2018 Chapter 2 E-K

CHAPTER TWO - OFFENSE CONDUCT

 

PART E - OFFENSES INVOLVING CRIMINAL ENTERPRISES AND RACKETEERING

 

1.      RACKETEERING

 

Introductory Commentary

Because of the jurisdictional nature of the offenses included, this subpart covers a wide variety of criminal conduct.  The offense level usually will be determined by the offense level of the underlying conduct.

Historical Note:  Effective November 1, 1987.


§2E1.1.     Unlawful Conduct Relating to Racketeer Influenced and Corrupt Organizations

(a)       Base Offense Level (Apply the greater):

(1)       19; or

(2)       the offense level applicable to the underlying racketeering activity.

 

Statutory Provisions:  18 U.S.C. §§ 1962, 1963.

Application Notes

1.      Where there is more than one underlying offense, treat each underlying offense as if contained in a separate count of conviction for the purposes of subsection (a)(2).  To determine whether subsection (a)(1) or (a)(2) results in the greater offense level, apply Chapter Three, Parts A, B, C, and D to both (a)(1) and (a)(2).  Use whichever subsection results in the greater offense level.

2.      If the underlying conduct violates state law, the offense level corresponding to the most analogous federal offense is to be used.

3.      If the offense level for the underlying racketeering activity is less than the alternative minimum level specified (i.e., 19), the alternative minimum base offense level is to be used.

4.      Certain conduct may be charged in the count of conviction as part of a "pattern of racketeering activity" even though the defendant has previously been sentenced for that conduct.  Where such previously imposed sentence resulted from a conviction prior to the last overt act of the instant offense, treat as a prior sentence under §4A1.2(a)(1) and not as part of the instant offense.  This treatment is designed to produce a result consistent with the distinction between the instant offense and criminal history found throughout the guidelines.  If this treatment produces an anomalous result in a particular case, a guideline departure may be warranted.

Historical Note:  Effective November 1, 1987.  Amended effective June 15, 1988 (amendment 26); November 1, 1989 (amendment 142).


§2E1.2.     Interstate or Foreign Travel or Transportation in Aid of a Racketeering Enterprise

(a)       Base Offense Level (Apply the greater):

(1)       6; or

(2)       the offense level applicable to the underlying crime of violence or other unlawful activity in respect to which the travel or transportation was undertaken.

 

Statutory Provision:  18 U.S.C. § 1952.

Application Notes

1.      Where there is more than one underlying offense, treat each underlying offense as if contained in a separate count of conviction for the purposes of subsection (a)(2).  To determine whether subsection (a)(1) or (a)(2) results in the greater offense level, apply Chapter Three, Parts A, B, C, and D to both (a)(1) and (a)(2).  Use whichever subsection results in the greater offense level.

2.      If the underlying conduct violates state law, the offense level corresponding to the most analogous federal offense is to be used.

3.      If the offense level for the underlying conduct is less than the alternative minimum base offense level specified (i.e., 6), the alternative minimum base offense level is to be used.

Historical Note:  Effective November 1, 1987.  Amended effective June 15, 1988 (amendment 27).


§2E1.3.     Violent Crimes in Aid of Racketeering Activity

(a)       Base Offense Level (Apply the greater):

(1)       12; or

(2)       the offense level applicable to the underlying crime or racketeering activity.

 

Statutory Provision:  18 U.S.C. § 1959 (formerly 18 U.S.C. § 1952B).

Application Notes

1.      If the underlying conduct violates state law, the offense level corresponding to the most analogous federal offense is to be used.

2.      If the offense level for the underlying conduct is less than the alternative minimum base offense level specified (i.e., 12), the alternative minimum base offense level is to be used.

Background:  The conduct covered under this section ranges from threats to murder.  The maximum term of imprisonment authorized by statute ranges from three years to life imprisonment.

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1989 (amendment 143).


§2E1.4.     Use of Interstate Commerce Facilities in the Commission of Murder-For-Hire

(a)      Base Offense Level (Apply the greater):

(1)       32; or

(2)       the offense level applicable to the underlying unlawful conduct.

 

Statutory Provision:  18 U.S.C. § 1958 (formerly 18 U.S.C. § 1952A).

Application Note

1.      If the underlying conduct violates state law, the offense level corresponding to the most analogous federal offense is to be used.

Background:  This guideline and the statute to which it applies do not require that a murder actually have been committed.

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1989 (amendment 144); November 1, 1990 (amendment 311); November 1, 1992 (amendment 449).


