Federal Register: January 27, 2009 (Volume 74, Number 16)
DOCID: fr27ja09-77 FR Doc E9-1642
UNITED STATES SENTENCING COMMISSION
United States Sentencing Commission
NOTICE: NOTICES
DOCID: fr27ja09-77
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. Notice of public hearing.
SUBJECT CATEGORY:
Sentencing Guidelines for United States Courts
DATES: (1) Written Public Comment.--Written public comment regarding
the proposed amendments and issues for comment set forth in this
notice, including public comment regarding retroactive application of
any of the proposed amendments, should be received by the Commission not later than March 30, 2009.
(2) Public Hearing.The Commission plans to hold a public hearing
regarding the proposed amendments and issues for comment set forth in
this notice. Further information regarding the public hearing,
including requirements for testifying and providing written testimony,
as well as the location, time, and scope of the hearing, will be
provided by the Commission on its Web site at http://www.ussc.gov.
DOCUMENT SUMMARY:
Pursuant to section 994(a), (o), and (p) of title 28, United States Code, the United States Sentencing 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. This notice also sets forth a number of issues for comment, some of which are set forth together with the proposed amendments; some of which are set forth independent of any proposed amendment; and one of which (regarding retroactive application of proposed amendments) is set forth in the SUPPLEMENTARY INFORMATION portion of this notice.
The proposed amendments and issues for comment in this notice are
as follows: (1) A proposed amendment in response to the Identity Theft
Restitution and Enforcement Act of 2008, title II of Public Law 110
326, including proposed changes to Sec. 2B1.1 (Larceny, Embezzlement,
and Other Forms of Theft; Offenses Involving Stolen Property; Property
Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving
Altered or Counterfeit Instruments Other than Counterfeit Bearer
Obligations of the United States), Sec. 2H3.1 (Interception of
Communications; Eavesdropping; Disclosure of Certain Private or
Protected Information), and Sec. 3B1.3 (Abuse of Position of Trust or
Use of Special Skill), and issues for comment regarding the guidelines'
treatment of offenses involving fraud, identity theft, computers, and
communications; (2) a proposed amendment in response to the Ryan Haight
Online Pharmacy Consumer Protection Act of 2008, Public Law 110465,
including proposed changes to Sec. 2D1.1 (Unlawful Manufacturing,
Importing, Exporting, or Trafficking (Including Possession with Intent
to Commit These Offenses); Attempt or Conspiracy) and Sec. 2D3.1 [[Page 4803]]
(Regulatory Offenses Involving Registration Numbers; Unlawful
Advertising Relating to Schedule I Substances; Attempt or Conspiracy),
and issues for comment regarding the guidelines' treatment of Schedule
III, IV, and V controlled substance offenses; (3) a proposed amendment
in response to the Drug Trafficking Vessel Interdiction Act of 2008,
Public Law 110407, including a proposed change to Sec. 2D1.1
(Unlawful Manufacturing, Importing, Exporting, or Trafficking
(Including Possession with Intent to Commit These Offenses); Attempt or
Conspiracy) and a proposed new guideline for offenses involving
operating a submersible vessel or semisubmersible vessel without
nationality, and issues for comment regarding the guidelines' treatment
of such offenses; (4) an issue for comment in response to the Court
Security Improvement Act of 2007, Public Law 110177, regarding the
guidelines' treatment of homicide, assault, and threat offenses; (5) an
issue for comment in response to the William Wilberforce Trafficking
Victims Protection Reauthorization Act of 2008, Public Law 110457,
regarding the guidelines' treatment of alien harboring and human
trafficking offenses; (6) a proposed amendment in response to
miscellaneous issues arising from legislation recently enacted and
other miscellaneous guideline application issues, including proposed
changes to the guidelines' treatment of offenses involving contempt,
consumer product safety, interest rate limitations, domestic violence,
child soldiers, veterans' grave markers, child pornography, firearms,
threats, and copyright infringement and the guidelines' treatment of
probation and supervised release, and related issues for comment; (7) a
proposed amendment to Sec. 2A3.2 (Criminal Sexual Abuse of a Minor
Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit
Such Acts) and Sec. 2G1.3 (Promoting a Commercial Sex Act or
Prohibited Sexual Conduct with a Minor; Transportation of Minors to
Engage in a Commercial Sex Act or Prohibited Sexual Conduct; Travel to
Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor;
Sex Trafficking of Children; Use of Interstate Facilities to Transport
Information about a Minor) in response to a circuit conflict regarding
application of the undue influence enhancement in those guidelines, and
a related issue for comment; (8) a proposed amendment to Sec. 3C1.3
(Commission of Offense While on Release) in response to an application
issue regarding that guideline; (9) a proposed amendment in response to a circuit conflict regarding the guidelines' treatment of
counterfeiting offenses involving ``bleached notes'', including a
proposed change to Sec. 2B5.1 (Offenses Involving Counterfeit Bearer
Obligations of the United States); and (10) a proposed amendment in
response to certain technical issues that have arisen in the
guidelines.
SUMMARY:
Sentencing Guidelines for United States 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) and submits guideline amendments to the Congress not later than the first day of May each year pursuant to 28 U.S.C. 994(p).
The proposed amendments in this notice are presented 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 in comment and suggestions regarding alternative policy choices; for example, a proposed enhancement of [2][4][6] 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.
The Commission also requests public comment regarding whether the Commission should specify for retroactive application to previously sentenced defendants any of the proposed amendments published in this notice. The Commission requests comment regarding which, if any, of the proposed amendments that may result in a lower guideline range should be made retroactive to previously sentenced defendants pursuant to Sec. 1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range).
Additional information pertaining to the proposed amendments described in this notice may be accessed through the Commission's Web site at http://www.ussc.gov.
Authority: 28 U.S.C. 994(a), (o), (p), (x); USSC Rules of Practice and Procedure, Rule 4.4.
Ricardo H. Hinojosa,
Acting Chair.
1. Identity Theft
Synopsis of Proposed Amendment: This proposed amendment addresses the Identity Theft Restitution and Enforcement Act of 2008 (the ``Act''), Title II of Public Law 110326, and other related issues arising from case law. The Act contains a directive to the Commission at section 209. Section 209(a) of the Act directs the Commission to review its guidelines and policy statements applicable to persons convicted of offenses under sections 1028, 1028A, 1030, 2511, and 2701 of title 18, United States Code, and any other relevant provisions of law, in order to reflect the intent of Congress that such penalties be increased in comparison to those currently provided by such guidelines and policy statements.
The offenses that are the subject of the directive in section 209
of the Act, and the guidelines to which they are referenced, are as follows:
(1) 18 U.S.C. 1028 (fraud and related activity in connection with
identification documents, authentication features, and information)
makes it unlawful to engage in fraud and related activity in connection with ``identification documents'' (e.g., governmentissued
[[Page 4804]]
documents such as drivers' licenses) or ``authentication features''
(i.e., features used on such documents to determine whether such
documents are authentic, such as watermarks or holograms). A violator
is subject to a fine under title 18, United States Code, and
imprisonment. The statutory maximum term of imprisonment varies from 1
year to 30 years, depending on the circumstances of the offense. For
example, the statute provides imprisonment up to 30 years (if terrorism
is involved); 20 years (if a drug trafficking crime or a crime of
violence is involved, or if the violator is a repeat offender); and 15
years, 5 years, and 1 year, in other specified circumstances.
