AMENDMENT 781
Amendment: Section 2A2.2(b) is amended by redesignating paragraphs (4) through (6) as paragraphs (5) through (7), respectively; and by inserting after paragraph (3) the following new paragraph (4):
“(4) If the offense involved strangling, suffocating, or attempting to strangle or suffocate a spouse, intimate partner, or dating partner, increase by 3 levels.
However, the cumulative adjustments from application of subdivisions (2), (3), and (4) shall not exceed 12 levels.”.
The Commentary to §2A2.2 captioned “Statutory Provisions” is amended by inserting after “113(a)(2), (3), (6),” the following: “(8),”.
The Commentary to §2A2.2 captioned “Application Notes” is amended in Note 1 by striking “or (C)” and inserting “(C) strangling, suffocating, or attempting to strangle or suffocate; or (D)”; and by adding at the end the following new paragraphs:
“ ‘Strangling’ and ‘suffocating’ have the meaning given those terms in 18 U.S.C. § 113.
‘Spouse,’ ‘intimate partner,’ and ‘dating partner’ have the meaning given those terms in 18 U.S.C. § 2266.”;
and in Note 4 by striking “(b)(6)” and inserting “(b)(7)”.
The Commentary to §2A2.2 captioned “Background” is amended in the first paragraph by striking “minor assaults” and inserting “other assaults”; by striking the comma after “serious bodily injury” and inserting a semicolon; and by striking the comma after “cause bodily injury” and inserting “; strangling, suffocating, or attempting to strangle or suffocate;”;
and in the paragraph that begins “Subsection” by striking “(b)(6)” both places it appears and inserting “(b)(7)”.
Section 2A2.3 is amended in the heading by striking “Minor Assault” and inserting “Assault”.
Section 2A2.3(b)(1) is amended by inserting after “substantial bodily injury to” the following: “a spouse, intimate partner, or dating partner, or”.
The Commentary to §2A2.3 captioned “Statutory Provisions” is amended by inserting after “112,” the following: “113(a)(4), (5), (7),”.
The Commentary to §2A2.3 captioned “Application Notes” is amended in Note 1 by striking “ ‘Minor assault’ means a misdemeanor assault, or a felonious assault not covered by §2A2.2 (Aggravated Assault).” and inserting the following new paragraph:
“ ‘Spouse,’ ‘intimate partner,’ and ‘dating partner’ have the meaning given those terms in 18 U.S.C. § 2266.”.
The Commentary to §2A2.3 captioned “Background” is amended by striking “Minor assault and battery are covered by this section.” and inserting the following: “This section applies to misdemeanor assault and battery and to any felonious assault not covered by §2A2.2 (Aggravated Assault).”.
Section 2A6.2(b)(1) is amended by striking “(C)” and inserting “(C) strangling, suffocating, or attempting to strangle or suffocate; (D)”; by striking “(D) a pattern” and inserting “(E) a pattern”; and by striking “these aggravating factors” and inserting “subdivisions (A), (B), (C), (D), or (E)”.
The Commentary to §2A6.2 captioned “Application Notes” is amended in Note 1 by striking the paragraph referenced to “Stalking” as follows:
“ ‘Stalking’ means (A) traveling with the intent to kill, injure, harass, or intimidate another person and, in the course of, or as a result of, such travel, placing the person in reasonable fear of death or serious bodily injury to that person or an immediate family member of that person; or (B) using the mail or any facility of interstate or foreign commerce to engage in a course of conduct that places that person in reasonable fear of the death of, or serious bodily injury to, that person or an immediate family member of that person. See 18 U.S.C. § 2261A. ‘Immediate family member’ (A) has the meaning given that term in 18 U.S.C. § 115(c)(2); and (B) includes a spouse or intimate partner. ‘Course of conduct’ and ‘spouse or intimate partner’ have the meaning given those terms in 18 U.S.C. § 2266(2) and (7), respectively.”,
and inserting the following new paragraph:
“ ‘Stalking’ means conduct described in 18 U.S.C. § 2261A.”;
and by adding at the end of Note 1 the following new paragraph:
“ ‘Strangling’ and ‘suffocating’ have the meaning given those terms in 18 U.S.C. § 113.”;
and in Notes 3 and 4 by striking “(b)(1)(D)” each place such term appears and inserting “(b)(1)(E)”.
