The Feeney Amendment. Part I. Sex Crimes.

Below please find some of my notes on the Feeney Amendment. If you have any other questions, I can e-mail you a draft of a paper that, by the way, will be included in the CLE materials of a national bar association. I am not yet sure who will hold the copyright. And so I refrain from posting the entire document online. Indeed, what follows are notes taken from the paper using different language and syntax than in the draft for publication.

There is no express or implied warranty of habitabiliy. This is also not legal advice.

Sex Crimes

In all cases brought under 18 U.S.C. §1201 involving minors, and all offenses committed under §1591 or Chapters 71, 109A, or 117, of Title 18, several changes apply.

A judge may not issue a downward departure (Ed Note: I don't care about upward depatures.) based on an unenumerated circumstance. U.S.S.G. §5K2.0(b)(1). An unenumerated circumstance is one that has not been "affirmatively and specifically identified as a permissible ground of downward departure in the sentencing guidelines." Id. and Application Note. Departures are proper only if based on factors articulated in Chapter 5, Part K. U.S.S.G. §2G2.2(b)(5)(A)-(D).

There are several factors that the sentencing court may no longer rely upon. Age may be used as a factor to downward depart only to the extent that age may be used under 5H1.1. An extraordinary physical impairment is relevant for a downward departure only to the extent that physical condition may be relied upon under 5H1.4. Aberrant behavior is no longer a proper reason for a downward departure. Family ties and responsibilities are never a reason for a downward departure. United States v. Galante, 111 F.3d 1029, 1035 (2d Cir. 1997) is therefore overruled. This amends 5H1.6, which provides that family ties are not ordinarily relevant. Gambling dependence is no longer a factor a court may consider as a for a departure. 5H1.4.

Chapter 4, Part B1.5, Application Note 4(b)(i) changes the definition of pattern of sex crimes: now two or more sex acts with the same minor is a pattern of sexual misconduct. Previously, two separate offenses against two separate victims were required to qualify the defendant for a 4B1.5 base level increase.

The defendant will be subject to a 4 level enhancement if convicted with material depicting minors engaged in sadistic or masochistic acts. 2G2.2(b)(3)

There is now a sliding scale for a base level increase in cases involving multiple pornographic images. U. S.S.G. §2G2.2(b)(6)(A)-(D). Ten to 150 images will subject the defendant to a 2 level base increase. U.S.S.G. §2G2.2(b)(6)(A). From 150 to 300 images will subject the defendant to a base level increase of 3. U.S.S.G. §2G2.2(b)(6)(B). From 300 to 600 will subject the defendant to a 4 level increase. U.S.S.G. §2G2.2(b)(6)(C). A defendant found with 600 or more images will have his base level increased by 5 levels. U.S.S.G. §2G2.2(b)(6)(D).

The Post-Feeney Guidelines are available here.