Offenses under 18 U.S.C. 1028 are referenced in Appendix A of the
Guidelines Manual (Statutory Index) to Sec. Sec. 2B1.1 (Theft,
Property Destruction, and Fraud), 2L2.1 (Trafficking in a Document
Relating to Naturalization), and 2L2.2 (Fraudulently Acquiring Documents Relating to Naturalization).
(2) 18 U.S.C. 1028A (aggravated identity theft) makes it unlawful
to transfer, possess, or use a ``means of identification'' (i.e., a
name or number used to identify a specific individual, such as a social
security number) of another person during and in relation to another
felony (such as a fraud or an immigration violation). A violator is
subject to a mandatory consecutive term of imprisonment of 2 years or, if the other felony was a terrorism offense, 5 years.
Offenses under 18 U.S.C. 1028A are referenced in Appendix A
(Statutory Index) to Sec. 2B1.6 (Aggravated Identity Theft).
(3) 18 U.S.C. 1030 (fraud and related activity in connection with computers) provides for several offenses as follows:
(A) 18 U.S.C. 1030(a)(1) makes it unlawful to retain national
security information after having obtained it by computer without
authority, or to disclose such information to a person not entitled to
receive it. A violator is subject to a fine under title 18, United
States Code, and imprisonment up to 10 years (for a first offense) or 20 years (for a repeat offender).
Offenses under 18 U.S.C. 1030(a)(1) are referenced in the Statutory Index to Sec. 2M3.2 (Gathering National Defense Information). (B) 18 U.S.C. 1030(a)(2) makes it unlawful to obtain by computer, without authority, information of a financial institution or of a federal agency. A violator is subject to a fine under title 18, United States Code, and imprisonment of up to 1 year (for a first offense), 5 years (for an offense involving valuable information, an offense for purposes of commercial advantage or financial gain, or an offense in furtherance of another crime or tort), or 10 years (for a repeat offender).
Offenses under 18 U.S.C. 1030(a)(2) are referenced in the Statutory Index to Sec. 2B1.1 (Theft, Property Destruction, and Fraud). (C) 18 U.S.C. 1030(a)(3) makes it unlawful to access, without authority, a nonpublic computer of a federal agency. A violator is subject to a fine under title 18, United States Code, and imprisonment of up to 1 year (for a first offense) or 10 years (for a repeat offender).
Offenses under 18 U.S.C. 1030(a)(3) are referenced in the Statutory Index to Sec. 2B2.3 (Trespass).
(D) 18 U.S.C. 1030(a)(4) makes it unlawful to access a ``protected
computer'' (i.e., a computer of a financial institution or a federal
agency) without authority and, by means of doing so, further an
intended fraud and obtain a thing of value. A violator is subject to a
fine under title 18, United States Code, and imprisonment of up to 5
years (for a first offense) or 10 years (for a repeat offender).
Offenses under 18 U.S.C. 1030(a)(4) are referenced in the Statutory Index to Sec. 2B1.1 (Theft, Property Destruction, and Fraud). (E) 18 U.S.C. 1030(a)(5) makes it unlawful to use a computer to cause damage to a ``protected computer'' (i.e., a computer of a financial institution or a federal agency). A violator is subject to a fine under title 18, United States Code, and imprisonment of up to 1 year, 5 years, 10 years, 20 years, or life, depending on the circumstances.
Offenses under 18 U.S.C. 1030(a)(5) are referenced in the Statutory Index to Sec. 2B1.1 (Theft, Property Destruction, and Fraud). (F) 18 U.S.C. 1030(a)(6) makes it unlawful to traffic in any password or similar information through which a computer may be accessed without authorization, if the trafficking affects interstate or foreign commerce or if the computer is used by or for a federal agency. A violator is subject to a fine under title 18, United States Code, and imprisonment of up to 1 year (for a first offense) or 10 years (for a repeat offender).
Offenses under 18 U.S.C. 1030(a)(6) are referenced in the Statutory Index to Sec. 2B1.1 (Theft, Property Destruction, and Fraud). (G) 18 U.S.C. 1030(a)(7) makes it unlawful to threaten to cause damage to, or obtain information from, a ``protected computer'' (i.e., a computer of a financial institution or a federal agency), without authority and with intent to extort. A violator is subject to a fine under title 18, United States Code, and imprisonment of up to 5 years (for a first offense) or 10 years (for a repeat offender).
Offenses under 18 U.S.C. 1030(a)(7) are referenced in the Statutory
Index to Sec. 2B3.2 (Extortion by Force or Threat of Injury or Serious Damage).
(H) 18 U.S.C. 1030(b) makes it unlawful to conspire to commit, or
attempt to commit, a section 1030(a) offense. A violator is subject to the same penalty as for the section 1030(a) offense.
Offenses under 18 U.S.C. 1030(b) are referenced in the Statutory Index to Sec. 2X1.1 (Attempt, Solicitation, or Conspiracy). (4) 18 U.S.C. 2511 (interception and disclosure of wire, oral, or electronic communications prohibited) makes it unlawful to intercept or disclose any wire, oral, or electronic communication. A violator is subject to a fine under title 18, United States Code, and imprisonment of up to 5 years.
Offenses under 18 U.S.C. 2511 are referenced in the Statutory Index
to Sec. Sec. 2B5.3 (Criminal Infringement of Copyright or Trademark)
and 2H3.1 (Interception of Communications; Eavesdropping; Disclosure of Certain Private or Protected Information).
(5) 18 U.S.C. 2701 (unlawful access to stored communications) makes
it unlawful to access, without authority, a facility through which an
electronic communication service is provided and obtain, alter, or
prevent authorized access to a wire or electronic communication stored
in that facility. A violator is subject to a fine under title 18,
United States Code, and imprisonment. If the offense is committed for
commercial advantage, malicious damage, or commercial gain, or in
furtherance of a crime or tort, the maximum term of imprisonment is 5
years (for a first offender) or 10 years (for a repeat offender);
otherwise, the maximum term of imprisonment is 1 year (for a first offender) or 5 years (for a repeat offender).
Offenses under 18 U.S.C. 2701 are referenced in the Statutory Index to Sec. 2B1.1 (Theft, Property Destruction, and Fraud).
Section 209(b) of the Act requires that, in determining the
appropriate sentence for the above referenced crimes, the Commission
``shall consider the extent to which the current guidelines and policy
statements may or may not adequately account for the following factors
in order to create an effective deterrent to computer crime [[Page 4805]]
and the theft or misuse of personally identifiable data'':
(1) The level of sophistication and planning involved in such offense.
(2) Whether such offense was committed for purpose of commercial advantage or private financial benefit.
(3) The potential and actual loss resulting from the offense including
(A) The value of information obtained from a protected computer,
regardless of whether the owner was deprived of use of the information; and
(B) Where the information obtained constitutes a trade secret or
other proprietary information, the cost the victim incurred developing or compiling the information.
(4) Whether the defendant acted with intent to cause either physical or property harm in committing the offense.
(5) The extent to which the offense violated the privacy rights of individuals.
(6) The effect of the offense upon the operations of an agency of
the United States Government, or of a State or local government.
(7) Whether the offense involved a computer used by the United
States Government, a State, or a local government in furtherance of
national defense, national security, or the administration of justice.
