42 U.S.C. 300i1 by striking ``2Q1.4, 2Q1.5'' and inserting ``2N1.1, 2N1.2''.
Issue for Comment: For the reasons stated in the foregoing synopsis, this amendment proposes to consolidate the guidelines covering tampering with consumer products, Sec. 2N1.1, and tampering with a public water system, Sec. 2Q1.4, and to consolidate the guidelines covering threatened tampering with consumer products, Sec. 2N1.2, and threatened tampering with a public water system, Sec. 2Q1.5. The Commission requests comment regarding whether the Commission should effectuate the consolidation of these four guidelines into one guideline covering both tampering and threatened tampering cases. Such an approach would be consistent with the guideline covering nuclear, biological, and chemical weapons and materials, Sec. 2M61, which covers both offenses involving such weapons and materials as well as offenses involving the threatened use of such weapons and materials. C. Animal Enterprise Terrorism
This proposed amendment adds an invited upward departure provision in the fraud, theft, and property destruction guideline, Sec. 2B1.1, to account for aggravating conduct that may occur in connection with an animal enterprise offense under 18 U.S.C. 43.
Specifically, section 336 of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 increased the penalty provisions of 18 U.S.C. 43, which makes it an offense to travel in interstate or foreign commerce, or to use or cause to be used the mail or any facility in interstate or foreign commerce for the purpose of causing physical disruption to the functioning of an animal enterprise, and to intentionally damage or cause the loss of any property (including animals and records) used by the animal enterprise, or to conspire to do so.
Before amendment by the Act, the penalty structure was (1) not more than one year imprisonment for causing economic damage exceeding $10,000; (2) not more than 10 years' imprisonment for causing serious bodily injury in the course of such an offense; and (3) life or any term of years of imprisonment if death resulted. As a result of the Act, the penalty structure now is (1) not more than 6 months imprisonment for causing economic damage not exceeding $10,000 (18 U.S.C. 43(b)(1)); (2) not more than 3 years' imprisonment for causing economic damage exceeding $10,000 (18 U.S.C. 43(b)(2)); (3) not more than 20 years' imprisonment for causing serious bodily injury in the course of such an offense (18 U.S.C. 43(b)(3)); and (4) life or any term of years of imprisonment if death resulted (18 U.S.C. 43(b)(4)).
This offense currently is referenced only to Sec. 2B1.1. While reference only to that guideline generally continues to be appropriate for violations under 18 U.S.C. 43, that guideline fails to account for aggravated situations in which serious bodily injury or death results. Although the property damage guideline contains an enhancement for the risk of serious bodily injury or death, there is no enhancement or cross reference in that guideline that would provide a higher offense level if actual serious bodily injury or death resulted. Given the highly unusual occurrence of death or serious bodily injury in property damage cases generally and the infrequency of these specific offenses, the proposed amendment adds an invited upward departure provision in Application Note 15(A)(ii) of Sec. 2B1.1 if death or serious bodily injury occurs in an offense under 18 U.S.C. 43, or if substantial or significant scientific information or research is lost as part of such an offense.
Proposed Amendment (Part IIC)
The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is
amended in subdivision (A)(ii) of Note 15 by adding at the end the following:
``An upward departure would be warranted, for example, in a case
involving animal enterprise terrorism under 18 U.S.C. 43, if, in the
course of the offense, serious bodily injury or death resulted, or
substantial scientific research or information were destroyed.''. III. Amendments Required by the Terrorist Bombings
Convention Implementation Act of 2002
The proposed amendment amends the Statutory Index (and the Statutory Provisions of the pertinent chapter two guidelines) to add three new offenses created by the Terrorist Bombings Convention Implementation Act of 2002, Pub. L. 107197, and provides conforming amendments within a number of chapter two guidelines to more fully incorporate the new offenses into the offense guidelines.
First, section 102 of the Act created a new offense at 18 U.S.C.
