PART ONE- REPORT TO CONGRESS:

ANALYSIS OF PENALTIES FOR FEDERAL RAPE CASES

I. INTRODUCTION

A. The Statutory Directive

Section 40112 of the Violent Crime Control and Law Enforcement Act of 1994 directs the United States Sentencing Commission to submit a report to Congress "containing an analysis of federal rape sentencing, accompanied by comment from independent experts in the field, describing

(1) comparative Federal sentences for cases in which the rape victim is known to the defendant and cases in which the rape victim is not known to the defendant;

(2) comparative Federal sentences for cases on Federal territory and sentences in surrounding states; and

(3) an analysis of the effect of rape sentences on populations residing on Federal territory relative to the impact of other Federal offenses in which the existence of Federal jurisdiction depends upon the offense's being committed on Federal territory." 1Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 40112, 108 Stat. 1796, 1903 (1994).

This section of the act further directs the Commission to review and amend as necessary guidelines for aggravated sexual abuse (2A3.1) and sexual abuse (2A3.2) to address four concerns: (1) enhancing sentences if more than one offender is involved in the offense; (2) reducing unwarranted disparities between offenders who are known versus unknown by the victim; (3) making federal penalties commensurate with state penalties; and (4) considering the general problem of recidivism, severity of the offense, and devastating effects on survivors.

B. Summary of Findings

The following conclusions are based on the Commission's review of federal sexual assault offenses:

Federal rape cases involving multiple assailants are rare. Only five such cases were sentenced during FY 1993 and each involved two assailants.

Approximately 15 percent of federal sexual assault defendants had a prior conviction for sexual misconduct. Average sentences for these defendants are approximately 85 months longer than defendants without prior sex offense convictions. The longer sentences result from both a higher criminal history score as well as differences in the statute of conviction.

The guidelines do not distinguish between defendants known or unknown by victims. Commission data indicate that this factor is associated with differences in sentence length, with known defendants receiving, on average, shorter sentences. In 1992, the Commission amended the guidelines to better ensure that defendants whose actual offense conduct, as opposed to charged conduct, involves rape receive sentences according to the severity of their actual conduct. While too early to assess fully this amendment's impact, preliminary analysis indicates that differences in length of sentence between defendants known versus unknown to the victim are likely to diminish.

Comparison of current federal rape sentences with state sentences indicates that federal offenders can expect to serve a longer period of prison confinement.

The average federal sentence imposed during FY 1993 for rape conduct was higher than the average sentences imposed for robbery or assault cases, but lower than cases involving murder.

Expert comment received to date has indicated that sentence length should be determined by the severity of the attack and the extent of the injury to the victim regardless of whether the assailant was known or unknown to the victim. Additionally, comment indicates that there appears to be no justification to increase federal sentences for rape and other sex offenses above current levels.

C. Organization of the Report

Part II of the report provides background on the issues addressed. Part III discusses the operation of the relevant sentencing guidelines, specifically 2A3.1 (Criminal Sexual Abuse) and 2A3.2 (Criminal Sexual Abuse of a Minor (Statutory Rape)). Part IV compares federal and state penalties for sexual assault, while Part V reviews Sentencing Commission data. Part VI analyzes public comment and expert opinion on the issues addressed by the report.

II. BACKGROUND

Rape is a growing problem in the United States. There has been some question whether the dramatic increases in numbers of rapes represent an actual increase or an increased willingness on the part of victims to report such cases. The numbers, however, are staggering. In 1993, 100,200 forcible rapes were attempted and 40,730 were completed. 2Bureau of Justice Statistics, U. S. Dep't of Justice, Sourcebook of Criminal Justice 1993 (Kathleen Maguire and Ann L. Pastore, eds., 1994). From 1981 to 1991, the nation experienced a 28-percent increase in the number of rapes reported. 3Bureau of Justice Statistics, U. S. Dep't of Justice, Sourcebook of Criminal Justice Statistics 1992 (Kathleen Maguire et al. eds., 1993). By comparison, the population of the United States grew by only 11.9 percent during that ten-year period.

A recent National Crime Victimization Survey - Violence Against Women (NCVS-VAW) found that rape is seriously underreported to authorities. 4Ronet Bachman, U. S. Dep't of Justice, Violence Against Women: A National Victimization Survey Report (1994). The survey estimates that 173,000 rapes occurred during 1991, a figure 62-percent greater than the number actually reported.

The NCVS-VAW reports that 55 percent of rapes are committed by someone known to the victim. Rapes committed by strangers are associated with a greater level of violence than are rapes in which the victim knew the assailant. Furthermore, rapists who are strangers were more often armed with a weapon (29%) compared to non-strangers (17%). Sixty percent of women raped by strangers reported injury compared to 40 percent of women raped by non-strangers. 5Id. at 12. Rape most typically involves a lone offender. According to the NCVS-VAW, from 1987 through 1991, 90 percent of rapes involved a single attacker.

Rape crimes account for a small proportion of total convictions processed in state and federal courts. Rape accounted for 2.2 percent (n=18,024) of the 829,344 state felony convictions sentenced in 1991. 6Bureau of Justice Statistics, U. S. Dep't of Justice, supra note 2, at 535, tbl. 5.55. Because federal jurisdiction for rape generally is limited only to those offenses committed on Indian Tribal or federal territory, substantially fewer rape cases are prosecuted in the federal courts. During 1993, rape conduct was found in 97 sentenced cases, accounting for just 0.2 percent of the 42,013 federal cases sentenced under the guidelines that year.

III. OPERATION OF THE SENTENCING GUIDELINES

Rape offense are sentenced under guidelines 2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse), 2A3.2 (Criminal Sexual Abuse of a Minor (Statutory Rape) or Attempt to Commit Such Acts), and 2A3.4 (Abusive Sexual Contact or Attempt to Commit Abusive Sexual Contact). Each guideline is discussed in turn.

A. 2A3.1

This guideline applies to convictions for aggravated sexual abuse, 18 U.S.C. 2241, the most serious federal sex offense, and to convictions for sexual abuse, 18 U.S.C. 2242. These provisions were codified as part of the Sexual Abuse Act of 1986, which revised and recodified previously existing federal rape statutes. These sections prohibit engaging in "sexual acts" in the special maritime and territorial jurisdiction of the United States or a federal prison in circumstances involving force or threats or the administering of a drug, intoxicant, or other similar substance. Subsection (c) of section 2241 makes it an offense to knowingly engage in a sexual act with a person under 12 years old, or to attempt to do so. It proscribes non-coercive conduct in which "older more mature persons take advantage of others whose capability to make judgments about sexual activity has not matured." 7H. R. Rep. No. 594, 99th Cong. 2d Sess. 15 (1986) reprinted in 1986 U.S.C.C.A.N. 6186, 6195. Aggravated sexual abuse carries a statutory maximum term of life imprisonment; sexual abuse has a maximum penalty of 20 years.

Guideline 2A3.1 has a base offense level of 27 and "represents sexual abuse as set forth in 18 U.S.C. 2242. An enhancement [of 4 levels] is provided for use of force; threat of death, serious bodily injury, or kidnapping; or certain other means as defined in 18 U.S.C. 2241. This includes any use or threatened use of a dangerous weapon." 8USSG 2A3.1, comment. (backg'd.) The guideline provides for a 2-level enhancement if the victim is less than 16 years of age and a 4-level enhancement if the victim is less than 12 years of age. If the victim was in the custody, care, or supervisory control of the defendant, the guideline provides for a 2-level increase. The guideline also provides for sentence enhancements for permanent, life threatening, or serious bodily injury, and abduction. For any given case, the sentencing guidelines call for life imprisonment if each adjustment is applied, regardless of prior criminal history. Finally, the guideline provides for a cross-reference to the murder guideline if the victim was killed under circumstances that would constitute murder under 18 U.S.C. 1111 (first degree murder).

B. 2A3.2

As originally enacted in 1986, criminal sexual abuse of a minor (statutory rape) carried a statutory maximum penalty of five years. In 1990, Congress increased the statutory maximum to 15 years. The commentary to 2A3.2 states that "[t]his section applies to sexual acts that would be lawful but for the age of the victim." The guideline's base offense level of 15 can be increased by two levels if the victim was in the custody, care, or supervisory control of the defendant. The guideline also provides a cross-reference to 2A3.1 if the offense involved criminal sexual abuse or attempt to commit criminal sexual abuse.

C. 2A3.4

This guideline applies to convictions for abusive sexual contact, 18 U.S.C. 2244. This statute, like the others promulgated under the Sexual Abuse Act of 1986, has limited federal jurisdiction and proscribes conduct involving "sexual contact rather than sexual act." "Sexual contact" is defined as the "intentional touching either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person." 918 U.S.C. 2245 (3). The statutory maximum penalties are ten years' imprisonment if to do so would violate section 2241; 10The maximum penalty was increased from five years to ten years in 1988. three years' imprisonment if to do so would violate section 2242; two years' imprisonment if to do so would violate subsection (a) of section 2243; and six months' imprisonment if to do so would violate subsection (b) of section 2243.

The base offense under 2A3.4 is 16 if the offense is committed by means set forth in 18 U.S.C. 2241 (a) or (b); 12 if the offense is committed by the means set forth in 18 U.S.C. 2242; and 10 otherwise. The guideline also provides a 4-level enhancement if the victim is under 12 , and a 2-level enhancement if the victim was at least 12 but under 16. A 2-level enhancement is provided if the victim was in the custody, care, or supervisory control of the defendant. The background commentary suggests a 6-level downward departure in cases of consensual sexual contact, "[i]f the defendant and the victim are similar in sexual experience." 11Background Commentary to 2A3.4. The guideline also provides for a cross reference to 2A3.1 if the offense involved criminal sexual abuse or attempt to commit criminal sexual abuse (as defined in 18 U.S.C. 2241 or 2242).

The specific factors delineated by Congress for review in this report are currently addressed by the guidelines in the following manner:

1. Multiple Assailants

The sexual abuse guidelines do not provide enhancements based solely upon the fact that multiple assailants committed the offense. If, however, a defendant played a leadership role in a sexual offense involving multiple assailants, an enhancement under 3B1.1 (Aggravating Role) would be applicable. The role enhancement can increase a defendant's sentence between 25 and 50 percent.

2. Known versus Unknown Assailant

The guidelines do not distinguish between offenders known to the victim versus those who are not. Currently, the aggravated sexual abuse guideline provides an enhancement for an abuse of a position of trust when the victim is in the "custody, care, or supervisory control of the defendant." 12See USSG 2A3.1(b)(3). For cases illustrating the application of this enhancement, see U.S. v. Merritt , 982 F.2d 305 (8th Cir. 1992), cert. denied, 61 U.S.L.W. (1993) and U.S. v. Castro-Romero, 964 F.2d 942 (9th Cir. 1992).

3. Offender Recidivism

The guidelines address recidivism concerns in Chapter Four (Criminal History and Criminal Livelihood) by assessing the defendant's criminal record, including the number of prior convictions, the length of prior sentences, their recency, whether the current offense occurred while the defendant was under criminal justice supervision for a prior conviction, and whether a prior conviction was for a crime of violence (4A1.1). Additionally, the career offender provision in Chapter Four provides enhanced penalties for repeat offenders who engage in crimes of violence or controlled substance offenses (4B1.1). Crimes of violence include sexual abuse offenses committed with violence or force or threat of force (4B1.2(1)). To be classified as a career offender under the guidelines, the defendant must have committed a qualifying violent or drug offense and have at least two prior convictions for some combination of crimes of violence or controlled substance offenses.

To illustrate the impact of the criminal history assessment, an offender in the lowest criminal history category sentenced under guideline 2A3.1 has a sentencing range of 70-87 months. If this offender instead has a criminal history score in the highest category, the applicable guideline range would increase to 130-162 months. If the offender is classified as a career offender, the guideline range would increase to 360 months to life imprisonment. The criminal history guidelines do not specifically take into account similarity between the current offense and past offenses, although in certain situations an additional increase under 4A1.1(f) for prior violent offenses would pertain. Consequently, although the sexual nature of any prior offense is not considered specifically, the guidelines address, to a limited degree, prior violence in general.

