AMENDMENT 736

Amendment: The Commentary to §1B1.8 captioned "Application Notes" is amended in Note 3 by striking "(e)(6) (Inadmissibility of Pleas," and inserting "(f) (Admissibility or Inadmissibility of a Plea,".

The Commentary to §2G2.1 captioned "Statutory Provisions" is amended by inserting "(a)-(c), 2251(d)(1)(B)" after "2251".

The Commentary to §2G2.2 captioned "Statutory Provisions" is amended by inserting "(a)-(b)" after "2252A".

The Commentary to §2G2.2 captioned "Application Notes" is amended in Note 1 in the paragraph that begins "‘Sexual abuse" by inserting "(a)-(c), § 2251(d)(1)(B)" after "2251".

The Commentary to §2G2.3 captioned "Background" is amended by striking "twenty" and inserting "thirty".

Section 2G3.1(c)(1) is amended by inserting "Soliciting," after "Shipping,"; and by striking "Traffic) or §2G2.4 (Possession of Materials Depicting a Minor Engaged in Sexually Explicit Conduct), as appropriate." and inserting "Traffic; Possessing Material Involving the Sexual Exploitation of a Minor).".

The Commentary to §2J1.1 captioned "Application Notes" is amended in Note 3 by striking "(7)" and inserting "(8)".

The Commentary to §4B1.2 captioned "Application Notes" is amended in Note 1 in the paragraph that begins "Unlawfully possessing a listed" by striking "(d)" and inserting "(c)".

The Commentary to §5C1.2 captioned "Application Notes" is amended in Note 8 by striking "(c)(1), (3)" and inserting "(f), (i)".

The Commentary to §5D1.2 captioned "Background" is amended by striking "(b)" and inserting "(c)".

Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. § 2251(a),(b) the following:

"18 U.S.C. § 2251(c)               2G2.1";

in the line referenced to 18 U.S.C. § 2251(c)(1)(A) by striking "(c)" and inserting "(d)";

in the line referenced to 18 U.S.C. § 2251(c)(1)(B) by striking "(c)" and inserting "(d)";

in the line referenced to 18 U.S.C. § 2252A by inserting "(a), (b)" after "2252A";

by inserting before the line referenced to 18 U.S.C. § 2252B the following:

"18 U.S.C. § 2252A(g)            2G2.6";

and in the line referenced to 42 U.S.C. § 3611(f) by striking "(f)" and inserting "(c)".

Reason for Amendment: This multi-part amendment makes various technical and conforming changes to the guidelines.

The amendment addresses several cases in which the Guidelines Manual refers to a guideline, or to a statute or rule, but the reference has become incorrect or obsolete. First, it makes technical changes in §1B1.8 (Use of Certain Information) to address the fact that provisions that had been contained in subsection (e)(6) of Rule 11 of the Federal Rules of Criminal Procedure are now contained in subsection (f) of that rule. Second, it makes a technical change in §2J1.1 (Contempt), Application Note 3, to address the fact that the provision that had been contained in subsection (b)(7)(C) of §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)) is now contained in subsection (b)(8)(C) of that guideline. Third, it makes a technical change in §4B1.2 (Definitions of Terms Used in Section 4B1.1), Application Note 1, to address the fact that the offense that had been contained in subsection (d)(1) of 21 U.S.C. § 841 is now contained in subsection (c)(1) of that section. Fourth, it makes technical changes in §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases), Application Note 8, to address the fact that subsections (c)(1) and (c)(3) of Rule 32 of the Federal Rules of Criminal Procedure are now contained in subsections (f) and (i) of that rule. Fifth, it makes a technical change to the Commentary in §5D1.2 (Term of Supervised Release) to address the fact that the provision that had been contained in subsection (b) of §5D1.2 is now contained in subsection (c) of that guideline. Sixth, it makes a technical change in Appendix A (Statutory Index) to address the fact that the offense that had been contained in subsection (f) of 42 U.S.C. § 3611 is now contained in subsection (c) of that section.

The amendment also resolves certain technical issues that have arisen in the Guidelines Manual with respect to child pornography offenses. First, it makes technical changes to the Commentary in §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) to more accurately indicate which offenses under 18 U.S.C. § 2251 are referenced to §2G2.1. Second, it makes technical changes to the Commentary in §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) to address the fact that offenses under 18 U.S.C. § 2252A(g) are now covered by §2G2.6 (Child Exploitation Enterprises)(see Appendix C to the Guidelines Manual, Amendment 701), while offenses under section 2252A(a) and (b) continue to be covered by §2G2.2. Third, it makes a technical change to the Commentary in §2G2.3 (Selling or Buying of Children for Use in the Production of Pornography) to address the fact that the statutory minimum sentence for a defendant convicted under 18 U.S.C. § 2251A is now 30 years imprisonment. Fourth, it makes technical changes in subsection (c)(1) of §2G3.1 (Importing, Mailing, or Transporting Obscene Matter; Transferring Obscene Matter to a Minor; Misleading Domain Names) to address the fact that §2G2.4 no longer exists, having been consolidated into §2G2.2 effective November 1, 2004 (see Appendix C to the Guidelines Manual, Amendment 664). Fifth, it makes a technical change in Appendix A (Statutory Index) to address the fact that the offenses that had been contained in subsections (c)(1)(A) and (c)(1)(B) of 18 U.S.C. § 2251 are now contained in subsections (d)(1)(A) and (d)(1)(B) of that section. In doing so, it also provides the appropriate reference for the offense that is now contained in subsection (c) of that section. Sixth, it makes a technical change in Appendix A (Statutory Index) to address the fact that offenses under section 2252A(g) are now covered by §2G2.6, while offenses under section 2252A(a) and (b) continue to be covered by §2G2.2.

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