Posted by andreas from dtm2-t9-1.mcbone.net (62.104.210.98) on Friday, December 20, 2002 at 2:27PM :
[Federal Register: December 18, 2002 (Volume 67, Number 243)]
[Notices]
[Page 77532-77547]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18de02-157]
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UNITED STATES SENTENCING COMMISSION
Sentencing Guidelines for United States Courts
AGENCY: United States Sentencing Commission.
ACTION: Notice of proposed amendments to sentencing guidelines, policy
statements, and commentary. Request for public comment, including
public comment regarding retroactive application of any of the proposed
amendments.
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SUMMARY: Pursuant to section 994(a), (o), and (p) of title 28, United
States Code, the Commission is considering promulgating certain
amendments to the sentencing guidelines, policy statements, and
commentary. This notice sets forth the proposed amendments and, for
each proposed amendment, a synopsis of the issues addressed by that
amendment. Additional proposed amendments the Commission is considering
promulgating, as both temporary and permanent amendments, in response
to the Sarbanes-Oxley Act of 2002, Pub. L. 107-204, and the Bipartisan
Campaign Reform Act of 2002, Pub. L. 107-55, can be found in the
November 22, 2002, Federal Register (67 FR 70999).
The specific amendments proposed in this notice are as follows: (1)
A proposed amendment and issues for comment that respond to the Uniting
and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001, Pub. L.
107-56; the Public Health Security and Bioterrorism Preparedness and
Response Act of 2002, Pub. L. 107-188; and the Terrorist Bombings
Convention Implementation Act of 2002, Pub. L. 107-197; (2) a proposed
amendment that addresses various application issues in Sec. 2L1.2
(Unlawful Entering or Remaining in the United States); (3) a proposed
amendment and issue for comment that addresses a number of issues in
Sec. 5G1.3 (Imposition of a Sentence on a Defendant Subject to an
Undischarged Term of Imprisonment); (4) a proposed amendment that makes
technical and conforming changes to various guideline provisions; and
(5) a proposed amendment and issue for comment regarding appropriate
guideline penalties for offenses involving involuntary manslaughter.
In addition to the issues for comment that are contained within
these proposed amendments, this notice sets forth separate issues for
comment regarding the following: (1) Section 225 of the Homeland
Security Act of 2002 (the Cyber Security Enhancement Act of 2002), Pub.
L. 107-296, which directs the Commission to review and amend, if
appropriate, the sentencing guidelines and policy statements applicable
to persons convicted of an offense under section 1030 of title 18,
United States Code; and (2) sections 11008 and 11009 of the 21st
Century Department of Justice Appropriations Authorization Act, Pub. L.
107-273, which direct the Commission to review and amend the sentencing
guidelines, as appropriate, to provide an appropriate sentencing
enhancement for any crime of violence or drug trafficking crime in
which the defendant used body armor and an appropriate enhancement for
offenses involving influencing, assaulting, resisting, impeding,
retaliating against, or threatening a federal judge, magistrate judge,
or any other official described in section 111 or section 115 of title
18, United States Code.
DATES: Written public comment regarding (1) the amendments set forth in
this notice, including public comment regarding retroactive application
of any of these proposed amendments; and (2) the proposed
repromulgation of the proposed emergency amendments set forth in the
Federal Register on November 27, 2002 (67 FR 70999) as permanent, non-
emergency amendments, should be received by the Commission not later
than February 18, 2003.
ADDRESSES: Public comment should be sent to: United States Sentencing
Commission, One Columbus Circle, NE., Suite 2-500, Washington, DC
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)
[[Page 77533]]
and submits guideline amendments to the Congress not later than the
first day of May of each year pursuant to 28 U.S.C. 994(p).
The Commission seeks comment on the proposed amendments, issues for
comment, and any other aspect of the sentencing guidelines, policy
statements, and commentary.
The proposed amendments are presented in this notice in one of two
formats. First, some of the amendments are proposed as specific
revisions to a guideline or commentary. Bracketed text within a
proposed amendment indicates a heightened interest on the Commission's
part for comment and suggestions for alternative policy choices; for
example, a proposed enhancement of [2] levels indicates that the
Commission is considering, and invites comment on, alternative policy
choices regarding the appropriate level of enhancement. Similarly,
bracketed text within a specific offense characteristic or application
note means that the Commission specifically invites comment on whether
the proposed provision is appropriate. Second, the Commission has
highlighted certain issues for comment and invites suggestions on how
the Commission should respond to those issues.
Additional information pertaining to the proposed amendments
described in this notice may be accessed through the Commission's Web
site at www.ussc.gov.
Authority: 28 U.S.C. 994(a), (o), (p), (x); USSC rules of
practice and procedure, rule 4.4.
Diana E. Murphy,
Chair.
1. Terrorism
Synopsis of Proposed Amendment: This proposed amendment is a
continuation of the Commission's work over the past two years to ensure
that the guidelines provide appropriate guideline penalties for
offenses involving terrorism. Specifically, this proposed amendment
responds to the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA
PATRIOT Act) Act of 2001, Pub.L. 107-56; the Public Health Security and
Bioterrorism Preparedness and Response Act of 2002, Pub.L. 107-88; and
the Terrorist Bombings Convention Implementation Act of 2002, Pub.L.
