HR 1528 IH
109th CONGRESS
1st Session
H. R. 1528
To amend the Controlled Substances Act to protect vulnerable persons from drug trafficking, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
April 6, 2005
Mr. SENSENBRENNER introduced the following bill; which was referred
to the Committee on the Judiciary, and in addition to the Committee on
Energy and Commerce, for a period to be subsequently determined by the
Speaker, in each case for consideration of such provisions as fall
within the jurisdiction of the committee concerned
A BILL
To amend the Controlled Substances Act to protect vulnerable persons from drug trafficking, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Defending America's Most
Vulnerable: Safe Access to Drug Treatment and Child Protection Act of
2005'.
SEC. 2. PROTECTING CHILDREN FROM DRUG TRAFFICKERS.
(a) Distribution to Persons Under 21 Years of Age; First
Offense- Section 418(a) of the Controlled Substances Act (21 U.S.C.
859(a)) is amended--
(1) by inserting `or section 406' after `401(a)(1)';
(2) by inserting `, or attempting or conspiring to do so,' after `twenty-one years of age';
(3) by striking `involving the same controlled
substance and schedule' and inserting `without regard to the type of
controlled substance and schedule'; and
(4) by inserting `Except to the extent a greater
minimum sentence is otherwise provided by section 401(b) and regardless
of any maximum term of imprisonment, a term of imprisonment under this
subsection in a case involving distribution to a person under 18 years
of age by a person 21 or more years of age shall be not less than 10
years. Notwithstanding any other provision of law, the court shall not
place on probation or suspend the sentence of any person sentenced
under the preceding sentence.' after `not less than 1 year.'.
(b) Distribution to Persons Under 21 Years of Age; Second
or Subsequent Offense- Section 418(b) of the Controlled Substances Act
(21 U.S.C. 859(b)) is amended--
(1) by inserting `or section 406' after `401(a)(1)';
(2) by inserting `, or attempting or conspiring to do so,' after `twenty-one years of age';
(3) by striking `involving the same controlled
substance and schedule' and inserting `without regard to the type of
controlled substance and schedule';
(4) by inserting `or for a felony drug offense' after `May 1, 1971'; and
(5) by striking `not less than one year.' and inserting
`not less than 10 years. Except to the extent a greater minimum
sentence is otherwise provided by section 401(b) and regardless of any
maximum term of imprisonment, a term of imprisonment under this
subsection in a case involving distribution to person under 18 years of
age by a person 21 or more years of age shall be a mandatory term of
life imprisonment. Notwithstanding any other provision of law, the
court shall not place on probation or suspend the sentence of any
person sentenced under the preceding sentence.'.
(c) Distribution or Manufacture Near Schools or Colleges;
First Offense- Section 419(a) of the Controlled Substances Act (21
U.S.C. 860(a)) is amended--
(1) by striking `or section 416' and inserting `, section 406, or section 416';
(2) by inserting `, or attempting or conspiring to do so,' after `manufacturing a controlled substance';
(3) by striking `within 100 feet of';
(4) by inserting `, or public library, or public or private daycare facility' after `video arcade facility';
(5) by inserting `and regardless of any maximum term of
imprisonment' after `Except to the extent a greater minimum sentence is
otherwise provided by section 401(b) of this title'; and
(6) by striking `not less than one year' and inserting `not less than 5 years'.
(d) Distribution or Manufacture Near Schools or Colleges;
Second or Subsequent Offense- Section 419(b) of the Controlled
Substances Act (21 U.S.C. 860(b)) is amended--
(1) by striking `or section 416' and inserting `, section 406, or section 416';
(2) by inserting `, or attempting or conspiring to do so,' after `manufacturing a controlled substance';
(3) by striking `within 100 feet of';
(4) by inserting `, or public library, or public or private daycare facility' after `video arcade facility';
(5) by inserting `or for a felony drug offense' after `subsection (a) of this section';
(6) by inserting `and regardless of any maximum term of
imprisonment' after `Except to the extent a greater minimum sentence is
otherwise provided by section 401(b) of this title'; and
(7) by striking `not less than three years' each place it appears and inserting `not less than 10 years'.
(e) Employing Children in Distribution Near Protected
Places- Section 419(c) of the Controlled Substances Act (21 U.S.C.
