AMENDMENT 815
Amendment: The Commentary to §2A2.4 captioned “Statutory Provisions” is amended by striking “18 U.S.C. §§ 111” and inserting “18 U.S.C. §§ 40A, 111”.
Section 2A5.2 is amended in the heading by striking “Vehicle” and inserting “Vehicle; Unsafe Operation of Unmanned Aircraft”.
The Commentary to §2A5.2 captioned “Statutory Provisions” is amended by striking “18 U.S.C. § 1992(a)(1)” and inserting “18 U.S.C. §§ 39B, 1992(a)(1)”.
The Commentary to §2B1.1 captioned “Statutory Provisions” is amended by striking “7 U.S.C. §§ 6, 6b, 6c, 6h, 6o, 13, 23; 15 U.S.C. §§ 50, 77e, 77q, 77x, 78j, 78ff, 80b-6, 1644, 6821; 18 U.S.C. §§ 38, 225, 285–289, 471–473, 500, 510, 553(a)(1), 641, 656, 657, 659, 662, 664, 1001–1008, 1010–1014, 1016–1022, 1025, 1026, 1028, 1029, 1030(a)(4)–(5), 1031, 1037, 1040, 1341–1344, 1348, 1350, 1361, 1363, 1369, 1702, 1703 (if vandalism or malicious mischief, including destruction of mail, is involved), 1708, 1831, 1832, 1992(a)(1), (a)(5), 2113(b), 2282A, 2282B, 2291, 2312–2317, 2332b(a)(1), 2701; 19 U.S.C. § 2401f; 29 U.S.C. § 501(c); 42 U.S.C. § 1011; 49 U.S.C. §§ 14915, 30170, 46317(a), 60123(b)”, and inserting “5 U.S.C. §§ 8345a, 8466a; 7 U.S.C. §§ 6, 6b, 6c, 6h, 6o, 13, 23; 15 U.S.C. §§ 50, 77e, 77q, 77x, 78j, 78ff, 80b-6, 1644, 6821; 18 U.S.C. §§ 38, 220, 225, 285–289, 471–473, 500, 510, 553(a)(1), 641, 656, 657, 659, 662, 664, 1001–1008, 1010–1014, 1016–1022, 1025, 1026, 1028, 1029, 1030(a)(4)–(5), 1031, 1037, 1040, 1341–1344, 1348, 1350, 1361, 1363, 1369, 1702, 1703 (if vandalism or malicious mischief, including destruction of mail, is involved), 1708, 1831, 1832, 1992(a)(1), (a)(5), 2113(b), 2282A, 2282B, 2291, 2312–2317, 2332b(a)(1), 2701; 19 U.S.C. § 2401f; 20 U.S.C. § 1097(a), (b), (d), (e); 29 U.S.C. § 501(c); 42 U.S.C. § 1011; 49 U.S.C. §§ 14915, 30170, 46317(a), 60123(b)”.
The Commentary to §2B4.1 captioned “Statutory Provisions” is amended by striking “18 U.S.C. §§ 215” and inserting “18 U.S.C. §§ 215, 220”.
Section 2G1.1(b)(1)(B) is amended by striking “the offense involved fraud or coercion” and inserting “(i) the offense involved fraud or coercion; or (ii) the offense of conviction is 18 U.S.C. § 2421A(b)(2)”.
The Commentary to §2G1.1 captioned “Statutory Provisions” is amended by striking “2422(a) (only if the offense involved a victim other than a minor)” and inserting “2421A (only if the offense involved a victim other than a minor), 2422(a) (only if the offense involved a victim other than a minor). For additional statutory provision(s), see Appendix A (Statutory Index)”.
Section 2G1.3(b) is amended—
in paragraph (3) by striking “increase by 2 levels” and inserting “increase by 2 levels. Provided, however, that subsection (b)(3)(B) shall not apply if the offense of conviction is 18 U.S.C. § 2421A”;
and in paragraph (4) by striking “If (A) the offense involved the commission of a sex act or sexual contact; or (B) subsection (a)(3) or (a)(4) applies and the offense involved a commercial sex act, increase by 2 levels.”, and inserting the following:
“(Apply the greater):
(A) If (i) the offense involved the commission of a sex act or sexual contact; or (ii) subsection (a)(3) or (a)(4) applies and the offense involved a commercial sex act, increase by 2 levels.
