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provided information or took action for a purpose unrelated to an activity mandated by Federal law. For pur-
poses of this subsection, the prevention, or detection of crime, and the safety, recovery, or protection of missing 
or exploited children shall be deemed, per se, to be an activity mandated by Federal law. 
Subtitle B--National Center for Missing and Exploited Children 
SEC. 321. INCREASED SUPPORT. 
«42 USCA § 5777» 
(a) IN GENERAL.—Section 408(a) of the Missing Children's Assistance Act (42 U.S.C. 5777(a)) is amended by 
striking "fiscal years 2000 through 2003" and inserting "fiscal years 2004 through 2005.". 
«42 USCA § 5773 >> 
(b) ANNUAL GRANT TO NATIONAL CENTER FOR MISSING AND EXPLOITED CHILDREN.- Section 
404(bX2) of the Missing Children's Assistance Act (42 U.S.C. 5773(bX2)) is amended by striking "$10,000,000 
for each of fiscal years 2000, 2001, 2002, and 2003" and inserting "$20,000,000 for each of the fiscal years 2004 
through 2005". 
« 18 USCA § 3056 » 
•665 SEC. 322. FORENSIC AND INVESTIGATIVE SUPPORT OF MISSING AND EXPLOITED CHIL- DREN. 
Section 3056 of title 18, United States Code, is amended by adding at the end the following: 
"(0 Under the direction of the Secretary of Homeland Security, officers and agents of the Secret Service are au-
thorized, at the request of any State or local law enforcement agency, or at the request of the National Center for 
Missing and Exploited Children, to provide forensic and investigative assistance in support of any investigation 
involving missing or exploited children.". 
SEC. 323. CREATION OF CYBER TIPLINE. 
Section 404(b)(1) of the Missing Children's Assistance Act (42 U.S.C. 5773(bX1)) is amended—
«42 USCA § 5773» 
(1) in subparagraph (F), by striking "and" at the end; 
«42 USCA § 5773» 
(2) in subparagraph (G), by striking the period at the end and inserting "; and": and 
«42 USCA § 5773 >> 
(3) by adding at the end the following: 
"(14) coordinate the operation of a cyber tipline to provide online users an effective means of reporting Inter-
net-related child sexual exploitation in the areas of--
"(i) distribution of child pornography; 
"(ii) online enticement of children for sexual acts; and 
"(iii) child prostitution.". 
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Subtitle C--Sex Offender Apprehension Program 
SEC. 341. AUTHORIZATION. 
Page 20 
Section 1701(d) of part Q of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 
3796dd(d)) is amended--
«42 USCA § 3796dd » 
(I) by redesignating paragraphs (10) and (11) as ( I I ) and (12), respectively; and 
«42 USCA § 3796dd >> 
(2) by inserting after paragraph (9) the following: 
"(10) assist a State in enforcing a law throughout the State which requires that a convicted sex offender register 
his or her address with a State or local law enforcement agency and be subject to criminal prosecution for failure 
to comply;". 
Subtitle D--Missing Children Procedures in Public Buildings 
«42 USCA § 5601 NOTE >> 
SEC. 361. SHORT TITLE. 
This subtitle may be cited as the "Code Adam Act of 2003". 
«42 USCA § 5792 >> 
SEC. 362. DEFINITIONS. 
In this subtitle, the following definitions apply: 
(1) CHILD.--The term "child" means an individual who is 17 years of age or younger. 
(2) CODE ADAM ALERT.--The term "Code Adam alert" means a set of procedures used in public buildings to 
alert employees and other users of the building that a child is missing. 
•666 (3) DESIGNATED AUTHORITY.--The term "designated authority" means--
(A) with respect to a public building owned or leased for use by an Executive agency--
(i) except as otherwise provided in this paragraph, the Administrator of General Services; 
(ii) in the case of the John F. Kennedy Center for the Performing Arts, the Board of Trustees of the John F. 