107-97.
I. Remaining USA PATRIOT Act Amendments
The following amendments build on the Commission's response during
the last amendment cycle to the USA PATRIOT Act.
A. Terrorism Enhancement in Money Laundering Guideline
This amendment provides two options for treatment of the current 6-
level terrorism enhancement in the money laundering guideline, Sec.
2S1.1 (Laundering of Monetary Instruments; Engaging in Monetary
Transactions in Property Derived from Unlawful Activity). Option One
eliminates the terrorism enhancement. Elimination of the enhancement is
appropriate because it prevents ``double-counting'' with the terrorism
adjustment in Sec. 3A1.4 (Terrorism). Specifically, the money
laundering terrorism enhancement applies if the defendant knew or
believed that any of the laundered funds were the proceeds of, or were
intended to promote, an offense involving terrorism. The terrorism
adjustment at Sec. 3A1.4 applies if the offense is a felony that
involved, or was intended to promote, a federal crime of terrorism as
defined in 18 U.S.C. 2332b(g)(5). Therefore, if the money laundering
terrorism enhancement applied, the terrorism adjustment at Sec. 3A1.4
also would apply based on the same conduct.
In the event the Commission determines that the money laundering
terrorism adjustment should not be eliminated, Option Two provides a
definition of terrorism in the money laundering guideline that mirrors
the definition in Sec. 3A1.4.
Proposed Amendment (Part IA):
[Option One:
Section Sec. 2S1.1(b)(1)(B)(iii) is amended by striking
``terrorism,''.]
[Option Two:
The Commentary to Sec. 2S1.1 captioned ``Application Notes'' is
amended in Note 1 by inserting at the end the following new paragraph:
`` `Terrorism' means a federal crime of terrorism as defined in 18
U.S.C. 2332b(g)(5).''.]
B. Reference of 18 U.S.C. 1960 to Money Laundering Guideline
This amendment provides two options for the treatment of certain
offenses under 18 U.S.C. 1960. These offenses prohibit knowingly
conducting, controlling, managing, supervising, directing, or owning
all or part of an unlicensed money transmitting business, as defined in
18 U.S.C. 1960(b)(1)(C). That provision defines an unlicensed money
transmitting business as ``a money transmitting business which affects
interstate or foreign commerce in any manner or degree and otherwise
involves the transportation or transmission of funds that are known to
the defendant to have been derived from a criminal offense or are
intended to be used to promote or support unlawful activity.'' The
statutory maximum term of imprisonment is 5 years.
Option One changes the Statutory Index reference for these offenses
from Sec. 2S1.3 (Structuring Transactions to Evade Reporting
Requirements) to the main money laundering guideline, Sec. 2S1.1. This
change is appropriate for this offense because its essence is money
laundering rather than structuring to evade reporting requirements.
In contrast, other offenses under 18 U.S.C. 1960 would remain in
the structuring guideline under Option One because they are essentially
structuring offenses. Specifically, they prohibit knowingly conducting,
controlling, managing, supervising, directing, or owning all or part of
an unlicensed money transmitting business, as defined in 18 U.S.C.
1960(b)(1)(A) and (B). Those provisions define an unlicensed money
transmitting business as ``a money transmitting business which affects
interstate or foreign commerce in any manner or degree and (A) is
operated without an appropriate money transmitting license * * *; or
(B) fails to comply with the money transmitting business registration
requirements under section 5330 of title 31, United States Code, or
regulations prescribed under such section.''
Option Two maintains the initial Statutory Index reference for 18
U.S.C. 1960(b)(1)(C) offenses in the structuring guideline but provides
a cross reference to the main money laundering guideline for conduct
that falls under 18 U.S.C. 1960(b)(1)(C).
An issue for comment requests comment regarding whether the
proposed cross reference should be broadened so that any structuring
offense that involves the intent to promote unlawful activity,
knowledge or belief that the funds were the proceeds of unlawful
activity, or reckless disregard of the illicit source of the funds
would be cross referenced to main money laundering guideline, leaving
the structuring guideline to cover purely regulatory offenses.
Proposed Amendment (Part IB):
[Option One:
The Commentary to Sec. 2S1.1 captioned ``Statutory Provisions'' is
amended by inserting ``, 1960 (but only with respect to unlicensed
money transmitting businesses as defined in 18 U.S.C. 1960(b)(1)(C))''
after ``1957''.
[[Page 77534]]
The Commentary to Sec. 2S1.3 captioned ``Statutory Provisions'' is
amended by inserting ``(but only with respect to unlicensed money
transmitting businesses as defined in 18 U.S.C. 1960(b)(1)(A) and
(B))'' after ``1960''.
Appendix A (Statutory Index) is amended in the line referenced to
18 U.S.C. 1960 by inserting ``2S1.1,'' before ``2S1.3''.]
[Option Two:
Section 2S1.3(c) is amended by striking ``Reference'' and inserting
``References''; and by adding at the end the following:
``(2) If the offense involved (A) a money transmitting business;
and (B) the transportation or transmission of funds that are known to
the defendant to have been derived from a criminal offense or are
intended to be used to promote or support unlawful activity, apply
Sec. 2S1.1 (Laundering of Monetary Instruments; Engaging in Monetary
Transactions in Property Derived from Unlawful Activity).''.
