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dment 646); November 1, 2004 (see Appendix C, amendment 674). §4B1.5. Repeat and Dangerous Sex Offender Against Minors (a) In any case in which the defendant’s instant offense of conviction is a covered sex crime, §4B1.1 (Career Offender) does not apply, and the defendant committed the instant offense of conviction subsequent to sustaining at least one sex offense conviction: (1) The offense level shall be the greater of: (A) the offense level determined under Chapters Two and Three; or (B) the offense level from the table below decreased by the number of levels corresponding to any applicable adjustment from §3E1.1 (Acceptance of Responsibility): Offense Statutory Maximum Offense Level (i) Life 37 (ii) 25 years or more 34 November 1, 2005 GUIDELINES MANUAL §4B1.5 – 373 – (iii) 20 years or more, but less than 25 years 32 (iv) 15 years or more, but less than 20 years 29 (v) 10 years or more, but less than 15 years 24 (vi) 5 years or more, but less than 10 years 17 (vii) More than 1 year, but less than 5 years 12. (2) The criminal history category shall be the greater of: (A) the criminal history category determined under Chapter Four, Part A (Criminal History); or (B) criminal history Category V. (b) In any case in which the defendant’s instant offense of conviction is a covered sex crime, neither §4B1.1 nor subsection (a) of this guideline applies, and the defendant engaged in a pattern of activity involving prohibited sexual conduct: (1) The offense level shall be 5 plus the offense level determined under Chapters Two and Three. However, if the resulting offense level is less than level 22, the offense level shall be level 22, decreased by the number of levels corresponding to any applicable adjustment from §3E1.1. (2) The criminal history category shall be the criminal history category determined under Chapter Four, Part A. Commentary Application Notes: 1. Definitions.—For purposes of this guideline: "Minor" means an individual who had not attained the age of 18 years. "Minor victim" includes (A) an undercover law enforcement officer who represented to the defendant that the officer was a minor; or (B) any minor the officer represented to the defendant would be involved in the prohibited sexual conduct. 2. Covered Sex Crime as Instant Offense of Conviction.—For purposes of this guideline, the instant offense of conviction must be a covered sex crime, i.e.: (A) an offense, perpetrated against a minor, under (i) chapter 109A of title 18, United States Code; (ii) chapter 110 of such title, not including trafficking in, receipt of, or possession of, child pornography, or a recordkeeping offense; (iii) chapter 117 of such title, not including transmitting information about a minor or filing a factual statement about an alien individual; or (B) an attempt or a conspiracy to commit any offense described in subdivisions (A)(i) through (iii) of this note. 3. Application of Subsection (a).— (A) Definitions.—For purposes of subsection (a): (i) "Offense statutory maximum" means the maximum term of imprisonment authorized for the instant offense of conviction that is a covered sex crime, including any increase in that maximum term under a sentencing enhancement §4B1.5 GUIDELINES MANUAL November 1, 2005 – 374 – provision (such as a sentencing enhancement provision contained in 18 U.S.C. § 2247(a) or § 2426(a)) that applies to that covered sex crime because of the defendant’s prior criminal record. (ii) "Sex offense conviction" (I) means any offense described in 18 U.S.C. § 2426(b)(1)(A) or (B), if the offense was perpetrated against a minor; and (II) does not include trafficking in, receipt of, or possession of, child pornography. "Child pornography" has the meaning given that term in 18 U.S.C. § 2256(8). (B) Determination of Offense Statutory Maximum in the Case of Multiple Counts of Conviction.—In a case in which more than one count of the instant offense of conviction is a felony that is a covered sex crime, the court shall use the maximum authorized term of imprisonment for the count that has the greatest offense statutory maximum, for purposes of determining the offense statutory maximum under subsection (a). 4. Application of Subsection (b).— (A) Definition.