Kennedy Center for the Performing Arts; 
(iii) in the case of buildings under the jurisdiction, custody, and control of the Smithsonian Institution, the 
Board of Regents of the Smithsonian Institution; or 
(iv) in the case of another public building for which an Executive agency has, by specific or general statutory 
authority, jurisdiction, custody, and control over the building, the head of that agency; 
(B) with respect to the Supreme Court Building, the Marshal of the Supreme Court; with respect to the Thur-
good Marshall Federal Judiciary Building, the Director of the Administrative Office of United States Courts; and 
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with respect to all other public buildings owned or leased for use by an establishment in the judicial branch of 
government, the General Services Administration in consultation with the United States Marshals Service: and 
(C) with respect to a public building owned or leased for use by an establishment in the legislative branch of 
government, the Capitol Police Board. 
(4) EXECUTIVE AGENCY--The term "Executive agency" has the same meaning such term has under section 
105 of title 5, United States Code. 
(5) FEDERAL AGENCY.--The term "Federal agency" means any Executive agency or any establishment in the 
legislative or judicial branches of the Government. 
(6) PUBLIC BUILDING.--The term "public building" means any building (or portion thereof) owned or leased 
for use by a Federal agency. 
«42 USCA § 5792a >> 
SEC. 363. PROCEDURES IN PUBLIC BUILDINGS REGARDING A MISSING OR LOST CHILD. 
(a) IN GENERAL.--Not later than 180 days after the date of enactment of this Act, the designated authority for a 
public building shall establish procedures for locating a child that is missing in the building. 
(b) NOTIFICATION AND SEARCH PROCEDURES.--Procedures established under this section shall provide, 
at a minimum, for the following: 
(1) Notifying security personnel that a child is missing. 
(2) Obtaining a detailed description of the child, including name, age, eye and hair color, height, weight, cloth-
ing, and shoes. 
(3) Issuing a Code Adam alert and providing a description of the child, using a fast and effective means of com-
munication. 
(4) Establishing a central point of contact. 
(5) Monitoring all points of egress from the building while a Code Adam alert is in effect. 
(6) Conducting a thorough search of the building. 
*667 (7) Contacting local law enforcement. 
(8) Documenting the incident. 
Subtitle E--Child Advocacy Center Grants 
SEC. 381. INFORMATION AND DOCUMENTATION REQUIRED BY ATTORNEY GENERAL UNDER 
VICTIMS OF CHILD ABUSE ACT OF 1990. 
(a) REGIONAL CHILDREN'S ADVOCACY CENTERS.--Section 213 of the Victims of Child Abuse Act of 
1990 (42 U.S.C. 13001b) is amended--
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(1) in subsection (cX4)--
« 42 USCA § 13001b>> 
(A) by striking "and" at the end of subparagraph (B)(ii); 
«42 USCA § 13001b>> 
(B) in subparagraph (B)(iii), by striking "Board" and inserting "board"; and 
Page 22 
«42 USCA § 13001b>> 
(C) by redesignating subparagraphs (C) and (D) as clauses (iv) and t, respectively, of subparagraph (B), and 
by realigning such clauses so as to have the same indentation as the prece ing clauses of subparagraph (B); and 
(2) in subsection (e), by striking "Board" in each of paragraphs (I)(BXii), (2)(A), and (3), and inserting "board". 
« 42 USCA § 13004 » 
(b) AUTHORIZATION OF APPROPRIATIONS.--The text of section 214B of such Act (42 U.S.C. 13004) is 
amended to read as follows: 
"(a) SECTIONS 213 AND 2I4.--There are authorized to be appropriated to carry out sections 213 and 214, 
$15,000,000 for each of fiscal years 2004 and 2005. 
"(b) SECTION 214A.--There are authorized to be appropriated to carry out section 214A, $5,000,000 for each of 
fiscal years 2004 and 2005.". 
TITLE IV--SENTENCING REFORM 
SEC. 401. SENTENCING REFORM. 