IV. COMPARISON OF FEDERAL AND STATE PENALTIES FOR

SEXUAL ASSAULT

Sections 2241-2245 of title 18, United States Code, criminalize sex offenses committed within federal jurisdiction. These statutes cover a variety of behavior including rape, sexual contact, incest, and child molestation. Section 2241, Aggravated Sexual Abuse, covers a spectrum of behavior ranging from sexual contact (touching) to sexual penetration and is distinguished from other federal sex offenses by the level of violence or threat of violence involved.

State sex offense laws cover a wide range of behavior that can be broader than that captured by federal statutes. Each state has a specific criminal statute to address this offense conduct, although it may be referred to by other terms (e.g. sexual assault, sexual battery, criminal sexual conduct, gross sexual imposition). The common element across all statutes is forcible sexual penetration, however slight. Additionally, states classify and penalize criminal sexual offenses using a variety of schemes, making comparison across states and to the federal system difficult. A number of states classify sexual offenses by degree or severity. This classification is dependent upon a number of factors, including possession of a weapon, serious bodily injury, age of the victim, multiple offenders, mental or physical capacity of the victim, or multiple instances of rape.

A comparison of rape penalties is further complicated by the variations in state sentencing systems. Some states use an indeterminate sentencing structure under which offenders generally receive a sentence range and a parole system determines actual release dates. Some states have sentencing guidelines that operate in conjunction with an indeterminate structure, and others have a determinate structure under which offenders receive a fixed sentence and no parole. Other states have some combination of determinate sentences and parole. Yet other states have sentencing guidelines that operate under a determinate structure. The federal system has sentencing guidelines, determinate sentences, and no parole. This makes a comparison of federal and state penalties difficult. For example, in states that have some form of indeterminate sentencing, penalties imposed for rape may appear to be more severe than their federal counterpart. However, a defendant sentenced to 20 years in a state with a parole system may actually serve only six years, whereas a defendant who receives a 20-year federal sentence will serve approximately 17. 13Federal defendants serving imprisonment sentences of more than one year can qualify for a "good time" reduction of up to 54 days per year. See 18 U.S.C. 3624(b).

Of the 50 states, two territories, and the District of Columbia surveyed, 20 (37.0%) provide for a maximum term of life imprisonment for rape. Twenty-four (45.3%) have a maximum penalty of 20 years or more. The federal system provides a maximum punishment of life imprisonment without possibility of parole for offenders convicted of aggravated sexual assault.

Several states enhance rape sentences for defendants with prior convictions for sex offenses. Such convictions generally are accounted for by either an increase in the degree or severity level of the crime (e.g., from rape to aggravated rape, or from sexual assault in the second degree to sexual assault in the first degree) or an increase in the minimum or maximum term of imprisonment available. In most cases, states included these enhancements either within the rape offense statute or within a separate penalty provision for habitual or repeat sex offenders. States that do not have habitual or repeat sex offender provisions often have a general habitual offender statute that enhances the available term of imprisonment depending on the number of prior felony or violent felony convictions.

V. SENTENCING COMMISSION DATA ANALYSIS

All cases with a conviction for sexual abuse in the FY 1993 Commission dataset were reviewed and coded for this report. In addition, cases involving convictions for other crimes of violence were included to determine the extent to which a crime that involved sexual abuse may result in a conviction under some other statute unrelated to sexual abuse. Finally, pornography cases were reviewed to determine whether sexual assault or abuse occurred in those cases. 14The following selection criteria were employed:

1) Cases involving the sexual abuse guidelines, namely 2A3.1 (Criminal Sexual Abuse: Attempt to Commit Criminal Sexual Abuse), 2A3.2 (Criminal Sexual Abuse of a Minor (Statutory Rape) or Attempt to Commit Such Acts), and 2A3.4 (Abusive Sexual Contact or Attempt to Commit Abusive Sexual Contact);

2) Cases involving 18 U.S.C. 2241 (Aggravated Sexual Abuse), 2242 (Sexual Abuse), 2252 (Certain Activities Relating to Material Involving the Sexual Exploitation of Minors), and 2258 (Failure to Report Child Abuse) as a statute of conviction;

3) Cases in which the offense type is sexual abuse; and

4) Cases that involve 2A1.4 (Involuntary Manslaughter), 2A2.1 (Assault with Intent to Commit Murder: Attempted Murder), 2A2.2 (Aggravated Assault) and 2A2.3 (Minor Assault) as the guideline that drives the sentence.

Each case was reviewed to code additional defendant and victim information, including: prior sexual misconduct (more broadly defined than that which is countable under the guidelines' criminal history score); date of last prior sexual conviction; length of prior sentences for sexual abuse convictions; whether the defendant was known or unknown to the victim; number of offenders; presence of sexually transmitted diseases; and use of a weapon. Victim-specific information coded included age, whether the victim was in the care of defendant, and injuries sustained. Information describing the geographical location of the crime also was coded.

Before reporting the findings, it is important to emphasize again the context in which federal sexual offenses occur. In order to be prosecuted in federal court, the offense must occur on a federal reservation, in a federal prison, or otherwise within the special maritime or territorial jurisdiction of the United States; otherwise, sexual offenses are state crimes. In general, this means that federal sexual offenses take place on Native American lands, military installations, national parks, and territorial property. Consequently in FY93, 97 guideline cases were identified in which a rape occurred as part of the offense behavior. 15All subsequent analyses are based upon these 97 cases; however, missing information for some analyses reduces this number. For each analysis, the number of available cases will be noted. The small number of cases severely limits the ability to perform robust analysis while controlling for offense and offender characteristics.

Sixty-nine of the 97 sexual assault cases (70.4%) occurred on Native American lands; ten cases (10.2%) occurred on military installations; and two (2.0%) occurred in national parks. For the remaining 18 cases (18.4%), location could not be determined.

Table 1 displays the various guidelines applied based upon the statutes of conviction for 94 cases in which sentencing information was available. The majority of cases (58.2%) were sentenced under guideline 2A3.1 (Criminal Sexual Abuse), with an average sentence of 189.4 months. The next most frequently applied guidelines were 2A3.4 (Abusive Sexual Contact, 22.0%) and 2A3.2 (Statutory Rape, 14.3%). Average sentences for these offenses were 22.4 and 35.9 months, respectively. As the data suggests, substantial variation exists in length of sentence based upon the guideline applied.

A. General Demographic Characteristics

All 97 defendants in the study were male with an average age of 31.2 years. The youngest offender was 19 years old and the oldest was 71. Sixty-nine defendants (71.1%) are Native Americans. Twelve (12.4%) defendants are White, 11 (11.3%) are Black, and the remaining five are Asian (5.2%). Approximately half (49.5%) of the defendants reported not completing high school. Only one defendant (1.1%) completed college. Forty-two percent of the 97 federal sexual assault cases occurred in two federal judicial districts (Arizona, n=23, 23.7% and South Dakota, n=18, 18.6%). Twenty-six districts account for the remaining 56 cases, with each of these districts reporting five or fewer cases.

1. Number of Assailants

Consistent with the research literature, federal rape crimes most often involve a single assailant. Of the 97 sexual assault cases, 92 (94.8%) involved one offender, with the remaining five involving two attackers. In four of the five multiple assailant cases, the victim knew the defendant. Two of the rapes occurred on Native American lands and one occurred on a military base. For two cases, the location of the rape was reported as "on a road," but the type of federal lands could not be determined. Age of the victim was reported in four of the assaults (ages 10, 15, 26, 27 years).

2. Victim Bodily Injury

The 94 sexual assault cases with sufficient information available were sentenced under six different guidelines. Fifty-three of the cases (56.4%) 16Three of the 97 original cases lacked complete sentencing information, resulting in a sample size of 94. were sentenced under guideline 2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse). This guideline contains enhancements for serious and permanent or life threatening bodily injury to the victim. Of the 53 cases, seven (13.2%) received sentence enhancements for bodily injury. In four of these seven cases, the victim's age was reported (4, 10, 11, 15 years). The 15-year-old victim was assaulted by two assailants. In six of the seven cases, the defendant was known to the victim, and two of these six received a "custody and care" enhancement suggesting the perpetrators was a family member or daycare provider.

3. Defendant Recidivism

Ninety-five cases had information on the offender's criminal history score. For these cases, the average score is 1.9 (median score=1), suggesting that, for the most part, these defendants had little or no prior criminal record. In 13 of 93 cases (14.0%), the defendant had a prior criminal history of sexual misconduct and complete sentencing information was unavailable. The average sentence for these cases was 191.7 months, compared to an average sentence of 111.2 months for cases in which no prior criminal history of sexual misconduct was noted (n=80). None of the offenders was classified as a career offender.

4. Known versus Unknown Defendants

The victim knew the defendant in 83.6 percent of the cases (n=81). This is significantly higher than the 55 percent reported by the NCVS-VAW data. 17Bureau of Justice Statistics, U. S. Dep't of Justice, supra note 4, at 11. In 14 cases (14.3%), the defendant was unknown, and in two cases (2.0%) this information could not be determined. The average prison sentence imposed on defendants known to the victim was 103.6 months (n=79). This is substantially less than the average of 253.7 months (n=14) imposed for cases in which the defendant was unknown to the victim.

Because of the small number of cases in which the defendant was not known to the victim, robust analyses that simultaneously control for other factors associated with sentence length are not possible. However, given this limitation, it does not appear that difference in average sentence length can readily be explained by differences in bodily injury to the victim or the presence of prior sex offenses. The number of prior criminal convictions of any type may account for a portion of this difference. Under the sentencing guidelines, offenders are assigned a criminal history category from one to six based upon the seriousness and recency of past criminal convictions; the higher the category, the higher the range of sentence. Generally, unknown defendants receive longer prison sentences than known defendants at each base offense level. However, contributing to the overall difference in average length of sentence between known and unknown defendants is the greater proportion of unknown defendants who merit higher criminal history scores. Among defendants unknown to the victim (n=14), five (35.7%) had a criminal history category of five or six and are thus subject to longer sentences under the applicable guideline range (average sentence=442.6 months). In comparison, only three of 78 (3.8%) defendants who were known to the victim have a criminal history category of five or six (average sentence=190 months).

Examining offense of conviction provides additional information on the differences in sentence length. Table 2 presents information on the distribution of sentencing guidelines applied for defendants, known and unknown to the victim. The first three guidelines presented are specific to sexual offenses. Substantial differences exist in the base offense level depending on the guideline applied. Criminal Sexual Abuse, with a base offense level of 27, 18Base offense level of 27 provides a guideline sentencing range of 70 to 87 months for defendants with a criminal history score of 1. has a substantially higher offense level than either Statutory Rape 19Base offense level of 15 provides a guideline sentencing range of 18 to 24 months for defendants with a criminal history score of 1. or Abusive Sexual Contact. 20Base offense level can range between 10 (guideline sentencing range of 6 to 12 months for defendants with a criminal history score of 1) and 16 (guideline sentencing range of 21 to 27 months for defendants with a criminal history score of 1). For cases in which the defendant is unknown to the victim, 12 of 13 (92.3%) of the defendants are sentenced under the more punitive guideline. For defendants known to the victim and sentenced under any sex crime guideline, a much smaller proportion of cases (41 of 73, 56.2%) was sentenced under this more punitive guideline.

Thirty-two defendants, known to the victim, were sentenced at the lower base offense levels listed in the table (levels 10 through 16), while only one defendant (7.7%), unknown to the victim, was sentenced at these lower levels. For these cases, the average sentence imposed was 32 months if the defendant was known compared to 18 months for the sole unknown defendant. Forty-four defendants, known to the victim, were sentenced under guidelines with base offense levels at level 24 or above; a level comparable to the majority of cases in which the defendant was unknown to the victim. For these defendants, the average sentence imposed was 159.6 months, compared to a substantially longer average sentence of 292.8 months if the defendant was unknown.

