733


AMENDMENT 733

Amendment: Section 2B1.1(b)(6) is amended by striking "or" after "damage to,"; and by inserting "or trafficking in," after "destruction of,".

The Commentary to §2B1.1 captioned "Background" is amended in the paragraph that begins "Subsection (b)(6)" by inserting "and the directive to the Commission in section 3 of Public Law 110–384" after "105–101".

Section 2G2.1(b)(6) is amended by inserting "or for the purpose of transmitting such material live" after "explicit material".

The Commentary to §2G2.1 captioned "Application Notes" is amended in Note 1 in the paragraph that begins "‘Distribution’ means" by inserting "transmission," after "production,"; and by inserting after the paragraph that begins "‘Interactive computer service’" the following:

"‘Material’ includes a visual depiction, as defined in 18 U.S.C. § 2256.".

The Commentary to §2G2.1 captioned "Application Notes" is amended in Note 4 by inserting "or for the purpose of transmitting such material live" after "explicit material" each place it appears; and in subdivision (B) by striking "purpose" after "for such" and inserting "purposes".

Section 2G2.2(a)(1) is amended by striking "or" after "2252(a)(4),"; and by inserting ", or § 2252A(a)(7)" after "2252A(a)(5)".

Section 2G2.2(b)(6) is amended by inserting "or for accessing with intent to view the material," after "material,".

Section 2G2.2(c)(1) is amended by inserting "or for the purpose of transmitting a live visual depiction of such conduct" after "such conduct".

The Commentary to §2G2.2 captioned "Application Notes" is amended in Note 1 in the paragraph that begins "‘Distribution’ means" by inserting "transmission," after "production,"; by inserting after the paragraph that begins "‘Interactive computer service’" the following:

"‘Material’ includes a visual depiction, as defined in 18 U.S.C. § 2256."; and

in the paragraph that begins "‘Sexual abuse or exploitation’" by inserting "accessing with intent to view," after "possession,".

The Commentary to §2G2.2 captioned "Application Notes" is amended in Note 2 by inserting "access with intent to view," after "possess,".

The Commentary to §2G2.2 captioned "Application Notes" is amended in Note 4(B)(ii) by striking "recording" and inserting "visual depiction" each place it appears.

The Commentary to §2G2.2 captioned "Application Notes" is amended in Note 5(A) by inserting "or for the purpose of transmitting live any visual depiction of such conduct" after "such conduct".

The Commentary to §2G2.2 captioned "Application Notes" is amended by redesignating Note 6 as Note 7; and by inserting after Note 5 the following:

"6. Cases Involving Adapted or Modified Depictions.—If the offense involved material that is an adapted or modified depiction of an identifiable minor (e.g., a case in which the defendant is convicted under 18 U.S.C. § 2252A(a)(7)), the term ‘material involving the sexual exploitation of a minor’ includes such material.".

Chapter Two, Part H, Subpart 4 is amended in the heading by striking "AND" after "SERVITUDE,"; and by adding at the end ", AND CHILD SOLDIERS".

Section 2H4.1 is amended in the heading by striking "and" after "Servitude,"; and by adding at the end ", and Child Soldiers".

The Commentary to §2H4.1 captioned "Statutory Provisions" is amended by inserting ", 2442" before the period at the end.

The Commentary to §2H4.1 captioned "Application Notes" is amended in Note 1 by adding at the end the following:

"‘Peonage or involuntary servitude’ includes forced labor, slavery, and recruitment or use of a child soldier.".

Chapter Two, Part N is amended in the heading by inserting "CONSUMER PRODUCTS," after "PRODUCTS,".

Chapter Two, Part N, Subpart 2 is amended in the heading by striking "AND" after "DRUGS,"; and by adding at the end ", AND CONSUMER PRODUCTS".

Section 2N2.1 is amended in the heading by striking "or" after "Cosmetic,"; and by adding at the end ", or Consumer Product".