(a) ENFORCEMENT OF SENTENCING GUIDELINES FOR CHILD ABDUCTION AND SEX OF-
FENSES.--Section 3553(b) of title IS, United States Code is amended--
« 18 USCA § 3553 >> 
(1) by striking "The court" and inserting the following: 
"(1) IN GENERAL.--Except as provided in paragraph (2), the court"; and 
«18 USCA § 3553 >> 
(2) by adding at the end the following: 
"(2) CHILD CRIMES AND SEXUAL OFFENSES.--
"(A) SENTENCING.--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, the court shall impose 
a sentence of the kind, and within the range, referred to in subsection (a)(4) unless--
"(i) the court finds that there exists an aggravating circumstance of a kind, or to a degree, not adequately 
taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sen-
tence greater than that described; 
"(ii) the court finds that there exists a mitigating circumstance of a kind or to a degree, that--
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•668 "(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, taking account of any 
amendments to such sentencing guidelines or policy statements by Congress; 
"(11) has not been taken into consideration by the Sentencing Commission in formulating the guidelines; and 
"(III) should result in a sentence different from that described; or 
"(iii) the court finds, on motion of the Government, that the defendant has provided substantial assistance in 
the investigation or prosecution of another person who has committed an offense and that this assistance estab-
lished a mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Senten-
cing Commission in formulating the guidelines that should result in a sentence lower than that described. 
In determining whether a circumstance was adequately taken into consideration, the court shall consider only the 
sentencing guidelines, policy statements, and official commentary of the Sentencing Commission, together with 
any amendments thereto by act of Congress. In the absence of an applicable sentencing guideline, the court shall 
impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2). In the absence 
of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also 
have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to 
similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission, together 
with any amendments to such guidelines or policy statements by act of Congress.". 
«28 USCA § 994 NOTE » 
(b) CONFORMING AMENDMENTS TO GUIDELINES MANUAL.—The Federal Sentencing Guidelines are 
amended—
(1) in section 51(2.0—
(A) by striking "Under" and inserting the following: 
"(a) DOWNWARD DEPARTURES IN CRIMINAL CASES OTHER THAN CHILD CRIMES AND SEXUAL 
OFFENSES.—Under"; and 
(B) by adding at the end the following: 
"(b) DOWNWARD DEPARTURES IN CHILD CRIMES AND SEXUAL OFFENSES.—
"Under 18 U.S.C. § 3553(bX2), the sentencing court may impose a sentence below the range established by the 
applicable guidelines only if the court fords 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 sen-
tencing guidelines or policy statements issued under section 994(a) of title 28, United States Code, taking ac-
count 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 
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"(3) should result in a sentence different from that described. 
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*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 Senten-
cing Manual, a ground of downward departure has not been affirmatively and specifically identified as a per-
missible ground of downward departure within the meaning of section 3553(bX2) unless it is expressly enumer-
ated 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: 
"§ 5K2.22 Specific Offender Characteristics as Grounds for Downward Departure in child crimes and sexual of-
fenses (Policy Statement) 
"In sentencing a defendant convicted of an offense under section 1201 involving a minor victim, an offense un-
der 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 § 5111.1. 
"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 § 5111.4. Dmg, 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 of-
fense 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 con-
victed 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 com-
munity 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.". 
« 18 USCA § 3553 >> 
(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 state-
ments 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."; 
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(2) by inserting ", together with the order of judgment and commitment," after "the court's statement of reasons"; 
and 
*670 (3) by inserting "and to the Sentencing Commission," after "to the Probation System". 
(d) REVIEW OF A SENTENCE.--
« 18 USCA § 3742 » 
(1) REVIEW OF DEPARTURES.--Section 3742(e)(3) of title 18, United States Code, is amended to read as fol-
lows: 
"(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) dots 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". 
«42 USCA § 3742 >> 
(2) STANDARD OF REVIEW.--The last paragraph of section 3742(e) of tide 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 (3O), 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.--
« 18 USCA § 3742 » 
(A) The first paragraph of section 3742(f) of title IS, United States Code, is amended by striking "the sen- tence"; 
« 18 USCA § 3742 >> 
(B) Section 3742(f)(1) of title 18, United States Codc, is amended by inserting "the sentence" before "was im-
posed"; 
« 18 USCA § 3742 » 
(C) Section 3742(1)(2) of title 18, United States Code, is amended to read as follows: 
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"(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 applic-
able 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 
<< 18 USCA § 3742 » 
*671 (D) Section 3742(0(3) of title 18, United States Code, is amended by inserting "the sentence" before "is 
not described". 