2332f, which provides in subsection (a) that ``whoever unlawfully
delivers, places, discharges, or detonates an explosive or other lethal
device in, into, or against a place of public use, a state or
government facility, a public transportation system, or an
infrastructure facility (A) with the intent to cause death or serious
bodily injury, or (B) with the intent to cause extensive destruction of
such a place, facility, or system, where such destruction results in or
is likely to result in major economic loss'' and in subsection (b) that
``whoever attempts or conspires to commit [such] an offense'' shall be
punished as provided under 18 U.S.C. 2332a(a). Section 2332a offenses
currently are referenced to Sec. Sec. 2K1.4 (the arson and property damage by use of explosives guideline) and 2M6.1 (the
[[Page 77538]]
guideline covering nuclear, biological, and chemical weapons). The
proposed amendment refers this new offense to those guidelines as well.
In addition, the proposed amendment amends the alternative base offense
levels in the arson guideline Sec. 2K1.4(a)(1) so that the base
offense level of level 24 applies to targets of 18 U.S.C. 2332f
offenses, namely, state or government facilities, infrastructure
facilities, public transportation systems and ``places of public use''.
Second, section 202 of the Act created a new offense at 18 U.S.C. 2339C, which provides in subsection (a)(1) that ``whoever, in a circumstance described in subsection (c) (i.e., in the United States or outside of the United States by a national of the United States or an entity organized under the laws of the United States), by any means directly or indirectly, unlawfully and willfully provides or collects funds, with the intention that such funds be used, or with the knowledge that such funds are to be used, in full or in part, in order to carry out (A) an act which constitutes an offense, within the scope of certain international treaties, as implemented by the United States, or (B) any other act intended to cause death or serious bodily injury to a civilian, or to any person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing an act'', and in subsection (b) that whoever attempts or conspires to commit such an offense, shall be punished for a maximum term of imprisonment of 20 years.
The proposed amendment refers the new offense at 18 U.S.C. 2339C(1)(A) to 2X2.1 (Aiding and Abetting). The new offense involves providing or collecting funds knowing or intending that the funds would be used to carry out any of a number of specified offenses. Accordingly, the proposed amendment treats these offenses in the same manner as 18 U.S.C. 2339A offenses, which aid and abet a predicate offense listed in the statute. An amendment is proposed to be made in Sec. 2X2.1 to conform the definition of the ``underlying offense'' that is aided and abetted.
The proposed amendment refers the new offense at 18 U.S.C. 2339C(a)(1)(B) to 2M5.3 (Providing Material Support or Resources to Designated Foreign Terrorist Organizations). Reference to Sec. 2M5.3 is appropriate because this offense involves generally providing or collecting funds knowing or intending that the funds would be used to carry out not a specified offense but rather an act which by its nature is a terrorist act (because it is meant to intimidate a civilian population or to compel a government or international organization to do something or to refrain from doing something). Therefore, the essence of the offense is the provision of material support to terrorists, which is appropriately referenced to Sec. 2M5.3. The proposed amendment expands Sec. 2M5.3 to include not only designated foreign terrorist organizations but other terrorists as well.
Third, 18 U.S.C. 2339C(c)(2) makes it unlawful in the United States, or outside the United States by a national of the United States or an entity organized under the laws of the United States, to knowingly conceal or disguise the nature, location, source, ownership, or control of any material support, resources, or funds knowing or intending that they were: (A) Provided in violation of 18 U.S.C. 2339B, or (B) provided or collected in violation of 18 U.S.C. 2339C(a)(1) or (2). The maximum term of imprisonment for a violation of subsection 18 U.S.C. 2339C(c) is 10 years.
The proposed amendment references offenses under 18 U.S.C. 2339C(c)(2)(A) to 2X3.1 (Accessory After the Fact), since the essence of such an offense is the concealment of resources that were known or intended to have been provided in violation of another substantive offense, namely, 18 U.S.C. 2339B. An amendment is proposed to be made in Sec. 2X3.1 to conform the definition of the ``underlying offense'' to which the defendant is an accessory.
