AMENDMENT 812

Amendment: The Commentary to §2A3.5 captioned “Statutory Provision” is amended by striking “§ 2250(a)” and inserting “§ 2250(a), (b)”.

The Commentary to §2A3.5 captioned “Application Notes” is amended by redesignating Note 2 as Note 3; and by inserting the following new Note 2:

“2. Application of Subsection (b)(1).—For purposes of subsection (b)(1), a defendant shall be deemed to be in a ‘failure to register status’ during the period in which the defendant engaged in conduct described in 18 U.S.C. § 2250(a) or (b).”.

Section 2A3.6(a) is amended by striking “§ 2250(c)” and inserting “§ 2250(d)”.

The Commentary to §2A3.6 captioned “Statutory Provisions” is amended by striking “2250(c)” and inserting “2250(d)”.

The Commentary to §2A3.6 captioned “Application Notes” is amended—

in Note 1 by striking “Section 2250(c)” and inserting “Section 2250(d)”; and by inserting after “18 U.S.C. § 2250(a)” the following: “or (b)”;

in Note 3 by striking “§ 2250(c)” and inserting “§ 2250(d)”;

and in Note 4 by striking “§ 2250(c)” and inserting “§ 2250(d)”.

Section 2B5.3(b)(5) is amended by striking “counterfeit drug” and inserting “drug that uses a counterfeit mark on or in connection with the drug”.

The Commentary to §2B5.3 captioned “Application Notes” is amended in Note 1 by striking the third undesignated paragraph as follows:

“‘Counterfeit drug’ has the meaning given that term in 18 U.S.C. § 2320(f)(6).”;

and by inserting after the paragraph that begins “‘Counterfeit military good or service’ has the meaning” the following new paragraph:

“‘Drug’ and ‘counterfeit mark’ have the meaning given those terms in 18 U.S.C. § 2320(f).”.

The Commentary to §2G1.3 captioned “Application Notes” is amended in Note 4 by striking “(b)(3)” each place such term appears and inserting “(b)(3)(A)”.

Section 5D1.3(a)(6)(A) is amended by striking “18 U.S.C. §§ 2248, 2259, 2264, 2327, 3663, 3663A, and 3664” and inserting “18 U.S.C. §§ 3663 and 3663A, or any other statute authorizing a sentence of restitution”.

Appendix A (Statutory Index) is amended—

in the line referenced to 15 U.S.C. § 2615 by striking “§ 2615” and inserting “§ 2615(b)(1)”;

by inserting before the line referenced to 15 U.S.C. § 6821 the following new line reference:

“15 U.S.C. § 2615(b)(2)             2Q1.1”;

in the line referenced to 18 U.S.C. § 2250(a) by striking “§ 2250(a)” and inserting “§ 2250(a), (b)”;

and in the line referenced to 18 U.S.C. § 2250(c) by striking “§ 2250(c)” and inserting “§ 2250(d)”.

Reason for Amendment: This multi-part amendment responds to recently enacted legislation and miscellaneous guideline application issues.

First, the amendment responds to section 6 of the International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders, Pub. L. 114–119 (Feb. 8, 2016), which added a new registration requirement for certain sex offenders required to register under the Sex Offender Registration and Notification Act (SORNA) at 34 U.S.C. § 20914. SORNA requires sex offenders to register in the sex offender registry, and keep their registration current, by providing certain identifying information including names, addresses, and Social Security Numbers. The new requirement at 34 U.S.C. § 20914(7) directs sex offenders to provide information relating to intended travel outside the United States, including any anticipated dates and places of departure, arrival or return, air carrier and flight numbers, and destination country. The Act also established a new offense at 18 U.S.C. § 2250(b). For those required to register under SORNA, knowingly failing to provide this travel-related information and engaging or attempting to engage in the intended travel outside of the United States, carries a statutory maximum of 10 years of imprisonment. Section 2250 offenses are referenced in Appendix A (Statutory Index) to §2A3.5 (Failure to Register as a Sex Offender). The amendment amends Appendix A so the new offense at 18 U.S.C. § 2250(b) is referenced to §2A3.5. The amendment also adds a new Application Note 2 to the Commentary to §2A3.5 providing that for purposes of §2A3.5(b)(1), a defendant shall be considered in a “failure to register status” during the time the defendant engaged in conduct described in either section 2250(a) (failing to register or update registration) or section 2250(b) (failing to provide required travel-related information). This application note reflects the Commission’s determination that failing to provide information about intended foreign travel meets the definition of failing to update registration information in the sex offender registry. In addition, the amendment makes clerical changes to §2A3.6 (Aggravated Offenses Relating to Registration as a Sex Offender) to reflect the adoption of section 2250(b) and the associated redesignation of section 2250(c) as section 2250(d).

