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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        guidelines, policy statements, and official commentary of the 
        Sentencing Commission. These amendments shall take effect upon 
        the date of enactment of this Act, in accordance with paragraph 
        (5).
            (2) On <<NOTE: 28 USC 994 note.>> or before May 1, 2005, the 
        Sentencing Commission shall not promulgate any amendment to the 
        sentencing guidelines, policy statements, or official commentary 
        of the Sentencing Commission that is inconsistent with any 
        amendment made by subsection (b) or that adds any new grounds of 
        downward departure to Part K of chapter 5.
            (3) With <<NOTE: 28 USC 994 note.>> respect to cases covered 
        by the amendments made by subsection (i) of this section, the 
        Sentencing Commission may make further amendments to the 
        sentencing guidelines, policy statements, or official commentary 
        of the Sentencing Commission, except that the Commission shall 
        not promulgate any amendments that, with respect to such cases, 
        would result in sentencing ranges that are lower than those that 
        would have applied under such subsection.
            (4) At <<NOTE: 28 USC 994 note.>> no time may the Commission 
        promulgate any amendment that would alter or repeal the 
        amendments made by subsection (g) of this section.
            (5) Section 3553(a) of title 18, United States Code, is 
        amended--
                    (A) by amending paragraph (4)(A) to read as follows:
                    ``(A) the applicable category of offense committed 
                by the applicable category of defendant as set forth in 
                the guidelines--

[[Page 117 STAT. 674]]

                          ``(i) issued by the Sentencing Commission 
                      pursuant to section 994(a)(1) of title 28, United 
                      States Code, subject to any amendments made to 
                      such guidelines by act of Congress (regardless of 
                      whether such amendments have yet to be 
                      incorporated by the Sentencing Commission into 
                      amendments issued under section 994(p) of title 
                      28); and
                          ``(ii) that, except as provided in section 
                      3742(g), are in effect on the date the defendant 
                      is sentenced; or'';
                    (B) in paragraph (4)(B), by inserting ``, taking 
                into account any amendments made to such guidelines or 
                policy statements by act of Congress (regardless of 
                whether such amendments have yet to be incorporated by 
                the Sentencing Commission into amendments issued under 
                section 994(p) of title 28)'' after ``Code'';
                    (C) by amending paragraph (5) to read as follows:
            ``(5) any pertinent policy statement--
                    ``(A) issued by the Sentencing Commission pursuant 
                to section 994(a)(2) of title 28, United States Code, 
                subject to any amendments made to such policy statement 
                by act of Congress (regardless of whether such 
                amendments have yet to be incorporated by the Sentencing 
                Commission into amendments issued under section 994(p) 
                of title 28); and
                    ``(B) that, except as provided in section 3742(g), 
                is in effect on the date the defendant is sentenced.''.

    (k) Compliance With Statute.--Section 994(a) of title 28, United 
States Code, is amended by striking ``consistent with all pertinent 
provisions of this title and title 18, United States Code,'' and 
inserting ``consistent with all pertinent provisions of any Federal 
statute''.
    (l) Report <<NOTE: 18 USC 3553 note.>> by Attorney General.--
            (1) Defined term.--For purposes of this section, the term 
        ``report described in paragraph (3)'' means a report, submitted 
        by the Attorney General, which states in detail the policies and 
        procedures that the Department of Justice has adopted subsequent 
        to the enactment of this Act--
                    (A) to ensure that Department of Justice attorneys 
                oppose sentencing adjustments, including downward 
                departures, that are not supported by the facts and the 
                law;
                    (B) to ensure that Department of Justice attorneys 
                in such cases make a sufficient record so as to permit 
                the possibility of an appeal;
                    (C) to delineate objective criteria, specified by 
                the Attorney General, as to which such cases may warrant 
                consideration of an appeal, either because of the nature 
                or magnitude of the sentencing error, its prevalence in 
                the district, or its prevalence with respect to a 
                particular judge;
                    (D) to ensure that Department of Justice attorneys 
                promptly notify the designated Department of Justice 
                component in Washington concerning such adverse 
                sentencing decisions; and
                    (E) to ensure the vigorous pursuit of appropriate 
                and meritorious appeals of such adverse decisions.
            (2) Report required.--

[[Page 117 STAT. 675]]

