AMENDMENT 444

Amendment: Section 2A3.1 is amended in the title by deleting "or Assault with the Intent" immediately following "Attempt".

Section 2A3.1(b)(3) is amended by deleting:

"in the custody, care, or supervisory control of the defendant, was a corrections employee, or",

and by inserting in lieu thereof:

"(A) in the custody, care, or supervisory control of the defendant; or (B)".

Section 2A3.1 is amended by inserting the following additional subsection:

"(c) Special Instruction

(1) If the offense occurred in a correctional facility and the victim was a corrections employee, the offense shall be deemed to have an official victim for purposes of subsection (a) of §3A1.2 (Official Victim).".

The Commentary to §2A3.1 captioned "Application Notes" is amended by renumbering Note 3 as Note 4; and by inserting the following additional note:

"3. Subsection (b)(3), as it pertains to a victim in the custody, care, or supervisory control of the defendant, is intended to have broad application and is to be applied whenever the victim is entrusted to the defendant, whether temporarily or permanently. For example, teachers, day care providers, baby-sitters, or other temporary caretakers are among those who would be subject to this enhancement. In determining whether to apply this enhancement, the court should look to the actual relationship that existed between the defendant and the victim and not simply to the legal status of the defendant-victim relationship.".

Section 2A3.2 is amended by inserting the following additional subsection:

"(c) Cross Reference

(1) If the offense involved criminal sexual abuse or attempt to commit criminal sexual abuse (as defined in 18 U.S.C. § 2241 or § 2242), apply §2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse).".

The Commentary to §2A3.2 captioned "Application Notes" is amended by renumbering Note 2 as Note 3; and by inserting the following as Note 2:

"2. Subsection (b)(1) is intended to have broad application and is to be applied whenever the victim is entrusted to the defendant, whether temporarily or permanently. For example, teachers, day care providers, baby-sitters, or other temporary caretakers are among those who would be subject to this enhancement. In determining whether to apply this enhancement, the court should look to the actual relationship that existed between the defendant and the victim and not simply to the legal status of the defendant-victim relationship.".

Section 2A3.4 is amended by inserting the following additional subsection:

"(c) Cross References

(1) If the offense involved criminal sexual abuse or attempt to commit criminal sexual abuse (as defined in 18 U.S.C. § 2241 or § 2242), apply §2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse).

(2) If the offense involved criminal sexual abuse of a minor or attempt to commit criminal sexual abuse of a minor (as defined in 18 U.S.C. § 2243(a)), apply §2A3.2 (Criminal Sexual Abuse of a Minor or Attempt to Commit Such Acts), if the resulting offense level is greater than that determined above.".

The Commentary to §2A3.4 captioned "Application Notes" is amended by renumbering Note 3 as Note 4; and by inserting the following as Note 3:

"3. Subsection (b)(3) is intended to have broad application and is to be applied whenever the victim is entrusted to the defendant, whether temporarily or permanently. For example, teachers, day care providers, baby-sitters, or other temporary caretakers are among those who would be subject to this enhancement. In determining whether to apply this enhancement, the court should look to the actual relationship that existed between the defendant and the victim and not simply to the legal status of the defendant-victim relationship.".

Section 2G1.2(c)(2) is amended by deleting "or Assault with the Intent" immediately before "to Commit Criminal Sexual Abuse".

The Commentary to §2X1.1 captioned "Application Notes" is amended in Note 1 in the second paragraph by deleting "or Assault with the Intent" immediately before "to Commit Criminal Sexual Abuse".

Reason for Amendment: This amendment cross references §2A3.2 to §2A3.1, and §2A3.4 to §§2A3.1 and 2A3.2. A review of cases sentenced under these guidelines indicated that a significant proportion of cases sentenced under §2A3.2 and §2A3.4 clearly involved conduct that would more appropriately be covered under an offense guideline applicable to more serious sexual abuse cases. The addition of these cross references is designed to address this issue. In addition, this amendment removes an anomaly between §2A3.1(b)(3) and §3A1.2(a), and adds application notes to clarify the scope of §§2A3.1(b)(3), 2A3.2(b)(1), and 2A3.4(b)(3), using language derived from application notes pertaining to similar specific offense characteristics in Chapter Two, Part G.

Effective Date: The effective date of this amendment is November 1, 1992.