The Commentary to Sec. 2S1.3 captioned ``Application Notes'' is
amended by adding at the end the following:
``4. Cross Reference in Subsection (c)(2).--For purposes of
subsection (c)(2), `money transmitting business' means a money
transmitting business that affects interstate or foreign commerce.
`Money transmitting' includes transferring funds on behalf of the
public by any means, including transfers within the United States or to
foreign locations by wire, check, draft, facsimile, or courier.''.]
Issue for Comment: The proposed amendment provides two options for
the treatment of offenses under 18 U.S.C. 1960(b)(1)(C). Option One
provides for a Statutory Index reference for these offenses to the main
money laundering guideline, Sec. 2S1.1, rather than the structuring
guideline, Sec. 2S1.3, because such an offense is essentially a money
laundering offense. Option Two references this offense to Sec. 2S1.3
in the first instance but provides a cross reference for this offense
from Sec. 2S1.3 to Sec. 2S1.1.
The Commission requests comment regarding whether the proposed
cross reference to Sec. 2S1.1 in Option Two should be expanded to
cover any offense initially referenced to Sec. 2S1.3 in the Statutory
Index that involved the intent to promote unlawful activity, knowledge
or belief that the funds were the proceeds of unlawful activity, or
reckless disregard of the illicit source of the funds. Such an approach
effectively would limit the application of Sec. 2S1.3 to regulatory
offenses (such as the failure to file transaction reports or
structuring transactions to evade reporting requirements) unaccompanied
by aggravated, real offense money laundering conduct. To effectuate
such cross reference, Sec. 2S1.3 would likely need to be amended as
follows: First, the base offense level of 8 in subsection (a)(1) would
be maintained for offenses under 31 U.S.C. 5318 and 5318A, but the
alternative base offense level in subsection (a)(2) would be amended to
level 6 without any increase from the loss table in Sec. 2B1.1. An
alternative base offense level of level 6 for a regulatory offense
unaccompanied by aggravated conduct is proportionate to other
regulatory offenses under the guidelines. Second, the aggravated
conduct described in Sec. 2S1.3(b)(1) and the aggravated conduct the
absence of which is described in Sec. 2S1.3(b)(3) would form the basis
for the new cross reference. Accordingly, the cross reference to the
main money laundering guideline would apply if: (1) The defendant knew
or believed that the funds were the proceeds of unlawful activity or
were intended to promote unlawful activity; [(2) the offense involved
bulk cash smuggling;] or (3) the defendant acted with reckless
disregard for the illegal source of the funds. The major possible
effects of cross referencing offenses involving real offense money
laundering conduct to the money laundering guideline are application of
the six-level enhancement in Sec. 2S1.1(b)(1) if the defendant knew or
believed that the funds were the proceeds of or were intended to
promote certain specified crimes, and application of the enhancement in
Sec. 2S1.1(b)(3) for sophisticated laundering.
C. Enhancement in Accessory After the Fact Guideline for Harboring
Terrorists
Currently in Sec. 2X3.1 (Accessory After the Fact) there exists an
offense level ``cap'' of level 20 for offenses in which the conduct is
limited to harboring a fugitive (and an offense level ``cap'' of level
30 for all other offenses sentenced under the accessory guideline).
This proposed amendment makes the lower offense level ``cap'' of level
20 inapplicable to offenses involving the harboring of terrorists
because of the relative seriousness of those offenses.
Last year, the Commission promulgated an amendment that referenced
18 U.S.C. 2339 and 2339A to 2X2.1 (Aiding and Abetting) and 2X3.1
(Accessory After the Fact). The offense at 18 U.S.C. 2339 prohibits
harboring or concealing any person who the defendant knows, or has
reasonable grounds to believe, has committed or is about to commit one
of several enumerated offenses. The maximum term of imprisonment is 10
years. The offense at 18 U.S.C. 2339A prohibits the provision of
material support or resources to terrorists, knowing or intending that
they will be used in the preparation for, or in carrying out, specified
crimes (i.e., those designated as predicate offenses for ``federal
crimes of terrorism'') or in preparation for, or in carrying out, the
concealment or an escape from the commission of any such violation. The
maximum term of imprisonment is 15 years. In contrast, a violation of
the general harboring statute, 18 U.S.C. 1071, has a maximum term of
imprisonment of 5 years.
For consistency and proportionality, the proposed amendment not
only makes the ``cap'' of level 20 inapplicable to harboring a person
who is convicted under 18 U.S.C. 2339 or 2339A but also to the conduct
of harboring an individual who commits a terrorism offense, i.e., one
of the offenses listed in 18 U.S.C. 2339 or 2339A or an offense
involving or intending to promote a federal crime of terrorism, as
defined in 18 U.S.C. 2332b(g)(5).
Proposed Amendment (Part IC):
Section 2X3.1 is amended by striking subsection (a) and inserting
the following:
``(a) Base Offense Level:
(1) Six levels lower than the offense level for the underlying
offense, except as provided in subdivisions (2) and (3).
(2) The base offense level under this guideline shall be not less
than level 4.
(3)(A) The base offense level under this guideline shall be not
more than level 30, except as provided in subdivision (B).
(B) In any case in which the conduct is limited to harboring a
fugitive, other than a case described in subdivision (C), the base
offense level under this guideline shall not be more than level 20.
