26 January 2009

To be published in the Federal Register on 27 January 2009.

http://www.federalregister.gov/OFRUpload/OFRData/2009-01642_PI.pdf

BAC 2210-40 

UNITED STATES SENTENCING COMMISSION 

Sentencing Guidelines for United States Courts 

AGENCY: United States Sentencing Commission 

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. 

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 

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proposed amendment in response to the Identity Theft Restitution and Enforcement Act of 2008, 
title II of Pub. L. 110-326, including proposed changes to §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), §2H3.1 (Interception of Communications; 
Eavesdropping; Disclosure of Certain Private or Protected Information), and §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, Pub. L. 110-465, including proposed changes to §2D1.1 (Unlawful Manufacturing, 
Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These 
Offenses); Attempt or Conspiracy) and §2D3.1 (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, Pub. L. 110-407, including a proposed change to §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 semi-submersible 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, Pub. L. 110-177, 
regarding the guidelines’ treatment of homicide, assault, and threat offenses; (5) an issue for 

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comment in response to the William Wilberforce Trafficking Victims Protection Reauthorization 
Act of 2008, Pub. L. 110-457, 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 
§2A3.2 (Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or 
Attempt to Commit Such Acts) and §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 §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 §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. 

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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 [60 days after publication in the Federal Register]. 

(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 website at www.ussc.gov. 
ADDRESS: Public comment should be sent to: United States Sentencing Commission, One 
Columbus Circle, N.E., Suite 2-500, Washington, D.C. 20002-8002, Attention: Public Affairs. 

FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs Officer, 
Telephone: (202) 502-4590. 

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is an 
independent agency in the judicial branch of the United States Government. The Commission 
promulgates sentencing guidelines and policy statements for federal 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 

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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 §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 website at www.ussc.gov. 

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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 Pub. L. 110-326, 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 

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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., government-issued 
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 §§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 
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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 §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 §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 
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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 §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 §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 

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Index to §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 §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 §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 
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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 §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 §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 §§2B5.3 
(Criminal Infringement of Copyright or Trademark) and 2H3.1 (Interception of 
Communications; Eavesdropping; Disclosure of Certain Private or Protected Information). 

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(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 §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 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. 
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(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 
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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 §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 
14 



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 §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 

15 



pertaining to the execution or concealment of an offense” within the meaning of the sophisticated 
means enhancement in §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 §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 2-level enhancement, and a minimum offense level 
16 



of 12, if the offense involved sophisticated means. 

(2) Section 2B1.1(b)(4) contains a 2-level 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 §3B1.3 (Abuse of Position of Trust 
or Use of Special Skill) should apply to a person who has self-trained 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 
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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 3-level 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 2-level 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? 

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(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 §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 

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[Option 1: 

The Commentary to §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 §2B1.1 captioned "Application Notes" is amended in Note 3(C)(i) by 
inserting "copied," after "taken,". 

The Commentary to §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 

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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 §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? 

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2. Should the definition of "loss" in §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 §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 §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 §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 §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 §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 §2B1.1(b)(2) so long 

22 



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 short-lived 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 §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? 
(D) Whether the Defendant Acted with Intent to Cause Either Physical or 
Property Harm in Committing the Offense 
Issue for Comment 

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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 2-level 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 non-monetary 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 non-monetary 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. 
24 



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 a 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 §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 §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 §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 

25 



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 
§2H3.1, in the same manner as the term "personal information" is defined for purposes of 
§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. § 2511 and the offense 
involved personal information or means of identification of— 

(A) [10]-[50] or more individuals, increase by [2] levels; 
26 



(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 §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 §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 e-mail; (v) financial records; (vi) 
photographs of a sensitive or private nature; or (vii) similar information.". 

[Option 2: 

The Commentary to §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 

27 



before "or tax".] 

The Commentary to §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., §2B1.1, comment. (backg’d.). For that reason, non-monetary 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 
28 



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. 
(3) Section 2B1.1(b)(15)(A) provides a 2-level enhancement if an offense under 18 
U.S.C. § 1030 involved an intent to obtain personal information, and §2H3.1(b)(2)(B) provides a 
10-level 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 

29 



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 
30 



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 2-level 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 2-level 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 3-level 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 
31 



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 2-level 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 
32 



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 2-level 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 3-level 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 

33 



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 2-level 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 3-level enhancement if the offense involved 
preparation to carry out a threat of serious bodily injury, and §2B3.2(b)(4) provides an 
enhancement if the victim sustained bodily injury, with the amount of the enhancement ranging 
from 2 to 6 levels according to the seriousness of the injury. 
(3) Section 2B5.3(b)(5) provides a 2-level enhancement, and a minimum offense level 
34 



of 13, if the offense involved the conscious or reckless risk of serous bodily injury. 

(4) Section 2B1.1, Application Note 19, provides an upward departure if the offense 
caused or risked substantial non-monetary 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 
35 



the Act (whether the defendant purposefully involved a juvenile in the commission of the 
offense). The guidelines currently address this factor in §3B1.4 (Using a Minor to Commit a 
Crime), which provides a 2-level 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 §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 
§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 

36 



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 §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 §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, non-monetary harm (such as a violation of privacy rights) 
may be difficult or impossible to quantify. See, e.g., §2B1.1, comment. (backg’d.). For that 
reason, non-monetary 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 
37 



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 §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 computer-related invasion of privacy occurs, should the guidelines include a 

38 



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 §2B1.1 to individuals whose privacy was violated, should the 
Commission do so for all offenses under §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 §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 §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 §2B1.1, such as by amending Application Note 3(A)(iv), 
or for some other category of cases? 

(M) Whether the Defendant Disclosed Personal Information Obtained During the 
Commission of the Offense 
39 



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 2-level 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 10-level 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 

40 



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 
41 



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 §2B1.1; the reference should be to subsection (b)(15)(A)(iii). 

Second, it clarifies Application Note 2(B) of §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 

42 



expressly covers not only obtaining or using, but also issuing or transferring, a means of 
identification. 

Proposed Amendment 

The Commentary to §2B1.1 captioned "Application Notes" is amended in Note 13(B) by inserting 
"(A)" after "(15)" each place it appears. 

The Commentary to §2B1.1 captioned "Application Notes" is amended in Note 19(B) by inserting 
"(A)" after (15)". 

The Commentary to §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 110-465 (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. 

43 



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 

44 



serious 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 §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 §2D1.1 that provides an enhancement of [4]


[11] levels; Option 2 also includes, as a sub-option, a minimum offense level of [12]-[34]. Option 
3 proposes a new invited upward departure provision for §2D1.1. 
Second, the proposed amendment revises the title of §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 §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 §2D1.1. 

Several issues for comment are also included. 

Proposed Amendment 

45 



[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 §2D1.1 captioned "Application Notes" is amended in Note 21 by striking 
"(11)" and inserting "(12)" each place it appears.] 

46 



[Option 3: 

The Commentary to §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 110-465 (the "Act"), increased the statutory 
47 



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 §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 §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? 
48 



For example, under the Drug Quantity Table in §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 §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 §2D1.1, the maximum base offense level for an 

49 



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 §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? 

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 §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 

50 

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 §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, Pub. L. 110-407 (the “Act”). The Act creates a new 
offense at 18 U.S.C. § 2285 (Operation of Submersible Vessel or Semi-Submersible Vessel 
Without Nationality), which provides: “Whoever knowingly operates, or attempts or conspires to 
operate, by any means, or embarks in any submersible vessel or semi-submersible 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, 

51 



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 Commission shall— 

(1) ensure that the sentencing guidelines and policy statements reflect the serious 
nature of the offense described in section 2285 of title 18, United States Code, and the need for 
deterrence to prevent such offenses; 
(2) account for any aggravating or mitigating circumstances that might justify 
exceptions, including- 
(A) the use of a submersible vessel or semi-submersible vessel described in 
section 2285 of title 18, United States Code, to facilitate other felonies; 
(B) the repeated use of a submersible vessel or semi-submersible vessel 
described in section 2285 of title 18, United States Code, to facilitate other felonies, including 
whether such use is part of an ongoing criminal organization or enterprise; 
(C) whether the use of such a vessel involves a pattern of continued and 
flagrant violations of section 2285 of title 18, United States Code; 
52 



(D) whether the persons operating or embarking in a submersible vessel or 
semi-submersible vessel willfully caused, attempted to cause, or permitted the destruction or 
damage of such vessel or failed to heave to when directed by law enforcement officers; and 
(E) circumstances for which the sentencing guidelines (and policy 
statements) provide sentencing enhancements; 
(3) ensure reasonable consistency with other relevant directives, other sentencing 
guidelines and policy statements, and statutory provisions; 
(4) make any necessary and conforming changes to the sentencing guidelines and 
policy statements; and 
(5) ensure that the sentencing guidelines and policy statements adequately meet the 
purposes of sentencing set forth in section 3553(a)(2) of title 18, United States Code. 
The proposed amendment amends §2D1.1 (Unlawful Manufacturing, Importing, 
Exporting, or Trafficking (Including Possession with Intent to Commit these Offenses); Attempt 
or Conspiracy) by expanding the scope of the specific offense characteristic at subsection (b)(2) to 
apply if the defendant used a submersible vessel or semi-submersible vessel as described in 18 

U.S.C. § 2285. 
53 



The proposed amendment also provides a new guideline at §2X7.2 (Submersible and 
Semi-Submersible Vessels) for the new offense at 18 U.S.C. § 2285, with a base offense level of 
[12]-[34]. The proposed amendment also provides upward departure provisions to account for 
certain aggravating factors listed in the directive. 

Finally, the proposed amendment provides a reference in Appendix A (Statutory Index) to 
index the new offense to the new guideline. 

Three issues for comment are also included. 

Proposed Amendment 

Section 2D1.1(b)(2) is amended by striking "or" after "substance," and inserting "a submersible 
vessel or semi-submersible vessel as described in 18 U.S.C. § 2285 was used, or (C)" after "(B)". 

