[House Report 108-48]
[From the U.S. Government Publishing Office]
108th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 108-48
======================================================================
PROVIDING FOR CONSIDERATION OF H.R. 1104, THE CHILD ABDUCTION
PREVENTION ACT OF 2003
_______
March 25, 2003.--Referred to the House Calendar and ordered to be
printed
_______
Mrs. Myrick, from the Committee on Rules, submitted the following
R E P O R T
[To accompany H. Res. 160]
The Committee on Rules, having had under consideration
House Resolution 160, by a nonrecord vote, report the same to
the House with the recommendation that the resolution be
adopted.
SUMMARY OF PROVISIONS OF THE RESOLUTION
The resolution provides for consideration of House
Resolution 1104, the Child Abduction Prevention Act of 2003,
under a structured rule. The rule provides one hour of general
debate, with forty-five minutes equally divided and controlled
by the chairman and ranking minority member of the Committee on
the Judiciary and fifteen minutes equally divided and
controlled by the chairman and ranking minority member of the
Committee on Education and the Workforce. The rule waives all
points of order against consideration of the bill. The rule
provides that the amendment in the nature of a substitute
recommended by the Committee on the Judiciary now printed in
the bill shall be considered as an original bill for the
purpose of amendment and shall be considered as read. The rule
waives all points of order against the amendment in the nature
of a substitute recommended by the Committee on the Judiciary
now printed in the bill.
The rule makes in order only those amendments printed in
this report. The amendments made in order may be offered only
in the order printed in this report, may be offered only by a
Member designated in this report, shall be considered as read,
shall be debatable for the time specified in this report
equally divided and controlled by the proponent and an
opponent, shall not be subject to amendment, and shall not be
subject to a demand for a division of the question in the House
or in the Committee of the Whole. The rule provides that all
points of order against such amendments are waived. The rule
provides one motion to recommit with or without instructions.
The rule also provides that after passage of House
Resolution 1104, it shall be in order to consider in the House
the bill S. 151, to move to strike all after the enacting
clause of S. 151, and to insert the provisions of House
Resolution 1104, as passed by the House. The rule waives all
points of order against consideration of the Senate bill and
the motion to strike and insert. The rule provides that if the
motion is adopted and the Senate bill, as amended, is passed,
that it shall be in order to move that the House insist on its
amendments and request a conference.
The waiver of all points of order against consideration of
the bill in the rule includes a waiver of clause 4(a) of rule
XIII (requiring a three-day layover of the committee report),
which is necessary because the committee report was not filed
until Monday, March 24, 2003, and the bill may be considered by
the House as early as Wednesday, March 26, 2003.
COMMITTEE VOTES
Pursuant to clause 3(b) of House rule XIII the results of
each record vote on an amendment or motion to report, together
with the names of those voting for and against, are printed
below:
Rules Committee Record Vote No. 41
Date: March 25, 2003.
Measure: H.R. 1104, Child Abduction Prevention Act of 2003.
Motion by: Mr. Frost.
Summary of motion: To make in order a second rule as a new
section three in the rule. That rule would provide for the
consideration of S. 121.
Results: Defeated 4 to 9.
Vote by Members: Goss--Nay; Linder--Nay; Pryce--Nay; Diaz-
Balart--Nay; Hastings (WA)--Nay; Myrick--Nay; Sessions--Nay;
Reynolds--Nay; Frost--Yea; Slaughter--Yea; McGovern--Yea;
Hastings (FL)--Yea; Dreier--Nay.
Rules Committee Record Vote No. 42
Date: March 25, 2003.
Measure: H.R. 1104, Child Abduction Prevention Act of 2003.
Motion by: Mrs. Slaughter.
Summary of motion: To make in order the amendment offered
by Representative Weiner which increases grants for the
analysis of DNA samples from rape kits and crime scenes.
Specifically authorizes $25 million for the analysis of crime
scene samples in FY04. Re-authorizes the program through 2008,
increases funding to $75 million annually through 2007 and $25
million in 2008. Also increases grants for the analysis of DNA
samples from convicted offenders and creates new grant programs
to train sexual assault nurse examiners and improve the
collection of DNA evidence.
Results: Defeated 4 to 9.
Vote by Members: Goss--Nay; Linder--Nay; Pryce--Nay; Diaz-
Balart--Nay; Hastings (WA)--Nay; Myrick--Nay; Sessions--Nay;
Reynolds--Nay; Frost--Yea; Slaughter--Yea; McGovern--Yea;
Hastings (FL)--Yea; Dreier--Nay.
SUMMARY OF AMENDMENTS MADE IN ORDER FOR H.R. 1104--THE CHILD ABDUCTION
PREVENTION ACT OF 2003
1. Pence: Makes it a criminal act to knowingly use a
misleading domain name with the intent to deceive a person into
viewing obscenity on the Internet. Also makes it a criminal act
to knowingly use a misleading domain name with the intent to
deceive a minor into viewing material on the Internet that is
harmful to minors. A domain name that includes a word or words
to indicate the sexual content of the site is not considered
misleading. (10 minutes)
2. Feeney: Places strict limits on departures from federal
sentencing guidelines by allowing sentences outside the
guideline range only upon grounds specifically enumerated as
proper for departure. Requires courts to give specific and
written reasons for any departure from federal sentencing
guidelines. Changes the standard of review for appellate courts
to a de novo review to allow appellate courts to more
effectively review illegal and inappropriate downward
departures from federal sentencing guidelines. Prevents
sentencing courts, upon remand, from imposing the same illegal
departure on a different theory. Only allows courts to reduce a
person's sentence for ``acceptance of responsibility'' when the
government agrees with that finding. Amends sentencing
guidelines with regard to the penalties for possession of child
pornography by increasing penalties if the offense involved
material that portrays sadistic or masochistic conduct or other
depictions of violence and by increasing penalties based on the
amount of child pornography involved in the offense. (20
minutes)
3. Pomeroy: Re-authorizes grant programs within the Victims
of Child Abuse Act that provide funding to child advocacy
centers and training and technical assistance to programs to
improve the prosecution of child abuse cases. Adds tools for
the Department of Justice to evaluate these grant programs to
ensure effective use of the funds provided. (10 minutes)
4. Foley: Requires AMBER Alert coordinator to submit a
report by March 1, 2005, to Congress on the effectiveness and
status of the AMBER Alert plans that each state has
implemented. Establishes $5 million grant program to assist
states in implementing new technologies designed to improve the
dissemination of AMBER Alerts. (10 minutes)
5. Carter: Provides a feasibility study of issues relating
to background checks for volunteers of groups that work with
children, the disabled, and the elderly. (10 minutes)
6. Lampson: Provides explicit statutory jurisdiction to the
U.S. Secret Service to continue to provide forensic and
investigative support upon request from local law enforcement
or from the National Center for Missing and Exploited Children
(NCMEC). (10 minutes)
7. Acevedo-Vila: Requires certain procedures to be
established and followed when a child is reported lost or
missing in a public building. Commonly known as a ``Code Adam''
alert. (10 minutes)
8. Smith (TX): Narrows definition of child pornography in
response to Ashcroft v. the Free Speech Coalition. Creates new
obscenity offenses to cover virtual and real child pornography
that involves visual depictions of prepubescent children and
minors. Creates a new offense against pandering visual
depictions as child pornography and strengthens penalties for
repeat offenders. Includes new findings that detail the effect
of the Supreme Court decision on child pornography cases, as
well as some technical changes. Requires the Attorney General
to report on the Department of Justice's efforts to enforce the
record-keeping requirements for producers of adult material to
demonstrate they are not using minors. (20 minutes)
TEXT OF AMENDMENTS MADE IN ORDER
1. An Amendment To Be Offered by Representative Pence of Indiana, or
His Designee, Debatable for 10 Minutes
At the end of title I (page ____, after line ____), insert
the following:
SEC. 108. MISLEADING DOMAIN NAMES ON THE INTERNET.