(C) The limitation in subdivision (B) shall not apply in any case
in which (i) the defendant is convicted under 18 U.S.C. 2339 or 2339A;
or (ii) the conduct involved (I) harboring a person who committed any
offense listed in 18 U.S.C. 2339 or 2339A or who committed any offense
involving or intending to promote a federal crime of terrorism, as
defined in 18 U.S.C. 2332b(g)(5); or (II) obstructing the investigation
of, or committing perjury with respect to, any offense described in
subdivision (I). In such a case, the base offense level under this
guideline shall be not more than level 30, as provided in subdivision
(A).''.
[[Page 77535]]
II. Amendments Required by the Public Health Security and Bioterrorism
Preparedness and Response Act of 2002
The following amendments to the guidelines are proposed in response
to the Public Health Security and Bioterrorism Preparedness and
Response Act of 2002, Pub. L. 107-188.
A. Biological AGents and Toxins
First, the proposed amendment amends the Statutory Index to refer
new offenses involving biological agents and toxins to the guideline
covering nuclear, biological, and chemical weapons and materials, Sec.
2M6.1. Specifically, the Public Health Security and Bioterrorism
Preparedness and Response Act of 2002 amends 18 U.S.C. 175b to
redesignate the existing offense and create new offenses as follows:
(1) The existing offense, redesignated at 18 U.S.C. 175b(a)(1),
prohibits any restricted person (as defined in subsection (b)) from
transporting, receiving, or possessing any biological agent or toxin
that the Secretary of Health and Human Services has listed under
regulations as a ``select agent''. The maximum term of imprisonment is
10 years. During the last amendment cycle, the Commission referred this
offense to Sec. 2M6.1 and provided an alternative base offense level
of level 22.
(2) Two new offenses, at 18 U.S.C. 175b(b)(1) and (2), prohibit a
person from transferring a select agent listed in regulations by the
Secretary of Health and Human Services, or a biological agent or toxin
listed in regulations by the Secretary of Agriculture as posing a
severe threat to animal or plant health or products, to any person the
transferor knows or has reason to believe is not registered to receive
or possess such agent or toxin, as required under regulations
prescribed by the pertinent Secretary. The maximum term of imprisonment
is 5 years.
(3) Two new offenses, at 18 U.S.C. 175b(c)(1) and (2), prohibit any
person from knowingly possessing a select agent listed in regulations
by the Secretary of Health and Human Services, or a biological agent or
toxin listed in regulations by the Secretary of Agriculture as posing a
severe threat to animal or plant health or products, if that person has
not registered to receive or possess such agent or toxin, as required
under regulations prescribed by the pertinent Secretary. The maximum
term of imprisonment is 5 years.
Like the existing offense at 18 U.S.C. 175b(a)(1), reference of the
new offenses to Sec. 2M6.1 is appropriate. (An amendment to the
statutory index is not necessary because there already exists a
reference to Sec. 2M6.1 for section 175b offenses.)
Second, the proposed amendment provides for a base offense level of
level 22 for the new offenses involving transfer to, or possession of,
select biological agents by unregistered persons. This proposed base
offense level is the same as the existing base offense level for
offenses involving transfer to, or possession of, select biological
agents by restricted persons. The proposed amendment exempts these
offenses from application of Sec. 2M6.1(b)(1), which provides a two
level enhancement for offenses involving select agents, because that
factor is incorporated into the proposed base offense levels.
Third, in response to Act, the proposed amendment makes two
modifications to the definition of ``select biological agent'' in Sec.
2M6.1. That definition exists in the guideline for purposes of the two
level enhancement in Sec. 2M6.1(b)(1) for offenses that involved such
an agent. First, in response to section 212 of the Public Health
Security and Bioterrorism Preparedness and Response Act of 2002, the
amendment proposes to expand the definition of ``select biological
agent'' to include biological agents and toxins the Secretary of
Agriculture has determined pose a severe threat to animal and plant
health and products. Second, section 201 of the Act codified a number
of provisions of the Antiterrorism and Effective Death Penalty Act of
1996 in the Public Health Service Act. This codification necessitates a
conforming amendment to the definition of ``select agent'' in
Application Note 1 of Sec. 2M6.1.
Proposed Amendment (Part IIA)
Section 2M6.1(a)(2) is amended by inserting ``and'' after
``(a)(3),''; and by striking ``, and (a)(5)''.
Section 2M6.1(a)(3) is amended by inserting ``or'' after the
semicolon.
Section 2M6.1(a)(4) is amended by inserting ``(A)'' after ``if'';
and by inserting ``(B) the offense (i) involved a threat to use a
nuclear weapon, nuclear material, or nuclear byproduct material, a
chemical weapon, a biological agent, toxin, or delivery system, or a
weapon of mass destruction; but (ii) did not involve any conduct
evidencing an intent or ability to carry out the threat.'' after
``or''.
Section 2M6.1(a) is amended by striking subdivision (5).
Section 2M6.1(b)(1) is amended by striking the comma after
``(a)(2)'' and inserting ``or''; and by striking ``, or (a)(5)''.
Section 2M6.1(b)(2) is amended by inserting ``(A)'' after
``(a)(4)''.