<< 18 USCA § 3742 >> 
(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 (0: 
"(g) SENTENCING UPON REMAND.--A district court to which a case is remanded pursuant to subsection 
(0( I) or (1)(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(aX4), 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.". 
<< 18 USCA § 3742 » 
(t) DEFINITIONS.--Section 3742 of title IS, 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--
"(I) a factor is a 'permissible' ground of departure if it--
"(A) advances the objectives set forth in section 3553(a)(2); and 
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"(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 sub-
section (j)(1).". 
« 28 USCA § 994 NOTE » 
(g) REFORM 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 3EI.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 I additional level"; 
(2) in the Application Notes to the Commentary to section 3EI.1, by amending Application Note 6--
(A) by striking "one or both of'; and 
•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 adjust-
ment under subsection (b) may only be granted upon a formal motion by the Government at the time of senten-
cing."; and 
(3) in the Background to section 3E1.1, by striking "one or more of'. 
« 28 USCA § 994 >> 
(h) IMPROVED DATA COLLECTION.--Section 994(w) of title 28, United States Code, is amended to read as 
follows: 
"(wX I) 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; 
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"(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 recom-
mendations 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 re-
quired by this section. 
"(4) The Commission shall make available to the Attorney General, upon request. such data files as the Commis-
sion 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.". 
« 28 USCA § 994 NOTE » 
(i) SENTENCING GUIDELINES AMENDMENTS.--(1) Subject to subsection (j), the Guidelines Manual pro-
mulgated 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 con-
duct with a minor.". 
(B) Section 2G2.4(b) is amended by adding at the end the following: 
*673 "(4) If the offense involved material that portrays sadistic or masochistic conduct or other depictions of vi-
olence, 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--
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"(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.". 
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«28 USCA § 994 NOTE » 
(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(aX4), and 2244(13) of title 18, United States 
Code. 
(j) CONFORMING AMENDMENTS.--
«28 USCA § 994 NOTE >> 
(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 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). 
« 28 USCA § 994 NOTE » 
(2) On or before May I, 2005, the Sentencing Commission shall not promulgate any amendment to the senten-
cing 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. 
«28 USCA § 994 NOTE » 
(3) With 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 corn-
mentary 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. 
«28 USCA § 994 NOTE >> 
(4) At 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--
« 18 USCA § 3553 » 
(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--
*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 
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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"; 
« 18 USCA § 3553 » 
(3) 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 Sen-
tencing Commission into amendments issued under section 994(p) of title 28)" after "Code"; 
« 18 USCA § 3553 » 
(C) by amending paragraph (5) to read as follows: 
"(5) any pertinent policy statement--
"(A) issued by the Sentencing Commission pursuant to section 994(aX2) of title 28, United States Code, sub-
ject to any amendments made to such policy statement by act of Congress (regardless of whether such amend-
ments 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.". 
« 28 USCA § 994 » 
(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". 
« 18 USCA § 3553 NOTE >> 
(I) REPORT 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 depar-
tures, 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 con-
sideration 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 com-
ponent in Washington concerning such adverse sentencing decisions; and 
(E) to ensure the vigorous pursuit of appropriate and meritorious appeals of such adverse decisions. 
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(2) REPORT REQUIRED.--
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*675 (A) IN GENERAL.--Not 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 sec-
tion 5K1.1 of the United States Sentencing Guidelines, the Attorney General shall submit a report to the Com-
mittees on the Judiciary of the House of Representatives and the Senate containing the information described un-
der 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 
(p the position of the parties with respect to the downward departure, whether or not the United States has 
file , or intends to file, a motion for reconsideration. 
(C) APPEAL OF THE DEPARTURE.--Not later than 5 days after a decision by the Solicitor General regard-
ing 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 Gen-
eral 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). 