The proposed amendment references offenses under 18 U.S.C. 2339C(c)(2)(B) to 2M5.3 and 2X3.1. To the extent the offense involved knowingly concealing or disguising the nature, location, source, ownership, or control of any material support, resources, or funds knowing or intending that they were provided or collected in violation of 18 U.S.C. 2339C(a)(1), the offense should be sentenced under 2X3.1. This is because the concealment occurs with respect to material support the defendant knows is to be used, in full or in part, in order to carry out an act which constitutes any number of specified offenses. To the extent the offense involved knowingly concealing or disguising the nature, location, source, ownership, or control of any material support, resources, or funds knowing or intending that they were provided or collected in violation of 18 U.S.C. 2339C(a)(2), the offense should be sentenced under 2M5.3. This is because the concealment occurs with respect to material support the defendant knows is to be used, in full or in part, in order to carry out not a specified offense but rather an act which by its nature is a terrorist act (because it is meant to intimidate a civilian population or to compel a government or international organization to do something or to refrain from doing something). A conforming amendment is proposed to be added to the Statutory Provisions of Sec. Sec. 2M5.3 and 2X3.1. Proposed Amendment (Part III)
Section 2K1.4(a)(1)(B) is amended by striking ``or a ferry'' and inserting ``a ferry, a public transportation system, a state or government facility, an infrastructure facility, or a place of public use''.
Section 2K1.4(a) is amended by striking subdivision (2) and inserting the following:
``(2) 20, if the offense (A) created a substantial risk of death or
serious bodily injury to any person other than a participant in the
offense; (B) involved the destruction or attempted destruction of a
structure other than (i) a dwelling, or (ii) an airport, an aircraft, a
mass transportation facility, a mass transportation vehicle, a ferry, a
public transportation system, a state or government facility, an
infrastructure facility, or a place of public use; or (C) endangered
(i) a dwelling, (ii) a structure other than a dwelling, or (iii) an
airport, an aircraft, a mass transportation facility, a mass
transportation vehicle, a ferry, a public transportation system, a
state or government facility, an infrastructure facility, or a place of public use; or''.
The Commentary to Sec. 2K1.4 captioned ``Statutory Provisions'' is amended by inserting ``, 2332f'' after ``2332a''.
The Commentary to Sec. 2K1.4 captioned ``Application Notes'' is amended in Note 1 by adding at the end the following new paragraph: `` `State or government facility', `infrastructure facility', `place of public use', and `public transportation system' have the meaning given those terms in 18 U.S.C. 2332f(e)(3), (5), (6), and (7), respectively.''.
Section 2M5.3 is amended in the heading by adding ``or For a Terrorist Purpose'' after ``Organizations''.
The Commentary to Sec. 2M5.3 captioned ``Statutory Provisions'' is amended by inserting ``, 2339C(a)(1)(B), (c)(2)(B) (but only with respect to funds known or intended to have been provided or collected in violation of 18 U.S.C. 2339C(a)(1)(B))'' after ``2339B''.
The Commentary to Sec. 2X2.1 captioned ``Statutory Provisions'' is amended by inserting ``, 2339C(a)(1)(A)'' after ``2339A''.
[[Page 77539]]
The Commentary to Sec. 2X2.1 captioned ``Application Note'' is amended in Note 1 by inserting ``or 2339C(a)(1)(A)'' after ``2339A''; and by inserting ``or provided or collected funds for'' after ``supported''.
The Commentary to Sec. 2X3.1 captioned ``Statutory Provisions'' is amended by inserting ``, 2339C(c)(2)(A), (c)(2)(B) (but only with respect to funds known or intended to have been provided or collected in violation of 18 U.S.C. 2339C(a)(1)(A))'' after ``2339A''.
The Commentary to Sec. 2X3.1 captioned ``Application Notes'' is amended in Note 1 by inserting ``, or in the case of a violation of 18 U.S.C. 2339C(c)(2)(A), `underlying offense' means the violation of 18 U.S.C. 2339B with respect to which the material support, resources, or funds were concealed or disguised'' after ``offense)''.
Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. 2332d the following new line:
``18 U.S.C. 2332f 2K1.4, 2M6.1''; and
by inserting after the line referenced to 18 U.S.C. 2339B the following new lines:
``18 U.S.C. 2339C(a)(1)(A) 2X2.1
18 U.S.C. 2339C(a)(1)(B) 2M5.3
18 U.S.C. 2339C(c)(2)(A) 2X3.1
18 U.S.C. 2339C(c)(2)(B) 2M5.3, 2X3.1''.
IV. Miscellaneous Amendments
The proposed amendment amends Sec. 2K1.3 to add an additional base offense level of 18 for certain offenses committed under 18 U.S.C. 842(p)(2). Section 842(p)(2) criminalizes knowingly or intentionally facilitating Federal crimes of violence by teaching or demonstrating the making or use of an explosive, destructive device, or weapon of mass destruction. It also criminalizes the distribution ``by any means information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive, device, or weapon of mass destruction'' with the intent or knowing that the teaching, demonstration, or information will be used for or in furtherance of, an activity that constitutes a Federal crime of violence. The statutory maximum term of imprisonment is 20 years.
The statute is referenced in the Statutory Index to Sec. Sec. 2K1.3 (covering prohibited transactions involving explosive materials) and 2M6.1 (covering weapons of mass destruction). The applicable base offense levels at Sec. 2M6.1 are levels 42 and 28. The applicable offense level at Sec. 2K1.3 currently is base offense level 12. Section 2K1.3 has alternative base offense levels predicated upon recidivism. An alternative base offense level of 24 applies to a defendant with two prior felony convictions of a crime of violence or a controlled substance offense, and an alternative base offense level of 20 applies to a defendant with one prior felony conviction of a crime of violence or a controlled substance offense. The base offense level of 12 appears to be disproportionately low compared with other 20 year offenses, and compared with the treatment of 18 U.S.C. 842(p)(2) offenses under Sec. 2M6.1. This is especially true in light of the definition of ``destructive device'', defined at 18 U.S.C. 921(a)(4) to include ``(A) any explosive, incendiary, or poison gas (i) bomb, (ii) grenade, (iii) rocket having a propellant charge of more than four ounces, (iv) missile having an explosive or incendiary charge of more than onequarter ounce, (v) mine, or (vi) device similar to any of the devices described in the preceding clauses * * * .''
The proposed amendment also makes the enhancement at Sec. 2K1.3(b)(3) and the cross reference at Sec. 2K1.3(c)(1) applicable to 18 U.S.C. 842(p)(2) offenses. Currently, in cases in which the defendant used or possessed any explosive material in connection with another felony offense or possessed or transferred any explosive material with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense, subsection (b)(3) provides a four level enhancement and a minimum offense level of level 18, and, if the resulting offense level is greater, the cross reference at subsection (c)(1) references such cases either to Sec. 2X1.1 (Attempt, Solicitation, or Conspiracy), or to the most analogous homicide guideline if death resulted. Application of both subsection (b)(3) and subsection (c)(1) to 18 U.S.C. 842(p)(2) offenses is appropriate because of the defendant's knowledge and/or intent that the defendant's teaching would be used to carry out another felony.
Finally, the proposed amendment makes minor technical changes to the Statutory Provisions of Sec. 2M6.1.
Proposed Amendment (Part IV)
Section 2K1.3(a) is amended by redesignating subdivisions (3) and
(4) as subdivisions (4) and (5), respectively; and by inserting after subdivision (2) the following:
``(3) 18, if the defendant was convicted under 18 U.S.C. 842(p)(2);''.
Section 2K1.3(b)(3) is amended by inserting ``(A) was convicted under 18 U.S.C. 842(p)(2); or (B)'' after ``defendant''.
Section 2K1.3(c)(1) is amended by inserting ``(A) was convicted under 18 U.S.C. 842(p)(2); or (B)'' after ``defendant''.
The Commentary to Sec. 2K1.3 captioned ``Application Notes'' is amended in Note 3 by striking ``(3)'' and inserting ``(4)''.
The Commentary to Sec. 2K1.3 captioned ``Application Notes'' is amended in the second paragraph of Note 9 by striking ``(3)'' and inserting ``(4)''.
The Commentary to Sec. 2M6.1 captioned ``Statutory Provisions'' is amended by inserting ``(only with respect to weapons of mass destruction as defined in 18 U.S.C. 2332a(c)(2)(B), (C), and (D), but including any biological agent, toxin, or vector),'' after ``842(p)(2)''.
