The PROTECT (Amber Alert) Act and the Sentencing Guidelines

CRS Report for Congress
The PROTECT (Amber Alert) Act
and the Sentencing Guidelines
Updated March 15, 2005
Charles Doyle
Senior Specialist
American Law Division

Congressional Research Service ˜ The Library of Congress

The PROTECT (Amber Alert) Act and the Sentencing
Guidelines
Summary
Congress enacted the Protect Act (also known as the Amber Alert Act), P.L.

108-21 (S. 151 /H.R. 1104), to deal with crimes of violence against children, minors,

juveniles, adolescents, infants, and those under the age of 18. Title IV of the Protect
Act amends the law relating to the federal sentencing guidelines in order to ensure
that sex offenders are punished appropriately. Its provisions are a response to the
Justice Department’s concern that, all too often particularly in cases of sexual
offenses, the federal courts had departed from the sanctions called for in the
guidelines to impose less stringent penalties (i.e., granting downward departures).
The Act, among other things:
^!balances representation on the Sentencing Commission so that in the
future no more than 3 of its members may be federal judges;
^!at least temporarily prohibits downward departures in sex offense
cases (sexual abuse, sexual exploitation of children, transportation
for sexual purposes, obscenity, nonparental child kidnaping, or
sexual trafficking in children) except to the extent specifically
authorized in the sentencing guidelines;
^!in sex offense cases, limits specifically authorized downward
departures based on family and community ties, diminished capacity,
or aberrant behavior;
^!temporarily changes the standard used for appellate review of
downward departures from due deference to the trial court’s
determination to de novo review (thereby departing from the
Supreme Court’s statutory construction in Koon v. United States)[the
provision amended is no longer in force, United States v. Booker];
^!requires more extensive report on sentencing matters from federal
judges, the Justice Department, and the Sentencing Commission;
and
^!provides for additional offenses levels in child pornography cases
based on the number of images possessed or trafficked.
Related reports include CRS Report RS21522, A Sketch of the PROTECT
(Amber Alert) Act and the Sentencing Guidelines, and CRS Report 94-33, How the
Sentencing Guidelines Work.

Contents
In troduction ..................................................1
In Brief......................................................3
Composition of the Sentencing Commission.........................4
Downward Departures in Certain Child Abuse and Sex Offense Cases....5
Explicit Grounds for Downward Departure in Child Abuse and
Sex Offense Cases.........................................7
Acceptance of Responsibility.....................................9
Specific Written Reasons for Departure...........................10
Standards for Review..........................................10
Resentencing After Remand....................................11
Studies and Reports to Ensure Implementation......................12
Adjustments to Substantive Sex Offense Guidelines..................13

The PROTECT (Amber Alert) Act and the
Sentencing Guidelines
Introduction
Title IV of the PROTECT Act (Prosecution Remedies and Other Tools to end
the Exploitation of Children Today Act), P.L. 108-21, 117 Stat. 650 (2003),
sometimes known as the Amber Alert Act, amends the sentencing procedures used
in federal cases, particularly those involving sex offenses and other crimes against
children.
Sentencing within the federal criminal justice system is governed to a large
extent by United States Sentencing Commission’s sentencing guidelines. Congress
authorized the Commission to construe and maintain the guideline system in order
to eliminate the disparity that unguided, judicial sentencing discretion might produce.
The guidelines establish a series of steps, calibrated according to the seriousness of
the violation, beneath the statutory maximum provided for a particular offense and
above any applicable mandatory minimum sentence.
The guidelines process is essentially a score card process. Most federal crimes
have been assigned an individual guideline that provides a “base offense level”¹ and
that adds or subtracts “offense levels” to account for the presence of specifically
identified aggravating or mitigating circumstances. The final offense level score
requires a sentence within one of six relatively narrow sentencing ranges. The six
ranges vary in severity according to the extent of the offender’s criminal record.
Heretofore, a sentencing court might depart from the applicable guideline sentencing
range either upward (impose a more severe penalty) or downward (impose a less
severe penalty), if it found “that there exists an aggravating or mitigating
circumstance of a kind, or to a degree, not adequately taken into consideration by the
Sentencing Commission in formulating the guidelines,” 28 U.S.C. 3553(b).
The Act’s amendments to the guideline process, added during debate in the
House, 149 Cong. Rec. H2420-437 (daily ed. Mar. 27, 2003), appeared to have been
the product of Department of Justice concerns over the extent of downward
departures. The House Judiciary Committee hearings on the Amber Alert proposal
(H.R. 1104) were held in conjunction with consideration of a proposal that included
a change in the standard of appellate review in sentencing guideline cases (H.R.
1161). During those hearings, the Department of Justice recommended changes in
the structure of the guidelines to reduce the number of “downward departures” found
in federal case law:

¹ Crimes that have not been assigned a specific base offense level are treated like the
crimes to which they are most closely analogous, U.S.S.G. 1B1.2.