(8) Whether the offense was intended to, or had the effect of,
significantly interfering with or disrupting a critical infrastructure.
(9) Whether the offense was intended to, or had the effect of,
creating a threat to public health or safety, causing injury to any person, or causing death.
(10) Whether the defendant purposefully involved a juvenile in the commission of the offense.
(11) Whether the defendant's intent to cause damage or intent to
obtain personal information should be disaggregated and considered
separately from the other factors set forth in USSG 2B1.1(b)(14) [currently Sec. 2B1.1(b)(15)].
(12) Whether the term ``victim'' as used in USSG 2B1.1, should
include individuals whose privacy was violated as a result of the
offense in addition to individuals who suffered monetary harm as a result of the offense.
(13) Whether the defendant disclosed personal information obtained during the commission of the offense.
Section 209(c) of the Act requires that in responding to the directive, the Commission:
(1) Assure reasonable consistency with other relevant directives and with other sentencing guidelines;
(2) Account for any additional aggravating or mitigating
circumstances that might justify exceptions to the generally applicable sentencing ranges;
(3) Make any conforming changes to the sentencing guidelines; and
(4) Assure that the guidelines adequately meet the purposes of
sentencing as set forth in section 3553(a)(2) of title 18, United States Code.
The proposed amendment and issues for comment address the factors set forth in section 209(b) of the Act, and other related issues arising under the Act and under case law, in the following manner: (A) Level of Sophistication and Planning Involved in the Offense
Synopsis of Proposed Amendment: The proposed amendment responds to
subsection (b)(1) of the directive, which concerns the level of
sophistication involved in the offense, by amending the commentary in
Sec. 2B1.1 relating to fraud offenses that involve sophisticated
means. Specifically, the proposed amendment responds to a concern about
whether, in a case involving computers, the defendant's use of any
technology or software to conceal the identity or geographic location
of the perpetrator qualifies as ``especially complex or especially
intricate offense conduct pertaining to the execution or concealment of
an offense'' within the meaning of the sophisticated means enhancement
in Sec. 2B1.1(b)(9) and Application Note 8(B) of that guideline. The
proposed amendment adds this conduct to the list in Application Note
8(B) of examples of conduct that ordinarily indicates sophisticated means.
Two issues for comment are also included.
Proposed Amendment:
The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is amended in Note 8(B) by adding at the end the following:
``In a scheme involving computers, using any technology or software
to conceal the identity or geographic location of the perpetrator ordinarily indicates sophisticated means.''.
Issues for Comment:
1. The Commission requests comment regarding the factor described
in section 209(b)(1) of the Act (the level of sophistication and
planning involved in the offense). The guidelines currently address this factor as follows:
(1) Section 2B1.1(b)(9) contains a 2level enhancement, and a
minimum offense level of 12, if the offense involved sophisticated means.
(2) Section 2B1.1(b)(4) contains a 2level enhancement if the
offense involved receiving stolen property and the defendant was in the
business of receiving and selling stolen property, which Application
Note 5 provides is to be determined in part on the regularity and sophistication of the defendant's activities.
Is the factor adequately addressed by these provisions? Should the Commission increase the amount, or the scope, of these enhancements, or of the minimum offense level, or any combination of those? Should the Commission amend other guidelines to which these offenses are referenced to address this factor, such as by adding comparable enhancements, minimum offense levels, or both?
2. The Commission requests comment regarding whether Sec. 3B1.3
(Abuse of Position of Trust or Use of Special Skill) should apply to a
person who has selftrained computer skills. Does the guideline
adequately address such a person? Should the guideline include language
that unequivocally includes such a person, or should it include language that unequivocally excludes such a person?
(B) Whether the Offense Was Committed for Purpose of Commercial Advantage or Private Financial Benefit
Issue for Comment:
1. The Commission requests comment regarding the factor described
in section 209(b)(2) of the Act (whether the offense was committed for
purpose of commercial advantage or private financial benefit). The guidelines currently address this factor as follows:
(1) Section 2H3.1 provides a 3level enhancement at subsection
(b)(1)(B) if the purpose of an offense under 18 U.S.C. 2511 was to
obtain direct or indirect commercial advantage or economic gain, and a
cross reference at subsection (c)(1) that applies if the purpose of the offense was to facilitate another offense.
(2) Section 2B1.5(b)(4) provides a 2level enhancement if the
offense was committed for pecuniary gain or otherwise involved a commercial purpose.
(3) Sections 2B1.1(b)(1), 2B2.3(b)(3), and 2B5.3(b)(1) provide
enhancements based on the monetary amounts involved in the offense.
Is the factor adequately addressed by these provisions? Should the
Commission increase the amount, or the scope, of these enhancements, or
the scope of the cross reference? Should the Commission amend other
guidelines to which these offenses are referenced to address this
factor, such as by adding comparable enhancements or cross references? [[Page 4806]]
(C) The Potential and Actual Loss Resulting From the Offense Including
(A) the Value of Information Obtained From a Protected Computer,
Regardless of Whether the Owner Was Deprived of Use of the Information;
and (B) Where the Information Obtained Constitutes a Trade Secret or
Other Proprietary Information, the Cost the Victim Incurred Developing or Compiling the Information
Synopsis of Proposed Amendment: The proposed amendment responds to
subsection (b)(3) of the directive by revising Sec. 2B1.1 (Theft,
Property Destruction, and Fraud). Specifically, it addresses two types
of information: information that the victim retains but that is copied
by the defendant, and information that constitutes a trade secret or
other proprietary information of the victim. Two options are presented.
Option 1 adds to the rule of construction for cases under 18 U.S.C.1030
(Fraud and related activity in connection with computers) regarding
pecuniary harm in Application Note 3(A)(v)(III), specifying that any
reduction in the value of proprietary information that resulted from
the offense should be included in the loss calculation. Option 2 adds a
provision in Application Note 3(C), specifying that, if the fair market
value of copied information is unavailable or insufficient, the court
may consider the cost the victim incurred in originally developing the
information or the reduction in the value of the information that resulted from the offense.
Four issues for comment are also included.
Proposed Amendment:
[Option 1:
The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is
amended in Note 3(A)(v)(III) by striking ``, and'' after ``prior to the
offense'' and inserting a semicolon; and by inserting after ``service'' the following:
``; and any reduction in the value of proprietary information (e.g., trade secrets) that resulted from the offense''.]
[Option 2:
The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is amended in Note 3(C)(i) by inserting ``copied,'' after ``taken,''.
The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is
amended in Note 3(C) by redesignating clauses (ii) through (v) as (iii)
through (vi); and by inserting after clause (i) the following new clause:
``(ii) In the case of proprietary information (e.g., trade
secrets), the cost of developing that information or the reduction that
resulted from the offense in the value of that information.''.]
Issues for Comment:
1. The Commission requests comment regarding the factor described
in section 209(b)(3) of the Act (the potential and actual loss
resulting from the offense including (A) the value of information
obtained from a protected computer, regardless of whether the owner was
deprived of use of the information; and (B) where the information
obtained constitutes a trade secret or other proprietary information,
the cost the victim incurred developing or compiling the information). The guidelines currently address this factor as follows:
(1) Sections 2B1.1(b)(1), 2B2.3(b)(3), and 2B5.3(b)(1) provide
enhancements based on the monetary amounts involved in the offense.