2. Immigration
Synopsis of Amendment: This proposed amendment addresses various application issues that have come to the Commission's attention through Helpline calls, training sessions, and case law. First, two options are provided to address felony drug trafficking offenses that receive a sentence other than imprisonment. Currently, there is some confusion regarding whether such offenses should receive a 16, 12, or 8level enhancement. Under the current guideline (as well as both proposed options), drug trafficking offenses for which the term of imprisonment imposed was more than 13 months receive a 16level enhancement. Under Option One, all other felony drug trafficking offenses will receive a 12level enhancement. Under Option Two, felony drug trafficking offenses that receive a term of imprisonment of less than 13 months will receive a 12level enhancement, and felony drug trafficking offenses that receive a sentence other than imprisonment (e.g., probation or a fine) will receive an 8level enhancement.
This amendment also makes the following commentary changes: Adds definitions of ``alien smuggling'', ``child pornography'', and ``human trafficking'' offenses; adds commentary to clarify how revocations of probation, parole, or supervised release should be treated for purposes of determining the term of imprisonment imposed; adds language prohibiting the use of juvenile adjudications under this guideline; and amends the definition of ``aggravated felony'' to exclude offenses of simple possession of a controlled substance.
Proposed Amendment
Section 2L1.2(b)(1)(A)(i) is amended by inserting ``was a term of imprisonment that'' after ``imposed''.
[[Page 77540]]
[Option One:
Section 2L1.2(b)(1) is amended by striking subdivision (B) and inserting the following:
``(B) a conviction for a felony drug trafficking offense other than
a felony drug trafficking offense covered under subdivision (A), increase by 12 levels;''.]
[Option Two:
Section 2L1.2(b)(1)(B) is amended by inserting ``a term of imprisonment of'' after ``imposed was''.]
The Commentary to Sec. 2L1.2 captioned ``Application Notes'' is
amended in subdivision (A) of Note 1 by striking subdivision (iv) and inserting the following:
``(iv) `Term of imprisonment'.
(I) Definition.`Term of imprisonment' means the sentence of incarceration originally imposed.
(II) Probated, Suspended, Deferred, or Stayed Sentences.If all or
any part of a term of imprisonment was probated, suspended, deferred,
or stayed, `sentence imposed' refers only to the portion that was not
probated, suspended, deferred, or stayed. A sentence in which all of a
term of imprisonment was suspended and a term of probation was imposed
is not a term of imprisonment for purposes of this guideline. [Option
Two: Accordingly, for purposes of subsections (b)(1)(A) and (B), the
sentence imposed for a felony drug trafficking offense must be a
sentence of incarceration. Any felony drug trafficking sentence other
than a sentence of incarceration (e.g., probation or a fine) shall be counted under subsection (b)(1)(C).]
(III) Revocations of Probation or Parole.For purposes of
determining the term of imprisonment in a case involving a revocation
of probation, parole, or supervised release add the term of
imprisonment given upon revocation to any term of imprisonment originally imposed.
(v) Subsection (b)(1) does not apply to a conviction for an offense
committed prior to age of eighteen years unless it is classified as an
adult conviction under the laws of the jurisdiction in which the
defendant was convicted (e.g., a Federal conviction for an offense
committed prior to the defendant's eighteenth birthday is an adult
conviction if the defendant was expressly proceeded against as an adult).''.
The Commentary to Sec. 2L1.2 captioned ``Application Notes'' is
amended in Note 1 by striking subdivision (B) and inserting the following:
``(B) Definitions.For purposes of subsection (b)(1):
(i) `Alien smuggling offense committed for profit' means (I) an
offense described in section 1324(a) of title 8, United States Code,
that was committed for profit, regardless of whether the indictment
charged that the offense was committed for profit; or (II) an offense
under state law consisting of conduct that would have been an offense
under 8 U.S.C. 1324(a) that was committed for profit, regardless of
whether the indictment charged that the offense was committed for
profit, if the offense had occurred within the special maritime and
territorial jurisdiction of the United States. `Committed for profit'
means the offense was committed for payment or expectation of payment.
(ii) `Child pornography offense' means (I) an offense described in
section 2251, 2251A, 2252[, or 2260] of title 18, United States Code;
or (II) an offense under state law consisting of conduct that would
have been an offense under any such section if the offense had occurred
within the special maritime and territorial jurisdiction of the United States.