§2E1.5. [Deleted]

Historical Note:  Section 2E1.5 (Hobbs Act Extortion or Robbery), effective November 1, 1987, amended effective November 1, 1989 (amendment 145), was deleted by consolidation with §§2B3.1, 2B3.2, 2B3.3, and 2C1.1 effective November 1, 1993 (amendment 481). 

 

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2.      EXTORTIONATE EXTENSION OF CREDIT


§2E2.1.     Making or Financing an Extortionate Extension of Credit; Collecting an Extension of Credit by Extortionate Means

(a)      Base Offense Level:  20

(b)      Specific Offense Characteristics

(1)       (A)       If a firearm was discharged increase by 5 levels; or

(B)       if a dangerous weapon (including a firearm) was otherwise used, increase by 4 levels; or

(C)       if a dangerous weapon (including a firearm) was brandished or possessed, increase by 3 levels.

(2)       If any victim sustained bodily injury, increase the offense level according to the seriousness of the injury:

  Degree of Bodily Injury Increase in Level
(A) Bodily Injury add 2
(B) Serious Bodily Injury  add 4
(C) Permanent or Life-Threatening Bodily Injury add 6
(D) If the degree of injury is between that specified in subdivisions (A) and (B), add 3 levels; or
(E) If the degree of injury is between that specified in subdivisions (B) and (C), add 5 levels.

Provided, however, that the combined increase from (1) and (2) shall not exceed 9 levels.

(3)       (A)       If any person was abducted to facilitate commission of the offense or to facilitate escape, increase by levels; or

(B)       if any person was physically restrained to facilitate commission of the offense or to facilitate escape, increase by 2 levels.

(c)      Cross Reference

(1)       If a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States, apply §2A1.1 (First Degree Murder).

 

Statutory Provisions:  18 U.S.C. §§ 892-894.

Application Notes:

1.      Definitions of "firearm," "dangerous weapon," "otherwise used," "brandished,"  "bodily injury," "serious bodily injury," "permanent or life-threatening bodily injury," "abducted," and "physically restrained" are found in the Commentary to §1B1.1 (Application Instructions).

2.      See also Commentary to §2B3.2 (Extortion by Force or Threat of Injury or Serious Damage) regarding the interpretation of the specific offense characteristics. 

Background:  This section refers to offenses involving the making or financing of extortionate extensions of credit, or the collection of loans by extortionate means.  These "loan-sharking" offenses typically involve threats of violence and provide economic support for organized crime.  The base offense level for these offenses is higher than the offense level for extortion because loan sharking is in most cases a continuing activity.  In addition, the guideline does not include the amount of money involved because the amount of money in such cases is often difficult to determine.  Other enhancements parallel those in §2B3.2 (Extortion by Force or Threat of Injury or Serious Damage).

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1989 (amendments 146-148); November 1, 1991 (amendment 398); November 1, 1993 (amendment 479); November 1, 2000 (amendment 601).

 

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3.      GAMBLING

 

Introductory Commentary

This subpart covers a variety of proscribed conduct.  The adjustments in Chapter Three, Part B (Role in the Offense) are particularly relevant in providing a measure of the scope of the offense and the defendant's participation.

Historical Note:  Effective November 1, 1987.


§2E3.1.     Gambling Offenses; Animal Fighting Offenses

(a)      Base Offense Level: (Apply the greatest)

(1)       16, if the offense involved an animal fighting venture, except as provided in subdivision (3) below;

(2)       12, if the offense was (A) engaging in a gambling business; (B) transmission of wagering information; or (C) committed as part of, or to facilitate, a commercial gambling operation;

(3)       10, if the defendant was convicted under 7 U.S.C. § 2156(a)(2)(B); or

(4)       6, otherwise.

Statutory Provisions:  7 U.S.C. § 2156 (felony provisions only); 15 U.S.C. §§ 1172–1175; 18 U.S.C. §§ 1082, 1301–1304, 1306, 1511, 1953, 1955; 31 U.S.C. § 5363. For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1.      Definition.—For purposes of this guideline, "animal fighting venture" has the meaning given that term in 7 U.S.C. § 2156(g).

