19 January 2000
Source: http://www.access.gpo.gov/su_docs/aces/fr-cont.html

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[Federal Register: January 18, 2000 (Volume 65, Number 11)]
[Notices]
[Page 2663-2668]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18ja00-102]

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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY:  United States Sentencing Commission.

ACTION:  Notice of proposed permanent amendments to the sentencing
guidelines, policy statements, and commentary. Request for comment.
Notice of public hearing.

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SUMMARY:  The Commission hereby gives notice of the following actions:
(1) Two options for amending Sec. 2D1.1 (Unlawful Manufacturing,
Importing, Exporting, Trafficking, or Possession) to increase the
penalties for methamphetamine offenses in response to the increased
mandatory minimum penalties made by the Methamphetamine Trafficking
Penalty Enhancement Act of 1998, Pub. L. 105-277; and (2) two options
for amending Sec. 2F1.1 (Fraud and Deceit) to implement the directive
in the Identity Theft and Assumption Deterrence Act of 1998, Pub. L.
105-318.
    The proposed amendments are presented in one of two formats. First,
the amendments are proposed as specific revisions to the relevant
guidelines and accompanying commentary. Bracketed text within a
proposed amendment indicates that the Commission invites comment and
suggestions for alternative policy choices; for example, a proposed
enhancement of [2] levels indicates that the Commission is considering,
and invites comment on, alternative policy choices regarding the
appropriate level of enhancement. Second, the Commission has
highlighted certain issues for comment and invites suggestions for how
the Commission should respond to those issues.

DATES:  (1) Proposed amendments.--Comment on the proposed amendments
and issues for comment should be received by the Commission not later
than March 10, 2000. (2) Public hearing.--The Commission has scheduled
a public hearing for March 23, 2000, at the Thurgood Marshall Federal
Judiciary Building, One Columbus Circle, N.E. Washington, D.C. 20002-
8002 (time to be announced). The scope of the hearing is expected to
include all permanent amendments that are proposed for action in this
amendment cycle ending May 1, 2000, including the proposed re-
promulgation of the temporary, emergency telemarketing fraud amendment
described in 64 FR 72129 (1999). A person who desires to testify at the
public hearing should notify Michael Courlander, Public Affairs
Officer, at (202) 502-4590 not later than March 10, 2000. Written
testimony for the hearing must be received by the Commission not later
than March 16, 2000. Submission of written testimony is a requirement
for testifying at the public hearing.

ADDRESSES:  Send comments to: United States Sentencing Commission, One
Columbus Circle, NE, Suite 2-500 South, Washington, DC 20002-8002,
Attention: Public Information-Public Comment.

FOR FURTHER INFORMATION CONTACT:  Michael Courlander, Public Affairs
Officer, Telephone: (202) 502-4590.

SUPPLEMENTARY INFORMATION:  Reports and other additional information
pertaining to the proposed amendments described in this notice may be
accessed through the Commission's website at www.ussc.gov.

    Authority: 28 U.S.C. 994(a), (o), (p), (x); USSC Rules of
Practice and Procedure 4.3, 4.4.

Diana E. Murphy,
Chair.

Proposed Amendment: Methamphetamine

    (1) Synopsis of Proposed Amendment: This proposed amendment
responds to the Methamphetamine Trafficking Penalty Enhancement Act of
1998, Pub. L. 105-277. That Act effectively increased the mandatory
minimum sentences for methamphetamine trafficking offenses by cutting
in half the quantities of methamphetamine mixture and methamphetamine
substance (i.e., methamphetamine-actual) necessary to trigger the five-
and ten-year mandatory minimum statutory penalties applicable to
methamphetamine trafficking offenses. Under 21 U.S.C.
841(b)(1)(B)(viii), as amended by the Act, the 5-year mandatory minimum
is triggered if the offense involves 5 grams or more of
methamphetamine-actual or 50 grams or more of methamphetamine-mixture.
Under 21 U.S.C. 841(b)(1)(A)(viii), as amended by the Act, the 10-year
mandatory minimum is triggered if the offense involves 50 grams or more
of methamphetamine-actual or 500 grams or more of methamphetamine-
mixture. This proposed amendment presents two options for changes to
the guideline for drug trafficking, Sec. 2D1.1, particularly the Drug
Quantity Table, that would respond to the Act.
    Option 1 changes the calculations in the Drug Quantity Table in
Sec. 2D1.1 for methamphetamine substance (i.e., methamphetamine-actual)
and ``Ice'' (i.e., d-methamphetamine hydrochloride of at least 80%
purity) to conform the quantities for those drugs to the quantities
that now trigger the statutory 5- and 10-year mandatory minimums.
    Option 2 generally proposes to eliminate the distinction between
methamphetamine-actual and