«28 USCA § 994 NOTE » 
(m) REFORM OF 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 arc authorized by the sentencing guidelines, policy state-
ments, 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 en-
sure 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 comment-
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ary 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 51(2.0. 
(n) COMPOSITION OF SENTENCING COMMISSION.--
«28 USCA § 991 >> 
*676 (I) IN GENERAL.--Section 991(a) of title 28, United States Code, is amended by striking "At least three" 
and inserting "Not more than 3". 
«28 USCA § 991 NOTE >> 
(2) APPLICABILITY.--The 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 I --OBSCENITY AND PORNOGRAPHY 
Subtitle A--Child Obscenity and Pornography Prevention 
« 18 USCA § 2251 NOTE » 
SEC. 501. FINDINGS. 
Congress finds the following: 
(I) Obscenity and child pornography are not entitled to p/ection under the First Amendment under 
California, 413 U.S. 15 (1973) (obscenity), or New York 
Ferber, 458 U.S. 747 (1982) (child pornograp y 
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 I 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 
Ohio, 495 U.S. 103, 110 (1990). 
(3) The Government thus has a compelling interest in ensuring that the criminal prohibitions against child por-
nography remain enforceable and effective. "The most expeditious if not the only practical method of law en-
forcement 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 
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already, to computer generate realistic images of children. 
*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 crim-
inal defendants to suggest that the images of child pornography they possess are not those of real children, in-
sisting that the government prove beyond a reasonable doubt that the images are not computer-generated. Such 
challenges increased significantly after the decision in Ashcroft'. 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 retransmis-
sion of images can alter the image so as to make it difficult for even an expert conclusively to opine that a par-
ticular 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 porno-
graphy 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 gov-
ernment, in nearly every child pornography prosecution, to find proof that the child is real. Some of these de-
fense efforts have already been successful. In addition, the number of prosecutions being brought has been signi-
ficantly and adversely affected as the resources required to be dedicated to each child pornography case now arc 
significantly higher than ever before. 
(II) 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 *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 porno-
graphy 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. 
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(13) In the absence of congressional action, the difficulties in enforcing the child pornography laws will contin-
ue 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 pos-
sess 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 pro-
tect real children unenforceable. Moreover, imposing an additional requirement that the Government prove bey-
ond a reasonable doubt that the defendant knew that the image was in fact a real child--as some courts have 
done--threatens to result in the de facto legalization of the possession, receipt, and distribution of child porno-
graphy for all except the original producers of the material. 
(14) To avoid this grave threat to the Government's unquestioned compelling interest in effective enforcement of 
the child pornography laws that protect real children, a statute must be adopted that prohibits a narrowly-defined 
subcategory of images. 
(15) The Supreme Court's 1982 Ferber'. New York decision holding that child pornography was not protected 
drove child pornography off the shelves of adult bookstores. Congressional action is necessary now to ensure 
that open and notorious trafficking in such materials does not reappear, and even increase, on the Internet. 
SEC. 502. IMPROVEMENTS TO PROHIBITION ON VIRTUAL CHILD PORNOGRAPHY. 
(a) Section 2256(8) of title 18, United States Code, is amended--
« 18 USCA § 2256» 
(1) so that subparagraph (B) reads as follows: 
"(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indis-
tinguishable from, that of a minor engaging in sexually explicit conduct; or": 
« 18 USCA § 2256 >> 
(2) by striking "; or" at the end of subparagraph (C) and inserting a period; and 
« 18 USCA § 2256» 
(3) by striking subparagraph (D). 
