AMENDMENT 708

Amendment: The amendments to §2H3.1 and Appendix A, effective May 1, 2007 (see Appendix C, Amendment 697), are repromulgated with the following changes:

Section 2H3.1 is amended in the heading by striking "Tax Return Information" and inserting "Certain Private or Protected Information".

Section 2H3.1(a) is amended by striking subdivision (2) as follows:

"(2) 6, if the defendant was convicted of 26 U.S.C. § 7213A or 26 U.S.C. § 7216.",

and inserting the following:

"(2) 6, if the offense of conviction has a statutory maximum term of imprisonment of one year or less but more than six months.".

Section 2H3.1(b)(1) is amended by inserting "(A) the defendant is convicted under 18 U.S.C. § 1039(d) or (e); or (B)" after "If".

The Commentary to §2H3.1 captioned "Statutory Provisions" is amended by inserting "8 U.S.C. § 1375a(d)(3)(C), (d)(5)(B);" before "18 U.S.C."; by inserting "§ 1039, 1905," after "18 U.S.C. §"; and by inserting "42 U.S.C. §§ 16962, 16984;" after "7216;".

The Commentary to §2H3.1 captioned "Application Notes" is amended by striking Note 1 as follows:

"1. Definitions.—For purposes of this guideline, ‘tax return’ and ‘tax return information’ have the meaning given the terms ‘return’ and ‘return information’ in 26 U.S.C. § 6103(b)(1) and (2), respectively.";

by redesignating Note 2 as Note 1; and by adding at the end the following:

"2. Imposition of Sentence for 18 U.S.C. § 1039(d) and (e).—Subsections 1039(d) and (e) of title 18, United States Code, require a term of imprisonment of not more than 5 years to be imposed in addition to any sentence imposed for a conviction under 18 U.S.C. § 1039(a), (b), or (c). In order to comply with the statute, the court should determine the appropriate ‘total punishment’ and divide the sentence on the judgment form between the sentence attributable to the conviction under 18 U.S.C. § 1039(d) or (e) and the sentence attributable to the conviction under 18 U.S.C. § 1039(a), (b), or (c), specifying the number of months to be served for the conviction under 18 U.S.C. § 1039(d) or (e). For example, if the applicable adjusted guideline range is 15-21 months and the court determines a ‘total punishment’ of 21 months is appropriate, a sentence of 9 months for conduct under 18 U.S.C. § 1039(a) plus 12 months for 18 U.S.C. § 1039(d) conduct would achieve the ‘total punishment’ in a manner that satisfies the statutory requirement.

3. Upward Departure.—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. The following are examples of cases in which an upward departure may be warranted:

(i) The offense involved confidential phone records information or tax return information of a substantial number of individuals.

(ii) The offense caused or risked substantial non-monetary harm (e.g. physical harm, psychological harm, or severe emotional trauma, or resulted in a substantial invasion of privacy interest) to individuals whose private or protected information was obtained.".

Section 2H3.1 is amended by striking the Commentary captioned "Background" as follows:

"Background: This section refers to conduct proscribed by 47 U.S.C. § 605 and the Electronic Communications Privacy Act of 1986, which amends 18 U.S.C. § 2511 and other sections of Title 18 dealing with unlawful interception and disclosure of communications. These statutes proscribe the interception and divulging of wire, oral, radio, and electronic communications. The Electronic Communications Privacy Act of 1986 provides for a maximum term of imprisonment of five years for violations involving most types of communication.

This section also refers to conduct relating to the disclosure and inspection of tax returns and tax return information, which is proscribed by 26 U.S.C. §§ 7213(a)(1)-(3), (5), (d), 7213A, and 7216. These statutes provide for a maximum term of imprisonment of five years for most types of disclosure of tax return information, but provide a maximum term of imprisonment of one year for violations of 26 U.S.C. §§ 7213A and 7216.".

Appendix A (Statutory Index) is amended by inserting after the line referenced to 8 U.S.C. § 1328 the following:

"8 U.S.C. § 1375a(d)(3)(C), (d)(5)(B)      2H3.1";

by inserting after the line referenced to 18 U.S.C. § 1038 the following:

"18 U.S.C. § 1039                                  2H3.1"; and

by inserting after the line referenced to 42 U.S.C. § 14905 the following:

"42 U.S.C. § 16962                                2H3.1

42 U.S.C. § 16984                                 2H3.1".

Reason for Amendment: This amendment addresses several offenses that pertain to unauthorized access or disclosure of private or protected information. Specifically, this amendment pertains to (A) the re-promulgation of the emergency amendment that implemented the directive in section 4 of the Telephone Records and Privacy Protection Act of 2006, Pub. L. 109–476 (the "Telephone Records Act"); (B) offenses involving improper use of a child’s fingerprints under 42 U.S.C. §§ 16984 and 16962; and (C) various other offenses related to private or protected information.

This amendment re-promulgates as permanent the temporary emergency amendment (effective May 1, 2007) that implemented the directive in section 4 of the Telephone Records Act. The amendment refers the new offense at 18 U.S.C. § 1039 to §2H3.1 (Interception of Communications; Eavesdropping; Disclosure of Tax Information). The Commission concluded that disclosure of telephone records is similar to the types of privacy offenses referenced to this guideline. In addition, this guideline includes a cross reference, instructing that if the purpose of the 18 U.S.C. § 1039 offense was to facilitate another offense, the guideline applicable to an attempt to commit the other offense should be applied, if the resulting offense level is higher. The Commission concluded that operation of the cross reference would capture the harms associated with the aggravated forms of this offense referenced at 18 U.S.C. § 1039(d) or (e). The amendment also expands the scope of the existing three-level enhancement in the guideline to include cases in which the defendant is convicted under 18 U.S.C. § 1039(d) or (e). Thus, in a case in which the cross reference does not apply, application of the enhancement will capture the increased harms associated with the aggravated offenses. Finally, the amendment expands the upward departure note to include tax return information of a substantial number of individuals.

Section 153 of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. 109–248 (the "Adam Walsh Act"), added a new offense at 42 U.S.C. § 16962, which provides a statutory maximum term of imprisonment of 10 years for the improper release of information obtained in fingerprint-based checks for the background check of either foster or adoptive parents or of individuals employed by, or considering employment with, a private or public educational agency. Additionally, section 627 of the Adam Walsh Act added a new Class A Misdemeanor offense at 42 U.S.C. § 16984 prohibiting the use of a child’s fingerprints for any purpose other than providing those fingerprints to the child’s parent or legal guardian. This amendment references both offenses to §2H3.1, providing a base offense level of 9 under §2H3.1(a)(1) if the defendant was convicted of violating 42 U.S.C. § 16962, and a base offense level of 6 if the defendant was convicted of violating 42 U.S.C. § 16984.

Finally, this amendment implements the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. 109–162 ("VAWA"). VAWA included the International Marriage Broker Regulation Act of 2005 ("IMBRA"), which requires marriage brokers to keep private information gathered in the course of their business confidential. New offenses at 8 U.S.C. §§ 1375a(d)(3)(C) and 1375a(d)(5)(B) involve invasions of protected privacy interests and, as such, are referenced to §2H3.1.

The Commission concluded that referencing these new offenses to §2H3.1 was appropriate because each of the new offenses is similar to the types of privacy offenses referenced to this guideline.

Effective Date: The effective date of this amendment is November 1, 2007.