[[Page 2664]]

methamphetamine-mixture and generally sentence all methamphetamine
offenses based on the weight of pure methamphetamine. There are two
exceptions to this general rule. The first exception would continue the
guideline presumption that ``Ice'' methamphetamine is 100 percent pure,
even though in reality it is typically only 80-90 percent pure. Thus,
if the offense involved ``Ice'', the weight of the entire ``Ice''
mixture would be used. The second exception would address the situation
in which the purity of the methamphetamine-mixture in a given case may
not always be known or readily determinable. To handle the contingency
of unknown purity, the guidelines could establish a presumptive purity
of, perhaps, 50 percent to be used only when purity is unknown.
    An issue for comment follows the presentation of the options
regarding whether the Commission should consider making changes to the
Drug Equivalency Table in Sec. 2D1.1, relating to Phenylacetone/P2P,
when possessed for the purpose of manufacturing methamphetamine, and
whether it should change the Chemical Quantity Table in Sec. 2D1.11,
relating to any chemical referenced in that table that is used to
manufacture methamphetamine, in order to reflect the increased harm
associated with methamphetamine offenses.

Proposed Amendment--Option 1

    Section 2D1.1(c)(1) is amended by striking ``3 KG or more'' before
``of Methamphetamine (actual)'' and inserting ``1.5 KG or more'' and by
striking ``3 KG or more'' before ``of `Ice' '' and inserting ``1.5 KG
or more''.
    Section 2D1.1(c)(2) is amended by striking ``at least 1 KG but less
than 3 KG'' before ``of Methamphetamine (actual)'' and inserting ``at
least 500 G but less than 1.5 KG'' and by striking ``at least 1 KG but
less than 3 KG'' before ``of `Ice' '' and inserting ``at least 500 G
but less than 1.5 KG''.
    Section 2D1.1(c)(3) is amended by striking ``at least 300 G but
less than 1 KG'' before ``of Methamphetamine (actual)'' and inserting
``at least 150 G but less than 500 G'' and by striking ``at least 300 G
but less than 1 KG'' before ``of `Ice' '' and inserting ``at least 150
G but less than 500 G''.
    Section 2D1.1(c)(4) is amended by striking ``at least 100 G but
less than 300 G'' before ``of Methamphetamine (actual)'' and inserting
``at least 50 G but less than 150 G'' and by striking ``at least 100 G
but less than 300 G'' before ``of `Ice' '' and inserting ``at least 50
G but less than 150 G''.
    Section 2D1.1(c)(5) is amended by striking ``at least 70 G but less
than 100 G'' before ``of Methamphetamine (actual)'' and inserting ``at
least 35 G but less than 50 G'' and by striking ``at least 70 G but
less than 100 G'' before ``of `Ice' '' and inserting ``at least 35 G
but less than 50 G''.
    Section 2D1.1(c)(6) is amended by striking ``at least 40 G but less
than 70 G'' before ``of Methamphetamine (actual)'' and inserting ``at
least 20 G but less than 35 G'' and by striking ``at least 40 G but
less than 70 G'' before ``of `Ice' '' and inserting ``at least 20 G but
less than 35 G''.
    Section 2D1.1(c)(7) is amended by striking ``at least 10 G but less
than 40 G'' before ``of Methamphetamine (actual)'' and inserting ``at
least 5 G but less than 20 G'' and by striking ``at least 10 G but less
than 40 G'' before ``of `Ice' '' and inserting ``at least 5 G but less
than 20 G''.
    Section 2D1.1(c)(8) is amended by striking ``at least 8 G but less
than 10 G'' before ``of Methamphetamine (actual)'' and inserting ``at
least 4 G but less than 5 G'' and by striking ``at least 8 G but less
than 10 G'' before ``of `Ice' '' and inserting ``at least 4 G but less
than 5 G''.
    Section 2D1.1(c)(9) is amended by striking ``at least 6 G but less
than 8 G'' before ``of Methamphetamine (actual)'' and inserting ``at
least 3 G but less than 4 G''; and by striking ``at least 6 G but less
than 8 G'' before ``of `Ice' '' and inserting ``at least 3 G but less
than 4 G''.
    Section 2D1.1(c)(10) is amended by striking ``at least 4 G but less
than 6 G'' before ``of Methamphetamine (actual)'' and inserting ``at
least 2 G but less than 3 G'' and by striking ``at least 4 G but less
than 6 G'' before ``of `Ice' '' and inserting ``at least 2 G but less
than 3 G''.
    Section 2D1.1(c)(11) is amended by striking ``at least 2 G but less
than 4 G'' before ``of Methamphetamine (actual)'' and inserting ``at
least 1 G but less than 2 G''; and by striking ``at least 2 G but less
than 4 G'' before ``of `Ice' '' and inserting ``at least 1 G but less
than 2 G''.
    Section 2D1.1(c)(12) is amended by striking ``at least 1 G but less
than 2 G'' before ``of Methamphetamine (actual)'' and inserting ``at
least 500 MG but less than 1 G''; and by striking ``at least 1 G but
less than 2 G'' before ``of ``Ice'' and inserting ``at least 500 MG but
less than 1 G''.
    Section 2D1.1(c)(13) is amended by striking ``at least 500 MG but
less than 1 G'' before ``of Methamphetamine (actual)'' and inserting
``at least 250 MG but less than 500 MG''; and by striking ``at least
500 MG but less than 1 G'' before ``of `Ice'' ' and inserting ``at
least 250 MG but less than 500 MG''.
    Section 2D1.1(c)(14) is amended by striking ``less than 500 MG''
before ``of Methamphetamine (actual)'' and inserting ``less than 250
MG''; and by striking ``less than 500 MG'' before ``of `Ice'' ' and
inserting ``less than 250 MG''.
    The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 10 in the subdivision of the ``Drug Equivalency
Tables'' captioned ``Cocaine and Other Schedule I and II Stimulants
(and their immediate precursors)'' in the line referenced to
``Methamphetamine (Actual)'' by striking ``10 kg'' and inserting ``20
kg''.
    The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 10 in the subdivision of the ``Drug Equivalency
Tables'' captioned ``Cocaine and Other Schedule I and II Stimulants
(and their immediate precursors)'' in the line referenced to ``Ice'' by
striking ``10 kg'' and inserting ``20 kg''.