(iii) `Crime of violence' means any of the following: murder,
manslaughter, kidnapping, aggravated assault, forcible sex offenses
(including sexual abuse of a minor), robbery, arson, extortion,
extortionate extension of credit, burglary of a dwelling, or any
offense under federal, state, or local law that has as an element the
use, attempted use, or threatened use of physical force against the person of another.
(iv) `Drug trafficking offense' means an offense under federal,
state, or local law that prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance (or a counterfeit
substance) or the possession of a controlled substance (or a
counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.
(v) `Felony' means any federal, state, or local offense punishable by imprisonment for a term exceeding one year.
(vi) `Firearms offense' means any of the following:
(I) An offense under federal, state, or local law that prohibits
the importation, distribution, transportation, or trafficking of a
firearm described in 18 U.S.C. 921, or of an explosive material as defined in 18 U.S.C. 841(c).
(II) An offense under federal, state, or local law that prohibits
the possession of a firearm described in 26 U.S.C. 5845(a), or of an explosive material as defined in 18 U.S.C. 841(c).
(III) A violation of 18 U.S.C. 844(h).
(IV) A violation of 18 U.S.C. 924(c).
(V) A violation of 18 U.S.C. 929(a).
(VI) An offense under state law consisting of conduct that would
have been an offense under subdivision (III), (IV), or (V) if the
offense had occurred within the special maritime and territorial jurisdiction of the United States.
(vii) `Human trafficking offense' means (I) any offense described
in section 1581, 1582, 1583, 1584, 1585, 1588 [, 1589, 1590, or 1591]
of title 18, United States Code; or (II) an offense under state law
consisting of conduct that would have been an offense under any such
section if the offense had occurred within the special maritime and territorial jurisdiction of the United States.
(viii) `Terrorism offense' means any offense involving, or
intending to promote, a `federal crime of terrorism', as that term is defined in 18 U.S.C. 2332b(g)(5).''.
The Commentary to Sec. 2L1.2 captioned ``Application Notes'' is amended by striking Note 2 and inserting the following:
``2. Application of Subsection (b)(1)(C).
(A) Definitions.For purposes of subsection (b)(1)(C), `aggravated
felony' (i) has the meaning given that term in 8 U.S.C. 1101(a)(43),
without regard to the date of conviction of the aggravated felony, and
(ii) does not include the offense of possession of a controlled
substance without an intent to distribute that controlled substance.
(B) In General.The offense level shall be increased under
subsection (b)(1)(C) for any aggravated felony (as defined in
subdivision (A)), with respect to which the offense level is not
increased under subsections (b)(1)(A) or (B) [(e.g., a felony drug
trafficking offense for which the sentence imposed was a sentence other than imprisonment)].''.
The Commentary to Sec. 2L1.2 captioned ``Application Notes'' is
amended in Note 3(B) by striking ``(i) were separated by an intervening
arrest; (ii) did not occur on the same occasion; (iii) were not part of
a single common scheme or plan; or (iv) were not consolidated for trial
or sentencing'' and inserting ``are not considered related cases as
defined in Application Note 3 of Sec. 4A1.2 (Definitions and Instructions for Computing Criminal History)''.
3. Sec. 5G1.3 (Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment)
Synopsis of Proposed Amendment: This is a three part proposed
amendment that addresses a number of issues in Sec. 5G1.3 (Imposition of a Sentence on a Defendant Subject to an
[[Page 77541]]
Undischarged Term of Imprisonment). First, the amendment amends Sec.
5G1.3(b) to allow the court to adjust the length of the sentence for
any prior period of imprisonment that ``resulted from offenses that
have been fully taken into account in the determination of the offense
level for the instant offense''. Currently, this subsection only
applies to undischarged terms of imprisonment for any such prior period
of imprisonment. As a conforming amendment, the proposed amendment
deletes the downward departure provision in Application Note 7 for prior discharged terms of imprisonment.