(2) Section 2B1.1, Application Note 19(A)(iv), provides an upward
departure if the offense created a risk of substantial loss beyond the loss determined for purposes of Sec. 2B1.1(b)(1).
(3) Section 2B1.1, Application Note 19(A)(v), provides an upward
departure if, in a case involving stolen information from a ``protected
computer,'' the defendant sought the stolen information to further a broader criminal purpose.
Is the factor adequately addressed by these provisions? Should the Commission increase the amount, or the scope, of these enhancements? Should the Commission amend other guidelines to which these offenses are referenced to address this factor, such as by adding comparable enhancements? Should these upward departure provisions be incorporated as enhancements in the guidelines to which these offenses are referenced?
2. Should the definition of ``loss'' in Sec. 2B1.1 be amended to provide greater guidance to the court on how to estimate loss in cases involving information obtained from a protected computer without depriving the owner of the use of the information, or information obtained that constitutes a trade secret or other proprietary information? For such cases, should Sec. 2B1.1 include a special rule for including and quantifying (or providing a stipulated amount for) the loss, such as the special rule in Application Note 3(F)(i) relating to credit cards?
3. The Commission requests comment regarding whether Sec. 2B1.1 adequately accounts for a case in which an individual suffers pecuniary harm, but the pecuniary harm is immediately reimbursed by a third party. In such a case, the pecuniary harm may not be treated as ``loss,'' and the individual may not be treated as a ``victim,'' for purposes of Sec. 2B1.1.
Five circuit courts have addressed the issue of whether an individual who is fully reimbursed for his or her temporary financial loss by a third party is a ``victim'' for purposes of Sec. 2B1.1(b)(2). The Fifth Circuit in United States v. Conner, 537 F.3d 480, 489 (5th Cir. 2008), and the Sixth Circuit in United States v. Yagar, 404 F.3d 967, 971 (6th Cir. 2005), have held that individuals who have been fully reimbursed for temporary financial losses by a third party are not ``victims'' within the meaning of Sec. 2B1.1(b)(2). Although the Second Circuit in United States v. Abiodun, 536 F.3d 162, 168 (2d Cir.), cert. denied, S. Ct. , 2008 WL 4619522 (2008), and the Ninth Circuit in United States v. Pham, 545 F.3d 712, 721 (9th Cir. 2008), have agreed with the reasoning of these courts, they have further held that individuals who were fully reimbursed for their financial losses by third parties may be deemed victims for purposes of Sec. 2B1.1(b)(2) so long as they suffered an adverse effect, measurable in monetary terms, as a result of the defendant's conduct (e.g., the costs associated with obtaining reimbursements from banks or credit card companies). The Eleventh Circuit in United States v. Lee, 427 F.3d 881, 895 (11th Cir. 2005), did not agree. While acknowledging that the facts of its case were significantly different in that the monetary losses were neither shortlived nor immediately reimbursed by third parties, the Lee court held that the operative time for determining whether someone is a victim is the time of the offense, irrespective of any subsequent remedial action.
Should the Commission amend the guidelines to address this circumstance and, if so, how?
4. The Commission requests comment regarding whether Sec. 3B1.3
(Abuse of Position of Trust or Use of Special Skill) should apply to a
person who is an officer, employee, or insider of a business who
participates in an offense involving proprietary information (e.g.,
trade secrets) of that business. Does the guideline adequately address
such a person? Should the guideline include language that unequivocally
includes such a person, or should it include language that unequivocally excludes such a person?
[[Page 4807]]
(D) Whether the Defendant Acted With Intent To Cause Either Physical or Property Harm in Committing the Offense
Issue for Comment
1. The Commission requests comment regarding the factor described
in section 209(b)(4) of the Act (whether the defendant acted with
intent to cause either physical or property harm in committing the
offense). The guidelines currently address this factor as follows:
(1) Section 2B1.1(b)(13) provides a 2level enhancement if the
offense involved the conscious or reckless risk of death or serious
bodily injury, or possession of a dangerous weapon in connection with the offense.
(2) Section 2B1.1(c) provides a cross reference under which the
court applies a firearms or explosives guideline if firearms or explosives are involved.
(3) Section 2H3.1(c) provides a cross reference under which the
court applies another offense guideline if the purpose was to facilitate another offense.
(4) Section 2B1.1, Application Note 19, provides an upward
departure if the offense caused or risked substantial nonmonetary harm, such as physical harm or property harm.
(5) Section 2H3.1, Application Note 5, provides an upward departure
if the offense caused or risked substantial nonmonetary harm, such as physical harm or property harm.
(6) Section 5K2.5 (Property Damage or Loss) provides an upward
departure if the offense caused property damage or loss not taken into account by the guidelines.
Is the factor adequately addressed by these provisions? If not,
should the Commission increase the amount, or the scope, of these
enhancements, or the scope of the cross reference or departure
provisions? Should the Commission amend other guidelines to which these
offenses are referenced to address this factor, such as by adding
comparable enhancements or cross references? Alternatively, should
these upward departure provisions be incorporated as enhancements in the guidelines to which these offenses are referenced?
(E) The Extent to Which the Offense Violated the Privacy Rights of Individuals
Synopsis of Proposed Amendment: The proposed amendment responds to subsection (b)(5) of the directive (the extent to which the offense violated the privacy rights of individuals) by revising Sec. 2H3.1 (Interception of Communications; Eavesdropping; Disclosure of Certain Private or Protected Information). Two options are presented. Option 1 creates a new specific offense characteristic in Sec. 2H3.1 with three alternative enhancements if the offense involved the personal information or means of identification of specified numbers of individuals. Specifically, it provides an enhancement of [2] levels for offenses involving the personal information or means of identification of [10][50] or more individuals; an enhancement of [4] levels for [50][250] or more individuals; and an enhancement of [6] levels for [250][1,000] or more individuals. The graduated levels ensure incremental punishment for increasingly serious conduct. Option 2 amends Application Note 5 to Sec. 2H3.1, suggesting that an upward departure may be warranted not only in a case in which the offense involved confidential phone records information or tax return information of a substantial number of individuals (as the application note currently provides), but also in a case in which the offense involved personal information or means of identification of a substantial number of individuals.
The proposed amendment defines the term ``personal information'',
for purposes of Sec. 2H3.1, in the same manner as the term ``personal
information'' is defined for purposes of Sec. 2B1.1(b)(15). The
proposed amendment clarifies, for purposes of both guidelines, that
information is ``personal information'' only if it involves an identifiable individual.
An issue for comment is also included.
Proposed Amendment:
[Option 1:
Section 2H3.1(b) is amended by adding at the end the following:
``(3) (Apply the greatest) If the defendant is convicted under 18
U.S.C. Sec. 2511 and the offense involved personal information or means of identification of
(A) [10][50] or more individuals, increase by [2] levels;
(B) [50][250] or more individuals, increase by [4] levels; or
(C) [250][1,000] or more individuals, increase by [6] levels.''.]