Option 2

    Section 2D1.1(c)(1) is amended by striking the line referenced to
``Methamphetamine'' in its entirety and inserting:
    ``1.5 KG or more of Methamphetamine, or 1.5 KG or more of `Ice';''.
    Section 2D1.1(c)(2) is amended by striking the line referenced to
``Methamphetamine'' in its entirety and inserting:
    ``At least 500 G but less than 1.5 KG of Methamphetamine, or at
least 500 G but less than 1.5 KG of `Ice';''.
    Section 2D1.1(c)(3) is amended by striking the line referenced to
``Methamphetamine'' in its entirety and inserting:
    ``At least 150 G but less than 500 G of Methamphetamine, or at
least 150 G but less than 500 G of `Ice';''.
    Section 2D1.1(c)(4) is amended by striking the line referenced to
``Methamphetamine'' in its entirety and inserting:
    ``At least 50 G but less than 150 G of Methamphetamine, or at least
50 G but less than 150 G of `Ice';''.
    Section 2D1.1(c)(5) is amended by striking the line referenced to
``Methamphetamine'' in its entirety and inserting:
    ``At least 35 G but less than 50 G of Methamphetamine, or at least
35 G but less than 50 G of `Ice' ''
    Section 2D1.1(c)(6) is amended by striking the line referenced to
``Methamphetamine'' in its entirety and inserting:

[[Page 2665]]