As described in Section III, guidelines 2A3.2 and 2A3.4 provide for a cross reference to 2A3.1 if the offense involved criminal sexual abuse or attempts to commit criminal sexual abuse. This is particularly relevant to known versus unknown defendants because as reported above, known defendants are less likely to be sentenced under the more punitive guideline. The cross reference to the more punitive guideline was created as a result of a prior Commission review of sexual offense cases. The review found that "cases sentenced under 2A3.2 and 2A3.4 clearly involved conduct that would more appropriately be covered under an offense guideline applicable to more serious sexual abuse cases". 21USSG, App. C, Amend. 444. The effective date for application of the cross reference was November 1, 1992. Of the 53 federal cases sentenced under 2A3.1 during 1993, seven (13.2%) were the result of application of the cross reference. Information on date of offense was available in 40 of the 43 cases identified as containing rape conduct but not sentenced under 2A3.1. In 36 (90.0%) of these cases, the offense conduct occurred prior to the effective date of the cross reference. Of the four cases in which the offense conduct occurred after November 1, 1992, three contained factors suggesting the application of the cross reference was not appropriate. 22Of these three cases, in one no penetration occurred; in a second the offense was reported after November 1, 1992 but the conduct occurred one year earlier; and in the third the victim was intoxicated and could not remember if she consented to the act.

Federal sexual assault sentences, therefore, differ by whether the defendant was known versus unknown to the victim. These differences appear to be the result of differences in criminal history category (with more unknown defendants having a higher category than known defendants) and differences in statutes of conviction (with more unknown defendants being convicted of statutes that result in the application of higher base offense levels). The development of the cross reference to 2A3.1 attempts to punish offenders consistent with actual offense conduct. The Commission's review of cases indicates that it has been applied appropriately. Because the cross reference has been in place a relatively short period of time, it is premature to evaluate the impact on sentence length and its potential impact on sentence differences between offenders who are known versus unknown to the victim.

5. Comparison of Federal and State Sentences for Sexual Assault

Federal sentences imposed under the guidelines are not subject to reduction through parole. In general, the difference between the sentence imposed and the sentence actually served reflects only the earned accrual of good conduct time credit not exceeding 54 days per year (15%). Most states continue to provide early release through parole or have greater availability of good conduct or program-participation credits through which sentences can be shortened. These differences make state/federal comparisons in sentence length difficult. Comparisons of sentences imposed will not distinguish these practices and may result in a conclusion regarding difference (or direction of difference) that does not reflect accurately the amount of time a defendant will be imprisoned. A better comparison is an estimate of time served in prison.

Comparison of federal rape sentences with state sentences nationally can be performed using a recent national survey of federal and state prison inmates conducted by the U.S. Department of Justice, Bureau of Justice Statistics (BJS). This 1991 survey interviewed approximately 14,000 state prisoners and 6,600 federal prisoners, selected as representative of the total offender population in the United States in 1991. 23Caroline W. Harlow, U. S. Dep't of Justice, Comparing Federal and State Prison Inmates, 1991 5, tbl. 6 (1994). Because the data were aggregated from a nationwide sample, information on specific state practices is unavailable as is information that would permit comparison of specific offense behaviors or offender characteristics.

The BJS survey collected data on state sentences and estimates of time to be served for various offenses, including "sexual assault." Its information on state sentences was compared to Commission data on rape offenders sentenced during FY 1993. The BJS estimate of average time to be served by state inmates for sexual assault is 95 months. This compares to Commission data on 1993 federal inmates of an average time to be served of 106 months. This difference of 11 months represents a 12-percent differential in sentencing. That is, federal rape offenders will serve 12 percent more time in prison than their counterparts sentenced at the state level. Because application of the cross reference to 2A3.1 generally will lengthen sentences, this differential in time to be served may increase as the number of cases eligible for application of the cross reference increase.

The largest proportion of federal rape offenders are sentenced in two states -- Arizona (n=23, 23.7%) and South Dakota (n=18, 18.6%). These two states were polled, and state sentencing information on rape offenders was gathered.

Arizona recently has enacted truth-in-sentencing provisions eliminating parole in all cases, and in select crimes eliminating the application of sentence reduction through good conduct credits. Sexual assault is one of the specific offenses for which sentence reduction through application of good conduct credits has been eliminated. Since these changes have been implemented, 77 cases have been sentenced for sexual assault; the mean 24The term "mean" is statistical nomenclature for average. This more scientific term is used here to distinguish the values used to compare federal sentences with sentences as reported by Arizona and South Dakota. Arizona provided mean (average) sentence information and South Dakota provided median sentence information. Both are used in statistics to summarize the central tendency of a distribution of numbers. Each is slightly different. It is appropriate to compare "mean" score with "mean" score or alternately "median" score with "median" score, however, "mean" score should not be compared with "median" score. sentence imposed (and to be served in its entirety) is 9.6 years. 25Roy Holt, Director, Statistical Analysis Center, Arizona Criminal Justice Commission. Personal communication. This is nine percent longer than the estimated 8.8 years (106 months) that federal rape offenders serve. However, the information on sexual assault sentences in Arizona and on federal rape sentences was derived by different methods. Data on Arizona sentences include only those cases sentenced for a conviction of sexual abuse. The Commission's dataset includes cases sentenced under this charge as well as other, less serious charges in which rape conduct was present. The Commission's goal for use of its dataset was to examine sentencing factors associated with rape conduct regardless of the ultimate charge of conviction. A more appropriate comparison to the Arizona data would be to limit federal cases to only those defendants sentenced for criminal sexual abuse (n=53). These cases are estimated to serve an average sentence of 13.4 years (161.0 months). Using these more comparable cases, federal sentences are 40 percent longer.

South Dakota provided information from an "in-house" project titled "South Dakota Sex Offender Project," conducted during 1987 through 1989. 26J. Whipple, G. Leonardson, M.Terca, D. Hollingsworth, T. Del Grosso, and D. Gromer, "South Dakota Sex Offender Project," South Dakota Statistical Analysis Center, Division of Criminal Investigation, Office of the Attorney General, Criminal Justice Training Center, Pierre, South Dakota. (1990). This project was conducted similarly to the federal case analysis described in this report. That is, cases were identified to include rape conduct regardless of the ultimate charge of conviction. The authors report that the median sentence for rape offenders included in the study was 6.4 years. The 91 federal defendants sentenced during FY 1993 will serve a median sentence of approximately 6.9 years (82.4 months) after sentence reduction for good conduct credits. South Dakota has indeterminate sentencing and the availability of parole. Without accounting for parole or the application of good conduct credits in the South Dakota data, federal rape offenders currently serve a slightly greater amount of time. 27The South Dakota Board of Pardons and Parole could not provide an estimate of time to be served by rape offenders. However, they reported that generally, rape offenders are not paroled without completing their specialized treatment program which has very limited access. Additionally, they reported that after completing this program, a rape offender would not be considered for parole until the last two or three years of the sentence. To the extent that parole or the application of good conduct credits reduces rape sentences in South Dakota, differences in length of sentence served in prison between that system and the federal system will increase.

In summary, comparison of current federal rape sentences with state sentences indicates that federal offenders can expect to serve a longer period of prison confinement. Furthermore, it is expected that average federal sentences for rape will increase as a greater proportion of cases become subject to the 1992 cross-reference amendment. Assuming no change in state sentencing practices, it is anticipated that differences between federal and state rape sentences will become larger.

6. Comparison of Rape Sentences with other Federal Crimes in which Jurisdiction depends on the Offense being Committed on Federal Land

Federal sentences imposed for crimes in which federal jurisdiction results from the crime's commission on federal lands are presented in Table 3. The crimes are ranked from the highest sentence to the lowest sentence. The average federal sentence imposed during FY 1993 for rape conduct was higher than the average sentences imposed for robbery or assault cases and lower for cases involving murder. As a greater proportion of cases become subject to the 1992 cross reference amendment, it is expected that rape sentences may grow closer in length to murder sentences and further in length from robbery and assault cases.

VI. EXPERT AND PUBLIC COMMENT

In response to congressional directive to seek comment from independent experts, the Commission has sought input from individuals and organizations with expertise and interest in the above topics. To date, comment has been received from the Rape Crisis Center; National Organization for Victim Assistance; Crime Victims Research and Treatment Center; and the American Civil Liberties Union (ACLU).

Comment from the victim assistance organizations focused on the issue of differential sentencing for defendants who are known versus unknown to the victim. Each commented that distinctions in sentencing based upon this factor are unwarranted. Two of these organizations 28National Organization for Victim Assistance and Crime Victims Research and Treatment Center. also commented that sentence length should be based upon the extent of the injury to the victim regardless of the relationship between the victim and the assailant.

Comment from the ACLU addressed the issue of comparability of sentencing for rape and other sex offenses compared to similarly aggravated crimes. Their analysis concluded that: "[i]n the absence of any indication that sentencing for rape and other sex offenses is lenient or treated less seriously than other similarly aggravated offenses, there is no justification for increasing the sentences for these offenses" 29Submitted in response to January 13, 1995 request for comment. Memorandum dated November 14, 1990 titled Are rape and other sex offenses treated as seriously as similarly aggravated crimes in sentencing and length of time served in jail and prison? drafted in response to an earlier version of the Violence Against Women Act.

Contact has been made with seven additional individuals or organizations with expertise and interest in federal sentencing of rape defendants. To date that comment has not been received.

Through The Federal Register, additional comment was solicited on these issues as well as several related issues:

Issue for Comment: Section 40112 of the Violent Crime Control and Law Enforcement Act of 1994 directs the Commission to conduct a study and consider appropriate amendments to 2A3.1 (Aggravated Sexual Abuse) and 2A3.2 (Sexual Abuse) to address four concerns: (1) enhancing the sentence if more than one defendant is involved in the offense; (2) reducing unwarranted disparity between defendants who are known by the victim and those who are unknown by the victim; (3) making federal penalties commensurate with state penalties; and (4) considering the general problem of recidivism, severity of offense, and devastating effects on survivors. The provision also requires the preparation of a report to Congress analyzing federal rape sentences and obtaining comment from independent experts on: (1) comparative federal sentences between assailants who were known versus unknown to their victims; (2) comparative federal sentences with those of states; and (3) the effect of rape sentences on Native American and U.S. military populations relative to the impact for other federal offenses on these populations. This report is to be submitted to Congress by March 13, 1995.

The Commission invites comment on any aspect of this directive or any amendment to the guidelines appropriate to address this directive. Specifically, comment is requested on whether 2A3.1 (Criminal Sexual Abuse) should be amended to include an enhancement for more than one assailant. If such a factor is added, comment is requested as to the weight to be given to that factor and how its inclusion should affect the application of an adjustment for the defendant's role in the offense under Chapter Three, Part B. Comment is further invited as to whether the guidelines adequately account for the seriousness of the sexual abuse offense (including the effects on the victim of sexual abuse) and how any suggested changes should be applied. Currently, through special offense characteristics and other instructions in 2A3.1, the guidelines consider the degree of bodily injury, age of victim, sexual abuse of a person held within a correctional facility, use of a dangerous weapon, circumstances in which the defendant holds a supervisory or custodial role, circumstances in which the victim was abducted, and death of the victim. The Commission invites comment on additional factors that might appropriately be considered and the weights such factors should be given.

As part of the ongoing, 1994-95 amendment process, the Commission carefully will consider the advice of experts, written public comment, and testimony at its March 14, 1995, public hearing on proposed amendments before making final decisions on these issues. Should this process support the need for amendments to address more effectively the harms associated with sexual assaults, the Commission intends to promulgate any needed amendments and submit them to Congress for review no later than May 1, 1995.