Section 2M6.1(b)(3) is amended by inserting ``or'' after
``(a)(3),'' and by striking ``, or (a)(5)''.
The Commentary to Sec. 2M6.1 captioned ``Application Notes'' is
amended in Note 1 in the paragraph that begins ``Select biological
agent'' by inserting ``(A)'' after ``identified''; by inserting ``and
maintained'' after ``established''; and by striking ``511(d) of the
Antiterrorism and Effective Death Penalty Act, Pub. L. 104-132. See 42
CFR part 72'' and inserting ``351A of the Public Health Service Act (42
U.S.C. 262a); or (B) by the Secretary of Agriculture on the list
established and maintained pursuant to section 212 of the Agricultural
Bioterrorism Protection Act of 2002 (7 U.S.C. 8401)''.
The Commentary to Sec. 2M6.1 captioned ``Application Notes'' is
amended in Note 2 by striking ``(a)(3)'' each place it appears and
inserting ``(a)(4)(B)''.
B. Safe Drinking Water Provisions
This proposed amendment responds to amendments to the Safe Drinking
Water Act made by section 403 of the Public Health Security and
Bioterrorism Preparedness and Response of 2002. Section 1432(a) of the
Safe Drinking Water Act (42 U.S.C. 300i-1(a)) prohibits any person from
tampering with a public water system. The statutory maximum penalty was
increased from 5 years imprisonment to 20 years imprisonment. This
offense is the only offense referenced to Sec. 2Q1.4 (Tampering or
Attempted Tampering with Public Water System). Section 1432(b) of such
Act (42 U.S.C. 300i-1(b)) prohibits anyone from attempting or
threatening to tamper with a public water system. The statutory maximum
penalty was increased from 3 years imprisonment to 10 years
imprisonment. This offense is the only offense referenced to Sec.
2Q1.5 (Threatened Tampering with Public Water System). For purposes of
both offenses, ``tamper'' means ``to introduce a contaminant into a
public water system with the intention of harming persons'' or ``to
otherwise interfere with the operation of a public water system with
the intention of harming persons''.
First, the amendment proposes to consolidate the guidelines
covering tampering with consumer products, Sec. 2N1.1, and tampering
with a public water system, Sec. 2Q1.4, and to consolidate the
guidelines covering threatened tampering with consumer products, Sec.
2N1.2, and threatened tampering with a public water system, Sec.
2Q1.5. Consolidation is proposed
[[Page 77536]]
because of the infrequency of occurrence of these offenses and because
these guidelines cover very similar conduct; accordingly, the treatment
of these offenses under the same guideline would promote
proportionality in punishment. The substantive changes resulting from
the proposed consolidation would include (1) increased base offense
levels for public water system offenses, as discussed in the following
paragraph; (2) application to consumer product cases of an existing
enhancement in the public water system guidelines if the offense
involved substantial disruption of governmental functions or
substantial expenditure of funds to respond to the offense; (3)
elimination of the existing enhancement in the public water system
guideline for ongoing, continuous, or repetitive release of a
contaminant into the water supply (elimination is proposed because of
definitional difficulties); (4) replacement of the existing enhancement
in the public water system guideline if the purpose of the offense was
to influence government action or to extort money with an application
note inviting an upward departure if a terrorist motive was present and
a cross reference to the extortion guideline if the offense involved
extortion; and (5) application to public water system offenses of an
existing cross reference in the consumer products guideline to the
murder guidelines if death resulted. Conforming changes are made to the
Statutory Index.
An issue for comment follows regarding whether the proposed
consolidations also should effectuate a consolidation of the tampering
guidelines with the threatened tampering guidelines, similar to the
manner in which offenses involving threats to use nuclear, biological,
or chemical weapons are subsumed within the nuclear, biological and
chemical guideline, Sec. 2M6.1.
Second, the amendment proposes to increase the base offense level
for offenses involving tampering and threatened tampering with a public
water system. Under the proposed consolidation, the base offense level
for tampering with a public water system would increase from level 18
to level 25, and the six level enhancement for the risk of death or
serious bodily injury would be eliminated and replaced with a graduated
enhancement for actual bodily injury. Likewise, the base offense level
for threatening to tamper with a public water system is proposed to
increase from level 10 to level 16. For point of comparison, the
existing base offense level for threatening communications under Sec.
2A6.1 is level 12 and for threatened use of nuclear, biological, and
chemical weapons under Sec. 2M6.1 is level 20. These substantial
increases in the base offense levels are proposed to ensure
proportionality with similar offenses and to respond to the increased
statutory maximum penalties made by section 403 of the Public Health
Security and Bioterrorism Preparedness and Response of 2002.
Third, the amendment proposes to provide an application note in the
consolidated guideline that an upward departure (as provided in
Application Note 4 of the terrorism adjustment in Sec. 3A1.4
(Terrorism)) may be warranted if the tampering or threatened tampering
was accompanied by a terrorist motive. The amendments to the Safe
Drinking Water Act made by the Public Health Security and Bioterrorism
Preparedness and Response of 2002 contemplated that terrorism may be
the motive behind tampering with the public water supply. Section 1431
of the Safe Drinking Water Act (42 U.S.C. 300i-1) was amended to expand
the authority of the Administrator of the Environmental Protection
Agency to take emergency action to protect the public health if the
Administrator determines that ``there is a threatened or potential
terrorist attack or other intentional act designed to disrupt the
provision of safe drinking water or to impact adversely the safety of
drinking water supplied to communities and individuals, which may
present an imminent and substantial endangerment'' to the public
health. Terrorist motives similarly may be present in offenses
involving tampering with consumer products.