(a) In General.--Chapter 110 of title 18, United States Code,
is amended by inserting after section 2252A the following:
``Sec. 2252B. Misleading domain names on the Internet
``(a) Whoever knowingly uses a misleading domain name with
the intent to deceive a person into viewing obscenity on the
Internet shall be fined under this title or imprisoned not more
than 2 years, or both.
``(b) Whoever knowingly uses a misleading domain name with
the intent to deceive a minor into viewing material that is
harmful to minors on the Internet shall be fined under this
title or imprisoned not more than 4 years, or both.
``(c) For the purposes of this section, a domain name that
includes a word or words to indicate the sexual content of the
site, such as `sex' or `porn', is not misleading.
``(d) For the purposes of this section, the term `material
that is harmful to minors' means any communication that--
``(1) taken as a whole and with respect to minors,
appeals to a prurient interest in nudity, sex, or
excretion;
``(2) depicts, describes, or represents, in a
patently offensive way with respect to what is suitable
for minors, an actual or simulated sexual act or sexual
contact, actual or simulated normal or perverted sexual
acts, or a lewd exhibition of the genitals; and
``(3) taken as a whole, lacks serious literary,
artistic, political, or scientific value as to
minors.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 110 of title 18, United States Code, is
amended by inserting after the time relating to section 2252A
the following new item:
``2252B. False or misleading domain names on the Internet.''.
2. An Amendment To Be Offered by Representative Feeney of Florida, or
His Designee, Debatable for 20 Minutes
At the end of title I (page ____, after line ____), insert
the following:
SEC. ____. SENTENCING REFORM.
(a) Requirement To Specify in the Guidelines the Grounds Upon
Which Downward Departures May Be Granted.--Section 3553(b) of
title 18, United States Code, is amended to read as follows:
``(b) Application of Guidelines in Imposing a Sentence.--The
court shall impose a sentence of the kind, and within the
range, referred to in subsection (a)(4) unless the court finds
that--
``(1) 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 different from that described; or
``(2) there exists a mitigating circumstance of a
kind, or to a degree, that--
``(A) 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, United States Code, taking account
of any amendments to such sentencing guidelines
or policy statements by act of Congress;
``(B) has not adequately been taken into
consideration by the Sentencing Commission in
formulating the guidelines; and
``(C) should result in a sentence different
from that described.
In determining whether a circumstance was adequately taken into
consideration, the court shall consider only the sentencing
guidelines, policy statements, and official commentary of the
Sentencing Commission, together with any amendments thereto by
act of Congress. In the absence of an applicable sentencing
guideline, the court shall impose an appropriate sentence,
having due regard for the purposes set forth in subsection
(a)(2). In the absence of an applicable sentencing guideline in
the case of an offense other than a petty offense, the court
shall also have due regard for the relationship of the sentence
imposed to sentences prescribed by guidelines applicable to
similar offenses and offenders, and to the applicable policy
statements of the Sentencing Commission, together with any
amendments to such guidelines or policy statements by act of
Congress.''.
(b) Reform of Existing Permissible Grounds of Downward
Departures.--Subject to subsection (j), the Guidelines Manual
promulgated by the Sentencing Commission pursuant to section
994(a) of title 28, United States Code, is amended as follows:
(1) Section 5K2.0 is amended as follows:
(A) Strike the first and second paragraphs of
the Commentary to section 5K2.0 in their
entireties.
(B) Strike ``departure'' every place it
appears and insert ``upward departure''.
(C) Strike ``depart'' every place it appears
and insert ``depart upward''.
(D) In the first sentence of section 5K2.0--
(i) strike ``outside'' and insert
``above'';
(ii) strike ``or mitigating''; and
(iii) strike ``Under'' and insert:
``(a) Upward Departures.--
Under''.
(E) In the last sentence of the first
paragraph of section 5K2.0, strike ``or
excessive''.
(F) Immediately before the Commentary to
section 5K2.0, insert the following:
``(b) Downward Departures.--
``Under 18 U.S.C. Sec. 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, that--
``(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,
United States Code, taking account of any amendments to
such sentencing guidelines or policy statements by act
of Congress;
``(2) has not adequately been taken into consideration
by the Sentencing Commission in formulating the
guidelines; and
``(C) 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 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 3553(b)(2) unless it is expressly
enumerated in this Part K as a ground upon which a downward
departure may be granted.''.
(2) At the end of part K of chapter 5, add the
following new sections:
``Sec. 5K2.22 Specific Offender Characteristics as Grounds for Downward
Departure (Policy Statement)
``Age may be a reason to impose a sentence below the applicable
guideline range only if and to the extent permitted by
Sec. 5H1.1.
``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 Sec. 5H1.4. Drug, alcohol, or
gambling dependence or abuse is not a reason for imposing a
sentence below the guidelines.
``Sec. 5K2.23 Early Disposition Programs as a Ground for Downward
Departure (Policy Statement)
``Upon motion of the government stating that:
``(1) due to extraordinary resource constraints, not
typical of most districts, associated with the
disproportionately high incidence of illegal reentry or
other specific offenses within a particular district,
the Attorney General has formally certified that the
district is authorized to implement an early
disposition program with respect to those specific
categories of offenses;
``(2) pursuant to such specific authorization, the
United States Attorney for the district has implemented
such an early disposition program with respect to the
category of offense for which the defendant has been
convicted;
``(3) pursuant to such an early disposition program,
the defendant, within 30 days of his or her first
appearance before a judicial officer in connection with
such a charge, entered into a plea agreement whereby he
or she agrees, inter alia--
``(A) not to file any of the motions described
in Federal Rule of Criminal Procedure 12(b)(3);
``(B) to waive appeal;
``(C) to waive the opportunity to pursue
collateral relief under 28 U.S.C. Sec. Sec.
2254 and 2555, including ineffective assistance
of counsel claims; and
``(D) if an alien, to submit to uncontested
removal from the United States upon completion
of any sentence of imprisonment;
``(4) the plea agreement contemplates that the
government will move for a downward departure based on
the defendant's prompt agreement to enter into such an
early disposition plea agreement; and
``(5) the defendant has fully satisfied the conditions
of such plea agreement,
then, if the court finds that these conditions have been met
and also finds that the defendant has received the maximum
adjustment for which he is eligible (given his offense level)
under Sec. 3E1.1, the court may depart downward from the
guidelines under this section only to the extent agreed to by
the parties in the plea agreement, which in no event shall
exceed 4 levels.