Table 2

GUIDELINES APPLIED FOR SEXUAL ASSAULT CASES

BY VICTIM'S KNOWLEDGE OF THE DEFENDANT*

Sex Crime Coding Project

(October 1, 1993, through September 30, 1994)

*Eight cases were excluded due to one or more of the following conditions: missing guideline applied information (3), missing prison sentence information (3), or missing information as to the defendant's knowledge of the victim (5).

SOURCE: U.S. Sentencing Commission, 1993 Data File, MONFY93.

Table 3

COMPARISON OF SELECTED FEDERAL SENTENCES IN WHICH

FEDERAL JURISDICTION IS THE RESULT OF THE LOCATION OF THE CRIME

(October 1, 1993, through September 30, 1994)

SOURCE: U.S. Sentencing Commission, 1993 Datafile, MONFY93

REPORT TO CONGRESS:

ADEQUACY OF PENALTIES FOR FRAUD OFFENSES

INVOLVING ELDERLY VICTIMS

I. INTRODUCTION

A. The Statutory Directive

This Report to Congress is submitted pursuant to the directive in section 250003 of the Violent Crime Control and Law Enforcement Act of 1994 (hereinafter the "statutory directive"), which states:

(a) Review. The United States Sentencing Commission shall review and, if necessary, amend the sentencing guidelines to ensure that victim related adjustments for fraud offenses against older victims over the age of 55 are adequate.

(b) Report. Not later than 180 days after the date of enactment of this Act, the Sentencing Commission shall report to Congress the result of its review under subsection (a).Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 250003, 108 Stat. 1796, 2085 (1994).

B. Results of the Review

Because the statutory directive calls for submission of a report to Congress prior to the assessment of public comment and final amendment decisions in the current guideline amendment cycle,This amendment cycle will culminate in Commission decisions on proposed guideline amendments in April and their submission to Congress by May 1, 1995. Commission consideration of relevant issues necessarily is incomplete at this time. However, based on its empirical analyses of sentencing data and its review of pertinent case law, the Commission makes the following preliminary observations and conclusions:

Lack of consistently reported information on victim age in case files prevents a comprehensive assessment of the adequacy of guideline sentences in fraud offenses involving older victims.

When older victims are defrauded, there is some evidence that courts are using existing sentence enhancement mechanisms under the guidelines, particularly the upward adjustment for offenses involving vulnerable victims. In older victim fraud cases in which the vulnerable victim enhancement applies, courts apparently find the magnitude of the enhancement (approximately a 25 percent increase) to be adequate.

Based on court sentencing decisions, the threshold at which fraud victims generally are perceived to be vulnerable because of age appears to be substantially greater than age 55.

C. The Sentencing Commission

The United States Sentencing Commission, an independent agency in the Judicial Branch of government, was created by the Sentencing Reform Act of 1984. Commission authorities and duties are set out in Chapter 58 of title 28, United States Code. The primary functions of the Commission are to "establish sentencing policies and practices for the federal criminal justice system"28 U.S.C. 991(b). and to promulgate a system of sentencing guidelines that prescribes the appropriate form and severity of punishment for offenders convicted of federal crimes. See 28 U.S.C. 994. In its organic statute, the Commission is empowered and directed to collect information on sentences imposed under the guidelines, to revise the guidelines periodically in light of these data and other information, and to make recommendations to Congress in furtherance of an effective, humane, and rational sentencing policy.

D. Organization of Report

Part II of the report provides an overview of the legislative history leading to the statutory directive; Part III discusses the operation of the relevant sentencing guidelines and policy statements; Part IV examines case law; Part V provides an empirical analysis of sentencing data; and Part VI states the report's conclusions.

II. LEGISLATIVE HISTORY

On March 10, 1993, Senator Hatch (R-UT), joined by Senators Biden (D-DE), DeConcini (D-AZ), Moseley-Braun (D-IL), and Thurmond (R-SC), introduced S. 557, the Senior Citizens Against Marketing Scams Act of 1993 (SCAMS).Two other bills pertaining to similar concerns were introduced in the 103d Congress and referred to committee but were not acted upon. On July 14, 1993, Senator Cohen (R-ME) introduced S. 1217, the Protection of the Elderly Against Fraudulent Practices Act, which directed the Sentencing Commission to provide a seven-level increase under the vulnerable victim guideline if the offender knew or should have known that the victim was unusually vulnerable or that the victim was otherwise particularly susceptible to the offense. Senator Cohen subsequently became a co-sponsor of S. 557. 139 Cong. Rec. S10017 (daily ed. July 30, 1993). On November 10, 1993, Representative Manton (D-NY) introduced H.R. 3501, the Senior Citizen Protection Act of 1993, which provided a seven-level enhancement under the vulnerable victim guideline if the offender knew or should have known that the victim was 65 years of age or older. This legislation resulted from a concern about possible increased fraud activity against elderly victims and was apparently responsive to a two-year FBI undercover investigation into telemarketing fraud in Salt Lake City, Utah, announced by the Bureau in early 1993. Among other provisions, SCAMS proposed a new federal statute criminalizing telemarketing fraud and providing enhanced penalties when senior citizens were the principal victims. It also called for a Sentencing Commission review and report to Congress on fraud offenses involving older victims.

According to a committee discussion draft report on S. 557,While the Senate Judiciary Committee issued no formal report on S. 557, Senator Hatch requested that the discussion text of the draft report be printed in the Congressional Record. 139 Cong. Rec. S10016 (daily ed. July 30, 1993). Congress, while principally concerned with telemarketing fraud, wanted to "take steps to ensure that all fraud related offenses against older victims are properly punished."139 Cong. Rec. S10016 (daily ed. July 30, 1993). Language fulfilling this objective eventually found its way into the statutory directive.The procedural history relevant to this legislation is as follows: On July 30, 1993, the Senate, by voice vote, passed S. 557. 139 Cong. Rec. S10017 (daily ed. July 30, 1993). On November 5, 1993, the Senate incorporated S. 557 as an amendment (number 1110) into S. 1607, Violent Crime Control and Law Enforcement Act of 1993. 139 Cong. Rec. S15148 (daily ed. November 5, 1993). On November 19, 1993, the Senate passed H.R. 3355, the Violent Crime Control and Law Enforcement Act of 1993 (as amended by striking existing text and substituting the text of S. 1607, as amended) by a vote of 95-4. 139 Cong. Rec. S16301 (daily ed. November 19, 1993). Amendment number 1110 became Section 3905 (Increased Penalties For Fraud Against Older Victims) of H.R. 3355. Ultimately, Section 3905 would become Section 250003 of Pub. L. No. 103-322 (Sept. 13, 1994).

III. OPERATION OF THE SENTENCING GUIDELINES

The sentencing guidelines for individual defendants, applicable to offenses occurring on or after November 1, 1987, contain multiple, related mechanisms designed to achieve appropriate punishment for fraud offenses, including frauds perpetrated against elderly victims. These provisions, to be discussed more fully below, include: 1) the fraud offense guideline (2F1.1), 2) a generally applicable vulnerable victim adjustment (3A1.1), and 3) related policy statements and commentary describing atypical circumstances that may warrant a sentence above the applicable guideline range (upward departure). Additionally, the guideline range itself provides limited discretion the greater of 25 percent or six months between the lowest and highest sentences within which sentencing judges can take into account the nature of the victim, among other factors. 8Although not directly related to the concerns examined in this report, it should be pointed out that the sentencing guidelines mandate restitution to identifiable victims for any case in which it is practicable to determine the amount of restitution and the defendant's ability to pay. See USSG 5E1.1.

A. Fraud Guideline

The Federal Criminal Code contains scores of fraud offenses that, while often overlapping in the criminal conduct encompassed, vary in their mode of perpetration (e.g., by mail, telephone, computer, or other means invoking federal jurisdiction), affected victims, and penalty structure. To ensure greater sentencing uniformity for similar criminal conduct regardless of the particular fraud statute charged, the Sentencing Commission promulgated a single, generic fraud guideline, 2F1.1.See Appendix A for the text of 2F1.1. This guideline seeks to assess the seriousness of, and degree of harm caused by, the fraud offense by requiring the court to determine: 1) the amount of resulting or attempted loss, 2) the sophistication of the offense, 3) whether the perpetrator used the cloak of a specially trusted institution (e.g., claimed to be acting on behalf of a charity), 4) whether the conduct violated a judicial or administrative order, 5) whether serious bodily injury was risked, and 6) whether a financial institution was substantially harmed. With the exception of the latter factor (which the Commission added pursuant to congressional directives), the "specific offense characteristics" incorporated into the fraud guideline do not provide enhanced punishment based on the nature of the victim. Rather, the guidelines treat that concern primarily via a generally applicable sentence enhancement for targeted vulnerable victims, described in the next paragraph.

B. Vulnerable Victim Adjustment

Guideline 3A1.1 (Vulnerable Victim)See Appendix A for the text of 3A1.1. addresses predatory conduct in which a defendant targets victims because of their vulnerability. This general adjustment, potentially applicable to a wide variety of offense types including fraud, provides a two-level enhancement (approximately a 25 percent increase) if the defendant knew or should have known that the victim was unusually vulnerable or particularly susceptible to the defendant's conduct. Under this guideline, either young or old age can provide the basis of vulnerability. Significantly, however, the guideline does not provide a per se rule that equates any particular age with the status of being a vulnerable victim. Rather, the guideline contemplates a case-by-case determination by the court, focusing on 1) whether the victim was in fact "unusually vulnerable" and 2) whether the defendant knew or should have known that fact.

C. Upward Departure

Guideline 5K2.0 (Grounds for Departure)See Appendix A for the text of 5K2.0. is a policy statement providing a general explanation of when, in the Commission's view, circumstances may warrant a sentence outside the applicable guideline range, consistent with court departure authority under 18 U.S.C. 3553(b). That statutory section provides, in pertinent part, that the sentencing court may impose a sentence outside the range established by the applicable guideline if the court finds "that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described."

In addition to the guidance provided in policy statement 5K2.0, the Commission has described its general approach to departures in Chapter One of the Guidelines Manual.See USSG Ch. 1, Pt. A 4(b). Taken together, these sections indicate that the Commission envisions that applicable guideline provisions will result in a range of sentences appropriate for typical ("heartland") cases of a particular offense type and offender category. However, significant unusual factors, in kind or degree, can warrant a departure from the guideline range. In commentary accompanying specific guidelines, and in Chapter Five, Parts H (Specific Offender Characteristics) and K (Departures), the Commission has provided more detailed guidance on the range of factors that it has or has not "adequately considered" in particular types of cases.

The incorporation into the guidelines of an enhancement for vulnerable victims indicates that the Commission has considered, in a broader way, the circumstance of elderly fraud victims. Hence, it would be inconsistent with the section 3553(b) departure statute18 U.S.C. 3553(b). and the Commission's amplification of it, briefly described supra, for courts to sentence above the guideline range solely on the basis that a fraud offense impacted an older victim. On the other hand, the guidelines do contemplate and specifically invite the possibility of upward departure in special circumstances that may involve defrauded older victims. For example, policy statement 5K2.3 (Extreme Psychological Injury)See Appendix A for the text of 5K2.3. authorizes courts to depart upward if victims, perhaps including elderly fraud victims, suffer "psychological injury much more serious than that normally resulting from . . . the offense." In a similar vein, commentary accompanying the fraud guideline invites upward departure when "the offense caused reasonably foreseeable . . . psychological harm or severe emotional trauma" or the solvency of one or more victims was knowingly endangered and the increased punishment assessed for amount of fraud loss does not fully capture the seriousness of the harm perpetrated.Section 2F1.1, comment. (n. 10).

The following part examines the manner in which appellate courts have treated some of these issues.

