AMENDMENT 549

Amendment: Section 2A2.2(b) is amended by inserting after subdivision (4) the following additional subdivision:

"(5) If the offense involved the violation of a court protection order, increase by 2 levels.".

Chapter Two, Part A, Subpart 6 is amended in the title by inserting "or Harassing" after "Threatening"; and by inserting ", Stalking, and Domestic Violence" after "Communications".

Section 2A6.1 is amended in the title by inserting "or Harassing" after "Threatening".

Section 2A6.1 is amended by deleting subsection (a) as follows:

"(a) Base Offense Level: 12",

and inserting in lieu thereof:

"(a) Base Offense Level:

(1) 12; or

(2) 6, if the defendant is convicted of an offense under 47 U.S.C. § 223(a)(1)(C), (D), or (E) that did not involve a threat to injure a person or property.".

Section 2A6.1(b) is amended by redesignating subdivision (2) as subdivision (4); and by inserting after subdivision (1) the following new subdivisions:

"(2) If the offense involved more than two threats, increase by 2 levels.

(3) If the offense involved the violation of a court protection order, increase by 2 levels.".

Section 2A6.1(b)(4), as redesignated, is amended by deleting "If specific offense characteristic §2A6.1(b)(1) does not apply, and" and inserting in lieu thereof "If (A) subsection (a)(2) and subdivisions (1), (2), and (3) do not apply, and (B)".

The Commentary to §2A6.1 captioned "Statutory Provisions" is amended by inserting "; 47 U.S.C. § 223(a)(1)(C)-(E)" after "879".

The Commentary to §2A6.1 captioned "Application Note" is amended by deleting "Note" and inserting in lieu thereof "Notes"; and by inserting after Note 1 the following additional note:

"2. In determining whether subsections (b)(1), (b)(2), and (b)(3) apply, the court shall consider both conduct that occurred prior to the offense and conduct that occurred during the offense; however, conduct that occurred prior to the offense must be substantially and directly connected to the offense, under the facts of the case taken as a whole. For example, if the defendant engaged in several acts of mailing threatening letters to the same victim over a period of years (including acts that occurred prior to the offense), then for purposes of determining whether subsections (b)(1), (b)(2), and (b)(3) apply, the court shall consider only those prior acts of threatening the victim that have a substantial and direct connection to the offense.

For purposes of Chapter Three, Part D (Multiple Counts), multiple counts involving making a threatening or harassing communication to the same victim are grouped together under §3D1.2 (Groups of Closely Related Counts). Multiple counts involving different victims are not to be grouped under §3D1.2.

If the conduct involved substantially more than two threatening communications to the same victim or a prolonged period of making harassing communications to the same victim, an upward departure may be warranted.".

Chapter Two, Part A, Subpart 6 is amended by adding after §2A6.1 the following new guideline:

"§2A6.2. Stalking or Domestic Violence

(a) Base Offense Level: 14

(b) Specific Offense Characteristic

(1) If the offense involved one of the following aggravating factors: (A) the violation of a court protection order; (B) bodily injury; (C) possession, or threatened use, of a dangerous weapon; or (D) a pattern of activity involving stalking, threatening, harassing, or assaulting the same victim, increase by 2 levels. If the offense involved more than one of these aggravating factors, increase by 4 levels.

(c) Cross Reference

(1) If the offense involved conduct covered by another offense guideline from Chapter Two, Part A (Offenses Against the Person), apply that offense guideline, if the resulting offense level is greater than that determined above.

Commentary

Statutory Provisions: 18 U.S.C. §§ 2261-2262.

Application Notes:

1. For purposes of this guideline—

‘Bodily injury’ and ‘dangerous weapon’ are defined in the Commentary to §1B1.1 (Application Instructions).

‘Pattern of activity involving stalking, threatening, harassing, or assaulting the same victim’ means any combination of two or more separate instances of stalking, threatening, harassing, or assaulting the same victim, whether or not such conduct resulted in a conviction. For example, a single instance of stalking accompanied by a separate instance of threatening, harassing, or assaulting the same victim constitutes a pattern of activity for purposes of this guideline.

‘Stalking’ means traveling with the intent to injure or harass 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 the person or the person’s immediate family. See 18 U.S.C. § 2261A. ‘Immediate family’ has the meaning set forth in 18 U.S.C. § 115(c)(2).