    ``At least 20 G but less than 35 G of Methamphetamine, or at least
20 G but less than 35 G of `Ice' ''.
    Section 2D1.1(c)(7) is amended by striking the line referenced to
``Methamphetamine'' in its entirety and inserting:
    ``At least 5 G but less than 20 G of Methamphetamine, or at least 5
G but less than 20 G of `Ice';''.
    Section 2D1.1(c)(8) is amended by striking the line referenced to
``Methamphetamine'' in its entirety and inserting:
    ``At least 4 G but less than 5 G of Methamphetamine, or at least 4
G but less than 5 G of `Ice`Ice';''.
    Section 2D1.1(c)(9) is amended by striking the line referenced to
``Methamphetamine'' in its entirety and inserting:
    ``At least 3 G but less than 4 G of Methamphetamine, or at least 3
G but less than 4 G of `Ice''';.
    Section 2D1.1(c)(10) is amended by striking the line referenced to
``Methamphetamine'' in its entirety and inserting:
    ``At least 2 G but less than 3 G of Methamphetamine, or at least 2
G but less than 3 G of `Ice`Ice';''.
    Section 2D1.1(c)(11) is amended by striking the line referenced to
``Methamphetamine'' in its entirety and inserting:
    ``At least 1 G but less than 2 G of Methamphetamine, or at least 1
G but less than 2 G of `Ice`Ice';''.
    Section 2D1.1(c)(12) is amended by striking the line referenced to
``Methamphetamine'' in its entirety and inserting:
    ``At least 500 MG but less than 1 G of Methamphetamine, or at least
500 MG but less than 1 G of `Ice`Ice';''.
    Section 2D1.1(c)(13) is amended by striking the line referenced to
``Methamphetamine'' in its entirety and inserting:
    ``At least 250 MG but less than 500 MG of Methamphetamine, or at
least 250 MG but less than 500 MG of ``Ice`Ice';''.
    Section 2D1.1(c)(14) is amended by striking the line referenced to
``Methamphetamine'' in its entirety and inserting:
    ``Less than 250 MG of Methamphetamine, or less than 250 MG of
``Ice'''.
    Subsection 2D1.1(c) is amended in the part captioned ``Notes to the
Drug Quantity Table'' in Note (B) in the first sentence by striking
``and ``Methamphetamine (actual)' ''; by striking ``refer'' and
inserting ``refers''; and by striking '', itself,''; and in the third
sentence by striking ``or methamphetamine''; and by striking ``or
methamphetamine (actual)''.
    Subsection 2D1.1(c) is amended in the part captioned ``Notes to the
Drug Quantity Table'' by redesignating Notes (C) through (J), as Notes
(D) through (K), respectively; and by inserting after Note (B) the
following new Note (C):
    ``(C) The term `Methamphetamine' refers to the weight of the
controlled substance contained in the mixture or substance. For
example, a mixture weighing 10 grams containing Methamphetamine at 50%
purity contains 5 grams of Methamphetamine. In any case in which the
purity of the Methamphetamine contained in a mixture or substance is
not known, it shall be presumed that the purity of the mixture or
substance is [10%][20%][30%][40%][50%]. To calculate the quantity used
to determine the offense level, multiply the entire weight of the
mixture or substance by [10%][20%][30%][40%][50%]. The resulting
quantity shall be used to determine the offense level.''.
    The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 10 in the subdivision of the ``Drug Equivalency
Tables'' captioned ``Cocaine and Other Schedule I and II Stimulants
(and their immediate precursors)'' by striking the line referenced to
``Methamphetamine'' in its entirety.
    The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 10 in the subdivision of the ``Drug Equivalency
Tables'' captioned ``Cocaine and Other Schedule I and II Stimulants
(and their immediate precursors)'' in the line referenced to
``Methamphetamine (Actual)'' by striking ``(Actual)''; and by striking
``10 kg'' and inserting ``20 kg''.
    The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 10 in the subdivision of the ``Drug Equivalency
Tables'' captioned ``Cocaine and Other Schedule I and II Stimulants
(and their immediate precursors)'' in the line referenced to ``Ice'' by
striking ``10 kg'' and inserting ``20 kg''.
    Issue for Comment: The Commission invites comment on whether it
should change the Drug Equivalency Table in Sec. 2D1.1, relating to
Phenylacetone/P2P, when possessed for the purpose of manufacturing
Methamphetamine, and whether it should change the Chemical Quantity
Table in Sec. 2D1.11, relating to any chemical referenced in that table
that is used to manufacture Methamphetamine, in order to reflect the
increased harm associated with Methamphetamine offenses. If so, what
should those equivalencies be?