Section 5B1.3(a) is amended in subdivision (2) by striking "(B) give notice to victims of the offense pursuant to 18 U.S.C. § 3555, or (C) reside, or refrain from residing, in a specified place or area," and inserting "(B) work in community service, or (C) both, unless the court has imposed a fine, or"; and by striking the paragraph that begins "Note: Section 3563(a)(2)" as follows:

"Note: Section 3563(a)(2) of Title 18, United States Code, provides that, absent unusual circumstances, a defendant convicted of a felony shall abide by at least one of the conditions set forth in 18 U.S.C. § 3563(b)(2), (b)(3), and (b)(13). Before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, those conditions were a fine ((b)(2)), an order of restitution ((b)(3)), and community service ((b)(13)). Whether or not the change was intended, the Act deleted the fine condition and renumbered the restitution and community service conditions in 18 U.S.C. § 3563(b), but failed to make a corresponding change in the referenced paragraphs under 18 U.S.C. § 3563(a)(2). Accordingly, the conditions now referenced are restitution ((b)(2)), notice to victims pursuant to 18 U.S.C. § 3555 ((b)(3)), and an order that the defendant reside, or refrain from residing, in a specified place or area ((b)(13)).".

Section 5B1.3(e)(1) is amended by adding at the end "See §5F1.1 (Community Confinement).".

Section 5B1.3(e)(6) is amended by adding at the end "See §5F1.8 (Intermittent Confinement).".

Section 5C1.1(c)(2) is amended by striking the asterisk after "confinement".

Section 5C1.1(d)(2) is amended by striking the asterisk after "confinement".

The Commentary to §5C1.1 captioned "Application Notes" is amended in Note 3(C) in the first sentence by striking the asterisk after "confinement".

The Commentary to §5C1.1 captioned "Application Notes" is amended in Note 4(B) in the first sentence by striking the asterisk after "confinement".

The Commentary to §5C1.1 captioned "Application Notes" is amended in Note 6 by striking the asterisk after "confinement".

The Commentary to §5C1.1 captioned "Application Notes" is amended by striking the paragraph that begins "*Note:" and the paragraph that begins "However," as follows:

"*Note: Section 3583(d) of title 18, United States Code, provides that "[t]he court may order, as a further condition of supervised release...any condition set forth as a discretionary condition of probation in section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any other condition it considers to be appropriate." Subsection (b)(11) of section 3563 of title 18, United States Code, is explicitly excluded as a condition of supervised release. Before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, the condition at 18 U.S.C. § 3563(b)(11) was intermittent confinement. The Act deleted 18 U.S.C. § 3563(b)(2), authorizing the payment of a fine as a condition of probation, and redesignated the remaining conditions of probation set forth in 18 U.S.C. § 3563(b); intermittent confinement is now set forth at subsection (b)(10), whereas subsection (b)(11) sets forth the condition of residency at a community corrections facility. It would appear that intermittent confinement now is authorized as a condition of supervised release and that community confinement now is not authorized as a condition of supervised release.

However, there is some question as to whether Congress intended this result. Although the Antiterrorism and Effective Death Penalty Act of 1996 redesignated the remaining paragraphs of section 3563(b), it failed to make the corresponding redesignations in 18 U.S.C. § 3583(d), regarding discretionary conditions of supervised release.".

Section 5D1.3(e)(1) is amended by striking the asterisk after "Confinement"; and by striking the paragraph that begins "*Note: Section 3583(d)" and the paragraph that begins "However," as follows:

"*Note: Section 3583(d) of title 18, United States Code, provides that ‘[t]he court may order, as a further condition of supervised release...any condition set forth as a discretionary condition of probation in section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any other condition it considers to be appropriate.’ Subsection (b)(11) of section 3563 of title 18, United States Code, is explicitly excluded as a condition of supervised release. Before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, the condition at 18 U.S.C. § 3563(b)(11) was intermittent confinement. The Act deleted 18 U.S.C. § 3563(b)(2), authorizing the payment of a fine as a condition of probation, and redesignated the remaining conditions of probation set forth in 18 U.S.C. § 3563(b); intermittent confinement is now set forth at subsection (b)(10), whereas subsection (b)(11) sets forth the condition of residency at a community corrections facility. It would appear that intermittent confinement now is authorized as a condition of supervised release and that community confinement now is not authorized as a condition of supervised release.