One other criminal provision was added by the Act, but it may be
appropriate not to list this provision in the Statutory Index at this
time. Section 401 of the Public Health Security and Bioterrorism
Preparedness and Response of 2002 added section 1433 to the Safe
Drinking Water Act. This provision requires local communities to
conduct assessments of the vulnerability of their public water systems
to terrorist and other intentional acts. Section 1433(a)(6) of the Safe
Drinking Water Act (42 U.S.C. 300i-2(a)(6)) provides that any person
who acquires information from this assessment and knowingly or
recklessly reveals such information to a person other than to specified
persons authorized to receive such information shall be imprisoned for
not more than one year and/or fined in accordance with the fines
applicable to Class A misdemeanors. This provision does not provide a
neat fit within the guidelines. Most of the environmental regulatory
guidelines cover the failure to report information or the falsification
of information, rather than the reckless disclosure of information.
Rather than provide a Statutory Index reference at this point, it may
be best to assess over the next few years the frequency of prosecution
of this offense and what conduct typically occurs in connection with
the offense.
Proposed Amendment (Part IIB)
Chapter two, part N is amended in the heading by inserting ``Public
Water Systems,'' after ``Involving''.
Chapter two, part N, subpart 1 is amended in the heading by
inserting ``Or Public Water Systems'' after ``Products''.
Section 2N1.1 is amended in the heading by inserting ``with
Consumer
Products'' after ``Tampering''; by inserting ``with Consumer
Products'' after ``Tamper''; and by adding ``; Tampering or Attempting
to Tamper with a Public Water System'' after ``Injury''.
Section 2N1.1(b) is amended by striking ``Characteristic'' and
inserting ``Characteristics''; and by adding at the end the following:
``(2) If the offense resulted in (A) substantial disruption of
public, governmental, or business functions or services; or (B) a
substantial expenditure of funds to clean up, decontaminate, or
otherwise respond to the offense, increase by 4 levels.''.
The Commentary to Sec. 2N1.1 captioned ``Statutory Provisions'' is
amended by inserting ``; 42 U.S.C. 300i-1'' after ``(e)''.
The Commentary to Sec. 2N1.1 captioned ``Application Notes'' is
amended by striking Notes 1 and 2 and inserting the following:
``1. Application of Special Instruction.--Subsection (d) applies in
any case in which the defendant is convicted of a single count
involving (A) the death or permanent, life-threatening, or serious
bodily injury of more than one victim; or (B) conduct tantamount to the
attempted murder of more than one victim, regardless of whether the
offense level is determined under this guideline or under another
guideline in Chapter Two (Offense Conduct) by use of a cross reference
under subsection (c).
2. Departure Provisions.--
(A) Downward Departure Provision.--The base offense level reflects
that offenses covered by this guideline typically pose a risk of death
or serious bodily injury to one or more victims; or cause, or are
intended to cause, bodily injury. In the unusual case in which the
offense did not cause a risk of death or serious bodily injury, and
neither
[[Page 77537]]
caused nor was intended to cause bodily injury, a downward departure
may be warranted.
(B) Upward Departure Provisions.--If the offense posed a
substantial risk of death or serious bodily injury to numerous victims,
caused extreme psychological injury, or caused substantial property
damage or monetary loss, an upward departure may be warranted.
If the offense was calculated to influence or affect the conduct of
government by intimidation or coercion, or to retaliate against
government conduct, an upward departure may be warranted. See
Application Note 4 of Sec. 3A1.4 (Terrorism).''.
Section 2N1.2 is amended in the heading by adding at the end ``;
Threatening to Tamper with a Public Water System''.
Section 2N1.2 is amended by redesignating subsection (b) as
subsection (c); and by inserting after subsection (a) the following:
``(b) Specific Offense Characteristic
(1) If the offense resulted in (A) substantial disruption of
public, governmental, or business functions or services; or (B) a
substantial expenditure of funds to clean up, decontaminate, or
otherwise respond to the offense, increase by 4 levels.''.
The Commentary to Sec. 2N1.2 captioned ``Statutory Provisions'' is
amended by inserting ``; 42 U.S.C. 300i-1'' after ``(d)''.
The Commentary to Sec. 2N1.2 captioned ``Application Note'' is
amended in Note 1 by inserting ``Upward Departure Provisions.--''
before ``If''; and by adding at the end the following paragraph:
``If the offense was calculated to influence or affect the conduct
of government by intimidation or coercion, or to retaliate against
government conduct, an upward departure may be warranted. See
Application Note 4 of Sec. 3A1.4 (Terrorism).''.
Chapter two, part Q is amended by striking Sec. Sec. 2Q1.4 and
2Q1.5 in their entirety.
Appendix A (Statutory Index) is amended in the line referenced to
42 U.S.C. 300i-1 by striking ``2Q1.4, 2Q1.5'' and inserting ``2N1.1,
2N1.2''.