Proposed Amendment: Identity Theft

    (2) Synopsis of Proposed Amendment: The Identity Theft and
Assumption Deterrence Act of 1998 (the ``Act''), Pub. L. 105-318,
amended 18 U.S.C. Sec. 1028 to criminalize the unauthorized use or
transfer of a means of identification with the intent to commit or aid
or abet any federal violation or state felony. In addition, the Act
directed the Commission to ``provide an appropriate penalty for each
offense under section 1028 of title 18, United States Code.'' In
carrying out this directive the Act instructed the Commission to
consider the following factors:
    (1) the extent to which the number of victims (as defined in
section 3663A(a) of title 18, United States Code) involved in the
offense, including harm to reputation, inconvenience, and other
difficulties resulting from the offense, is an adequate measure for
establishing penalties under the Federal sentencing guidelines;
    (2) the number of means of identification, identification
documents, or false identification documents involved in the offense is
an adequate measure for establishing penalties under the Federal
sentencing guidelines;
    (3) the extent to which the value of loss to any individual caused
by the offense is an adequate measure for establishing penalties under
the Federal sentencing guidelines;
    (4) the range of conduct covered by the offense;
    (5) the extent to which sentencing enhancements within the Federal
sentencing guidelines and the court's authority to sentence above the
applicable guideline range are adequate to ensure punishment at or near
the maximum penalty for the most egregious conduct covered by the
offense;
    (6) the extent to which Federal sentencing guidelines sentences for
the offenses have been constrained by statutory maximum penalties;
    (7) the extent to which Federal sentencing guidelines for the
offenses adequately achieve the purposes of sentencing set forth in
section 3553(a)(2) of title 18, United States Code; and
    (8) any other factor that the United States Sentencing Commission
considers to be appropriate.
    There are two options to implement this directive. Option 1
provides a two-prong enhancement, with a two-level increase and a
minimum offense level of [10][11][12][13], if the offense involved (A)
the use of any identifying information of an individual victim to
obtain or make any unauthorized identification means of that individual

[[Page 2666]]

victim; or (B) the possession of [5] or more unauthorized
identification means. The subject of the term ``unauthorized
identification means'' is the item that is obtained or made by using an
individual victim's identifying information. For example, in a case
involving a credit card that was obtained by using an individual
victim's name, date of birth, and social security number, the credit
card would be the unauthorized identification means. Option 2 proposes
two separate enhancements to implement the directive. The first
enhancement provides a two-level increase and minimum offense level of
[10][12] for harm to an individual's reputation or credit standing,
inconvenience related to the correction of records or restoration of an
individual's reputation or credit standing, or similar difficulties.
The corresponding application note provides that this enhancement only
applies if those harms are more than minimal. The second proposed
enhancement provides a two-level increase if the offense involved the
production or transfer of 6 or more identification documents, false
identification documents, or means of identification. This provision
specifies that the two-level increase is not to be applied if the
defendant's conduct also resulted in an increase under Sec. 2F1.1(b)(1)
(the fraud loss table).
    Several issues for comment follow the presentation of the options.

