Pub.L. 108-022 To provide for the use and distribution of certain funds awarded to the Gila River Pima-Maricopa Indian Community, and for other purposes. ...

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``Under 18 U.S.C. Sec. 3553(b)(2), the sentencing court may impose a 
sentence below the range established by the applicable guidelines only 
if the court finds that there exists a mitigating circumstance of a 
kind, or to a degree, that--
        ``(1) has been affirmatively and specifically identified as a 
        permissible ground of downward departure in the sentencing 
        guidelines or policy statements issued under section 994(a) of 
        title 28, United States Code, taking account of any amendments 
        to such sentencing guidelines or policy statements by act of 
        Congress;
        ``(2) has not adequately been taken into consideration by the 
        Sentencing Commission in formulating the guidelines; and
        ``(3) should result in a sentence different from that described.

[[Page 117 STAT. 669]]

The grounds enumerated in this Part K of chapter 5 are the sole grounds 
that have been affirmatively and specifically identified as a 
permissible ground of downward departure in these sentencing guidelines 
and policy statements. Thus, notwithstanding any other reference to 
authority to depart downward elsewhere in this Sentencing Manual, a 
ground of downward departure has not been affirmatively and specifically 
identified as a permissible ground of downward departure within the 
meaning of section 3553(b)(2) unless it is expressly enumerated in this 
Part K as a ground upon which a downward departure may be granted.''.
            (2) At the end of part K of chapter 5, add the following:
``Sec. 5K2.22 Specific Offender Characteristics as Grounds for 
                      Downward Departure in child crimes and 
                      sexual offenses (Policy Statement)

``In sentencing a defendant convicted of an offense under section 1201 
involving a minor victim, an offense under section 1591, or an offense 
under chapter 71, 109A, 110, or 117 of title 18, United States Code, age 
may be a reason to impose a sentence below the applicable guideline 
range only if and to the extent permitted by Sec. 5H1.1.
``An extraordinary physical impairment may be a reason to impose a 
sentence below the applicable guideline range only if and to the extent 
permitted by Sec. 5H1.4. Drug, alcohol, or gambling dependence or abuse 
is not a reason for imposing a sentence below the guidelines.
            (3) Section 5K2.20 is amended by striking ``A'' and 
        inserting ``Except where a defendant is convicted of an offense 
        under section 1201 involving a minor victim, an offense under 
        section 1591, or an offense under chapter 71, 109A, 110, or 117 
        of title 18, United States Code, a''.
            (4) Section 5H1.6 is amended by inserting after the first 
        sentence the following: ``In sentencing a defendant convicted of 
        an offense under section 1201 involving a minor victim, an 
        offense under section 1591, or an offense under chapter 71, 
        109A, 110, or 117 of title 18, United States Code, family ties 
        and responsibilities and community ties are not relevant in 
        determining whether a sentence should be below the applicable 
        guideline range.''.
            (5) Section 5K2.13 is amended by--
                    (A) striking ``or'' before ``(3)''; and
                    (B) replacing ``public'' with ``public; or (4) the 
                defendant has been convicted of an offense under chapter 
                71, 109A, 110, or 117 of title 18, United States 
                Code.''.

    (c) Statement of Reasons for Imposing a Sentence.--Section 3553(c) 
of title 18, United States Code, is amended--
            (1) by striking ``described.'' and inserting ``described, 
        which reasons must also be stated with specificity in the 
        written order of judgment and commitment, except to the extent 
        that the court relies upon statements received in camera in 
        accordance with Federal Rule of Criminal Procedure 32. In the 
        event that the court relies upon statements received in camera 
        in accordance with Federal Rule of Criminal Procedure 32 the 
        court shall state that such statements were so received and that 
        it relied upon the content of such statements.'';
            (2) by inserting ``, together with the order of judgment and 
        commitment,'' after ``the court's statement of reasons''; and

[[Page 117 STAT. 670]]

            (3) by inserting ``and to the Sentencing Commission,'' after 
        ``to the Probation System''.