IV. CASE LAW

Since the advent of the sentencing guidelines, the courts of appeals have generated a substantial body of case law relating to the sentencing of fraud offenses. Because the fraud guideline itself does not enhance sentences according to the nature of individual victims, appellate decisions related to the subject matter of this report tend to fall into one of two categories: 1) those construing and applying the vulnerable victim guideline enhancement and 2) those evaluating the propriety of upward departures from the guideline range premised upon victim age or related reasons.See Appendix B for a synopsis of relevant cases.

A. Vulnerable Victim Adjustment

Appellate courts appear to be following two somewhat divergent lines of reasoning in their application of the vulnerable victim guideline. The broader interpretation of 3A1.1 requires only that the fact of victim vulnerability and the fact that the defendant knew or should have known of that vulnerability be established. The vulnerability need not have been a factor in the decision to commit the offense. For example, in United States v. Boise,916 F.2d 497 (9th Cir. 1990), cert. denied, 500 U.S. 934 (1991). the Ninth Circuit rejected the defendant's contention that 3A1.1 requires a defendant to select a victim intentionally because of the victim's age. The court held that a six-week-old infant is a vulnerable victim under 3A1.1 because the infant "is 'unusually vulnerable due to age,' not because [the defendant] selected him because of his vulnerability."Boise, at 506. Cf. United States v. Roberson, 872 F.2d 597, 608-09 (5th Cir.), cert. denied, 493 U.S. 861 (1989) (84-year-old man is a vulnerable victim due to age). Consistent with this reasoning, several other circuit courts have determined that the enhancement is appropriate if the defendant knew or should have known that the victim was vulnerable.See United States v. Hershkowitz, 968 F.2d 1503 (2d Cir. 1992); United States v. Seligsohn, 981 F.2d 1418 (3d Cir. 1992), cert. denied, 115 S. Ct. 920 (1995); United States v. Salyer, 893 F.2d 113, 117 (6th Cir. 1989). See also United States v. Caterino, 957 F.2d 681 (9th Cir.), cert. denied, 113 S. Ct. 129 (1992).

Other appellate courts have applied a somewhat more restrictive interpretation of 3A1.1 by requiring, additionally, that the defendant actually target the victim(s) because of their vulnerability. 20See, e.g., United States v. Smith, 39 F.3d 119 (6th Cir. 1994); United States v. Sutherland, 955 F.2d 25, 26 (7th Cir. 1992) (focus on whom the defendant targets, not on whom his solicitation happens to defraud);

United States v. Cree, 915 F.2d 352, 354 (8th Cir. 1990) (3A1.1 application justified only when a defendant's actions in some way exploited or took advantage of that vulnerability); United States v. Wilson, 913 F.2d 136 (4th Cir. 1990). For example, in United States v. Cree,915 F.2d 352 (8th Cir. 1990). the Eighth Circuit reversed application of 3A1.1 in a case in which the defendant struck with his car and killed an intoxicated pedestrian. The appellate court held that the vulnerable victim enhancement is justified only when a defendant's actions in some way exploited a victim's vulnerability.

In general, the appellate courts have been unwilling to accept the notion that elderly victims are per se "vulnerable victims" for purposes of 3A1.1, particularly in fraud cases. For example, the Tenth Circuit held in United States v. Smith,930 F.2d 1450 (10th Cir.), cert. denied, 112 S. Ct. 225 (1991). that "elderly" status cannot be equated with per se vulnerability.See also United States v. Lee, 973 F.2d 832 (10th Cir. 1992) (defrauded bank customers cannot be considered vulnerable victims under 3A1.1 solely because of elderly class; elderly victims must be shown unable to handle own financial affairs or otherwise unusually vulnerable). Where, however, other vulnerability factors converge with elderly status, the appellate courts typically have approved application of the 3A1.1 enhancement.See, e.g., United States v. Haines, 32 F.3d 290 (7th Cir. 1994); United States v. Harris, 38 F.3d 95 (2d Cir. 1994), cert. denied, 63 U.S.L.W. 3643 (Feb. 27, 1995); United States v. Brown, 7 F.3d 1155 (5th Cir. 1993); United States v. Lowder, 5 F.3d 467 (10th Cir. 1993); United States v. Yount, 960 F.2d 955 (11th Cir. 1992); United States v. Boult, 905 F.2d 1137 (8th Cir. 1990). Under some circumstances, targeted elderly fraud victims have been considered vulnerable victims without any additional showing of special vulnerability. For example, in United States v. Stewart,33 F.3d 764 (7th Cir. 1994). the Seventh Circuit upheld application of the 3A1.1 enhancement in a case in which a number of persons aged 70 and older were defrauded of annuities intended as payment for funeral services.

Circuit courts also have held that a vulnerable victim need not be the primary victim of the offense of conviction,United States v. Haggard, 41 F.3d 1320 (9th Cir. 1994); United States v. Eschevarria, 33 F.3d 175 (2d Cir. 1994); United States v. Stewart, 33 F.3d 764 (7th Cir. 1994); United States v. Lee, 973 F.2d 832 (10th Cir. 1992); United States v. Hildebrandt, 961 F.2d 116 (8th Cir.), cert. denied, 113 S. Ct. 225 (1992); United States v. Yount, 960 F.2d 955 (11th Cir. 1992); United States v. Bachynsky, 949 F.2d 722 (5th Cir. 1991), cert. denied, 113 S. Ct. 150 (1992). But see United States v. Wright, 12 F.3d 70 (6th Cir. 1993) (rejected the use of relevant conduct rules in deciding whether one of the defendant's victims was vulnerable, requiring that the person be a victim of the offense of conviction). nor need the victim suffer any actual harm. 27United States v. Roberson, 872 F.2d 597 (5th Cir.), cert. denied, 493 U.S. 861 (1989) (rejecting argument that aged victim could not be considered vulnerable because he was dead before his credit card was misused).

B. Upward Departure

Only a few appellate cases involving elderly fraud victims have discussed upward departures. In United States v. Kaye,23 F.3d 50 (2d Cir. 1994). a case in which a defendant defrauded his elderly great aunt of her life savings, the appellate court affirmed application of the 3A1.1 enhancement and also upheld an upward departure equivalent to two offense levels. The increased sentence was premised on fraud guideline commentary (application note 10) inviting an upward departure for cases in which the measurable loss did not fully capture the seriousness of the harm, a situation that existed here because the court said the elderly woman was left "financially dependent on the generosity of others, quite possibly for the rest of her life." In another fraud case involving elderly victims, the Third Circuit upheld an upward departure based on extreme psychological injury inflicted on victims who happened to be older.United States v. Astorri, 923 F.2d 1052 (3d Cir. 1991). The victims' elderly status was not expressly cited in support of the enhanced sentence.

V. EMPIRICAL ANALYSIS

A. General Approach

The Commission attempted to assess empirically the adequacy of current guideline sentences for fraud offenses involving victims over age 55. As a preliminary step to answering this ultimate question posed by the statutory directive, an effort was made to address the following: 1) whether fraud cases involving elderly victims, in comparison to those that do not, tend to receive more lengthy sentences, as measured by greater use of the vulnerable victim adjustment, upward departure, and court discretion to sentence at or near the top of the guideline range; 2) the frequency with which victim age is mentioned as a reason to increase the sentence using the available guideline mechanisms; and 3) whether it is possible empirically to determine a threshold in judges' perceptions about victim age that demarcates elderly fraud victims from non-elderly fraud victims.

B. Methodology and Data Limitations

Fiscal year 1993 sentence monitoring data and sentencing documents (principally, presentence reports and court sentencing orders) were analyzed to gather information for this study. Some of the information needed for these analyses e.g., the number of sentenced cases in which the fraud guideline was applied (6,125 in FY 1993), the number of fraud cases in which the vulnerable victim adjustment was applied (104 in FY 1993) was readily available in the Commission's sentencing information databank. Other needed information specifically, whether a fraud case involved a victim over age 55 and the impact of that circumstance on the sentence previously had not been collected. In an effort to obtain this information, the Commission reviewed case file documents in 1) all 104 fraud (2F1.1) cases in which the vulnerable victim adjustment (3A1.1) was applied, 2) all 65 fraud (2F1.1) cases involving an upward departure, 3) a randomly selected sample of 60 fraud cases sentenced near the top of the guideline range, and 4) a randomly selected sample of 50 other fraud cases. Through examining sentencing documents in the latter sample groups, it was hoped that some useful information could be obtained about how often fraud cases involving over-age-55 victims do not result in enhanced sentences under 3A1.1 or through an upward departure.

This data collection effort was hindered considerably by the general lack of information on victim age in case files. This information deficiency, while frustrating in terms of this study, is not surprising. Probation officers are not required to report victim age information in the presentence report. Neither are judges ordinarily required to include this information in their sentencing orders or statements of sentencing reasons. These realities and the consequent lack of identifiable victim age information severely limited the empirical analyses.

C. Findings

Unfortunately, case file information on victim age was insufficient for a comprehensive assessment of how often frauds involve over-age-55 victims or how often the presence of such victims is associated with increased sentence length (in terms of applying the vulnerable victim upward adjustment, an upward departure from the guideline range, or sentencing near the top of the guideline range). In contrast, the available data did allow some analysis of the association of victim age with court use of the available sentence enhancement mechanisms.

1. Use of 3A1.1 in Cases Involving Older Fraud Victims

Sixty-three of the 104 fraud cases sentenced in FY 1993 in which the vulnerable victim enhancement was applied contained either general descriptive or numerical information on victim age. Analysis of victim age status for cases in which 3A1.1 was applied shows that the most frequent descriptive term for victims considered vulnerable by the courts is "elderly" (67%). The next most frequent term is "senior citizen" (13%). In 61 of the 63 cases in which some age information was available, it appeared that application of the 3A1.1 adjustment was based, at least in part, on the victims' advanced ages. In 22 (36%) of these 61 3A1.1 cases, victim age was the sole justification cited for the vulnerable victim adjustment. In the remaining 39 cases (64%), age, in combination with other factors, provided the basis for the enhancement. These other factors included the victims' physical or mental condition and susceptibility to the fraud conduct (e.g., the fact that an older victim was a client of the defendant). These limited data indicate that courts are using the vulnerable victim adjustment to provide enhanced sentences in fraud cases involving older victims, but the frequency with which this is occurring could not be determined.

The same limited data suggest, however, that the threshold at which older age is equated with unusual vulnerability tends to be considerably higher than age 55. In the 18 older victim cases in which 3A1.1 was applied and the specific numerical age of the victim was known, the average victim age was 80.4 years.Median = 81.5, mode = 80, n = 18. In the 12 cases in which the numerical age of more than one older victim was provided, the minimum and maximum ages were coded. The mean of the resulting range in these cases was 68.3 years.Median = 63.2, mode = 60, n = 12.

2. Upward Departure in Fraud Cases Involving Older Victims

An analysis of upward departures in fraud cases produced very limited evidence of courts using this mechanism as a means for enhancing fraud penalties generally, or specifically in fraud cases involving older victims. In fiscal year 1993, only 65 (1%) of the 6,125 2F1.1 cases resulted in an upward departure. Of these upward departure cases, six provided victim age or age status information. In only one case did the court base the upward departure, at least in part, on the age or age status of the victims. This limited analysis of 2F1.1 upward departure cases indicates that courts tend not to view upward departures as a mechanism for enhancing penalties in cases involving older fraud victims. It also may indicate that sentencing judges perceive the guidelines as providing adequate penalties in cases involving older fraud victims.

3. Sentencing Near the Top of the Guideline Range in Fraud Cases Involving Older Victims

Sentencing judges may consider virtually any factor,USSG 5H1.10 forbids consideration of race, sex, national origin, creed, religion, and socioeconomic status as sentencing factors. including advanced victim age, in choosing the specific sentence within the available guideline range.See USSG 1B1.4 (Information to be Used in Imposing Sentence (Selecting a Point Within the Guideline Range or Departing from the Guidelines)). In general, guideline ranges are constructed so that the maximum permissible sentence in a range exceeds the minimum by the greater of six months or 25 percent. See 28 U.S.C. 994(b)(2). Consequently, sentencing near the top of the applicable guideline range is one option that can be used to provide more punitive sentences when elderly persons are victims of fraud.