—For purposes of subsection (b), "prohibited sexual conduct" means any of the following: (i) any offense described in 18 U.S.C. § 2426(b)(1)(A) or (B); (ii) the production of child pornography; or (iii) trafficking in child pornography only if, prior to the commission of the instant offense of conviction, the defendant sustained a felony conviction for that trafficking in child pornography. It does not include receipt or possession of child pornography. "Child pornography" has the meaning given that term in 18 U.S.C. § 2256(8). (B) Determination of Pattern of Activity.— (i) In General.—For purposes of subsection (b), the defendant engaged in a pattern of activity involving prohibited sexual conduct if on at least two separate occasions, the defendant engaged in prohibited sexual conduct with a minor. (ii) Occasion of Prohibited Sexual Conduct.—An occasion of prohibited sexual conduct may be considered for purposes of subsection (b) without regard to whether the occasion (I) occurred during the course of the instant offense; or (II) resulted in a conviction for the conduct that occurred on that occasion. 5. Treatment and Monitoring.— (A) Recommended Maximum Term of Supervised Release.—The statutory maximum term of supervised release is recommended for offenders sentenced under this guideline. (B) Recommended Conditions of Probation and Supervised Release.—Treatment and monitoring are important tools for supervising offenders and should be considered as special conditions of any term of probation or supervised release that is imposed. Background: This guideline is intended to provide lengthy incarceration for offenders who commit sex offenses against minors and who present a continuing danger to the public. It applies to offenders whose instant offense of conviction is a sex offense committed against a minor victim. The November 1, 2005 GUIDELINES MANUAL §4B1.5 – 375 – relevant criminal provisions provide for increased statutory maximum penalties for repeat sex offenders and make those increased statutory maximum penalties available if the defendant previously was convicted of any of several federal and state sex offenses (see 18 U.S.C. §§ 2247, 2426). In addition, section 632 of Public Law 102–141 and section 505 of Public Law 105–314 directed the Commission to ensure lengthy incarceration for offenders who engage in a pattern of activity involving the sexual abuse or exploitation of minors. Section 401(i)(1)(A) of Public Law 108–21 directly amended Application Note 4(b)(i), effective April 30, 2003. Historical Note: Effective November 1, 2001 (see Appendix C, amendment 615). Amended effective April 30, 2003 (see Appendix C, amendment 649); November 1, 2003 (see Appendix C, amendment 661). Ch. 5 Pt. A GUIDELINES MANUAL November 1, 2005 – 376 – CHAPTER FIVE - DETERMINING THE SENTENCE Introductory Commentary For certain categories of offenses and offenders, the guidelines permit the court to impose either imprisonment or some other sanction or combination of sanctions. In determining the type of sentence to impose, the sentencing judge should consider the nature and seriousness of the conduct, the statutory purposes of sentencing, and the pertinent offender characteristics. A sentence is within the guidelines if it complies with each applicable section of this chapter. The court should impose a sentence sufficient, but not greater than necessary, to comply with the statutory purposes of sentencing. 18 U.S.C. § 3553(a). Historical Note: Effective November 1, 1987. PART A - SENTENCING TABLE The Sentencing Table used to determine the guideline range follows: -377- November 1, 2005 SENTENCING TABLE (in months of imprisonment) Criminal History Category (Criminal History Points) Offense Level I (0 or 1) II (2 or 3) III (4, 5, 6) IV (7, 8, 9) V (10, 11, 12) VI (13 or more) Zone A 1 0-6 0-6 0-6 0-6 0-6 0-6 2 0-6 0-6 0-6 0-6 0-6 1-7 3 0-6 0-6 0-6 0-6 2-8 3-9 4 0-6 0-6 0-6 2-8 4-10 6-12 5 0-6 0-6 1-7 4-10 6-12 9-15 6 0-6 1-7 2-8 6-12 9-15 12-18 7 0-6 2-8 4-10 8-14 12-18 15-21 8 0-6 4-10 6-12 10-16 15-21 18-24 Zone B 9 4-10 6-12 8-14 12-18 18-24 21-27 10 6-12 8-14 10-16 15-21 21-27 24-30 Zone C 11 8-14 10-16 12-18 18-24 24-30 27-33 12 10-16 12-18 15-21 21-27 27-33 30-37 Zone D 13 12-18 15-21 18-24 24-30 30-37 33-41 