The Commentary to §2B1.5 captioned “Statutory Provisions” is amended by striking “1152–1153,”.
The Commentary to §2B2.1 captioned “Statutory Provisions” is amended by striking “1153,”.
The Commentary to §2H3.1 captioned “Statutory Provisions” is amended by striking “1375a(d)(3)(C), (d)(5)(B);” and inserting “1375a(d)(5)(B)(i), (ii);”.
The Commentary to §2K1.4 captioned “Statutory Provisions” is amended by striking “1153,”.
The Commentary to §5D1.1 captioned “Application Notes” is amended in Note 3 by adding at the end the following:
“(D) Domestic Violence.—If the defendant is convicted for the first time of a domestic violence crime as defined in 18 U.S.C. § 3561(b), a term of supervised release is required by statute. See 18 U.S.C. § 3583(a). Such a defendant is also required by statute to attend an approved rehabilitation program, if available within a 50-mile radius of the legal residence of the defendant. See 18 U.S.C. § 3583(d); §5D1.3(a)(3). In any other case involving domestic violence or stalking in which the defendant is sentenced to imprisonment, it is highly recommended that a term of supervised release also be imposed.”.
Appendix A (Statutory Index) is amended by striking the line referenced to 8 U.S.C. § 1375a(d)(3)(C), (d)(5)(B) and inserting the following new line references:
“8 U.S.C. § 1375a(d)(5)(B)(i) 2H3.1
8 U.S.C. § 1375a(d)(5)(B)(ii) 2H3.1
8 U.S.C. § 1375a(d)(5)(B)(iii) 2B1.1”;
in the line referenced to 18 U.S.C. § 113(a)(1) by adding “, 2A3.1” at the end;
in the line referenced to 18 U.S.C. § 113(a)(2) by adding “, 2A3.2, 2A3.3, 2A3.4” at the end;
after the line referenced to 18 U.S.C. § 113(a)(3) by inserting the following new line reference:
“18 U.S.C. § 113(a)(4) 2A2.3”;
after the line referenced to 18 U.S.C. § 113(a)(7) by inserting the following new line reference:
“18 U.S.C. § 113(a)(8) 2A2.2”;
by striking the lines referenced to 18 U.S.C. §§ 1152 and 1153;
by inserting after the line referenced to 18 U.S.C. § 1593A the following new line reference:
“18 U.S.C. § 1597 2X5.2”; and
by striking the lines referenced to 18 U.S.C. § 2423(a) and (b) and inserting the following new line reference:
“18 U.S.C. § 2423(a)–(d) 2G1.3”.
Reason for Amendment: This amendment responds to recent statutory changes made by the Violence Against Women Reauthorization Act of 2013 (the “Act”), Pub. L. No. 113–4 (March 7, 2013), which provided new and expanded criminal offenses and increased penalties for certain crimes pertaining to assault, sexual abuse, stalking, domestic violence, and human trafficking.
The Act established new assault offenses and enhanced existing assault offenses at 18 U.S.C. § 113 (Assaults within maritime and territorial jurisdiction). In general, section 113 sets forth a range of penalties for assaults within the special maritime and territorial jurisdiction of the United States. The legislative history of the Act indicates that Congress intended many of these changes to allow federal prosecutors to address domestic violence against Native American women more effectively. Such violence often occurs in a series of incidents of escalating seriousness.