2. Subsection (b)(1) provides for a two-level or four-level enhancement based on the degree to which the offense involved aggravating factors listed in that subsection. If the offense involved aggravating factors more serious than the factors listed in subsection (b)(1), the cross reference in subsection (c) most likely will apply, if the resulting offense level is greater, because the more serious conduct will be covered by another offense guideline from Chapter Two, Part A. For example, §2A2.2 (Aggravated Assault) most likely would apply pursuant to subsection (c) if the offense involved assaultive conduct in which injury more serious than bodily injury occurred or if a dangerous weapon was used rather than merely possessed.

3. In determining whether subsection (b)(1)(D) applies, the court shall consider, under the totality of the circumstances, any conduct that occurred prior to or during the offense; however, conduct that occurred prior to the offense must be substantially and directly connected to the offense. For example, if a defendant engaged in several acts of stalking the same victim over a period of years (including acts that occurred prior to the offense), then for purposes of determining whether subsection (b)(1)(D) applies, the court shall look to the totality of the circumstances, considering only those prior acts of stalking the victim that have a substantial and direct connection to the offense.

Prior convictions taken into account under subsection (b)(1)(D) are also counted for purposes of determining criminal history points pursuant to Chapter Four, Part A (Criminal History).

4. For purposes of Chapter Three, Part D (Multiple Counts), multiple counts involving stalking, threatening, or harassing the same victim are grouped together (and with counts of other offenses involving the same victim that are covered by this guideline) under §3D1.2 (Groups of Closely Related Counts). For example, if the defendant is convicted of two counts of stalking the defendant’s ex-spouse under 18 U.S.C. § 2261A and one count of interstate domestic violence involving an assault of the ex-spouse under 18 U.S.C. § 2261, the stalking counts would be grouped together with the interstate domestic violence count. This grouping procedure avoids unwarranted ‘double counting’ with the enhancement in subsection (b)(1)(D) (for multiple acts of stalking, threatening, harassing, or assaulting the same victim) and recognizes that the stalking and interstate domestic violence counts are sufficiently related to warrant grouping.

Multiple counts that are cross referenced to another offense guideline pursuant to subsection (c) are to be grouped together if §3D1.2 would require grouping of those counts under that offense guideline. Similarly, multiple counts cross referenced pursuant to subsection (c) are not to be grouped together if §3D1.2 would preclude grouping of the counts under that offense guideline. For example, if the defendant is convicted of multiple counts of threatening an ex-spouse in violation of a court protection order under 18 U.S.C. § 2262 and the counts are cross referenced to §2A6.1 (Threatening or Harassing Communications), the counts would group together because Application Note 2 of §2A6.1 specifically requires grouping. In contrast, if the defendant is convicted of multiple counts of assaulting the ex-spouse in violation of a court protection order under 18 U.S.C. § 2262 and the counts are cross referenced to §2A2.2 (Aggravated Assault), the counts probably would not group together inasmuch as §3D1.2(d) specifically precludes grouping of counts covered by §2A2.2 and no other provision of §3D1.2 would likely apply to require grouping.

Multiple counts involving different victims are not to be grouped under §3D1.2.

5. If the defendant received an enhancement under subsection (b)(1) but that enhancement does not adequately reflect the extent or seriousness of the conduct involved, an upward departure may be warranted. For example, an upward departure may be warranted if the defendant stalked the victim on many occasions over a prolonged period of time.".

Reason for Amendment: This is a five-part amendment. First, this amendment addresses the new offense of interstate stalking, 18 U.S.C. § 2261A, which was enacted as section 1069 of the National Defense Authorization Act for Fiscal Year 1997, Pub. L. 104–201, 110 Stat. 2422. That offense makes it unlawful to travel across a state line or within federal jurisdiction with the intent to injure or harass another person and, in the course of, or as a result of, such travel, to place that person in reasonable fear of death or serious bodily injury to that person or that person’s immediate family.

The amendment adds a new guideline, §2A6.2 (Stalking or Domestic Violence), to cover the stalking offense. The new guideline provides for a base offense level of 14 and an enhancement for the presence of one or more aggravating factors that are often part of a stalking offense, including the violation of a court protection order and the presence of a pattern of stalking, harassing, threatening, or assaultive conduct. The new guideline also provides for a cross reference to other Chapter Two guidelines if the offense involved more serious conduct, such as aggravated assault or kidnapping, that would produce a greater offense level. In addition, the new guideline permits the consideration of prior stalking, harassing, threatening, or assaultive conduct if that conduct is directly and substantially related to the offense.