                    (A) In general.--Not <<NOTE: Deadline.>> later than 
                15 days after a district court's grant of a downward 
                departure in any case, other than a case involving a 
                downward departure for substantial assistance to 
                authorities pursuant to section 5K1.1 of the United 
                States Sentencing Guidelines, the Attorney General shall 
                submit a report to the Committees on the Judiciary of 
                the House of Representatives and the Senate containing 
                the information described under subparagraph (B).
                    (B) Contents.--The report submitted pursuant to 
                subparagraph (A) shall set forth--
                          (i) the case;
                          (ii) the facts involved;
                          (iii) the identity of the district court 
                      judge;
                          (iv) the district court's stated reasons, 
                      whether or not the court provided the United 
                      States with advance notice of its intention to 
                      depart; and
                          (v) the position of the parties with respect 
                      to the downward departure, whether or not the 
                      United States has filed, or intends to file, a 
                      motion for reconsideration.
                    (C) Appeal of the departure.--
                Not <<NOTE: Deadline.>> later than 5 days after a 
                decision by the Solicitor General regarding the 
                authorization of an appeal of the departure, the 
                Attorney General shall submit a report to the Committees 
                on the Judiciary of the House of Representatives and the 
                Senate that describes the decision of the Solicitor 
                General and the basis for such decision.
            (3) Effective date.--Paragraph (2) shall take effect on the 
        day that is 91 days after the date of enactment of this Act, 
        except that such paragraph shall not take effect if not more 
        than 90 days after the date of enactment of this Act the 
        Attorney General has submitted to the Judiciary Committees of 
        the House of Representatives and the Senate the report described 
        in paragraph (3).

    (m) Reform of <<NOTE: 28 USC 994 note. Deadline.>> Existing 
Permissible Grounds of Downward Departures.--Not later than 180 days 
after the enactment of this Act, the United States Sentencing Commission 
shall--
            (1) review the grounds of downward departure that are 
        authorized by the sentencing guidelines, policy statements, and 
        official commentary of the Sentencing Commission; and
            (2) promulgate, pursuant to section 994 of title 28, United 
        States Code--
                    (A) appropriate amendments to the sentencing 
                guidelines, policy statements, and official commentary 
                to ensure that the incidence of downward departures are 
                substantially reduced;
                    (B) a policy statement authorizing a downward 
                departure of not more than 4 levels if the Government 
                files a motion for such departure pursuant to an early 
                disposition program authorized by the Attorney General 
                and the United States Attorney; and
                    (C) any other conforming amendments to the 
                sentencing guidelines, policy statements, and official 
                commentary of the Sentencing Commission necessitated by 
                this Act, including a revision of paragraph 4(b) of part 
                A of chapter 1 and a revision of section 5K2.0.

    (n) Composition of Sentencing Commission.--

[[Page 117 STAT. 676]]

            (1) In general.--Section 991(a) of title 28, United States 
        Code, is amended by striking ``At least three'' and inserting 
        ``Not more than 3''.
            (2) Applicability.--The <<NOTE: 28 USC 991 note.>> amendment 
        made under paragraph (1) shall not apply to any person who is 
        serving, or who has been nominated to serve, as a member of the 
        Sentencing Commission on the date of enactment of this Act.

                   TITLE V--OBSCENITY AND PORNOGRAPHY

         Subtitle A--Child Obscenity and Pornography Prevention

SEC. 501. <<NOTE: 18 USC 2251 note.>> FINDINGS.

    Congress finds the following:
            (1) Obscenity and child pornography are not entitled to 
        protection under the First Amendment under Miller v. California, 
        413 U.S. 15 (1973) (obscenity), or New York v. Ferber, 458 U.S. 
        747 (1982) (child pornography) and thus may be prohibited.
            (2) The Government has a compelling state interest in 
        protecting children from those who sexually exploit them, 
        including both child molesters and child pornographers. ``The 
        prevention of sexual exploitation and abuse of children 
        constitutes a government objective of surpassing importance,'' 
        New York v. Ferber, 458 U.S. 747, 757 (1982), and this interest 
        extends to stamping out the vice of child pornography at all 
        levels in the distribution chain. Osborne v. Ohio, 495 U.S. 103, 
        110 (1990).
            (3) The Government thus has a compelling interest in 
        ensuring that the criminal prohibitions against child 
        pornography remain enforceable and effective. ``The most 
        expeditious if not the only practical method of law enforcement 
        may be to dry up the market for this material by imposing severe 
        criminal penalties on persons selling, advertising, or otherwise 
        promoting the product.'' Ferber, 458 U.S. at 760.
            (4) In 1982, when the Supreme Court decided Ferber, the 
        technology did not exist to--
                    (A) computer generate depictions of children that 
                are indistinguishable from depictions of real children;
                    (B) use parts of images of real children to create a 
                composite image that is unidentifiable as a particular 
                child and in a way that prevents even an expert from 
                concluding that parts of images of real children were 
                used; or
                    (C) disguise pictures of real children being abused 
                by making the image look computer-generated.
            (5) Evidence submitted to the Congress, including from the 
        National Center for Missing and Exploited Children, demonstrates 
        that technology already exists to disguise depictions of real 
        children to make them unidentifiable and to make depictions of 
        real children appear computer-generated. The technology will 
        soon exist, if it does not already, to computer generate 
        realistic images of children.