However, there is some question as to whether Congress intended this result. Although the Antiterrorism and Effective Death Penalty Act of 1996 redesignated the remaining paragraphs of section 3563(b), it failed to make the corresponding redesignations in 18 U.S.C. § 3583(d), regarding discretionary conditions of supervised release.".

Section 5D1.3(e) is amended by adding at the end the following:

"(6) Intermittent Confinement

Intermittent confinement (custody for intervals of time) may be ordered as a condition of supervised release during the first year of supervised release, but only for a violation of a condition of supervised release in accordance with 18 U.S.C. § 3583(e)(2) and only when facilities are available. See §5F1.8 (Intermittent Confinement).".

Section 5F1.1 is amended by striking the asterisk after "release."; and by striking the paragraph that begins "*Note: Section 3583(d)" and the paragraph that begins "However," as follows:

"*Note: Section 3583(d) of title 18, United States Code, provides that "[t]he court may order, as a further condition of supervised release...any condition set forth as a discretionary condition of probation in section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any other condition it considers to be appropriate." Subsection (b)(11) of section 3563 of title 18, United States Code, is explicitly excluded as a condition of supervised release. Before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, the condition at 18 U.S.C. § 3563(b)(11) was intermittent confinement. The Act deleted 18 U.S.C. § 3563(b)(2), authorizing the payment of a fine as a condition of probation, and redesignated the remaining conditions of probation set forth in 18 U.S.C. § 3563(b); intermittent confinement is now set forth at subsection (b)(10), whereas subsection (b)(11) sets forth the condition of residency at a community corrections facility. It would appear that intermittent confinement now is authorized as a condition of supervised release and that community confinement now is not authorized as a condition of supervised release.

However, there is some question as to whether Congress intended this result. Although the Antiterrorism and Effective Death Penalty Act of 1996 redesignated the remaining paragraphs of section 3563(b), it failed to make the corresponding redesignations in 18 U.S.C. § 3583(d), regarding discretionary conditions of supervised release.".

Chapter Five, Part F is amended by adding at the end the following guideline and accompanying commentary:

"§5F1.8. Intermittent Confinement

Intermittent confinement may be imposed as a condition of probation during the first year of probation. See 18 U.S.C. § 3563(b)(10). It may be imposed as a condition of supervised release during the first year of supervised release, but only for a violation of a condition of supervised release in accordance with 18 U.S.C. § 3583(e)(2) and only when facilities are available. See 18 U.S.C. § 3583(d).

Commentary

Application Note:

1. ‘Intermittent confinement’ means remaining in the custody of the Bureau of Prisons during nights, weekends, or other intervals of time, totaling no more than the lesser of one year or the term of imprisonment authorized for the offense, during the first year of the term of probation or supervised release. See 18 U.S.C. § 3563(b)(10).".

Chapter Seven, Part A, Subpart 2(b) is amended in the paragraph that begins "With the exception" by striking the first sentence as follows:

"With the exception of residency in, or participation in the program of, a community corrections facility,* which is available only for a sentence of probation, the conditions of supervised release authorized by statute are the same as those for a sentence of probation.",

and inserting the following:

"The conditions of supervised release authorized by statute are the same as those for a sentence of probation, except for intermittent confinement. (Intermittent confinement is available for a sentence of probation, but is available as a condition of supervised release only for a violation of a condition of supervised release.)";

and by striking the paragraph that begins "*Note: Section 3583(d)" and the paragraph that begins "However," as follows:

"*Note: Section 3583(d) of title 18, United States Code, provides that "[t]he court may order, as a further condition of supervised release...any condition set forth as a discretionary condition of probation in section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any other condition it considers to be appropriate." Subsection (b)(11) of section 3563 of title 18, United States Code, is explicitly excluded as a condition of supervised release. Before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, the condition at 18 U.S.C. § 3563(b)(11) was intermittent confinement. The Act deleted 18 U.S.C. § 3563(b)(2), authorizing the payment of a fine as a condition of probation, and redesignated the remaining conditions of probation set forth in 18 U.S.C. § 3563(b); intermittent confinement is now set forth at subsection (b)(10), whereas subsection (b)(11) sets forth the condition of residency at a community corrections facility. It would appear that intermittent confinement now is authorized as a condition of supervised release and that community confinement now is not authorized as a condition of supervised release.

However, there is some question as to whether Congress intended this result. Although the Antiterrorism and Effective Death Penalty Act of 1996 redesignated the remaining paragraphs of section 3563(b), it failed to make the corresponding redesignations in 18 U.S.C. § 3583(d), regarding discretionary conditions of supervised release.".

The Commentary to §7B1.3 captioned "Application Notes" is amended by striking Note 5 as follows:

"5. Intermittent confinement is authorized only as a condition of probation during the first year of the term of probation. 18 U.S.C. § 3563(b)(10).*

*Note: Section 3583(d) of title 18, United States Code, provides that "[t]he court may order, as a further condition of supervised release...any condition set forth as a discretionary condition of probation in section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any other condition it considers to be appropriate." Subsection (b)(11) of section 3563 of title 18, United States Code, is explicitly excluded as a condition of supervised release. Before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, the condition at 18 U.S.C. § 3563(b)(11) was intermittent confinement. The Act deleted 18 U.S.C. § 3563(b)(2), authorizing the payment of a fine as a condition of probation, and redesignated the remaining conditions of probation set forth in 18 U.S.C. § 3563(b); intermittent confinement is now set forth at subsection (b)(10), whereas subsection (b)(11) sets forth the condition of residency at a community corrections facility. It would appear that intermittent confinement now is authorized as a condition of supervised release and that community confinement now is not authorized as a condition of supervised release.

However, there is some question as to whether Congress intended this result. Although the Antiterrorism and Effective Death Penalty Act of 1996 redesignated the remaining paragraphs of section 3563(b), it failed to make the corresponding redesignations in 18 U.S.C. § 3583(d), regarding discretionary conditions of supervised release.",

and inserting the following:

"5. Intermittent confinement is authorized as a condition of probation during the first year of the term of probation. 18 U.S.C. § 3563(b)(10). Intermittent confinement is authorized as a condition of supervised release during the first year of supervised release, but only for a violation of a condition of supervised release in accordance with 18 U.S.C. § 3583(e)(2) and only when facilities are available. See §5F1.8 (Intermittent Confinement).".

Section 8D1.3(b) is amended by striking ", (2) notice to victims of the offense pursuant to 18 U.S.C. § 3555, or (3) an order requiring the organization to reside, or refrain from residing, in a specified place or area," and inserting "or (2) community service, unless the court has imposed a fine, or";

and by striking the paragraph that begins "Note:" as follows:

"Note: Section 3563(a)(2) of Title 18, United States Code, provides that, absent unusual circumstances, a defendant convicted of a felony shall abide by at least one of the conditions set forth in 18 U.S.C. § 3563(b)(2), (b)(3), and (b)(13). Before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, those conditions were a fine ((b)(2)), an order of restitution ((b)(3)), and community service ((b)(13)). Whether or not the change was intended, the Act deleted the fine condition and renumbered the restitution and community service conditions in 18 U.S.C. § 3563(b), but failed to make a corresponding change in the referenced paragraphs under 18 U.S.C. § 3563(a)(2). Accordingly, the conditions now referenced are restitution ((b)(2)), notice to victims pursuant to 18 U.S.C. § 3555 ((b)(3)), and an order that the defendant reside, or refrain from residing, in a specified place or area ((b)(13)).".