First, the amendment responds to changes in sections 113(a)(1) and (a)(2). Section 113(a)(1) prohibits assault with intent to commit murder, and the Act amended it to also prohibit assault with intent to commit a violation of 18 U.S.C. §§ 2241 (Aggravated sexual abuse) or 2242 (Sexual abuse), with a statutory maximum term of imprisonment of 20 years. Section 113(a)(2) prohibits assault with intent to commit any felony except murder, and prior to the Act had also excluded assault with intent to commit a violation of Chapter 109A, including sections 2241, 2242, 2243 (Sexual abuse of a minor or ward) and 2244 (Abusive sexual contact), with a statutory maximum term of imprisonment of 10 years. The Act amended section 113(a)(2) to prohibit assault with intent to commit any felony except murder or a violation of section 2241 or 2242. The effect of the statutory change is that an assault with intent to commit a violation of section 2243 or 2244 may now be prosecuted under section 113(a)(2). Offenses under section 2241 and 2242 are referenced to §2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse), and offenses under section 2243 and 2244 are referenced to §§2A3.2 (Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts); 2A3.3 (Criminal Sexual Abuse of a Ward or Attempt to Commit Such Acts); and 2A3.4 (Abusive Sexual Contact or Attempt to Commit Abusive Sexual Contact).
The amendment amends Appendix A (Statutory Index) to reference the expanded offense conduct prohibited by 18 U.S.C. § 113(a)(1) to §2A3.1 and to reference the expanded offense conduct prohibited by 18 U.S.C. § 113(a)(2) to §§2A3.2, 2A3.3, and 2A3.4. The Commission concluded that an assault offense committed with the intent to commit a sexual abuse offense is analogous to, and in some cases more serious than, an attempted sexual abuse offense under Chapter 109A, and the criminal sexual abuse guidelines which apply to attempted sexual abuse offenses were therefore appropriate for this conduct.
Second, the Act increased the statutory maximum penalty for violations of 18 U.S.C. § 113(a)(4) from six months to one year of imprisonment. Section 113(a)(4) prohibits an assault by striking, beating, or wounding. Because the crime had been categorized as a Class B misdemeanor, Appendix A did not previously include a reference for section 113(a)(4). The amendment adds such a reference to §2A2.3 (Assault). The Commission determined that §2A2.3 will provide appropriate punishment that is consistent with the statutory maximum term of imprisonment, while sufficiently addressing the possible levels of bodily harm that may result to victims in individual cases of assault by striking, beating, or wounding.
Third, the Act expanded 18 U.S.C. § 113(a)(7), which prohibits assaults resulting in substantial bodily injury to an individual who has not attained the age of sixteen years, to also apply to assaults resulting in substantial bodily injury to a spouse, intimate partner, or dating partner, and provides a statutory maximum term of imprisonment of five years. Offenses under section 113(a)(7) are referenced in Appendix A to §2A2.3 (Assault). The amendment broadened the scope of §2A2.3(b)(1)(B), which provides a 4-level enhancement if the offense resulted in substantial bodily injury to an individual under the age of sixteen years, to also provide a 4-level enhancement if the offense resulted in substantial bodily injury to a spouse, intimate partner, or dating partner. The Commission determined that because the expanded assaultive conduct of a victim of domestic violence has the same statutory maximum term of imprisonment, the same enhancement was warranted as for assaults of individuals under the age of sixteen resulting in substantial bodily injury.
Fourth, the Act created a new section 113(a)(8) in title 18, which prohibits the assault of a spouse, intimate partner, or dating partner by strangulation, suffocation, or attempting to strangle or suffocate, with a statutory maximum term of imprisonment of ten years. After reviewing legislative history, public comment, testimony at a public hearing on February 13, 2014, and data, the Commission determined that strangulation and suffocation of a spouse, intimate partner, or dating partner represents a significant harm not addressed by existing guidelines and specific offense characteristics.
Comment and testimony that the Commission received indicated that strangulation and suffocation in the domestic violence context is serious conduct that warrants enhanced punishment regardless of whether it results in a provable injury that would lead to a bodily injury enhancement; this conduct harms victims physically and psychologically and can be a predictor of future serious or lethal violence. Testimony and data also indicated that cases of strangulation and suffocation often involve other bodily injury to a victim separate from the strangulation and suffocation. Congress specifically addressed strangulation and suffocation in the domestic violence context, and testimony and data indicated that almost all cases involving this conduct occur in that context and that strangulation and suffocation is most harmful in such cases.