[[Page 117 STAT. 677]]

            (6) The vast majority of child pornography prosecutions 
        today involve images contained on computer hard drives, computer 
        disks, and/or related media.
            (7) There is no substantial evidence that any of the child 
        pornography images being trafficked today were made other than 
        by the abuse of real children. Nevertheless, technological 
        advances since Ferber have led many criminal defendants to 
        suggest that the images of child pornography they possess are 
        not those of real children, insisting that the government prove 
        beyond a reasonable doubt that the images are not computer-
        generated. Such challenges increased significantly after the 
        decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234 
        (2002).
            (8) Child pornography circulating on the Internet has, by 
        definition, been digitally uploaded or scanned into computers 
        and has been transferred over the Internet, often in different 
        file formats, from trafficker to trafficker. An image seized 
        from a collector of child pornography is rarely a first-
        generation product, and the retransmission of images can alter 
        the image so as to make it difficult for even an expert 
        conclusively to opine that a particular image depicts a real 
        child. If the original image has been scanned from a paper 
        version into a digital format, this task can be even harder 
        since proper forensic assessment may depend on the quality of 
        the image scanned and the tools used to scan it.
            (9) The impact of the Free Speech Coalition decision on the 
        Government's ability to prosecute child pornography offenders is 
        already evident. The Ninth Circuit has seen a significant 
        adverse effect on prosecutions since the 1999 Ninth Circuit 
        Court of Appeals decision in Free Speech Coalition. After that 
        decision, prosecutions generally have been brought in the Ninth 
        Circuit only in the most clear-cut cases in which the government 
        can specifically identify the child in the depiction or 
        otherwise identify the origin of the image. This is a fraction 
        of meritorious child pornography cases. The National Center for 
        Missing and Exploited Children testified that, in light of the 
        Supreme Court's affirmation of the Ninth Circuit decision, 
        prosecutors in various parts of the country have expressed 
        concern about the continued viability of previously indicted 
        cases as well as declined potentially meritorious prosecutions.
            (10) Since the Supreme Court's decision in Free Speech 
        Coalition, defendants in child pornography cases have almost 
        universally raised the contention that the images in question 
        could be virtual, thereby requiring the government, in nearly 
        every child pornography prosecution, to find proof that the 
        child is real. Some of these defense efforts have already been 
        successful. In addition, the number of prosecutions being 
        brought has been significantly and adversely affected as the 
        resources required to be dedicated to each child pornography 
        case now are significantly higher than ever before.
            (11) Leading experts agree that, to the extent that the 
        technology exists to computer generate realistic images of child 
        pornography, the cost in terms of time, money, and expertise 
        is--and for the foreseeable future will remain--prohibitively 
        expensive. As a result, for the foreseeable future, it will be 
        more cost-effective to produce child pornography using real

[[Page 117 STAT. 678]]

        children. It will not, however, be difficult or expensive to use 
        readily available technology to disguise those depictions of 
        real children to make them unidentifiable or to make them appear 
        computer-generated.
            (12) Child pornography results from the abuse of real 
        children by sex offenders; the production of child pornography 
        is a byproduct of, and not the primary reason for, the sexual 
        abuse of children. There is no evidence that the future 
        development of easy and inexpensive means of computer generating 
        realistic images of children would stop or even reduce the 
        sexual abuse of real children or the practice of visually 
        recording that abuse.
            (13) In the absence of congressional action, the 
        difficulties in enforcing the child pornography laws will 
        continue to grow increasingly worse. The mere prospect that the 
        technology exists to create composite or computer-generated 
        depictions that are indistinguishable from depictions of real 
        children will allow defendants who possess images of real 
        children to escape prosecution; for it threatens to create a 
        reasonable doubt in every case of computer images even when a 
        real child was abused. This threatens to render child 
        pornography laws that protect real children unenforceable. 
        Moreover, imposing an additional requirement that the Government 
        prove beyond a reasonable doubt that the defendant knew that the 
        image was in fact a real child--as some courts have done--

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