``Commentary
``Several districts, particularly on the southwest border,
have early disposition programs that allow them to process very
large numbers of cases with relatively limited resources. Such
programs are based on the premise that a defendant who promptly
agrees to participate in such a program has saved the
government significant and scarce resources that can be used in
prosecuting other defendants and has demonstrated an acceptance
of responsibility above and beyond what is already taken into
account by the adjustments contained in Sec. 3E1.1. This
section preserves the authority to grant limited departures
pursuant to such programs. In order to avoid unwarranted
sentencing disparities within a given district, any departure
under this section must be pursuant to a formal program that is
approved by the United States Attorney and that applies
generally to a specified class of offenders. Authorization for
the district to establish an early disposition program must
also have been specifically conferred by the Attorney General,
and may be granted only with respect to those particular
classes of offenses (such as illegal reentry) whose high
incidence within the district has imposed an extraordinary
strain on the resources of that district as compared to other
districts. To be eligible for the departure, the plea agreement
under the program must reflect that the defendant has agreed to
an expeditious plea, as described. A defendant who has not
received any adjustment for acceptance of responsibility under
Sec. 3E1.1 cannot receive a departure under this provision. A
defendant whose offense level makes him eligible for the
additional adjustment under Sec. 3E1.1(b), but who fails to
satisfy the requirements for such an adjustment, is likewise
ineligible for a departure under this provision. This section
does not confer authority to depart downward on an ad hoc basis
in individual cases. Moreover, because the Government's
affirmative acquiescence is essential to the fair and efficient
operation of an early disposition program, a departure under
this section may only be granted upon a formal motion by the
Government at the time of sentencing. Nothing in this section
authorizes a sentence below a statutory mandatory minimum.''.
(3) Section 5K2.20 is deleted.
(4) Section 5H1.6 and section 5H1.11 are each amended
by striking ``ordinarily'' every place it appears.-
(5) Section 5K2.13 is amended by--
(A) striking ``or'' before ``(3)''; and
(B) replacing ``public'' with ``public; or
(4) the defendant has been convicted of an
offense under chapter 71, 109A, 110, or 117 of
title 18, United States Code.''.
(c) Statement of Reasons for Imposing a Sentence.--Section
3553(c) of title 18, United States Code, is amended--
(1) by striking ``described.'' and inserting
``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.'';
(2) by inserting ``, together with the order of
judgment and commitment,'' after ``the court's
statement of reasons''; and
(3) by inserting ``and to the Sentencing
Commission,'' after ``to the Probation System''.
(d) Review of a Sentence.--
(1) Review of departures.--Section 3742(e)(3) of
title 18, United States Code, is amended to read as
follows:
``(3) is outside the applicable guideline range, and
``(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 factor
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 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''.
(2) Standard of review.--The last paragraph of
section 3742(e) of title 18, United States Code, is
amended by striking ``shall give due deference to the
district court's application of the guidelines to the
facts'' and inserting ``, except with respect to
determinations under subsection (3)(A) or (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''.
(3) Decision and disposition.--
(A) The first paragraph of section 3742(f) of
title 18, United States Code, is amended by
striking ``the sentence'';
(B) Section 3742(f)(1) of title 18, United
States Code, is amended by inserting ``the
sentence'' before ``was imposed'';
(C) Section 3742(f)(2) of title 18, United
States Code, is amended to read as follows:
``(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 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, subject to subsection
(g);
``(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);''; and
(D) Section 3742(f)(3) of title 18, United
States Code, is amended by inserting ``the
sentence'' before ``is not described''.
(e) Imposition of Sentence Upon Remand.--
Section 3742 of title 18, United States Code, is amended by
redesignating subsections (g) and (h) as subsections (h) and
(i) and by inserting the following after subsection (f):
``(g) Sentencing Upon Remand.--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 994(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
of departure.''.
(f) Definitions.--Section 3742 of title 18, United States
Code, as amended by subsection (e), is further amended by
adding at the end the following:
``(j) Definitions.--For purposes of this section--
``(1) a factor is a `permissible' ground of departure
if it--
``(A) advances the objectives set forth in
section 3553(a)(2); and
``(B) is authorized under section 3553(b);
and
``(C) is justified by the facts of the case;
and
``(2) a factor is an `impermissible' ground of
departure if it is not a permissible factor within the
meaning of subsection (j)(1).''.
(g) Reform of Guidelines Governing Acceptance of
Responsibility.--Subject to subsection (j), the Guidelines
Manual promulgated by the Sentencing Commission pursuant to
section 994(a) of title 28, United States Code, is amended--
(1) in section 3E1.1(b)--
(A) by inserting ``upon motion of the
government stating that'' immediately before
``the defendant has assisted authorities''; and
(B) by striking ``taking one or more'' and
all that follows through and including
``additional level'' and insert ``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 their resources efficiently, decrease
the offense level by 1 additional level'';
(2) in the Application Notes to the Commentary to
section 3E1.1, by amending Application Note 6--
(A) by striking ``one or both of''; and
(B) by adding the following new sentence at
the end: ``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)(2) may only be granted
upon a formal motion by the Government at the
time of sentencing.''; and
(3) in the Background to section 3E1.1, by striking
``one or more of''.
(h) Improved Data Collection.--Section 994(w) of title 28,
United States Code, is amended to read as follows:
``(w)(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, 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) any 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 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 documents, 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.''.
(i) Sentencing Guidelines Amendments.--(1) Subject to
subsection (j), the Guidelines Manual promulgated by the
Sentencing Commission pursuant to section 994(a) of title 28,
United States Code, is amended as follows:
(A) Application Note 4(b)(i) to section 4B1.5 is
amended to read as follows:
``(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.''.
(B) Section 2G2.4(b) is amended by adding at the end
the following:
``(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
``(D) 600 or more images, increase by 5
levels.''.
(C) Section 2G2.2(b) is amended by adding at the end
the following:
``(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
``(D) 600 or more images, increase by 5
levels.''.
(2) The Sentencing Commission shall amend the Sentencing
Guidelines to ensure that the Guidelines adequately reflect the
seriousness of the offenses under sections 2243(b), 2244(a)(4),
and 2244(b) of title 18, United States Code.
(j) Conforming Amendments.--
(1) Upon enactment of this Act, the Sentencing
Commission shall forthwith distribute to all courts of
the United States and to the United States Probation
System the amendments made by subsections (b), (g), and
(i) of this section to the sentencing guidelines,
policy statements, and official commentary of the
Sentencing Commission. These amendments shall take
effect upon the date of enactment of this Act, in
accordance with paragraph (5).
(2) On or before May 1, 2005, the Sentencing
Commission shall not promulgate any amendment to the
sentencing guidelines, policy statements, or official
commentary of the Sentencing Commission that is
inconsistent with any amendment made by subsection (b)
or that adds any new grounds of downward departure to
Part K of chapter 5. At no time may the Commission
promulgate any amendment that would alter or repeal
section 5K2.23 of the Federal Sentencing Guidelines
Manual, as added by subsection (b).
(3) With respect to cases covered by the amendments
made by subsection (i) of this section, the Sentencing
Commission may make further amendments to the
sentencing guidelines, policy statements, or official
commentary of the Sentencing Commission, except the
Commission shall not promulgate any amendments that,
with respect to such cases, would result in sentencing
ranges that are lower than those that would have
applied under such subsections.
(4) At no time may the Commission promulgate any
amendment that would alter or repeal the amendments
made by subsection (g) of this section.
