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U S S C: Nited Tates Entencing Ommission
U S S C: Nited Tates Entencing Ommission
SENTENCING COMMISSION
SUPPLEMENT TO THE
2006 GUIDELINES MANUAL
MAY 1, 2007
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SUPPLEMENT TO 2006 GUIDELINES MANUAL - MAY 1, 2007
AMENDED GUIDELINES*
*For guidelines other than those shown in this supplement, see the main volume of the 2006 Guidelines Manual.
(1) 9; or
(1) If (A) the defendant is convicted under 18 U.S.C. § 1039(d) or (e); or (B)
the purpose of the offense was to obtain direct or indirect commercial
advantage or economic gain, increase by 3 levels.
(1) If the purpose of the offense was to facilitate another offense, apply the
guideline applicable to an attempt to commit that other offense, if the
resulting offense level is greater than that determined above.
Commentary
Statutory Provisions: 18 U.S.C. §§ 1039, 2511; 26 U.S.C. §§ 7213(a)(1)-(3), (a)(5), (d), 7213A, 7216; 47
U.S.C. § 605. For additional statutory provision(s), see Appendix A (Statutory Index).
Application Notes:
2. Imposition of Sentence for 18 U.S.C. § 1039(d) and (e).—Subsections 1039(d) and (e) of title 18,
United States Code, require a term of imprisonment of not more than 5 years to be imposed in
addition to any sentence imposed for a conviction under 18 U.S.C. § 1039(a), (b), or (c). In
order to comply with the statute, the court should determine the appropriate "total punishment"
and divide the sentence on the judgment form between the sentence attributable to the conviction
under 18 U.S.C. § 1039(d) or (e) and the sentence attributable to the conviction under 18 U.S.C.
§ 1039(a), (b), or (c), specifying the number of months to be served for the conviction under 18
U.S.C. § 1039(d) or (e). For example, if the applicable adjusted guideline range is 15-21 months
and the court determines a "total punishment" of 21 months is appropriate, a sentence of 9
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months for conduct under 18 U.S.C. § 1039(a) plus 12 months for 18 U.S.C. § 1039(d) conduct
would achieve the "total punishment" in a manner that satisfies the statutory requirement.
3. Upward Departure.—There may be cases in which the offense level determined under this
guideline substantially understates the seriousness of the offense. In such a case, an upward
departure may be warranted. The following are examples of cases in which an upward departure
may be warranted:
(i) The offense involved confidential phone records information of a substantial number of
individuals.
(ii) The offense caused or risked substantial non-monetary harm (e.g. physical harm,
psychological harm, or severe emotional trauma, or resulted in a substantial invasion of
privacy interest) to individuals whose private or protected information was obtained.
Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 169); November 1, 2001 (see
Appendix C, amendment 628); May 1, 2007 (see Appendix C, amendment 697).
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APPENDIX A - STATUTORY INDEX
INTRODUCTION
This index specifies the offense guideline section(s) in Chapter Two (Offense Conduct) applicable to
the statute of conviction. If more than one guideline section is referenced for the particular statute, use the
guideline most appropriate for the offense conduct charged in the count of which the defendant was
convicted. For the rules governing the determination of the offense guideline section(s) from Chapter Two,
and for any exceptions to those rules, see §1B1.2 (Applicable Guidelines).
Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendments 296 and 297); November 1, 1993
(see Appendix C, amendment 496); November 1, 2000 (see Appendix C, amendment 591).
INDEX
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Historical Note: Effective November 1, 1987. Amended effective January 15, 1988 (see Appendix C, amendments 60 and 61); June 15, 1988 (see
Appendix C, amendments 62 and 63); October 15, 1988 (see Appendix C, amendments 64 and 65); November 1, 1989 (see Appendix C, amendments
297-301); November 1, 1990 (see Appendix C, amendment 359); November 1, 1991 (see Appendix C, amendment 421); November 1, 1992 (see
Appendix C, amendment 468); November 1, 1993 (see Appendix C, amendment 496); November 1, 1995 (see Appendix C, amendment 534); November
1, 1996 (see Appendix C, amendment 540); November 1, 1997 (see Appendix C, amendment 575); November 1, 1998 (see Appendix C, amendment
589); November 1, 2000 (see Appendix C, amendment 592); May 1, 2001 (see Appendix C, amendment 612); November 1, 2001 (see Appendix C,
amendments 617, 622, 626, 627, 628, 633, and 634); November 1, 2002 (see Appendix C, amendments 637, 638, 639, and 646); January 25, 2003 (see
Appendix C, amendments 647 and 648); November 1, 2003 (see Appendix C, amendments 653, 654, 655, 656, 658, and 661); November 1, 2004 (see
Appendix C, amendments 664, 665, 666, 667, 669, and 674); October 24, 2005 (see Appendix C, amendments 675 and 676); November 1, 2005 (see
Appendix C, amendments 677, 679, and 680); November 1, 2006 (see Appendix C, amendments 685, 686, 687, 689, and 690); May 1, 2007 (see
Appendix C, amendment 697).
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This supplement to the 2006 supplement to Appendix C presents the emergency amendment to
§2H3.1 (Interception of Communications; Eavesdropping; Disclosure of Certain Private or Protected
Information), effective May 1, 2007.