(B) If (i) subsection (a)(4) applies; and (ii) the offense of conviction is 18 U.S.C. § 2421A(b)(2), increase by 4 levels.”.
The Commentary to §2G1.3 captioned “Statutory Provisions” is amended by striking “2422 (only if the offense involved a minor), 2423, 2425” and inserting “2421A (only if the offense involved a minor), 2422 (only if the offense involved a minor), 2423, 2425. For additional statutory provision(s), see Appendix A (Statutory Index)”.
The Commentary to §2H3.1 captioned “Statutory Provisions” is amended by striking “47 U.S.C. § 605” and inserting “44 U.S.C. § 3572; 47 U.S.C. § 605”.
The Commentary to §2N1.1 captioned “Statutory Provisions” is amended by striking “18 U.S.C. § 1365(a), (e)” and inserting “18 U.S.C. § 1365(a), (e); 21 U.S.C. § 333(b)(7). For additional statutory provision(s), see Appendix A (Statutory Index)”.
The Commentary to §2N2.1 captioned “Statutory Provisions” is amended by striking “333(a)(1), (a)(2), (b)” and inserting “333(a)(1), (a)(2), (b)(1)–(6), (b)(8)”.
The Commentary to §2S1.3 captioned “Statutory Provisions” is amended by striking “5332” and inserting “5332, 5335, 5336”.
The Commentary to §2X5.2 captioned “Statutory Provisions” is amended by striking “18 U.S.C. §§ 1365(f), 1801; 34 U.S.C. § 12593; 49 U.S.C. § 31310.” and inserting “10 U.S.C. § 2733a(g)(2); 18 U.S.C. §§ 39B, 1365(f), 1801, 2259(d)(4); 34 U.S.C. § 12593; 49 U.S.C. § 31310. For additional statutory provision(s), see Appendix A (Statutory Index).”.
Appendix A (Statutory Index) is amended—
by inserting before the line referenced to 7 U.S.C. § 6 the following new line references:
“5 U.S.C. § 8345a 2B1.1
5 U.S.C. § 8466a 2B1.1”;
by inserting before the line referenced to 12 U.S.C. § 631 the following new line reference:
“10 U.S.C. § 2733a(g)(2) 2X5.2”;
by inserting before the line referenced to 18 U.S.C. § 43 the following new line references:
“18 U.S.C. § 39B 2A5.2, 2X5.2
18 U.S.C. § 40A 2A2.4”;
by inserting before the line referenced to 18 U.S.C. § 224 the following new line reference:
“18 U.S.C. § 220 2B1.1, 2B4.1”;
by inserting before the line referenced to 18 U.S.C. § 2260(a) the following new line reference:
“18 U.S.C. § 2259(d)(4) 2X5.2”;
by inserting before the line referenced to 18 U.S.C. § 2320 the following new line reference:
“18 U.S.C. § 2319C 2B5.3”;
by inserting before the line referenced to 18 U.S.C. § 2422 the following new line reference:
“18 U.S.C. § 2421A 2G1.1, 2G1.3”;
by inserting before the line referenced to 21 U.S.C. § 101 the following new line reference:
“20 U.S.C. § 1097(e) 2B1.1”;
by inserting before the line referenced to 21 U.S.C. § 458 the following new line reference:
“21 U.S.C. § 333(b)(8) 2N2.1”;
by inserting before the line referenced to 31 U.S.C. § 5363 the following new line references:
“31 U.S.C. § 5335 2S1.3
31 U.S.C. § 5336 2S1.3”;
and by inserting before the line referenced to 45 U.S.C. § 359(a) the following new line reference:
“44 U.S.C. § 3572 2H3.1”.
Reason for Amendment: This multi-part amendment responds to recently enacted legislation.