(5) Section 3553(a) of title 18, United States Code,
is amended--
(A) by amending paragraph (4)(A) to read as
follows:
``(A) the applicable category of offense
committed by the applicable category of
defendant as set forth in the guidelines--
``(i) issued by the Sentencing
Commission pursuant to section
994(a)(1) of title 28, United States
Code, subject to any amendments made to
such guidelines by act of Congress
(regardless of whether such amendments
have yet to be incorporated by the
Sentencing Commission into amendments
issued under section 994(p) of title
28); and
``(ii) that, except as provided in
section 3742(g), are in effect on the
date the defendant is sentenced; or'';
(B) in paragraph (4)(B), by inserting ``,
taking into account any amendments made to such
guidelines or policy statements by act of
Congress (regardless of whether such amendments
have yet to be incorporated by the Sentencing
Commission into amendments issued under section
994(p) of title 28)'' after ``Code'';
(C) by amending paragraph (5) to read as
follows:
``(5) any pertinent policy statement--
``(A) issued by the Sentencing Commission
pursuant to section 994(a)(1) of title 28,
United States Code, subject to any amendments
made to such policy statement by act of
Congress (regardless of whether such amendments
have yet to be incorporated by the Sentencing
Commission into amendments issued under section
994(p) of title 28); and
``(B) that, except as provided in section
3742(g), is in effect on the date the defendant
is sentenced.''.
(k) Compliance With Statute.--Section 994(a) of title 28,
United States Code, is amended by striking ``consistent with
all provisions of this title and title 18, United States
Code,'' and inserting ``consistent with all pertinent
provisions of any Federal statute''.
(l) Report by the Attorney General.--
(1) 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 Sentencing Guidelines, the Attorney General shall
report to the House and Senate Committees on the
Judiciary, setting forth the case, the facts involved,
the identity of the district court judge, the district
court's stated reasons, whether or not the court
provided the United States with advance notice of its
intention to depart, 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; whether or not the defendant has
filed a notice of appeal concerning any aspect of the
case, and whether or not the United States has filed,
or intends to file, a notice of appeal of the departure
pursuant to section 3742 of the title 18, United States
Code.
(2) In any such case, the Attorney General shall
thereafter report to the House and Senate Committees on
the Judiciary not later than 5 days after a decision by
the Solicitor General whether or not to authorize an
appeal of the departure, informing the committees of
the decision and the basis for it.
3. An Amendment To Be Offered by Representative Pomeroy of North
Dakota, or His Designee, Debatable for 10 Minutes
At the end of subtitle B of title II (page ____, after line
____), insert the following new section:
SEC. ____. INFORMATION AND DOCUMENTATION REQUIRED BY ATTORNEY GENERAL
UNDER VICTIMS OF CHILD ABUSE ACT OF 1990.
(a) Regional Children's Advocacy Centers.--
(1) In general.--Section 213 of the Victims of Child
Abuse Act of 1990 (42 U.S.C. 13001b) is amended--
(A) in subsection (b)(2)--
(i) by striking ``and'' at the end of
subparagraph (A);
(ii) by striking the period at the
end of subparagraph (B) and inserting
``; and''; and
(iii) by adding at the end the
following new subparagraph:
``(C) provide such information and
documentation as the Attorney General shall
require on an annual basis regarding the use of
such funds for purposes of evaluation of the
effect of grants on the community response to
child abuse.''; and
(B) in subsection (d)(3)(A), by inserting
after ``activities'' the following: ``or
substantially fails to provide information or
documentation required by the Attorney
General''.
(2) Clerical amendments.--Such section is further
amended--
(A) in subsection (c)(4)--
(i) by striking ``and'' at the end of
subparagraph (B)(ii);
(ii) in subparagraph (B)(iii), by
striking ``Board'' and inserting
``board''; and
(iii) by redesignating subparagraphs
(C) and (D) as clauses (iv) and (v),
respectively, of subparagraph (B), and
by realigning such clauses so as to
have the same indentation as the
preceding clauses of subparagraph (B);
(B) in subsection (e), by striking ``Board''
in each of paragraphs (1)(B)(ii), (2)(A), and
(3), and inserting ``board''.
(b) Local Children's Advocacy Centers.--Section 214 of that
Act (42 U.S.C. 13002) is amended in subsection (b)(2)(J) by
inserting before the period at the end the following: ``,
including such information and documentation as the Attorney
General shall require on an annual basis regarding the use of
such funds for purposes of evaluation of the effect of grants
on the community response to child abuse.''.
(c) Grants for Specialized Technical Assistance and Training
Programs.--Section 214A of such Act (42 U.S.C. 13003) is
amended in subsection (c) by adding at the end the following
new paragraph:
``(3) Any recipient of a grant under this section
shall provide such information and documentation as the
Attorney General shall require on an annual basis
regarding the use of such funds for purposes of
evaluation of the effect of grants on the community
response to child abuse.''.
(d) Authorization of Appropriations.--The text of section
214B of such Act (42 U.S.C. 13004) is amended to read as
follows:
``(a) Sections 213 and 214.--There are authorized to be
appropriated to carry out sections 213 and 214, $15,000,000 for
each of fiscal years 2004 and 2005.
``(b) Section 214A.--There are authorized to be appropriated
to carry out section 214A, $5,000,000 for each of fiscal years
2004 and 2005.''.
4. An Amendment To Be Offered by Representative Foley of Florida, or
His Designee, Debatable for 10 Minutes
At the end of section 301 of the bill, insert the following:
(e) Report.--Not later than March 1, 2005, the Coordinator
shall submit to Congress a report on the activities of the
Coordinator and the effectiveness and status of the AMBER plans
of each State that has implemented such a plan. The Coordinator
shall prepare the report in consultation with the Secretary of
Transportation.
In section 304(b) of the bill, strike ``and'' at the end of
paragraph (2), redesignate paragraph (3) as paragraph (4), and
insert after paragraph (2) the following:
(3) the development and implementation of new
technologies to improve AMBER Alert communications; and
In section 304(f)(1) of the bill, strike the period at the
end insert the following:
and, in addition, $5,000,000 for fiscal year 2004 to carry out
subsection (b)(3).
5. An Amendment To Be Offered by Representative Carter of Texas, or His
Designee, Debatable for 10 Minutes
Add at the end the following:
SEC. ____. FEASIBILITY STUDY FOR A SYSTEM OF BACKGROUND CHECKS FOR
VOLUNTEERS.
(a) Study Required.--The Attorney General shall conduct a
feasibility study within 120 days after the date of the
enactment of this Act. The study shall examine, to the extent
discernible, the following:
(1) The current state of fingerprint capture and
processing at the State and local level, including the
current available infrastructure, State system
capacities, and the time for each State to process a
civil or volunteer print from the time of capture to
submission to the Federal Bureau of Investigation
(FBI).
(2) The intent of the States concerning participation
in a nationwide system of criminal background checks to
provide information to qualified entities.
(3) The number of volunteers, employees, and other
individuals that would require a fingerprint based
criminal background check.
(4) The impact on the FBI's Integrated Automated
Fingerprint Identification System (IAFIS) in terms of
capacity and impact on other users of the system,
including the effect on FBI work practices and staffing
levels.
(5) The current fees charged by the FBI, States and
local agencies, and private companies to process
fingerprints.
(6) The existence of ``model'' or best practice
programs which could easily be expanded and duplicated
in other States.
(7) The extent to which private companies are
currently performing background checks and the
possibility of using private companies in the future to
perform any of the background check process, including,
but not limited to, the capture and transmission of
fingerprints and fitness determinations.
(8) The cost of development and operation of the
technology and the infrastructure necessary to
establish a nationwide fingerprint based and other
criminal background check system.
(9) Any other information deemed relevant by the
Department of Justice.
(b) Report.--Based on the findings of the feasibility study,
the Attorney General shall, not later than 120 days after the
date of the enactment of this Act, submit to Congress a report,
including recommendations, which may include a proposal for
grants to the States to develop or improve programs to collect
fingerprints and perform background checks on individuals that
seek to volunteer with organizations that work with children,
the elderly, or the disabled.