Chapter Two, Part X, Subpart 7 is amended in the heading by adding at the end "AND 
SUBMERSIBLE AND SEMI-SUBMERSIBLE VESSELS". 

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

54 



"§2X7.2. Submersible and Semi-Submersible Vessels 

(a) Base Offense Level: [12]-[34] 
Commentary 

Statutory Provision: 18 U.S.C. § 2285. 

Application Note: 

1. Upward Departure Provisions.—An upward departure may be warranted in any of the 
following cases: 
(A) The offense involved a failure to heave to when directed by a law enforcement 
officer. 
(B) The offense involved an attempt to sink the vessel or the sinking of the vessel. 
(C) The defendant engaged in a pattern of activity involving use of a submersible 
vessel or semi-submersible vessel described in 18 U.S.C. § 2285 to facilitate other felonies. 
(D) The offense involved use of the vessel as part of an ongoing criminal organization 
55 



or enterprise. 

Background: This guideline implements the directive to the Commission in section 103 of Public 
Law 110-407.". 

Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. § 
2284 the following: 

"18 U.S.C. § 2285 2X7.2". 

Issues for Comment 

1. The Commission requests comment regarding whether it should reference the new offense 
at 18 U.S.C. § 2285 (Operation of Submersible Vessel or Semi-submersible Vessel Without 
Nationality) to §2X5.1 (Other Felony Offenses), instead of promulgating a new guideline at 
§2X7.2 (Submersible and Semi-Submersible Vessels) for the new offense, as provided for by the 
proposed amendment. Section 2X5.1 instructs the court to “apply the most analogous offense 
guideline” when an “offense is a felony for which no guideline expressly has been promulgated.” 
In a case where “there is not a sufficiently analogous guideline”, §2X5.1 provides that: 
the provisions of 18 U.S.C. § 3553 shall control, except that any guidelines and 
policy statements that can be applied meaningfully in the absence of a Chapter Two offense 

56 



guideline shall remain applicable. 

If the Commission references section 2285 to §2X5.1, is there further action the Commission 
should take to clarify how the guidelines apply in such cases? If so, what action? 

2. Section 103 of the Drug Trafficking Vessel Interdiction Act of 2008, Pub. L. 110-407, 
directs the Commission to consider aggravating circumstances such as the use of such vessels as 
part of an ongoing criminal organization or enterprise. Accordingly, the Commission requests 
comment regarding how the proposed amendment’s new guideline at §2X7.2 (Submersible and 
Semi-Submersible Vessels), or any other guideline to which offenses under 18 U.S.C. § 2285 
(Operation of Submersible Vessel or Semi-submersible Vessel Without Nationality) would be 
referenced, should account for cases in which the vessel is used as part of an ongoing criminal 
organization or enterprise. The Commission was informed at its public briefing in November 
2008 that the construction of such a vessel costs one million dollars or more and takes one year or 
more to complete, and that such a vessel is intended to be used for a single trip before being 
purposely sunk. If so, this may indicate that the use of the submersible or semi-submersible 
vessel typically is part of an ongoing criminal organization or enterprise. Should the Commission 
account for this factor in setting the base offense level? If so, should the Commission provide a 
specific offense characteristic or a downward departure to account for a case in which an ongoing 
criminal organization or enterprise is not involved? Alternatively, should the Commission 
provide a specific offense characteristic or an upward departure to account for this factor? Are 
there any other amendments to the guidelines that should be made to account for cases in which 
57 



the vessel is used as part of an ongoing criminal organization or enterprise? 

3. The Commission requests comment regarding whether, in a case sentenced under the 
proposed guideline, §2X7.2 (Submersible and Semi-Submersible Vessels), and in which §3B1.2 
(Mitigating Role) applies, it should provide an alternative base offense level, downward 
adjustment, or downward departure to reflect the lesser culpability of the defendant? 
4. Court Security 
Issues for Comment 

1. The Court Security Improvement Act of 2007, Public Law 110-177 (the "Act"), creates 
two new federal offenses, increases the statutory maximum penalty for a number of existing 
federal offenses, and contains a directive to the Commission relating to threats made in violation 
of 18 U.S.C. § 115 that occur over the Internet. The Commission responded to the two new 
offenses created by the Act during the amendment cycle ending May 1, 2008 (see Amendment 
718). The Commission requests comment regarding what additional amendments may be 
appropriate in light of the Act. The increases in the statutory maximum penalties provided by the 
Act raise issues concerning a number of guidelines in Chapter Two, Part A, generally, and it may 
be necessary to continue work on any or all of the remaining issues raised by the Act beyond the 
amendment cycle ending May 1, 2009. 
58 



A. Increases in Statutory Maximum Penalties. 
The existing federal offenses with statutory maximum penalties increased by the Act and the 
guidelines to which those offenses are referenced are as follows: 

(1) 18 U.S.C. § 115 (Influencing, impeding, or retaliating against a Federal official by 
threatening or injuring a family member) makes it unlawful to, among other things, assault an 
individual who is a current or former federal official, or a family member of such an individual, 
with intent to impede the individual in, or retaliate against the individual for, the performance of 
the individual’s official duties. Such an assault is punished under 18 U.S.C. § 115(b)(1). The Act 
modified the penalty structure of these offenses. In doing so, the Act eliminated the reference to 
18 U.S.C. § 111 (Assaulting, resisting, or impeding certain officers or employees), and increased 
the statutory maximum terms of imprisonment for assaults involving physical contact or intent to 
commit another felony (from 8 years to 10 years), and for assaults resulting in serious bodily 
injury or assaults involving the use of a dangerous weapon (from 20 years to 30 years). Other 
statutory maximum terms of imprisonment include 20 years (for assaults resulting in bodily 
injury) and 1 year (for simple assaults). 
Offenses involving assaults punished under 18 U.S.C. § 115(b)(1) are referenced 
in Appendix A (Statutory Index) to §§2A2.1 (Assault with Intent to Commit Murder; Attempted 
Murder); 2A2.2 (Aggravated Assault), and 2A2.3 (Minor Assault). 

59 



(2) 18 U.S.C. § 1112 (manslaughter) makes it unlawful to kill a human being without 
malice, either upon a sudden quarrel or heat of passion ("voluntary manslaughter") or in the 
commission of an unlawful act not amounting to a felony or in the commission, in an unlawful 
manner or without due caution and circumspection, of a lawful act which might produce death 
("involuntary manslaughter"). The Act increased the statutory maximum terms of imprisonment 
for voluntary manslaughter (from 10 years to 15 years) and for involuntary manslaughter (from 6 
years to 8 years). 
Offenses under 18 U.S.C. § 1112 are referenced in Appendix A (Statutory Index) 
to §§2A1.3 (Voluntary Manslaughter) and 2A1.4 (Involuntary Manslaughter). 

(3) Subsection (a) of 18 U.S.C. § 1512 (Tampering with a witness, victim, or an 
informant), makes it unlawful to kill or attempt to kill another person with intent to interfere in an 
official proceeding. It also makes it unlawful to use or threaten physical force, or attempt to do 
so, with intent to interfere with an official proceeding. The Act increased the statutory maximum 
terms of imprisonment for the killing of another under circumstances constituting manslaughter 
(by reference to 18 U.S.C. § 1112, from 10 years to 15 years); for attempted murder or attempted 
use of physical force (from 20 years to 30 years); and for threat of use of physical force to prevent 
the attendance or testimony in an official proceeding (from 10 years to 20 years). Offenses under 
section 1512(a) are referenced in Appendix A (Statutory Index) to §§2A1.1 (First Degree 
Murder), 2A1.2 (Second Degree Murder), 2A1.3 (Voluntary Manslaughter), 2A2.1 (Assault with 
Intent to Commit Murder; Attempted Murder), 2A2.2 (Aggravated Assault), 2A2.3 (Minor 
60 



Assault), and 2J1.2 (Obstruction of Justice). 

(4) Section 1512(b) makes it unlawful to intimidate, threaten, or corruptly persuade 
another person, or to engage in misleading conduct toward another person, with intent to interfere 
with an official proceeding. The Act increased the statutory maximum term of imprisonment for 
these offenses from 10 years to 20 years. 
Offenses under section 1512(b) are referenced in Appendix A (Statutory Index) to 
§2J1.2 (Obstruction of Justice). 

(5) Section 1512(d) makes it unlawful to harass another person and thereby hinder, 
delay, prevent, or dissuade an arrest or prosecution, or the participation of a person in an official 
proceeding. The Act increased the statutory maximum term of imprisonment for these offenses 
from 1 year to 3 years. 
Offenses under section 1512(d) are referenced in Appendix A (Statutory Index) to 
§2J1.2 (Obstruction of Justice). 

(6) Subsection (a) of 18 U.S.C. § 1513 (Retaliating against a witness, victim, or an 
informant) makes it unlawful to kill or attempt to kill another person with intent to retaliate 
against a person for attending or testifying at an official proceeding or for providing information 
to a law enforcement officer. The Act increased the statutory maximum terms of imprisonment 
61 



for the killing of another under circumstances constituting manslaughter (by reference to 18 

U.S.C. § 1112, from 10 years to 15 years) and for an attempt (from 20 years to 30 years). Other 
statutory penalties include death, or imprisonment for life, if the offense involved the killing of 
another under circumstances constituting murder. 
Offenses under section 1513(a) are referenced in Appendix A (Statutory Index) to 
§2J1.2 (Obstruction of Justice). 

(7) Section 1513(b) makes it unlawful to cause bodily injury to another person or 
damage the tangible property of another person (or threaten to do so) with intent to retaliate 
against a person for attending or testifying at an official proceeding or for providing information 
to a law enforcement officer. The Act increased the statutory maximum terms of imprisonment 
for such offenses from 10 years to 20 years. 
Offenses under section 1513(b) are referenced in Appendix A (Statutory Index) to 
§2J1.2 (Obstruction of Justice). 