860(c)) is amended--
(1) by striking `at least 21 years of age' and inserting `at least 18 years of age';
(2) by inserting `Except to the extent a greater
minimum sentence is otherwise provided for by section 401(b) and
regardless of any maximum term of imprisonment, a person shall be
sentenced under this subsection to a term of imprisonment of not less
than 10 years' after `triple those authorized by section 401.';
(3) by striking `(1)' and inserting `(A)' and in
subparagraph (A) as so redesignated, by inserting `, or attempts or
conspires to do so' after `to violate this section';
(4) by striking `(2)' and inserting `(B)'and in
subparagraph (B) as so redesignated, by inserting `, or attempts or
conspires to do so' after `official';
(5) by inserting `(1)' after `(c)'; and
(6) by adding at the end the following:
`(2) Second or Subsequent Offenses- Paragraph (1) shall be
applied to an offense after a single prior conviction under that
paragraph or for a felony drug offense has become final by substituting
`not less than 15 years' for `not less than 10 years'. Penalties for
third or subsequent convictions are governed by section 401(b)(1)(A).'.
(f) Attempt and Conspiracy Relating to Employment or Use of
Persons Under 18 Years Old- Section 420(a) of the Controlled Substances
Act (21 U.S.C. 861(a)) is amended--
(1) in paragraph (1), by inserting `, or attempt or conspire to do so' after `chapter';
(2) in paragraph (2), by inserting `, or attempt or conspire to do so' after `official'; and
(3) in paragraph (3), by inserting `, or attempt or conspire to do so' after `chapter'.
(g) Employment or Use of Persons Under 18 Years Old;
Penalty for First Offense- Section 420(b) of the Controlled Substances
Act (21 U.S.C. 861(b)) is amended--
(1) by inserting `and regardless of any maximum term of imprisonment' after `provided'; and
(2) by striking `not less than one year.' and inserting
`not less than 5 years. Except to the extent a greater minimum sentence
is otherwise provided by section 401(b) and regardless of any maximum
term of imprisonment, a term of imprisonment of a person 21 or more
years of age convicted under this subsection shall not be less than 10
years. Notwithstanding any other provision of law, the court shall not
place on probation or suspend the sentence of any person sentenced
under the preceding sentence.'.
(h) Employment or Use of Persons Under 18 Years Old; Second
or Subsequent Offense- Section 420(c) of the Controlled Substances Act
(21 U.S.C. 861(c)) is amended--
(1) by inserting ` or for a felony drug offense' after `prior conviction under subsection (a) of this section';
(2) by inserting `and regardless of any maximum term of imprisonment' after `provided'; and
(3) by striking `not less than one year.' and inserting
`not less than 10 years. Except to the extent a greater minimum
sentence is otherwise provided by section 401(b) and regardless of any
maximum term of imprisonment, a term of imprisonment of a person 21
years or more of age convicted under this subsection shall be a
mandatory term of life imprisonment. Notwithstanding any other
provision of law, the court shall not place on probation or suspend the
sentence of any person sentenced under the preceding sentence.'.
(i) Providing or Distributing a Controlled Substance to an
Underage Person- Section 420(d) of the Controlled Substances Act (21
U.S.C. 861(d)) is amended--
(1) by striking `fourteen' and inserting `16'; and
(2) by striking `subject to a term of imprisonment for
not more than 5 years' and inserting `sentenced to a term of
imprisonment of not less than 5 years or more than life'.
(j) Maintaining Drug-Involved Premises Affecting Children-
Section 416 of the Controlled Substances Act (21 U.S.C. 856) is
amended--
(1) in subsection (a)(1) by inserting `storing,' before `or using';
(2) by inserting `(1)' after `(b)';
(3) by adding at the end of subsection (b) the following:
`(2) Any person who violates subsection (a) of this
section, knowing that the manufacture, distribution, storage, or use of
any controlled substance involves or is intended to involve a person
under the age of 18 or an incompetent person, shall be fined not more
than $2,000,000 (if the offender is an individual) and not more than
$8,000,000 (if the offender is an organization) and imprisoned not less
than 5 years or more than life, and if the defendant is the parent or
guardian or otherwise responsible for the care or supervision of such
person shall be fined as provided in this paragraph and imprisoned not
less than ten years or more than life.'.
(k) Drug Trafficking in the Presence of Children-
(1) IN GENERAL- Part D of the Controlled Substances Act is amended by adding at the end the following:
`DRUG TRAFFICKING IN THE PRESENCE OF CHILDREN
`SEC. 424. (a) Except to the extent a greater minimum
sentence is otherwise provided by this title, any person who violates
section 401(a)(1) of this title or section 1010(a) of title II in or
near the presence of a person under the age of 18 or an incompetent
person, or in a location in which such person resides for any period of
time, knowing or having reason to know that such person is present or
so resides shall be sentenced to a term of imprisonment which may not
be less than 5 years or more than life.
