Amendment: Section 2A4.1(b) is amended by deleting:
"(5) If the victim was kidnapped, abducted, or unlawfully restrained to facilitate the commission of another offense: (A) increase by 4 levels; or (B) if the result of applying this guideline is less than that resulting from application of the guideline for such other offense, apply the guideline for such other offense.",
and inserting in lieu thereof:
"(5) If the victim was sexually exploited, increase by 3 levels.
(6) If the victim is a minor and, in exchange for money or other consideration, was placed in the care or custody of another person who had no legal right to such care or custody of the victim, increase by 3 levels.
(7) If the victim was kidnapped, abducted, or unlawfully restrained during the commission of, or in connection with, another offense or escape therefrom; or if another offense was committed during the kidnapping, abduction, or unlawful restraint, increase to --
(A) the offense level from the Chapter Two offense guideline applicable to that other offense if such offense guideline includes an adjustment for kidnapping, abduction, or unlawful restraint, or otherwise takes such conduct into account; or
(B) 4 plus the offense level from the offense guideline applicable to that other offense, but in no event greater than level 43, in any other case,
if the resulting offense level is greater than that determined above.
(c) Cross Reference
(1) If the 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).".
The Commentary to §2A4.1 captioned "Application Notes" is amended by inserting the following additional note:
"4. ‘Sexually exploited’ includes offenses set forth in 18 U.S.C. §§ 2241-2244, 2251, and 2421-2423.".
The Commentary to §2A4.1 captioned "Background" is amended by inserting the following additional paragraph at the end:
" Section 401 of Public Law 101-647 amended 18 U.S.C. § 1201 to require that courts take into account certain specific offense characteristics in cases involving a victim under eighteen years of age and directed the Commission to include those specific offense characteristics within the guidelines. Where the guidelines did not already take into account the conduct identified by the Act, additional specific offense characteristics have been provided.".
Reason for Amendment: This amendment implements the instructions in Section 401 of the Crime Control Act of 1990 (Public Law 101-647), in some cases with a broader scope, by adding specific offense characteristics at subsections (b)(5) and (b)(6). With respect to the portion of the Congressional instruction pertaining to aiders or abettors, no amendment was required because §1B1.3 (Relevant Conduct) provides an offense level greater than that required by the Congressional instruction. A separate amendment (amendment 388) clarifies that maltreatment to a life threatening degree constitutes life-threatening bodily injury. In addition, this amendment replaces the current subsection (b)(5) with a revised subsection (b)(7) that addresses other offenses connected with kidnapping, abduction, or unlawful restraint in a manner that more appropriately reflects the combined seriousness of such offenses, and inserts a cross reference to address the case in which the victim was murdered.
Effective Date: The effective date of this amendment is November 1, 1991.