FDA Reauthorization Act of 2017
First, the amendment amends Appendix A (Statutory Index) to reference a new offense for counterfeit drugs at 21 U.S.C. § 333(b)(8) (Penalties [for violations of the Federal Food, Drug, and Cosmetic Act (FDCA)]) to §2N2.1 (Violations of Statutes and Regulations Dealing With Any Food, Drug, Biological Product, Device, Cosmetic, Agricultural Product, or Consumer Product) in response to the FDA Reauthorization Act of 2017, Pub. L. 115–52 (Aug. 18, 2017). The Act added subsection 333(b)(8), which provides that the statutory maximum term of imprisonment is ten years for a violation of 21 U.S.C. § 331(i)(3) (Prohibited acts [under the FDCA]). Subsection 331(i)(3) prohibits causing a drug to be counterfeited, or making, selling, dispensing, or holding for sale or dispensing, a counterfeit drug. The Commission determined that §2N2.1 is the most appropriate guideline to which to reference this offense because §2N2.1 covers similar penalty provisions at section 333.
Allow States and Victims to Fight Online Sex Trafficking Act
Second, the amendment amends §§2G1.1 (Promoting a Commercial Sex Act or Prohibiting Sexual Conduct with an Individual Other than a Minor) and 2G1.3 (Promoting a Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Transportation of Minors to Engage in a Commercial Sex Act or Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Sex Trafficking of Children; Use of Interstate Facilities to Transport Information about a Minor) in response to the Allow States and Victims to Fight Online Sex Trafficking Act of 2017, Pub. L. 115–164 (Apr. 11, 2017). The Act added a new offense at 18 U.S.C. § 2421A(a) (Promotion or facilitation of prostitution and reckless disregard of sex trafficking) which prohibits owning, managing, or operating an interactive computer service with the intent to promote or facilitate prostitution. Section 2421A has a statutory maximum term of imprisonment of ten years. The Act included an aggravated offense at subsection 2421A(b)(2) if the offender commits an offense under subsection 2421A(a) while acting in reckless disregard of the fact that such conduct contributed to sex trafficking in violation of 18 U.S.C. § 1591(a) (Sex trafficking of children or by force, fraud, or coercion). Offenses under section 1591(a) that involve force, fraud, coercion, or minors have statutory mandatory minimum terms of imprisonment of at least ten years and statutory maximum terms of imprisonment of life. Offenses under subsection 2421A(b)(2) have a 25-year statutory maximum term of imprisonment to reflect the serious nature of the sex trafficking conduct in violation of section 1591(a). To reflect the statutory maximum term of imprisonment at subsection 2421A(b)(2), the amendment amends the 4-level enhancement at §2G1.1(b)(1)(B) and adds a new 4-level enhancement at §2G1.3(b)(4)(B) that apply if the offense of conviction is 18 U.S.C. § 2421A(b)(2). The amendment also amends §2G1.3(b)(3) to provide that §2G1.3(b)(3)(B) shall not apply if the offense of conviction is 18 U.S.C. § 2421A because the use of a computer is already accounted for in the base offense level.
FAA Reauthorization Act of 2018
Third, the amendment amends Appendix A to reference new offenses in the FAA Reauthorization Act of 2018, Pub. L. 115–254 (Oct. 5, 2018). The new offense at 18 U.S.C. § 39B (Unsafe operation of unmanned aircraft) is referenced to §2A5.2 (Interference with Flight Crew Member or Flight Attendant; Interference with Dispatch, Navigation, Operation, or Maintenance of Mass Transportation Vehicle) and §2X5.2 (Class A Misdemeanors (Not Covered by Another Specific Offense Guideline)). Section 39B prohibits the knowing or reckless unsafe operation of drones that interfere with the safe operation of an aircraft carrying one or more persons or operated in close proximity to an airport runway. Section 39B has a statutory maximum term of imprisonment of one year. The statutory maximum term of imprisonment for reckless violations that cause serious bodily injury or death is ten years, and for knowing violations that cause serious bodily injury or death is any term of years or life. The Commission determined that §2A5.2 is the most appropriate guideline to which to reference felony violations of section 39B because it covers conduct interfering with the operation of aircraft. Additionally, providing a reference to §2X5.2 is consistent with Commission practice relating to new misdemeanor offenses.
