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ercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years. "Participant" has the meaning given that term in Application Note 1 of the Commentary to §3B1.1 (Aggravating Role). "Prohibited sexual conduct" has the meaning given that term in Application Note 1 of the Commentary to §2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse). 2. Application of Subsection (a)(1).—For purposes of subsection (a)(1), "conduct described in 18 U.S.C. § 2241(a) or (b)" is engaging in, or causing sexual contact with, or by another person by: (A) using force against the victim; (B) threatening or placing the victim in fear that any person will be subjected to death, serious bodily injury, or kidnapping; (C) rendering the victim unconscious; or (D) administering by force or threat of force, or without the knowledge or permission of the victim, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of the victim to appraise or control conduct. 3. Application of Subsection (a)(2).—For purposes of subsection (a)(2), "conduct described in 18 U.S.C. § 2242" is: (A) engaging in, or causing sexual contact with, or by another person by threatening or placing the victim in fear (other than by threatening or placing the victim in fear that any person will be subjected to death, serious bodily injury, or kidnapping); or (B) engaging in, or causing sexual contact with, or by another person who is incapable of appraising the nature of the conduct or physically incapable of declining participation in, or communicating unwillingness to engage in, the sexual act. November 1, 2005 GUIDELINES MANUAL §2A3.4 – 63 – 4. Application of Subsection (b)(3).— (A) Custody, Care, or Supervisory Control.—Subsection (b)(3) is intended to have broad application and is to be applied whenever the victim is entrusted to the defendant, whether temporarily or permanently. For example, teachers, day care providers, babysitters, or other temporary caretakers are among those who would be subject to this enhancement. In determining whether to apply this enhancement, the court should look to the actual relationship that existed between the defendant and the victim and not simply to the legal status of the defendant-victim relationship. (B) Inapplicability of Chapter Three Adjustment.—If the enhancement in subsection (b)(3) applies, do not apply §3B1.3 (Abuse of Position of Trust or Use of Special Skill). 5. Misrepresentation of a Participant’s Identity.—The enhancement in subsection (b)(4) applies in cases involving the misrepresentation of a participant’s identity to persuade, induce, entice, or coerce a minor to engage in prohibited sexual conduct. Subsection (b)(4) is intended to apply only to misrepresentations made directly to a minor or to a person who exercises custody, care, or supervisory control of the minor. Accordingly, the enhancement in subsection (b)(4) would not apply to a misrepresentation made by a participant to an airline representative in the course of making travel arrangements for the minor. The misrepresentation to which the enhancement in subsection (b)(4) may apply includes misrepresentation of a participant’s name, age, occupation, gender, or status, as long as the misrepresentation was made with the intent to persuade, induce, entice, or coerce a minor to engage in prohibited sexual conduct. Accordingly, use of a computer screen name, without such intent, would not be a sufficient basis for application of the enhancement. 6. Application of Subsection (b)(5).—Subsection (b)(5) provides an enhancement if a computer or an interactive computer service was used to persuade, induce, entice, or coerce a minor to engage in prohibited sexual conduct. Subsection (b)(5) is intended to apply only to the use of a computer or an interactive computer service to communicate directly with a minor or with a person who exercises custody, care, or supervisory control of the minor. Background: This section covers abusive sexual contact not amounting to criminal sexual abuse (criminal sexual abuse is covered under §§2A3.1-3.3). Alternative base offense levels are provided to take account of the different means used to commit the offense. Enhancements are provided for victimizing children or minors. The enhancement under subsection (b)(2) does not apply, however, where the base offense level is determined under subsection (a)(3) because an element of the offense to which that offense level applies is that the victim had attained the age of twelve years but had not attained the age of sixteen years. Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 95); November 1, 1991 (see Appendix C, amendment 392); November 1, 1992 (see Appendix C, amendment 444); November 1, 1995 (see Appendix C, amendment 511); November 1, 2000 (see Appendix C, amendment 592); November 1, 2001 (see Appendix C, amendment 615); November 1, 2004 (see Appendix C, amendment 664). §2A3.4 GUIDELINES MANUAL November 1, 2005 – 64 – * * * * * 4. KIDNAPPING, ABDUCTION, OR UNLAWFUL RESTRAINT §2A4.1. Kidnapping, Abduction, Unlawful Restraint (a) Base Offense Level: 32 (b) Specific Offense Characteristics (1) If a ransom demand or a demand upon government was made, increase by 6 levels. (2) (A) If the victim sustained permanent or life-threatening bodily injury, increase by 4 levels; (B) if the victim sustained serious bodily injury, increase by 2 levels; or (C) if the degree of injury is between that specified in subdivisions (A) and (B), increase by 3 levels. (3) If a dangerous weapon was used, increase by 2 levels. (4) (A) If the victim was not released