6. An Amendment To Be Offered by Representative Lampson of Texas, or
His Designee, Debatable for 10 Minutes
Add at the end the following:
SEC. ____. FORENSIC AND INVESTIGATIVE SUPPORT OF MISSING AND EXPLOITED
CHILDREN.
Section 3056 of title 18, United States Code, is amended by
adding at the end the following:
``(f) Under the direction of the Secretary of the Treasury,
officers and agents of the Secret Service are authorized, at
the request of any State or local law enforcement agency, or at
the request of the National Center for Missing and Exploited
Children, to provide forensic and investigative assistance in
support of any investigation involving missing or exploited
children.''.
7. An Amendment To Be Offered by Resident Commissioner Acevedo-Vila of
Puerto Rico, or His Designee, Debatable for 10 Minutes
At the end of the bill, add the following:
TITLE IV--MISSING CHILDREN PROCEDURES IN PUBLIC BUILDINGS
SEC. 401. SHORT TITLE.
This title may be cited as the ``Code Adam Act''.
SEC. 402. DEFINITIONS.
In this title, the following definitions apply:
(1) Child.--The term ``child'' means an individual
who is 17 years of age or younger.
(2) Code adam alert.--The term ``Code Adam alert''
means a set of procedures used in public buildings to
alert employees and other users of the building that a
child is missing.
(3) Designated authority.--The term ``designated
authority'' means--
(A) with respect to a public building owned
or leased for use by an Executive agency--
(i) except as otherwise provided in
this paragraph, the Administrator of
General Services;
(ii) in the case of the John F.
Kennedy Center for the Performing Arts,
the Board of Trustees of the John F.
Kennedy Center for the Performing Arts;
(iii) in the case of buildings under
the jurisdiction, custody, and control
of the Smithsonian Institution, the
Board of Regents of the Smithsonian
Institution; or
(iv) in the case of another public
building for which an Executive agency
has, by specific or general statutory
authority, jurisdiction, custody, and
control over the building, the head of
that agency;
(B) with respect to a public building owned
or leased for use by an establishment in the
judicial branch of government, the
Administrative Office of the United States
Courts; and
(C) with respect to a public building owned
or leased for use by an establishment in the
legislative branch of government, the Capitol
Police Board.
(4) Executive agency.--The term ``Executive agency''
has the same meaning such term has under section 105 of
title 5, United States Code.
(5) Federal agency.--The term ``Federal agency''
means any Executive agency or any establishment in the
legislative or judicial branches of the Government.
(6) Public building.--The term ``public building''
means any building (or portion thereof) owned or leased
for use by a Federal agency.
SEC. 403. PROCEDURES IN PUBLIC BUILDINGS REGARDING A MISSING OR LOST
CHILD.
(a) In General.--Not later than 180 days after the date of
enactment of this Act, the designated authority for a public
building shall establish procedures for locating a child that
is missing in the building.
(b) Notification and Search Procedures.--Procedures
established under this section shall provide, at a minimum, for
the following:
(1) Notifying security personnel that a child is
missing.
(2) Obtaining a detailed description of the child,
including name, age, eye and hair color, height,
weight, clothing, and shoes.
(3) Issuing a Code Adam alert and providing a
description of the child, using a fast and effective
means of communication.
(4) Establishing a central point of contact.
(5) Monitoring all points of egress from the building
while a Code Adam alert is in effect.
(6) Conducting a thorough search of the building.
(7) Contacting local law enforcement.
(8) Documenting the incident.
8. An Amendment To Be Offered by Representative Smith of Texas, or His
Designee, Debatable for 20 Minutes
Add at the end the following:
TITLE ____--
SEC. ____01. FINDINGS.
Congress finds the following:
(1) Obscenity and child pornography are not entitled
to protection under the First Amendment under Miller v.
California, 413 U.S. 15 (1973) (obscenity), or New York
v. Ferber, 458 U.S. 747 (1982) (child pornography) and
thus may be prohibited.
(2) The Government has a compelling state interest in
protecting children from those who sexually exploit
them, including both child molesters and child
pornographers. ``The prevention of sexual exploitation
and abuse of children constitutes a government
objective of surpassing importance,'' New York v.
Ferber, 458 U.S. 747, 757 (1982), and this interest
extends to stamping out the vice of child pornography
at all levels in the distribution chain. Osborne v.
Ohio, 495 U.S. 103, 110 (1990).
(3) The Government thus has a compelling interest in
ensuring that the criminal prohibitions against child
pornography remain enforceable and effective. ``The
most expeditious if not the only practical method of
law enforcement may be to dry up the market for this
material by imposing severe criminal penalties on
persons selling, advertising, or otherwise promoting
the product.'' Ferber, 458 U.S. at 760.
(4) In 1982, when the Supreme Court decided Ferber,
the technology did not exist to:
(A) computer generate depictions of children
that are indistinguishable from depictions of
real children;
(B) use parts of images of real children to
create a composite image that is unidentifiable
as a particular child and in a way that
prevents even an expert from concluding that
parts of images of real children were used; or
(C) disguise pictures of real children being
abused by making the image look computer-
generated.
(5) Evidence submitted to the Congress, including
from the National Center for Missing and Exploited
Children, demonstrates that technology already exists
to disguise depictions of real children to make them
unidentifiable and to make depictions of real children
appear computer-generated. The technology will soon
exist, if it does not already, to computer generate
realistic images of children.
(6) The vast majority of child pornography
prosecutions today involve images contained on computer
hard drives, computer disks, and/or related media.
(7) There is no substantial evidence that any of the
child pornography images being trafficked today were
made other than by the abuse of real children.
Nevertheless, technological advances since Ferber have
led many criminal defendants to suggest that the images
of child pornography they possess are not those of real
children, insisting that the government prove beyond a
reasonable doubt that the images are not computer-
generated. Such challenges increased significantly
after the decision in Ashcroft v. Free Speech Coalition
535 U.S. 234 (2002).
(8) Child pornography circulating on the Internet
has, by definition, been digitally uploaded or scanned
into computers and has been transferred over the
Internet, often in different file formats, from
trafficker to trafficker. An image seized from a
collector of child pornography is rarely a first-
generation product, and the retransmission of images
can alter the image so as to make it difficult for even
an expert conclusively to opine that a particular image
depicts a real child. If the original image has been
scanned from a paper version into a digital format,
this task can be even harder since proper forensic
assessment may depend on the quality of the image
scanned and the tools used to scan it.
(9) The impact of the Free Speech Coalition decision
on the Government's ability to prosecute child
pornography offenders is already evident. The Ninth
Circuit has seen a significant adverse effect on
prosecutions since the 1999 Ninth Circuit Court of
Appeals decision in Free Speech Coalition. After that
decision, prosecutions generally have been brought in
the Ninth Circuit only in the most clear-cut cases in
which the government can specifically identify the
child in the depiction or otherwise identify the origin
of the image. This is a fraction of meritorious child
pornography cases. The National Center for Missing and
Exploited Children testified that, in light of the
Supreme Court's affirmation of the Ninth Circuit
decision, prosecutors in various parts of the country
have expressed concern about the continued viability of
previously indicted cases as well as declined
potentially meritorious prosecutions.
(10) Since the Supreme Court's decision in Free
Speech Coalition, defendants in child pornography cases
have almost universally raised the contention that the
images in question could be virtual, thereby requiring
the government, in nearly every child pornography
prosecution, to find proof that the child is real. Some
of these defense efforts have already been successful.