2.      Upward Departure Provision.—The base offense levels provided for animal fighting ventures in subsection (a)(1) and (a)(3) reflect that an animal fighting venture involves one or more violent fights between animals and that a defeated animal often is severely injured in the fight, dies as a result of the fight, or is killed afterward. Nonetheless, there may be cases in which the offense level determined under this guideline substantially understates the seriousness of the offense. In such a case, an upward departure may be warranted. For example, an upward departure may be warranted if (A) the offense involved extraordinary cruelty to an animal beyond the violence inherent in such a venture (such as by killing an animal in a way that prolongs the suffering of the animal); or (B) the offense involved animal fighting on an exceptional scale (such as an offense involving an unusually large number of animals).

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1993 (amendment 481); November 1, 2007 (amendment 703); November 1, 2008 (amendment 721); November 1, 2016 (amendment 800).


§2E3.2. [Deleted]

Historical Note:  Section 2E3.2 (Transmission of Wagering Information), effective November 1, 1987, was deleted by consolidation with §2E3.1 effective November 1, 1993 (amendment 481).


§2E3.3. [Deleted]

Historical Note:  Section 2E3.3 (Other Gambling Offenses), effective November 1, 1987, was deleted by consolidation with §2E3.1 effective November 1, 1993 (amendment 481).

 

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4.      TRAFFICKING IN CONTRABAND CIGARETTES AND SMOKELESS TOBACCO

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 2007 (amendment 700).


§2E4.1.     Unlawful Conduct Relating to Contraband Cigarettes and Smokeless Tobacco

(a)      Base Offense Level (Apply the greater):

(1)       9; or

(2)       the offense level from the table in §2T4.1 (Tax Table) corresponding to the amount of the tax evaded.

 

Statutory Provisions:  18 U.S.C. §§ 2342(a), 2344(a).

Application Note:

1.      "Tax evaded" refers to state and local excise taxes.

Background:  The conduct covered by this section generally involves evasion of state and local excise taxes.  At least 10,000 cigarettes must be involved.  Because this offense is basically a tax matter, it is graded by use of the tax table in §2T4.1.

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 2007 (amendment 700); November 1, 2008 (amendment 724).

 

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5.      LABOR RACKETEERING

 

Introductory Commentary

The statutes included in this subpart protect the rights of employees under the Taft-Hartley Act, members of labor organizations under the Labor-Management Reporting and Disclosure Act of 1959, and participants of employee pension and welfare benefit plans covered under the Employee Retirement Income Security Act. 

The base offense levels for many of the offenses in this subpart have been determined by reference to analogous sections of the guidelines.  Thus, the base offense levels for bribery, theft, and fraud in this subpart generally correspond to similar conduct under other parts of the guidelines.  The base offense levels for bribery and graft have been set higher than the level for commercial bribery due to the particular vulnerability to exploitation of the organizations covered by this subpart. 

Historical Note:  Effective November 1, 1987.


§2E5.1.     Offering, Accepting, or Soliciting a Bribe or Gratuity Affecting the Operation of an Employee Welfare or Pension Benefit Plan; Prohibited Payments or Lending of Money by Employer or Agent to Employees, Representatives, or Labor Organizations

(a)      Base Offense Level:

(1)       10, if a bribe; or

(2)       6, if a gratuity.

(b)      Specific Offense Characteristics

(1)       If the defendant was a fiduciary of the benefit plan or labor organization, increase by 2 levels.

(2)       If the value of the prohibited payment or the value of the improper benefit to the payer, whichever is greater (A) exceeded $2,500 but did not exceed $6,500, increase by 1 level; or (B) exceeded $6,500, increase by the number of levels from the table in §2B1.1 (Theft, Property Destruction, and Fraud) corresponding to that amount.

(c)      Special Instruction for Fines - Organizations

(1)       In lieu of the pecuniary loss under subsection (a)(3) of §8C2.4 (Base Fine), use the greatest of: (A) the value of the unlawful payment; (B) if a bribe, the value of the benefit received or to be received in return for the unlawful payment; or (C) if a bribe, the consequential damages resulting from the unlawful payment.

 

Statutory Provisions:  18 U.S.C. § 1954; 29 U.S.C. § 186.

Application Notes:

1.      "Bribe" refers to the offer or acceptance of an unlawful payment with the specific understanding that it will corruptly affect an official action of the recipient.

2.      "Gratuity" refers to the offer or acceptance of an unlawful payment other than a bribe.

3.      "Fiduciary of the benefit plan" is defined in 29 U.S.C. § 1002(21)(A) to mean a person who exercises any discretionary authority or control in respect to the management of such plan or exercises authority or control in respect to management or disposition of its assets, or who renders investment advice for a fee or other direct or indirect compensation with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or who has any discretionary authority or responsibility in the administration of such plan.