`(b) Except to the extent a greater minimum sentence is
otherwise provide by this title, any person who violates section 406 of
this title or section 1013 of title II by committing any act in
furtherance of the violation in or near the presence of a person under
the age of 18 or incompetent person, or in a location in which such
person resides for any period of time, knowing or having reason to know
that such person is present or so resides shall be sentenced to a term
of imprisonment which may not be less than 5 years or more than life.
`(c) If at the time of the offense referred to in
subsection (a) or at the time of the commission of the act in
furtherance of the violation referred to in subsection (b) the
defendant was the parent or guardian or otherwise responsible for the
care or supervision of the person under the age of 18 or the
incompetent person, shall be sentenced to a term of imprisonment which
may not be less than 10 years or more than life.
`(d) As used in this section, the term `in or near the
presence of a person' means within visual sight of such person, within
any dwelling, automobile or other vehicle, or boat, in which such
person is present, or within 500 feet of such person.'.
(2) CLERICAL AMENDMENT- The table of sections for the
Comprehensive Drug Abuse Prevention and Control Act of 1970 is amended
by inserting after the item relating to section 422 the following new
item:
`Sec. 424. Drug trafficking in the presence of children.'.
(l) Drug Paraphernalia Intended for Children- Section 422 of the Controlled substances Act (21 U.S.C. 863) is amended--
(1) so that paragraph (1) of subsection (a) reads as follows:
`(1) to sell, offer for sale, facilitate the sale or offer to sell, or provide drug paraphernalia to any person;'.
(A) by inserting `(1)' after `(b)'; and
(B) by adding at the end the following:
`(2) Any person who violates subsection (a) by selling,
offering for sale, facilitating the sale or offer for sale, or
providing drug paraphernalia to any person under the age of 18 or to
any person knowing that it is intended to be provided to or used by a
person under the age of 18 years, or any person who violates subsection
(a) by transporting, importing, or exporting drug paraphernalia knowing
that it is intended to be provided to or used by a person under the age
of 18 years, shall be imprisoned for not less than 2 years nor more
than 10 years.'.
(m) Further Protection for Children-
(1) IN GENERAL- Part D of the Controlled Substances Act is amended by adding at the end the following:
`FAILURE TO PROTECT CHILDREN FROM DRUG TRAFFICKING ACTIVITIES
`SEC. 425. (a) It shall be unlawful for any person who
witnesses or learns of a violation of sections 416(b)(2), 417, 418,
419, 420, 424, or 426 to fail to report the offense to law enforcement
officials within 24 hours of witnessing or learning of the violation
and thereafter provide full assistance in the investigation,
apprehension, and prosecution of the person violating paragraph (a).
`(b) Any person who violates subsection (a) of this section
shall be sentenced to not less than two years or more than 10 years. If
the person who witnesses or learns of the violation is the parent or
guardian, or otherwise responsible for the care or supervision of the
person under the age of 18 or the incompetent person, such person shall
be sentenced to not less than three years or more than 20 years.'.
(2) CLERICAL AMENDMENT- The table of sections for the
Comprehensive Drug Abuse Prevention and Control Act of 1970 is amended
by inserting after the item relating to section 423 the following new
item:
`Sec. 425. Failure to protect children from drug trafficking activities.'.
(n) Sentencing Guidelines-
(1) Not later than 120 days after the date of the
enactment of this Act, the Sentencing Commission shall amend the
sentencing guidelines, policy statements, and official commentary
issued under section 994 of title 28, United States Code, so as to
ensure that--
(A) for any person who has been convicted of a
felony violation of title II of the Controlled Substances Act, or a
felony violation of the Controlled Substances Import and Export Act, if
any part of the offense or relevant conduct involved manufacturing,
transporting, possessing, storing, using, or trafficking in a
controlled substance or a chemical or material used or intended to be
used in the manufacture of any controlled substance in or near the
presence of a person under the age of 18 or an incompetent person, or
in a location in which a person under the age of 18 or an incompetent
person resides for any period of time, or if any of the offense or
relevant conduct involved conduct constituting an offense under section
416(b)(2), 417, 418, 419, 420, 422, 424, 425, or 426 of the Controlled
Substances Act (whether or not charged)--
(i) section 5C1.2 of the guidelines shall not apply;
(ii) the base offense level is increased by at
least 2 levels. Such increase shall be in addition to any applicable
increase under section 2D1.1(b)(5)(C) or 2D1.10(b)(1)(B); and
(iii) if the defendant was the parent or
guardian or person otherwise responsible for the care or supervision of
the person under the age of 18 or the incompetent person the base
offense level is increased by at least 4 levels. Such increase shall be
in addition to any applicable increase under section 2D1.1(b)(5)(C) or
2D1.10(b)(1)(B); and
(B) the Guidelines Manual is amended in section
2D1.1(b)(5)(C) and section 2D1.10(b)(1)(B) to provide for an increase
of 8 levels when the defendant was the parent or guardian, or otherwise
responsible for the care or supervision of the person under the age of
18 or the incompetent person.