« 18 USCA § 2256» 
(b) Section 2256(2) of title 18, United States Code, is amended to read as follows: 
"(2)(A) Except as provided in subparagraph (B), 'sexually explicit conduct' means actual or simulated--
'679 "(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between 
persons of the same or opposite sex; 
"(ii) bestiality; 
"(iii) masturbation; 
"(iv) sadistic or masochistic abuse; or 
"(I) lascivious exhibition of the genitals or pubic area of any person; 
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"(B) For purposes of subsection 8(B) of this section, 'sexually explicit conduct' means--
"(i) graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether 
between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, 
breast, or pubic area of any person is exhibited; 
"(ii) graphic or lascivious simulated; 
"(I) bestiality; 
"(II) masturbation; or 
"(III) sadistic or masochistic abuse; or 
"(iii) graphic or simulated lascivious exhibition of the genitals or pubic area of any person;". 
c< 18 USCA § 2256 >> 
(c) Section 2256 is amended by inserting at the end the following new paragraphs: 
"(10) 'graphic', when used with respect to a depiction of sexually explicit conduct, means that a viewer can ob-
serve any part of the genitals or pubic area of any depicted person or animal during any pan of the time that the 
sexually explicit conduct is being depicted; and 
"(11) the term 'indistinguishable' used with respect to a depiction, means virtually indistinguishable, in that the 
depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual 
minor engaged in sexually explicit conduct. This definition does not apply to depictions that are drawings, car-
toons, sculptures, or paintings depicting minors or adults.". 
« 18 USCA § 2252A >> 
(d) Section 2252A(c) of title IS, United States Code, is amended to read as follows: 
"(c) It shall be an affirmative defense to a charge of violating paragraph (1), (2), (3)(A), (4), or (5) of subsection 
(a) that--
"(1XA) the alleged child pornography was produced using an actual person or persons engaging in sexually ex-
plicit conduct; and 
"(B) each such person was an adult at the time the material was produced; or 
"(2) the alleged child pornography was not produced using any actual minor or minors. 
No affirmative defense under subsection (c)(2) shall be available in any prosecution that involves child porno-
graphy as described in section 2256(8XC). A defendant may not assert an affirmative defense to a charge of vi-
olating paragraph (1), (2), (3XA), (4), or (5) of subsection (a) unless, within the time provided for filing pretrial 
motions or at such time prior to trial as the judge may direct, but in no event later than 10 days before the com-
mencement of the trial, the defendant provides the court and the United States with notice of the intent to assert 
such defense and the substance of any expert or other specialized testimony or evidence upon which the defend-
ant intends to rely. If the defendant fails to comply *680 with this subsection, the court shall, absent a finding of 
extraordinary circumstances that prevented timely compliance, prohibit the defendant from asserting such de-
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fense to a charge of violating paragraph (1), (2), (3)(A), (4), or (5) of subsection (a) or presenting any evidence 
for which the defendant has failed to provide proper and timely notice.". 
SEC. 503. CERTAIN ACTIVITIES RELATING TO MATERIAL CONSTITUTING OR CONTAINING 
CHILD PORNOGRAPHY. 
Section 2252A of title 18, United States Code, is amended--
« 18 USCA § 2252A >> 
(I) in subsection (a)--
(A) by striking paragraph (3) and inserting the following: 
"(3) knowingly--
"(A) reproduces any child pornography for distribution through the mails, or in interstate or foreign commerce 
by any means, including by computer; or 
"(B) advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign com-
merce by any means, including by computer, any material or purported material in a manner that reflects the be-
lief, or that is intended to cause another to believe, that the material or purported material is, or contains--
"(i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or 
"(ii) a visual depiction of an actual minor engaging in sexually explicit conduct;"; 
« 18 USCA § 2252A >> 
(B) in paragraph (4), by striking "or" at the end; 
« 18 USCA § 2252A » 
(C) in paragraph (5), by striking the comma at the end and inserting "; or"; and 
« 18 USCA § 2252A » 
(D) by adding after paragraph (5) the following: 
"(6) knowingly distributes, offers, sends, or provides to a minor any visual depiction, including any photograph, 
film, video, picture, or computer generated image or picture, whether made or produced by electronic, mechan-
ical, or other means, where such visual depiction is, or appears to be, of a minor engaging in sexually explicit 
conduct--
"(A) that has been mailed, shipped, or transported in interstate or foreign commerce by any means, including 
by computer; 
"(B) that was produced using materials that have been mailed, shipped, or transported in interstate or foreign 
commerce by any means, including by computer; or 
"(C) which distribution, offer, sending, or provision is accomplished using the mails or by transmitting or 
causing to be transmitted any wire communication in interstate or foreign commerce, including by computer, 
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for purposes of inducing or persuading a minor to participate in any activity that is illegal."; and 
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<< 18 USCA § 2252A >> 
(2) in subsection (WOO, by striking "paragraphs (1), (2), (3), or (4)" and inserting "paragraph (I). (2), (3), (4), or 
(6)". 