Accordingly, the amendment amends Appendix A to reference section 113(a)(8) to §2A2.2 (Aggravated Assault) and amends the Commentary to §2A2.2 to provide that the term “aggravated assault” includes an assault involving strangulation, suffocation, or an attempt to strangle or suffocate. The amendment amends §2A2.2 to provide a 3-level enhancement at §2A2.2(b)(4) for strangling, suffocating, or attempting to strangle or suffocate a spouse, intimate partner, or dating partner. The amendment also provides that the cumulative impact of the enhancement for use of a weapon at §2A2.2(b)(2), bodily injury at §2A2.2(b)(3), and strangulation or suffocation at §2A2.2(b)(4) is capped at 12 levels. The Commission determined that the cap would assure that these three specific offense characteristics, which data suggests co-occur frequently, will enhance the ultimate sentence without leading to an excessively severe result.
Although the amendment refers section 113(a)(8) offenses to §2A2.2, it also amends §2A6.2 (Stalking or Domestic Violence) to address cases involving strangulation, suffocation, or attempting to strangle or suffocate, as a conforming change. The amendment adds strangulation and suffocation as a new aggravating factor at §2A6.2(b)(1), which results in a 2-level enhancement, or in a 4-level enhancement if it applies in conjunction with another aggravating factor such as bodily injury or the use of a weapon.
Fifth, the amendment removes the term “minor assault” from the Guidelines Manual. Misdemeanor assaults and other felonious assaults are referenced to §2A2.3, which prior to this amendment was titled “Minor Assault.” Informed by public comment, the Commission determined that use of the term “minor” is inconsistent with the severity of the underlying crimes and does a disservice to the victims and communities affected. Therefore, the amendment changes the title of §2A2.3 to “Assault,” and it removes other references to “minor assault” from the Background and Commentary sections of §§2A2.2 and 2A2.3. This is a stylistic change that does not affect the application of §2A2.3.
Sixth, the amendment amended the Commentary to §5D1.1 (Imposition of a Term of Supervised Release) to provide additional guidance on the imposition of supervised release for domestic violence and stalking offenders. The amendment describes the statutory requirements pursuant to 18 U.S.C. § 3583(a) if a defendant is convicted for the first time of a domestic violence offense as defined in 18 U.S.C. § 3561(b). Under section 3583, a term of supervised release is required, and the defendant is also required to attend an approved rehabilitation program if one is available within a 50-mile radius from the defendant’s residence.
The Commission received public comment and testimony that supervised release should be recommended in every case of domestic violence and stalking, and the Commission’s sentencing data showed that in more than ninety percent of the cases sentenced under §2A6.2, supervised release was imposed. Based on this comment, testimony, and data, the amendment amends the Commentary to §5D1.1 to provide that in any other case involving either a domestic violence or a stalking offense, it is “highly recommended” that a term of supervised release be imposed.
Seventh, the amendment responds to changes made by the Act amending the federal statutes related to stalking and domestic violence. For the crimes of interstate domestic violence (18 U.S.C. § 2261), stalking (18 U.S.C. § 2261A), and interstate violation of a protective order (18 U.S.C. § 2262), the Act expanded the scope of each offense to provide that a defendant’s mere presence in a special maritime or territorial jurisdiction is sufficient for purposes of satisfying the jurisdictional element of the crimes. The Act also revised the prohibited conduct set forth in section 2261A to now include stalking with intent to “intimidate” the victim, and it added the use of an “electronic communication service” or “electronic communication system” as prohibited means of committing the crime.
The amendment updates the definition of “stalking” in §2A6.2 to reflect these changes by tying the definition to the conduct described in 18 U.S.C. § 2261A. The Commission determined that such a change would simplify the application of §2A6.2, while also ensuring that the definition of stalking remains consistent with any future statutory changes.