In addition, the number of prosecutions being brought
has been significantly and adversely affected as the
resources required to be dedicated to each child
pornography case now are significantly higher than ever
before.
(11) Leading experts agree that, to the extent that
the technology exists to computer generate realistic
images of child pornography, the cost in terms of time,
money, and expertise is--and for the foreseeable future
will remain--prohibitively expensive. As a result, for
the foreseeable future, it will be more cost-effective
to produce child pornography using real children. It
will not, however, be difficult or expensive to use
readily available technology to disguise those
depictions of real children to make them unidentifiable
or to make them appear computer-generated.
(12) Child pornography results from the abuse of real
children by sex offenders; the production of child
pornography is a byproduct of, and not the primary
reason for, the sexual abuse of children. There is no
evidence that the future development of easy and
inexpensive means of computer generating realistic
images of children would stop or even reduce the sexual
abuse of real children or the practice of visually
recording that abuse.
(13) In the absence of congressional action, the
difficulties in enforcing the child pornography laws
will continue to grow increasingly worse. The mere
prospect that the technology exists to create composite
or computer-generated depictions that are
indistinguishable from depictions of real children will
allow defendants who possess images of real children to
escape prosecution; for it threatens to create a
reasonable doubt in every case of computer images even
when a real child was abused. This threatens to render
child pornography laws that protect real children
unenforceable. Moreover, imposing an additional
requirement that the Government prove beyond a
reasonable doubt that the defendant knew that the image
was in fact a real child--as some courts have done--
threatens to result in the de facto legalization of the
possession, receipt, and distribution of child
pornography for all except the original producers of
the material.
(14) To avoid this grave threat to the Government's
unquestioned compelling interest in effective
enforcement of the child pornography laws that protect
real children, a statute must be adopted that prohibits
a narrowly-defined subcategory of images.
(15) The Supreme Court's 1982 Ferber v. New York
decision holding that child pornography was not
protected drove child pornography off the shelves of
adult bookstores. Congressional action is necessary now
to ensure that open and notorious trafficking in such
materials does not reappear, and even increase, on the
Internet.
SEC. ____02. IMPROVEMENTS TO PROHIBITION ON VIRTUAL CHILD PORNOGRAPHY.
(a) Section 2256(8)(B) of title 18, United States Code, is
amended to read as follows:
``(B) such visual depiction is a digital
image, computer image, or computer-generated
image that is, or is indistinguishable (as
defined in section 1466A) from, that of a minor
engaging in sexually explicit conduct; or''.
(b) Section 2256(2) of title 18, United States Code, is
amended to read as follows:
``(2)(A) Except as provided in subparagraph (B),
`sexually explicit conduct' means actual or simulated--
``(i) sexual intercourse, including genital-
genital, oral-genital, anal-genital, or oral-
anal, whether between persons of the same or
opposite sex;
``(ii) bestiality;
``(iii) masturbation;
``(iv) sadistic or masochistic abuse; or
``(v) lascivious exhibition of the genitals
or pubic area of any person;
``(B) For purposes of subsection 8(B) of this
section, `sexually explicit conduct' means--
``(i) graphic sexual intercourse, including
genital-genital, oral-genital, anal-genital, or
oral-anal, whether between persons of the same
or opposite sex, or lascivious simulated sexual
intercourse where the genitals, breast, or
pubic area of any person is exhibited;
``(ii) graphic or lascivious simulated;
``(I) bestiality;
``(II) masturbation; or
``(III) sadistic or masochistic
abuse; or
``(iii) graphic or simulated lascivious
exhibition of the genitals or pubic area of any
person;''.
(c) Section 2256 is amended--
(1) in paragraph 8(D), by striking ``and'' at the
end;
(2) in paragraph (9), by striking the period at the
end and inserting ``; and''; and
(3) by inserting at the end the following new
paragraph:
``(10) `graphic', when used with respect to a
depiction of sexually explicit conduct, means that a
viewer can observe any part of the genitals or pubic
area of any depicted person or animal during any part
of the time that the sexually explicit conduct is being
depicted.''.
(d) Section 2252A(c) of title 18, United States Code, is
amended to read as follows:
``(c)(1) Except as provided in paragraph (2), it shall be an
affirmative defense to a charge of violating this section that
the production of the alleged child pornography did not involve
the use of a minor or an attempt or conspiracy to commit an
offense under this section involving such use.
``(2) A violation of, or an attempt or conspiracy to violate,
this section which involves child pornography as defined in
section 2256(8)(A) or (C) shall be punishable without regard to
the affirmative defense set forth in paragraph (1).''.
SEC. ____03. PROHIBITION ON PANDERING MATERIALS AS CHILD PORNOGRAPHY.
(a) Section 2256(8) of title 18, United States Code, is
amended--
(1) in subparagraph (C), by striking ``or'' at the
end and inserting ``and''; and
(2) by striking subparagraph (D).
(b) Chapter 110 of title 18, United States Code, is amended--
(1) by inserting after section 2252A the following:
``Sec. 2252B. Pandering and solicitation
``(a) Whoever, in a circumstance described in subsection (d),
offers, agrees, attempts, or conspires to provide or sell a
visual depiction to another, and who in connection therewith
knowingly advertises, promotes, presents, or describes the
visual depiction with the intent to cause any person to believe
that the material is, or contains, a visual depiction of an
actual minor engaging in sexually explicit conduct shall be
subject to the penalties set forth in section 2252A(b)(1),
including the penalties provided for cases involving a prior
conviction.
``(b) Whoever, in a circumstance described in subsection (d),
offers, agrees, attempts, or conspires to receive or purchase
from another a visual depiction that he believes to be, or to
contain, a visual depiction of an actual minor engaging in
sexually explicit conduct shall be subject to the penalties set
forth in section 2252A(b)(1), including the penalties provided
for cases involving a prior conviction.
``(c) It is not a required element of any offense under this
section that any person actually provide, sell, receive,
purchase, possess, or produce any visual depiction.
``(d) The circumstance referred to in subsection (a) and (b)
is that--
``(1) any communication involved in or made in
furtherance of the offense is communicated or
transported by the mail, or in interstate or foreign
commerce by any means, including by computer, or any
means or instrumentality of interstate or foreign
commerce is otherwise used in committing or in
furtherance of the commission of the offense;
``(2) any communication involved in or made in
furtherance of the offense contemplates the
transmission or transportation of a visual depiction by
the mail, or in interstate or foreign commerce by any
means, including by computer;
``(3) any person who travels or is transported in
interstate or foreign commerce in the course of the
commission or in furtherance of the commission of the
offense;
``(4) any visual depiction involved in the offense
has been mailed, or has been shipped or transported in
interstate or foreign commerce by any means, including
by computer, or was produced using materials that have
been mailed, or that have been shipped or transported
in interstate or foreign commerce by any means,
including by computer; or
``(5) the offense is committed in the special
maritime and territorial jurisdiction of the United
States or in any territory or possession of the United
States.''; and
(2) in the table of sections at the beginning of the
chapter, by inserting after the item relating to
section 2252A the following:
``2252B. Pandering and solicitation.''.
SEC. ____04. PROHIBITION OF OBSCENITY DEPICTING YOUNG CHILDREN.