^H.R^.^{1161 con}^t^ain^s^certain^addition^a^{l prov}^is^ion^sⁿ^o^{t f}^o^uⁿ^dⁱⁿ^th^{e Sen}^a^{te bill. In}
^p^a^r^ticu^l^ar^{, sectio}ⁿ¹²^o^f^th^{e b}^{ill w}^o^u^l^d^en^{act lo}ⁿ^g^-^o^v^er^d^u^{e r}^e^f^o^r^m^{s to}^ad^d^r^{ess th}^{e g}^r^o^wⁱⁿ^g
^f^r^equ^eⁿ^c^y^of^“^dowⁿ^w^{ard departu}^r^es^”^fr^o^m^th^{e Sen}^t^en^cin^g^Gu^idelin^es^{. T}^h^is^is^es^pecially^a
^problemⁱⁿ^ch^{ild porn}^o^g^r^aph^y^cas^es^.
^*^*^*
^Mu^ch^of^th^{e dam}^a^g^e^is^{traceable to th}^{e Su}^prem^e^C^o^u^r^t'^s^decisⁱ^onⁱⁿ^K^{oon v. U}ⁿⁱ^t^e^{d St}^at^es^,
^{518 U}^.^S^.^{81 (1996). In}^K^oon,^th^{e Co}^u^r^{t in}^ter^p^r^e^ted^th^{e Sen}^t^en^cin^g^Ref^o^r^m^A^c^t^to^r^e^q^u^ir^e
^ap^p^e^{llate co}^u^r^{ts to}^ap^p^l^y^a^hⁱ^g^h^l^y^d^e^f^e^r^eⁿ^tial^stan^d^a^r^d^o^f^r^e^vⁱ^ew^to^d^e^p^a^r^t^u^r^{e d}^e^ter^mⁱⁿ^atioⁿ^s^b^y
^s^eⁿ^t^en^cin^g^j^u^dg^es^{. T}^h^{e C}^o^u^r^{t als}^o^dis^a^pprov^{ed th}^{e practice w}^h^e^r^eby^{appellate cou}^r^ts^h^a^d
^p^r^ev^io^u^s^ly^d^e^ter^mⁱⁿ^ed^th^{at cer}^tain^g^r^o^uⁿ^d^{s o}^f^d^e^p^a^r^t^u^r^{e w}^e^r^e^im^p^e^r^m^issib^l^e.^Iⁿ^stead^,^th^{e Co}^u^r^t
^h^e^ld^th^{at an}^y^f^acto^rⁿ^o^{t ex}^p^licitly^dⁱ^sap^p^r^o^v^e^d^b^y^th^{e Sen}^t^en^cin^g^Co^m^mⁱ^ssioⁿ⁽^o^r^b^y^statu^t^e)
^cou^l^d^s^e^rv^e^as^g^r^ouⁿ^d^f^o^{r departu}^r^{e, in}^an^appr^{opriate cas}^{e as}^determⁱⁿ^{ed by}^th^e^dis^t^rict^cou^r^t
ⁱⁿ^{its d}ⁱ^scr^e^tioⁿ^.
^Un^d^e^r^K^oon^{, j}^u^dg^es^w^h^{o dis}^lik^{e th}^{e Sen}^t^en^cin^g^R^e^f^o^rm^A^c^{t an}^d^th^{e s}^eⁿ^t^en^cin^g^g^uⁱ^delin^es
^h^a^v^e^sigⁿⁱ^fⁱ^can^{t d}ⁱ^scr^e^tioⁿ^to^av^oⁱ^d^ap^p^l^yⁱⁿ^g^a^s^eⁿ^t^eⁿ^c^e^w^ithⁱⁿ^th^{e r}^aⁿ^g^e^estab^lish^e^d^b^y^th^e
^C^o^m^mⁱ^s^sⁱ^on^{, an}^{d it is}^dif^fⁱ^cu^{lt f}^o^{r th}^e^G^o^ve^rⁿ^m^e^nt^ef^f^ectiv^ely^{to appeal in}^s^u^ch^cas^es^.
^C^oⁿ^s^equ^eⁿ^tly^{, th}^{e rates}^o^f^dowⁿ^w^{ard departu}^r^{e h}^a^v^e^s^t^eadily^{accelerated s}ⁱⁿ^ce^K^oon^.
^Moreov^er,^K^oon^'^s^ex^pan^sⁱ^oⁿ^of^t^h^{e perm}ⁱ^s^sⁱ^bl^e^g^r^ouⁿ^d^s^of^depart^u^r^es^h^a^{d l}^e^{d t}^o^{a g}^r^owⁱⁿ^g^t^r^en^d
^o^fⁱⁿ^c^r^e^a^sⁱ^ngl^y^va^gue^gr^o^und^{s o}^f^d^o^w^nw^a^r^d^d^e^p^a^r^t^ur^e^.^.^.^.
^S^ectⁱ^oⁿ^{12 of}^H^.^R^.^{1161 w}^o^u^l^{d prov}ⁱ^d^{e m}^u^ch^-ⁿ^{eeded an}^{d l}^oⁿ^g^-^ov^e^r^du^{e ref}^o^rm^by
^e^s^t^a^b^lⁱ^s^hi^{ng t}^h^at^deci^sⁱ^on^s^t^o^depart^f^r^om^t^h^{e g}^odlⁱⁿ^es^s^{are t}^o^{be rev}ⁱ^ew^{ed u}ⁿ^d^{er a de n}^o^vo
^s^t^an^{dard of}^revⁱ^ew^{. T}^o^th^{at ext}^eⁿ^t^,^K^oon^w^o^u^l^d^b^e^ex^p^licitly^o^v^er^r^u^led^.^W^h^{ile w}^e
^en^t^h^u^sⁱ^a^s^tⁱ^cal^l^y^s^u^pport^t^hⁱ^s^m^eas^u^r^{e, w}^e^{do n}^o^t^belⁱ^e^v^eⁱ^t^g^o^es^f^a^{r en}^o^ugh.^W^e^st^r^o^ngl^y^ur^ge
^t^h^e^Sub^c^o^m^mⁱ^t^t^e^e^t^oⁱⁿ^c^l^ud^e^a^p^p^r^o^p^rⁱ^a^t^e^l^a^ngua^ge^t^h^a^t^w^o^ul^d^o^v^e^r^r^u^l^e^bot^h^o^f^t^h^e^ke^y^ho^l^dⁱ^ngs
ⁱⁿ^K^oon^.^Sp^e^cⁱ^fic^a^lly^,^the^b^{ill sho}^u^ld^inc^l^ud^e^la^ngua^ge^tha^t^w^o^uld^p^r^o^h^ib^it^d^e^p^a^r^t^ur^e^s^oⁿ^aⁿ^y
^g^r^ouⁿ^d^th^at^th^e^Sen^t^en^cin^g^C^o^m^mⁱ^s^sⁱ^on^h^a^sⁿ^o^{t af}^fⁱ^rm^ativ^ely^s^p^ecifⁱ^{ed as}^{a perm}^is^sⁱ^{ble g}^r^ouⁿ^d
^f^o^r^a^d^o^wⁿ^w^ar^d^d^e^p^a^r^t^u^r^e.^Iⁿ^d^oⁱⁿ^g^so^{, th}^{e b}^{ill w}^o^u^l^d^ef^f^ectiv^ely^o^v^er^r^u^le^K^oon^on^t^hⁱ^s^poiⁿ^t
^{as w}^e^ll.^{H.R. 1104, T}^h^{e C}^h^{ild Abduction Pr}^{evention Act and H.R. 1161, the C}^h^{ild Obs}^cenity
^{and Por}^nogr^{aphy Pr}^evention^Act^of^{2003: Hear}^{ing Befor}^e^{the Subcomm.}^on^C^r^ime,^T^e^r^r^o^rⁱ^s^m^,
^{and H}^o^m^e^l^{and Secur}ⁱ^t^y^of^t^h^{e H}^ous^{e C}^o^m^m^.^{on t}^h^{e Judi}^ci^ar^y^{, 108t}^h^C^oⁿ^g^{., 1s}^t^S^e^s^s^.
^(2003)(s^tatem^eⁿ^t^of^As^s^o^c^.^D^e^p.A^tt'^y^Gen^.^Danⁱ^{el P}^.^C^o^llin^s⁾^{, av}^{ailable at}
^[^h^t^t^p^:^/^/^www.^h^o^u^s^e^.^g^o^v^/^j^u^dⁱ^cⁱ^a^r^y^]^.
The Committee reported out H.R. 1104, but not H.R. 1161 or any language
addressing the Justice Department’s concern over downward departures, H.Rept.
108-47 (2003). During debate, however, Representative Feeney offered an
amendment that incorporated sentencing guideline modifications into the bill and that
echoed the sentiments of the Justice Department.
^{Mr. C}^h^airm^an^{, th}^is^am^en^dm^en^t^addres^s^e^s^lon^g^-^s^t^an^din^g^an^{d in}^creasⁱⁿ^g^problem^s^of^dowⁿ^w^ard
^d^e^p^a^r^t^u^r^{es f}^o^r^m^th^{e f}^e^d^e^r^a^{l sen}^t^en^cin^g^g^uⁱ^d^e^lin^{es. A}^cco^r^dⁱⁿ^g^to^th^{e testim}^oⁿ^y^o^f^t^h^e
^Departm^eⁿ^t^of^J^u^s^{tice, th}^is^is^es^pecially^{a problem}ⁱⁿ^ch^{ild porn}^o^g^r^aph^y^cas^es^.
^A^l^t^h^o^{ugh t}^h^e^gui^d^e^lⁱⁿ^e^s^c^o^ntⁱ^nue^t^o^st^a^t^e^t^h^a^t^d^e^p^a^r^t^ur^e^s^sho^u^l^d^b^e^ve^r^y^r^a^r^e^o^c^c^u^r^r^eⁿ^c^e^s^,
^th^ey^h^a^v^eⁱⁿ^f^{act prov}^{ed to be an}^y^t^hⁱⁿ^g^bu^{t. . . .}
^*^*^*
^Iⁿ^c^r^e^a^sⁱⁿ^g^l^y^,^th^{e ex}^ception^s^{are ov}^erridin^g^th^{e ru}^{le. . . . T}^h^{e Departm}^eⁿ^t^of^J^u^s^tic^e
^believ^e^s^th^{at m}^u^ch^of^th^is^dam^a^g^e^is^{traceable to th}^{e S}^u^prem^{e C}^o^u^r^t’^s¹⁹⁹⁶^decisⁱ^onⁱⁿ^Koon
^v^e^r^s^u^s^th^{e Un}^ited^{States. I}ⁿ^th^{e Ko}^oⁿ^case,^t^h^e^c^o^u^r^t^h^e^ld^th^{at an}^y^f^acto^rⁿ^o^{t ex}^p^licitly
^di^s^a^pprov^{ed by}^t^h^e^s^eⁿ^t^en^ciⁿ^g^com^mⁱ^s^sⁱ^on^{or by}^s^t^at^u^t^{e cou}^l^{d s}^e^rv^{e as}^g^r^ouⁿ^d^s^f^o^{r depart}^u^r^e.
^{So j}^u^dg^es^can^m^a^k^e^u^p^ex^ception^s^as^th^ey^g^o^alon^g.^T^hⁱ^s^h^a^s^{led to an}^{accelerated rate of}
^dowⁿ^w^{ard depart}^u^r^es^.
^J^u^d^g^e^s^w^h^o^dⁱ^s^lⁱ^k^e^t^h^e^Se^nt^eⁿ^cⁱ^{ng Re}^fo^r^m^aⁿ^d^t^h^e^se^nt^eⁿ^cⁱ^{ng gui}^d^e^lⁱⁿ^e^s^no^w^ha^ve
^sigⁿⁱ^fⁱ^can^{t d}ⁱ^s^c^r^e^tioⁿ^to^av^oⁱ^d^ap^p^l^yⁱⁿ^g^{a sen}^t^en^{ce w}^ithⁱⁿ^th^{e r}^aⁿ^g^e^estab^lish^e^d^b^y^th^e
^com^mⁱ^s^sⁱ^on^{, an}^{d it is}^dif^fⁱ^cu^{lt f}^o^{r g}^o^v^e^rn^m^eⁿ^t^{to ef}^f^ectiv^ely^{appeal s}^u^ch^cas^es^.
^T^h^{e am}^en^dm^en^t^{I of}^f^e^{r t}^oday^con^t^aiⁿ^s^{a n}^u^m^{ber of}^provⁱ^sⁱ^oⁿ^s^desⁱ^gⁿ^e^{d t}^o^en^s^u^{re m}^o^re
^f^a^ith^f^u^{l ad}^h^e^r^eⁿ^{ce to}^th^{e g}^uⁱ^d^e^lin^{es so}^d^e^f^eⁿ^d^an^{ts in}^{cases in}^v^o^lvⁱⁿ^g^ch^ild^p^o^rⁿ^o^g^r^ap^h^y^an^d
^s^e^x^u^a^{l abu}^s^{e receiv}^e^th^{e s}^eⁿ^t^en^ces^th^{at C}^oⁿ^g^r^es^sⁱⁿ^ten^d^ed.,¹⁴⁹^C^ong.Rec.^H^2422-^{423 (dai}^l^y
^{ed. Mar. 27, 2003).}