Proposed Amendment--Option 1

    Section 2F1.1(b) is amended by redesignating subdivisions (6) and
(7) as subdivisions (7) and (8), respectively; and by inserting after
subdivision (5) the following new subdivision (6):
    (6) If the offense involved (A) the use of any identifying
information of an individual victim to obtain or make any unauthorized
identification means of that individual victim; or (B) the possession
of [5] or more unauthorized identification means, increase by [2]
levels. If the resulting offense level is less than level
[10][11][12][13], increase to level [10][11][12][13].''.
    The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is
amended by striking Note 8(c) in its entirety and inserting:
    (c) Consequential Damages in Procurement Fraud Cases, Product
Substitution Cases, and Cases Involving Unauthorized Identification
Means
    In contrast to other types of cases, loss in a case involving
procurement fraud, product substitution, or unauthorized identification
means includes not only direct damages, but also consequential damages
that were reasonably foreseeable. For example, in a case involving a
defense product substitution offense, the loss includes the
government's reasonably foreseeable costs of making substitute
transactions and handling or disposing of the product delivered or
retrofitting the product so that it can be used for its intended
purpose, plus the government's reasonably foreseeable cost of
rectifying the actual or potential disruption to government operations
caused by the product substitution. In the case of fraud affecting a
defense contract award, loss includes the reasonably foreseeable
administrative cost to the government and other participants of
repeating or correcting the procurement action affected, plus any
increased cost to procure the product or service involved that was
reasonably foreseeable. Similarly, in a case involving unauthorized
identification means, loss includes any reasonably foreseeable,
consequential damages incurred by the individual victim. For example,
such damages include attorneys fees, travel expenses, costs of
duplicating records, long distance phone calls, or any other costs
incurred to repair a damaged credit record.
    Inclusion of reasonably foreseeable consequential damages directly
in the calculation of loss in procurement fraud and product
substitution cases reflects that such damages frequently are
substantial in such cases. Inclusion of such damages directly in the
calculation of loss in an offense involving unauthorized identification
means reflects the seriousness of the offense, particularly with
respect to the individual victim, regardless of whether the loss to the
individual victim is substantial.''.
    The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is
amended by striking Note 12 in its entirety and inserting:
    ``12. Offenses involving access devices, in violation of 18 U.S.C.
Sec. 1029, are also covered by this guideline. In such a case, an
upward departure may be warranted when the actual loss does not
adequately reflect the seriousness of the conduct.''.
    The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is
amended by redesignating Notes 16 through 20 as Notes 18 through 22,
respectively; and by inserting after Note 15 the following new Notes 16
and 17:
    ``16. For purposes of subsection (b)(6) and Application Note 8(c)--
    `Identifying information' means any `means of identification' as
that term is defined in 18 U.S.C. Sec. 1028(d)(3).
    `Individual victim' means an individual, other than the defendant
or any individual involved in the jointly undertaken criminal activity,
whose identifying information was used to obtain or make an
unauthorized identification means. `Individual victim' does not include
a fictitious individual.
    `Unauthorized identification means' means any identifying
information that has been obtained or made from any other identifying
information without the authorization of the individual victim whose
identifying information appears on, or as part of, that unauthorized
identification means. For example, in a case involving a credit card
that had been obtained by using the name, date of birth, and social
security number of an individual victim, the `unauthorized
identification means' would be the credit card and the `other
identifying information' would be the individual victim's name, date of
birth, and social security number.
    17. Offenses involving identification documents and means of
identification, in violation of 18 U.S.C. Sec. 1028, are covered by
this guideline. If (A) the offense involved unauthorized identification
means, or the unlawful production, transfer, possession, or use of an
identification document; and (B) the primary purpose of the offense was
to violate, or assist another to violate, the law pertaining to
naturalization, citizenship, or legal resident status, apply Sec. 2L2.1
or Sec. 2L2.2, as appropriate, rather than Sec. 2F1.1.
    Subsection (b)(6)(A) provides an enhancement in any case in which
any identifying information of an individual victim is used, without
that individual's authorization, to obtain or make an unauthorized
identification means. This subsection would apply, for example, when a
defendant obtains another individual's name and social security number
from a source (e.g., from a stolen wallet) and obtains and uses a
credit card in that individual's name, without the individual's
authorization. This subsection would not apply, however, if the
defendant uses a credit card from a stolen wallet only to make a
purchase. In such a case, the defendant has not used the stolen credit
card to obtain or make an unauthorized identification means.
    Subsection (b)(6)(B) provides an enhancement in any case in which
the offense involved the possession of [five] or more unauthorized
identification means. The enhancement applies regardless of whether the
possession is with respect to one individual victim or more than one
individual victim. For example, the enhancement applies if the offense
involved (A) the possession of

[[Page 2667]]

