1995 Guidelines Manual

PART G - OFFENSES INVOLVING PROSTITUTION, SEXUAL EXPLOITTION OF MINORS, AND OBSCENITY

1.PROSTITUTION

2G1.1.Transportation for the Purpose of Prostitution or Prohibited Sexual Conduct

(a)Base Offense Level: 14

(b)Specific Offense Characteristic

(1)If the offense involved the use of physical force, or coercion by threats or drugs or in any manner, increase by 4 levels.

(c)Special Instruction

(1)If the offense involved the transportation of more than one person, Chapter Three, Part D (Multiple Counts) shall be applied as if the transportation of each person had been contained in a separate count of conviction.

Commentary

Statutory Provisions: 8 U.S.C. 1328; 18 U.S.C. 2421, 2422.

Application Notes:

1.The base offense level assumes that the offense was committed for profit. In the infrequent case where the defendant did not commit the offense for profit and the offense did not involve physical force or coercion, the Commission recommends a downward departure of 8 levels.

2.The enhancement for physical force, or coercion, anticipates no bodily injury. If bodily injury results, an upward departure may be warranted. See Chapter Five, Part K (Departures).

3."Coercion," as used in this guideline, includes any form of conduct that negates the voluntariness of the behavior of the person transported. This factor would apply, for example, where the ability of the person being transported to appraise or control conduct was substantially impaired by drugs or alcohol. In the case of transportation involving an adult, rather than a minor, this characteristic generally will not apply where the alcohol or drug was voluntarily taken.

4.For the purposes of 3B1.1 (Aggravating Role), the persons transported are considered participants only if they assisted in the unlawful transportation of others.

5.For the purposes of Chapter Three, Part D (Multiple Counts), each person transported is to be treated as a separate victim. Consequently, multiple counts involving the transportation of different persons are not to be grouped together under 3D1.2 (Groups of Closely Related Counts). Special instruction (c)(1) directs that if the relevant conduct of an offense of conviction includes more than one person being transported, whether specifically cited in the

count of conviction or not, each such person shall be treated as if contained in a separate count of conviction.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendments 157 and 158); November 1, 1990 (see Appendix C, amendment 322).

2G1.2.Transportation of a Minor for the Purpose of Prostitution or Prohibited Sexual Conduct

(a)Base Offense Level: 16

(b)Specific Offense Characteristics

(1)If the offense involved the use of physical force, or coercion by threats or drugs or in any manner, increase by 4 levels.

(2)If the offense involved the transportation of a minor under the age of twelve years, increase by 4 levels.

(3)If the offense involved the transportation of a minor at least twelve years of age but under the age of sixteen years, increase by 2 levels.

(4)If the defendant was a parent, relative, or legal guardian of the minor involved in the offense, or if the minor was otherwise in the custody, care, or supervisory control of the defendant, increase by 2 levels.

(c)Cross References

(1)If the offense involved causing, transporting, permitting, or offering or seeking by notice or advertisement, a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, apply 2G2.1 (Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material; Custodian Permitting Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage in Production).

(2)If the offense involved criminal sexual abuse, attempted criminal sexual abuse, or assault with intent to commit criminal sexual abuse, apply 2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse).

(3)If neither subsection (c)(1) nor (c)(2) is applicable, and the offense did not involve transportation for the purpose of prostitution, apply 2A3.2 (Criminal Sexual Abuse of a Minor or Attempt to Commit Such Acts) or 2A3.4 (Abusive Sexual Contact or Attempt to Commit Abusive Sexual Contact), as appropriate.

(d)Special Instruction

(1)If the offense involved the transportation of more than one person, Chapter Three, Part D (Multiple Counts) shall be applied as if the transportation of each person had been contained in a separate count of conviction.

Commentary

Statutory Provisions: 8 U.S.C. 1328; 18 U.S.C. 2421, 2422, 2423.

Application Notes:

1.For the purposes of Chapter Three, Part D (Multiple Counts), each person transported is to be treated as a separate victim. Consequently, multiple counts involving the transportation of different persons are not to be grouped together under 3D1.2 (Groups of Closely Related Counts). Special instruction (d)(1) directs that if the relevant conduct of an offense of conviction includes more than one person being transported, whether specifically cited in the count of conviction or not, each such person shall be treated as if contained in a separate count of conviction.

2.The enhancement for physical force, or coercion, anticipates no bodily injury. If bodily injury results, an upward departure may be warranted. See Chapter Five, Part K (Departures).

3."Coercion," as used in this guideline, includes any form of conduct that negates the voluntariness of the behavior of the person transported. This factor would apply, for example, where the ability of the person being transported to appraise or control conduct was substantially impaired by drugs or alcohol.

4."Sexually explicit conduct," as used in this guideline, has the meaning set forth in 18 U.S.C. 2256.

5.Subsection (b)(4) is intended to have broad application and includes offenses involving a minor entrusted to the defendant, whether temporarily or permanently. For example, teachers, day care providers, baby-sitters, or other temporary caretakers are among those who would be subject to this enhancement. In determining whether to apply this adjustment, the court should look to the actual relationship that existed between the defendant and the child and not simply to the legal status of the defendant-child relationship.