Eighth, the Act amended 8 U.S.C. § 1375a (Regulation of international marriage brokers) by reorganizing existing offenses and increasing the statutory maximum term of imprisonment for knowing violations of the regulations concerning marriage brokers from one year to five years. The Act also added a new criminal provision for “knowingly and with intent to defraud another person outside of the United States in order to recruit, solicit, entice, or induce that person into entering a dating or matrimonial relationship,” making false or fraudulent representations regarding the background information required to be provided to an international marriage brokers. The new offense has a statutory maximum term of imprisonment of one year. The amendment referenced this new offense in Appendix A 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 Commission concluded that §2B1.1 is the appropriate guideline because the elements of the new offense include fraud and deceit. The amendment also amended Appendix A by revising the other criminal subsections, which continue to be referred to §2H3.1 (Interception of Communications; Eavesdropping; Disclosure of Certain Private or Protected Information), to accord with the reorganization of the statute.
Ninth, the Trafficking Victims Protection Reauthorization Act, passed as part of the Act, included a provision expanding subsection (c) of 18 U.S.C. § 2423 (Transportation of minors), which had previously prohibited U.S. citizens or permanent residents who traveled abroad from engaging in illicit sexual conduct. After the Act, the same prohibition now also applies to those individuals who reside temporarily or permanently in a foreign country and engage in such conduct. Section 2423 contains four offenses, set forth in subsections (a) through (d), each of which prohibits sexual conduct with minors. Prior to the amendment, Appendix A referenced sections 2423(a) and 2423(b) to §2G1.3 (Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Transportation of Minors; Travel to Engage in Commercial Sex or Prohibited Sexual Conduct with a Minor; Sex Trafficking of Children), but provided no reference for sections 2423(c) or 2423(d), which prohibits arranging, inducing, procuring, or facilitating the travel of a person for illicit sexual conduct, for the purpose of commercial advantage or financial gain. Both subsections (c) and (d) provide a 30 year statutory maximum term of imprisonment.
The amendment adds references in Appendix A for 18 U.S.C. §§ 2423(c) and (d). Based on the seriousness of the prohibited conduct, the severity of the penalties, and the vulnerability of the victims involved, the Commission concluded that 18 U.S.C. §§ 2423(c) and (d) should also be referenced in Appendix A to §2G1.3.
Tenth, the Act created a new Class A misdemeanor offense at 18 U.S.C. § 1597 prohibiting the knowing destruction, concealment, confiscation or possession of an actual or purported passport or other immigration documents of another individual if done in the course of violating or with the intent to violate 18 U.S.C. § 1351, relating to fraud in foreign labor contracting, or 8 U.S.C. § 1324, relating to bringing in or harboring certain aliens. The new offense also prohibits this conduct if it is done in order to, without lawful authority, maintain, prevent, or restrict the labor or services of the individual, and the knowing obstruction, attempt to obstruct, or interference with or prevention of the enforcement of section 1597. Section 1597 has a statutory maximum term of imprisonment of one year.
The amendment references this misdemeanor offense to §2X5.2 (Class A Misdemeanors (Not Covered by Another Specific Offense Guideline)). This reference comports with the Commission’s intent when it promulgated §2X5.2, as stated in Amendment 685 (effective November 1, 2006), that the Commission will reference new Class A misdemeanor offenses either to §2X5.2 or to another, more specific Chapter Two guideline, if appropriate. The Commission determined that with a base offense level of 6, §2X5.2 covers the range of sentencing possibilities that are available for defendants convicted of this offense, regardless of their criminal history. The Commission may consider referencing section 1597 to another substantive guideline in the future after more information becomes available regarding the type of conduct that constitutes the typical violation and the aggravating or mitigating factors that may apply.
Finally, the amendment removes from Appendix A the guideline references for two jurisdictional statutes in title 18 related to crimes committed within Indian country. Section 1152, also known as the General Crimes Act, grants federal jurisdiction for federal offenses committed by non‑Indians within Indian country. Section 1153, also known as the Major Crimes Act, grants federal jurisdiction over Indians who commit certain enumerated offenses within Indian country. The Act expanded section 1153 to include any felony assault under section 113. Because sections 1152 and 1153 are simply jurisdictional statutes that do not provide substantive offenses, the Commission determined there is no need for Appendix A to provide a guidelines reference for those statutes.
Effective Date: The effective date of this amendment is November 1, 2014.