(2) Section 3553(f) of title 18, United States Code, is amended--
(A) in paragraph (4), by striking `and' at the end;
(B) by redesignating paragraph (5) as paragraph (6);
(C) by inserting after paragraph (4) the following new paragraph:
`(5) no part of the offense or relevant conduct
involved manufacturing, transporting, possessing, storing, using, or
trafficking a controlled substance or a chemical or material used or
intended to be used in the manufacture of any controlled substance in
or near the presence of a person under the age of 18 or incompetent
person; or in a location in which a person under the age of 18 or
incompetent person resides for any period of time; or if any of the
offense or relevant conduct involved conduct constituting an offense
under section 416(b)(2), 417, 418, 419, 420, 422, 424, 425, or 426 of
the Controlled Substances Act (whether or not charged); and '.
(3) Section 3553 of title 18, United States Code, is amended by adding at the end the following:
`(g) As used in subsection (f), the term `incompetent
person' means an individual who is incapable of taking care of the
individual's self or property because of mental or physical illness or
disability, mental retardation, or senility. '.
SEC. 3. FAIRNESS IN SENTENCING: ASSURING TRAFFICKERS IN
LARGE QUANTITIES OF DRUGS RECEIVE APPROPRIATE SENTENCES AND DENYING
DOUBLE SENTENCING BENEFITS.
(a) In General- The Guidelines Manual promulgated by the
Sentencing Commission pursuant to section 994(a) of title 28, United
States Code, as in effect on November 1, 2004, is amended--
(1) in section 2D1.1(a)(3) by striking `, except' and all that follows and inserting a period after `(c)';
(2) in the Application Notes in the Commentary to section 3B1.2 by striking Application Note 6 in its entirety;
(3) in section 2D1.1(b) by striking subsection (7) in its entirety; and
(4) in Application Notes in the Commentary to section 2D1.1 by striking Application Note 21 in its entirety.
(b) Limitations on Commission- On and after the date of the
enactment of this Act no amendment promulgated by the Sentencing
Commission shall alter or repeal the effect of the amendments made by
this section.
SEC. 4. PROTECTING PERSONS IN DRUG TREATMENT.
(a) In General- Part D of the Controlled Substances Act is amended by adding at the end the following:
`PROTECTION OF PERSONS IN DRUG TREATMENT
`SEC. 426. (a) Any person who violates section 401(a)(1),
section 406, or section 416 by distributing, possessing with intent to
distribute, or manufacturing a controlled substance in or on, or within
1,000 feet of, the real property comprising a drug treatment facility,
or attempting or conspiring to do so, shall, except to the extent a
greater minimum sentence is provided, be imprisoned for not less than 5
years or more than life and if death or serious bodily injury resulted
from the use of such substance shall not be less than 10 years. If any
person commits such a violation after a prior conviction under this
subsection or after a prior conviction for any felony drug offense has
become final, such person shall be sentenced to not less than 10 years
and if death or serious bodily injury resulted from the use of such
substance shall be sentenced to life. Penalties for third or subsequent
convictions shall be governed by section 401(b)(1)(A). The mandatory
minimum sentencing provisions of this paragraph shall not apply to
first offenses involving 5 grams or less of marijuana.
`(b) Whoever intentionally offers, solicits, entices,
persuades, encourages, induces, or coerces a person enrolled in a drug
treatment program or facility, or who is under a court order to enroll
in, or who has previously been enrolled in, a drug treatment program or
facility, to purchase, receive, or possess a controlled substance, or
attempts or conspires to do so, shall, except to the extent that a
greater minimum sentence is provided for, be sentenced to a term of
imprisonment which may not be less than 5 years or more than life and
if death or serious bodily injury resulted from the use of such
substance shall not be less than 10 years or more than life. If any
person commits such a violation after a prior conviction under this
subsection or after a prior conviction for any felony drug offense has
become final, such person shall be sentenced to not less than 10 years
and if death or serious bodily injury resulted from the use of such
substance shall be sentenced to life. Penalties for third or subsequent
convictions shall be governed by section 401(b)(1)(A).
