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108th CONGRESS
2d Session
H. R. 4547
To amend the Controlled Substances Act to protect vulnerable persons
from drug trafficking, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 14, 2004
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 2004''.
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 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), 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.''.
(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), 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 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''; and
(6) 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), 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) Employment or Use of Persons Under 18 Years Old; First
Offense.--Section 420(a)(1) of the Controlled Substances Act (21 U.S.C.
861(a)(1)) is amended by inserting ``, or attempts or conspires to do
so'' after ``chapter''.
(g) Employment or Use of Persons Under 18 Years Old; First
Offense.--Section 420(a)(2) of the Controlled Substances Act (21 U.S.C.
861(a)(2)) is amended by inserting ``, or attempts or conspires to do
so'' after ``official''.
(h) Employment or Use of Persons Under 18 Years Old; First
Offense.--Section 420(a)(3) of the Controlled Substances Act (21 U.S.C.
861(a)(3)) is amended by inserting ``, or attempts or conspires to do
so'' after ``chapter''.
(i) Employment or Use of Persons Under 18 Years Old; First
Offense.--Section 420(b) of the Controlled Substances Act (21 U.S.C.
861(b)) is amended 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), 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.''.
(j) 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 ``for a felony drug offense'' after
``prior conviction under subsection (a) of this section''; and
(2) 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), 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.''.
(k) 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 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''.
(l) Sentencing Guidelines.--
(1) 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 sentence 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, is calculated in
accordance with the following requirements 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 in a
location in which a person under the age of 18 resides for any
period of time, or if any of the offense or relevant conduct
involved conduct constituting an offense under section 417(b),
418, 419, 419a, or 420 of the Controlled Substances Act
(whether or not charged):
(A) Section 5C1.2 of the guidelines shall not
apply.
(B) Increase the base offense level by 2 levels.
(C) 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 increase
the base offense level by 4 levels.
(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); and
(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 in a location in which a person under the age
of 18 resides for any period of time; or if any of the offense
or relevant conduct involved conduct constituting an offense
under section 417(b), 418, 419, 419a or 420 of the Controlled
Substances Act (whether or not charged); and''.
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 May 1, 2004, is amended--
(1) in section 2D1.1(a)(3) by striking ``, except that if
the defendant receives an adjustment under section 3B1.2
(Mitigating Role), the base offense level under this subsection
shall not be more than level 30.'' and inserting ``below.'';
(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 (6) 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.--
(1) Future amendments.--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.
(2) Amendments as of enactment.--Upon the enactment of this
Act, any amendment to the Guidelines Manual promulgated by the
Sentencing Commission before such enactment shall have no
further force or effect to the extent that amendment--
(A) is to section 2D1.11 or to a provision of the
Guidelines Manual that is amended by subsection (a);
and
(B) takes effect after May 1, 2004 but before the
date of the enactment of this Act.
SEC. 4. PROTECTING PERSONS IN DRUG TREATMENT.
(a) In General.--The Controlled Substances Act is amended by
inserting after section 419 (21 U.S.C. 860) the following:
``protection of persons in drug treatment
``Sec. 419a. (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 nor more than life.
``(b) Whoever intentionally offers, solicits, entices, persuades,
encourages, induces, or coerces a person enrolled in a drug treatment
program or facility, who is under a court order to do so, or who has
previously been enrolled in a drug treatment program or facility, to
purchase, receive, or possess a controlled substance, attempts or
conspires to do so, except to the extent that a greater minimum
sentence is provided for, shall 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 or more than life, a fine not to exceed the greater of
that authorized in accordance with the provisions of title 18, or
$4,000,000 if the defendant is an individual or $10,000,000 if the
defendant is other than an individual, or both. 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 841(a)(1)(A) of this title.
``(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--
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