    (d) Review of a Sentence.--
            (1) Review of departures.--Section 3742(e)(3) of title 18, 
        United States Code, is amended to read as follows:
            ``(3) is outside the applicable guideline range, and
                    ``(A) the district court failed to provide the 
                written statement of reasons required by section 
                3553(c);
                    ``(B) the sentence departs from the applicable 
                guideline range based on a factor that--
                          ``(i) does not advance the objectives set 
                      forth in section 3553(a)(2); or
                          ``(ii) is not authorized under section 
                      3553(b); or
                          ``(iii) is not justified by the facts of the 
                      case; or
                    ``(C) the sentence departs to an unreasonable degree 
                from the applicable guidelines range, having regard for 
                the factors to be considered in imposing a sentence, as 
                set forth in section 3553(a) of this title and the 
                reasons for the imposition of the particular sentence, 
                as stated by the district court pursuant to the 
                provisions of section 3553(c); or''.
            (2) Standard of review.--The last paragraph of section 
        3742(e) of title 18, United States Code, is amended by striking 
        ``shall give due deference to the district court's application 
        of the guidelines to the facts'' and inserting ``, except with 
        respect to determinations under subsection (3)(A) or (3)(B), 
        shall give due deference to the district court's application of 
        the guidelines to the facts. With respect to determinations 
        under subsection (3)(A) or (3)(B), the court of appeals shall 
        review de novo the district court's application of the 
        guidelines to the facts''.
            (3) Decision and disposition.--
                    (A) The first paragraph of section 3742(f) of title 
                18, United States Code, is amended by striking ``the 
                sentence'';
                    (B) Section 3742(f)(1) of title 18, United States 
                Code, is amended by inserting ``the sentence'' before 
                ``was imposed'';
                    (C) Section 3742(f)(2) of title 18, United States 
                Code, is amended to read as follows:
            ``(2) the sentence is outside the applicable guideline range 
        and the district court failed to provide the required statement 
        of reasons in the order of judgment and commitment, or the 
        departure is based on an impermissible factor, or is to an 
        unreasonable degree, or the sentence was imposed for an offense 
        for which there is no applicable sentencing guideline and is 
        plainly unreasonable, it shall state specific reasons for its 
        conclusions and--
                    ``(A) if it determines that the sentence is too high 
                and the appeal has been filed under subsection (a), it 
                shall set aside the sentence and remand the case for 
                further sentencing proceedings with such instructions as 
                the court considers appropriate, subject to subsection 
                (g);
                    ``(B) if it determines that the sentence is too low 
                and the appeal has been filed under subsection (b), it 
                shall set aside the sentence and remand the case for 
                further sentencing proceedings with such instructions as 
                the court considers appropriate, subject to subsection 
                (g);''; and

[[Page 117 STAT. 671]]

                    (D) Section 3742(f)(3) of title 18, United States 
                Code, is amended by inserting ``the sentence'' before 
                ``is not described''.

    (e) Imposition of Sentence Upon Remand.--Section 3742 of title 18, 
United States Code, is amended by redesignating subsections (g) and (h) 
as subsections (h) and (i) and by inserting the following after 
subsection (f):
    ``(g) Sentencing Upon Remand.--A district court to which a case is 
remanded pursuant to subsection (f)(1) or (f)(2) shall resentence a 
defendant in accordance with section 3553 and with such instructions as 
may have been given by the court of appeals, except that--
            ``(1) In determining the range referred to in subsection 
        3553(a)(4), the court shall apply the guidelines issued by the 
        Sentencing Commission pursuant to section 994(a)(1) of title 28, 
        United States Code, and that were in effect on the date of the 
        previous sentencing of the defendant prior to the appeal, 
        together with any amendments thereto by any act of Congress that 
        was in effect on such date; and
            ``(2) The court shall not impose a sentence outside the 
        applicable guidelines range except upon a ground that--
                    ``(A) was specifically and affirmatively included in 
                the written statement of reasons required by section 
                3553(c) in connection with the previous sentencing of 
                the defendant prior to the appeal; and
                    ``(B) was held by the court of appeals, in remanding 
                the case, to be a permissible ground of departure.''.

    (f) Definitions.--Section 3742 of title 18, United States Code, as 
amended by subsection (e), is further amended by adding at the end the 
following:
    ``(j) Definitions.--For purposes of this section--
            ``(1) a factor is a `permissible' ground of departure if 
        it--
                    ``(A) advances the objectives set forth in section 
                3553(a)(2); and
                    ``(B) is authorized under section 3553(b); and
                    ``(C) is justified by the facts of the case; and
            ``(2) a factor is an `impermissible' ground of departure if 
        it is not a permissible factor within the meaning of subsection 
        (j)(1).''.