`(c) As used in this section--
`(1) the term `drug treatment facility' includes--
`(A) any location at which a practitioner is
authorized to dispense narcotic drugs to individuals for maintenance
treatment or detoxification treatment under section 303(g) of the
Controlled Substances Act (21 U.S.C. 823(g));
`(B) any location at which an individual or entity
(other than a general medical care facility) provides drug abuse
diagnosis, treatment or referral for treatment; and
`(C) an identified unit within a general medical
facility which provides drug abuse diagnosis, treatment, or referral
for treatment; and
`(2) the term `drug treatment program' includes--
`(A) a practitioner or entity who dispenses
narcotic drugs to individuals for maintenance treatment or
detoxification treatment under section 303(g) of the Controlled
Substances Act (21 U.S.C. 823(g);
`(B) an individual or entity which provides drug abuse diagnosis, treatment or referral for treatment;
`(C) medical personnel or other staff in a general
medical care facility whose primary function is the provision of drug
abuse diagnosis, treatment or referral for treatment; and
`(D) a practitioner or entity who is authorized by
the Substance Abuse and Mental Health Services Administration to
dispense opioid agonist treatment medication to individuals for
maintenance treatment or detoxification treatment.'.
(b) Clerical Amendment- The table of contents of the
Comprehensive Drug Abuse Prevention and Control Act of 1970 is amended
by inserting after the item relating to section 419 the following new
item:
`419a. Protection of persons in drug treatment.'.
SEC. 5. CONFORMING GUIDELINE SENTENCING TO CONSPIRACY LAW.
Not more than 90 days after the date of the enactment of
this Act, the Sentencing Commission shall amend the sentencing
guidelines, policy statements, and official commentary issued under
section 994 of title 28, United States Code, so as to ensure that the
relevant conduct under section 1B1.2 of any person who has been
convicted of a felony violation of title II of the Controlled
Substances Act, or a felony violation of the Controlled Substances
Import and Export Act, includes the conduct of members of the
conspiracy in furtherance of the conspiracy before the defendant joined
the conspiracy that was known to the defendant before joining the
conspiracy, and includes the conduct of members of the conspiracy in
furtherance of the conspiracy during the defendant's participation in
the conspiracy that was known to the defendant or was reasonably
foreseeable (whether or not a conspiracy was charged).
SEC. 6. ASSURING LIMITATION ON APPLICABILITY OF STATUTORY
MINIMUMS TO PERSONS WHO HAVE DONE EVERYTHING THEY CAN TO ASSIST THE
GOVERNMENT.
Section 3553(f) of title 18, United States Code, as amended by section 2 of this Act, is further amended--
(1) by inserting `(1)' before `Notwithstanding' ;
(2) by redesignating paragraphs (1) through (6) as subparagraphs (A) through (F);
(3) so that subparagraph (F), as so redesignated, reads as follows:
`(F) the Government certifies that the defendant
has entered a timely plea of guilty to the most serious readily
provable offense and has otherwise done everything possible to assist
substantially in the investigation and prosecution of another person as
set forth in subsection (e), but was unable to so assist because the
defendant did not have sufficient information, or had information
already known to, or not useful to the Government, but a defendant who
provided the Government or the court with false, misleading, or
incomplete information, otherwise obstructed the administration of
justice, or delayed affirmative efforts to assist substantially beyond
a time when such efforts could have reasonably been useful to the
Government shall not be sentenced under this subsection.';
(4) by striking `court shall impose a sentence pursuant
to the guidelines promulgated by the United States Sentencing
Commission under section 994 of title 28 without regard to any
statutory minimum sentence' and inserting `court shall have the
authority to impose a sentence pursuant to subsection (a), without
regard to any statutory minimum sentence, provided that the sentence
includes a term of imprisonment that is not below the bottom of the
range described in subsection (a)(4)'; and
(5) by inserting at the end the following:
`(2) The provisions of paragraph (1) are not severable
and if any provision of that paragraph, or the application of such
provision to any person or circumstances, is held invalid, the entirety
of such paragraph shall to the same extent become utterly invalid and
unenforceable and shall not be applied, and the court shall instead
impose a sentence not less than that required by any applicable
statutory minimum sentence prescribed for such offense.'.
SEC. 7. ASSURING SENTENCING ENHANCEMENT FOR RELEVANT CONDUCT.