before thirty days had elapsed, increase by 2 levels. (B) If the victim was not released before seven days had elapsed, increase by 1 level. (5) If the victim was sexually exploited, increase by 6 levels. (6) If the victim is a minor and, in exchange for money or other consideration, was placed in the care or custody of another person who had no legal right to such care or custody of the victim, increase by 3 levels. (7) If the victim was kidnapped, abducted, or unlawfully restrained during the commission of, or in connection with, another offense or escape therefrom; or if another offense was committed during the kidnapping, abduction, or unlawful restraint, increase to -- (A) the offense level from the Chapter Two offense guideline applicable to that other offense if such offense guideline includes an adjustment for kidnapping, abduction, or unlawful restraint, or otherwise takes such conduct into account; or (B) 4 plus the offense level from the offense guideline applicable to that other offense, but in no event greater than level 43, in any other case, if the resulting offense level is greater than that determined above. November 1, 2005 GUIDELINES MANUAL §2A4.1 – 65 – (c) Cross Reference (1) If the victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States, apply §2A1.1 (First Degree Murder). Commentary Statutory Provisions: 18 U.S.C. §§ 115(b)(2), 351(b), (d), 1201, 1203, 1751(b), 2340A. For additional statutory provision(s), see Appendix A (Statutory Index). Application Notes: 1. For purposes of this guideline— Definitions of "serious bodily injury" and "permanent or life-threatening bodily injury" are found in the Commentary to §1B1.1 (Application Instructions). However, for purposes of this guideline, "serious bodily injury" means conduct other than criminal sexual abuse, which is taken into account in the specific offense characteristic under subsection (b)(5). 2. "A dangerous weapon was used" means that a firearm was discharged, or a "firearm" or "dangerous weapon" was "otherwise used" (as defined in the Commentary to §1B1.1 (Application Instructions)). 3. "Sexually exploited" includes offenses set forth in 18 U.S.C. §§ 2241-2244, 2251, and 2421- 2423. 4. In the case of a conspiracy, attempt, or solicitation to kidnap, §2X1.1 (Attempt, Solicitation, or Conspiracy) requires that the court apply any adjustment that can be determined with reasonable certainty. Therefore, for example, if an offense involved conspiracy to kidnap for the purpose of committing murder, subsection (b)(7) would reference first degree murder (resulting in an offense level of 43, subject to a possible 3-level reduction under §2X1.1(b)). Similarly, for example, if an offense involved a kidnapping during which a participant attempted to murder the victim under circumstances that would have constituted first degree murder had death occurred, the offense referenced under subsection (b)(7) would be the offense of first degree murder. Background: Federal kidnapping cases generally encompass three categories of conduct: limited duration kidnapping where the victim is released unharmed; kidnapping that occurs as part of or to facilitate the commission of another offense (often, sexual assault); and kidnapping for ransom or political demand. The guideline contains an adjustment for the length of time that the victim was detained. The adjustment recognizes the increased suffering involved in lengthy kidnappings and provides an incentive to release the victim. An enhancement is provided when the offense is committed for ransom (subsection (b)(1)) or involves another federal, state, or local offense that results in a greater offense level (subsections §2A4.1 GUIDELINES MANUAL November 1, 2005 – 66 – (b)(7) and (c)(1)). Section 401 of Public Law 101-647 amended 18 U.S.C. § 1201 to require that courts take into account certain specific offense characteristics in cases involving a victim under eighteen years of age and directed the Commission to include those specific offense characteristics within the guidelines. Where the guidelines did not already take into account the conduct identified by the Act, additional specific offense characteristics have been provided. Subsections (a) and (b)(5), and the deletion of subsection (b)(4)(C), effective May 30, 2003, implement the directive to the Commission in section 104 of Public Law 108–21. Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 96); November 1, 1991 (see Appendix C, amendment 363); November 1, 1992 (see Appendix C, amendment 445); November 1, 1993 (see Appendix C, amendment 478); November 1, 1997 (see Appendix C, amendment 545); November 1, 2002 (see Appendix C, amendment 637); May 30, 2003 (see Appendix C, amendment 650); October 27, 2003 (see Appendix C, amendment 651). §2A4.2. Demanding or Receiving Ransom Money (a) Base Offense Level: 23 (b) Cross Reference (1) If the defendant was a participant in the kidnapping offense, apply §2A4.1 (Kidnapping, Abduction, Unlawful Restraint). Commentary Statutory Provisions: 18 U.S.C. §§ 876, 877, 1202. For additional statutory provision(s), see Appendix A (Statutory Index). Application Note: 1. A "participant" is a person who is criminally responsible for the commission of the offense, but need not have been convicted. Background: This section specifically includes conduct prohibited by 18 U.S.C. § 1202, requiring that ransom money be received, possessed, or disposed of with knowledge of its criminal origins. The actual demand for ransom under these circumstances is reflected in §2A4.1. This section additionally includes extortionate demands