Appendix A (Statutory Index) is amended by inserting before the line referenced to 2 U.S.C. § 437g(d) the following:

"2 U.S.C. § 192                 2J1.1, 2J1.5

2 U.S.C. § 390                  2J1.1, 2J1.5";

by inserting after the line referenced to 7 U.S.C. § 87b the following:

"7 U.S.C. § 87f(e)             2J1.1, 2J1.5";

by inserting after the line referenced to 8 U.S.C. § 1375a(d)(3)(C),(d)(5)(B) the following:

"10 U.S.C. § 987(f)           2X5.2";

by inserting after the line referenced to 12 U.S.C. § 631 the following:

"12 U.S.C. § 1818(j)         2B1.1

12 U.S.C. § 1844(f)          2J1.1, 2J1.5

12 U.S.C. § 2273              2J1.1, 2J1.5

12 U.S.C. § 3108(b)(6)     2J1.1, 2J1.5

12 U.S.C. § 4636b            2B1.1

12 U.S.C. § 4641              2J1.1, 2J1.5";

by inserting after the line referenced to 15 U.S.C. § 78ff the following:

"15 U.S.C. § 78u(c)          2J1.1, 2J1.5

15 U.S.C. § 80a-41(c)      2J1.1, 2J1.5";

by inserting after the line referenced to 15 U.S.C. § 80b-6 the following:

"15 U.S.C. § 80b-9(c)       2J1.1, 2J1.5";

by inserting after the line referenced to 15 U.S.C. § 714m(c) the following:

"15 U.S.C. § 717m(d)       2J1.1, 2J1.5";

by inserting after the line referenced to 15 U.S.C. § 1176 the following:

"15 U.S.C. § 1192            2N2.1

15 U.S.C. § 1197(b)         2N2.1

15 U.S.C. § 1202(c)         2N2.1

15 U.S.C. § 1263             2N2.1";

by inserting after the line referenced to 15 U.S.C. § 1990c the following:

"15 U.S.C. § 2068           2N2.1";

by inserting after the line referenced to 16 U.S.C. § 773g the following:

"16 U.S.C. § 825f(c)        2J1.1, 2J1.5";

by inserting after the line referenced to 18 U.S.C. § 115(b)(4) the following:

"18 U.S.C. § 117             2A6.2";

in the line referenced to 18 U.S.C. § 2280 by inserting "2A6.1," after "2A4.1,";

in the line referenced to 18 U.S.C. § 2332a by inserting "2A6.1," before "2K1.4";

by inserting after the line referenced to 18 U.S.C. § 2425 the following:

"18 U.S.C. § 2442           2H4.1";

in the line referenced to 26 U.S.C. § 7210 by inserting ", 2J1.5" after "2J1.1";

by striking the line referenced to 33 U.S.C. § 506 as follows:

"33 U.S.C. § 506             2J1.1";

in the line referenced to 33 U.S.C. § 1227(b) by inserting ", 2J1.5" after "2J1.1";

in the line referenced to 42 U.S.C. § 3611(f) by inserting ", 2J1.5" after "2J1.1";

by inserting after the line referenced to 47 U.S.C. § 223(b)(1)(A) the following:

"47 U.S.C. § 409(m)       2J1.1, 2J1.5";

in the line referenced to 49 U.S.C. § 14909 by inserting ", 2J1.5" after "2J1.1";

in the line referenced to 49 U.S.C. § 16104 by inserting ", 2J1.5" after "2J1.1";

and by inserting after the line referenced to 50 U.S.C. § 783(c) the following:

"50 U.S.C. App. § 527(e)    2X5.2".

Reason for Amendment: This multi-part amendment responds to miscellaneous issues arising from legislation recently enacted and other miscellaneous guideline application issues.

First, the amendment amends Appendix A (Statutory Index) to include offenses created by the Housing and Economic Recovery Act of 2008, Pub. L. 110–289, and other offenses similar to those offenses, as follows:

(1) The new offense at 12 U.S.C. § 4636b is referenced to §2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States). The similar existing offense at 12 U.S.C. § 1818(j) is also referenced to §2B1.1. These offenses are similar to economic crimes and are best accounted for by §2B1.1.