    (g) Reform <<NOTE: 28 USC 994 note.>> of Guidelines Governing 
Acceptance of Responsibility.--Subject to subsection (j), the Guidelines 
Manual promulgated by the Sentencing Commission pursuant to section 
994(a) of title 28, United States Code, is amended--
            (1) in section 3E1.1(b)--
                    (A) by inserting ``upon motion of the government 
                stating that'' immediately before ``the defendant has 
                assisted authorities''; and
                    (B) by striking ``taking one or more'' and all that 
                follows through and including ``additional level'' and 
                insert ``timely notifying authorities of his intention 
                to enter a plea of guilty, thereby permitting the 
                government to avoid preparing for trial and permitting 
                the government and the court to allocate their resources 
                efficiently, decrease the offense level by 1 additional 
                level'';
            (2) in the Application Notes to the Commentary to section 
        3E1.1, by amending Application Note 6--
                    (A) by striking ``one or both of''; and

[[Page 117 STAT. 672]]

                    (B) by adding the following new sentence at the end: 
                ``Because the Government is in the best position to 
                determine whether the defendant has assisted authorities 
                in a manner that avoids preparing for trial, an 
                adjustment under subsection (b) may only be granted upon 
                a formal motion by the Government at the time of 
                sentencing.''; and
            (3) in the Background to section 3E1.1, by striking ``one or 
        more of''.

    (h) Improved Data Collection.--Section 994(w) of title 28, United 
States Code, is amended to read as follows:
    ``(w)(1) <<NOTE: Deadline. Reports.>> The Chief Judge of each 
district court shall ensure that, within 30 days following entry of 
judgment in every criminal case, the sentencing court submits to the 
Commission a written report of the sentence, the offense for which it is 
imposed, the age, race, sex of the offender, and information regarding 
factors made relevant by the guidelines. The report shall also include--
            ``(A) the judgment and commitment order;
            ``(B) the statement of reasons for the sentence imposed 
        (which shall include the reason for any departure from the 
        otherwise applicable guideline range);
            ``(C) any plea agreement;
            ``(D) the indictment or other charging document;
            ``(E) the presentence report; and
            ``(F) any other information as the Commission finds 
        appropriate.
            ``(2) The Commission shall, upon request, make available to 
        the House and Senate Committees on the Judiciary, the written 
        reports and all underlying records accompanying those reports 
        described in this section, as well as other records received 
        from courts.
            ``(3) The Commission shall submit to Congress at least 
        annually an analysis of these documents, any recommendations for 
        legislation that the Commission concludes is warranted by that 
        analysis, and an accounting of those districts that the 
        Commission believes have not submitted the appropriate 
        information and documents required by this section.
            ``(4) The Commission shall make available to the Attorney 
        General, upon request, such data files as the Commission may 
        assemble or maintain in electronic form that include any 
        information submitted under paragraph (1). Such data files shall 
        be made available in electronic form and shall include all data 
        fields requested, including the identity of the sentencing 
        judge.''.

    (i) Sentencing <<NOTE: 28 USC 994 note.>> Guidelines Amendments.--
(1) Subject to subsection (j), the Guidelines Manual promulgated by the 
Sentencing Commission pursuant to section 994(a) of title 28, United 
States Code, is amended as follows:
            (A) Application Note 4(b)(i) to section 4B1.5 is amended to 
        read as follows:
                          ``(i) In general.--For purposes of subsection 
                      (b), the defendant engaged in a pattern of 
                      activity involving prohibited sexual conduct if on 
                      at least two separate occasions, the defendant 
                      engaged in prohibited sexual conduct with a 
                      minor.''.
            (B) Section 2G2.4(b) is amended by adding at the end the 
        following:

[[Page 117 STAT. 673]]

            ``(4) If the offense involved material that portrays 
        sadistic or masochistic conduct or other depictions of violence, 
        increase by 4 levels.
            ``(5) If the offense involved--
                    ``(A) at least 10 images, but fewer than 150, 
                increase by 2 levels;
                    ``(B) at least 150 images, but fewer than 300, 
                increase by 3 levels;
                    ``(C) at least 300 images, but fewer than 600, 
                increase by 4 levels; and
                    ``(D) 600 or more images, increase by 5 levels.''.
            (C) Section 2G2.2(b) is amended by adding at the end the 
        following:
            ``(6) If the offense involved--
                    ``(A) at least 10 images, but fewer than 150, 
                increase by 2 levels;
                    ``(B) at least 150 images, but fewer than 300, 
                increase by 3 levels;
                    ``(C) at least 300 images, but fewer than 600, 
                increase by 4 levels; and
                    ``(D) 600 or more images, increase by 5 levels.''.

    (2) The Sentencing Commission shall amend the Sentencing Guidelines 
to ensure that the Guidelines adequately reflect the seriousness of the 
offenses under sections 2243(b), 2244(a)(4), and 2244(b) of title 18, 
United States Code.
    (j) Conforming <<NOTE: 28 USC 994 note.>> Amendments.--
            (1) Upon enactment of this Act, the Sentencing Commission 
        shall forthwith distribute to all courts of the United States 
        and to the United States Probation System the amendments made by 
        subsections (b), (g), and (i) of this section to the sentencing 

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