14 15-21 18-24 21-27 27-33 33-41 37-46 15 18-24 21-27 24-30 30-37 37-46 41-51 16 21-27 24-30 27-33 33-41 41-51 46-57 17 24-30 27-33 30-37 37-46 46-57 51-63 18 27-33 30-37 33-41 41-51 51-63 57-71 19 30-37 33-41 37-46 46-57 57-71 63-78 20 33-41 37-46 41-51 51-63 63-78 70-87 21 37-46 41-51 46-57 57-71 70-87 77-96 22 41-51 46-57 51-63 63-78 77-96 84-105 23 46-57 51-63 57-71 70-87 84-105 92-115 24 51-63 57-71 63-78 77-96 92-115 100-125 25 57-71 63-78 70-87 84-105 100-125 110-137 26 63-78 70-87 78-97 92-115 110-137 120-150 27 70-87 78-97 87-108 100-125 120-150 130-162 28 78-97 87-108 97-121 110-137 130-162 140-175 29 87-108 97-121 108-135 121-151 140-175 151-188 30 97-121 108-135 121-151 135-168 151-188 168-210 31 108-135 121-151 135-168 151-188 168-210 188-235 32 121-151 135-168 151-188 168-210 188-235 210-262 33 135-168 151-188 168-210 188-235 210-262 235-293 34 151-188 168-210 188-235 210-262 235-293 262-327 35 168-210 188-235 210-262 235-293 262-327 292-365 36 188-235 210-262 235-293 262-327 292-365 324-405 37 210-262 235-293 262-327 292-365 324-405 360-life 38 235-293 262-327 292-365 324-405 360-life 360-life 39 262-327 292-365 324-405 360-life 360-life 360-life 40 292-365 324-405 360-life 360-life 360-life 360-life 41 324-405 360-life 360-life 360-life 360-life 360-life 42 360-life 360-life 360-life 360-life 360-life 360-life 43 life life life life life life Ch. 5 Pt. A GUIDELINES MANUAL November 1, 2005 – 378 – Commentary to Sentencing Table Application Notes: 1. The Offense Level (1-43) forms the vertical axis of the Sentencing Table. The Criminal History Category (I-VI) forms the horizontal axis of the Table. The intersection of the Offense Level and Criminal History Category displays the Guideline Range in months of imprisonment. "Life" means life imprisonment. For example, the guideline range applicable to a defendant with an Offense Level of 15 and a Criminal History Category of III is 24-30 months of imprisonment. 2. In rare cases, a total offense level of less than 1 or more than 43 may result from application of the guidelines. A total offense level of less than 1 is to be treated as an offense level of 1. An offense level of more than 43 is to be treated as an offense level of 43. 3. The Criminal History Category is determined by the total criminal history points from Chapter Four, Part A, except as provided in §§4B1.1 (Career Offender) and 4B1.4 (Armed Career Criminal). The total criminal history points associated with each Criminal History Category are shown under each Criminal History Category in the Sentencing Table. Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 270); November 1, 1991 (see Appendix C, amendment 418); November 1, 1992 (see Appendix C, amendment 462). November 1, 2005 GUIDELINES MANUAL §5B1.1 – 379 – PART B - PROBATION Introductory Commentary The Comprehensive Crime Control Act of 1984 makes probation a sentence in and of itself. 18 U.S.C. § 3561. Probation may be used as an alternative to incarceration, provided that the terms and conditions of probation can be fashioned so as to meet fully the statutory purposes of sentencing, including promoting respect for law, providing just punishment for the offense, achieving general deterrence, and protecting the public from further crimes by the defendant. Historical Note: Effective November 1, 1987. §5B1.1. Imposition of a Term of Probation (a) Subject to the statutory restrictions in subsection (b) below, a sentence of probation is authorized if: (1) the applicable guideline range is in Zone A of the Sentencing Table; or (2) the applicable guideline range is in Zone B of the Sentencing Table and the court imposes a condition or combination of conditions requiring intermittent confinement, community confinement, or home detention as provided in subsection (c)(3) of §5C1.1 (Imposition of a Term of Imprisonment). (b) A sentence of probation may not be imposed in the event: (1) the offense of conviction is a Class A or B felony, 18 U.S.C. § 3561(a)(1); (2) the offense of conviction expressly precludes probation as a sentence, 18 U.S.C. § 3561(a)(2); (3) the defendant is sentenced at the same time to a sentence of imprisonment for the same or a different offense, 18 U.S.C. § 3561(a)(3). Commentary Application Notes: 1. Except