(8) Other offenses under section 1513 include subsection (e) (which makes it unlawful 
to knowingly, with intent to retaliate, take any action harmful to any person for providing to a law 
enforcement officer any truthful information relating to the commission or possible commission 
of any federal offense) and subsection (f) (which makes it unlawful to conspire to commit any 
offense under section 1513). 
62 



These other offenses under section 1513 are also referenced in Appendix A 
(Statutory Index) to §2J1.2 (Obstruction of Justice). 

Are the guidelines adequate as they apply to such offenses? If not, what amendments to the 
guidelines should be made to address the increases in statutory maximum penalties? 

As described in paragraph (7), above, Appendix A (Statutory Index) currently refers all offenses 
under section 1513 to §2J1.2 (Obstruction of Justice) only. An offense under section 1513 can 
involve conduct such as killing, causing bodily injury, or threatening. Should the Commission 
amend Appendix A (Statutory Index) to refer offenses under section 1513 to other guidelines, 
either in addition to or in lieu of referencing them to §2J1.2? If so, to which other guidelines? 
Alternatively, should the Commission provide cross references in §2J1.2 that allow for an offense 
under section 1513 to be sentenced under a guideline other than §2J1.2? 

B. Official Victims. 
The Commission requests comment regarding cases in which an official is the victim of an 
offense described above. The circumstance of an official victim is addressed in the guidelines as 
follows: 

(1) Section 3A1.2 contains an adjustment if the victim was an individual who is a 
63 



current or former government officer or employee (or a member of the immediate family of such 
an individual), and the offense was motivated by such status. If the applicable guideline is from 
Chapter Two, Part A (as is the case with §§2A1.1, 2A1.2, 2A2.1, 2A2.2, 2A2.3), the adjustment is 
6 levels; otherwise (as with §2J1.2), the adjustment is 3 levels. 

(2) Section 3A1.2, Application Note 5, invites an upward departure if the official 
victim is an exceptionally high-level official. 
Do these provisions adequately address the circumstance of an official victim? If not, what 
amendments to the guidelines should be made? Should the Commission increase the amount, or 
the scope, of these provisions? Should the upward departure provision be incorporated as an 
enhancement in one or more of the applicable guidelines (e.g., §§2A1.1, 2A1.2, 2A2.1, 2A2.2, 
2A2.3, 2J1.2)? 

The Commission also requests comment on cases in which a non-official is the victim of an 
offense described above. Are the guidelines adequate as they apply to such offenses? If not, what 
amendments to the guidelines should be made? 

C. Directive to the Commission. 
Section 209 of the Act directs the Commission to review the guidelines as they apply to threats 
made in violation of 18 U.S.C. § 115 (Influencing, impeding, or retaliating against a Federal 

64 



official by threatening or injuring a family member). Section 115 makes it unlawful to assault, 
kidnap, or murder an individual who is a current or former federal official, or a family member of 
such an individual, with intent to impede the individual in, or retaliate against the individual for, 
the performance of the individual’s official duties; section 115 also makes it unlawful to threaten 
such an assault, kidnapping, or murder. Such a threat is punished under 18 U.S.C. § 115(b)(4), 
which provides that a violator is subject to a fine under title 18, United States Code, and 
imprisonment of up to 6 years (if an assault was threatened) or up to 10 years (if a kidnapping or 
murder was threatened). Offenses involving threats made in violation of 18 U.S.C. § 115 are 
referenced in Appendix A of the Guidelines Manual (Statutory Index) to §2A6.1 (Threatening or 
Harassing Communications; Hoaxes; False Liens). 

Section 209 specified that the Commission should review those threats made in violation of 
section 115 "that occur over the Internet," and "determine whether and by how much that 
circumstance should aggravate the punishment pursuant to section 994 of title 28, United States 
Code." Section 209 further directed the Commission to "take into consideration the number of 
such threats made, the intended number of recipients of such threats, and whether the initial 
senders of such threats were acting in an individual capacity or as part of a larger group." 

With regard to threats made in violation of section 115 that occur over the Internet, the guidelines 
do not currently provide for the use of the Internet to be an aggravating circumstance. Should that 
circumstance aggravate the punishment and, if so, by how much? 

65 



Other factors specified in the directive (i.e., (i) the number of threats made in violation of section 
115, (ii) the intended number of recipients of such threats, and (iii) whether the initial senders of 
such threats were acting in an individual capacity or as part of a larger group), are currently 
addressed in the guidelines as follows: 

(1) Section 2A6.1(b)(2)(A) contains a 2-level enhancement if the offense involved 
more than two threats. Section 2A6.1, Application Note 1, provides that, in determining whether 
this enhancement applies, conduct that occurred prior to the offense must be "substantially and 
directly connected to the offense, under the facts of the case taken as a whole". 
(2) Section 2A6.1, Application Note 4, invites an upward departure if the offense 
involved substantially more than two threatening communications to the same victim, or if the 
offense involved multiple victims. 
Are the factors in the directive relating to number of threats made and intended number of 
recipients adequately addressed through these upward departures? If not, what amendments to the 
guidelines should be made? Should these upward departure provisions be incorporated as 
enhancements in §2A6.1? 

In considering whether to amend the guidelines as they apply to offenses involving threats made 
in violation of section 115, should the Commission focus on whether to amend the guidelines 
with regard to offenses that occur over the Internet (i.e., the category of offenses covered by the 

66 



directive), or should the Commission also consider whether to amend the guidelines with regard 
to offenses that do not occur over the Internet? If the latter, what amendments to the guidelines 
should be made? 

5. Trafficking 
Issues for Comment 

1. The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, 
Public Law 110-457 (the "Act"), was signed into law on December 23, 2008. The Act creates two 
new federal offenses, amends a number of federal statutes, and contains a directive to the 
Commission relating to certain alien harboring offenses. The Commission requests comment 
regarding what amendments to the guidelines may be appropriate in light of the Act. Given the 
recency of enactment of the Act, it may be necessary to continue work on any or all of the issues 
raised by the Act beyond the amendment cycle ending May 1, 2009. 
A. Directive to the Commission. 
Section 222(g) of the Act directs the Commission to— 

review and, if appropriate, amend the sentencing guidelines and policy statements 
applicable to persons convicted of alien harboring to ensure conformity with the sentencing 

67 



guidelines applicable to persons convicted of promoting a commercial sex act if- 

(1) the harboring was committed in furtherance of prostitution; and 
(2) the defendant to be sentenced is an organizer, leader, manager, or 
supervisor of the criminal activity. 
Alien harboring is an offense under 8 U.S.C. § 1324(a) (bringing in and harboring certain aliens), 
which makes it unlawful to (among other things) harbor an illegal alien. Offenses under section 
1324(a) are referenced to §2L1.1 (Smuggling, Transporting, or Harboring an Unlawful Alien). In 
some circumstances, a person who harbors an alien could also commit an offense under 8 U.S.C. 
§ 1328 (importation of alien for immoral purpose), which makes it unlawful to (among other 
things) harbor an illegal alien for purposes of prostitution or any other immoral purpose. 
Offenses under section 1328, however, are referenced not to §2L1.1 but to the guidelines 
applicable to promoting a commercial sex act, §2G1.1 (Promoting a Commercial Sex Act or 
Prohibited Sexual Conduct with an Individual Other than a Minor) and §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). It is to those guidelines, §§2G1.1 
and 2G1.3, that sex trafficking offenses, such as 18 U.S.C. § 1591 and the offenses under chapter 
117 of title 18, United States Code (18 U.S.C. § 2421 et seq.) are referenced. 

68 



The Commission requests comment regarding whether (and, if so, how) the guidelines should be 
amended to ensure conformity between the guidelines applicable to persons convicted of alien 
harboring (i.e., §2L1.1) and the guidelines applicable to persons convicted of promoting a 
commercial sex act (i.e., §§2G1.1 and 2G1.3) if the alien harboring offense involves the 
circumstances specified in the directive (i.e., the harboring was committed in furtherance of 
prostitution and the defendant is an organizer, leader, manager, or supervisor of the criminal 
activity). 

In a case in which no aggravating or mitigating factors otherwise apply, a person convicted of 
alien harboring under 8 U.S.C. § 1324(a)(1)(A)(iii) under the circumstances specified in the 
directive receives a base offense level of 12 under §2L1.1(a)(3) and an upward adjustment of two, 
three, or four levels under §3B1.1 (Aggravating Role) for being an organizer, leader, manager, or 
supervisor of the criminal activity, for a resulting offense level of 14 to 16. (Section 2L1.1 does 
not provide an enhancement for committing the harboring in furtherance of prostitution.) In 
comparison, a person convicted of promoting a commercial sex act receives a base offense level 
of 14 under §2G1.1(a)(2) (if the offense did not involve a minor) or a base offense level of 24 
under §2G1.3(a)(4) (if the offense did involve a minor). In cases in which aggravating or 
mitigating circumstances are present, the guideline applicable to alien harboring, §2L1.1, may 
conform with the guidelines applicable to promoting a commercial sex act, §§2G1.1 and 2G1.3, 
to a greater or lesser degree. 

Are amendments needed to §2L1.1, as it applies to a person convicted of alien harboring under 

69 



the circumstances specified in the directive, to ensure conformity with §§2G1.1 and 2G1.3? For 
example, should the Commission provide a cross reference in §2L1.1 to §§2G1.1 and 2G1.3 when 
the offense involves the circumstances specified in the directive? Alternatively, should the 
Commission provide one or more specific offense characteristics in §2L1.1 to account for the 
circumstances specified in the directive, such as a specific offense characteristic for harboring 
committed in furtherance of prostitution? Should the Commission provide a specific offense 
characteristic in §2L1.1 to account for harboring in furtherance of prostitution when the offense 
involves a minor? Should the Commission provide a specific offense characteristic in §2L1.1 that 
incorporates the adjustment in §3B1.1 (Aggravating Role)? If the Commission were to provide 
one or more such specific offense characteristics, what should the offense levels be? Are there 
any other amendments that should be made to the guidelines as they apply to a person convicted 
of alien harboring under the circumstances specified in the directive? 