Again, lack of information on victim age precluded any overall assessment of whether courts tend to sentence higher in the guideline range when older victims were involved. Two different assessments were attempted to test the use of higher within-range sentences as a means of punishing victimization of older persons. First, a randomly selected sample of ten percent (60) of fraud cases sentenced in the upper quarter of the guideline range was reviewed to determine if there was any correlation between the position of the sentence within the range and advanced victim age. Unfortunately, victim age information could be ascertained in only two of these cases, and in neither case did that factor appear to affect the sentence. Secondly, an examination of sentence location within the guideline range of fraud cases in which the vulnerable victim adjustment was applied indicated that about two-thirds of those cases in which the victims were older persons were sentenced in the lower half of the guideline range. While firm conclusions cannot be drawn from the available information, courts do not appear to be regularly sentencing higher in the guideline range when older persons are victimized and the vulnerable victim adjustment is applied. This, in turn, suggests that the two-level vulnerable victim increase generally is perceived to be an adequate enhancement when applied to older victims of fraud.

VI. CONCLUSIONS

The current statutory directive asks the Commission to report to Congress the results of its review of whether victim-related adjustments for fraud offenses perpetrated against persons over age 55 are adequate. While this assessment perhaps could be made in a variety of ways, and ultimately involves a policy judgment, the Commission initially approached the question by attempting to evaluate the current operation of the guidelines for fraud offenses involving older victims. In other words, as one way of addressing the question of "adequacy," the Commission sought to measure the degree to which sentencing judges are using available guideline mechanisms for providing higher sentences when older fraud victims are involved, and relatedly, whether the case law or empirical data suggest any significant dissatisfaction with available penalty levels. Regrettably, lack of data on victim age proved to be a substantial hindrance to drawing firm conclusions from the several analyses. The Commission did find some evidence that courts are using available guideline mechanisms, particularly the vulnerable victim enhancement, when frauds impact on persons of advanced age. When the vulnerable victim adjustment is applied, courts are finding the two-level enhancement adequate. The Commission found, additionally, that the limited data do not indicate any clear-cut age threshold of perceived victim vulnerability, but it appears that most older victims who are considered vulnerable are substantially older than age 55.

Appellate case law involving the vulnerable victim adjustment indicates that, for the most part, courts are applying guideline 3A1.1 in cases involving older victims in a manner that the Commission intended. There are, however, some intercircuit inconsistencies in interpreting the guideline language that the Commission will further evaluate, with the aim of developing appropriate clarifying amendments.

To supplement the above-described empirical analyses, the Commission currently is seeking public comment on the following issues:

Issue for Comment: Section 250002 of the Violent Crime Control and Law Enforcement Act of 1994 provides enhanced imprisonment penalties of up to five years when certain fraud offenses involve telemarketing conduct and enhanced imprisonment penalties of up to ten years when a telemarketing fraud offense involves victimizing ten or more persons over the age of 55 or targeting persons over the age of 55. Section 250003 directs the Commission to review and, if necessary, amend the sentencing guidelines to ensure that victim-related adjustments for fraud offenses against older victims (defined as over the age of 55) are adequate.

* * * * *

The Commission invites comment on whether the current victim-related adjustments are adequate to address such cases or whether 2F1.1 or 3A1.1 should be amended. Focusing on 3A1.1 as a possible vehicle for remedying any inadequately addressed concerns regarding older victims, the Commission specifically invites comment as to how this adjustment might best be amended. For example, should commentary be added to establish a rebuttable presumption related to age? If so, what threshold victim age should be equated with victim vulnerability (recognizing that section 250002 uses age 55 for fraud offenses while section 240002 uses age 65 for certain violent offenses)? If such a presumption for older victims is established, should there also be a counterpart presumptive age for vulnerability of young victims (e.g., victims under age 16)? In lieu of a rebuttable presumption, should 3A1.1 be amended to require an upward adjustment in the offense level if the offense involved victim(s) older or younger than the designated threshold ages? The Commission also invites comment on whether the provisions concerning vulnerable victims should be different for telemarketing fraud than other types of fraud offenses.60 Fed. Reg. 2443.

At this juncture, the Commission's review of the adequacy of fraud penalties in cases involving older victims necessarily is incomplete. As part of the ongoing, 1994-95 guideline amendment process, the Commission will carefully consider written public comment, together with testimony at its March 14, 1995, public hearing on proposed amendments before making final decisions on these issues. Should this process support the need for guideline amendments to address more effectively adverse impacts on older persons in fraud offenses, the Commission intends to promulgate any needed amendments and submit them to Congress for review no later than the May 1 statutory deadline.See 28 U.S.C. 994(p) (1993).

Appendix A
SELECTED GUIDELINE PROVISIONS
APPLICABLE TO A STUDY OF FRAUD OFFENSES
INVOLVING OLDER VICTIMS

2F1.1. Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States

(a) Base Offense Level: 6

(b) Specific Offense Characteristics

(1) If the loss exceeded $2,000, increase the offense level as follows:

Loss (Apply the Greatest) Increase in Level

(A) $2,000 or less no increase

(B) More than $2,000 add 1

(C) More than $5,000 add 2

(D) More than $10,000 add 3

(E) More than $20,000 add 4

(F) More than $40,000 add 5

(G) More than $70,000 add 6

(H) More than $120,000 add 7

(I) More than $200,000 add 8

(J) More than $350,000 add 9

(K) More than $500,000 add 10

(L) More than $800,000 add 11

(M) More than $1,500,000 add 12

(N) More than $2,500,000 add 13

(O) More than $5,000,000 add 14

(P) More than $10,000,000 add 15

(Q) More than $20,000,000 add 16

(R) More than $40,000,000 add 17

(S) More than $80,000,000 add 18.

(2) If the offense involved (A) more than minimal planning, or (B) a scheme to defraud more than one victim, increase by 2 levels.

(3) If the offense involved (A) a misrepresentation that the defendant was acting on behalf of a charitable, educational, religious or political organization, or a government agency, or (B) violation of any judicial or administrative order, injunction, decree, or process not addressed elsewhere in the guidelines, increase by 2 levels. If the resulting offense level is less than level 10, increase to level 10.

(4) If the offense involved the conscious or reckless risk of serious bodily injury, increase by 2 levels. If the resulting offense level is less than level 13, increase to level 13.

(5) If the offense involved the use of foreign bank accounts or transactions to conceal the true nature or extent of the fraudulent conduct, and the offense level as determined above is less than level 12, increase to level 12.

(6) If the offense --

(A) substantially jeopardized the safety and soundness of a financial institution; or

(B) affected a financial institution and the defendant derived more than $1,000,000 in gross receipts from the offense,

increase by 4 levels. If the resulting offense level is less than level 24, increase to level 24.

Commentary

Statutory Provisions: 7 U.S.C. 6, 6b, 6c, 6h, 6o, 13, 23; 15 U.S.C. 50, 77e, 77q, 77x, 78d, 78j, 78ff, 80b-6, 1644; 18 U.S.C. 225, 285-289, 471-473, 500, 510, 659, 1001-1008, 1010-1014, 1016-1022, 1025, 1026, 1028, 1029, 1031, 1341-1344, 2314, 2315. For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1. The adjustments in 2F1.1(b)(3) are alternative rather than cumulative. If in a particular case, however, both of the enumerated factors applied, an upward departure might be warranted.

2. "More than minimal planning" (subsection (b)(2)(A)) is defined in the Commentary to 1B1.1 (Application Instructions).

3. "Scheme to defraud more than one victim," as used in subsection (b)(2)(B), refers to a design or plan to obtain something of value from more than one person. In this context, "victim" refers to the person or entity from which the funds are to come directly. Thus, a wire fraud in which a single telephone call was made to three distinct individuals to get each of them to invest in a pyramid scheme would involve a scheme to defraud more than one victim, but passing a fraudulently endorsed check would not, even though the maker, payee and/or payor all might be considered victims for other purposes, such as restitution.

4. Subsection (b)(3)(A) provides an adjustment for a misrepresentation that the defendant was acting on behalf of a charitable, educational, religious or political organization, or a government agency. Examples of conduct to which this factor applies would include a group of defendants who solicit contributions to a non-existent famine relief organization by mail, a defendant who diverts donations for a religiously affiliated school by telephone solicitations to church members in which the defendant falsely claims to be a fund-raiser for the school, or a defendant who poses as a federal collection agent in order to collect a delinquent student loan.

5. Subsection (b)(3)(B) provides an adjustment for violation of any judicial or administrative order, injunction, decree, or process. If it is established that an entity the defendant controlled was a party to the prior proceeding, and the defendant had knowledge of the prior decree or order, this provision applies even if the defendant was not a specifically named party in that prior case. For example, a defendant whose business was previously enjoined from selling a dangerous product, but who nonetheless engaged in fraudulent conduct to sell the product, would be subject to this provision. This subsection does not apply to conduct addressed elsewhere in the guidelines; e.g., a violation of a condition of release (addressed in 2J1.7 (Offense Committed While on Release)) or a violation of probation (addressed in 4A1.1 (Criminal History Category)).

6. Some fraudulent schemes may result in multiple-count indictments, depending on the technical elements of the offense. The cumulative loss produced by a common scheme or course of conduct should be used in determining the offense level, regardless of the number of counts of conviction. See Chapter Three, Part D (Multiple Counts).

7. Valuation of loss is discussed in the Commentary to 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft). As in theft cases, loss is the value of the money, property, or services unlawfully taken; it does not, for example, include interest the victim could have earned on such funds had the offense not occurred. Consistent with the provisions of 2X1.1 (Attempt, Solicitation or Conspiracy), if an intended loss that the defendant was attempting to inflict can be determined, this figure will be used if it is greater than the actual loss. Frequently, loss in a fraud case will be the same as in a theft case. For example, if the fraud consisted of selling or attempting to sell $40,000 in worthless securities, or representing that a forged check for $40,000 was genuine, the loss would be $40,000.

There are, however, instances where additional factors are to be considered in determining the loss or intended loss:

(a) Fraud Involving Misrepresentation of the Value of an Item or Product Substitution

A fraud may involve the misrepresentation of the value of an item that does have some value (in contrast to an item that is worthless). Where, for example, a defendant fraudulently represents that stock is worth $40,000 and the stock is worth only $10,000, the loss is the amount by which the stock was overvalued (i.e., $30,000). In a case involving a misrepresentation concerning the quality of a consumer product, the loss is the difference between the amount paid by the victim for the product and the amount for which the victim could resell the product received.

(b) Fraudulent Loan Application and Contract Procurement Cases

In fraudulent loan application cases and contract procurement cases, the loss is the actual loss to the victim (or if the loss has not yet come about, the expected loss). For example, if a defendant fraudulently obtains a loan by misrepresenting the value of his assets, the loss is the amount of the loan not repaid at the time the offense is discovered, reduced by the amount the lending institution has recovered (or can expect to recover) from any assets pledged to secure the loan. However, where the intended loss is greater than the actual loss, the intended loss is to be used.

In some cases, the loss determined above may significantly understate or overstate the seriousness of the defendant's conduct. For example, where the defendant substantially understated his debts to obtain a loan, which he nevertheless repaid, the loss determined above (zero loss) will tend not to reflect adequately the risk of loss created by the defendant's conduct. Conversely, a defendant may understate his debts to a limited degree to obtain a loan (e.g., to expand a grain export business), which he genuinely expected to repay and for which he would have qualified at a higher interest rate had he made truthful disclosure, but he is unable to repay the loan because of some unforeseen event (e.g., an embargo imposed on grain exports) which would have caused a default in any event. In such a case, the loss determined above may overstate the seriousness of the defendant's conduct. Where the loss determined above significantly understates or overstates the seriousness of the defendant's conduct, an upward or downward departure may be warranted.

