21 August 1998
Source: http://www.access.gpo.gov/su_docs/aces/aaces002.html

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[Federal Register: August 21, 1998 (Volume 63, Number 162)]
[Notices]
[Page 44941-44942]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21au98-91]

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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Request for public comment.

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SUMMARY: Pursuant to its authority under 28 U.S.C. 994(o) and (p), and
the ``emergency authority'' in section 6(d) of the Telemarketing Fraud
Prevention Act of 1998, Pub. L. 105-184 (the ``Act''), the Commission
requests comment on several issues pertaining to the directive
contained in the Act. Specifically, the Commission seeks comment on how
the Act's directive, to substantially increase the penalties for
persons convicted of offenses described in 18 U.S.C. 2326 in connection
with the conduct of telemarketing fraud, interacts with the mass-
marketing and sophisticated concealment amendments submitted to
Congress by the Commission on May 1, 1998. (These amendments were
published in the Federal Register of May 21, 1998 (63 FR 28203-04)).

DATES: Written public comment should be submitted to the Commission not
later than September 10, 1998. The emergency authority provision of the
Act requires the Commission to promulgate any necessary amendments and
submit them to Congress not later than October 21, 1998.

[[Page 44942]]

ADDRESS: Public comment should be sent to: United States Sentencing
Commission, One Columbus Circle, N.E., Suite 2-500, Washington, D.C.
20002-8002, Attention: Public Affairs.

FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs
Officer, Telephone: (202) 273-4590.

    Authority: 28 U.S.C. 994 (a), (o), (p), (x); section 6(d) of
Pub. L. 105-184.

Richard P. Conaboy,
Chairman.

Issues for Comment--Telemarketing Fraud

    During the 1997-98 amendment cycle, the Commission examined the
characteristics of telemarketing fraud offenses, the statutory
enhancement for telemarketing fraud in 18 U.S.C. 2326, and whether the
current enhancements in Sec. 2F1.1 (Fraud), Sec. 3A1.1 (Hate Crime
Motivation or Vulnerable Victim), and the departure policy statements
in Sec. 5K2.0-Sec. 5K2.18 provide adequate punishment for persons
convicted of telemarketing fraud offenses. The Commission published
issues for comment relating to this review in January, 1998. See 63 FR
625-26 (January 6, 1998). Following this review, the Commission, on May
1, 1998, submitted to Congress an amendment that increases by two
offense levels (approximately 25 percent) the penalties for fraud
offenses that are committed through mass-marketing, including
telemarketing fraud offenses (the ``mass-marketing'' amendment). See 63
FR 28203-04 (May 21, 1998). That amendment also provided a two-level
increase and a ``floor'' offense level of level 12 for fraud offenses
that involve conduct, such as sophisticated concealment, that makes it
difficult for law enforcement authorities to discover the offense or
apprehend the offenders (the ``sophisticated concealment'' amendment).
These amendments are slated to take effect on November 1, 1998, absent
any disapproval legislation enacted by Congress.
    Subsequently, on June 23, 1998, Congress enacted the Telemarketing
Fraud Prevention Act of 1998 (Pub. L. 105-184; 112 Stat. 520) (the
``Act''), which directs the Commission, under emergency amendment
authority, ``to provide for substantially increased penalties for
persons convicted of offenses described in (18 U.S.C. 2326] * * * in
connection with the conduct of telemarketing.'' In carrying out this
directive, the Commission is required, among other things, to ``(1)
ensure that the guidelines and policy statements promulgated pursuant
to [the directive] * * * reflect the serious nature of [telemarketing]
offenses; (2) provide an additional appropriate sentencing enhancement,
if the offense involved sophisticated means, including but not limited
to sophisticated concealment efforts, such as perpetrating the offense
from outside the United States; [and] (3) provide an additional
appropriate sentencing enhancement for cases in which a large number of
vulnerable victims, including but not limited to victims described in
[18 U.S.C. 2326(2) (victims over the age of 55)], are affected by a
fraudulent scheme or schemes.''
    With this as background, the Commission invites comment on the
issues that follow relating to: (1) How the Commission should respond
to the directive in the Act; and (2) the interaction of this directive
and the Commission's mass-marketing and sophisticated concealment
amendments submitted to Congress on May 1, 1998.
    1. Do the recently adopted mass-marketing and sophisticated
concealment amendments adequately address the congressional directive
to provide for ``substantially increased penalties for persons
convicted of offenses described in (18 U.S.C. 2326) * * * in connection
with the conduct of telemarketing''? If not, how should the Commission
modify the recent amendments or otherwise amend the guidelines to
satisfy the directive? If an enhancement of greater magnitude is
necessary, by how many offense levels should the sentence for such
offenders be increased? Alternatively, are there additional factors
that the Commission should address, either by specific offense
characteristics, guideline commentary, or departure provisions, to
provide appropriate punishment for telemarketing offenses?
    2. The mass-marketing amendment is intended to apply to persons who
engage in a plan to victimize a large number of persons through a
fraudulent telemarketing scheme. Does this amendment adequately address
the directive ``to provide an additional appropriate sentencing
enhancement for cases in which a large number of vulnerable victims,
including but not limited to victims described in [18 U.S.C. 2326(2)
(victims over the age of 55)], are affected by a fraudulent scheme or
schemes''? What is the meaning of the term ``large number'' (in that
part of the directive that refers to a large number of vulnerable
victims)? Does application of this new enhancement, in conjunction with
other guideline provisions, such as the enhancement for more than one
victim (Sec. 2F1.1(b)(2)) and the vulnerable victim adjustment
(Sec. 3A1.1), comply with the directive? If not, what amendment or
amendments would satisfy the directive?
    3. Does the sophisticated concealment amendment adequately address
the directive ``to provide an additional appropriate sentencing
enhancement, if the offense involved sophisticated means, including but
not limited to sophisticated concealment efforts, such as perpetrating
the offense from outside the United States''? If not, what amendment or
amendments would satisfy the directive?
    4. Are there other provisions contained in the directive, not
specifically addressed in this issue for comment, that require the
Commission to amend the guidelines?
    5. If additional guideline amendments are required to satisfy the
congressional directive, how should those amendments be coordinated
with general increases in fraud penalties (e.g., increases in the loss
table) that the Commission may consider at some future date in order to
ensure consistent and proportional sentencing for similar types of
fraud offenses?

[FR Doc. 98-22526 Filed 8-20-98; 8:45 am]
BILLING CODE 2210-40-P