B. New Offenses. 
The Act created two new offenses. The first new offense, 18 U.S.C. § 1593A (benefitting 
financially from peonage, slavery, and trafficking in persons), makes it unlawful to knowingly 
benefit, financially or by receiving anything of value, from participation in a venture that has 
engaged in any act in violation of section 1581(a), 1592, or 1595(a) of title 18, United States 
Code, knowing or in reckless disregard of the fact that the venture has engaged in such violation. 
A violator is subject to a fine under title 18, United States Code, and imprisonment in the same 
manner as a completed violation of such section. 

70 



The second new offense, 18 U.S.C. § 1351 (fraud in foreign labor contracting), makes it unlawful 
to knowingly and with intent to defraud recruit, solicit or hire a person outside the United States 
for purposes of employment in the United States by means of materially false or fraudulent 
pretenses, representations or promises regarding that employment. A violator is subject to a fine 
under title 18, United States Code, and imprisonment of up to 5 years. 

Should the Commission amend Appendix A (Statutory Index) to refer these new offenses to one 
or more guidelines and, if so, which ones? Should offenses under section 1593A be referred to 
§2H4.1 (Peonage, Involuntary Servitude, and Slave Trade)? Should offenses under section 1351 
be referred to §2B1.1 (Theft, Property Destruction, and Fraud), or to §2H4.1 (Peonage, 
Involuntary Servitude, and Slave Trade)? Are there aggravating or mitigating circumstances 
existing in cases involving those offenses that might justify additional amendments to the 
guidelines? If so, what amendments to the guidelines should be made to address those 
circumstances? 

C. Other Modifications to Chapter 77. 
Subtitle C of title II of the Act amended various provisions in Chapter 77 (Peonage, Slavery, and 
Trafficking in Persons) of title 18, United States Code, in particular the following offenses: 

(A) 18 U.S.C. § 1583 (enticement into slavery), which is referenced in Appendix A 
(Statutory Index) to §2H4.1 (Peonage, Involuntary Servitude, and Slave Trade). 
71 



(B) 18 U.S.C. § 1584 (sale into involuntary servitude), which is referenced in 
Appendix A (Statutory Index) to §2H4.1 (Peonage, Involuntary Servitude, and Slave Trade). 
(C) 18 U.S.C. § 1589 (forced labor), which is referenced in Appendix A (Statutory 
Index) to §2H4.1 (Peonage, Involuntary Servitude, and Slave Trade). 
(D) 18 U.S.C. § 1590 (trafficking with respect to peonage, slavery, involuntary 
servitude, or forced labor), which is referenced in Appendix A (Statutory Index) to §2H4.1 
(Peonage, Involuntary Servitude, and Slave Trade). 
(E) 18 U.S.C. § 1591 (sex trafficking of children or by force, fraud, or coercion), 
which is referenced in Appendix A (Statutory Index) to §§2G1.1 (Promoting a Commercial Sex 
Act or Prohibited Sexual Conduct with an Individual Other than a Minor), 2G2.1 (Sexually 
Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material; Custodian 
Permitting Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage in 
Production), and §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). 
(F) 18 U.S.C. § 1592 (unlawful conduct with respect to documents in furtherance of 
72 



trafficking, peonage, slavery, involuntary servitude, or forced labor), which is referenced in 
Appendix A (Statutory Index) to §2H4.1 (Peonage, Involuntary Servitude, and Slave Trade). 

Are the guidelines adequate as they apply to such offenses? Are there aggravating or mitigating 
circumstances existing in cases involving such offenses that might justify additional amendments 
to the guidelines? If so, what amendments to the guidelines should be made to address those 
circumstances? 

Among other things, the Act amended these offenses by extending to these offenses the 
obstruction provision of 18 U.S.C. § 1581 (peonage; obstructing enforcement), under which a 
person who obstructs, interferes with, or prevents the enforcement of the section is subject to the 
same punishment as a person who commits the substantive offense. Are the guidelines adequate 
as they apply to these offenses in a case involving obstruction? 

The Act also amended 18 U.S.C. §§ 1589 and 1591 to provide that a person who benefits 
financially from participating in a venture involving trafficked labor is subject to the same 
punishment as a person who commits the substantive offense. Are the guidelines adequate as 
they apply to these offenses in a case involving these circumstances? 

The Act also amended 18 U.S.C. § 1594 (general provisions) to provide for conspiracy liability 
under these offenses. Are the guidelines adequate as they apply to these offenses in a case 
involving conspiracy? 

73 



Are there any other amendments to the guidelines that should be made to address the amendments 
made by the Act? 

6. Miscellaneous 
Synopsis of Proposed Amendment: This proposed amendment is a multi-part amendment 
responding to miscellaneous issues arising from legislation recently enacted and other 
miscellaneous guideline application issues. 

Part A of the proposed amendment amends Appendix A (Statutory Index) to include 
offenses created or amended by the Housing and Economic Recovery Act of 2008 (Public Law 
110-289). The new offense at 12 U.S.C. § 4636b is referenced to §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); as a conforming change, the 
similar existing offense at 12 U.S.C. § 1818(j) is also referenced to §2B1.1. The new offense at 
12 U.S.C. § 4641 is referenced to §2J1.1 (Contempt) and §2J1.5 (Failure to Appear by Material 
Witness); as conforming changes, similar existing offenses (see 2 U.S.C. §§ 192, 390; 7 U.S.C. § 
87f(e); 12 U.S.C. §§ 1818(j), 1844(f), 2273, 3108(b)(6); 15 U.S.C. §§ 78u(c), 80a-41(c), 80b-9(c), 
717m(d); 16 U.S.C. § 825f(c); 26 U.S.C. § 7210; 33 U.S.C. §§ 506, 1227(b); 42 U.S.C. § 3611; 
47 U.S.C. § 409(m); 49 U.S.C. §§ 14909, 16104) are also referenced to §2J1.1 and §2J1.5. 

74 



Part B of the proposed amendment amends Appendix A (Statutory Index) to include 
offenses created or amended by the Consumer Product Safety Improvement Act of 2008 (Public 
Law 110-314). These offenses (see 15 U.S.C. §§ 1192, 1197(b), 1202(c), 1263, 2068) are 
referenced to §2N2.1 (Violations of Statutes and Regulations Dealing With Any Food, Drug, 
Biological Product, Device, Cosmetic, or Agricultural Product). Technical and conforming 
changes are also made. 

Part C of the proposed amendment amends Appendix A (Statutory Index) to include an 
offense created by the Veterans’ Benefits Improvement Act of 2008 (Public Law 110-389). The 
new offense at 50 U.S.C. App. § 527(e) is referenced to §2X5.2 (Class A Misdemeanors (Not 
Covered by Another Specific Guideline)); as a conforming change, the similar existing offense at 
10 U.S.C. § 987(f) is also referenced to §2X5.2. 

Part D of the proposed amendment amends Appendix A (Statutory Index) to include an 
offense created by the Violence Against Women and Department of Justice Reauthorization Act 
of 2005 (Public Law 109-162). The new offense at 18 U.S.C. § 117 is referenced to §2A6.2 
(Stalking or Domestic Violence). 

Part E of the proposed amendment amends Appendix A (Statutory Index) to include an 
offense created by the Child Soldiers Accountability Act of 2008 (Public Law 110-340). The new 
offense at 18 U.S.C. § 2442 is referenced to §2H4.1 (Peonage, Involuntary Servitude, and Slave 

75 



Trade). Technical and conforming changes are also made. An issue for comment is also 
provided. 

Part F of the proposed amendment makes changes throughout the Guidelines Manual so 
that it accurately reflects the amendments made by the Judicial Administration and Technical 
Amendments Act of 2008 (Public Law 110-406) to the probation and supervised release statutes 
(18 U.S.C. §§ 3563, 3583). The changes include the addition of a new guideline for intermittent 
confinement that parallels the statutory language, as well as technical and conforming changes. 

Part G of the proposed amendment amends the enhancement relating to property from a 
national cemetery or veterans’ memorial in subsection (b)(6) of §2B1.1 (Larceny, Embezzlement, 
and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; 
Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than 
Counterfeit Bearer Obligations of the United States) so that it also covers trafficking in such 
property, and makes a conforming change to the commentary. This part responds to the directive 
to the Commission in the Let Our Veterans Rest in Peace Act of 2008 (Public Law 110-384). 

Part H of the proposed amendment makes changes to the child pornography guidelines, 
§2G2.1 and §2G2.2, so that they accurately reflect the amendments made to the child 
pornography statutes (18 U.S.C. §§ 2251 et seq.) by the Effective Child Pornography Prosecution 
Act of 2007 (Public Law 110-358) and the PROTECT Our Children Act of 2008 (Public Law 
110-401). The changes relate primarily to cases where child pornography is transmitted over the 

76 



Internet. Under the proposed amendment, where the guidelines refer to the purpose of producing 
a visual depiction, they will also refer to the purpose of transmitting a live visual depiction; where 
the guidelines refer to possessing material, they will also refer to accessing with intent to view the 
material. As a conforming change, this part also amends the child pornography guidelines so that 
the term "distribution" includes "transmission", and the term "material" includes any visual 
depiction, as now defined by 18 U.S.C. § 2256 (i.e., to include data which is capable of 
conversion into a visual image that has been transmitted by any means, whether or not stored in a 
permanent format). 