(c) Consequential Damages in Procurement Fraud and Product Substitution Cases

In contrast to other types of cases, loss in a procurement fraud or product substitution case includes not only direct damages, but also consequential damages that were reasonably foreseeable. For example, in a case involving a defense product substitution offense, the loss includes the government's reasonably foreseeable costs of making substitute transactions and handling or disposing of the product delivered or retrofitting the product so that it can be used for its intended purpose, plus the government's reasonably foreseeable cost of rectifying the actual or potential disruption to government operations caused by the product substitution. Similarly, in the case of fraud affecting a defense contract award, loss includes the reasonably foreseeable administrative cost to the government and other participants of repeating or correcting the procurement action affected, plus any increased cost to procure the product or service involved that was reasonably foreseeable. Inclusion of reasonably foreseeable consequential damages directly in the calculation of loss in procurement fraud and product substitution cases reflects that such damages frequently are substantial in such cases.

(d) Diversion of Government Program Benefits

In a case involving diversion of government program benefits, loss is the value of the benefits diverted from intended recipients or uses.

(e) Davis-Bacon Act Cases

In a case involving a Davis-Bacon Act violation (a violation of 40 U.S.C. 276a, criminally prosecuted under 18 U.S.C. 1001), the loss is the difference between the legally required and actual wages paid.

8. For the purposes of subsection (b)(1), the loss need not be determined with precision. The court need only make a reasonable estimate of the loss, given the available information. This estimate, for example, may be based on the approximate number of victims and an estimate of the average loss to each victim, or on more general factors, such as the nature and duration of the fraud and the revenues generated by similar operations. The offender's gain from committing the fraud is an alternative estimate that ordinarily will underestimate the loss.

9. In the case of a partially completed offense (e.g., an offense involving a completed fraud that is part of a larger, attempted fraud), the offense level is to be determined in accordance with the provisions of 2X1.1 (Attempt, Solicitation, or Conspiracy) whether the conviction is for the substantive offense, the inchoate offense (attempt, solicitation, or conspiracy), or both; see Application Note 4 in the Commentary to 2X1.1.

10. In cases in which the loss determined under subsection (b)(1) does not fully capture the harmfulness and seriousness of the conduct, an upward departure may be warranted. Examples may include the following:

(a) a primary objective of the fraud was non-monetary; or the fraud caused or risked reasonably foreseeable, substantial non-monetary harm;

(b) false statements were made for the purpose of facilitating some other crime;

(c) the offense caused reasonably foreseeable, physical or psychological harm or severe emotional trauma;

(d) the offense endangered national security or military readiness;

(e) the offense caused a loss of confidence in an important institution;

(f) the offense involved the knowing endangerment of the solvency of one or more victims.

In a few instances, the loss determined under subsection (b)(1) may overstate the seriousness of the offense. This may occur, for example, where a defendant attempted to negotiate an instrument that was so obviously fraudulent that no one would seriously consider honoring it. In such cases, a downward departure may be warranted.

11. Offenses involving fraudulent identification documents and access devices, in violation of 18 U.S.C. 1028 and 1029, are also covered by this guideline. Where the primary purpose of the offense involved the unlawful production, transfer, possession, or use of identification documents for the purpose of violating, or assisting another to violate, the laws relating to naturalization, citizenship, or legal resident status, apply 2L2.1 or 2L2.2, as appropriate, rather than 2F1.1. In the case of an offense involving false identification documents or access devices, an upward departure may be warranted where the actual loss does not adequately reflect the seriousness of the conduct.

12. If the fraud exploited vulnerable victims, an enhancement will apply. See 3A1.1 (Vulnerable Victim).

13. Sometimes, offenses involving fraudulent statements are prosecuted under 18 U.S.C. 1001, or a similarly general statute, although the offense is also covered by a more specific statute. Examples include false entries regarding currency transactions, for which 2S1.3 would be more apt, and false statements to a customs officer, for which 2T3.1 likely would be more apt. In certain other cases, the mail or wire fraud statutes, or other relatively broad statutes, are used primarily as jurisdictional bases for the prosecution of other offenses. For example, a state arson offense where a fraudulent insurance claim was mailed might be prosecuted as mail fraud. Where the indictment or information setting forth the count of conviction (or a stipulation as described in 1B1.2(a)) establishes an offense more aptly covered by another guideline, apply that guideline rather than 2F1.1. Otherwise, in such cases, 2F1.1 is to be applied, but a departure from the guidelines may be considered.

14. "Financial institution," as used in this guideline, is defined to include any institution described in 18 U.S.C. 20, 656, 657, 1005-1007, and 1014; any state or foreign bank, trust company, credit union, insurance company, investment company, mutual fund, savings (building and loan) association, union or employee pension fund; any health, medical or hospital insurance association; brokers and dealers registered, or required to be registered, with the Securities and Exchange Commission; futures commodity merchants and commodity pool operators registered, or required to be registered, with the Commodity Futures Trading Commission; and any similar entity, whether or not insured by the federal government. "Union or employee pension fund" and "any health, medical, or hospital insurance association," as used above, primarily include large pension funds that serve many individuals (e.g., pension funds of large national and international organizations, unions, and corporations doing substantial interstate business), and associations that undertake to provide pension, disability, or other benefits (e.g., medical or hospitalization insurance) to large numbers of persons.

15. An offense shall be deemed to have "substantially jeopardized the safety and soundness of a financial institution" if, as a consequence of the offense, the institution became insolvent; substantially reduced benefits to pensioners or insureds; was unable on demand to refund fully any deposit, payment, or investment; was so depleted of its assets as to be forced to merge with another institution in order to continue active operations; or was placed in substantial jeopardy of any of the above.

16. "The defendant derived more than $1,000,000 in gross receipts from the offense," as used in subsection (b)(6)(B), generally means that the gross receipts to the defendant individually, rather than to all participants, exceeded $1,000,000. "Gross receipts from the offense" includes all property, real or personal, tangible or intangible, which is obtained directly or indirectly as a result of such offense. See 18 U.S.C. 982(a)(4).

17. If the defendant is convicted under 18 U.S.C. 225 (relating to a continuing financial crimes enterprise), the offense level is that applicable to the underlying series of offenses comprising the "continuing financial crimes enterprise."

18. If subsection (b)(6)(A) or (B) applies, there shall be a rebuttable presumption that the offense involved "more than minimal planning."

Background: This guideline is designed to apply to a wide variety of fraud cases. The statutory maximum term of imprisonment for most such offenses is five years. The guideline does not link offense characteristics to specific code sections. Because federal fraud statutes are so broadly written, a single pattern of offense conduct usually can be prosecuted under several code sections, as a result of which the offense of conviction may be somewhat arbitrary. Furthermore, most fraud statutes cover a broad range of conduct with extreme variation in severity.

Empirical analyses of pre-guidelines practice showed that the most important factors that determined sentence length were the amount of loss and whether the offense was an isolated crime of opportunity or was sophisticated or repeated. Accordingly, although they are imperfect, these are the primary factors upon which the guideline has been based.

The extent to which an offense is planned or sophisticated is important in assessing its potential harmfulness and the dangerousness of the offender, independent of the actual harm. A complex scheme or repeated incidents of fraud are indicative of an intention and potential to do considerable harm. In pre-guidelines practice, this factor had a significant impact, especially in frauds involving small losses. Accordingly, the guideline specifies a 2-level enhancement when this factor is present.

Use of false pretenses involving charitable causes and government agencies enhances the sentences of defendants who take advantage of victims' trust in government or law enforcement agencies or their generosity and charitable motives. Taking advantage of a victim's self-interest does not mitigate the seriousness of fraudulent conduct. However, defendants who exploit victims' charitable impulses or trust in government create particular social harm. A defendant who has been subject to civil or administrative proceedings for the same or similar fraudulent conduct demonstrates aggravated criminal intent and is deserving of additional punishment for not conforming with the requirements of judicial process or orders issued by federal, state, or local administrative agencies.

Offenses that involve the use of transactions or accounts outside the United States in an effort to conceal illicit profits and criminal conduct involve a particularly high level of sophistication and complexity. These offenses are difficult to detect and require costly investigations and prosecutions. Diplomatic processes often must be used to secure testimony and evidence beyond the jurisdiction of United States courts. Consequently, a minimum level of 12 is provided for these offenses.

Subsection (b)(6)(A) implements, in a broader form, the instruction to the Commission in Section 961(m) of Public Law 101-73.

Subsection (b)(6)(B) implements the instruction to the Commission in Section 2507 of Public Law 101-647.

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3A1.1. Vulnerable Victim

If the defendant knew or should have known that a victim of the offense was unusually vulnerable due to age, physical or mental condition, or that a victim was otherwise particularly susceptible to the criminal conduct, increase by 2 levels.

Commentary

Application Notes:

1. This adjustment applies to offenses where an unusually vulnerable victim is made a target of criminal activity by the defendant. The adjustment would apply, for example, in a fraud case where the defendant marketed an ineffective cancer cure or in a robbery where the defendant selected a handicapped victim. But it would not apply in a case where the defendant sold fraudulent securities by mail to the general public and one of the victims happened to be senile. Similarly, for example, a bank teller is not an unusually vulnerable victim solely by virtue of the teller's position in a bank.

2. Do not apply this adjustment if the offense guideline specifically incorporates this factor. For example, where the offense guideline provides an enhancement for the age of the victim, this guideline should not be applied unless the victim was unusually vulnerable for reasons unrelated to age.

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5K2.0. Grounds for Departure (Policy Statement)

Under 18 U.S.C. 3553(b) the sentencing court may impose a sentence outside the range established by the applicable guideline, if the court finds "that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." Circumstances that may warrant departure from the guidelines pursuant to this provision cannot, by their very nature, be comprehensively listed and analyzed in advance. The controlling decision as to whether and to what extent departure is warranted can only be made by the courts. Nonetheless, this subpart seeks to aid the court by identifying some of the factors that the Commission has not been able to take into account fully in formulating the guidelines. Any case may involve factors in addition to those identified that have not been given adequate consideration by the Commission. Presence of any such factor may warrant departure from the guidelines, under some circumstances, in the discretion of the sentencing court. Similarly, the court may depart from the guidelines, even though the reason for departure is taken into consideration in the guidelines (e.g., as a specific offense characteristic or other adjustment), if the court determines that, in light of unusual circumstances, the guideline level attached to that factor is inadequate.

Where, for example, the applicable offense guideline and adjustments do take into consideration a factor listed in this subpart, departure from the applicable guideline range is warranted only if the factor is present to a degree substantially in excess of that which ordinarily is involved in the offense. Thus, disruption of a governmental function, 5K2.7, would have to be quite serious to warrant departure from the guidelines when the applicable offense guideline is bribery or obstruction of justice. When the theft offense guideline is applicable, however, and the theft caused disruption of a governmental function, departure from the applicable guideline range more readily would be appropriate. Similarly, physical injury would not warrant departure from the guidelines when the robbery offense guideline is applicable because the robbery guideline includes a specific adjustment based on the extent of any injury. However, because the robbery guideline does not deal with injury to more than one victim, departure would be warranted if several persons were injured.

Also, a factor may be listed as a specific offense characteristic under one guideline but not under all guidelines. Simply because it was not listed does not mean that there may not be circumstances when that factor would be relevant to sentencing. For example, the use of a weapon has been listed as a specific offense characteristic under many guidelines, but not under immigration violations. Therefore, if a weapon is a relevant factor to sentencing for an immigration violation, the court may depart for this reason.

An offender characteristic or other circumstance that is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range may be relevant to this determination if such characteristic or circumstance is present to an unusual degree and distinguishes the case from the "heartland" cases covered by the guidelines in a way that is important to the statutory purposes of sentencing.