through the use of the United States Postal Service, behavior proscribed by 18 U.S.C. §§ 876-877. Historical Note: Effective November 1, 1987. Amended effective November 1, 1993 (see Appendix C, amendment 479). November 1, 2005 GUIDELINES MANUAL §2A6.1 – 67 – * * * * * 5. AIR PIRACY AND OFFENSES AGAINST MASS TRANSPORTATION SYSTEMS Historical Note: Effective November 1, 1987. Amended effective November 1, 2002 (see Appendix C, amendment 637). §2A5.1. Aircraft Piracy or Attempted Aircraft Piracy (a) Base Offense Level: 38 (b) Specific Offense Characteristic (1) If death resulted, increase by 5 levels. Commentary Statutory Provisions: 49 U.S.C. § 46502(a), (b) (formerly 49 U.S.C. § 1472 (i), (n)). For additional statutory provision(s), see Appendix A (Statutory Index). Background: This section covers aircraft piracy both within the special aircraft jurisdiction of the United States, 49 U.S.C. § 46502(a), and aircraft piracy outside that jurisdiction when the defendant is later found in the United States, 49 U.S.C. § 46502(b). Seizure of control of an aircraft may be by force or violence, or threat of force or violence, or by any other form of intimidation. The presence of a weapon is assumed in the base offense level. Historical Note: Effective November 1, 1987. Amended effective November 1, 1995 (see Appendix C, amendment 534). §2A5.2. Interference with Flight Crew Member or Flight Attendant; Interference with Dispatch, Operation, or Maintenance of Mass Transportation Vehicle or Ferry (a) Base Offense Level (Apply the greatest): (1) 30, if the offense involved intentionally endangering the safety of: (A) an airport or an aircraft; or (B) a mass transportation facility, a mass transportation vehicle, or a ferry; (2) 18, if the offense involved recklessly endangering the safety of: (A) an airport or an aircraft; or (B) a mass transportation facility, a mass transportation vehicle, or a ferry; (3) if an assault occurred, the offense level from the most analogous assault guideline, §§2A2.1-2A2.4; or (4) 9. §2A5.2 GUIDELINES MANUAL November 1, 2005 – 68 – (b) Specific Offense Characteristic (1) If (A) subsection (a)(1) or (a)(2) applies; and (B)(i) a firearm was discharged, increase by 5 levels; (ii) a dangerous weapon was otherwise used, increase by 4 levels; or (iii) a dangerous weapon was brandished or its use was threatened, increase by 3 levels. If the resulting offense level is less than level 24, increase to level 24. (c) Cross References (1) If death resulted, apply the most analogous guideline from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting offense level is greater than that determined above. (2) If the offense involved possession of, or a threat to use (A) a nuclear weapon, nuclear material, or nuclear byproduct material; (B) a chemical weapon; (C) a biological agent, toxin, or delivery system; or (D) a weapon of mass destruction, apply §2M6.1 (Nuclear, Biological, and Chemical Weapons, and Other Weapons of Mass Destruction), if the resulting offense level is greater than that determined above. Commentary Statutory Provisions: 18 U.S.C. § 1993(a)(4), (5), (6), (b); 49 U.S.C. §§ 46308, 46503, 46504 (formerly 49 U.S.C. § 1472(c), (j)). For additional statutory provision(s), see Appendix A (Statutory Index). Application Note: 1. Definitions.—For purposes of this guideline: "Biological agent", "chemical weapon", "nuclear byproduct material", "nuclear material", "toxin", and "weapon of mass destruction" have the meaning given those terms in Application Note 1 of the Commentary to §2M6.1 (Nuclear, Biological, and Chemical Weapons, and Other Weapons of Mass Destruction). "Brandished", "dangerous weapon", "firearm", and "otherwise used" have the meaning given those terms in Application Note 1 of the Commentary to §1B1.1 (Application Instructions). "Mass transportation" has the meaning given that term in 18 U.S.C. § 1993(c)(5). Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendments 97 and 303); November 1, 1993 (see Appendix C, amendment 480); November 1, 1995 (see Appendix C, amendment 534); November 1, 2002 (see Appendix C, amendment 637). November 1, 2005 GUIDELINES MANUAL §2A6.2 – 69 – §2A5.3. Committing Certain Crimes Aboard Aircraft (a) Base Offense Level: The offense level applicable to the underlying offense. Commentary Statutory Provision: 49 U.S.C. § 46506 (formerly 49 U.S.C. § 1472(k)(1)). Application Notes: 1. "Underlying offense" refers to the offense listed in 49 U.S.C. § 46506 of which the defendant is convicted. 2. If the conduct intentionally or recklessly endangered the safety of the aircraft or passengers, an upward departure may be warranted. Historical Note: Effective October 15, 1988 (see Appendix C, amendment 65). Amended effective November 1, 1989 (see Appendix C, amendment 98); November 1, 1995 (see Appendix C, amendment 534). * * * * * 6. THREATENING OR HARASSING COMMUNICATIONS, STALKING, AND DOMESTIC VIOLENCE Historical Note: Effective November 1, 1987. Amended effective November 1, 1997 (see Appendix C, amendment 549). §2A6.1. Threatening or Harassing Communications (a) Base Offense Level: (1) 12; or (2) 6, if the defendant is convicted of an offense under 47 U.S.C. § 223(a)(1)(C), (D), or (E) that did not involve a threat to injure a person or property. (b) Specific Offense Characteristics (1) If the offense involved any conduct evidencing an intent to carry out such threat, increase by 6 levels. (2) If the offense involved more than two threats, increase by 2 levels. (3) If the offense involved the violation of a court

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