Part I of the proposed amendment makes a technical change to the terms "another felony 
offense" and "another offense", as defined in Application Note 14(C) of the firearms guideline, 
§2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited 
Transactions Involving Firearms or Ammunition). Those definitions were slightly revised when 
they were placed into Application Note 14(C) by Amendment 691 (effective November 1, 2006), 
and some confusion has arisen regarding whether the revisions were intended to have a 
substantive effect. The technical change amends the terms to clarify that Amendment 691 was 
not intended to have a substantive effect on those terms. 

Part J of the proposed amendment revises Appendix A (Statutory Index) so that the threat 
guideline, §2A6.1 (Threatening or Harassing Communications; Hoaxes; False Liens), is included 
on the list of guidelines to which 18 U.S.C. § 2280 and § 2332a are referenced. The proposed 
amendment ensures that in a case in which an offense under one of those statutes is committed by 

77 



threat, the court has the option of determining that §2A6.1 is the most analogous offense 
guideline. 

Part K of the proposed amendment amends the enhancement relating to serious bodily 
injury in subsection (b)(5) of §2B5.3 (Criminal Infringement of Copyright or Trademark) so that 
it parallels the corresponding enhancement for serious bodily injury in §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). This part responds to statutory 
amendments made by the Prioritizing Resources and Organization for Intellectual Property Act of 
2008 (Public Law 110-403). 

An issue for comment is also included regarding whether the guidelines are adequate as 
they apply to subsection (a)(7) of 18 U.S.C. § 2252A, a new offense created by the PROTECT 
Our Children Act of 2008 (Public Law 110-401). 

Proposed Amendment 

Part A (Housing and Economic Recovery Act of 2008) 

Appendix A (Statutory Index) is amended by inserting before the line referenced to 2 U.S.C. § 
437g(d) the following: 

78 



"2 U.S.C. § 192 2J1.1, 2J1.5 
2 U.S.C. § 390 2J1.1, 2J1.5"; 

by inserting after the line referenced to 7 U.S.C. § 87b the following: 

"7 U.S.C. § 87f(e) 2J1.1, 2J1.5"; 

by inserting after the line referenced to 12 U.S.C. § 631 the following: 

"12 U.S.C. § 1818(j) 2B1.1 
12 U.S.C. § 1844(f) 2J1.1, 2J1.5 

12 U.S.C. § 2273 2J1.1, 2J1.5 
12 U.S.C. § 3108(b)(6) 2J1.1, 2J1.5 
12 U.S.C. § 4636b 2B1.1 
12 U.S.C. § 4641 2J1.1, 2J1.5"; 

by inserting after the line referenced to 15 U.S.C. § 78ff the following: 

"15 U.S.C. § 78u(c) 2J1.1, 2J1.5 
15 U.S.C. § 80a-41(c)2J1.1, 2J1.5"; 

by inserting after the line referenced to 15 U.S.C. § 80b-6 the following: 

79 



"15 U.S.C. § 80b-9(c)2J1.1, 2J1.5"; 

by inserting after the line referenced to 15 U.S.C. § 714m(c) the following: 

"15 U.S.C. § 717m(d) 2J1.1, 2J1.5"; 

by inserting after the line referenced to 16 U.S.C. § 773g the following: 

"16 U.S.C. § 825f(c) 2J1.1, 2J1.5"; 

in the line referenced to 26 U.S.C. § 7210 by inserting ", 2J1.5" after "2J1.1"; 

in the line referenced to 33 U.S.C. § 506 by inserting ", 2J1.5" after "2J1.1"; 

in the line referenced to 33 U.S.C. § 1227(b) by inserting ", 2J1.5" after "2J1.1"; 

in the line referenced to 42 U.S.C. § 3611(f) by inserting ", 2J1.5" after "2J1.1"; 

by inserting after the line referenced to 47 U.S.C. § 223(b)(1)(A) the following: 

"47 U.S.C. § 409(m) 2J1.1, 2J1.5"; 

80 



in the line referenced to 49 U.S.C. § 14909 by inserting ", 2J1.5" after "2J1.1"; 

and in the line referenced to 49 U.S.C. § 16104 by inserting ", 2J1.5" after "2J1.1". 

Part B (Consumer Product Safety Improvement Act of 2008) 

Chapter Two, Part N is amended in the heading by inserting "CONSUMER PRODUCTS," after 
"PRODUCTS,". 

Chapter Two, Part N, Subpart 2 is amended in the heading by striking "AND"; and by inserting ", 
AND CONSUMER PRODUCTS" after "PRODUCTS". 

Section 2N2.1 is amended in the heading by striking "or" after "Cosmetic," and by inserting ", or 
Consumer Product" at the end. 

Appendix A (Statutory Index) is amended by inserting after the line referenced to "15 U.S.C. § 
1176" the following: 

"15 U.S.C. § 1192 2N2.1 
15 U.S.C. § 1197(b) 2N2.1 
15 U.S.C. § 1202(c) 2N2.1 
15 U.S.C. § 1263 2N2.1"; 

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and by inserting after the line referenced to 15 U.S.C. § 1990(c) the following: 

"15 U.S.C. § 2068 2N2.1". 

Part C (Veterans’ Benefits Improvement Act of 2008) 

Appendix A (Statutory Index) is amended by inserting after the line referenced to 8 U.S.C. § 
1375a(d)(3)(C),(d)(5)(B) the following: 

"10 U.S.C. § 987(f) 2X5.2"; 

and by inserting after the line referenced to 50 U.S.C. § 783(c) the following: 

"50 U.S.C. App. § 527(e)2X5.2". 

Part D (Violence Against Women and Department of Justice Reauthorization Act of 2005) 

Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. § 
115(b)(3) the following: 

"18 U.S.C. § 117 2A6.2". 

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Part E (Child Soldiers Accountability Act of 2008) 

Chapter Two, Part H, Subpart 4 is amended in the heading by striking "AND" after 
"SERVITUDE," and by inserting ", AND CHILD SOLDIERS" at the end. 

Section 2H4.1 is amended in the heading by striking "and" after "Servitude," and by inserting ", 
and Child Soldiers" at the end. 

The Commentary to §2H4.1 captioned "Statutory Provisions" is amended by inserting ", 2442" 
after "1592". 

The Commentary to §2H4.1 captioned "Application Notes" is amended in Note 1 by inserting as 
the last paragraph the following: 

"‘Involuntary servitude’ includes forced labor, slavery, and service as a child soldier.". 

Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. § 
2425 the following: 

"18 U.S.C. § 2442 2H4.1". 

Issue for Comment 

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1. The Commission requests comment regarding whether it should amend Appendix A 
(Statutory Index) to reference the new offense at 18 U.S.C. § 2242 to §2H4.1 (Peonage, 
Involuntary Servitude, and Slave Trade) or to one or more other guidelines. Does §2H4.1, or one 
or more other guidelines, adequately address offenses under 18 U.S.C. § 2242 and, if not, what 
aggravating or mitigating circumstances existing in those cases might justify additional 
amendments to the guidelines? Alternatively, should the Commission defer action in response to 
the new offense at 18 U.S.C. § 2242 this amendment cycle, undertake a broader review of the 
guidelines pertaining to human rights offenses generally, and include responding to the new 
offense as part of that broader review? 
Part F (Judicial Administration and Technical Amendments Act of 2008) 

Section 5B1.3 is amended in subsection (a)(2) by striking ", (B) give notice" and all that follows 
through "or area," and inserting "or (B) work in community service, unless the court has imposed 
a fine, or"; and by striking the paragraph that begins "Note: Section 3563(a)(2)". 

Section 5B1.3(e)(1) is amended by adding at the end "See §5F1.1 (Community Confinement).". 

Section 5B1.3(e)(6) is amended by adding at the end "See §5F1.8 (Intermittent Confinement).". 

Section 5C1.1 is amended by striking the asterisk each place it appears. 

The Commentary to §5C1.1 captioned "Application Notes" is amended by striking the asterisk 

84 



each place it appears; and by striking the paragraph that begins "Note: Section 3583(d)" and the 
paragraph that begins "However,". 

Section 5D1.3(e)(1) is amended by striking the asterisk; and by striking the paragraph that begins 
"Note: Section 3583(d)" and the paragraph that begins "However,". 

Section 5D1.3(e) is amended by adding at the end the following paragraph: 

"(6) Intermittent Confinement 

Intermittent confinement (custody for intervals of time) may be ordered as a condition of 
supervised release during the first year of supervised release. See §5F1.8 (Intermittent 
Confinement).". 

Section 5F1.1 is amended by striking the asterisk; and by striking the paragraph that begins 
"Note: Section 3583(d)" and the paragraph that begins "However,". 

Chapter Five, Part F is amending by adding at the end the following new guideline and 
accompanying commentary: 

"§5F1.8. Intermittent Confinement 

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Intermittent confinement may be imposed as a condition of probation or supervised 
release. 

 Commentary 

Application Notes: 

1. ‘Intermittent confinement’ means remaining in the custody of the Bureau of Prisons 
during nights, weekends, or other intervals of time, totaling no more than the lesser of one year or 
the term of imprisonment authorized for the offense, during the first year of the term of probation 
or supervised release. See 18 U.S.C. § 3563(b)(10). 
2. Intermittent confinement shall be imposed as a condition of supervised release only for a 
violation of a condition of supervised release in accordance with 18 U.S.C. § 3583(e)(2) and only 
when facilities are available. See 18 U.S.C. § 3583(d).". 
Chapter Seven, Part A is amended in Subpart 2(b) in the second paragraph by striking "With the 
exception" and all that follows through "probation, the" and inserting "The"; and by striking the 
paragraph that begins "Note: Section 3583(d)" and the paragraph that begins "However,". 

The Commentary to §7B1.3 captioned "Application Notes" is amended by striking Note 5 and 
inserting the following: 

86 



"5. Intermittent confinement is authorized as a condition of probation only during the first 
year of the term of probation, see 18 U.S.C. § 3563(b)(10), and as a condition of supervised 
release only during the first year of supervised release, see 18 U.S.C. § 3583(d). See §5F1.8 
(Intermittent Confinement).". 