Not more than 90 days after the date of the enactment of
this Act, the Sentencing Commission shall amend the sentencing
guidelines, policy statements, and official commentary issued under
section 994 of title 28, United States Code so as to ensure--
(1) that the commentary to section 2D1.2 includes
application of the section to violations of section 401 or 406 of the
Controlled Substances Act (21 U.S.C. 841 or 846);
(2) that the enhancements under Guideline section 2D1.2
and any guideline provision promulgated pursuant to any provision of
this Act, are applicable without regard to whether the defendant has
been convicted of a statutory violation of drug trafficking in a
protected location or involving an underage or pregnant individual
(including an attempt or conspiracy to commit such a violation) and
without regard to whether the defendant stipulated to such a statutory
violation of such an offense;
(3) that conduct constituting an offense under section
416(b)(2), 417, 418, 419, 420, 422, 424, 425, or 426 of the Controlled
Substances Act (without regard to conviction) shall be treated as
relevant conduct under section 1B1.3 for persons convicted under
section 401 or 406 of that Act (21 U.S.C. 841 or 846); and
(4) that section 2D1.2(a)(1) provides for a 4 rather
than a 2 level increase; that section 2D1.2(a)(2) provides for a 2,
rather than 1, level increase; that section 2D1.2(a)(3) provides for a
level 28, rather than level 26; and that section 2D1.2(a)(4) provides
for a level 18, rather than level 13.
SEC. 8. ASSURING PROGRESSIVE ENHANCEMENTS FOR PERSONS POSSESSING OR USING FIREARMS.
Not more than 90 days after the date of the enactment of
this Act, the Sentencing Commission shall amend the sentencing
guidelines, policy statements, and official commentary issued under
section 994 of title 28, United States Code, so as to ensure--
(1) that the specific offender characteristics under section 2D1.1(b) provide for increases to the base offense level of--
(A) 8 levels if a firearm was possessed in or near
the presence of a person under the age of 18, or in a location in which
a person under the age of 18 resides for any period of time;
(B) 6 levels if the defendant discharged a firearm
or 8 or more firearms were possessed or a firearm described in section
921(a)(23) of title 18, United States Code, was possessed, or a firearm
equipped with a device described in section 921(a)(24) of title 18,
United States Code, was possessed, or a device described in section
921(a)(4) of title 18, United States Code, was possessed;
(C) 4 levels if the defendant brandished or
otherwise used a dangerous weapon (including a firearm) or possessed a
firearm described in section 921(a), (6), (8), or (30) of title 18
United States Code, or section 5845(a) of title 26, United States Code
or 6 or more firearms were possessed;
(D) 3 levels if 2 or more firearms were possessed; and
(E) 2 levels if a dangerous weapon (including a firearm) was possessed;
(2) that the specific offender characteristics under section 2D1.1 provide for an increase to the base offense level of--
(A) 6 levels if the offense involved permanent or life-threatening bodily injury;
(B) 4 levels if the offense involved serious bodily injury; and
(C) 2 levels if the offense involved bodily injury;
(3) that the cumulative adjustments under paragraphs (1) and (2) shall not shall not exceed 10 levels; and
(4) that the specific characteristics under section
2D1.1 provide for an increase to the base offense level of 2 levels if
the defendant committed any part of the instant offense after
sustaining a felony conviction for a controlled substance offense.
SEC. 9. MANDATORY DETENTION OF PERSONS CONVICTED OF SERIOUS DRUG TRAFFICKING OFFENSES AND CRIMES OF VIOLENCE.
Section 3145(c) of title 18 United States Code, is amended--
(1) by inserting `prior to sentencing' after `may be ordered released'; and
(2) by striking `the judicial officer, if it is clearly
shown that there are exceptional reasons why such person's detention
would not be appropriate.' and inserting `the judicial officer if, the
Government certifies that the defendant is engaged in ongoing active
cooperation with the Government in contemplation of the defendant
providing substantial assistance to the Government in the investigation
and prosecution of another person pursuant to section 3553(e) of this
title, section 994(n) of title 28, or United States Sentencing
Guidelines section 5K1.1, and that defendant's release on appropriate
conditions pending sentencing is essential to permit such assistance.
The judicial officer shall order the defendant detained immediately
upon cessation of active cooperation, or upon being sentenced,
whichever first occurs. Availability to be interviewed or to testify
before a grand jury or a judicial proceeding is not grounds for
release.'.
SEC. 10. PROTECTING HUMAN LIFE AND ASSURING CHILD SAFETY.