SEC. 504. OBSCENE CHILD PORNOGRAPHY. 
<< 18 USCA § 1466A >> 
(a) IN GENERAL.--Chapter 71 of title 18, United States Code, is amended by inserting after section 1466 the 
following: 
•681 "§ 1466A. Obscene visual representations of the sexual abuse of children 
"(a) IN GENERAL.--Any person who, in a circumstance described in subsection (d), knowingly produces, dis-
tributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, car-
toon, sculpture, or painting, that--
"(1)(A) depicts a minor engaging in sexually explicit conduct; and 
"(B) is obscene; or 
"(2)(A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or mas-
ochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether 
between persons of the same or opposite sex; and 
"(B) lacks serious literary, artistic, political, or scientific value; 
or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(1), including the 
penalties provided for cases involving a prior conviction. 
"(b) ADDITIONAL OFFENSES.--Any person who, in a circumstance described in subsection (d), knowingly 
possesses a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that--
"(I XA) depicts a minor engaging in sexually explicit conduct; and 
"(B) is obscene; or 
"(2XA) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or mas-
ochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether 
between persons of the same or opposite sex; and 
"(B) lacks serious literary, artistic, political, or scientific value; 
or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(2), including the 
penalties provided for cases involving a prior conviction. 
"(c) NONREQUIRED ELEMENT OF OFFENSE.--It is not a required element of any offense under this section 
that the minor depicted actually exist. 
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"(d) CIRCUMSTANCES.--The circumstance referred to in subsections (a) and (b) is that--
"(1) any communication involved in or made in furtherance of the offense is communicated or transported by the 
mail, or in interstate or foreign commerce by any means, including by computer, or any means or instrumentality 
of interstate or foreign commerce is otherwise used in committing or in furtherance of the commission of the of-
fense; 
"(2) any communication involved in or made in furtherance of the offense contemplates the transmission or 
transportation of a visual depiction by the mail, or in interstate or foreign commerce by any means, including by 
computer; 
"(3) any person travels or is transported in interstate or foreign commerce in the course of the commission or in 
furtherance of the commission of the offense; 
"(4) any visual depiction involved in the offense has been mailed, or has been shipped or transported in inter-
state or foreign commerce by any means, including by computer, or *682 was produced using materials that 
have been mailed, or that have been shipped or transported in interstate or foreign commerce by any means, in-
cluding by computer; or 
"(5) the offense is cornmined in the special maritime and territorial jurisdiction of the United States or in any 
territory or possession of the United States. 
"(e) AFFIRMATIVE DEFENSE--It shall be an affirmative defense to a charge of violating subsection (b) that 
the defendant--
"(1) possessed less than 3 such visual depictions; and 
"(2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement 
agency, to access any such visual depiction--
"(A) took reasonable steps to destroy each such visual depiction; or 
"(B) reported the matter to a law enforcement agency and afforded that agency access to each such visual de-
piction. 
DEFINITIONS.--For purposes of this section--
"(I) the term 'visual depiction' includes undeveloped film and videotape, and data stored on a computer disk or 
by electronic means which is capable of conversion into a visual image, and also includes any photograph, film, 
video, picture, digital image or picture, computer image or picture, or computer generated image or picture, 
whether made or produced by electronic, mechanical, or other means; 
"(2) the term 'sexually explicit conduct' has the meaning given the term in section 2256(2M) or 2256(2XB); and 
"(3) the term 'graphic', when used with respect to a depiction of sexually explicit conduct, means that a viewer 
can observe any part of the genitals or pubic area of any depicted person or animal during any part of the time 
that the sexually explicit conduct is being depicted.". 
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