The amendment passed, and the language of H.R. 1104 was substituted for that of its
Senate-passed counterpart, S. 151, 149 Cong.Rec. H2436-443 (daily ed. Mar. 27,
2003). The Senate version of S. 151 had no language comparable to the Feeney
amendment, but the conferees accepted a revised version of the amendment, H.Rept.
108-66 (2003). The bill with the revised amendment passed both Houses, 149
Cong.Rec. H3075-76, S5156-157 (daily ed. Apr. 10, 2003) and was sent to the
President who signed it on April 30, 2003, 117 Stat. 650 (2003).
In Brief
Title IV of the Act, the revised Feeney amendment:
^!limits the future membership of the Sentencing Commission to no
more than 3 federal judges at a time (the original provision insisted
that the 7 member Commission include at least 3 federal judges), 28
U.S.C. 991;
^!at least temporarily amends the governing sentencing statute and
guidelines to limit downward departures in various child or sex
offense cases to instances where they are expressly authorized, 18
U.S.C. 3553(b)(2); U.S.S.G. §5K2.0;
^!amends the guidelines in such cases to limit downward departures
on the basis of aberrant behavior, diminished capacity, community
ties, or family ties or responsibilities, U.S.S.G. §§5K2.20, 5K2.13,

5H1.6;

^!regardless of the offense requires a motion by the government to
trigger the offense level reduction available for acceptance of
responsibility in serious cases (offense level 16 or higher), U.S.S.G.
§3E1.1;
^!demands that in the case of either an upward or downward departure
the court's statement of its reasons for the departure must be in the
written order of judgment and commitment, 18 U.S.C. 3553(c);
^!temporarily adjusts the standard for review so that rather than giving
deference (absent clear error) to a trial court's decision to depart
from the guidelines an appeals court is to make its own assessment
of the appropriateness of departure (de novo review), 18 U.S.C.

3742(e) [section 3742(e) is no longer in force, United States v.