(a) In General- Section 417 of the Controlled Substances Act (21 U.S.C. 858) is amended--
(1) by inserting `(a)' before `Whoever';
(2) by inserting `possessing, storing, or' before `transporting';
(3) by inserting `or intended to be used in the manufacture of a controlled substance,' before `creates';
(4) by striking `not more than 10 years' and inserting `not less than 3 years nor more than life'; and
(5) by inserting at the end the following:
`(b)(1) Whoever violates subsection (a) by creating a
substantial risk of harm to a person under the age of 18 or incompetent
person, shall be fined in accordance with title 18, United States Code,
or imprisoned not less than 5 years, nor more than life, or both.
`(2) As used in this section, the term `incompetent person'
means an individual who is incapable of taking care of the individual's
self or property because of mental or physical illness or disability,
mental retardation, or senility. '.
(b) Sentencing Guidelines- Not more than 90 days after the
date of the enactment of this Act, the Sentencing Commission shall
amend the sentencing guidelines, policy statements, and official
commentary issued under section 994 of title 28, United States Code, so
as to ensure that section 2D1.1(b)(6)(B) and (C) apply if the offense
involved the manufacture of any controlled substance.
SEC. 11. LIFE IMPRISONMENT WITHOUT RELEASE FOR DRUG FELONS AND VIOLENT CRIMINALS CONVICTED A THIRD TIME.
Section 401(b) of the Controlled Substances Act (21 U.S.C. 841(b)) is amended--
(1) by striking `or 420';
(2) by inserting `420, 424, 425, or 426' after `419,'; and
(3) by striking `If any person commits a violation of
this subparagraph or of section 418, 419, or 420 after two or more
prior convictions for a felony drug offense have become final, such
person shall be sentenced to a mandatory term of life imprisonment
without release and fined in accordance with the preceding sentence.'
and inserting `If any person commits a violation of this subparagraph
or of section 409, 416, 417, 418, 419, 420, 422, 424, 425, or 426 or a
crime of violence after 2 or more prior convictions for a felony drug
offense or crime of violence or for any combination thereof have become
final, such person shall be sentenced to not less than a mandatory term
of life imprisonment without release and fined in accordance with the
preceding sentence. For purposes of this subparagraph, the term `crime
of violence' means an offense that is a felony punishable by a maximum
term of imprisonment of 10 years or more and has as an element the use,
attempted use, or threatened use of physical force against the person
or property of another, or by its nature involves a substantial risk
that physical force against the person or property of another may be
used in the course of committing the offense.'.
SEC. 12. SENTENCING PROTECTIONS.
(a) Generally- Section 3553 of title 18 United States Code, is amended--
(1) in subsection (a)(1) by inserting `, except as otherwise provided in subsection (g),' before `the history';
(2) in subsection (a)(2)--
(A) by inserting `and' at the end of subparagraph (B);
(B) by striking `and' at the end of subparagraph (C); and
(C) by striking subparagraph (D);
(3) by adding at the end the following:
`(g) Limitations on Consideration of Factors- (1) In
imposing a sentence, the court shall not consider a defendant's race,
sex, national origin, creed, religion, or socioeconomic status.
`(2) The court may consider the following factors only as
may be required in calculating the range referred to in subsection
(a)(4) or with respect to the imposition of a sentence at or above the
bottom of that range, and shall not otherwise consider them in imposing
a sentence:
`Defendant's criminal history.
`The absence of a criminal record.
`Family ties and responsibilities.
`Mental and emotional condition.
`Drug or alcohol dependence or abuse.
`Charitable contributions or civic, military, or public service, or good works.
`Employment-related contributions.
`Record of prior good works.
`The need to provide the defendant with
educational or vocational training, medical care, or other correctional
treatment in the most effective manner.
`A sentence or likely sentence which a
defendant would receive if convicted of the same or similar offense
under the law of any State.
`Reports or recommendations of the Sentencing Commission to Congress.
`Post-offense or post-sentencing rehabilitation.
`Acceptance of responsibility.
`Voluntary cessation of criminal conduct before discovery.
`Effect of defendant's incarceration on others.
`Collateral consequences of defendant's arrest,
conviction, or incarceration, including criminal or civil forfeiture,
judgment in a civil action, loss of a professional or business license,
loss of public office, deportation upon release, or agreement to be
deported.
`Having made restitution.
`Ability to make restitution or facilitation of ability to make restitution.
`Likelihood of recidivism.
`Compliance with conditions of pretrial or presentencing release.
`Age, other than in the case of a defendant who is elderly and infirm.
`That the defendant plead guilty or entered into a plea agreement.
`Lack of guidance as a youth.
`Disadvantaged or abusive upbringing.