Issue for Comment: For the reasons stated in the foregoing
synopsis, this amendment proposes to consolidate the guidelines
covering tampering with consumer products, Sec. 2N1.1, and tampering
with a public water system, Sec. 2Q1.4, and to consolidate the
guidelines covering threatened tampering with consumer products, Sec.
2N1.2, and threatened tampering with a public water system, Sec.
2Q1.5. The Commission requests comment regarding whether the Commission
should effectuate the consolidation of these four guidelines into one
guideline covering both tampering and threatened tampering cases. Such
an approach would be consistent with the guideline covering nuclear,
biological, and chemical weapons and materials, Sec. 2M61, which
covers both offenses involving such weapons and materials as well as
offenses involving the threatened use of such weapons and materials.
C. Animal Enterprise Terrorism
This proposed amendment adds an invited upward departure provision
in the fraud, theft, and property destruction guideline, Sec. 2B1.1,
to account for aggravating conduct that may occur in connection with an
animal enterprise offense under 18 U.S.C. 43.
Specifically, section 336 of the Public Health Security and
Bioterrorism Preparedness and Response Act of 2002 increased the
penalty provisions of 18 U.S.C. 43, which makes it an offense to travel
in interstate or foreign commerce, or to use or cause to be used the
mail or any facility in interstate or foreign commerce for the purpose
of causing physical disruption to the functioning of an animal
enterprise, and to intentionally damage or cause the loss of any
property (including animals and records) used by the animal enterprise,
or to conspire to do so.
Before amendment by the Act, the penalty structure was (1) not more
than one year imprisonment for causing economic damage exceeding
$10,000; (2) not more than 10 years' imprisonment for causing serious
bodily injury in the course of such an offense; and (3) life or any
term of years of imprisonment if death resulted. As a result of the
Act, the penalty structure now is (1) not more than 6 months
imprisonment for causing economic damage not exceeding $10,000 (18
U.S.C. 43(b)(1)); (2) not more than 3 years' imprisonment for causing
economic damage exceeding $10,000 (18 U.S.C. 43(b)(2)); (3) not more
than 20 years' imprisonment for causing serious bodily injury in the
course of such an offense (18 U.S.C. 43(b)(3)); and (4) life or any
term of years of imprisonment if death resulted (18 U.S.C. 43(b)(4)).
This offense currently is referenced only to Sec. 2B1.1. While
reference only to that guideline generally continues to be appropriate
for violations under 18 U.S.C. 43, that guideline fails to account for
aggravated situations in which serious bodily injury or death results.
Although the property damage guideline contains an enhancement for the
risk of serious bodily injury or death, there is no enhancement or
cross reference in that guideline that would provide a higher offense
level if actual serious bodily injury or death resulted. Given the
highly unusual occurrence of death or serious bodily injury in property
damage cases generally and the infrequency of these specific offenses,
the proposed amendment adds an invited upward departure provision in
Application Note 15(A)(ii) of Sec. 2B1.1 if death or serious bodily
injury occurs in an offense under 18 U.S.C. 43, or if substantial or
significant scientific information or research is lost as part of such
an offense.
Proposed Amendment (Part IIC)
The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is
amended in subdivision (A)(ii) of Note 15 by adding at the end the
following:
``An upward departure would be warranted, for example, in a case
involving animal enterprise terrorism under 18 U.S.C. 43, if, in the
course of the offense, serious bodily injury or death resulted, or
substantial scientific research or information were destroyed.''.
III. Amendments Required by the Terrorist Bombings
Convention Implementation Act of 2002
The proposed amendment amends the Statutory Index (and the
Statutory Provisions of the pertinent chapter two guidelines) to add
three new offenses created by the Terrorist Bombings Convention
Implementation Act of 2002, Pub. L. 107-197, and provides conforming
amendments within a number of chapter two guidelines to more fully
incorporate the new offenses into the offense guidelines.
First, section 102 of the Act created a new offense at 18 U.S.C.
2332f, which provides in subsection (a) that ``whoever unlawfully
delivers, places, discharges, or detonates an explosive or other lethal
device in, into, or against a place of public use, a state or
government facility, a public transportation system, or an
infrastructure facility (A) with the intent to cause death or serious
bodily injury, or (B) with the intent to cause extensive destruction of
such a place, facility, or system, where such destruction results in or
is likely to result in major economic loss'' and in subsection (b) that
``whoever attempts or conspires to commit [such] an offense'' shall be
punished as provided under 18 U.S.C. 2332a(a). Section 2332a offenses
currently are referenced to Sec. Sec. 2K1.4 (the arson and property
damage by use of explosives guideline) and 2M6.1 (the
[[Page 77538]]
guideline covering nuclear, biological, and chemical weapons). The
proposed amendment refers this new offense to those guidelines as well.
In addition, the proposed amendment amends the alternative base offense
levels in the arson guideline Sec. 2K1.4(a)(1) so that the base
offense level of level 24 applies to targets of 18 U.S.C. 2332f
offenses, namely, state or government facilities, infrastructure
facilities, public transportation systems and ``places of public use''.
Second, section 202 of the Act created a new offense at 18 U.S.C.