Second, the amendment responds to section 3 of the Transnational Drug Trafficking Act of 2016, Pub. L. 114–154 (May 16, 2016), which made changes relating to the trafficking of counterfeit drugs by amending the language in the penalty provision at 18 U.S.C. § 2320. The Act amended section 2320(b)(3) to replace the term “counterfeit drug” with the phrase “a drug that uses a counterfeit mark on or in connection with the drug.” The Act also revised section 2320(f) to define the term “drug” by reference to the term as defined in the Federal Food, Drug, and Cosmetic Act found at 21 U.S.C. § 321. Section 2320 offenses are referenced in Appendix A (Statutory Index) to §2B5.3 (Criminal Infringement of Copyright or Trademark). The amendment replaces the term “counterfeit drug” at §2B5.3(b)(5) with the new phrase in the revised section 2320(b)(3), to remain consistent with the language of the statute. Similarly, the amendment amends the commentary to §2B5.3 to remove a definition for the obsolete term “counterfeit drug” and replace it with definitions of the terms “drug” and “counterfeit mark” as found in the revised statute.

Third, the amendment responds to section 12 of the Frank R. Lautenberg Chemical Safety for the 21st Century Act of 2016, Pub. L. 114–182 (June 22, 2016), which amended section 16 of the Toxic Substances Control Act (15 U.S.C. § 2615) by adding a new provision at section 2615(b)(2). The new provision prohibits any person from knowingly and willfully violating specific provisions of the Toxic Substances Control Act, knowing at the time of the violation that the violation puts a person in imminent danger of death or bodily injury, with a maximum penalty of 15 years of imprisonment. The Toxic Substances Control Act is referenced in Appendix A (Statutory Index) to §2Q1.2 (Mishandling of Hazardous or Toxic Substances of Pesticides; Recordkeeping, Tampering, and Falsification; Unlawfully Transporting Hazardous Materials in Commerce). The amendment continues to reference the preexisting offense, now codified at section 2615(b)(1), to §2Q1.2, but references the new offense, codified at section 2615(b)(2), to §2Q1.1 (Knowing Endangerment Resulting From Mishandling Hazardous or Toxic Substances, Pesticides or Other Pollutants). The Commission determined §2Q1.1 is the most analogous guideline because it covers similar “knowing endangerment” provisions and has a similar mens rea element found in similar statutes referenced in Appendix A to §2Q1.1.

Fourth, the amendment responds to section 2 of the Justice for All Reauthorization Act of 2016, Pub. L. 114–324 (Dec. 16, 2016), which amended 18 U.S.C. § 3583(d) (relating to conditions of supervised release) to require a court, when imposing a sentence of supervised release, to include as a condition that the defendant make restitution in accordance with sections 3663 and 3663A of Title 18 of the United States Code, or any other statute authorizing a sentence of restitution. The amendment amends subsection (a)(6)(A) of §5D1.3 (Conditions of Supervised Release) to include a mandatory condition of supervised release in conformance with the new statutory requirement. The amendment also parallels the Judicial Conference of the United States’ recent revision of the Judgment in a Criminal Case form to include a new mandatory condition of supervised release.

Fifth, the amendment clarifies an application issue that has arisen with respect to §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), which applies to several offenses involving the transportation of a minor for illegal sexual activity. A two-level enhancement at §2G1.3(b)(3) applies if the offense involved the use of a computer to either (A) persuade, entice or coerce a minor, or to facilitate the travel of a minor, to engage in prohibited sexual conduct, or (B) to entice, offer, or solicit a person to engage in prohibited sexual conduct with a minor. While Application Note 4 sets forth guidance on this enhancement, it fails to distinguish between the two prongs of subsection (b)(3). As a result, an application issue has arisen regarding whether the note prohibits application of the enhancement where a computer was used to solicit a third party to engage in prohibited sexual conduct with a minor, as set out in subsection (b)(3)(B). Courts have concluded that the application note is inconsistent with the language of §2G1.3(b)(3), and that application of the enhancement for the use of a computer in third party solicitation cases is proper. See e.g., United States v. Cramer, 777 F.3d 597, 606 (2d Cir. 2015); United States v. McMillian, 777 F.3d 444, 449–50 (7th Cir. 2015); United States v. Hill, 782 F.3d 842, 846 (11th Cir. 2015); United States v. Pringler, 765 F.3d 455 (5th Cir. 2014). The amendment is intended to clarify the Commission’s original intent that Application Note 4 apply only to subsection (b)(3)(A).

Effective Date: The effective date of this amendment is November 1, 2018.