The Commentary to Sec. 2H3.1 captioned ``Application Notes'' is
amended in Note 4 by striking ``subsection (b)(2)(B)'' and inserting
``this guideline''; and by adding after the paragraph that begins `` `Interactive computer service' '' the following:
`` `Means of identification' has the meaning given that term in 18
U.S.C. 1028(d)(7), except that such means of identification shall be of
an actual (i.e., not fictitious) individual, other than the defendant
or a person for whose conduct the defendant is accountable under Sec. 1B1.3 (Relevant Conduct).
`Personal information' means sensitive or private information
involving an identifiable individual (including such information in the
possession of a third party), including (i) medical records; (ii)
wills; (iii) diaries; (iv) private correspondence, including email;
(v) financial records; (vi) photographs of a sensitive or private nature; or (vii) similar information.''.
[Option 2:
The Commentary to Sec. 2H3.1 captioned ``Application Notes'' is amended in Note 5(i) by inserting ``personal information, means of identification,'' after ``involved''; and by inserting a comma before ``or tax''.]
The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is
amended in Note 13(A) in the paragraph that begins `` `Personal
information' '' by inserting ``involving an identifiable individual'' after ``private information''.
Issue for Comment:
1. The Commission requests comment regarding the factor described
in section 209(b)(5) of the Act (the extent to which the offense
violated the privacy rights of individuals). In many cases, non
monetary harm (such as a violation of privacy rights) may be difficult
or impossible to quantify. See, e.g., Sec. 2B1.1, comment. (backg'd.).
For that reason, nonmonetary harm is typically accounted for by the
guidelines through a minimum offense level or an upward departure. The guidelines currently address this factor as follows:
(1) Section 2B1.1, Application Note 19, provides an upward
departure if the offense resulted in a substantial invasion of a
privacy interest. It also provides an upward departure if, in a case
involving access devices or unlawfully produced or unlawfully obtained
means of identification, (i) the offense caused substantial harm to the
victim's reputation or credit record, or the victim suffered a
substantial inconvenience related to repairing the victim's reputation
or a damaged credit record; (ii) an individual whose means of
identification the defendant used to obtain unlawful means of
identification is erroneously arrested or denied a job because an
arrest record has been made in that individual's name; or (iii) the
defendant produced or obtained numerous means of identification with
respect to one individual and essentially assumed that individual's identity.
(2) Section 2H3.1, Application Note 5, provides an upward departure
if the offense involved private information or resulted in a substantial invasion of a privacy interest.
[[Page 4808]]
(3) Section 2B1.1(b)(15)(A) provides a 2level enhancement if an
offense under 18 U.S.C. 1030 involved an intent to obtain personal
information, and Sec. 2H3.1(b)(2)(B) provides a 10level enhancement
if an offense under 18 U.S.C. 119 involved the use of a computer to
make restricted personal information about a covered person publicly available.
Is the factor adequately addressed through these provisions? If
not, should the Commission increase the amount, or the scope, of these
enhancements? Should the Commission amend other guidelines to which
these offenses are referenced to address this factor, such as by adding
comparable enhancements? Should these upward departure provisions be
incorporated as enhancements in the guidelines to which these offenses are referenced?
(F) The Effect of the Offense Upon the Operations of an Agency of the
United States Government, or of a State or Local Government
Issue for Comment:
1. The Commission requests comment regarding the factor described
in section 209(b)(6) of the Act (the effect of the offense upon the
operations of an agency of the United States Government, or of a State
or local government). The guidelines currently address this factor as follows:
(1) Section 5K2.7 (Disruption of Government Function) provides an
upward departure if the defendant's conduct resulted in a significant disruption of a governmental function.
(2) Section 5K2.14 (Public Welfare) provides an upward departure if
national security, public health, or safety was significantly endangered.
Is the factor adequately addressed through these upward departure
provisions? Alternatively, should these upward departure provisions be
incorporated as enhancements in the guidelines to which these offenses are referenced?
(G) Whether the Offense Involved a Computer Used by the United States
Government, a State, or a Local Government in Furtherance of National
Defense, National Security, or the Administration of Justice
Issue for Comment:
1. The Commission requests comment regarding the factor described
in section 209(b)(7) of the Act (whether the offense involved a
computer used by the United States Government, a State, or a local
government in furtherance of national defense, national security, or
the administration of justice). The guidelines currently address this factor as follows:
(1) Section 2B1.1 provides a 2level enhancement at subsection
(b)(15)(A)(i) if an offense under 18 U.S.C. 1030 involved a computer
system used by or for a government entity in furtherance of the
administration of justice, national defense, or national security.
(2) Section 2B2.3(b)(1) provides a 2level enhancement if a
trespass occurred on a computer system used by or for a government
entity in furtherance of the administration of justice, national defense, or national security.
(3) Section 2B3.2(b)(3)(B) provides a 3level enhancement if the
offense involved preparation to carry out a threat of damage to a
computer system used by or for a government entity in furtherance of
the administration of justice, national defense, or national security.
(4) Section 2B1.1, Application Note 19, provides an upward
departure in a case in which subsection (b)(15)(A)(iii) applies and the
disruption to the critical infrastructure is so substantial as to have
a debilitating impact on national security, national economic security, or national public health or safety.
(5) Section 5K2.7 (Disruption of Government Function) provides an
upward departure if the defendant's conduct resulted in a significant disruption of a governmental function.
(6) Section 5K2.14 (Public Welfare) provides an upward departure if
national security, public health, or safety was significantly endangered.
Is the factor adequately addressed through these provisions? Should
the Commission increase the amount, or the scope, of these
enhancements? Should the Commission amend other guidelines to which
these offenses are referenced to address this factor, such as by adding
comparable enhancements? Should these upward departure provisions be
incorporated as enhancements in the guidelines to which these offenses are referenced?
(H) Whether the Offense Was Intended to, or Had the Effect of,
Significantly Interfering With or Disrupting a Critical Infrastructure
Issue for Comment:
1. The Commission requests comment regarding the factor described
in section 209(b)(8) of the Act (whether the offense was intended to,
or had the effect of, significantly interfering with or disrupting a
critical infrastructure). The guidelines currently address this factor as follows:
(1) Section 2B1.1 provides a 2level enhancement at subsection
(b)(15)(A)(i) if an offense under 18 U.S.C. 1030 involved a computer
system used to maintain or operate a critical infrastructure, and a 6
level enhancement (and a minimum offense level of 24) at subsection
(b)(15)(A)(iii) if an offense under section 1030 caused a substantial disruption of a critical infrastructure.
(2) Section 2B2.3(b)(1) provides a 2level enhancement if a
trespass occurred on a computer system used to maintain or operate a critical infrastructure.
(3) Section 2B3.2(b)(3)(B) provides a 3level enhancement if the
offense involved preparation to carry out a threat of damage to such a computer system.
(4) Section 2B1.1, Application Note 19, provides an upward
departure in a case in which subsection (b)(15)(A)(iii) applies and the
disruption to the critical infrastructure is so substantial as to have
a debilitating impact on national security, national economic security, or national public health or safety.
(5) Section 5K2.14 (Public Welfare) provides an upward departure if
national security, public health, or safety was significantly endangered.
Is the factor adequately addressed through these provisions? Should
the Commission increase the amount, or the scope, of these enhancements
(or of the minimum offense level)? Should the Commission amend other
guidelines to which these offenses are referenced to address this
factor, such as by adding comparable enhancements (or minimum offense
levels)? Should these upward departure provisions be incorporated as
enhancements in the guidelines to which these offenses are referenced?
