AMENDMENT 816
Section 2A3.3 is amended—
in the heading by striking “Acts” and inserting “Acts; Criminal Sexual Abuse of an Individual in Federal Custody”.
in subsection (a) by striking “14” and inserting “18”;
and by inserting at the end the following new subsection (c):
“(c) Cross Reference
(1) If the offense involved criminal sexual abuse or attempt to commit criminal sexual abuse (as defined in 18 U.S.C. § 2241 or § 2242), apply §2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse). If the victim had not attained the age of 12 years, §2A3.1 shall apply, regardless of the ‘consent’ of the victim.”.
The Commentary to §2A3.3 captioned “Statutory Provision” is amended by striking “§ 2243(b)” and inserting “§§ 2243(b), 2243(c)”.
The Commentary to §2H1.1 captioned “Statutory Provisions” is amended by striking “246, 247, 248, 249” and inserting “246–250”.
Appendix A (Statutory Index) is amended—
by inserting before the line referenced to 18 U.S.C. § 281 the following new line reference:
“18 U.S.C. § 250 2H1.1”;
and by inserting before the line referenced to 18 U.S.C. § 2244 the following new line reference:
“18 U.S.C. § 2243(c) 2A3.3”.
Reason for Amendment: This multi-part amendment responds to statutory changes provided in division W, title XII, of the Violence Against Women Act Reauthorization Act, Pub. L. 117–103 (Nov. 9, 2022) and separately addresses concerns regarding cases involving sexual abuse committed by law enforcement or correctional personnel against victims in their custody, care, or supervision.
First, the amendment amends Appendix A (Statutory Appendix) to reference the new offense created at 18 U.S.C. § 250 (Penalties for civil rights offenses involving sexual misconduct) to §2H1.1 (Offenses Involving Individual Rights). New section 250 criminalizes engaging in or causing another to engage in sexual misconduct while committing any civil rights offense under chapter 13 (Civil Rights) of title 18, U.S. Code, or 42 U.S.C. § 3631 (Fair Housing [violations]). Section 250 delineates different degrees of prohibited sexual misconduct, including aggravated sexual abuse as defined in 18 U.S.C. § 2241 (Aggravated sexual abuse), sexual abuse as defined in 18 U.S.C. § 2242 (Sexual abuse), a sexual act not amounting to aggravated sexual abuse or sexual abuse, and sexual contact, as defined in 18 U.S.C. § 2244 (Abusive sexual contact). The statutory maximum term of imprisonment for a violation of section 250 ranges from two years to any term of years or life, depending on the sexual conduct involved in the offense.
The Commission determined that §2H1.1 is the most appropriate guideline to which to reference this new offense. Other similar offenses are referenced to this guideline. In addition, the Commission concluded that the alternative base offense levels provided in §2H1.1 effectively address both the broad array of conduct criminalized under this new statute and the varying statutory maximum terms of imprisonment applicable to such conduct.
Second, the amendment amends Appendix A to reference new subsection (c) at 18 U.S.C. § 2243 (Sexual abuse of a minor, a ward, or an individual in Federal custody) to §2A3.3 and makes a conforming change to §2A3.3’s title. The new subsection at 18 U.S.C. § 2243 prohibits law enforcement officers from knowingly engaging in a sexual act with an individual under arrest or supervision, in detention, or in federal custody. The Commission determined §2A3.3 is the most appropriate guideline to which to reference the new offense because it covers a similar offense at 18 U.S.C. § 2243(b) prohibiting anyone in a federal prison, institution, or facility from knowingly engaging in a sexual act with a ward, defined as an inmate or other person in official detention and under the custodial, supervisory, or disciplinary authority of the person engaging in the act. Subsection 2243(b) also has the same 15-year statutory maximum term of imprisonment, and a reference to this guideline will result in similar penalties for both subsections of section 2243.
Finally, the amendment increases the base offense level at §2A3.3 for offenses involving the sexual abuse of a ward or an individual in federal custody from 14 to 18. The Commission determined that the increased base offense level will more appropriately reflect the 15-year statutory maximum penalty for offenses referenced to this guideline and punish the serious sexual conduct involved in these offenses. In promulgating the amendment, the Commission was informed by both the rate and extent of above-range sentences in these cases. While the average guideline minimum in fiscal years 2018 through 2022 was 17 months (median 12 months), the average sentence imposed was more than double, at 35 months (median 15 months).
The Commission also concluded that an increased guideline range for §2A3.3 offenses would be more proportional to the guideline range at §2A3.2 (Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts) for the sexual abuse of minors over the age of 12 and under the age of 16 years, conduct prohibited by 18 U.S.C. § 2243(a) with the same 15-year statutory maximum term of imprisonment as subsections 2243(b) and 2243(c). Section 2A3.2 has a base offense level 18 and a 4-level enhancement if the victim is in the care, custody, or supervisory control of the defendant.
Consistent with this approach, the amendment also amends §2A3.3 to include the same cross reference currently provided for in §2A3.2 in order to ensure proportional guideline ranges for all section 2243 offenses when the offense involved aggravating sexual conduct. The new cross reference sends cases to §2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse) if the offense involved criminal sexual abuse or attempt to commit criminal sexual abuse (as defined in 18 U.S.C. § 2241 or § 2242), and further directs that §2A3.1 shall apply if the victim had not attained the age of 12 years, regardless of the “consent” of the victim.
Effective Date: The effective date of this amendment is November 1, 2023.