`The absence of an aggravating factor including
those set forth in the sentencing guidelines and policy statements
issued under section 994(a) of title 28, United States Code.
`Personal or business financial difficulties and economic pressures.
`The court's personal opinion concerning the guidelines or the guideline range.
`That the defendant entered a plea agreement
believing that his ultimate sentence would be lower than that required
by the guidelines or by statute.
`Any other factor as determined by the
sentencing commission and identified in the sentencing guidelines and
policy statements issued under section 994(a) of title 28, United
States Code.
`(3) Unless the Government makes a motion, asking for a
sentence below the range referred to in subsection (a)(4), and stating
that the defendant has provided substantial assistance in the
investigation or prosecution of another person who has committed an
offense, the court shall not, based on a consideration of the
defendant's cooperation with or assistance to the Government or on the
extent of that cooperation and assistance, impose a sentence below the
range referred to in subsection (a)(4). If the Government makes such a
motion, the court may, based on a consideration of the facts relating
to that assistance, impose a sentence below the range referred to in
subsection (a)(4).
`(h)(1) Other than a sentence imposed as a result of a
motion of the Government stating that the defendant has provided
substantial assistance in the investigation or prosecution of another
person who has committed an offense or as a result of, and pursuant to,
an early disposition program established by the Attorney General
pursuant to section 401(m)(2)(B) of the PROTECT Act (Public Law
108-21), the court may impose a sentence below the range referred to in
subsection (a)(4) only after--
`(A) providing the parties with 20 days written notice
of its intention to impose a particular sentence below the range
referred to in subsection (a)(4) and setting forth the particular
proposed sentence, the specific factors which support such a sentence,
how such a sentence is reasonable and how such a sentence avoids
unwarranted sentence disparities among Federal defendants with similar
records who have been found guilty of similar conduct; and
`(B) permitting the parties to submit briefs in support
or opposition to such intended sentence and conducting a full
evidentiary hearing to consider both the reasonableness of the
particular intended sentence and the unwarranted disparity resulting
from the particular sentence.
`(2) Information, including sentencing information from the
Sentencing Commission, with respect to within-the-range sentencing
numbers and cases for similarly situated defendants shall be fully
admissible. Information regarding a sentence or likely sentence which a
defendant would receive if convicted of the same or similar offense
under the law of any State, sentences imposed on other defendants as
result of a motion of the government asking for a sentence below the
range referred to in subsection (a)(4) and stating that the defendant
has provided substantial assistance in the investigation or prosecution
of another person who has committed an offense, or as a result of, and
pursuant to, an early disposition program established by the Attorney
General pursuant to section 401(m)(2)(B) of the PROTECT Act (Public Law
108-21) shall not be admissible and shall not form a basis to support a
sentence below the range referred to in subsection (a)(4).
`(3) Factors supporting a sentence below the range referred
to in subsection (a)(4) shall be supported and shown by clear and
convincing evidence.'; and
(i) by striking `which reasons must also' and
inserting `, and if the sentence is below the range described in
subsection (a) (4), other than as a result of a motion by the
government asking for a sentence below the range and stating that the
defendant has provided substantial assistance in the investigation or
prosecution of another person who has committed an offense, or as a
result of, and pursuant to, an early disposition program established by
the Attorney General pursuant to section 401(m)(2)(B) of the PROTECT
Act (Public Law 108-21) the court shall also provide a justification of
the reasonableness of the sentence, and a detailed explanation as to
how the sentence avoids unwarranted sentencing disparities among
Federal defendants with similar records who have been found guilty of
similar conduct, each of which must be supported and shown by clear and
convincing evidence and'; and
(ii) by striking `except to the extent' and all that follows through `such statements'; and
(B) by striking the comma which immediately follows another comma.
(b) Assuring Judicial Administrative Responsibilities Are
Performed by the Judicial Branch- Section 994(w)(1) of title 28, United
States Code, is amended--
(1) by inserting `(other than a case involving a
sentence imposed for a petty offense, as defined in section 19 of title
18, for which there is no applicable sentencing guideline)' after
`every criminal case'; and
(2) by adding at the end the following: `The duties and
responsibilities set forth herein, or any portion thereof, shall not be
delegated to the executive branch.'.
(c) Conforming Amendments- (1) Section 3661 of title 18,
United States Code, is amended by striking `No' and inserting `Except
as provided in section 3553(g) or (h), no'.
(2) Section 410 of the Controlled Substances Act (21 U.S.C.
850), is amended by striking `section 303(a) of the Public Health
Service Act' and by inserting `in section 3553(g) of title 18, United
States Code'.
END