Booker, 125 S.Ct. 738, 756-57 (2005)];
^!instructs trial courts whose departure decisions are overturned on
review to adhere to the sentencing guidelines and any appellate
directives when the cases are returned to them for resentencing, 18
U.S.C. 3742(g);

^!directs the chief judge of each federal judicial district to ensure that
full sentencing reports (available to the Judiciary Committees) are
filed with the Sentencing Commission, 28 U.S.C. 994(w);
^!calls for review and reports to Congress from the Department of
Justice and the Sentencing Commission on action taken in response
to the legislation, 18 U.S.C. 3553 note; 28 U.S.C. 994 note;
^!eliminates (from the application note for the sentencing guideline
that escalates the penalties for a pattern of repeat and dangerous sex
offenses committed against minors) the requirement that the crimes
involve more than a single victim, U.S.S.G. §4B1.5, App.N.4(i); and
^!amends the guidelines governing possession or trafficking in
materials depicting sexually explicit conduct involving a minor to
include sentence level increases ranging from 2 to 5 levels
depending on the number of images involved, U.S.S.G. §§2G2.2.

2G2.4.

Composition of the Sentencing Commission
The Sentencing Commission consists of seven members, 28 U.S.C. 991. Five
of its current members are federal judges. The Act provides that hereafter no more
than three members of the Commission may be federal judges, although the
limitation does not apply to any of the judges serving on or nominated to the
Commission at the time of enactment, 28 U.S.C. 991, 991 note, 117 Stat. 675 (2003).
The limitation of judicial service presumably opens the Commission to broader
representation from the academic and professional communities. Opponents of the
provision lamented the prospective loss of judicial expertise.² Although not
mentioned in debate, judges would appear to enjoy the additional advantage of
already having successfully undergone the examinations associated with the
confirmation process. Yet perhaps the provision should be attributed at least in part
to apprehensions over possible judicial hostility towards the guidelines.³

² 149 Cong.Rec. S5146 (daily ed. Apr. 10, 2003)(remarks of Sen. Leahy)(“it limits the
number of federal judges who can serve on the Sentencing Commission because, as
Chairman Sensenbrenner explained, we don’t want to have the Commission packed with
federal judges that have a generic predisposition to hate any kind of sentencing guidelines.
I, for one, believe that judges are extremely valuable members of the Commission. They
bring years of highly relevant experience, not to mention reasoned judgment, to the table”).
³ See e.g., 149 Cong.Rec. H2423 (daily ed. Mar. 27, 2003)(remarks of Rep. Feeney)
(“Judges who dislike the Sentencing Reform Act and the sentencing guidelines now have
significant discretion to avoid applying a sentence within the range established by the
c o mmi s s i o n ” ) .

Downward Departures in Certain Child Abuse and Sex
Offense Cases
Earlier law permitted federal courts to impose a sentence outside the range
called for by the applicable sentencing guideline range, if the court found “that there
exists an aggravating or mitigating circumstance of a kind, or to a degree, not
adequately taken into consideration by the Sentencing Commission in formulating
the guidelines that should result in a sentence different from that described,” 18
U.S.C. 3553(b). The court might also depart from the guideline range based upon the
offender's substantial assistance to the government, U.S.S.G. §5K1.1.
At least temporarily, the Act changes the rules in the case of certain child abuse
and sex offenses. It divides section 3553(b) in two. The first, section 3553(b)(1)
embodies the prior rule – unless the second (section 3553(b)(2)) applies, a federal
court is bound by the guidelines unless the guidelines fail to adequately account for
a factor presented in the case before it. The second, section 3553(b)(2), applies to
convictions for a violation of:
^!18 U.S.C. 1201 (nonparental kidnaping) involving a minor victim;⁴
^!18 U.S.C. 1591 (sex trafficking of children or by force, fraud, or
coercion);
^!18 U.S.C. ch.71 (obscenity);⁵
⁶
^!18 U.S.C. ch. 109A (sexual abuse);

⁴ Neither the Act nor section 1201 define who is a “minor” for purposes of this provision.
Nor do title 1 nor title 18 contain a generally applicable definition. For purposes of some
of the other provisions in this list a minor is one who has yet to attain the age of 18, 18
U.S.C. 1591, 2256(1), 2423, and for others it is one who has yet to attain the age of 16, 18
U.S.C. 1470, 2243.
⁵ The offenses under chapter 71 include violations of 18 U.S.C. 1460 (possession with
intent to sell, and sale, of obscene matter on federal property), 1461 (mailing obscene or
crime-inciting matter), 1462 (importation or transportation of obscene matter), 1463
(mailing indecent matter on wrappers or envelopes), 1464 (broadcasting obscene language),
1485 (transporting of obscene matters for sale or distribution), 1466 (engaging in the
business of selling or transferring obscene matter), 1468 (distributing obscene material by
cable or subscription), 1470 (transfer of obscene material to minors).
⁶ The offenses under chapter 109A include violations of 18 U.S.C. 2241 (aggravated sexual
abuse), 2242 (sexual abuse), 2243 (sexual abuse of a minor), 2244 (abusive sexual contact),

2245 (sexual abuse resulting in death).

^!18 U.S.C. ch. 110 (sexual exploitation and other abuse of children);⁷
or
^!18 U.S.C. ch. 117 (transportation for illegal sexual activity and
related crimes).⁸
In cases under section 3553(b)(2), the courts may depart upward based on inadequate
Commission consideration of a circumstance presented by the case, or depart
downward on the basis of a government recommendation for substantial assistance,
or depart downward with the support of a specific authority in the guidelines to do
so.⁹ Section 3553(b)(1) purports to make the guidelines binding subject to a narrow

⁷ The offenses under chapter 110 include violations of 18 U.S.C. 2251 (sexual exploitation
of children), 2251A (selling or buying of children), 2252 (certain activities relating to
material involving the sexual exploitation of minors), 2252A (certain activities relating to
material constituting or containing child pornography), 2257 (record keeping requirements),
2258 (failure to report child abuse), 2260 (production of sexually explicit depictions of a
minor for importation into the United States).
⁸ The offenses under chapter 117 include violations of 18 U.S.C. 2421 (transportation
generally), 2422 (coercion and enticement), 2243 (transportation of minors), 2424 (filing
factual statement about alien individual), 2425 (use of interstate facilities to transmit
information about a minor).
⁹ “In sentencing a defendant convicted of an offense under section 1201 involving a minor
victim, an offense under section 1591, or an offense under chapter 71, 109, 110, or 117, the
court shall impose a sentence of the kind, and within the range, referred to in subsection
(a)(4) unless – (i) the court finds that there exists an aggravating circumstance of a kind, or
to a degree, not adequately taken into consideration by the Sentencing Commission in
formulating the guidelines that should result in a sentence greater than that described;
“(ii) the court finds that there exists a mitigating circumstance of a kind or to a degree,
that – (I) has been affirmatively and specifically identified as a permissible ground of
downward departure in the sentencing guidelines or policy statements issued under section
994(a) of title 28, taking account of any amendments to such sentencing guidelines or policy
statements by Congress; (II) has not been taken into consideration by the Sentencing
Commission in formulating the guidelines; and (III) should result in a sentence different
form that described; or
“(iii) the court finds, on motion of the Government, that the defendant has provided
substantial assistance in the investigation or prosecution of another person who has
committed an offense and that this assistance established a mitigating circumstance of a
kind, or to a degree, not adequately taken into consideration by the Sentencing Commission
in formulating the guidelines that should result in a sentence lower than that described. . .”
18 U.S.C. 3553(b)(2); see also, U.S.S.G. §5K2.0(b)(“Under 18 U.S.C. §3553(b)(2), the
sentencing court may impose a sentence below the range established by the applicable
guidelines only if the court finds that there exists a mitigating circumstance of a kind, or to
a degree – (1) has been affirmatively and specifically identified as a permissible ground of
downward departure in the sentencing guidelines or policy statements issued under section
994(a) of title 28, taking account of any amendments to such sentencing guidelines or policy
statements by Congress; (2) has not been taken into consideration by the Sentencing
Commission in formulating the guidelines; and (3) should result in a sentence different from
that described.
“The grounds enumerated in this part K of chapter 5 are the sole grounds that have
been affirmatively and specifically identified as a permissible ground of downward
departure in these sentencing guidelines and policy statements. Thus, notwithstanding any