The FAA Reauthorization Act also added a new offense at 18 U.S.C. § 40A (Operation of unauthorized unmanned aircraft over wildfires) which is referenced in Appendix A to §2A2.4 (Obstructing or Impeding Officers). Section 40A prohibits operating a drone in a manner that interferes with wildfire suppression or with law enforcement or emergency response efforts related to wildfire suppression. Section 40A has a statutory maximum term of imprisonment of two years. The Commission determined that §2A2.4 is the most appropriate guideline to which to reference this offense because it covers conduct involving interfering with and obstructing or impeding officers.
SUPPORT for Patients and Communities Act
Fourth, the amendment amends Appendix A to reference a new offense at 18 U.S.C. § 220 (Illegal remunerations for referrals to recovery homes, clinical treatment facilities, and laboratories) to §§2B1.1 (Theft, Property Destruction, and Fraud) and 2B4.1 (Bribery in Procurement of Bank Loan and Other Commercial Bribery) in response to the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act (“the SUPPORT for Patients and Communities Act”), Pub. L. 115–271 (Oct. 24, 2018). Section 220 prohibits soliciting, receiving, paying, or offering any remuneration, including kickbacks, bribes, or rebates, for referring patients to a facility covered by a health care benefit program. Section 220 has a statutory maximum term of imprisonment of ten years. The Commission determined that §§2B1.1 and 2B4.1 are the most appropriate guidelines to which to reference this offense because both guidelines cover conduct involving kickbacks and bribery.
Amy, Vicky, and Andy Child Pornography Victim Assistance Act
Fifth, the amendment amends Appendix A to reference a new offense at 18 U.S.C. § 2259(d) (Mandatory restitution [for child pornography victims]) to §2X5.2 in response to the Amy, Vicky, and Andy Child Pornography Victim Assistance Act, Pub. L. 115–299 (Dec. 7, 2018). Subsection 2259(d) prohibits attorneys from charging fees in excess of 15 percent when representing a child pornography victim who receives “defined monetary assistance” from the Child Pornography Victims Reserve and provides for a statutory maximum term of imprisonment of one year. Providing a reference to §2X5.2 is consistent with Commission practice relating to new misdemeanor offenses.
Foundations for Evidence-Based Policymaking Act
Sixth, the amendment amends Appendix A to reference a new offense at 44 U.S.C. § 3572 (Confidential information protection) to §2H3.1 (Interception of Communications; Eavesdropping; Disclosure of Certain Private or Protected Information) in response to the Confidential Information Protection and Statistical Efficiency Act, part of the Foundations for Evidence-Based Policymaking Act of 2018, Pub. L. 115–435 (Jan. 14, 2019). Section 3572 prohibits the unauthorized disclosure of information collected by an agency under a pledge of confidentiality for exclusively statistical purposes or using the information for other than statistical purposes. Section 3572 has a statutory maximum term of imprisonment of five years. The Commission determined that §2H3.1 is the most appropriate guideline to which to reference this offense because it covers conduct involving the unauthorized disclosure of information.
National Defense Authorization Act for Fiscal Year 2020
Seventh, the amendment amends Appendix A to reference a new offense at 10 U.S.C. § 2733a (Armed Forces; Medical malpractice claims by members of the uniformed services) to §2X5.2 in response to the National Defense Authorization Act for Fiscal Year 2020, Pub. L. 116–92 (Dec. 20, 2019). Section 2733a prohibits attorneys from charging fees in excess of 20 percent when representing a member of the uniformed services who receives a payment under section 2733a for medical malpractice caused by a health care provider of the Department of Defense. Section 2733a has a statutory maximum term of imprisonment of one year. Providing a reference to §2X5.2 is consistent with Commission practice relating to new misdemeanor offenses.
Representative Payee Fraud Prevention Act
Eighth, the amendment amends Appendix A to reference two new offenses at 5 U.S.C. §§ 8345a (Government Organization and Employees; Embezzlement or conversion of payments) and 8466a (Embezzlement or conversion of payments) to §2B1.1 in response to the Representative Payee Fraud Prevention Act of 2019, Pub. L. 116–126 (Mar. 18, 2020). Sections 8345a and 8466a prohibit representative payees of minors or other individuals under a legal disability from embezzling or converting retirement payments under the Civil Service Retirement System or the Federal Employees’ Retirement System. The statutory maximum term of imprisonment for both sections is five years. The Commission determined that §2B1.1 is the most appropriate guideline to which to reference these offenses because it covers conduct involving similar financial fraud.