(2) The new offense at 12 U.S.C. § 4641 is referenced to §2J1.1 (Contempt) and §2J1.5 (Failure to Appear by Material Witness); similar existing offenses (2 U.S.C. §§ 192, 390; 7 U.S.C. § 87f(e); 12 U.S.C. §§ 1844(f), 2273, 3108(b)(6); 15 U.S.C. §§ 78u(c), 80a-41(c), 80b-9(c), 717m(d); 16 U.S.C. § 825f(c); 26 U.S.C. § 7210; 33 U.S.C. § 1227(b); 42 U.S.C. § 3611; 47 U.S.C. § 409(m); 49 U.S.C. §§ 14909, 16104) are also referenced to §2J1.1 and §2J1.5. Contempt offenses can involve a range of conduct. The Commission determined that referencing these offenses to both §2J1.1 and §2J1.5 will best account for the range of conduct involved. Another similar offense, 33 U.S.C. § 506, is deleted from Appendix A (Statutory Index) because it has been repealed.

Second, the amendment amends Appendix A (Statutory Index) to include offenses upgraded from misdemeanors to felonies by the Consumer Product Safety Improvement Act of 2008, Pub. L. 110–314. These offenses (15 U.S.C. §§ 1192, 1197(b), 1202(c), 1263, 2068) are referenced to §2N2.1 (Violations of Statutes and Regulations Dealing With Any Food, Drug, Biological Product, Device, Cosmetic, or Agricultural Product). These offenses cover a range of conduct (from paperwork violations to making or selling a nonconforming product) and a range of mental states (from strict liability to knowing, willful, or intentional misconduct). The Commission determined that these offenses are similar to offenses referenced to §2N2.1, which has provisions to account for aggravating and mitigating circumstances that may be involved in such offenses. Technical and conforming changes are also made to indicate that §2N2.1 covers consumer product safety offenses.

Third, the amendment amends Appendix A (Statutory Index) to include an offense created by the Veterans’ Benefits Improvement Act of 2008, Pub. L. 110–389. The new offense, 50 U.S.C. App. § 527(e), is a Class A misdemeanor and, accordingly, is referenced to §2X5.2 (Class A Misdemeanors (Not Covered by Another Specific Offense Guideline)). The amendment also references 10 U.S.C. § 987(f), a similar Class A misdemeanor, to §2X5.2.

Fourth, the amendment amends Appendix A (Statutory Index) to include an offense created by the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. 109–162. The offense, 18 U.S.C. § 117, covers domestic assault by a person with two or more prior convictions for domestic assault offenses. It is similar to the offenses referenced to §2A6.2 (Stalking or Domestic Violence) and, therefore, is referenced to that guideline.

Fifth, the amendment amends Appendix A (Statutory Index) to include an offense created by the Child Soldiers Accountability Act of 2008, Pub. L. 110–340. The offense, 18 U.S.C. § 2442, is referenced to §2H4.1 (Peonage, Involuntary Servitude, and Slave Trade). The offenses currently indexed to §2H4.1 include five offenses that relate to illegal use of an individual’s labor and have the same statutory maximum term of imprisonment as the new child soldiers offense (20 years imprisonment or, if death results, life). Likewise, §2H4.1 has provisions to account for aggravating and mitigating circumstances that may be involved in a child soldiers offense. Technical and conforming changes are also made to indicate that §2H4.1 applies to the new offense.

Sixth, the amendment makes changes throughout the Guidelines Manual to reflect the amendments made by the Judicial Administration and Technical Amendments Act of 2008, Pub. L. 110–406, to the probation and supervised release statutes (18 U.S.C. §§ 3563, 3583). The changes include a new guideline for intermittent confinement at §5F1.8 (Intermittent Confinement) that parallels the statutory language, as well as technical and conforming changes. These changes conform the Guidelines Manual to reflect what Congress has provided.