exception; section 3553(b)(2) further confines the exception recognized as a general
rule under section 3553(b)(1).
The selection of crimes made subject to the more demanding downward
departure requirements seems to have been based both on the subject material of the
legislation and concern over the extent of downward departures in the type of cases
selected. The Conference Report observed that, “those convicted of sexual abuse
received a downward departure [in] over 16 percent of the cases, and [trial courts]
granted reductions below the guideline range of those convicted of sexual abuse by
an astonishing 63 percent from the guideline range. For those convicted of
pornography and/or prostitution related offenses, trial courts departed from the
recommended guidelines over 18 percent of the time, reducing these defendants’
sentences by a staggering 66 percent,” H.Rept. 108-66, at 58-9 (2003).
The Supreme Court in United States v. Booker, 125 S.Ct. at 756-57, struck
down section 3553(b)(1) in order to make it clear that the federal sentencing
guidelines are advisory and not mandatory. The Court did not address section
3553(b)(2), perhaps because the cases before it did not involve any of the crimes
covered by section 3553(b)(2). The same rationale, however, might be thought to
govern.¹⁰
Explicit Grounds for Downward Departure in Child Abuse and
Sex Offense Cases
By limiting the grounds of downward departure in child abuse and sex offense
cases except as explicitly authorized, Congress raises the question of which
downward departures are explicitly authorized. The guidelines authorize downward¹¹¹²¹³
departures for assistance to the prosecution, old age, coercion and duress, for

other reference to authority to depart downward elsewhere in this Sentencing Manual, a
ground of downward departure has not been affirmatively and specifically identified as a
permissible ground of downward departure within the meaning of section 353(b)(2) unless
it is expressly enumerated in this Part K as a ground upon which a downward departure may
be granted”).
¹⁰ United States v. Sharpley, F.3d , n.3 (2d Cir. Feb. 16, 2005)(“Booker excises
18 U.S.C. 3553(b)(1) from the Sentencing Reform act, which makes the Guidelines
generally binding on courts, but does not excise 18 U.S.C. 3553(b)(2), which makes the
Guidelines binding in sentencing for convictions for certain child crimes and sexual offenses
. . . Subsection (b)(2) could arguably be read to independently require a court to follow the
Guidelines in convictions under [the various listed child and sexual offenses]. However, we
see no unique feature of Guidelines sentences for child crimes and sexual offenses that
would prevent them from violating the Sixth Amendment in the same manner as Guidelines
sentences for other crimes. . . For this reason, we suspect that the Supreme Court’s failure
to excise the entirety of section 3553(b) was simply an oversight”).
¹¹ U.S.S.G. §5K1.1 (“Upon motion of the government stating that the defendant has
provided substantial assistance in the investigation or prosecution of another person who has
committed an offense, the court may depart from the guidelines”).
¹² U.S.S.G. §5H1.1. Age (“. . . Age may be a reason to impose a sentence below the
applicable guideline range when the defendant is elderly and infirm . . .”); U.S.S.G. §5K2.22

voluntary disclosure of an offense,¹⁴ and for physical impairment.¹⁵ In the case of
disqualifying child abuse and sex offenses, however, the Act forecloses otherwise
explicitly authorized downward departures on the grounds of family ties and

(“In sentencing a defendant convicted of an offense under section 1201 involving a minor
victim, an offense under section 1591, or an offense under chapter 71, 109A, 110, or 117
of title 18, United States Code, age may be a reason to impose a sentence below the
applicable guideline range only if and to the extent permitted by §5H1.1. . .”)(here and
elsewhere statutory and guideline language in italics was added by the Act).
¹³ U.S.S.G. §5K2.12 (“If the defendant committed the offense because of serious coercion,
blackmail or duress, under circumstances not amounting to a complete defense, the court
may decrease the sentence below the applicable guideline range. The extent of the decrease
ordinarily should depend on the reasonableness of the defendant's actions and on the extent
to which the conduct would have been less harmful under the circumstances as the
defendant believed them to be. Ordinarily coercion will be sufficiently serious to warrant
departure only when it involves a threat of physical injury, substantial damage to property
or similar injury resulting from the unlawful action of a third party or from a natural
emergency. The Commission considered the relevance of economic hardship and
determined that personal financial difficulties and economic pressures upon a trade or
business do not warrant a decrease in sentence”).
¹⁴ U.S.S.G. §5K2.16 (“If the defendant voluntarily discloses to authorities the existence
of, and accepts responsibility for, the offense prior to the discovery of such offense, and if
such offense was unlikely to have been discovered otherwise, a departure below the
applicable guideline range for that offense may be warranted. For example, a downward
departure under this section might be considered where a defendant, motivated by remorse,
discloses an offense that otherwise would have remained undiscovered. This provision does
not apply where the motivating factor is the defendant's knowledge that discovery of the
offense is likely or imminent, or where the defendant's disclosure occurs in connection with
the investigation or prosecution of the defendant for related conduct”).
¹⁵ U.S.S.G. §5H1.4 (“. . . an extraordinary physical impairment may be a reason to impose
a sentence below the applicable guideline range; e.g., in the case of a seriously infirm
defendant, home detention may be as efficient as, and less costly than, imprisonment. Drug
or alcohol dependence or abuse is not a reason for imposing a sentence below the guidelines.
. .”); U.S.S.G. §5K2.22 (“. . . An extraordinary physical impairment may be a reason to
impose a sentence below the applicable guideline range only if and to the extent permitted
by §5H1.4 . . .”).

responsibilities or community ties,¹⁶ diminished capacity¹⁷ or aberrant behavior¹⁸ to
lessen the possibility of inappropriate downward departures.¹⁹
Acceptance of Responsibility
In the calculation of the final offense level and applicable sentencing range
before the question of departure arises, a defendant’s offense level may be reduced
if he “accepts responsibility” for his offense, U.S.S.G. §3E1.1. The guideline
governing the possible reduction has two parts. The first allows all defendants a 2
level reduction if they “clearly demonstrate acceptance of responsibility for [their]
offense,” U.S.S.G. §3E1.1(a). The second allows an additional 1 level reduction
from an offense level of 16 or higher if the defendant announces his intent to plead
guilty and fully discloses his involvement in the crime, notifies, U.S.S.G. §3E1.1(b).
The Act amends this second part. It permits the 1 level reduction upon
announcement of an intent to plead guilty without insisting upon full disclosure, but
insists upon the motion of the prosecution to trigger the reduction.²⁰