(a) Chapter 71 of title 18, United States Code, is amended--
(1) by inserting after section 1466 the following:
``Sec. 1466A. Obscene visual depictions of young children
``(a) Whoever, in a circumstance described in subsection (d),
knowingly produces, distributes, receives, or possesses with
intent to distribute a visual depiction that is, or is
indistinguishable from, that of a pre-pubescent child engaging
in sexually explicit conduct, or attempts or conspires to do
so, shall be subject to the penalties set forth in section
2252A(b)(1), including the penalties provided for cases
involving a prior conviction.
``(b) Whoever, in a circumstance described in subsection (d),
knowingly possesses a visual depiction that is, or is
indistinguishable from, that of a pre-pubescent child engaging
in sexually explicit conduct, or attempts or conspires to do
so, shall be subject to the penalties set forth in section
2252A(b)(2), including the penalties provided for cases
involving a prior conviction.
``(c) For purposes of this section--
``(1) the term `visual depiction' includes
undeveloped film and videotape, and data stored on
computer disk or by electronic means which is capable
of conversion into a visual image, and also includes
any photograph, film, video, picture, or computer or
computer-generated image or picture, whether made or
produced by electronic, mechanical, or other means;
``(2) the term `pre-pubescent child' means that (A)
the child, as depicted, is one whose physical
development indicates the child is 12 years of age or
younger; or (B) the child, as depicted, does not
exhibit significant pubescent physical or sexual
maturation. Factors that may be considered in
determining significant pubescent physical maturation
include body habitus and musculature, height and weight
proportion, degree of hair distribution over the body,
extremity proportion with respect to the torso, and
dentition. Factors that may be considered in
determining significant pubescent sexual maturation
include breast development, presence of axillary hair,
pubic hair distribution, and visible growth of the
sexual organs;
``(3) the term `sexually explicit conduct' has the
meaning set forth in section 2256(2); and
``(4) the term `indistinguishable' used with respect
to a depiction, means virtually indistinguishable, in
that the depiction is such that an ordinary person
viewing the depiction would conclude that the depiction
is of an actual minor engaged in sexually explicit
conduct. This definition does not apply to depictions
that are drawings, cartoons, sculptures, or paintings
depicting minors or adults.
``(d) The circumstance referred to in subsections (a) and (b)
is that--
``(1) any communication involved in or made in
furtherance of the offense is communicated or
transported by the mail, or in interstate or foreign
commerce by any means, including by computer, or any
means or instrumentality of interstate or foreign
commerce is otherwise used in committing or in
furtherance of the commission of the offense;
``(2) any communication involved in or made in
furtherance of the offense contemplates the
transmission or transportation of a visual depiction by
the mail, or in interstate or foreign commerce by any
means, including by computer;
``(3) any person travels or is transported in
interstate or foreign commerce in the course of the
commission or in furtherance of the commission of the
offense;
``(4) any visual depiction involved in the offense
has been mailed, or has been shipped or transported in
interstate or foreign commerce by any means, including
by computer, or was produced using materials that have
been mailed, or that have been shipped or transported
in interstate or foreign commerce by any means,
including by computer; or
``(5) the offense is committed in the special
maritime and territorial jurisdiction of the United
States or in any territory or possession of the United
States.
``(e) In a case under subsection (b), it is an affirmative
defense that the defendant--
``(1) possessed less than three such images; and
``(2) promptly and in good faith, and without
retaining or allowing any person, other than a law
enforcement agency, to access any image or copy
thereof--
``(A) took reasonable steps to destroy each
such image; or
``(B) reported the matter to a law
enforcement agency and afforded that agency
access to each such image.
``Sec. 1466B. Obscene visual representations of sexual abuse of minors
``(a) Whoever, in a circumstance described in subsection (e),
knowingly produces, distributes, receives, or possesses with
intent to distribute a visual depiction of any kind, including
a drawing, cartoon, sculpture, or painting, that--
``(1) depicts a minor engaging in sexually explicit
conduct; and
``(2) is obscene;
or attempts or conspires to do so, shall be subject to the
penalties set forth in section 2252A(b)(1), including the
penalties provided for cases involving a prior conviction.
``(b) Whoever, in a circumstance described in subsection (e),
knowingly possesses a visual depiction of any kind, including a
drawing, cartoon, sculpture, or painting, that--
``(1) depicts a minor child engaging in sexually
explicit conduct, and
``(2) is obscene,
or attempts or conspires to do so, shall be subject to the
penalties set forth in section 2252A(b)(2), including the
penalties provided for cases involving a prior conviction.
``(c) It is not a required element of any offense under this
section that the minor child depicted actually exist.
``(d) For purposes of this section, the terms `visual
depiction' has the meaning given that term in section 1466A,
and the terms `sexually explicit conduct' and `minor' have the
meanings given those terms in section 2256(2)(B).
``(e) The circumstance referred to in subsection (a) and (b)
is that--
``(1) any communication involved in or made in
furtherance of the offense is communicated or
transported by the mail, or in interstate or foreign
commerce by any means, including by computer, or any
means or instrumentality of interstate or foreign
commerce is otherwise used in committing or in
furtherance of the commission of the offense;
``(2) any communication involved in or made in
furtherance of the offense contemplates the
transmission or transportation of a visual depiction by
the mail, or in interstate or foreign commerce by any
means, including by computer;
``(3) any person travels or is transported in
interstate or foreign commerce in the course of the
commission or in furtherance of the commission of the
offense;
``(4) any visual depiction involved in the offense
has been mailed, or has been shipped or transported in
interstate or foreign commerce by any means, including
by computer, or was produced using materials that have
been mailed, or that have been shipped or transported
in interstate or foreign commerce by any means,
including by computer; or
``(5) the offense is committed in the special
maritime and territorial jurisdiction of the United
States or in any territory or possession of the United
States.
``(f) In a case under subsection (b), it is an affirmative
defense that the defendant--
``(1) possessed less than three such images; and
``(2) promptly and in good faith, and without
retaining or allowing any person, other than a law
enforcement agency, to access any image or copy
thereof--
``(A) took reasonable steps to destroy each
such image; or
``(B) reported the matter to a law
enforcement agency and afforded that agency
access to each such image.''; and
(2) in table of sections at the beginning of the
chapter, by inserting after the item relating to
section 1466 the following new items:
``1466A. Obscene visual depictions of young children.
``1466B. Obscene visual representations of pre-pubescent sexual
abuse.''.
(b)(1) Except as provided in paragraph (2), the applicable
category of offense to be used in determining the sentencing
range referred to in section 3553(a)(4) of title 18, United
States Code, with respect to any person convicted under section
1466A or 1466B of such title, shall be the category of offenses
described in section 2G2.2 of the Sentencing Guidelines.
(2) The Sentencing Commission may promulgate guidelines
specifically governing offenses under sections 1466A and 1466B
of title 18, United States Code, provided that such guidelines
shall not result in sentencing ranges that are lower than those
that would have applied under paragraph (1).
SEC. ____05. PROHIBITION ON USE OF MATERIALS TO FACILITATE OFFENSES
AGAINST MINORS.