4.      "Value of the improper benefit to the payer" is explained in the Commentary to §2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right; Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials; Conspiracy to Defraud by Interference with Governmental Functions).

5.      If the adjustment for a fiduciary at §2E5.1(b)(1) applies, do not apply the adjustment at §3B1.3 (Abuse of Position of Trust or Use of Special Skill).

Background:  This section covers the giving or receipt of bribes and other unlawful gratuities involving employee welfare or pension benefit plans, or labor organizations. The seriousness of the offense is determined by several factors, including the value of the bribe or gratuity and the magnitude of the loss resulting from the transaction.

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1989 (amendment 149); November 1, 1991 (amendment 422); November 1, 1993 (amendment 481); November 1, 2001 (amendment 617); November 1, 2004 (amendment 666); November 1, 2015 (amendment 791).


§2E5.2. [Deleted]

Historical Note:  Section 2E5.2 (Theft or Embezzlement from Employee Pension and Welfare Benefit Plans), effective November 1, 1987, amended effective June 15, 1988 (amendment 28), November 1, 1989 (amendment 150), and November 1, 1991 (amendment 399), was deleted by consolidation with §2B1.1 effective November 1, 1993 (amendment 481).


§2E5.3.     False Statements and Concealment of Facts in Relation to Documents Required by the Employee Retirement Income Security Act; Failure to Maintain and Falsification of Records Required by the Labor Management Reporting and Disclosure Act; Destruction and Failure to Maintain Corporate Audit Records

(a)      Base Offense Level (Apply the greater):

(1)       6; or

(2)       If the offense was committed to facilitate or conceal (A) an offense involving a theft, a fraud, or an embezzlement; (B) an offense involving a bribe or a gratuity; or (C) an obstruction of justice offense, apply §2B1.1 (Theft, Property Destruction, and Fraud), §2E5.1 (Offering, Accepting, or Soliciting a Bribe or Gratuity Affecting the Operation of an Employee Welfare or Pension Benefit Plan; Prohibited Payments or Lending of Money by Employer or Agent to Employees, Representatives, or Labor Organizations), or §2J1.2 (Obstruction of Justice), as applicable.

 

Statutory Provisions:  18 U.S.C. §§ 1027, 1520; 29 U.S.C. §§ 439, 461, 1131.  For additional statutory provision(s), see Appendix A (Statutory Index).

Background:  This section covers the falsification of documents or records relating to a benefit plan covered by ERISA.  It also covers failure to maintain proper documents required by the LMRDA or falsification of such documents.  Such violations sometimes occur in connection with the criminal conversion of plan funds or schemes involving bribery or graft.  Where a violation under this section occurs in connection with another offense, the offense level is determined by reference to the offense facilitated by the false statements or documents.

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1989 (amendment 151); November 1, 1993 (amendment 481); January 25, 2003 (amendment 647); November 1, 2003 (see, Appendix C, amendment 653).


§2E5.4. [Deleted]

Historical Note:  Section 2E5.4 (Embezzlement or Theft from Labor Unions in the Private Sector), effective November 1, 1987, amended effective June 15, 1988 (amendment 29) and November 1, 1989 (amendment 152), was deleted by consolidation with §2B1.1 effective November 1, 1993 (amendment 481).


§2E5.5. [Deleted]

Historical Note:  Section 2E5.5 (Failure to Maintain and Falsification of Records Required by the Labor Management Reporting and Disclosure Act), effective November 1, 1987, amended effective November 1, 1989 (amendment 153), was deleted by consolidation with §2E5.3 effective November 1, 1993 (amendment 481).


§2E5.6. [Deleted]

Historical Note:  Section 2E5.6 (Prohibited Payments or Lending of Money by Employer or Agent to Employees, Representatives, or Labor Organizations), effective November 1, 1987, amended effective November 1, 1991 (amendment 422), was deleted by consolidation with §2E5.1 effective November 1, 1993 (amendment 481).

 

PART F - [DELETED]

Historical Note: The heading to Part F - Offenses Involving Fraud or Deceit, effective November 1, 1987, was deleted due to the deletion of §§2F1.1 and 2F1.2 effective November 1, 2001 (amendment 617).


§2F1.1. [Deleted]

Historical Note:  Section 2F1.1 (Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States), effective November 1, 1987, amended effective June 15, 1988 (amendment 30), November 1, 1989 (amendments 154-156 and 303), November 1, 1990 (amendment 317), November 1, 1991 (amendments 364 and 393), November 1, 1992 (amendment 470), November 1, 1993 (amendments 481 and 482), November 1, 1995 (amendment 513), November 1, 1997 (amendment 551), November 1, 1998 (amendments 577 and 587), November 1, 2000 (amendments 595, 596, and 597), was deleted by consolidation with §2B1.1 effective November 1, 2001 (amendment 617).