Stop Student Debt Relief Scams Act
Ninth, the amendment amends Appendix A to reference a new offense at 20 U.S.C. § 1097(e) (Education; Student Assistance Programs; Criminal penalties) to §2B1.1 in response to the Stop Student Debt Relief Scams Act of 2019, Pub. L. 116–251 (Dec. 22, 2020). Subsection 1097(e) prohibits the unauthorized use of an access device relating to student assistance programs issued to another or obtained by fraud to access the information technology systems of the Department of Education for commercial advantage or private financial gain. Subsection 1097(e) has a statutory maximum term of imprisonment of five years. The Commission determined that §2B1.1 is the most appropriate guideline to which to reference this offense because §2B1.1 covers other section 1097 offenses prohibiting embezzlement, fraud and false statements involved in student assistance programs.
Protecting Lawful Streaming Act
Tenth, the amendment amends Appendix A to reference a new offense at 18 U.S.C. § 2319C (Illicit digital transmission services) to §2B5.3 (Criminal Infringement of Copyright or Trademark) in response to the Protecting Lawful Streaming Act, part of the 2021 Consolidated Appropriations Act, Pub. L. 116–260 (Dec. 27, 2020). Section 2319C prohibits publicly offering or providing digital transmission services designed to provide the unauthorized transmission of copyrighted works, including pre-release works being prepared for commercial public performance, and provides for a statutory maximum term of imprisonment of three years. The statutory maximum term of imprisonment is five years if the offense involved one or more pre-release works, and for a second or subsequent violation of section 2319C, the statutory maximum term of imprisonment is ten years. The Commission determined that §2B5.3 is the most appropriate guideline to which to reference this offense because it covers conduct involving criminal copyright infringement including pre-release works.
William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021
Eleventh, the amendment amends Appendix A to reference multiple new offenses at 31 U.S.C. §§ 5335 (Money and Finance; Concealment of source of assets in monetary transactions) and 5336 (Beneficial ownership information reporting requirements) to §2S1.3 (Structuring Transactions to Evade Reporting Requirement; Failure to Report Cash or Monetary Transactions; Failure to File Currency and Monetary Instruments Report) in response to the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, Pub. L. 116–283 (Jan. 1, 2021).
Subsection 5335(b) prohibits concealing, falsifying, or misrepresenting a material fact from a financial institution about the ownership or control of certain assets over $1,000,000 if the person or entity controlling the assets is a certain foreign figure or associate. Subsection 5335(c) prohibits concealing, falsifying, or misrepresenting a material fact, to or from a financial institution, about the source of funds in monetary transactions involving “primary money laundering concerns” and that violate the prohibitions prescribed in section 5318A(b)(5). Both subsections 5335(b) and 5335(c) have a statutory maximum term of imprisonment of ten years.
Subsection 5336(h)(1) prohibits willfully providing false or fraudulent beneficial ownership information to the Department of the Treasury’s Financial Crimes Enforcement Network (“FinCEN”) in accordance with the reporting requirements in subsection 5336(b). Subsection 5336(h)(1) has a statutory maximum term of imprisonment of two years. Subsection 5336(c)(4) prohibits employees and officers of any requesting agency from violating the protocols established by the Secretary of the Treasury or the unauthorized disclosure or use of the beneficial ownership information submitted to FinCEN. Subsection 5336(h)(2) prohibits any person from knowingly disclosing or using beneficial ownership information obtained through a report submitted to, or through a disclosure made by, FinCEN, without authorization. Both subsections 5336(c)(4) and 5336(h)(2) have a statutory maximum term of imprisonment of five years. The statutory maximum term of imprisonment for a violation of subsection 5336(c)(4) or 5336(h)(2) is ten years if the offense was committed while violating another law of the United States or as part of a pattern of certain unlawful activities.
The Commission determined that §2S1.3 is the most appropriate guideline to which to reference these new offenses because it covers similar conduct involving structuring financial transactions and requiring the filing of a Currency Transaction Report regarding payment, receipt, or transfer of United States coins or currency.
Effective Date: The effective date of this amendment is November 1, 2023.