SENTENCING GUIDELINES FOR UNITED STATES COURTS
AGENCY: United States Sentencing Commission
ACTION: Request for Public Comment.
SUMMARY: Pursuant to its authority under 28 U.S.C. § 994(o) and (p), and the "emergency authority" in section 6(d) of the Telemarketing Fraud Prevention Act of 1998, Pub. L. 105-184 (the "Act"), the Commission requests comment on several issues pertaining to the directive contained in the Act. Specifically, the Commission seeks comment on how the Act's directive, to substantially increase the penalties for persons convicted of offenses described in 18 U.S.C.
§ 2326 in connection with the conduct of telemarketing fraud, interacts with the mass-marketing and sophisticated concealment amendments submitted to Congress by the Commission on May 1, 1998. (These amendments were published in the Federal Register of May 21, 1998 (63 FR 28203-04)).
DATES: Written public comment should be submitted to the Commission not later than September 10, 1998. The emergency authority provision of the Act requires the Commission to promulgate any necessary amendments and submit them to Congress not later than October 21, 1998.
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) 273-4590.
Authority: 28 U.S.C. § 994 (a), (o), (p), (x); section 6(d) of Pub. L. 105-184.
Richard P. Conaboy,
Issues for Comment--Telemarketing Fraud:
During the 1997-98 amendment cycle, the Commission examined the characteristics of telemarketing fraud offenses, the statutory enhancement for telemarketing fraud in 18 U.S.C.
§ 2326, and whether the current enhancements in §2F1.1 (Fraud), §3A1.1 (Hate Crime Motivation or Vulnerable Victim), and the departure policy statements in §5K2.0-§5K2.18 provide adequate punishment for persons convicted of telemarketing fraud offenses. The Commission published issues for comment relating to this review in January, 1998. See 63 Fed. Reg. 625-26 (January 6, 1998). Following this review, the Commission, on May 1, 1998, submitted to Congress an amendment that increases by two offense levels (approximately 25 percent) the penalties for fraud offenses that are committed through mass-marketing, including telemarketing fraud offenses (the "mass-marketing" amendment). See 63 Fed. Reg. 28203-04 (May 21, 1998). That amendment also provided a two-level increase and a "floor" offense level of level 12 for fraud offenses that involve conduct, such as sophisticated concealment, that makes it difficult for law enforcement authorities to discover the offense or apprehend the offenders (the "sophisticated concealment" amendment). These amendments are slated to take effect on November 1, 1998, absent any disapproval legislation enacted by Congress.
Subsequently, on June 23, 1998, Congress enacted the Telemarketing Fraud Prevention Act of 1998 (105 Pub. L. 184; 112 Stat. 520) (the "Act"), which directs the Commission, under emergency amendment authority, "to provide for substantially increased penalties for persons convicted of offenses described in [18 U.S.C. § 2326]...in connection with the conduct of telemarketing." In carrying out this directive, the Commission is required, among other things, to "(1) ensure that the guidelines and policy statements promulgated pursuant to [the directive]...reflect the serious nature of [telemarketing] offenses; (2) provide an additional appropriate sentencing enhancement, if the offense involved sophisticated means, including but not limited to sophisticated concealment efforts, such as perpetrating the offense from outside the United States; [and] (3) provide an additional appropriate sentencing enhancement for cases in which a large number of vulnerable victims, including but not limited to victims described in [18 U.S.C. § 2326(2) (victims over the age of 55)], are affected by a fraudulent scheme or schemes."
With this as background, the Commission invites comment on the issues that follow relating to: (1) how the Commission should respond to the directive in the Act; and (2) the interaction of this directive and the Commission's mass-marketing and sophisticated concealment amendments submitted to Congress on May 1, 1998.
1. Do the recently adopted mass-marketing and sophisticated concealment amendments adequately address the congressional directive to provide for "substantially increased penalties for persons convicted of offenses described in [18 U.S.C. § 2326]...in connection with the conduct of telemarketing"? If not, how should the Commission modify the recent amendments or otherwise amend the guidelines to satisfy the directive? If an enhancement of greater magnitude is necessary, by how many offense levels should the sentence for such offenders be increased? Alternatively, are there additional factors that the Commission should address, either by specific offense characteristics, guideline commentary, or departure provisions, to provide appropriate punishment for telemarketing offenses?
2. The mass-marketing amendment is intended to apply to persons who engage in a plan to victimize a large number of persons through a fraudulent telemarketing scheme. Does this amendment adequately address the directive "to provide an additional appropriate sentencing enhancement for cases in which a large number of vulnerable victims, including but not limited to victims described in [18 U.S.C. § 2326(2) (victims over the age of 55)], are affected by a fraudulent scheme or schemes"? What is the meaning of the term "large number" (in that part of the directive that refers to a large number of vulnerable victims)? Does application of this new enhancement, in conjunction with other guideline provisions, such as the enhancement for more than one victim (§2F1.1(b)(2)) and the vulnerable victim adjustment (§3A1.1), comply with the directive? If not, what amendment or amendments would satisfy the directive?
3. Does the sophisticated concealment amendment adequately address the directive "to provide an additional appropriate sentencing enhancement, if the offense involved sophisticated means, including but not limited to sophisticated concealment efforts, such as perpetrating the offense from outside the United States"? If not, what amendment or amendments would satisfy the directive?
4. Are there other provisions contained in the directive, not specifically addressed in this issue for comment, that require the Commission to amend the guidelines?
5. If additional guideline amendments are required to satisfy the congressional directive, how should those amendments be coordinated with general increases in fraud penalties (e.g., increases in the loss table) that the Commission may consider at some future date in order to ensure consistent and proportional sentencing for similar types of fraud offenses?