6.If the adjustment in subsection (b)(4) applies, do not apply 3B1.3 (Abuse of Position of Trust or Use of Special Skill).

7.The cross reference in subsection (c)(1) is to be construed broadly to include all instances where the offense involved employing, using, persuading, inducing, enticing, coercing, transporting, permitting, or offering or seeking by notice or advertisement, a minor to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendments 159 and 160); November 1, 1990 (see Appendix C, amendment 323); November 1, 1991 (see Appendix C, amendment 400); November 1, 1992 (see Appendix C, amendment 444).

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2.SEXUAL EXPLOITATION OF A MINOR

2G2.1.Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material; Custodian Permitting Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage in Production

(a)Base Offense Level: 25

(b)Specific Offense Characteristics

(1)If the offense involved a minor under the age of twelve years, increase by 4 levels; otherwise, if the offense involved a minor under the age of sixteen years, increase by 2 levels.

(2)If the defendant was a parent, relative, or legal guardian of the minor involved in the offense, or if the minor was otherwise in the custody, care, or supervisory control of the defendant, increase by 2 levels.

(c)Special Instruction

(1)If the offense involved the exploitation of more than one minor, Chapter Three, Part D (Multiple Counts) shall be applied as if the exploitation of each minor had been contained in a separate count of conviction.

Commentary

Statutory Provisions: 18 U.S.C. 2251(a), (b), (c)(1)(B).

Application Notes:

1.For the purposes of Chapter Three, Part D (Multiple Counts), each minor exploited is to be treated as a separate victim. Consequently, multiple counts involving the exploitation of different minors are not to be grouped together under 3D1.2 (Groups of Closely Related Counts). Special instruction (c)(1) directs that if the relevant conduct of an offense of conviction includes more than one minor being exploited, whether specifically cited in the count of conviction or not, each such minor shall be treated as if contained in a separate count of conviction.

2.Subsection (b)(2) is intended to have broad application and includes offenses involving a minor entrusted to the defendant, whether temporarily or permanently. For example, teachers, day care providers, baby-sitters, or other temporary caretakers are among those who would be subject to this enhancement. In determining whether to apply this adjustment, the court should look to the actual relationship that existed between the defendant and the child and not simply to the legal status of the defendant-child relationship.

3.If the adjustment in subsection (b)(2) applies, do not apply 3B1.3 (Abuse of Position of Trust or Use of Special Skill).

Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 161); November 1, 1990 (see Appendix C, amendment 324); November 1, 1991 (see Appendix C, amendment 400).

2G2.2.Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, or Advertising Material Involving the Sexual Exploitation of a Minor; Possessing Material Involving the Sexual Exploitation of a Minor with Intent to Traffic

(a)Base Offense Level: 15

(b)Specific Offense Characteristics

(1)If the material involved a prepubescent minor or a minor under the age of twelve years, increase by 2 levels.

(2)If the offense involved distribution, increase by the number of levels from the table in 2F1.1 corresponding to the retail value of the material, but in no event by less than 5 levels.

(3)If the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence, increase by 4 levels.

(4)If the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor, increase by 5 levels.

(c)Cross Reference

(1)If the offense involved causing, transporting, permitting, or offering or seeking by notice or advertisement, a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, apply 2G2.1 (Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material; Custodian Permitting Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage in Production) if the resulting offense level is greater than that determined above.

Commentary

Statutory Provisions: 18 U.S.C. 2251(c)(1)(A), 2252(a)(1)-(3).

Application Notes:

1."Distribution," as used in this guideline, includes any act related to distribution for pecuniary gain, including production, transportation, and possession with intent to distribute.

2."Sexually explicit conduct," as used in this guideline, has the meaning set forth in 18 U.S.C. 2256.

3.The cross reference in (c)(1) is to be construed broadly to include all instances where the offense involved employing, using, persuading, inducing, enticing, coercing, transporting, permitting, or offering or seeking by notice or advertisement, a minor to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct.

4."Pattern of activity involving the sexual abuse or exploitation of a minor," for the purposes of subsection (b)(4), means any combination of two or more separate instances of the sexual abuse or the sexual exploitation of a minor, whether involving the same or different victims.

5.If the defendant sexually exploited or abused a minor at any time, whether or not such sexual abuse occurred during the course of the offense, an upward departure may be warranted. In determining the extent of such a departure, the court should take into consideration the offense levels provided in 2A3.1, 2A3.2, and 2A3.4 most commensurate with the defendant's conduct, as well as whether the defendant has received an enhancement under subsection (b)(4) on account of such conduct.

Historical Note: Effective November 1, 1987. Amended effective June 15, 1988 (see Appendix C, amendment 31); November 1, 1990 (see Appendix C, amendment 325); November 1, 1991 (see Appendix C, amendment 372); November 27, 1991 (see Appendix C, amendment 435).

2G2.3.Selling or Buying of Children for Use in the Production of Pornography

(a)Base Offense Level: 38

Commentary

Statutory Provision: 18 U.S.C. 2251A.

Background: The statutory minimum sentence for a defendant convicted under 18 U.S.C. 2251A is twenty years imprisonment.