(I) Whether the Offense Was Intended to, or Had the Effect of, Creating
a Threat to Public Health or Safety, Causing Injury to any Person, or Causing Death
Issue for Comment:
1. The Commission requests comment regarding the factor described
in section 209(b)(9) of the Act (whether the offense was intended to,
or had the effect of, creating a threat to public health or safety,
causing injury to any person, or causing death). The guidelines currently address this factor as follows:
(1) Section 2B1.1(b)(13) provides a 2level enhancement, and a
minimum offense level of 14, if the offense involved the conscious or reckless risk of death or serious bodily injury.
(2) Section 2B3.2(b)(3)(B) provides a 3level enhancement if the
offense involved preparation to carry out a threat of serious bodily
injury, and Sec. 2B3.2(b)(4) provides an enhancement if the victim
sustained bodily injury, with the amount of the enhancement [[Page 4809]]
ranging from 2 to 6 levels according to the seriousness of the injury.
(3) Section 2B5.3(b)(5) provides a 2level enhancement, and a
minimum offense level of 13, if the offense involved the conscious or reckless risk of serious bodily injury.
(4) Section 2B1.1, Application Note 19, provides an upward
departure if the offense caused or risked substantial nonmonetary
harm, or in a case in which subsection (b)(15)(A)(iii) applies and the
disruption to the critical infrastructure is so substantial as to have
a debilitating impact on national security, national economic security, or national public health or safety.
(5) Section 5K2.14 (Public Welfare) provides an upward departure if
national security, public health, or safety was significantly endangered.
Is the factor adequately addressed through these provisions? If
not, should the Commission increase the amount, or the scope, of these
enhancements (or minimum offense levels)? Should the Commission amend
other guidelines to address this factor, such as by adding comparable
enhancements (or minimum offense levels)? Should these upward departure
provisions be incorporated as enhancements in the guidelines to which these offenses are referenced?
(J) Whether the Defendant Purposefully Involved a Juvenile in the Commission of the Offense
Issue for Comment:
1. The Commission requests comment regarding the factor described in section 209(b)(10) of the Act (whether the defendant purposefully involved a juvenile in the commission of the offense). The guidelines currently address this factor in Sec. 3B1.4 (Using a Minor to Commit a Crime), which provides a 2level adjustment if the defendant used or attempted to use a minor to commit the offense or assist in avoiding detection of, or apprehension for, the offense.
Is the factor adequately addressed by this adjustment? Should the
Commission increase the amount, or the scope, of this adjustment?
Should the Commission amend other guidelines to address this factor,
such as by adding enhancements comparable to this adjustment?
(K) Whether the Defendant's Intent To Cause Damage or Intent To Obtain
Personal Information Should Be Disaggregated and Considered Separately From the Other Factors Set Forth in Sec. 2B1.1(b)(15)
Issue for Comment:
1. The Commission requests comment regarding the factor described in section 209(b)(11) of the Act (whether the defendant's intent to cause damage or intent to obtain personal information should be disaggregated and considered separately from the other factors set forth in Sec. 2B1.1(b)(15)).
For example, subsection (b)(15) currently applies only to offenses
under 18 U.S.C. 1030. Should the intent to cause damage or intent to
obtain personal information be disaggregated only within the context of
18 U.S.C. 1030 cases? Should the defendant's intent to cause damage or
intent to obtain personal information be a factor that applies to other offenses as well?
(L) Whether the Term ``Victim'' as Used in Sec. 2B1.1 Should Include
Individuals Whose Privacy Was Violated as a Result of the Offense in
Addition to Individuals Who Suffered Monetary Harm as a Result of the Offense
Issue for Comment:
1. The Commission requests comment regarding the factor described in section 209(b)(12) of the Act (whether the term ``victim'' as used in Sec. 2B1.1 should include individuals whose privacy was violated as a result of the offense in addition to individuals who suffered monetary harm as a result of the offense). In many cases, nonmonetary harm (such as a violation of privacy rights) may be difficult or impossible to quantify. See, e.g., Sec. 2B1.1, comment. (backg'd.). For that reason, nonmonetary harm is typically accounted for by the guidelines through a minimum offense level or an upward departure.
The guidelines currently address this factor as follows:
(1) Section 2B1.1, Application Note 19, provides an upward
departure if the offense resulted in a substantial invasion of a
privacy interest. It also provides an upward departure if, in a case
involving access devices or unlawfully produced or unlawfully obtained
means of identification, (i) the offense caused substantial harm to the
victim's reputation or credit record, or the victim suffered a
substantial inconvenience related to repairing the victim's reputation
or a damaged credit record; (ii) an individual whose means of
identification the defendant used to obtain unlawful means of
identification is erroneously arrested or denied a job because an
arrest record has been made in that individual's name; or (iii) the
defendant produced or obtained numerous means of identification with
respect to one individual and essentially assumed that individual's identity.
(2) Section 2H3.1, Application Note 5, provides an upward departure
if the offense involved private information, or resulted in a substantial invasion of privacy interest.
Is the factor adequately addressed through these upward departure provisions? Alternatively, should these upward departure provisions be incorporated as enhancements in the guidelines to which these offenses are referenced?
The definition of ``victim'' in Sec. 2B1.1, Application Note 1, currently applies only to a person who sustained any part of the ``actual loss'' or to an individual who sustained bodily injury. Should the Commission modify that definition to also apply to an individual whose privacy was violated? If so, what standard should be used to determine whether an individual's privacy was violated? Should the guidelines seek to quantify the loss of such an individual, for purposes of the loss table in subsection (b)(1)? If so, what standard would be used to quantify the loss? For example, in a case in which a computerrelated invasion of privacy occurs, should the guidelines include a special rule for including and quantifying (or providing a stipulated amount for) the loss, such as the special rule in Application Note 3(F)(i) relating to credit cards? If the Commission were to revise the applicability of Sec. 2B1.1 to individuals whose privacy was violated, should the Commission do so for all offenses under Sec. 2B1.1, or only for certain categories of cases, such as cases involving identity theft, cases involving computers, or cases involving violations of certain specified statutes?
Should the definition of ``reasonably foreseeable pecuniary harm''
in Sec. 2B1.1 be amended to expressly include such harm as the
reasonably foreseeable costs to the victim of correcting business,
financial, and government records that erroneously indicate the
victim's responsibility for particular transactions or applications;
the reasonably foreseeable costs of repairing any computer data,
program, system, or information that was altered or impaired in
connection with the offense; and the value of the time reasonably spent
by the victim in an attempt to remediate the intended or actual harm
incurred by the victim from the offense? Should the Commission make
such a change only for identity theft cases, such as by amending Sec.
2B1.1, Application Note 3(A)(v), to provide a special rule for identity
theft cases? Alternatively, should the Commission make such a change
for all cases under Sec. 2B1.1, such as by amending Application Note 3(A)(iv), or for some other category of cases?
[[Page 4810]]
(M) Whether the Defendant Disclosed Personal Information Obtained During the Commission of the Offense
Issue for Comment:
1. The Commission requests comment regarding the factor described
in section 209(b)(13) of the Act (whether the defendant disclosed
personal information obtained during the commission of the offense). The guidelines currently address this factor as follows:
(1) Section 2B1.1, Application Note 19, provides an upward
departure if the offense resulted in a substantial invasion of a privacy interest.
