U.S.S.G. §4B1.5

(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

(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. Definition.—For purposes of this guideline, “minor” means (A) an individual who had not attained the age of 18 years; (B) an individual, whether fictitious or not, who a law enforcement

officer represented to a participant (i) had not attained the age of 18 years; and (ii) could be

provided for the purposes of engaging in sexually explicit conduct; or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of

18 years.

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 (iv) 18 U.S.C. § 1591; or (B) an attempt or a conspiracy to commit any offense described in subdivisions (A)(i) through (iv) 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 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.—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 applies to offenders whose instant offense of conviction is a sex offense

committed against a minor and who present a continuing danger to the public. The 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.