§2F1.2. [Deleted]

Historical Note: Section 2F1.2 (Insider Trading), effective November 1, 1987, was deleted by consolidation with §2B1.1 effective November 1, 2001 (amendment 617).

 

PART G - OFFENSES INVOLVING COMMERCIAL SEX ACTS, SEXUAL EXPLOITATION OF MINORS, AND OBSCENITY

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 2002 (amendment 641).

 

1.      PROMOTING A COMMERCIAL SEX ACT OR PROHIBITED SEXUAL CONDUCT

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 2000 (amendment 592); November 1, 2002 (amendment 641).


§2G1.1.     Promoting a Commercial Sex Act or Prohibited Sexual Conduct with an Individual Other than a Minor

(a)       Base Offense Level:

(1)       34, if the offense of conviction is 18 U.S.C. § 1591(b)(1); or

(2)       14, otherwise.

(b)      Specific Offense Characteristic

(1)       If (A) subsection (a)(2) applies; and (B) the offense involved fraud or coercion, increase by 4 levels.

(c)       Cross Reference

(1)       If the offense involved conduct described in 18 U.S.C. § 2241(a) or (b) or 18 U.S.C. § 2242, apply §2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse). 

(d)      Special Instruction

(1)       If the offense involved more than one victim, Chapter Three, Part D (Multiple Counts) shall be applied as if the promoting of a commercial sex act or prohibited sexual conduct in respect to each victim had been contained in a separate count of conviction.

 

Commentary

Statutory Provisions:  8 U.S.C. § 1328 (only if the offense involved a victim other than a minor); 18 U.S.C. §§ 1591 (only if the offense involved a victim other than a minor), 2421 (only if the offense involved a victim other than a minor), 2422(a) (only if the offense involved a victim other than a minor).

Application Notes:

1.      Definitions.—For purposes of this guideline:

"Commercial sex act" has the meaning given that term in 18 U.S.C. § 1591(e)(3).

"Prohibited sexual conduct" has the meaning given that term in Application Note 1 of §2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse).

"Promoting a commercial sex act" means persuading, inducing, enticing, or coercing a person to engage in a commercial sex act, or to travel to engage in, a commercial sex act.

"Victim" means a person transported, persuaded, induced, enticed, or coerced to engage in, or travel for the purpose of engaging in, a commercial sex act or prohibited sexual conduct, whether or not the person consented to the commercial sex act or prohibited sexual conduct.  Accordingly, "victim" may include an undercover law enforcement officer.

2.      Application of Subsection (b)(1).—Subsection (b)(1) provides an enhancement for fraud or coercion that occurs as part of the offense and anticipates no bodily injury.  If bodily injury results, an upward departure may be warranted.  See Chapter Five, Part K (Departures).  For purposes of subsection (b)(1), "coercion" includes any form of conduct that negates the voluntariness of the victim.  This enhancement would apply, for example, in a case in which the ability of the victim to appraise or control conduct was substantially impaired by drugs or alcohol.  This characteristic generally will not apply if the drug or alcohol was voluntarily taken.

3.      Application of Chapter Three Adjustment.—For the purposes of §3B1.1 (Aggravating Role), a victim, as defined in this guideline, is considered a participant only if that victim assisted in the promoting of a commercial sex act or prohibited sexual conduct in respect to another victim.       

4.      Application of Subsection (c)(1).—

(A)    Conduct Described in 18 U.S.C. § 2241(a) or (b).—For purposes of subsection (c)(1), conduct described in 18 U.S.C. § 2241(a) or (b) is engaging in, or causing another person to engage in, a sexual act with another person by:  (i) using force against the victim; (ii) threatening or placing the victim in fear that any person will be subject to death, serious bodily injury, or kidnapping; (iii) rendering the victim unconscious; or (iv) administering by force or threat of force, or without the knowledge or permission of the victim, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of the victim to appraise or control conduct.  This provision would apply, for example, if any dangerous weapon was used or brandished, or in a case in which the ability of the victim to appraise or control conduct was substantially impaired by drugs or alcohol.

