H.R. 1528 (109th): Defending America’s Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2005

109th Congress, 2005–2006. Text as of Apr 06, 2005 (Introduced).

Status & Summary | PDF | Source: GPO

I

109th CONGRESS

1st Session

H. R. 1528

IN THE HOUSE OF REPRESENTATIVES

April 6, 2005

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.

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.

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:

424.

Drug trafficking in the presence of children

(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;

.

(2)

in subsection (b)—

(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:

425.

Failure to protect children from drug trafficking activities

(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.

.

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.

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:

426.

Protection of persons in drug treatment

(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

.

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).

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.

.

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.

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.

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..

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.

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..

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.
  • Vocational skills.
  • Mental and emotional condition.
  • Drug or alcohol dependence or abuse.
  • Employment record.
  • 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.
  • Role in the offense.
  • 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.
  • Extreme remorse.
  • 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.
  • Aberrant behavior.
  • 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.
  • Gambling addiction.
  • 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.
  • Delay in prosecution.
  • 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

(4)

in subsection (c)—

(A)

in paragraph (2)—

(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.