Section 8D1.3 is amended by striking subsection (b) and inserting the following: 

"(b) Pursuant to 18 U.S.C. § 3563(a)(2), if a sentence of probation is imposed for a felony, the 
court shall impose as a condition of probation at least one of the following: (1) restitution or (2) 
community service, unless the court has imposed a fine, or unless the court finds on the record 
that extraordinary circumstances exist that would make such condition plainly unreasonable, in 
which event the court shall impose one or more other conditions set forth in 18 U.S.C. § 
3563(b).". 

Part G (Let Our Veterans Rest in Peace Act of 2008) 

Section 2B1.1(b)(6) is amended by striking "or" after "damage to,"; and by inserting "or 
trafficking in," after "destruction of,". 

The Commentary to §2B1.1 captioned "Background" is amended in the paragraph that begins 
"Subsection (b)(6)" by inserting at the end before the period the following: 

87 



"and the directive to the Commission in section 3 of Public Law 110-384". 

Part H (PROTECT Our Children Act of 2008 and Effective Child Pornography Prosecution 
Act of 2007) 

Section 2G2.1(b)(6) is amended by inserting "or for the purpose of transmitting such material 
live" after "explicit material". 

The Commentary to §2G2.1 captioned "Application Notes" is amended in Note 1 in the paragraph 
that begins "‘Distribution’ means" by inserting "transmission," after "production,"; and by 
inserting after the paragraph that begins "‘Interactive computer service’" the following paragraph: 

"‘Material’ includes a visual depiction, as defined in 18 U.S.C. § 2256.". 

The Commentary to §2G2.1 captioned "Application Notes" is amended in Note 4 by inserting "or 
for the purpose of transmitting such material live" after "explicit material" each place it appears; 
and in Note 4(B) by striking "purpose" after "for such" and inserting "purposes". 

Section 2G2.2(b)(6) is amended by inserting "or for accessing with intent to view the material," 
after "material,". 

Section 2G2.2(c)(1) is amended by inserting "or for the purpose of transmitting a live visual 

88 



depiction of such conduct" after "such conduct". 

The Commentary to §2G2.2 captioned "Application Notes" is amended in Note 1 in the paragraph 
that begins "‘Distribution’" by inserting "transmission," after "production,"; by inserting after the 
paragraph that begins "‘Interactive computer service’" the following: 

"‘Material’ includes a visual depiction, as defined in 18 U.S.C. § 2256." and 

in the paragraph that begins "‘Sexual abuse or exploitation" by inserting "accessing with intent to 
view," after "possession,". 

The Commentary to §2G2.2 captioned "Application Notes" is amended in Note 2 by inserting 
"access with intent to view," after "possess,". 

The Commentary to §2G2.2 captioned "Application Notes" is amended in Note 4(B)(ii) by 
striking "recording" and inserting "visual depiction" each place it appears. 

The Commentary to §2G2.2 captioned "Application Notes" is amended in Note 5(A) by inserting 
"or for the purpose of transmitting live any visual depiction of such conduct" after "such 
conduct". 

Part I (Clarification of §2K2.1, Application Note 14(C)) 

89 



The Commentary to §2K2.1 captioned "Application Notes" is amended in Note 14(C) by striking 
"the" before "explosive" and inserting "an" each place it appears. 

Part J (Treatment of 18 U.S.C. §§ 2280, 2332a in Statutory Index) 

Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. § 2280 by inserting 
"2A6.1," after "2A4.1,"; and 

in the line referenced to 18 U.S.C. § 2332a by inserting "2A6.1," before "2K1.4". 

Part K (Prioritizing Resources and Organization for Intellectual Property Act of 2008) 

Section 2B5.3(b)(5) is amended by inserting "death or" after "risk of"; and by striking "13" and 
inserting "14" each place it appears. 

Issue for Comment 

1. The Commission requests comment regarding whether the guidelines are adequate as they 
apply to subsection (a)(7) of 18 U.S.C. § 2252A, a new offense created by the PROTECT Our 
Children Act of 2008 (Public Law 110-401). The new offense at subsection (a)(7) makes it 
unlawful to knowingly produce with intent to distribute, or to knowingly distribute, "child 
90 



pornography that is an adapted or modified depiction of an identifiable minor." A violator is 
subject to a fine under title 18, United States Code, and imprisonment up to 15 years. 

Under Appendix A (Statutory Index), all offenses under 18 U.S.C. § 2252A are referenced to the 
child pornography trafficking, receipt, and possession guideline, §2G2.2 (Trafficking in Material 
Involving the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, Soliciting, or 
Advertising Material Involving the Sexual Exploitation of a Minor; Possessing Material Involving 
the Sexual Exploitation of a Minor with Intent to Traffic; Possessing Material Involving the 
Sexual Exploitation of a Minor). 

Is §2G2.2 the guideline to which offenses under subsection (a)(7) should be referenced? 
Alternatively, should the Commission amend Appendix A (Statutory Index) to refer offenses 
under subsection (a)(7) to a guideline or guidelines other than §2G2.2 and, if so, which ones? 
Should the Commission amend the guidelines (such as by amending Appendix A or by providing 
cross references) so that an offense under subsection (a)(7) that involves distribution is referred to 
one guideline (e.g., §2G2.2), and an offense under subsection (a)(7) that involves production is 
referred to another guideline (e.g., the child pornography production guideline, §2G2.1 (Sexually 
Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material; Custodian 
Permitting Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage in 
Production))? Whether offenses under subsection (a)(7) are referenced to §2G2.2 or to one or 
more other guidelines, are there aggravating or mitigating circumstances existing in cases 
involving those offenses that might justify additional amendments to the guidelines? If so, how 

91 



should the guidelines be amended to address those circumstances? For example, if an offense 
under subsection (a)(7) that involves production is referred to §2G2.1, should the Commission 
provide a downward adjustment in §2G2.1 to reflect the less serious nature of an offense 
involving the production of child pornography that is an adapted or modified depiction of an 
identifiable minor compared to other offenses involving the production of child pornography 
covered by that guideline? Alternatively, should the Commission create a new guideline for 
offenses under subsection (a)(7)? 

7. Influencing a Minor 
Synopsis of Proposed Amendment: This proposed amendment addresses a circuit conflict 
regarding the undue influence enhancement at §2A3.2(b)(2)(B)(ii) (Criminal Sexual Abuse of a 
Minor Under the Age of Sixteen Year (Statutory Rape) or Attempt to Commit Such Acts) and at 
§2G1.3(b)(2)(B) (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). The 
undue influence enhancement provides for an increase in the defendant's offense level (four levels 
in §2A3.2 and two levels in §2G1.3) if "a participant otherwise unduly influenced the minor to 
engage in prohibited sexual conduct." In both guidelines, commentary states that in determining 
whether the undue influence enhancement applies, "the court should closely consider the facts of 
the case to determine whether a participant's influence over the minor compromised the 

92 



voluntariness of the minor's behavior." The commentary also provides for a rebuttable 
presumption of undue influence "[i]n a case in which a participant is at least 10 years older than 
the minor." 

In both guideline provisions, the term "minor" includes "an individual, whether fictitious or not, 
who a law enforcement officer represented to a participant . . . could be provided for the purposes 
of engaging in sexually explicit conduct" or "an undercover law enforcement officer who 
represented to a participant that the officer had not attained" the age of majority. 

Three circuits have three different approaches regarding the application of the undue influence 
enhancement in cases in which the "minor" is actually an undercover law enforcement officer. 
The Eleventh Circuit, in United States v. Root, 296 F.3d 1222 (11th Cir. 2002), held that, 
according to the terms of §2A3.2, the undue influence enhancement can apply even when the 
victim is an undercover law enforcement officer. In such a case, the Eleventh Circuit held, the 
focus is on the defendant's conduct, not on the fact that the victim's will was not actually 
overborne. The Eleventh Circuit is also the only circuit that has addressed this issue in the 
context of §2G1.3. See United States v. Vance, 494 F.3d 985 (11th Cir. 2007) (holding that 
§2G1.3(b)(2)(B) applies where the minor is fictitious, and stating that "the focus is on the 
defendant's intent, not whether the victim is real or fictitious"). 

The Seventh Circuit reached a different result in United States v. Mitchell, 353 F.3d 552 (7th Cir. 
2003), holding that "the plain language of [§2A3.2] cannot apply in the case of an attempt where 

93 



the victim is an undercover police officer." The Seventh Circuit also stated that its reading of the 
guideline concluded that "the enhancement cannot apply [in any case] where the offender and 
victim have not engaged in illicit sexual conduct." Id. at 559. 

The Sixth Circuit, in United States v. Chriswell, 401 F.3d 459 (6th Cir. 2005), took a third 
approach. The Sixth Circuit agreed in part with the Seventh Circuit, holding that 
"§2A3.2(b)(2)(B) is not applicable in cases where the victim is an undercover agent representing 
himself to be a child under the age of sixteen." Id. at 469. Unlike the Seventh Circuit, however, 
the Sixth Circuit concluded that the enhancement can apply in other instances of attempted sexual 
conduct. 

The three proposed options reflect the three different interpretations of the enhancement by the 
Eleventh, Sixth, and Seventh Circuits. Option One reflects the Eleventh Circuit's approach by 
amending the commentary regarding the undue influence enhancement in §§2A3.2 and 2G1.3 to 
provide that the enhancement can apply in a case of attempted sexual conduct. Option One 
further amends the commentary to provide that the undue influence enhancement can apply in a 
case involving only an undercover law enforcement officer. 

Option Two reflects the Sixth Circuit's approach. It amends the commentary regarding the undue 
influence enhancement in §§2A3.2 and 2G1.3 to provide that the enhancement can apply in a 
case of attempted sexual conduct. Option Two further amends the commentary to provide that 
the undue influence enhancement does not apply in a case involving only an undercover law 

94 



enforcement officer. 