2339C, which provides in subsection (a)(1) that ``whoever, in a
circumstance described in subsection (c) (i.e., in the United States or
outside of the United States by a national of the United States or an
entity organized under the laws of the United States), by any means
directly or indirectly, unlawfully and willfully provides or collects
funds, with the intention that such funds be used, or with the
knowledge that such funds are to be used, in full or in part, in order
to carry out (A) an act which constitutes an offense, within the scope
of certain international treaties, as implemented by the United States,
or (B) any other act intended to cause death or serious bodily injury
to a civilian, or to any person not taking an active part in the
hostilities in a situation of armed conflict, when the purpose of such
act, by its nature or context, is to intimidate a population, or to
compel a government or an international organization to do or abstain
from doing an act'', and in subsection (b) that whoever attempts or
conspires to commit such an offense, shall be punished for a maximum
term of imprisonment of 20 years.
The proposed amendment refers the new offense at 18 U.S.C.
2339C(1)(A) to 2X2.1 (Aiding and Abetting). The new offense involves
providing or collecting funds knowing or intending that the funds would
be used to carry out any of a number of specified offenses.
Accordingly, the proposed amendment treats these offenses in the same
manner as 18 U.S.C. 2339A offenses, which aid and abet a predicate
offense listed in the statute. An amendment is proposed to be made in
Sec. 2X2.1 to conform the definition of the ``underlying offense''
that is aided and abetted.
The proposed amendment refers the new offense at 18 U.S.C.
2339C(a)(1)(B) to 2M5.3 (Providing Material Support or Resources to
Designated Foreign Terrorist Organizations). Reference to Sec. 2M5.3
is appropriate because this offense involves generally providing or
collecting funds knowing or intending that the funds would be used to
carry out not a specified offense but rather an act which by its nature
is a terrorist act (because it is meant to intimidate a civilian
population or to compel a government or international organization to
do something or to refrain from doing something). Therefore, the
essence of the offense is the provision of material support to
terrorists, which is appropriately referenced to Sec. 2M5.3. The
proposed amendment expands Sec. 2M5.3 to include not only designated
foreign terrorist organizations but other terrorists as well.
Third, 18 U.S.C. 2339C(c)(2) makes it unlawful in the United
States, or outside the United States by a national of the United States
or an entity organized under the laws of the United States, to
knowingly conceal or disguise the nature, location, source, ownership,
or control of any material support, resources, or funds knowing or
intending that they were: (A) Provided in violation of 18 U.S.C. 2339B,
or (B) provided or collected in violation of 18 U.S.C. 2339C(a)(1) or
(2). The maximum term of imprisonment for a violation of subsection 18
U.S.C. 2339C(c) is 10 years.
The proposed amendment references offenses under 18 U.S.C.
2339C(c)(2)(A) to 2X3.1 (Accessory After the Fact), since the essence
of such an offense is the concealment of resources that were known or
intended to have been provided in violation of another substantive
offense, namely, 18 U.S.C. 2339B. An amendment is proposed to be made
in Sec. 2X3.1 to conform the definition of the ``underlying offense''
to which the defendant is an accessory.
The proposed amendment references offenses under 18 U.S.C.
2339C(c)(2)(B) to 2M5.3 and 2X3.1. To the extent the offense involved
knowingly concealing or disguising the nature, location, source,
ownership, or control of any material support, resources, or funds
knowing or intending that they were provided or collected in violation
of 18 U.S.C. 2339C(a)(1), the offense should be sentenced under 2X3.1.
This is because the concealment occurs with respect to material support
the defendant knows is to be used, in full or in part, in order to
carry out an act which constitutes any number of specified offenses. To
the extent the offense involved knowingly concealing or disguising the
nature, location, source, ownership, or control of any material
support, resources, or funds knowing or intending that they were
provided or collected in violation of 18 U.S.C. 2339C(a)(2), the
offense should be sentenced under 2M5.3. This is because the
concealment occurs with respect to material support the defendant knows
is to be used, in full or in part, in order to carry out not a
specified offense but rather an act which by its nature is a terrorist
act (because it is meant to intimidate a civilian population or to
compel a government or international organization to do something or to
refrain from doing something). A conforming amendment is proposed to be
added to the Statutory Provisions of Sec. Sec. 2M5.3 and 2X3.1.
Proposed Amendment (Part III)
Section 2K1.4(a)(1)(B) is amended by striking ``or a ferry'' and
inserting ``a ferry, a public transportation system, a state or
government facility, an infrastructure facility, or a place of public
use''.
Section 2K1.4(a) is amended by striking subdivision (2) and
inserting the following:
``(2) 20, if the offense (A) created a substantial risk of death or
serious bodily injury to any person other than a participant in the
offense; (B) involved the destruction or attempted destruction of a
structure other than (i) a dwelling, or (ii) an airport, an aircraft, a
mass transportation facility, a mass transportation vehicle, a ferry, a
public transportation system, a state or government facility, an
infrastructure facility, or a place of public use; or (C) endangered
(i) a dwelling, (ii) a structure other than a dwelling, or (iii) an
airport, an aircraft, a mass transportation facility, a mass
transportation vehicle, a ferry, a public transportation system, a
state or government facility, an infrastructure facility, or a place of
public use; or''.
The Commentary to Sec. 2K1.4 captioned ``Statutory Provisions'' is
amended by inserting ``, 2332f'' after ``2332a''.
The Commentary to Sec. 2K1.4 captioned ``Application Notes'' is
amended in Note
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