AMENDMENT 537

Amendment: Section 2G2.1(a) is amended by deleting "25" and inserting in lieu thereof "27".

Section 2G2.1(b) is amended by deleting:

"(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.",

and inserting in lieu thereof:

"(1) If the offense involved a victim 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.".

Section 2G2.1(b) is amended by inserting after subdivision (2) the following additional subdivision:

"(3) If a computer was used to solicit participation by or with a minor in sexually explicit conduct for the purpose of producing sexually explicit material, increase by 2 levels.".

The Commentary to §2G2.1 captioned "Statutory Provisions" is amended by deleting "§ 2251(a), (b), (c)(1)(B)" and inserting in lieu thereof "§§ 2251(a), (b), (c)(1)(B), 2258(a), (b)".

Section 2G2.2(a) is amended by deleting "15" and inserting in lieu thereof "17".

Section 2G2.2(b) is amended by inserting after subdivision (4) the following additional subdivision:

"(5) If a computer was used for the transmission of the material or a notice or advertisement of the material, increase by 2 levels.".

The Commentary to §2G2.2 captioned "Statutory Provisions" is amended by inserting ", 2258(a), (b)" immediately before the period.

The Commentary to §2G2.2 captioned "Application Notes" is amended by deleting:

"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.",

and inserting in lieu thereof:

"1. For purposes of this guideline—

‘Distribution’ includes any act related to distribution for pecuniary gain, including production, transportation, and possession with intent to distribute.

‘Pattern of activity involving the sexual abuse or exploitation of a minor’ means any combination of two or more separate instances of the sexual abuse or sexual exploitation of a minor by the defendant, whether or not the abuse or exploitation (A) occurred during the course of the offense, (B) involved the same or different victims, or (C) resulted in a conviction for such conduct.

‘Sexual abuse or exploitation’ means conduct constituting criminal sexual abuse of a minor, sexual exploitation of a minor, abusive sexual contact of a minor, any similar offense under state law, or an attempt or conspiracy to commit any of the above offenses. ‘Sexual abuse or exploitation’ does not include trafficking in material relating to the sexual abuse or exploitation of a minor.

‘Sexually explicit conduct’ has the meaning set forth in 18 U.S.C. § 2256.

2. If the defendant engaged in the sexual abuse or exploitation of a minor at any time (whether or not such abuse or exploitation occurred during the course of the offense or resulted in a conviction for such conduct) and subsection (b)(4) does not apply, an upward departure may be warranted. In addition, an upward departure may be warranted if the defendant received an enhancement under subsection (b)(4) but that enhancement does not adequately reflect the seriousness of the sexual abuse or exploitation involved.

Prior convictions taken into account under subsection (b)(4) are also counted for purposes of determining criminal history points pursuant to Chapter Four, Part A (Criminal History).".

The Commentary to §2G2.2 captioned "Application Notes" is amended in Note 3 by deleting "(c)(1)" and inserting in lieu thereof "subsection (c)(1)".

The Commentary to §2G2.2 captioned "Application Notes" is amended by deleting Notes 4 and 5 as follows:

"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.".

Section 2G2.4(a) is amended by deleting "13" and inserting in lieu thereof "15".

Section 2G2.4(b) is amended by inserting after subdivision (2) the following additional subdivision:

"(3) If the defendant’s possession of the material resulted from the defendant’s use of a computer, increase by 2 levels.".

Reason for Amendment: This is a four-part amendment. First, the amendment implements the congressional directives in section 2 of the Sex Crimes Against Children Prevention Act of 1995, Pub. L. 104-71, 109 Stat. 774, by providing a two-level enhancement above the currently prescribed offense level for offenses involving the sexual exploitation of minors. The two-level enhancement is provided in the base offense levels under §§2G2.1, 2G2.2, and 2G2.4.

Second, the amendment implements the congressional directive in section 3 of the above-noted Act by providing a two-level enhancement for offenses involving the sexual exploitation of a minor if a computer was used to transmit certain notices or advertisements of material involving minors engaged in sexually explicit conduct or to transport or ship that material. The enhancement in §2G2.2(b)(5) applies to the transmission of the material or of the notice or advertisement of the material. The enhancement in §2G2.4(b)(3) applies only if the defendant’s possession of the material resulted from the defendant’s use of a computer. In addition to these congressionally directed enhancements, the amendment adds a two-level enhancement under §2G2.1(b)(3) if a computer was used to solicit participation in sexually explicit conduct by or with a minor for the purpose of producing sexually explicit material.

Third, the amendment revises the Commentary to §2G2.2 to consolidate the definitions applicable to this guideline in the first application note and address several additional issues. The amendment revises the definition of "pattern of activity involving the sexual abuse or exploitation of a minor" to clarify that "sexual abuse or exploitation," for purposes of §2G2.2(b)(4), requires that the defendant personally had participated in such conduct. The amendment defines "sexual abuse or exploitation" to mean conduct constituting criminal sexual abuse, sexual exploitation, or abusive sexual contact and to exclude trafficking in child pornography. These revisions are consistent with United States v. Chapman, 60 F.3d 894 (1st Cir. 1995) and United States v. Ketcham, 80 F.3d 789 (3d Cir. 1996), both of which held that the defendant’s transportation or distribution of child pornography is not sexual exploitation within the meaning of the "pattern of activity" enhancement in §2G2.2(b)(4). In addition, the amendment clarifies that the "pattern of activity" may include acts of sexual abuse or exploitation that were not committed during the course of the offense or that did not result in a conviction. This revision responds in part to the holding in Chapman, 60 F.3d at 901, that the "pattern of activity" enhancement is inapplicable to past sexual abuse or exploitation unrelated to the offense of conviction. The amended language expressly provides that such conduct may be considered. Accordingly, the conduct considered for purposes of the "pattern of activity" enhancement is broader than the scope of relevant conduct typically considered under §1B1.3 (Relevant Conduct). In addition, the amendment provides that an upward departure may be warranted if the defendant (1) did not engage in a "pattern of activity" but nevertheless abused a minor at any time, or (2) engaged in a "pattern of activity" but the enhancement does not adequately reflect the seriousness of the sexual abuse or exploitation. In addition, the amendment clarifies that prior convictions counted as part of the "pattern of activity" also may be counted as part of the defendant’s criminal history under Chapter Four, if those convictions meet the criteria set forth in the relevant guidelines of that chapter.

Fourth, the amendment makes the "Statutory Provisions" in the Commentary to §§2G2.1 and 2G2.2 more comprehensive by adding 18 U.S.C. § 2258(a) and (b) to the list of statutory provisions covered by those guidelines.

Effective Date: The effective date of this amendment is November 1, 1996.