The format under which this amendment is presented in Appendix C, including this supplement and
the 2006 supplement to Appendix C, is designed to facilitate a comparison between previously existing and
amended provisions, in the event it becomes necessary to reference the former guideline, policy statement, or
commentary language. For amendments to the guidelines, policy statements, and official commentary
effective November 1, 1997, and earlier, see the main volume of Appendix C. For amendments to the
guidelines, policy statements, and official commentary effective after November 1, 1997, but before May 1,
2007, see the 2006 Supplement to Appendix C.
AMENDMENT
697. Amendment: Section 2H3.1 is amended in the heading by striking "Tax Return Information" and
inserting "Certain Private or Protected Information".
Section 2H3.1(b)(1) is amended by inserting "(A) the defendant is convicted under 18 U.S.C. § 1039(d) or
(e); or (B)" after "If".
The Commentary to §2H3.1 captioned "Statutory Provisions" is amended by inserting "§ 1039," after "18
U.S.C. §".
The Commentary to §2H3.1 captioned "Application Notes" is amended by striking Note 1 as follows:
"1. Definitions.—For purposes of this guideline, ‘tax return’ and ‘tax return information’ have
the meaning given the terms ‘return’ and ‘return information’ in 26 U.S.C. § 6103(b)(1) and
(2), respectively.";
by redesignating Note 2 as Note 1; and by inserting after Note 1, as redesignated by this amendment, the
following:
"2. Imposition of Sentence for 18 U.S.C. § 1039(d) and (e).—Subsections 1039(d) and (e) of
title 18, United States Code, require a term of imprisonment of not more than 5 years to be
imposed in addition to any sentence imposed for a conviction under 18 U.S.C. § 1039(a), (b),
or (c). In order to comply with the statute, the court should determine the appropriate ‘total
punishment’ and divide the sentence on the judgment form between the sentence attributable
to the conviction under 18 U.S.C. § 1039(d) or (e) and the sentence attributable to the
conviction under 18 U.S.C. § 1039(a), (b), or (c), specifying the number of months to be
served for the conviction under 18 U.S.C. § 1039(d) or (e). For example, if the applicable
adjusted guideline range is 15-21 months and the court determines a ‘total punishment’ of
21 months is appropriate, a sentence of 9 months for conduct under 18 U.S.C. § 1039(a) plus
12 months for 18 U.S.C. § 1039(d) conduct would achieve the ‘total punishment’ in a
manner that satisfies the statutory requirement.
3. Upward Departure.—There may be cases in which the offense level determined under this
guideline substantially understates the seriousness of the offense. In such a case, an upward
departure may be warranted. The following are examples of cases in which an upward
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departure may be warranted:
(ii) The offense caused or risked substantial non-monetary harm (e.g. physical harm,
psychological harm, or severe emotional trauma, or resulted in a substantial
invasion of privacy interest) to individuals whose private or protected information
was obtained.".
"Background: This section refers to conduct proscribed by 47 U.S.C. § 605 and the Electronic
Communications Privacy Act of 1986, which amends 18 U.S.C. § 2511 and other sections of Title 18
dealing with unlawful interception and disclosure of communications. These statutes proscribe the
interception and divulging of wire, oral, radio, and electronic communications. The Electronic
Communications Privacy Act of 1986 provides for a maximum term of imprisonment of five years
for violations involving most types of communication.
This section also refers to conduct relating to the disclosure and inspection of tax returns and tax return
information, 26 U.S.C. §§ 7213(a)(1)-(3), (5), (d), 7213A, and 7216. These statutes provide for a
maximum term of imprisonment of five years for most types of disclosure of tax return information,
but provide a maximum term of imprisonment of one year for violations of 26 U.S.C. §§ 7213A and
7216.".
Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. § 1038 the
following new line:
Reason for Amendment: This amendment implements the emergency directive in section 4 of the
Telephone Records and Privacy Protection Act of 2006, Pub. L. 109–476. The directive, which requires the
Commission to promulgate an amendment under emergency amendment authority by July 11, 2007, instructs
the Commission to "review and, if appropriate, amend the Federal sentencing guidelines and policy
statements applicable to persons convicted of any offense under section 1039 of title 18, United States Code."
Section 1039 criminalizes the fraudulent acquisition or disclosure of confidential phone records. The
penalties for violating the statute include fines and imprisonment for a term not to exceed 10 years. The
statute also includes enhanced penalties for certain forms of aggravated conduct, providing for up to a five
year term of imprisonment, in addition to the penalties for a violation of section 1039(a), (b), or (c). See 18
U.S.C. § 1039 (d), (e).
The amendment refers the new offense at 18 U.S.C. § 1039 to §2H3.1 (Interception of Communications;
Eavesdropping; Disclosure of Tax Return Information). The Commission concluded that disclosure of
telephone records is similar to the types of privacy offenses referenced to this guideline. In addition, this
guideline includes a cross reference, instructing that if the purpose of the offense was to facilitate another
offense, that the guideline applicable to an attempt to commit the other offenses should be applied, if the
resulting offense level is higher. The Commission concluded that operation of the cross reference would
capture the harms associated with the aggravated forms of this offense referenced at 18 U.S.C. § 1039(d) or
(e). Finally, the amendment expands the scope of the existing three-level enhancement in the guideline to
include cases in which the defendant is convicted under 18 U.S.C. § 1039(d) or (e). Thus, in cases where the
cross reference does not apply, application of the enhancement will capture the increased harms associated
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