Chapter 71 of title 18, United States Code, is amended--
(1) by inserting at the end the following:
``Sec. 1471. Use of obscene material or child pornography to facilitate
offenses against minors
``(a) Whoever, in any circumstance described in subsection
(c), knowingly--
``(1) provides or shows to a person below the age of
16 years any visual depiction that is, or is
indistinguishable from, that of a pre-pubescent child
engaging in sexually explicit conduct, any obscene
matter, or any child pornography; or
``(2) provides or shows any obscene matter or child
pornography, or any visual depiction that is, or is
indistinguishable from, that of a pre-pubescent child
engaging in sexually explicit conduct, or provides any
other material assistance to any person in connection
with any conduct, or any attempt, incitement,
solicitation, or conspiracy to engage in any conduct,
that involves a minor and that violates chapter 109A,
110, or 117, or that would violate chapter 109A if the
conduct occurred in the special maritime and
territorial jurisdiction of the United States,
shall be subject to the penalties set forth in section
2252A(b)(1), including the penalties provided for cases
involving a prior conviction.
``(b) For purposes of this section--
``(1) the term `child pornography' has the meaning
set forth in section 2256(8);
``(2) the terms `visual depiction', `pre-pubescent
child', and `indistinguishable' have the meanings
respectively set forth for those terms in section
1466A(c); and
``(3) the term `sexually explicit conduct' has the
meaning set forth in section 2256(2).
``(c) The circumstance referred to in subsection (a) is
that--
``(1) any communication involved in or made in
furtherance of the offense is communicated or
transported by the mail, or in interstate or foreign
commerce by any means, including by computer, or any
means or instrumentality of interstate or foreign
commerce is otherwise used in committing or in
furtherance of the commission of the offense;
``(2) any communication involved in or made in
furtherance of the offense contemplates the
transmission or transportation of a visual depiction or
obscene matter by the mail, or in interstate or foreign
commerce by any means, including by computer;
``(3) any person travels or is transported in
interstate or foreign commerce in the course of the
commission or in furtherance of the commission of the
offense;
``(4) any visual depiction or obscene matter involved
in the offense has been mailed, or has been shipped or
transported in interstate or foreign commerce by any
means, including by computer, or was produced using
materials that have been mailed, or that have been
shipped or transported in interstate or foreign
commerce by any means, including by computer; or
``(5) the offense is committed in the special
maritime and territorial jurisdiction of the United
States or in any territory or possession of the United
States.''; and
(2) in the table of sections at the beginning of the
chapter, by inserting at the end the following:
``1471. Use of obscene material or child pornography to facilitate
offenses against minors.''.
SEC. ____06. EXTRATERRITORIAL PRODUCTION OF CHILD PORNOGRAPHY FOR
DISTRIBUTION IN THE UNITED STATES.
Section 2251 is amended--
(1) by striking ``subsection (d)'' each place it
appears in subsections (a), (b), and (c) and inserting
``subsection (e)'';
(2) by redesignating subsections (c) and (d),
respectively, as subsections (d) and (e); and
(3) by inserting after subsection (b) a new
subsection (c) as follows:
``(c)(1) Any person who, in a circumstance described in
paragraph (2), employs, uses, persuades, induces, entices, or
coerces any minor to engage in, or who has a minor assist any
other person to engage in, any sexually explicit conduct
outside of the United States, its possessions and Territories,
for the purpose of producing any visual depiction of such
conduct, shall be punished as provided under subsection (e).
``(2) The circumstance referred to in paragraph (1) is that--
``(A) the person intends such visual depiction to be
transported to the United States, its possessions, or
territories, by any means including by computer or
mail; or
``(B) the person transports such visual depiction to,
or otherwise makes it available within, the United
States, its possessions, or territories, by any means
including by computer or mail.''.
SEC. ____07. STRENGTHENING ENHANCED PENALTIES FOR REPEAT OFFENDERS.
Sections 2251(e) (as redesignated by section ____06(2)),
2252(b), and 2252A(b) of title 18, United States Code, are each
amended--
(1) by inserting ``chapter 71,'' immediately before
each occurrence of ``chapter 109A,''; and
(2) by inserting ``or under section 920 of title 10
(article 120 of the Uniform Code of Military
Justice),'' immediately before each occurrence of ``or
under the laws''.
SEC. ____08. SERVICE PROVIDER REPORTING OF CHILD PORNOGRAPHY AND
RELATED INFORMATION.
(a) Section 227 of the Victims of Child Abuse Act of 1990 (42
U.S.C. 13032) is amended--
(1) in subsection (b)(1)--
(A) by inserting ``2252B,'' after ``2252A,'';
and
(B) by inserting ``or a violation of section
1466A or 1466B of that title,'' after ``of that
title),'';
(2) in subsection (c), by inserting ``or pursuant
to'' after ``to comply with'';
(3) by amending subsection (f)(1)(D) to read as
follows:
``(D) where the report discloses a violation
of State criminal law, to an appropriate
official of a State or subdivision of a State
for the purpose of enforcing such State law.'';
(4) by redesignating paragraph (3) of subsection (b)
as paragraph (4); and
(5) by inserting after paragraph (2) of subsection
(b) the following new paragraph:
``(3) In addition to forwarding such reports to those
agencies designated in subsection (b)(2), the National
Center for Missing and Exploited Children is authorized
to forward any such report to an appropriate official
of a state or subdivision of a state for the purpose of
enforcing state criminal law.''.
(b) Section 2702 of title 18, United States Code is amended--
(1) in subsection (b)--
(A) in paragraph (6)--
(i) by inserting ``or'' at the end of
subparagraph (A)(ii);
(ii) by striking subparagraph (B);
and
(iii) by redesignating subparagraph
(C) as subparagraph (B);
(B) by redesignating paragraph (6) as
paragraph (7);
(C) by striking ``or'' at the end of
paragraph (5); and
(D) by inserting after paragraph (5) the
following new paragraph:
``(6) to the National Center for Missing and
Exploited Children, in connection with a report
submitted thereto under section 227 of the Victims of
Child Abuse Act of 1990 (42 U.S.C. 13032); or''; and
(2) in subsection (c)--
(A) by striking ``or'' at the end of
paragraph (4);
(B) by redesignating paragraph (5) as
paragraph (6); and
(C) by adding after paragraph (4) the
following new paragraph:
``(5) to the National Center for Missing and
Exploited Children, in connection with a report
submitted thereto under section 227 of the Victims of
Child Abuse Act of 1990 (42 U.S.C. 13032); or''.
SEC. ____09. SEVERABILITY.
If any provision of this title, or the application of such
provision to any person or circumstance, is held invalid, the
remainder of this title, and the application of such provision
to other persons not similarly situated or to other
circumstances, shall not be affected by such invalidation.
SEC. ____10. INVESTIGATIVE AUTHORITY RELATING TO CHILD PORNOGRAPHY.
Section 3486(a)(1)(C)(i) of title 18, United States Code, is
amended by striking ``the name, address'' and all that follows
through ``subscriber or customer utilized'' and inserting ``the
information specified in section 2703(c)(2)''.
SEC. ____11. AUTHORIZATION OF INTERCEPTION OF COMMUNICATIONS IN THE
INVESTIGATION OF SEXUAL CRIMES AGAINST CHILDREN.
Section 2516(1)(c) of title 18, United States Code, is
amended by inserting ``1466A, 1466B,'' before ``2251''.
SEC. ____12. RECORDKEEPING TO DEMONSTRATE MINORS WERE NOT USED IN
PRODUCTION OF PORNOGRAPHY.
Not later than 1 year after enactment of this Act, the
Attorney General shall submit to Congress a report detailing
the number of times since January 1993 that the Department of
Justice has inspected the records of any producer of materials
regulated pursuant to section 2257 of title 18, United States
Code, and section 75 of title 28 of the Code of Federal
Regulations. The Attorney General shall indicate the number of
violations prosecuted as a result of those inspections.