Commentary

The last paragraph of this policy statement sets forth the conditions under which an offender characteristic or other circumstance that is not ordinarily relevant to a departure from the applicable guideline range may be relevant to this determination. The Commission does not foreclose the possibility of an extraordinary case that, because of a combination of such characteristics or circumstances, differs significantly from the "heartland" cases covered by the guidelines in a way that is important to the statutory purposes of sentencing, even though none of the characteristics or circumstances individually distinguishes the case. However, the Commission believes that such cases will be extremely rare.

In the absence of a characteristic or circumstance that distinguishes a case as sufficiently atypical to warrant a sentence different from that called for under the guidelines, a sentence outside the guideline range is not authorized. See 18 U.S.C. 3553(b). For example, dissatisfaction with the available sentencing range or a preference for a different sentence than that authorized by the guidelines is not an appropriate basis for a sentence outside the applicable guideline range.

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5K2.3. Extreme Psychological Injury (Policy Statement)

If a victim or victims suffered psychological injury much more serious than that normally resulting from commission of the offense, the court may increase the sentence above the authorized guideline range. The extent of the increase ordinarily should depend on the severity of the psychological injury and the extent to which the injury was intended or knowingly risked.

Normally, psychological injury would be sufficiently severe to warrant application of this adjustment only when there is a substantial impairment of the intellectual, psychological, emotional, or behavioral functioning of a victim, when the impairment is likely to be of an extended or continuous duration, and when the impairment manifests itself by physical or psychological symptoms or by changes in behavior patterns. The court should consider the extent to which such harm was likely, given the nature of the defendant's conduct.

Appendix B

Synopsis of Relevant Case Law on Guideline 3A1.1 (Vulnerable Victim)

First Circuit

United States v. Pavao, 948 F.2d 74 (1st Cir. 1991): Affirmed application of 3A1.1 to a 21-year-old female drug user. Although not everyone involved with drugs would be ipso facto "vulnerable victim," sentencing court had opportunity to hear victim testify and to observe firsthand and, thus, consider her as an individual, rather than as member of class of 21-year-old female drug users.

United States v. Sabatino, 943 F.2d 94 (1st Cir. 1991): The appellate court reversed application of 3A1.1 based on an interstate prostitution ring's use of single teenage mothers as prostitutes. The victims in this case were not atypical because the defendants were convicted under the Mann Act, which was designed to protect women and girls who, because of "their innocence, their hard lives and their vulnerability, were particularly susceptible to becoming victims of unscrupulous men and women who would take advantage of their situation for immoral purposes."

Second Circuit

United States v. Harris, 38 F.3d 95 (2d Cir. 1994), cert.denied, 63 U.S.L.W. 6343 (Feb. 27, 1995): Affirmed application of 3A1.1 where victims - a grieving widow, a 71-year-old widow, and a 23 year old recently involved in an accident - were particularly susceptible to alluring promises of financial security by virtue of their ages and difficulties in providing for themselves.

United States v. Kaye, 23 F.3d 50 (2d Cir. 1994): Affirmed application of 3A1.1 where defendant defrauded his great-aunt of her life savings, and affirmed an upward departure pursuant to 2F1.1, comment. (n. 10)(1992) to reflect the serious degree of harm caused by the fraud.

Third Circuit

United States v. Seligsohn, 981 F.2d 1418 (3d Cir. 1992), cert. denied,115 S. Ct. 920 (1995): Affirmed application of 3A1.1 in case in which defendants operated a roof repair scam and victims were elderly homeowners. Defendants knew or should have known that the elderly victims would be particularly vulnerable to the consumer fraud scheme because in many instances the scheme depended upon the victims' inability to verify the need to replace or repair the roofs.

United States v. Astorri, 923 F.2d 1052 (3d Cir. 1991): Affirmed application of 3A1.1 in case in which the defendant defrauded, among others, his girlfriend's parents of their lifesavings. Because application of 3A1.1 was sufficiently based on the victimization of the parents, the appellate court did not address whether the court's other finding of basing the enhancement on victims' ages was correct.

Fourth Circuit

United States v. Depew, 932 F.2d 324 (4th Cir.), cert. denied, 502 U.S. 873 (1991): Affirmed application of 3A1.1 to defendant convicted of conspiracy to exploit a minor in a sexually explicit film, although an actual victim had not been selected. Because a 12-year-old boy was to be targeted for the film, the adjustment was proper, as any boy of such age would be "unusually vulnerable" if the defendant was successful in his endeavor.

Fifth Circuit

United States v. Brown, 7 F.3d 1155 (5th Cir. 1993): Affirmed application of 3A1.1 where female fraud victims were specifically chosen for their age, loneliness, and gullibility.

United States v. Rocha, 916 F.2d 219 (5th Cir. 1990), cert. denied, 500 U.S. 934 (1991): Affirmed application of 3A1.1 based on kidnapping victim chosen because of his young age and who, as the district court observed, was still terrified at time of trial.

United States v. Roberson, 872 F.2d 597 (5th Cir.), cert. denied, 493 U.S. 861 (1989): Affirmed application of 3A1.1 in case in which 84-year-old man was vulnerable victim due to age.

Sixth Circuit

United States v. Smith, 39 F.3d 119 (6th Cir. 1994): Reversed district court's application of 3A1.1 where a fraudulent scheme victimized some elderly victims because the evidence did not support the contention that the defendant chose her victims because of any particular vulnerability.

Seventh Circuit

United States v. Haines, 32 F.3d 290 (7th Cir. 1994): Affirmed application of 3A1.1 where fraud victim was an 87-year-old woman and relied completely on the defendant to manage her affairs.

United States v. Stewart, 33 F.3d 764 (7th Cir. 1994): Reversed district court's failure to apply 3A1.1 where the defendant targeted elderly persons, inducing them to buy annuities to pay for "pre-need funeral services."

United States v. Newman, 965 F.2d 206 (7th Cir.), cert. denied, 113 S.Ct. 470 (1992): Affirmed application of 3A1.1 where the primary victim of the fraud was a 20-year-old woman. The appellate court held that a 20 year old "is hardly an experienced adult well able to resist the lies and threats of a much older person." Furthermore, the circuit court held that as a previous victim of sexual abuse, she could be found to be particularly susceptible to sexual exploitation as an adult. Moreover, the defendant must have realized at some time during their eight-month relationship that the victim was abnormally susceptible to intimidation and deceit.

United States v. Sutherland, 955 F.2d 25 (7th Cir. 1992): Reversed district court's finding that victims were unusually vulnerable because of their ages and status as war veterans. The appellate court found that neither the victims' ages nor their war veteran status made them unusually vulnerable because the defendant targeted both young and old war veterans. The court did not address whether aged persons are "unusually vulnerable" as a matter of law.

United States v. White, 903 F.2d 457 (7th Cir. 1990): Affirmed application of 3A1.1 where victim was in his sixties and experienced respiratory problems. The appellate court found it reasonable and logical to believe that the defendant decided to kidnap the elderly gas station attendant with respiratory problems because he would be less likely to flee or resist.

Eighth Circuit

United States v. Callaway, 943 F.2d 29 (8th Cir. 1991): Reversed application of 3A1.1 in case in which defendant fraudulently received social security benefits intended for her infant grandchild who had cerebral palsy and was blind. Although the victim was young and handicapped, the record did not support a finding that the defendant targeted the victim because of the victim's youth or handicap.

United States v. Paige, 923 F.2d 112 (8th Cir. 1991): Reversed application of 3A1.1 where the only evidence of vulnerability was the defendant's statements that he targeted young caucasian store clerks whom he considered "inexperienced and naive" as victims of his scheme to pass falsified money orders. Appellate court found that the clerks "who accepted the falsified money orders were not physically or mentally disabled, nor were they of such youthful ages as to give rise to any presumption of unusual vulnerability."

United States v. Boult, 905 F.2d 1137 (8th Cir. 1990): Affirmed application of 3A1.1 where fraud victim was selected because of his age, mental condition, and physical stature.

Ninth Circuit

United States v. Luscier, 983 F.2d 1507 (9th Cir. 1993): Affirmed application of 3A1.1 in case in which the intoxicated defendant stabbed his 83-year-old elderly aunt who was unable to move without a walker. Defendant was deemed responsible for his intoxication and should have known that his aunt was vulnerable.

United States v. Caterino, 957 F.2d 681 (9th Cir.), cert. denied, 113 S.Ct. 129 (1992): Affirmed application of 3A1.1 in case in which defendants used "'the telephone to get behind the defenses'" of old people "'who don't have the ability to protect themselves.'"

United States v. White, 974 F.2d 1135 (9th Cir. 1992): Affirmed application of 3A1.1 in case involving child victim. Merely because the crime of involuntary manslaughter itself was not an intentional crime did not mean that defendant did not know or should not have known that two-year-old victim of the offense was "unusually vulnerable" due to age.

United States v. Boise, 916 F.2d 497 (9th Cir. 1990), cert. denied, 500 U.S. 934 (1991): Affirmed application of 3A1.1 where defendant was convicted of killing a six-week-old infant. The court rejected the argument that 3A1.1 was only applicable where a defendant selects a victim intentionally because of his vulnerability. The court concluded that the defendant's son was a vulnerable victim for purposes of 3A1.1 "because a six-week-old infant is 'unusually vulnerable due to age' and not because [Boise] selected him because of his vulnerability."

Tenth Circuit

United States v. Lowder, 5 F.3d 467 (10th Cir. 1993): Affirmed application of 3A1.1 where the victims were inexperienced, elderly, and particularly reliant on the funds fraudulently stolen from them.

United States v. Lee, 973 F.2d 832 (10th Cir. 1992): Reversed application of 3A1.1 that was based solely on the "victims' membership in the class of 'elderly' persons[,]" without any particularized finding of vulnerability. Appellate court held that the label "elderly" is too vague, standing alone, to provide a basis for a finding of unusual vulnerability.

United States v. Pearce, 967 F.2d 434 (10th Cir.), cert. denied, 113 S.Ct. 341 (1992): Affirmed application of 3A1.1 based on the "unusual vulnerability of the victim" where the defendant kidnapped a 57-year-old woman who was small, frail, and recovering from a double mastectomy, and sexually assaulted her during the course of the kidnapping. Held that 3A1.1 encompasses cases in which a defendant, while committing the offense for which he is convicted, targets the victim for related, criminal conduct because he knows the victim is unusually vulnerable to that criminal conduct.

United States v. Smith, 930 F.2d 1450 (10th Cir.), cert. denied, 502 U.S. 879 (1991): Reversed for failure to specifically address 3A1.1, the district court's upward departure based on the defendant taking a vehicle in preparation of the crime from "a vulnerable victim, that being an elderly woman." In terms of 3A1.1 application, the circuit court held that, as a matter of law, it is insufficient to equate "elderly" status with per se vulnerability. Citing United States v. Creech, 913 F.2d 780, 782 (1990) the court held that the use of 3A1.1 "to enhance a defendant's punishment for the exploitation of a vulnerable victim under 3A1.1 requires analysis of the victim's personal or individual vulnerability."

Eleventh Circuit

United States v. Yount, 960 F.2d 955 (11th Cir. 1992): Affirmed application of 3A1.1 for misappropriation of funds from trust accounts held by elderly persons. The appellate court found that the record in this case demonstrates that the "trust accountholders were very old, infirm, and no longer capable of managing their own affairs."

REPORT TO CONGRESS:
ADEQUACY OF PENALTIES FOR THE INTENTIONAL EXPOSURE OF OTHERS THROUGH SEXUAL ACTIVITY TO THE HUMAN IMMUNODEFICIENCY VIRUS

I. INTRODUCTION

A. The Statutory Directive

This report to Congress is submitted by the United States Sentencing Commission, an independent agency in the judicial branch of government, in response to a directive in the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 1089 Stat. 1796 (1994). Section 40503(c) of that Act provide