In addition to adding discharged terms of imprisonment to the operation of subsection (b), this amendment proposes two options to clarify the rule for application of subsection (b) to a prior term of imprisonment. There has been litigation regarding what ``fully taken into account'' means. See United States v. GarciaHernandez, 237 F.3d 105, 109 (2d Cir. 2000) (determining that a prior offense is ``fully taken into account'' if and only if the Guidelines provide for sentencing as if both the offense of conviction and the separate offense had been prosecuted in a single proceeding); United States v. Caraballo, 200 F.3d 20, 25 (1st Cir. 1999) (holding that the term ``fuly'' cannot be read as synonymous with the term ``relevant conduct'' because this would be overinclusive). Compare United States v. Fuentes, 107 F.3d 1515, 1524 (11th Cir. 1997) (finding that a prior offense has been ``fully taken into account'' when the prior offense is part of the same course of conduct, common scheme, or plan). Option One makes clear that subsection (b) shall apply only to prior offenses that are relevant conduct to the instant offense of conviction and that resulted in an increase in the offense level for the instant offense. Option Two makes clear that subsection (b) shall apply in cases in which the conduct of the prior offense is (1) Incorporated in the base offense level for the instant offense, (2) covered by a specific offense characteristic in the guideline for the instant offense, or (3) covered by a chapter three adjustment applicable to the instant offense. Option Two does not require that the chapter two or three offense level necessarily be increased by the prior offense.
This proposed amendment provides two options to address how this guideline applies in cases in which an instant offense committed while the defendant is on federal or state probation, parole, or supervised release, and has had such probation, parole, or supervised release revoked. In doing so, this amendment resolves a circuit conflict on the issue. The majority of circuits to consider the issue have held that imposition of consecutive sentence is required by Application Note 6. See, e.g., United States v. Smith, 282 F.3d 1045, 1048 (8th Cir. 2002) (stating that Application Note 6 requires consecutive sentences); United States v. Alexander, 100 F.3d 24, 27 (5th Cir. 1996) (same); United States v. Gondek, 65 F.3d 1, 3 (1st Cir. 1995) (same); United States v. Bernard, 48 F.3d 427, 43132 (9th Cir. 1995) (same). See also United States v. Campbell, No. 015661, 2002 U.S. App. LEXIS 23024 (6th Cir., Nov. 6, 2002) (affirming imposition of consecutive sentence as consistent with guideline commentary); United States v. Walker, 98 F.3d 944, 945 (7th Cir. 1996) (noting a strong presumption in favor of consecutive sentence). Three circuits, however, have disagreed. The second, third, and tenth circuits held that the word ``should'' in Application Note 6 renders the commentary nonbinding. See United States v. Maria, 186 F.3d 65, 7073 (2d Cir. 1999); United States v. Swan, 275 F.3d 272, 27983 (3d Cir. 2002); United States v. Tisdale, 248 F.3d 964, 97779 (10th Cir. 2001). Under Option One A, the sentence for the instant offense shall be imposed to run consecutively to the undischarged term of imprisonment. Option One B maintains the current language in Application Note 6 which provides that the sentence for the instant offense should run consecutively to the undischarged term of imprisonment.
Finally, an issue for comment is provided regarding whether the
Commission should resolve a circuit split with respect to Sec.
5G1.3(c) and whether the sentencing court may grant ``credit'' for time
served in state prison for an undischarged sentence, in addition to
running the federal sentence concurrently with the remaining portion of
the defendant's preexisting state sentence. Compare Ruggiano v. Reish,
307 F.3d 121 (3d Cir. 2002) (federal sentencing court may grant such
credit), with United States v. Fermin, 252 F.3d 102 (2d Cir. 2001) (court may not grant such credit).
Proposed Amendment
Option One:
Section 5G1.3 is amended in the heading by striking ``on a Defendant Subject to an'' and inserting ``in Cases Involving an''; and by inserting ``or Discharged'' after ``Undischarged''.
[Option One A:
Section 5G1.3(a) is amended by inserting ``(1)'' before ``serving''; and by striking ``imprisonment,'' and inserting ``imprisonment; or (2) on federal or state probation, parole, or supervised release at the time of the instant offense, and has had such probation, parole, or supervised release revoked,''.]
Section 5G1.3 is amended by striking subsection (b) and inserting the following:
``(b) If subsection (a) does not apply, and a term of imprisonment
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