where prohibited by statute or by the guideline applicable to the offense in Chapter Two, the guidelines authorize, but do not require, a sentence of probation in the following circumstances: (a) Where the applicable guideline range is in Zone A of the Sentencing Table (i.e., the §5B1.3 GUIDELINES MANUAL November 1, 2005 – 380 – minimum term of imprisonment specified in the applicable guideline range is zero months). In such cases, a condition requiring a period of community confinement, home detention, or intermittent confinement may be imposed but is not required. (b) Where the applicable guideline range is in Zone B of the Sentencing Table (i.e., the minimum term of imprisonment specified in the applicable guideline range is at least one but not more than six months). In such cases, the court may impose probation only if it imposes a condition or combination of conditions requiring a period of community confinement, home detention, or intermittent confinement sufficient to satisfy the minimum term of imprisonment specified in the guideline range. For example, where the offense level is 7 and the criminal history category is II, the guideline range from the Sentencing Table is 2-8 months. In such a case, the court may impose a sentence of probation only if it imposes a condition or conditions requiring at least two months of community confinement, home detention, or intermittent confinement, or a combination of community confinement, home detention, and intermittent confinement totaling at least two months. 2. Where the applicable guideline range is in Zone C or D of the Sentencing Table (i.e., the minimum term of imprisonment specified in the applicable guideline range is eight months or more), the guidelines do not authorize a sentence of probation. See §5C1.1 (Imposition of a Term of Imprisonment). Background: This section provides for the imposition of a sentence of probation. The court may sentence a defendant to a term of probation in any case unless (1) prohibited by statute, or (2) where a term of imprisonment is required under §5C1.1 (Imposition of a Term of Imprisonment). Under 18 U.S.C. § 3561(a)(3), the imposition of a sentence of probation is prohibited where the defendant is sentenced at the same time to a sentence of imprisonment for the same or a different offense. Although this provision has effectively abolished the use of "split sentences" imposable pursuant to the former 18 U.S.C. § 3651, the drafters of the Sentencing Reform Act noted that the functional equivalent of the split sentence could be "achieved by a more direct and logically consistent route" by providing that a defendant serve a term of imprisonment followed by a period of supervised release. (S. Rep. No. 225, 98th Cong., 1st Sess. 89 (1983)). Section 5B1.1(a)(2) provides a transition between the circumstances under which a "straight" probationary term is authorized and those where probation is prohibited. Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 302); November 1, 1992 (see Appendix C, amendment 462). §5B1.2. Term of Probation (a) When probation is imposed, the term shall be: (1) at least one year but not more than five years if the offense level is 6 or greater; (2) no more than three years in any other case. Commentary November 1, 2005 GUIDELINES MANUAL §5B1.3 – 381 – Background: This section governs the length of a term of probation. Subject to statutory restrictions, the guidelines provide that a term of probation may not exceed three years if the offense level is less than 6. If a defendant has an offense level of 6 or greater, the guidelines provide that a term of probation be at least one year but not more than five years. Although some distinction in the length of a term of probation is warranted based on the circumstances of the case, a term of probation may also be used to enforce conditions such as fine or restitution payments, or attendance in a program of treatment such as drug rehabilitation. Often, it may not be possible to determine the amount of time required for the satisfaction of such payments or programs in advance. This issue has been resolved by setting forth two broad ranges for the duration of a term of probation depending upo

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