[three] unauthorized identification means of one individual victim and
[two] unauthorized identification means of another individual victim;
or (B) the possession of one unauthorized identification means of
[five] individual victims.
    In a case involving unauthorized identification means, an upward
departure may be warranted if the offense level does not adequately
address the seriousness of the offense. Examples may include the
following:
    (a) an individual victim is erroneously arrested because the
defendant used an unauthorized identification means of the victim in
connection with some criminal conduct, or the individual victim is
denied a job because an arrest record has been made in the victim's
name;
    (b) the extent of the offense conduct is such that the defendant
established or made numerous unauthorized identification means with
respect to one individual victim, essentially assuming and living under
that victim's identity.''.
    The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is
amended in Note 20, as redesignated by this amendment (formerly Note
18), by striking ``(7)'' and inserting ``(8)''.
    The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is
amended in Note 22, as redesignated by this amendment (formerly Note
20), by striking ``(b)(7)(A) or (B)'' and inserting ``(b)(6) or
(b)(8)(A) or (B)''.
    The Commentary to Sec. 2F1.1 captioned ``Background'' is amended by
inserting after the fifth paragraph the following new paragraphs:
    ``A minimum offense level of [10][11][12][13] is provided in
subsection (b)(6) for offenses involving unauthorized identification
means, in part, because of the seriousness of the offense. The minimum
offense level accounts for the fact that the unauthorized
identification means often are within the defendant's exclusive
control, making it difficult for the individual victim to detect that
his or her identity has been `stolen' and used to obtain or make
unauthorized identification means. Generally, the individual victim
does not become aware of the offense until certain harms have already
occurred (e.g., a damaged credit rating or inability to obtain a loan).
The minimum offense level also is provided because some of the harm to
the individual victim whose identifying information is part of the
unauthorized identification means may be difficult or impossible to
quantify (e.g., harm to the individual victim's reputation or credit
rating, inconvenience, and other difficulties resulting from the
offense).
    Subsection (b)(6) implements the instruction to the Commission in
section 4 of Public Law 105-318.''.
    The Commentary to Sec. 2F1.1 captioned ``Background'' is amended in
the ninth paragraph (formerly the seventh paragraph) by striking
``(6)'' and inserting ``(7)''.
    The Commentary to Sec. 2F1.1 captioned ``Background'' is amended in
the tenth paragraph (formerly the eighth paragraph) by striking ``(7)''
and inserting ``(8)''.
    The Commentary to Sec. 2F1.1 captioned ``Background'' is amended in
the eleventh paragraph (formerly the ninth paragraph) by striking
``(7)'' and inserting ``(8)''.

Option 2

    Section 2F1.1(b) is amended by redesignating subdivision (7) as
subdivision (9); and by inserting after subdivision (6) the following
new subdivisions (7) and (8):
    (7) If the offense involved (A) harm to an individual's reputation
or credit standing, inconvenience related to the correction of records
or restoration of an individual's reputation or credit standing, or
similar difficulties; and (B) such harm, inconvenience, or difficulties
were more than minimal, increase by 2 levels. If the resulting offense
level is less than level [10] [12], increase to level [10] [12].
    (8) If the offense involved the production or transfer of 6 or more
identification documents, false identification documents, or means of
identification, increase by 2 levels. Do not apply this increase if the
defendant's conduct also resulted in an increase under subdivision
(1).''.
    The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is
amended in Note 12 in the first sentence by inserting ``, means of
identification,'' after ``identification documents''; in the second
sentence by inserting ``or means of identification'' after
``identification documents''; and in the third sentence by striking
``false identification documents or''.
    The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is
amended by redesignating Notes 16 through 20 as Notes 17 through 21,
respectively; and by inserting after Note 15 the following new Note 16:
    ``16. Subsection (b)(7) provides an upward adjustment of 2 levels
and a floor of level [10] [12] for harm to an individual's reputation
or credit standing, inconvenience related to the correction of records
or restoration of an individual's reputation or credit standing, or
similar difficulties. However, such harm, inconvenience, or similar
difficulties must be more than minimal in order to qualify. Thus, for
example, neither an individual's speculation about potential harm to
his or her reputation or credit standing nor a single, negative credit
entry that was corrected in a short time would qualify for the 2-level
adjustment under this subsection, but a showing of multiple, negative
credit entries or a poor credit rating would. If the offense involved a
level of harm, inconvenience, or other difficulty not adequately
addressed by subsection (b)(7) or by Sec. 2F1.1 in general, an upward
departure may be warranted. For example, if the wrong person were
arrested because of the fraudulent use of such person's means of
identification by another, or if an individual's identity were
completely taken over by another, an upward departure would be
warranted to recognize the extraordinary harm to the victim's
reputation or the resulting inconvenience in the restoration of his or
her reputation or the necessary correction of records. Moreover, harm
of the type described in subsection (b)(7) to a significant number of
individuals would also warrant an upward departure.''.
    The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is
amended in Note 19, as redesignated by this amendment (formerly Note
18), by striking ``(7)'' and inserting ``(9)''.
    The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is
amended in Note 21, as redesignated by this amendment (formerly Note
20), by striking ``(7)'' and inserting ``(9)''.
    The Commentary to Sec. 2F1.1 captioned ``Background'' is amended in
the eighth and ninth paragraphs by striking ``(7)'' and inserting
``(9)'' each place it appears.