(B)    Conduct Described in 18 U.S.C. § 2242.—For purposes of subsection (c)(1), conduct described in 18 U.S.C. § 2242 is: (i) engaging in, or causing another person to engage in, a sexual act with another person by threatening or placing the victim in fear (other than by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury, or kidnapping); or (ii) engaging in, or causing another person to engage in, a sexual act with a victim who is incapable of appraising the nature of the conduct or who is physically incapable of declining participation in, or communicating unwillingness to engage in, the sexual act.

5.      Special Instruction at Subsection (d)(1).—For the purposes of Chapter Three, Part D (Multiple Counts), each person transported, persuaded, induced, enticed, or coerced to engage in, or travel to engage in, a commercial sex act or prohibited sexual conduct is to be treated as a separate victim.  Consequently, multiple counts involving more than one victim are not to be grouped together under §3D1.2 (Groups of Closely Related Counts).  In addition, subsection (d)(1) directs that if the relevant conduct of an offense of conviction includes the promoting of a commercial sex act or prohibited sexual conduct in respect to more than one victim, whether specifically cited in the count of conviction, each such victim shall be treated as if contained in a separate count of conviction.

6.      Upward Departure Provision.—If the offense involved more than ten victims, an upward departure may be warranted.

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1989 (amendments 157 and 158); November 1, 1990 (amendment 322); November 1, 1996 (amendment 538); November 1, 2000 (amendment 592); May 1, 2001 (amendment 612); November 1, 2001 (amendment 627); November 1, 2002 (amendment 641); November 1, 2004 (amendment 664); November 1, 2007 (amendment 701); November 1, 2009 (amendment 737).


§2G1.2.     [Deleted]

Historical Note:  Section 2G1.2 (Transportation of a Minor for the Purpose of Prostitution or Prohibited Sexual Conduct), effective November 1, 1987, amended effective November 1, 1989 (amendments 159 and 160), November 1, 1990 (amendment 323), November 1, 1991 (amendment 400), and November 1, 1992 (amendment 444), was deleted by consolidation with §2G1.1 effective November 1, 1996 (amendment 538).


§2G1.3.     Promoting a Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Transportation of Minors to Engage in a Commercial Sex Act or Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Sex Trafficking of Children; Use of Interstate Facilities to Transport Information about a Minor

(a)       Base Offense Level:

(1)       34, if the defendant was convicted under 18 U.S.C. § 1591(b)(1);

(2)       30, if the defendant was convicted under 18 U.S.C. § 1591(b)(2);

(3)       28, if the defendant was convicted under 18 U.S.C. § 2422(b) or § 2423(a); or

(4)       24, otherwise.

(b)      Specific Offense Characteristics

(1)       If (A) the defendant was a parent, relative, or legal guardian of the minor; or (B) the minor was otherwise in the custody, care, or supervisory control of the defendant, increase by 2 levels.

(2)       If (A) the offense involved the knowing misrepresentation of a participant's identity to persuade, induce, entice, coerce, or facilitate the travel of, a minor to engage in prohibited sexual conduct; or (B) a participant otherwise unduly influenced a minor to engage in prohibited sexual conduct, increase by 2 levels.

(3)       If the offense involved the use of a computer or an interactive computer service to (A) persuade, induce, entice, coerce, or facilitate the travel of, the minor to engage in prohibited sexual conduct; or (B) entice, encourage, offer, or solicit a person to engage in prohibited sexual conduct with the minor, increase by 2 levels.

(4)       If (A) the offense involved the commission of a sex act or sexual contact; or (B) subsection (a)(3) or (a)(4) applies and the offense involved a commercial sex act, increase by 2 levels.

(5)       If (A) subsection (a)(3) or (a)(4) applies; and (B) the offense involved a minor who had not attained the age of 12 years, increase by 8 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), if the resulting offense level is greater than that determined above.

(2)       If a minor was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States, apply §2A1.1 (First Degree Murder), if the resulting offense level is greater than that determined above.

(3)       If the offense involved conduct described in 18 U.S.C. § 2241 or § 2242, apply §2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse), if the resulting offense level is greater than that determined above.  If the offense involved interstate travel with intent to engage in a sexual act with a minor who had not attained the age of 12 years, or knowingly engaging in a sexual act with a minor who had not attained the age of 12 years, §2A3.1 shall apply, regardless of the "consent" of the minor.

(d)      Special Instruction

(1)       If the offense involved more than one minor, Chapter Three, Part D (Multiple Counts) shall be applied as if the persuasion, enticement, coercion, travel, or transportation to engage in a commercial sex act or prohibited sexual conduct of each victim had been contained in a separate count of conviction.