¹⁶ U.S.S.G. §5H1.6 (“Family ties and responsibilities and community ties are not ordinarily
relevant in determining whether a sentence should be outside the applicable guideline range.
In sentencing a defendant convicted of an offense under section 1201 involving a minor
victim, an offense under section 1591, or an offense under chapter 71, 109A, 110, or 117
of title 18, United States Code, family ties and responsibilities and community ties are not
relevant in determining whether a sentence should be below the applicable guideline range
. . .”).
¹⁷ U.S.S.G. §5K2.13 (language added by the Act in italics) (“A sentence below the
applicable guideline range may be warranted if the defendant committed the offense while
suffering from a significantly reduced mental capacity. However, the court may not depart
below the applicable guideline range if . . . (4) the defendant has been convicted of an
offense under chapter 71, 109A, 110, or 117 of title 18, United States Code. . .”).
¹⁸ U.S.S.G. §5K2.20 (“Except where a defendant is convicted of an offense under section
1201 involving a minor victim, an offense under section 1591, or an offense under chapter
71, 109A, 110, or 117 of title 18, United States Code, a sentence below the applicable
guideline range may be warranted in an extraordinary case if the defendant's criminal
conduct constituted aberrant behavior. . .”).
¹⁹ “This amendment would also reform the existing grounds of departure set forth in the
current guidelines by eliminating those that have been most frequently abused, such as
aberrant behavior,” 149 Cong.Rec. H2423 (daily ed. Mar. 27, 2003)(remarks of Rep.
Feeney).
²⁰ U.S.S.G. §3E1.1(b)(“If the defendant qualifies for a decrease under subsection (a), the
offense level determined prior to the operation of subsection (a) is level 16 or greater, and
upon motion of the government stating that the defendant has assisted authorities in the
investigation or prosecution of his own misconduct by taking one or more of the following
steps: (1) timely providing complete information to the government concerning his own
involvement in the offense; or (2) timely notifying authorities of his intention to enter a plea
of guilty, thereby permitting the government to avoid preparing for trial and permitting the
government and the court to allocate its resources efficiently, decrease by 1 additional
level”).

Neither the debate nor the Conference Report explain the reason for the change,
perhaps because an accompanying change in the commentary was thought sufficient:
“Because the Government is in the best position to determine whether the defendant
has assisted authorities in a manner that avoids preparing for trial, an adjustment
under subsection (b) may only be granted upon a formal motion by the Government
at the time of sentencing,” U.S.S.G. §3E1.1, App.N. 6.
Specific Written Reasons for Departure
Prior to the Act federal courts were required to explain the reasons for a
sentence outside the applicable guideline range, 18 U.S.C. 3553(c). The Act makes
it clear that the explanation must be specific, in writing, and provided to the
Sentencing Commission.²¹
Standards for Review
Before the sentencing guidelines, a sentence within the statutory maximum
imposed by a federal court was essentially beyond appellate review, Dorszynski v.
United States, 418 U.S. 424, 431 (1974). With the creation of the guidelines process,
Congress gave both defendants and the government the opportunity to appeal a
sentencing decision, 18 U.S.C. 3742. It instructed the appellate courts, however, to
“give due regard to the opportunity of the district court to judge the credibility of the
witnesses, and [to] accept the findings of fact of the district court unless they are
clearly erroneous and [to] give due deference to the district court's application of the
guidelines to the facts,” 18 U.S.C. 3742(e).
This led the Supreme Court in Koon v. United States, 518 U.S. 81 (1996), to
conclude that Congress intended a court, reviewing the decision to grant a downward
departure, to afford the lower court's decision “due deference” in the absence of an
abuse of discretion rather than to make its own determination of whether departure
was appropriate (de novo review):
^A^dⁱ^strⁱ^ct^co^u^r^t’^s^d^ecisioⁿ^to^d^e^p^a^r^t^f^r^o^m^th^{e Gu}^id^elin^{es b}^y^coⁿ^t^r^a^{st, w}^{ill in}^m^o^{st cases b}^e
^du^{e s}^u^bs^tan^{tial def}^e^ren^{ce, f}^o^{r it em}^bodies^th^{e tradition}^a^{l ex}^ercis^e^of^dis^c^retion^by^a^s^eⁿ^t^en^cin^g

²¹ 18 U.S.C. 3553(c)(“The court, at the time of sentencing, shall state in open court the
reasons for its imposition of the particular sentence, and, if the sentence – (1) is of the kind,
and within the range, described in subsection (a)(4) and that range exceeds 24 months, the
reason for imposing a sentence at a particular point within the range; or (2) is not of the
kind, or is outside the range, described in subsection (a)(4), the specific reason for the
imposition of a sentence different from that described, which reasons must also be stated
with specificity in the written order of judgment and commitment, except to the extent that
the court relies upon statements received in camera in accordance with Federal Rule of
Criminal Procedure 32. In the event that the court relies upon statements received in
camera in accordance with Federal Rule of Criminal Procedure 32 the court shall state that
such statements were so received and that it relied upon the content of such statements. If
the court does not order restitution, or orders only partial restitution, the court shall include
in the statement the reason therefor. The court shall provide a transcription or other
appropriate public record of the court's statement of reasons, together with the order of
judgment and commitment, to the Probation System and to the Sentencing Commission, and,
if the sentence includes a term of imprisonment, to the Bureau of Prisons”).