Option Three reflects the Seventh Circuit's approach. Contrary to Options One and Two, Option 
Three amends the commentary regarding the undue influence enhancement in §§2A3.2 and 
2G1.3 to provide that the enhancement does not apply in a case of attempted sexual conduct. 
Like Option Two, Option Three amends the commentary regarding the undue influence 
enhancement in §§2A3.2 and 2G1.3 to provide that the enhancement does not apply in a case 
involving only an undercover law enforcement officer. 

All three options include a technical amendment to the background of §2A3.2. 

One issue for comment is also included. 

Proposed Amendment 

[Option 1: 

The Commentary to §2A3.2 captioned "Application Notes" is amended in Note 3(B) in the 
paragraph that begins "Undue Influence" by adding at the end the following: 

"Subsection (b)(2)(B)(ii) does not require that the participant engage in prohibited sexual conduct 
with the minor."; 

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in the paragraph that begins "In a case" by striking ", for purposes of" and all that follows through 
"sexual conduct" and inserting "that subsection (b)(2)(B)(ii) applies"; 

and by adding at the end as the last paragraph the following: 

"Subsection (b)(2)(B)(ii) can apply in a case in which the only ‘minor’ (as defined in Application 
Note 1) involved in the offense is an undercover law enforcement officer.".] 

[Option 2: 

The Commentary to §2A3.2 captioned "Application Notes" is amended in Note 3(B) in the 
paragraph that begins "Undue Influence" by adding at the end the following: 

"Subsection (b)(2)(B)(ii) does not require that the participant engage in prohibited sexual conduct 
with the minor."; 

in the paragraph that begins "In a case" by striking ", for purposes of" and all that follows through 
"sexual conduct" and inserting "that subsection (b)(2)(B)(ii) applies"; 

and by adding at the end as the last paragraph the following: 

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"Subsection (b)(2)(B)(ii) does not apply in a case in which the only ‘minor’ (as defined in 
Application Note 1) involved in the offense is an undercover law enforcement officer.".] 

[Option 3: 

The Commentary to §2A3.2 captioned "Application Notes" is amended in Note 3(B) in the 
paragraph that begins "Undue Influence" by adding at the end the following: 

"Subsection (b)(2)(B)(ii) requires that the participant engage in prohibited sexual conduct with the 
minor."; 

in the paragraph that begins "In a case" by striking ", for purposes of" and all that follows through 
"sexual conduct" and inserting "that subsection (b)(2)(B)(ii) applies"; 

and by adding at the end as the last paragraph the following: 

"Subsection (b)(2)(B)(ii) does not apply in a case in which the only ‘minor’ (as defined in 
Application Note 1) involved in the offense is an undercover law enforcement officer.".] 

The Commentary to §2A3.2 captioned "Background" is amended by striking "two-level" and 
inserting "four-level" each place it appears. 

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[Option 1: 
The Commentary to §2G1.3 captioned "Application Notes" is amended in Note 3(B) in the 
paragraph that begins "Undue Influence" by adding at the end the following: 


"Subsection (b)(2)(B) does not require that the participant engage in prohibited sexual conduct 
with the minor."; 


in the paragraph that begins "In a case" by striking ", for purposes of" and all that follows through 
"sexual conduct" and inserting "that subsection (b)(2)(B) applies"; 


and by adding at the end as the last paragraph the following: 


"Subsection (b)(2)(B) can apply in a case in which the only ‘minor’ (as defined in Application 
Note 1) involved in the offense is an undercover law enforcement officer.".] 


[Option 2: 


The Commentary to §2G1.3 captioned "Application Notes" is amended in Note 3(B) in the 
paragraph that begins "Undue Influence" by adding at the end the following: 


"Subsection (b)(2)(B) does not require that the participant engage in prohibited sexual conduct 
with the minor."; 


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in the paragraph that begins "In a case" by striking ", for purposes of" and all that follows through 
"sexual conduct" and inserting "that subsection (b)(2)(B) applies"; 

and by adding at the end as the last paragraph the following: 

"Subsection (b)(2)(B) does not apply in a case in which the only ‘minor’ (as defined in 
Application Note 1) involved in the offense is an undercover law enforcement officer.".] 

[Option 3: 

The Commentary to §2G1.3 captioned "Application Notes" is amended in Note 3(B) in the 
paragraph that begins "Undue Influence" by adding at the end the following: 

"Subsection (b)(2)(B) requires that the participant engage in prohibited sexual conduct with the 
minor."; 

in the paragraph that begins "In a case" by striking ", for purposes of" and all that follows through 
"sexual conduct" and inserting "that subsection (b)(2)(B) applies"; 

and by adding at the end as the last paragraph the following: 

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"Subsection (b)(2)(B) does not apply in a case in which the only ‘minor’ (as defined in 
Application Note 1) involved in the offense is an undercover law enforcement officer.".] 

Issue for Comment 

1. The Commission seeks comment regarding the current application of the undue influence 
enhancements in both §2A3.2 and §2G1.3. In 2004, the Commission created §2G1.3 specifically 
to address offenses under chapter 117 of title 18, United States Code, that involve minors. See 
USSG App. C, Amendment 664 (Nov. 2004). Prior to the creation of §2G1.3, chapter 117 
offenses, primarily 18 U.S.C. §§ 2422 (Coercion and Enticement) and 2423 (Transportation of 
Minors), were sentenced under §2A3.2 either by direct reference from Appendix A, or through a 
cross reference from §2G1.1. The creation of a new guideline for chapter 117 cases was 
"intended to address more appropriately the issues specific to these offenses. In addition, the 
removal of these cases from §2A3.2 permit[ted] the Commission to more appropriately tailor 
[§2A3.2] to actual statutory rape cases." USSG App. C, Amendment 664 (Nov. 2004). 
The Commission requests comment regarding the application of the undue influence 
enhancements in the two guidelines at issue. Should the Commission amend the enhancement in 
either guideline in any way? If so, what changes should the Commission make? Should, for 
example, the Commission more narrowly tailor the enhancement in §2A3.2 to reflect the offense 
conduct typical in cases now being sentenced under §2A3.2? If so, how? 

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8. Commission of Offense While on Release 
Synopsis of Proposed Amendment: This proposed amendment clarifies Application Note 1 in 
§3C1.3 (Commission of Offense While on Release). Section 3C1.3 (formerly §2J1.7, (see 
Appendix C to the Guidelines Manual, Amendment 684) provides for a three-level adjustment if 
the defendant is subject to the statutory enhancement found at 18 U.S.C. § 3147—that is, if the 
defendant has committed the underlying offense while on release. Application Note 1 to §3C1.3 
states that, in order to comply with the statute’s requirement that a consecutive sentence be 
imposed, the sentencing court must “divide the sentence on the judgment form between the 
sentence attributable to the underlying offense and the sentence attributable to the enhancement.” 

The Second and Seventh Circuits have held that, according to the terms of Application 
Note 2 to §2J1.7 (now Application Note 1 to §3C1.3), a sentencing court cannot apportion to the 
underlying offense more than the maximum of the guideline range absent the three-level 
enhancement. See United States v. Confredo, 528 F.3d 143 (2d Cir. 2008); United States v. 
Stevens, 66 F.3d 431 (2d Cir. 1995); United States v. Wilson, 966 F.2d 243 (7th Cir. 1992). The 
Second Circuit has stated that the example the Commission provides in the Application Note does 
not abide by their interpretation of the rule: “The commentary example begins with a total range 
of 30-37 months. In all criminal history categories, if the §2J1.7 three-level enhancement is 
deleted from the guideline level at which a 30-37 month sentence is imposed, the permissible 
range provided for the reduced sentence would be 21-27 months.” Stevens, at 435-36. The 
example states that a properly “apportioned” sentence for the underlying offense would be 30 

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months. This is outside the guideline range for that offense. 

Under ordinary guideline application principles, however, only one guideline range 
applies to a defendant who committed an offense while on release and is subject to the 
enhancement at 18 U.S.C. § 3147. See §1B1.1 (instructing the sentencing court to, in this order: 

(1) determine the offense guideline applicable to the offense of conviction (the underlying 
offense); (2) determine the base offense level, specific offense characteristics, and follow other 
instructions in Chapter Two; (3) apply adjustments from Chapter Three; and, ultimately, (4) 
“[d]etermine the guideline range in Part A of Chapter Five that corresponds to the offense level 
and criminal history category determined above”). 
The proposed amendment clarifies that the court determines the applicable guideline range 
as in any other case. At that point, the court determines an appropriate "total punishment" from 
within that applicable guideline range, and then divides the total sentence between the underlying 
offense and the § 3147 enhancement as the court considers appropriate. 

Proposed Amendment 

The Commentary to §3C1.3 captioned "Application Notes" is amended in Note 1 by striking "as 
adjusted" and inserting "including, as in any other case in which a Chapter Three adjustment 
applies (see §1B1.1 (Application Instructions)), the adjustment provided"; and by adding at 
the end as the last sentence the following: 

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"Similarly, if the applicable adjusted guideline range is 30-37 months and the court determines a 
‘total punishment’ of 30 months is appropriate, a sentence of 24 months for the underlying 
offense plus 6 months under 18 U.S.C. § 3147 would satisfy this requirement.". 