(2) Section 2H3.1, Application Note 5, provides an upward departure
if the offense involved private information or resulted in a substantial invasion of a privacy interest.
(3) Section 2B1.1(b)(15)(A) provides a 2level enhancement if an
offense under 18 U.S.C.1030 involved an intent to obtain personal information.
(4) Section 2H3.1(b)(2)(B) provides a 10level enhancement if an
offense under 18 U.S.C.119 (protection of individuals performing
certain official duties) involved the use of a computer to make
restricted personal information about a covered person publicly available.
Is the factor adequately addressed through these provisions? Should the Commission increase the amount, or the scope, of these enhancements? Should the Commission amend other guidelines to which these offenses are referenced to address this factor, such as by adding comparable enhancements? Should these upward departure provisions be incorporated as enhancements in the guidelines to which these offenses are referenced?
If the Commission were to amend the guidelines to more adequately
address this factor, what should constitute a ``disclosure'', and what should constitute ``personal information''?
(N) Other Issues Relating to the Directive Not Otherwise Addressed Above
Issues for Comment:
1. The Commission requests comment regarding section 209(a) of the Act, which directs the Commission to review its guidelines and policy statements applicable to persons convicted of offenses under 18 U.S.C. 1028 (fraud and related activity in connection with identification documents, authentication features, and information), 1028A (aggravated identity theft), 1030 (fraud and related activity in connection with computers), 2511 (interception and disclosure of wire, oral, or electronic communications prohibited), and 2701 (unlawful access to stored communications), and any other relevant provisions of law, in order to reflect the intent of Congress that such penalties be increased in comparison to those currently provided by such guidelines and policy statements. Section 209(b) of the Act directed the Commission, in determining the appropriate sentence for those offenses, to ``consider the extent to which the current guidelines and policy statements may or may not adequately account for the following factors in order to create an effective deterrent to computer crime and the theft or misuse of personally identifiable data'', and provided a list of factors. Other than the specific factors set forth in section 209(b), which are addressed more specifically in the issues for comment set forth above, are there aggravating or mitigating circumstances existing in cases involving those offenses that might justify additional amendments to the guidelines?
2. Should the Commission create a new guideline specifically for identity theft cases? If so, what should the new guideline provide? (O) Technical Amendments
Synopsis of Proposed Amendment: The proposed amendment makes two technical changes. First, it corrects several places in the Guidelines Manual that erroneously refer to subsection ``(b)(15)(iii)'' of Sec. 2B1.1; the reference should be to subsection (b)(15)(A)(iii).
Second, it clarifies Application Note 2(B) of Sec. 3B1.3 (Abuse of Position of Trust or Use of Special Skill). There is a concern that Application Note 2(B) is internally inconsistent in a case in which the defendant, as discussed in the example in Application Note 2(B)(i), is an employee of a state motor vehicle department who knowingly issues without proper authority a driver's license based on false, incomplete, or misleading information. Arguably, to ``obtain'' or ``use'' a means of identification (the terms used in the first sentence of Application Note 2(B)) does not necessarily include to ``issue'' a means of identification (the term used in the example in Application Note 2(B)(i)). The proposed amendment clarifies the first sentence of Application Note 2(B) so that it expressly covers not only obtaining or using, but also issuing or transferring, a means of identification.
Proposed Amendment:
The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is amended in Note 13(B) by inserting ``(A)'' after ``(15)'' each place it appears.
The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is amended in Note 19(B) by inserting ``(A)'' after (15)''.
The Commentary to Sec. 3B1.3 captioned ``Application Notes'' is amended in Note 2(B) by inserting ``, transfer, or issue'' after ``obtain''.
2. Online Pharmacy
Synopsis of Proposed Amendment: This proposed amendment addresses changes made by the Ryan Haight Online Pharmacy Consumer Protection Act of 2008, Public Law 110465 (the ``Act''). The Act amends the Controlled Substances Act (21 U.S.C. 801 et seq.) to create two new offenses involving controlled substances. The first is 21 U.S.C. 841(h) (Offenses Involving Dispensing of Controlled Substances by Means of the Internet), which prohibits the delivery, distribution, or dispensing of controlled substances over the Internet without a valid prescription. The applicable statutory maximum term of imprisonment is determined based upon the controlled substance being distributed. The second new offense is 21 U.S.C. 843(c)(2)(A) (Prohibiting the Use of the Internet to Advertise for Sale a Controlled Substance), which prohibits the use of the Internet to advertise for sale a controlled substance. This offense has a statutory maximum term of imprisonment of four years.
In addition to the new offenses, the Act increased the statutory maximum terms of imprisonment for all Schedule III controlled substance offenses (from 5 years to 10 years), for all Schedule IV controlled substance offenses (from 3 years to 5 years), and for Schedule V controlled substance offenses if the offense is committed after a prior drug conviction (from 2 years to 5 years). The Act added a sentencing enhancement for Schedule III controlled substance offenses where ``death or serious bodily injury results from the use of such substance.'' The Act also includes a directive to the Commission that states:
The United States Sentencing Commission, in determining whether to amend, or establish new, guidelines or policy statements, to conform the Federal sentencing guidelines and policy statements to this Act and the amendments made by this Act, should not construe any change in the maximum penalty for a violation involving a controlled substance in a particular schedule as being the sole reason to amend, or establish a new, guideline or policy statement.
First, the proposed amendment provides three options for
incorporating the new sentencing enhancement for cases involving
Schedule III controlled substances where ``death or serious [[Page 4811]]
bodily injury results from the use of such substance.'' The enhancement
carries a statutory maximum term of imprisonment of 15 years. Option 1
proposes a new alternative base offense level at Sec. 2D1.1 (Unlawful
Manufacturing, Importing, Exporting, or Trafficking (Including
Possession with Intent to Commit These Offenses); Attempt or
Conspiracy) of [12][34]. Option 2 proposes a new specific offense
characteristic at Sec. 2D1.1 that provides an enhancement of [4][11]
levels; Option 2 also includes, as a suboption, a minimum offense
level of [12][34]. Option 3 proposes a new invited upward departure provision for Sec. 2D1.1.
Second, the proposed amendment revises the title of Sec. 2D3.1 (Regulatory Offenses Involving Registration Numbers; Unlawful Advertising Relating to Schedule I Substances; Attempt or Conspiracy) to reflect the new offense at 21 U.S.C.843(c)(2)(A) (Prohibiting the Use of the Internet to Advertise for Sale a Controlled Substance). The new offense is already referenced in Appendix A (Statutory Index) to Sec. 2D3.1.
Third, the proposed amendment amends Appendix A (Statutory Index)
to refer the new offense at 21 U.S.C. 841(h) (Offenses Involving
Dispensing of Controlled Substances by Means of the Internet) to Sec. 2D1.1.
Several issues for comment are also included.
Proposed Amendment:
[Option 1:
Section 2D1.1(a) is amended by redesignating subdivision (3) as
subdivision (4); and by inserting after subdivision (2) the following new subdivision:
``(3)[12][34], if the defendant is convicted under 21 U.S.C.
841(b)(1)(E) or 21 U.S.C. 960(b)(5), and the offense of conviction
establishes that death or serious bodily injury resulted from the use of the substance; or''.]