^c^o^u^r^{t. . . . B}^e^f^o^{re a departu}^r^{e is}^perm^{itted, certain}^as^pects^of^th^{e cas}^{e m}^u^s^t^be^fo^und^unus^ua^l
^eⁿ^o^{ugh fo}^rⁱ^t^t^o^fa^l^l^o^u^t^sⁱ^d^e^t^h^e^he^a^r^t^l^a^nd^o^f^c^a^s^e^sⁱⁿ^t^h^e^G^uⁱ^d^e^lⁱⁿ^e^.^T^o^r^e^so^l^v^e^t^hⁱ^s^q^u^e^s^tⁱ^o^n,
^th^{e dis}^t^{rict cou}^r^{t m}^u^s^t^m^a^k^e^{a ref}ⁱⁿ^e^{d as}^s^e^s^s^m^en^{t of}^th^{e m}^aⁿ^y^f^acts^bearin^g^on^th^{e ou}^tcom^e,
ⁱⁿ^fo^r^m^{ed by}^its^v^aⁿ^t^ag^{e poin}^t^an^{d day}^-^to-^d^ay^ex^perien^{ce in}^crimⁱⁿ^{al s}^eⁿ^t^en^cin^g^.^W^h^e^t^he^r^a
^gⁱ^v^eⁿ^f^{actor is}^pres^en^{t to a deg}^r^{ee n}^o^{t adequ}^a^te^ly^con^s^{idered by}^th^{e C}^o^m^mⁱ^s^sⁱ^on^{, or w}^h^eth^e^{r a}
^dⁱ^sco^u^r^a^ged^f^acto^r^no^{netheless j}^u^stif^{ies d}^e^p^a^r^t^ur^{e b}^{ecause it is p}^r^{esent in so}^m^e^{unusual o}^r
^ex^cep^tioⁿ^a^{l w}^a^y^,^ar^{e m}^a^tter^s^d^e^ter^mⁱⁿ^edⁱⁿ^lar^g^{e p}^a^r^t^b^y^co^m^p^ar^isoⁿ^w^ith^f^act^s^o^f^o^t^h^e^r
^Gu^id^elin^{es cases. Distr}ⁱ^ct^co^u^r^ts^h^a^v^e^anⁱⁿ^s^titu^tioⁿ^a^{l ad}^v^aⁿ^t^ag^{e o}^v^er^ap^p^e^{llate co}^u^r^{ts in}^m^a^kⁱⁿ^g
^th^es^{e s}^o^rts^of^determⁱⁿ^ation^s^{, es}^pecially^as^th^ey^s^{ee s}^o^m^aⁿ^y^m^o^r^e^Gu^idelin^es^cas^es^th^at
^appel^l^a^t^e^cou^r^t^s^{do. 518 U}^.^S^.^at^98.
The Act temporarily establishes de novo review as the standard for review of
whether a departure is justified by the facts of a case, a change it was felt “would be
more effective to review illegal and inappropriate downward departures,” 149
Cong.Rec. H2423 (daily ed. Mar. 27, 2003)(remarks of Rep. Feeney). The new
standard applies to review of upward and downward departures in all federal criminal
cases.²² Section 3742(e) became inoperable with the announcement of Booker.²³
Resentencing After Remand
The Act creates a specific provision covering a trial court’s resentencing in a
case returned to it after its original sentencing decision has been overturned on
appeal, 18 U.S.C. 3742(g). The provision is designed to “prevent sentencing courts
upon remand from imposing the same illegal departure on some different theory,”

²² 18 U.S.C. 3742(e)(“Upon review of the record, the court of appeals shall determine
whether the sentence – (1) was imposed in violation of law; (2) was imposed as a result of
an incorrect application of the sentencing guidelines; (3) is outside the applicable guideline
range, and is unreasonable, having regard for – (A) the district court failed to provide the
written statement of reasons required by section 3553(c); (B) the sentence departs from the
applicable guideline range based on a fact that – (i) does not advance the objectives set
forth in section 3553(a)(2); or (ii) is not authorized under section 3553(b); or (iii) is not
justified by the facts of the case; or (C) the sentence departs to an unreasonable degree from
the applicable guidelines range, having regard for the factors to be considered in imposing
a sentence, as set forth in chapter 227 section 3553(a) of this title and the reasons for the
imposition of the particular sentence, as stated by the district court pursuant to the
provisions of section 3553(c); or; and (B) the reasons for the imposition of the particular
sentence, as stated by the district court pursuant to the provisions of section 3553(c); or (4)
was imposed for an offense for which there is no applicable sentencing guideline and is
plainly unreasonable.
“The court of appeals shall give due regard to the opportunity of the district court to
judge the credibility of the witnesses, and shall accept the findings of fact of the district
court unless they are clearly erroneous and, except with respect to determinations under
subsection (3)(A) and (3)(B), shall give due deference to the district court's application of
the guidelines to the facts. With respect to determinations under subsection (3)(A) or (3)(B),
the court of appeals shall review de novo the district court's application of the guidelines to
the facts”).
²³ “We conclude that this provision [18 U.S.C. 3553(b)(1)] must be severed and excised,
as must one other statutory section, §3742(e) (main ed. and Supp. 2004), which depends
upon the guidelines’ mandatory nature,” 125 S.Ct. at 756-57.

149 Cong.Rec. H2423 (daily ed. Mar. 27, 2003)(remarks of Rep. Feeney). It applies
in all criminal cases and to cases involving either upward or downward departures.²⁴
Studies and Reports to Ensure Implementation
The Act mandates a number of reports and studies to ensure effective
implementation of its provisions. It requires the chief judge of each federal judicial
district to report the specifics of individual sentencing decisions handed down within
the district. The reports are forwarded to the Sentencing Commission and available
to the Justice Department and the Judiciary Committees.²⁵ The Attorney General

²⁴ 18 U.S.C. 3742(g)(“A district court to which a case is remanded pursuant to subsection
(f)(1) or (f)(2) shall resentence a defendant in accordance with section 3553 and with such
instructions as may have been given by the court of appeals, except that – (1) In determining
the range referred to in subsection 3553(a)(4), the court shall apply the guidelines issued by
the Sentencing Commission pursuant to section 944(a)(1) of title 28, United States Code,
and that were in effect on the date of the previous sentencing of the defendant prior to the
appeal, together with any amendments thereto by any act of Congress that was in effect on
such date; and (2) the court shall not impose a sentence outside the applicable guidelines
range except upon a ground that – (A) was specifically and affirmatively included in the
written statement of reasons required by section 3553(c) in connection with the previous
sentencing of the defendant prior to the appeal; and (B) was held by the court of appeals, in
remanding the case, to be a permissible ground for departure”); subsections as amended
(f)(1) and (2) provide that “If the court of appeals determines that – (1) the sentence was
imposed in violation of law or imposed as a result of an incorrect application of the
sentencing guidelines, the court shall remand the case for further sentencing proceedings
with such instructions as the court considers appropriate; [or] (2) the sentence is outside the
applicable guideline range and the district court failed to provide the required statement of
reasons in the order of judgment and commitment, or the departure is based on an
impermissible factor, or is to an unreasonable degree, or the sentence is unreasonable or
was imposed for an offense for which there is no applicable sentencing guideline and is
plainly unreasonable, it shall state specific reasons for its conclusions and – (A) if it
determines that the sentence is too high and the appeal has been filed under subsection (a),
it shall set aside the sentence and remand the case for further sentencing proceedings with
such instructions as the court considers appropriate; (B) if it determines that the sentence
is too low and the appeal has been filed under subsection (b), it shall set aside the sentence
and remand the case for further sentencing proceedings with such instructions as the court
considers appropriate, subject to subsection (g).”
²⁵ 28 U.S.C. 994(w)(“The appropriate judge or officer shall submit to the Commission in
connection with each sentence imposed (other than a sentence imposed for a petty offense,
as defined in title 18, for which there is no applicable sentencing guideline) (1) The Chief
Judge of each district court shall ensure that, within 30 days following entry of judgment
in every criminal case, the sentencing court submits to the Commission a written report of
the sentence, the offense for which it is imposed, the age, race, and sex of the offender, and
information regarding factors made relevant by the guidelines. The report shall also include
-- (A) the judgment and commitment order; (B) the statement of reasons for the sentence
imposed (which shall include the reason for any departure from the otherwise applicable
guideline range); (C) any plea agreement; (D) the indictment or other charging document;
(E) the presentence report; and (F) and such other information as the Commission finds
appropriate.
“(2) The Commission shall, upon request, make available to the House and Senate
Committees on the Judiciary, the written reports and all underlying records accompanying