The new guideline also incorporates the definitions of “bodily injury” and “dangerous weapon” found in §1B1.1 (Application Instructions). The definition of bodily injury found in the guidelines differs from the definition of bodily injury in 18 U.S.C. § 2266 that is applicable to interstate stalking and interstate domestic violence offenses. The definition of “bodily injury” in 18 U.S.C. § 2266 explicitly includes sexual abuse, but the guideline definition of “bodily injury” does not. However, the Commission is fully aware that criminal sexual abuse often is part of a domestic violence offense under 18 U.S.C. §§ 2261 and 2262 and may be part of a stalking offense under 18 U.S.C. § 2261A. It is the view of the Commission that the new guideline provides an adequate mechanism for taking into account the occurrence of criminal sexual abuse in any of these offenses. This is because the guideline definition of “serious bodily injury” in §1B1.1 deems serious bodily injury -- a more serious gradient of bodily injury -- to have occurred if the offense involved conduct constituting criminal sexual abuse under 18 U.S.C. § 2241 or § 2242 or any similar offense under state law. Under the new guideline, any offense that involved criminal sexual abuse almost certainly will be subject to the cross reference to another offense guideline and to the rule deeming such conduct to be serious bodily injury (for purposes of applying a serious bodily injury enhancement in that other guideline to the offense). Therefore, in all likelihood, the sentence will be enhanced for the occurrence of criminal sexual abuse because the case will be cross referenced to another guideline that enhances for serious bodily injury.

Second, the amendment changes the manner in which the offenses of interstate domestic violence, 18 U.S.C. § 2261, and interstate violation of a protection order, 18 U.S.C. § 2262, are treated under the guidelines. Instead of being referenced to the guidelines that may cover underlying conduct, the amendment brings those offenses under the ambit of the new guideline, §2A6.2. This change recognizes that the aggravating factors accounted for in the new guideline often are present in these offenses as well.

Third, the amendment adds an enhancement to §2A2.2 (Aggravated Assault), if the offense involved the violation of a court protection order, to ensure an appropriately severe offense level for stalking, domestic violence, and other cases that are sentenced under the aggravated assault guideline and involve this factor.

Fourth, the amendment addresses several new harassing telecommunications offenses, 47 U.S.C. § 223(a)(1)(C)-(E), which were enacted in section 502 of the Telecommunications Act of 1996, Pub. L. 104–104, 110 Stat. 56. Those offenses make it unlawful to make a telephone call or utilize a telecommunications device, whether or not conversation or communication ensues, without disclosing one’s identity and with the intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communication; make or cause the telephone of another to repeatedly or continuously ring, with the intent to harass any person at the called number; or make repeated telephone calls or repeatedly initiate conversation with a telecommunications device, during which conversation or communication ensues, solely to harass any person at the called number or who receives the communication.

The amendment incorporates these new offenses into §2A6.1 (Threatening Communications). Recognizing that these offenses carry only a two-year maximum term of imprisonment, the amendment provides an alternative offense level of 6 (as compared to 12), if the defendant is convicted of any of these offenses and there was no threat to injure a person or property. The amendment also adds enhancements if the offense involved more than two threats or the violation of a court protection order.

Fifth, this amendment addresses a circuit conflict regarding the enhancement in §2A6.1 that provides a 6-level increase if the offense involved any conduct evidencing an intent to carry out a threat. Specifically, the conflict is whether or not conduct which occurred prior to the making of the threat can evidence an intent to carry out the threat. Compare United States v. Hornick, 942 F.2d 105 (2d Cir. 1991) (“a person cannot take action that will constitute proof of his intent to carry out a threat until after the threat has been made”) cert. denied, 502 U.S. 1061 (1992) with United States v. Taylor, 88 F.3d 938 (11th Cir. 1996) (“the essential inquiry for §2A6.1(b)(1) is whether the facts of the case, taken as a whole, establish a sufficiently direct connection between the defendant’s pre-threat conduct and his threat”); United States v. Sullivan, 75 F.3d 297 (7th Cir. 1996)(same); United States v. Gary, 18 F.3d 1123 (4th Cir.) (same), cert. denied 513 U.S. 844 (1994); United States v. Hines, 26 F.3d 1469 (9th Cir. 1994)(same).

The amendment essentially adopts the Eleventh Circuit’s view by adding an application note to both §§2A6.1 and 2A6.2 to provide that conduct which occurred prior to the offense shall be considered in determining specified enhancements in those guidelines if the prior conduct is substantially and directly connected to the offense.

Effective Date: The effective date of this amendment is November 1, 1997.