AMENDMENT 511

Amendment: The Commentary to §2A3.1 captioned "Application Notes" is amended by inserting the following additional notes:

"6. If a victim was sexually abused by more than one participant, an upward departure may be warranted. See §5K2.8 (Extreme Conduct).

7. If the defendant’s criminal history includes a prior sentence for conduct that is similar to the instant offense, an upward departure may be warranted.".

The Commentary to §2A3.2 captioned "Application Notes" is amended by inserting the following additional note:

"4. If the defendant’s criminal history includes a prior sentence for conduct that is similar to the instant offense, an upward departure may be warranted.".

The Commentary to §2A3.3 captioned "Application Note" is amended by deleting "Note" and inserting in lieu thereof "Notes"; and by inserting the following additional note:

"2. If the defendant’s criminal history includes a prior sentence for conduct that is similar to the instant offense, an upward departure may be warranted.".

The Commentary to §2A3.4 captioned "Application Notes" is amended by inserting the following additional note:

"5. If the defendant’s criminal history includes a prior sentence for conduct that is similar to the instant offense, an upward departure may be warranted.".

Reason for Amendment: Section 40111 of the Violent Crime Control and Law Enforcement Act of 1994 doubles the authorized maximum term of imprisonment for defendants convicted of sexual abuse offenses who have been convicted previously of aggravated sexual abuse, sexual abuse, or aggravated sexual contact (18 U.S.C. § 2247) and directs the Sentencing Commission to implement this provision by promulgating amendments, if appropriate, to the applicable sentencing guidelines. Although the Chapter Two sexual abuse guidelines do not provide for enhancement for repeat sex offenses, Chapter Four (Criminal History and Criminal Livelihood) does include a determination of the seriousness of the defendant’s criminal record based upon prior convictions (§4A1.1). Section 4B1.1 (Career Offender) also provides substantially enhanced penalties for offenders who engage in a crime of violence (including forcible sexual offenses) or controlled substance trafficking offense, having been sentenced previously on two or more occasions for offenses of either type. Moreover, §4A1.3 (Adequacy of Criminal History category) provides that an upward departure may be considered "[i]f reliable information indicates that the criminal history category does not reflect the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes." This amendment strengthens the sexual offense guidelines by expressly listing as a basis for upward departure the fact that the defendant has a prior sentence for conduct similar to the instant sexual offense.

Section 40112 of the Violent Crime Control and Law Enforcement Act of 1994 directs the Commission to conduct a study and consider the adequacy of the guidelines for sexual offenses with respect to a number of factors. The provision also requires the preparation of a report to Congress analyzing federal rape sentences and obtaining comment from independent experts. See Report to Congress: Analysis of Penalties for Federal Rape Cases (March 13, 1995). The Commission found that, in general, the current guidelines provide appropriate penalties for these offenses. This amendment strengthens §2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse) in one respect by expressly listing as a basis for an upward departure the fact that a victim was sexually abused by more than one participant.

Effective Date: The effective date of this amendment is November 1, 1995.