must report all cases of downward departure other than those granted for substantial
assistance as well as any determination to appeal the departure to the Judiciary
Committees.²⁶ And the Sentencing Commission is to study the practice of downward
departures and make appropriate alterations in the guidelines.²⁷
Adjustments to Substantive Sex Offense Guidelines
Title IV of the Act also modifies the guideline for specific substantive sex
offenses. Section 4B1.5 of the guidelines provides a series of minimum offense
levels for conviction of a second or subsequent sex offense. It also prescribes

those reports described in this section, as well as other records received from courts.
“(3) The Commission shall submit to Congress at least annually an analysis of these
reports documents, and any recommendations for legislation that the Commission concludes
is warranted by that analysis, and an accounting of those districts that the Commission
believes have not submitted the appropriate information and documents required by this
section.
“(4) The Commission shall make available to the Attorney General, upon request, such
data files as the Commission may assemble or maintain in electronic form that include any
information submitted under paragraph (1). Such data files shall be made available in
electronic form and shall include all data fields requested, including the identity of the
sentencing judge”).
²⁶ 18 U.S.C. 3553 note (“(A) IN GENERAL.– Not later than 15 days after a district court's
grant of a downward departure in any case, other than a case involving a downward
departure for substantial assistance to authorities pursuant to section 5K1.1 of the United
States Sentencing Guidelines, the Attorney General shall submit a report to the Committees
on the Judiciary of the House of Representatives and the Senate containing the information
described under subparagraph (B).
“(B) CONTENTS. – The report submitted pursuant to subparagraph (A) shall set forth
– (i) the case; (ii) the facts involved; (iii) the identity of the district court judge; (iv) the
district court's stated reasons, whether or not the court provided the United States with
advance notice of its intention to depart; and (v) the position of the parties with respect to
the downward departure, whether or not the United States has filed, or intends to file, a
motion for reconsideration.
“(C) APPEAL OF THE DEPARTURE. – Not later than 5 days after a decision by the
Solicitor General regarding the authorization of an appeal of the departure, the Attorney
General shall submit a report to the Committees on the Judiciary of the House of
Representatives and the Senate that describes the decision of the Solicitor General and the
basis for such decision”).
²⁷ 28 U.S.C. 994 note (“Not later than 180 days after the enactment of this Act, the United
States Sentencing Commission shall – (1) review the grounds of downward departure that
are authorized by the sentencing guidelines, policy statements, and official commentary of
the Sentencing Commission; and (2) promulgate, pursuant to section 994 of title 28, United
States Code – (A) appropriate amendments to the sentencing guidelines, policy statements,
and official commentary to ensure that the incidence of downward departures are
substantially reduced; (B) a policy statement authorizing a downward departure of not more
than 4 levels if the Government files a motion for such departure pursuant to an early
disposition program authorized by the Attorney General and the United States Attorney; and
(C) any other conforming amendments to the sentencing guidelines, policy statements, and
official commentary of the Sentencing Commission necessitated by this Act, including a
revision of paragraph 4(b) of part A of chapter 1 and a revision of section 5K2.0”).

imposition of an additional 5 offense levels if the defendant has engaged in a pattern
of sex offenses, U.S.S.G. §4B1.5(b). It defines a pattern as the commission two or
more sex offenses committed against two or more minor victims. The Act redefines
pattern simply as the commission of two or more sex offenses committed against a
minor, eliminating the requirement of multiple victims, U.S.S.G. §4B1.5, App.N.

4(B)(i).

In addition, the Act amends the guideline applicable to possession of material
depicting a child engaged in sexually explicit conduct adding offense level increases
if the offense involves portrayals of sadistic or masochistic conduct (add 4 offense
levels) or if the offense involves possession of multiple images (add 2 to 5 levels
depending on the number of images), U.S.S.G. 2G2.4.²⁸ The Act supplies a similar
treatment for the guideline that applies to trafficking such material, except that an
addition for sadistic or masochistic conduct is unnecessary because the guideline
already accounts for it, U.S.S.G. 2G2.2.²⁹

²⁸ “(a) Base Offense Level: 15
“(b) Specific Offense Characteristics
“(1) If the material involved a prepubescent minor or a minor under the age of twelve
years, increase by 2 levels. (2) If the offense involved possessing ten or more books,
magazines, periodicals, films, video tapes, or other items, containing a visual depiction
involving the sexual exploitation of a minor, increase by 2 levels. (3) If the defendant's
possession of the material resulted from the defendant's use of a computer, increase by 2
levels. (4) If the offense involved material that portrays sadistic or masochistic conduct or
other depictions of violence, increase by 4 levels.(5) If the offense involved – (A) at least
10 images, but fewer than 150, increase by 2 levels; (B) at least 150 images, but fewer than

300, increase by 3 levels; (C) at least 300 images, but fewer than 600, increase by 4 levels;

and 600 or more images, increase by 5 levels.”
²⁹ “(a) Base Offense Level: 17
“(b) Specific Offense Characteristics
“(1) If the material involved a prepubescent minor or a minor under the age of twelve
years, increase by 2 levels. (2) (Apply the Greatest) If the offense involved: (A) Distribution
for pecuniary gain, increase by the number of levels from the table in § 2B1.1 (Theft,
Property Destruction, and Fraud) corresponding to the retail value of the material, but by not
less than 5 levels. (B) Distribution for the receipt, or expectation of receipt, of a thing of
value, but not for pecuniary gain, increase by 5 levels. (C) Distribution to a minor, increase
by 5 levels. (D) Distribution to a minor that was intended to persuade, induce, entice, coerce,
or facilitate the travel of, the minor to engage in prohibited sexual conduct, increase by 7
levels. (E) Distribution other than distribution described in subdivisions (A) through (D),
increase by 2 levels. (3) If the offense involved material that portrays sadistic or masochistic
conduct or other depictions of violence, increase by 4 levels. (4) If the defendant engaged
in a pattern of activity involving the sexual abuse or exploitation of a minor, increase by 5
levels. (5) If a computer was used for the transmission of the material or a notice or
advertisement of the material, increase by 2 levels. (6) if the offense involved -- (A) at least
10 images, but fewer than 150, increase by 2 levels; (B) at least 150 images, but fewer than

300, increase by 3 levels; (C) at least 300 images, but fewer than 600, increase by 4 levels;

and 600 or more images, increase by 5 levels.”