 

Commentary

Statutory Provisions:  8 U.S.C. § 1328 (only if the offense involved a minor); 18 U.S.C. §§ 1591 (only if the offense involved a minor), 2421 (only if the offense involved a minor), 2422 (only if the offense involved a minor), 2423, 2425.

Application Notes:

1.      Definitions.—For purposes of this guideline:

"Commercial sex act" has the meaning given that term in 18 U.S.C. § 1591(e)(3).

"Computer" has the meaning given that term in 18 U.S.C. § 1030(e)(1).

"Illicit sexual conduct" has the meaning given that term in 18 U.S.C. § 2423(f).

"Interactive computer service" has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. § 230(f)(2)).

"Minor" means (A) an individual who had not attained the age of 18 years; (B) an individual, whether fictitious or not, who a law enforcement officer represented to a participant (i) had not attained the age of 18 years, and (ii) could be provided for the purposes of engaging in sexually explicit conduct; or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.

"Participant" has the meaning given that term in Application Note 1 of the Commentary to §3B1.1 (Aggravating Role).

"Prohibited sexual conduct" has the meaning given that term in Application Note 1 of the Commentary to §2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse).

"Sexual act" has the meaning given that term in 18 U.S.C. § 2246(2).

"Sexual contact" has the meaning given that term in 18 U.S.C. § 2246(3).

2.      Application of Subsection (b)(1).—

(A)    Custody, Care, or Supervisory Control.—Subsection (b)(1) is intended to have broad application and includes offenses involving a victim less than 18 years of age 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 enhancement, the court should look to the actual relationship that existed between the defendant and the minor and not simply to the legal status of the defendant-minor relationship.

(B)    Inapplicability of Chapter Three Adjustment.—If the enhancement under subsection (b)(1) applies, do not apply §3B1.3 (Abuse of Position of Trust or Use of Special Skill).

3.     Application of Subsection (b)(2).—

(A)    Misrepresentation of Participant's Identity.—The enhancement in subsection (b)(2)(A) applies in cases involving the misrepresentation of a participant's identity to persuade, induce, entice, coerce, or facilitate the travel of, a minor to engage in prohibited sexual conduct.  Subsection (b)(2)(A) is intended to apply only to misrepresentations made directly to a minor or to a person who exercises custody, care, or supervisory control of the minor.  Accordingly, the enhancement in subsection (b)(2)(A) would not apply to a misrepresentation made by a participant to an airline representative in the course of making travel arrangements for the minor.

The misrepresentation to which the enhancement in subsection (b)(2)(A) may apply includes misrepresentation of a participant's name, age, occupation, gender, or status, as long as the misrepresentation was made with the intent to persuade, induce, entice, coerce, or facilitate the travel of, a minor to engage in prohibited sexual conduct.  Accordingly, use of a computer screen name, without such intent, would not be a sufficient basis for application of the enhancement.

(B)    Undue Influence.—In determining whether subsection (b)(2)(B) applies, the court should closely consider the facts of the case to determine whether a participant's influence over the minor compromised the voluntariness of the minor's behavior.  The voluntariness of the minor's behavior may be compromised without prohibited sexual conduct occurring.

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

In a case in which a participant is at least 10 years older than the minor, there shall be a rebuttable presumption that subsection (b)(2)(B) applies.  In such a case, some degree of undue influence can be presumed because of the substantial difference in age between the participant and the minor.

4.      Application of Subsection (b)(3)(A).—Subsection (b)(3)(A) is intended to apply only to the use of a computer or an interactive computer service to communicate directly with a minor or with a person who exercises custody, care, or supervisory control of the minor. Accordingly, the enhancement in subsection (b)(3)(A) would not apply to the use of a computer or an interactive computer service to obtain airline tickets for the minor from an airline’s Internet site.

5.      Application of Subsection (c).—

(A)    Application of Subsection (c)(1).—The cross reference in subsection (c)(1) is to be construed broadly and includes all instances in which the offense involved employing, using, persuading, inducing, enticing, coercing, transporting, permitting, or offering or seeking by notice, advertisement or other method, a minor to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct.  For purposes of subsection (c)(1), "sexually explicit conduct" has the meaning given that term in 18 U.S.C. § 2256(2).