9. Counterfeiting and "Bleached Notes" 
Synopsis of Proposed Amendment: The proposed amendment clarifies guideline application 
issues regarding the sentencing of counterfeiting offenses involving “bleached notes.” Bleached 
notes are genuine United States currency stripped of its original image through the use of solvents 
or other chemicals and then reprinted to appear to be notes of higher denomination than intended 
by the Treasury. Circuit courts have resolved differently the question of whether offenses 
involving bleached notes should be sentenced under §2B5.1 (Offenses Involving Counterfeit 
Bearer Obligations of the United States) or §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). Compare, United States v. Schreckengost, 384 F.3d 922 (7th 
Cir. 2004) (holding that bleached notes should be sentenced under §2B1.1); United States v. 
Inclema, 363 F.3d 1177 (11th Cir. 2004) (same); with United States v. Dison, 2008 WL 351935 

(W.D. La. Feb 8, 2008) (applying §2B5.1 in a case involving bleached notes); United States v. 
Vice, 2008 WL 113970 (W. D. La. Jan. 3, 2008) (same). The proposed amendment resolves this 
circuit conflict and responds to concerns expressed by federal judges and members of Congress 
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concerning the guidelines pertaining to offenses involving bleached notes. 

The definition of the term “counterfeit” in Application Note 3 of §2B5.1 has been cited by 
courts as the basis for declining to apply §2B5.1 to offenses involving bleached notes. 
“Counterfeit” is defined to mean “an instrument that purports to be genuine but is not, because it 
has been falsely made or manufactured in its entirety.” Application Note 3 further provides that 
“[o]ffenses involving genuine instruments that have been altered are covered under §2B1.1 
(Theft, Property Destruction, and Fraud)." Under this definition, courts have had to consider 
whether a bleached note should be considered falsely made or manufactured in its entirety (and 
therefore sentenced under §2B5.1) or an altered note (and therefore sentenced under §2B1.1). 

The proposed amendment resolves this issue to provide that offenses involving bleached 
notes are to be sentenced under §2B5.1. Specifically, the proposed amendment deletes 
Application Note 3 and revises the definition of "counterfeit" to more closely parallel relevant 
counterfeiting statutes, for example 18 U.S.C. §§ 471 (Obligations or securities of the United 
States) and 472 (Uttering counterfeit obligations or securities). As a clerical change, the 
definition is moved from Application Note 3 to Application Note 1. 

The proposed amendment also amends the enhancement at subsection (b)(2)(B) to cover a 
case in which the defendant controlled or possessed genuine United States currency paper from 
which the ink or other distinctive counterfeit deterrent has been completely or partially removed. 

In addition, the proposed amendment amends Appendix A (Statutory Index) by striking 
the alternative reference to §2B1.1 for two offenses that do not involve elements of fraud. 

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Specifically, the amendment deletes alternative reference to §2B1.1 for offenses under 18 U.S.C. 
§§ 474A (Deterrents to counterfeiting of obligations and securities) and 476 (Taking impressions 
of tools used for obligations or securities). As a result, these offenses would be referenced solely 
to §2B5.1. A conforming change is made to delete these offenses from the list of statutory 
provisions in §2B1.1. 

Proposed Amendment 

Section 2B5.1(b)(2)(B) is amended by inserting "(ii) genuine United States currency paper from 
which the ink or other distinctive counterfeit deterrent has been completely or partially removed;" 
after "paper;" and by striking "or (ii)" and inserting "or (iii)". 

The Commentary to §2B5.1 captioned "Application Notes" is amended in Note 1 by inserting 
after the paragraph that begins "‘Definitions.—" the following: 

"‘Counterfeit’ refers to an instrument that has been falsely made, manufactured, or altered. For 
example, an instrument that has been falsely made or manufactured in its entirety is ‘counterfeit’, 
as is a genuine instrument that has been falsely altered (such as a genuine $5 bill that has been 
altered to appear to be a genuine $100 bill).". 

The Commentary to §2B5.1 captioned "Application Notes" is amended by striking Note 3 in its 
entirety and by redesignating Note 4 as Note 3. 

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Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. § 474A by striking 
"2B1.1,"; and in the line referenced to 18 U.S.C. § 476 by striking "2B1.1,". 

10. Technical 
Synopsis of Proposed Amendment: This proposed amendment is a multi-part amendment that 
makes various technical and conforming changes to the guidelines. 

Part A of the proposed amendment addresses several cases in which the guidelines refer to 
another guideline, or to a statute or rule, but the reference has become incorrect or obsolete. First, 
the proposed amendment makes technical changes in §1B1.8 (Use of Certain Information) to 
address the fact that provisions that had been contained in subsection (e)(6) of Rule 11 of the 
Federal Rules of Criminal Procedure are now contained in subsection (f) of that rule. Second, it 
makes a technical change in §2J1.1 (Contempt), Application Note 3, to address the fact that the 
provision that had been contained in subsection (b)(7)(C) of §2B1.1 (Theft, Property Destruction, 
and Fraud) is now contained in subsection (b)(8)(C) of that guideline. Third, it makes a technical 
change in §4B1.2 (Definitions of Terms used in Section 4B1.1), Application Note 1, fourth 
paragraph, to address the fact that the offense that had been contained in subsection (d)(1) of 21 

U.S.C. § 841 is now contained in subsection (c)(1) of that section. Fourth, it makes technical 
changes in §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain 
Cases), Application Note 8, to address the fact that subsections (c)(1) and (c)(3) of Rule 32 of the 
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Federal Rules of Criminal Procedure are now contained in subsections (f) and (i) of that rule. 
Fifth, it makes a technical change in §5D1.2 (Term of Supervised Release), Commentary, to 
address the fact that the provision that had been contained in subsection (b) of §5D1.2 is now 
contained in subsection (c) of that guideline. Sixth, it makes a technical change in Appendix A 
(Statutory Index) to address the fact that the offense that had been contained at subsection (f) of 
42 U.S.C. § 3611 is now contained in subsection (c) of that section. 

Part B of the proposed amendment resolves certain technical issues that have arisen in the 
Guidelines Manual with respect to child pornography offenses. First, the proposed amendment 
makes technical changes in §2G2.1, Statutory Provisions, to address the fact that only some, not 
all, offenses under 18 U.S.C. § 2251 are referenced to §2G2.1. Second, it makes technical 
changes in §2G2.2, Statutory Provisions, to address the fact that offenses under section 2252A(g) 
are now covered by §2G2.6, while offenses under section 2252A(a) and (b) continue to be 
covered by §2G2.2. Third, it makes similar technical changes in §2G2.2, Application Note 1, to 
address this fact. Fourth, it makes a technical change in §2G2.3, Commentary, to address the fact 
that the statutory minimum sentence for a defendant convicted under 18 U.S.C. § 2251A is now 
30 years imprisonment. Fifth, it makes technical changes in §2G3.1, subsection (c)(1), to address 
the fact that §2G2.4 no longer exists, having been consolidated into §2G2.2 effective November 
1, 2004. Sixth, it makes a technical change in Appendix A (Statutory Index) to address the fact 
that the offenses that had been contained in subsections (c)(1)(A) and (c)(1)(B) of 18 U.S.C. § 
2251 are now contained in subsections (d)(1)(A) and (d)(1)(B) of that section. As a conforming 
change, it also provides the appropriate reference for the offense that is now contained in 

107 



subsection (c) of that section. Seventh, it makes a technical change in Appendix A (Statutory 
Index) to address the fact that offenses under section 2252A(g) are now covered by §2G2.6, while 
offenses under section 2252A(a) and (b) continue to be covered by §2G2.2. 

Proposed Amendment 

Part A (Technical Issues With Respect to References to Guidelines, Statutes, and Rules) 

The Commentary to §1B1.8 captioned "Application Notes" is amended in Note 3 by striking 
"(e)(6) (Inadmissibility of Pleas," and inserting "(f) (Admissibility or Inadmissibility of a Plea,". 

The Commentary to §2J1.1 captioned "Application Notes" is amended in Note 3 by striking "(7)" 
and inserting "(8)". 

The Commentary to §4B1.2 captioned "Application Notes" is amended in Note 1 in the paragraph 
that begins "Unlawfully possessing a listed" by striking "(d)" and inserting "(c)". 

The Commentary to §5C1.2 captioned "Application Notes" is amended in Note 8 by striking 
"(c)(1), (3)" and inserting "(f), (i)". 

The Commentary to §5D1.2 captioned "Background" is amended by striking "(b)" and inserting 
"(c)". 

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Appendix A (Statutory Index) is amended in the line referenced to 42 U.S.C. § 3611(f) by striking 
"(f)" and inserting "(c)". 

Part B (Technical Issues With Respect to Child Pornography Offenses) 

The Commentary to §2G2.1 captioned "Statutory Provisions" is amended by inserting "(a)-(c), 
2251(d)(1)(B)" after "2251". 

The Commentary to §2G2.2 captioned "Statutory Provisions" is amended by inserting "(a)-(b)" 
after "2252A". 

The Commentary to §2G2.2 captioned "Application Notes" is amended in Note 1 in the last 
paragraph by inserting "(a)-(c), § 2251(d)(1)(B)" after "2251". 

The Commentary to §2G2.3 captioned "Background" is amended by striking "twenty" and 
inserting "thirty". 

Section 2G3.1(c)(1) is amended by inserting "Soliciting," after "Shipping,"; by striking "Traffic) 
or §2G2.4 (Possession of Materials Depicting a Minor Engaged in Sexually Explicit Conduct), as 
appropriate." and inserting "Traffic; Possessing Material Involving the Sexual Exploitation of a 
Minor).". 

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Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. § 
2251(a),(b) the following: 

"18 U.S.C. § 2251(c) 2G2.2"; 

in the line referenced to 18 U.S.C. § 2251(c)(1)(A) by striking "(c)" and inserting "(d)"; 

in the line referenced to 18 U.S.C. § 2251(c)(1)(B) by striking "(c)" and inserting "(d)"; 

in the line referenced to 18 U.S.C. § 2252A by inserting "(a), (b)" after "2252A"; 

and by inserting before the line referenced to 18 U.S.C. § 2252B the following: 

"18 U.S.C. § 2252A(g) 2G2.6". 
[FR Doc. 2009-1642 Filed 01/26/2009 at 8:45 am; Publication Date: 01/27/2009] 


110