[Option 2:
Section 2D1.1(b) is amended by redesignating subdivision (11) as
subdivision (12); and by inserting after subdivision (10) the following new subdivision:
``(11) If the defendant is convicted under 21 U.S.C. 841(b)(1)(E)
or 21 U.S.C. 960(b)(5), and the offense of conviction establishes that
death or serious bodily injury resulted from the use of the substance,
increase by [4][11] levels. [If the resulting offense level is less than level [12][34], increase to level [12][34].]''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is amended in Note 21 by striking ``(11)'' and inserting ``(12)'' each place it appears.]
[Option 3:
The Commentary to Sec. 2D1.1 captioned ``Application Notes is amended by adding at the end the following:
``27. Upward Departure Provision.If the defendant is convicted
under 21 U.S.C.841(b)(1)(E) or 21 U.S.C.960(b)(5), and the offense of
conviction establishes that death or serious bodily injury resulted from the use of the substance, an upward departure may be
warranted.''.]
Section 2D3.1 is amended in the heading by striking ``Schedule I'' and inserting ``Scheduled''.
Appendix A (Statutory Index) is amended by inserting after the line referenced to 21 U.S.C. 841(g) the following:
``21 U.S.C. 841(h) 2D1.1''.
Issues for Comment:
1. The Commission requests comment regarding whether offenses involving Schedule III substances are adequately addressed by the guidelines. The Ryan Haight Online Pharmacy Consumer Protection Act of 2008, Public Law 110465 (the ``Act''), increased the statutory maximum term of imprisonment for those offenses from 5 years to 10 years. Should the Commission revise the guidelines to more adequately address these offenses and, if so, how? If the Commission should revise the guidelines as they relate to Schedule III substances, what justifies doing so?
For example, under the Drug Quantity Table in Sec. 2D1.1, the maximum base offense level for an offense involving Schedule III substances (except Ketamine) is 20, which applies to 40,000 or more units of the substance concerned. Should the maximum base offense level be increased (or eliminated entirely) so that in a case in which the number of units involved is more than 40,000, a higher base offense level applies? If so, what higher base offense levels are appropriate, and what number of units should correspond to those higher base offense levels?
Under the Drug Equivalency Tables in Sec. 2D1.1, 1 unit of a Schedule III substance is equivalent to 1 gm of marihuana. Should a different equivalency apply? If so, what should that different equivalency be?
2. The Commission requests comment regarding whether offenses involving Schedule IV substances are adequately addressed by the guidelines. The Act increased the statutory maximum term of imprisonment for those offenses from 3 years to 5 years. Should the Commission revise the guidelines to more adequately address these offenses and, if so, how? If the Commission should revise the guidelines as they relate to Schedule IV substances, what justifies doing so?
For example, under the Drug Quantity Table in Sec. 2D1.1, the maximum base offense level for an offense involving Schedule IV substances (except Flunitrazepam) is 12, which applies to 40,000 or more units of the substance concerned. Should the maximum base offense level be increased (or eliminated entirely) so that in a case in which the number of units involved is more than 40,000, a higher base offense level applies? If so, what higher base offense levels are appropriate, and what number of units should correspond to those higher base offense levels?
Under the Drug Equivalency Tables in Sec. 2D1.1, 1 unit of a Schedule IV substance (except Flunitrazepam) is equivalent to 0.0625 gm of marihuana. Should a different equivalency apply? If so, what should that different equivalency be? For example, should the Commission amend the Drug Equivalency Tables to provide that 1 unit of a Schedule IV substance (except Flunitrazepam) is equivalent to 0.125 gm of marihuana?
3. The Commission requests comment regarding whether offenses involving Schedule V substances are adequately addressed by the guidelines. For those offenses, the Act did not increase the statutory maximum term of imprisonment for a first offense (which is 1 year), but did increase the statutory maximum term of imprisonment if the offense is committed after a prior drug conviction (from 2 years to 5 years). Should the Commission revise the guidelines to more adequately address these offenses and, if so, how? If the Commission should revise the guidelines as they relate to Schedule V substances, what justifies doing so?
For example, under the Drug Quantity Table in Sec. 2D1.1, the maximum base offense level for an offense involving Schedule V substances is 8, which applies to 40,000 or more units of the substance concerned. Should the maximum base offense level be increased (or eliminated entirely) so that in a case in which the number of units involved is more than 40,000, a higher base offense level applies? If so, what higher base offense levels are appropriate, and what number of units should correspond to those higher base offense levels?
Under the Drug Equivalency Tables in Sec. 2D1.1, 1 unit of a Schedule V substance is equivalent to 0.00625 gm of marihuana. Should a different equivalency apply? If so, what should that different equivalency be?
[[Page 4812]]
4. The Commission requests comment regarding whether offenses involving hydrocodone substances are adequately addressed by the guidelines. Currently, the guidelines do not distinguish between hydrocodone substances and other Schedule III substances (except Ketamine). The Act increased the statutory maximum term of imprisonment for all Schedule III offenses, including hydrocodone offenses, from 5 years to 10 years. Should hydrocodone be treated differently than other Schedule III substances and, if so, how? If the Commission should revise the guidelines as they relate to hydrocodone, what justifies doing so?
For example, under the Drug Quantity Table in Sec. 2D1.1, the maximum base offense level for an offense involving Schedule III substances (except Ketamine) is 20, which corresponds to 40,000 or more units of the substance concerned. Should the maximum base offense level be increased (or eliminated entirely) so that in a case in which the number of units involved is more than 40,000, a higher base offense level applies? If so, what higher base offense levels are appropriate, and what number of units should correspond to those higher base offense levels?
Under the Drug Equivalency Tables in Sec. 2D1.1, 1 unit of a Schedule III substance, including hydrocodone, is equivalent to 1 gm of marihuana. Should a different equivalency apply to hydrocodone? If so, what should that different equivalency be? Should the guidelines take into account (as is done for oxycodone) the weight of the hydrocodone itself (i.e. , the ``hydrocodone actual''), rather than the number of units of hydrocodone? If so, what base offense levels should apply, and to what weights of hydrocodone actual should those base offense levels correspond? For example, should the Commission amend the Drug Equivalency Tables to provide that 1 gm of hydrocodone actual is equivalent to 1,675 gm of marihuana?
3. Submersible Vessels
Synopsis of Proposed Amendment: This proposed amendment implements the Drug Trafficking Vessel Interdiction Act of 2008, Public Law 110 407 (the ``Act''). The Act creates a new offense at 18 U.S.C. 2285 (Operation of Submersible Vessel or SemiSubmersible Vessel Without Nationality), which provides: ``Whoever knowingly operates, or attempts or conspires to operate, by any means, or embarks in any submersible vessel or semisubmersible vessel that is without nationality and that is navigating or has navigated into, through, or from waters beyond the outer limit of the territorial sea of a single country or a lateral limit of that country's territorial sea with an adjacent country, with the intent to evade detection, shall be fined under this title, imprisoned not more than 15 years, or both.''
Section 103 of the Act also directs the Commission to promulgate or amend the guidelines to provide for increased penalties for persons convicted of offenses under 18 U.S.C. 2285. In carrying out this directive, the Commis
FOR FURTHER INFORMATION CONTACT
Michael Courlander, Public Affairs Officer, Telephone: (202) 5024590.