Issues for Comment

    The Commission invites comment on the following issues pertaining
to identity theft:
    1. The proposed amendment in Option 1 provides a two-level
enhancement in the fraud guideline for the possession of [5] or more
unauthorized identification means. The enhancement, as proposed,
applies regardless of whether the offense involves the possession of
unauthorized identification means of one individual victim or more than
one individual victim as long as at least [5] unauthorized
identification means were possessed. Should the Commission consider
providing an additional part to the proposed enhancement that would
increase sentences based on the number of individual victims involved
in the offense? If so, on what number of

[[Page 2668]]

individual victims should the enhancement be based?
    The Commission also invites comment on whether it should provide an
additional increase, cumulative to the 2-level increase already
proposed in Option 1, for cases involving specified numbers of
individual victims or unauthorized identification means. For example,
such an enhancement could provide an additional [4-level] enhancement
if the offense involved more than [10-25] unauthorized identification
means and/or more than [5-25] individual victims. Alternatively, should
the Commission provide an upward departure for cases involving a large
number of unauthorized identification means and/or a large number of
individual victims?
    2. The proposed amendment in Option 1 limits the enhancement for
identity theft to the fraud guideline. Given the breadth of offense
conduct covered by 18 U.S.C. Sec. 1028, should the Commission also
provide a similar sentencing increase (including, if appropriate, an
enhancement that ties offense level increases to specified numbers of
identification means) for identity theft conduct in [any or] all other
economic crime guidelines (e.g., Sec. 2B1.1 (Theft), Sec. 2S1.1
(Laundering of Monetary Instruments), Sec. 2T1.4 (Tax Fraud))?
    3. Given the breadth of offense conduct covered by 18 U.S.C.
Sec. 1028, as an alternative to amending Chapter Two, should the
Commission amend Chapter Three of the Guidelines Manual, relating to
general adjustments, to provide a new adjustment that would apply in
every case that involves the unauthorized use of an identification
means? If so, how should that adjustment be structured (e.g., should
there be a table or tiered adjustment based on the number of
unauthorized identification means involved in the offense)? Should the
adjustment also include the unauthorized use of any identification
document or the use of any false identification document?
    4. As an alternative to a Chapter Three adjustment, should the
Commission amend Chapter Five, Part K, of the Guidelines Manual,
relating to departures, to encourage a departure above the authorized
guideline sentence in any case involving the unauthorized use of an
identification means if the guideline range does not adequately reflect
the seriousness of the offense conduct?
    5. The Treasury Department has recommended that the Commission
amend its current minimum loss amount rule for stolen credit card
offenses in Sec. 2B1.1 (a minimum loss amount of $100 per credit card)
to include all access devices, and that the minimum loss amount be
increased to $1000 per access device. Given that the Identity Theft and
Assumption Deterrence Act of 1998 included access devices in the
definition of ``means of identification,'' the Commission invites
comment on whether it should consider amending that rule to include all
access devices (such as debit cards, bank account numbers, electronic
serial numbers, and mobile identification numbers) and to place that
amended rule in Sec. 2F1.1. Such a rule would have the effect of
subjecting an offense that involves an unauthorized identification
means that is a credit card number to the same minimum loss amount as
an offense that involves the stolen credit card itself. If the
Commission should consider such an amendment, should the Commission
additionally amend the rule to increase the minimum loss amount per
access device, for example [$500][$750][$1000] per access device? (Such
an amendment may need to be coordinated with efforts to revise the
theft guideline in connection with offenses involving access devices
and cellular phone cloning.)
    6. Commission data indicate that a high portion of offenders
involved in identity theft conduct have previously been convicted of
similar offense conduct at either the state or federal level. Although
Chapter Four addresses criminal history, the Commission has provided
enhancements in certain Chapter Two guidelines for prior similar
conduct (e.g., Secs. 2L2.1(b)(4) and 2L2.2(b)(2), which provide two-
and four-level increases if ``the defendant committed any part of the
instant offense after sustaining one or more convictions for felony
immigration and naturalization offenses''). Should the Commission
provide an enhancement in the relevant Chapter Two guideline
(Sec. 2F1.1, if the Commission adopts a limited approach to identity
theft) or guidelines (the economic crime guidelines, if the Commission
adopts a more expansive approach to identity theft) if the defendant
had previously been convicted of conduct similar to identity theft? If
so, what is the appropriate number of levels for the enhancement?
Should such an enhancement require a minimum offense level?

[FR Doc. 00-1075 Filed 1-14-00; 8:45 am]
BILLING CODE 2210-40-P