Historical Note: Effective November 1, 1989 (see Appendix C, amendment 162).

2G2.4.Possession of Materials Depicting a Minor Engaged in Sexually Explicit Conduct

(a)Base Offense Level: 13

(b)Specific Offense Characteristics

(1)If the material involved a prepubescent minor or a minor under the age of twelve years, increase by 2 levels.

(2)If the offense involved possessing ten or more books, magazines, periodicals, films, video tapes, or other items, containing a visual depiction involving the sexual exploitation of a minor, increase by 2 levels.

(c)Cross References

(1)If the offense involved causing, transporting, permitting, or offering or seeking by notice or advertisement, a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, apply 2G2.1 (Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material; Custodian Permitting Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage in Production).

(2)If the offense involved trafficking in material involving the sexual exploitation of a minor (including receiving, transporting, shipping, advertising, or possessing material involving the sexual exploitation of a minor with intent to traffic), apply 2G2.2 (Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, or Advertising Material Involving the Sexual Exploitation of a Minor; Possessing Material Involving the Sexual Exploitation of a Minor with Intent to Traffic).

Commentary

Statutory Provision: 18 U.S.C. 2252(a)(4).

Historical Note: Effective November 1, 1991 (see Appendix C, amendment 372). Amended effective November 27, 1991 (see Appendix C, amendment 436).

2G2.5.Recordkeeping Offenses Involving the Production of Sexually Explicit Materials

(a)Base Offense Level: 6

(b)Cross References

(1)If the offense reflected an effort to conceal a substantive offense that involved causing, transporting, permitting, or offering or seeking by notice or advertisement, a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, apply 2G2.1 (Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material; Custodian Permitting Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage in Production).

(2)If the offense reflected an effort to conceal a substantive offense that involved trafficking in material involving the sexual exploitation of a minor (including receiving, transporting, advertising, or possessing material involving the sexual exploitation of a minor with intent to traffic), apply 2G2.2 (Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving, Transporting, Advertising, or Possessing Material Involving the Sexual Exploitation of a Minor with Intent to Traffic).

Commentary

Statutory Provision: 18 U.S.C. 2257.

Historical Note: Effective November 1, 1991 (see Appendix C, amendment 372).

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3.OBSCENITY

2G3.1.Importing, Mailing, or Transporting Obscene Matter

(a)Base Offense Level: 10

(b)Specific Offense Characteristics

(1)If the offense involved an act related to distribution for pecuniary gain, increase by the number of levels from the table in 2F1.1 corresponding to the retail value of the material, but in no event by less than 5 levels.

(2)If the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence, increase by 4 levels.

(c)Cross Reference

(1)If the offense involved transporting, distributing, receiving, possessing, or advertising to receive material involving the sexual exploitation of a minor, apply 2G2.2 (Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, or Advertising Material Involving the Sexual Exploitation of a Minor; Possessing Material Involving the Sexual Exploitation of a Minor with Intent to Traffic) or 2G2.4 (Possession of Materials Depicting a Minor Engaged in Sexually Explicit Conduct), as appropriate.

Commentary

Statutory Provisions: 18 U.S.C. 1460-1463, 1465, 1466. For additional statutory provision(s), see Appendix A (Statutory Index).

Application Note:

1."Act related to distribution," as used in this guideline, is to be construed broadly and includes production, transportation, and possession with intent to distribute.

Background: Most federal prosecutions for offenses covered in this guideline are directed to offenses involving distribution for pecuniary gain. Consequently, the offense level under this section generally will be at least 15.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 163); November 1, 1990 (see Appendix C, amendment 326); November 1, 1991 (see Appendix C, amendment 372); November 27, 1991 (see Appendix C, amendment 437).

2G3.2.Obscene Telephone Communications for a Commercial Purpose; Broadcasting Obscene Material

(a)Base Offense Level: 12

(b)Specific Offense Characteristics

(1)If a person who received the telephonic communication was less than eighteen years of age, or if a broadcast was made between six o'clock in the morning and eleven o'clock at night, increase by 4 levels.

(2)If 6 plus the offense level from the table at 2F1.1(b)(1) corresponding to the volume of commerce attributable to the defendant is greater than the offense level determined above, increase to that offense level.

Commentary

Statutory Provisions: 18 U.S.C. 1464, 1468; 47 U.S.C. 223(b)(1)(A).

Background: Subsection (b)(1) provides an enhancement where an obscene telephonic communication was received by a minor less than 18 years of age or where a broadcast was made during a time when such minors were likely to receive it. Subsection (b)(2) provides an enhancement for large-scale "dial-a-porn" or obscene broadcasting operations that results in an offense level comparable to the offense level for such operations under 2G3.1 (Importing, Mailing, or Transporting Obscene Matter). The extent to which the obscene material was distributed is approximated by the volume of commerce attributable to the defendant.

Historical Note: Effective November 1, 1989 (see Appendix C, amendment 164). A former 2G3.2 (Obscene or Indecent Telephone Communications), effective November 1, 1987, was deleted effective November 1, 1989 (see Appendix C, amendment 164).

United States Sentencing Commission