Seventh, the amendment responds to the Let Our Veterans Rest in Peace Act of 2008, Pub. L. 110–384, which directed the Commission to review and, if appropriate, amend the guidelines to "provide adequate sentencing enhancements" for any offense involving "desecration, theft, or trafficking" in a veteran’s grave marker. There is a specific offense characteristic at subsection (b)(6) of §2B1.1 for damage, destruction, or theft of a veteran’s grave marker. The amendment amends this specific offense characteristic so that it also covers trafficking in a veteran’s grave marker.

Eighth, the amendment makes changes in the child pornography guidelines, §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) and §2G2.2 (Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, Soliciting, or Advertising Material Involving the Sexual Exploitation of a Minor; Possessing Material Involving the Sexual Exploitation of a Minor with Intent to Traffic; Possessing Material Involving the Sexual Exploitation of a Minor), so that they reflect the amendments made to the child pornography statutes (18 U.S.C. §§ 2251 et seq.) by the Effective Child Pornography Prosecution Act of 2007, Pub. L. 110–358, and the PROTECT Our Children Act of 2008, Pub. L. 110–401. The changes relate primarily to cases in which child pornography is transmitted over the Internet. Under the amendment, where the guidelines refer to the purpose of producing a visual depiction, they will also refer to the purpose of transmitting a live visual depiction; where the guidelines refer to possessing material, they will also refer to accessing with intent to view the material. The amendment also amends the child pornography guidelines so that the term "distribution" includes "transmission", and the term "material" includes any visual depiction, as now defined by 18 U.S.C. § 2256 (i.e., to include data which is capable of conversion into a visual image that has been transmitted by any means, whether or not stored in a permanent format). These changes conform the child pornography guidelines to reflect what Congress has provided.

Ninth, the amendment amends Appendix A (Statutory Index) so that the threat guideline, §2A6.1 (Threatening or Harassing Communications; Hoaxes; False Liens), is included on the list of guidelines to which 18 U.S.C. § 2280 and § 2332a are referenced. A person may be charged and convicted of committing such an offense by threat. In such a case, §2A6.1 may be the most appropriate guideline.

Tenth, the amendment addresses subsection (a)(7) of 18 U.S.C. § 2252A, a new child pornography offense created by the PROTECT Our Children Act of 2008, Pub. L. 110–401. The offense makes it unlawful to knowingly produce with intent to distribute, or to knowingly distribute, "child pornography that is an adapted or modified depiction of an identifiable minor." A violator is subject to a maximum term of imprisonment of 15 years. This offense is already referenced in Appendix A (Statutory Index) to the child pornography distribution guideline, §2G2.2, by virtue of the fact that all offenses under section 2252A(a) are referenced to that guideline. The Commission determined that the distribution guideline is the appropriate guideline for this offense because distribution is a required element of this offense, in that the offender must either distribute the material or produce it with intent to distribute. The distribution guideline also has provisions to account for aggravating and mitigating circumstances that may be involved in these offenses. The amendment provides a base offense level of 18 for this offense, which is four levels lower than the base offense level for other child pornography distribution offenses referenced to §2G2.2. The Commission determined that the lower base offense level was appropriate for this offense because, unlike for other child pornography distribution offenses, the process of creating the image does not involve the sexual exploitation of a child, and Congress provided a lower penalty structure for this offense (a maximum term of imprisonment of 15 years, and no mandatory minimum term of imprisonment) than for other child pornography distribution offenses (typically, a maximum term of imprisonment of 20 years and a mandatory minimum of 5 years). The lower base offense level also accounts for the fact that the enhancements at subsections (b)(3) (for distribution) and (b)(6) (for use of a computer) will likely apply in these cases. Finally, to ensure that §2G2.2 treats material involving an adapted or modified image in the same manner as it treats material involving any other form of child pornography, the amendment provides a new Application Note to §2G2.2 to clarify that, if the offense involved material that is an adapted or modified depiction of an identifiable minor, the term "material involving the sexual exploitation of a minor" includes such material.

Effective Date: The effective date of this amendment is November 1, 2009.