(B)    Application of Subsection (c)(3).—For purposes of subsection (c)(3), conduct described in 18 U.S.C. § 2241 means conduct described in 18 U.S.C. § 2241(a), (b), or (c).  Accordingly, for purposes of subsection (c)(3):

(i)     Conduct described in 18 U.S.C. § 2241(a) or (b) is engaging in, or causing another person to engage in, a sexual act with another person:  (I) using force against the minor; (II) threatening or placing the minor in fear that any person will be subject to death, serious bodily injury, or kidnapping; (III) rendering the minor unconscious; or (IV) administering by force or threat of force, or without the knowledge or permission of the minor, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of the minor to appraise or control conduct.  This provision would apply, for example, if any dangerous weapon was used or brandished, or in a case in which the ability of the minor to appraise or control conduct was substantially impaired by drugs or alcohol.

(ii)    Conduct described in 18 U.S.C. § 2241(c) is:  (I) interstate travel with intent to engage in a sexual act with a minor who has not attained the age of 12 years; (II) knowingly engaging in a sexual act with a minor who has not attained the age of 12 years; or (III) knowingly engaging in a sexual act under the circumstances described in 18 U.S.C. § 2241(a) and (b) with a minor who has attained the age of 12 years but has not attained the age of 16 years (and is at least 4 years younger than the person so engaging).

(iii)   Conduct described in 18 U.S.C. § 2242 is:  (I) engaging in, or causing another person to engage in, a sexual act with another person by threatening or placing the minor in fear (other than by threatening or placing the minor in fear that any person will be subject to death, serious bodily injury, or kidnapping); or (II) engaging in, or causing another person to engage in, a sexual act with a minor who is incapable of appraising the nature of the conduct or who is physically incapable of declining participation in, or communicating unwillingness to engage in, the sexual act.

6.      Application of Subsection (d)(1).—For the purposes of Chapter Three, Part D (Multiple Counts), each minor transported, persuaded, induced, enticed, or coerced to engage in, or travel to engage in, a commercial sex act or prohibited sexual conduct is to be treated as a separate minor.  Consequently, multiple counts involving more than one minor are not to be grouped together under §3D1.2 (Groups of Closely Related Counts).  In addition, subsection (d)(1) directs that if the relevant conduct of an offense of conviction includes travel or transportation to engage in a commercial sex act or prohibited sexual conduct in respect to more than one minor, whether specifically cited in the count of conviction, each such minor shall be treated as if contained in a separate count of conviction.

7.      Upward Departure Provision.—If the offense involved more than ten minors, an upward departure may be warranted.

Historical Note: Effective November 1, 2004 (amendment 664). Amended effective November 1, 2007 (amendment 701); November 1, 2009 (amendments 732 and 737); November 1, 2018 (amendment 812).

 

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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: 32

(b)      Specific Offense Characteristics

(1)       If the offense involved a minor who had (A) not attained the age of twelve years, increase by 4 levels; or (B) attained the age of twelve years but not attained the age of sixteen years, increase by 2 levels.

(2)       (Apply the greater) If the offense involved—

(A)       the commission of a sexual act or sexual contact, increase by 2 levels; or

(B)       (i) the commission of a sexual act; and (ii) conduct described in 18 U.S.C. § 2241(a) or (b), increase by 4 levels.

(3)       If the defendant knowingly engaged in distribution, increase by 2 levels.

(4)       If the offense involved material that portrays (A) sadistic or masochistic conduct or other depictions of violence; or (B) an infant or toddler, increase by 4 levels.

(5)       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.

(6)       If, for the purpose of producing sexually explicit material or for the purpose of transmitting such material live, the offense involved (A) the knowing misrepresentation of a participant's identity to persuade, induce, entice, coerce, or facilitate the travel of, a minor to engage sexually explicit conduct; or (B) the use of a computer or an interactive computer service to (i) persuade, induce, entice, coerce, or facilitate the travel of, a minor to engage in sexually explicit conduct, or to otherwise solicit participation by a minor in such conduct; or (ii) solicit participation with a minor in sexually explicit conduct, increase by 2 levels.

(c)       Cross Reference

(1)       If the victim was killed in circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States, apply §2A1.1 (First Degree Murder), if the resulting offense level is greater than that determined above.

(d)      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. §§ 1591, 2251(a)–(c), 2251(d)(1)(B), 2260(a). For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1.      Definitions.—For purposes of this guideline:

"Computer" has the meaning given that term in 18 U.S.C. § 1030(e)(1).

"Distribution" means any act, including possession with intent to distribute, production, transmission, advertisement, and transportation, related to the transfer of material involving the sexual exploitation of a minor. Accordingly, distribution includes posting material involving the sexual exploitation of a minor