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                                                      Calendar No. 148
116th Congress      }                                   {       Report
                                SENATE
 1st Session        }                                   {       116-56
_______________________________________________________________________

                                     


                       REPRESENTATIVE PAYEE FRAUD

                         PREVENTION ACT OF 2019

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 1430

       TO AMEND TITLE 5, UNITED STATES CODE, TO PREVENT FRAUD BY 
                         REPRESENTATIVE PAYEES

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                 July 15, 2019.--Ordered to be printed


                                   ______
		 
                     U.S. GOVERNMENT PUBLISHING OFFICE 
		 
89-010                    WASHINGTON : 2019                 




















        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
ROB PORTMAN, Ohio                    GARY C. PETERS, Michigan
RAND PAUL, Kentucky                  THOMAS R. CARPER, Delaware
JAMES LANKFORD, Oklahoma             MAGGIE HASSAN, New Hampshire
MITT ROMNEY, Utah                    KAMALA D. HARRIS, California
RICK SCOTT, Florida                  KYRSTEN SINEMA, Arizona
MICHAEL B. ENZI, Wyoming             JACKY ROSEN, Nevada
JOSH HAWLEY, Missouri

                Gabrielle D'Adamo Singer, Staff Director
                  Joseph C. Folio, III, Chief Counsel
           Helen M. Heiden, Senior Professional Staff Member
               David M. Weinberg, Minority Staff Director
               Zachary I. Schram, Minority Chief Counsel
      Ashley E. Poling, Minority Director of Governmental Affairs
       Annika W. Christensen, Minority Professional Staff Member
                     Laura W. Kilbride, Chief Clerk

























                                                      Calendar No. 148
116th Congress      }                                   {       Report
                                SENATE
 1st Session        }                                   {       116-56

======================================================================



 
                 REPRESENTATIVE PAYEE FRAUD PREVENTION 
                              ACT OF 2019

                                _______
                                

                 July 15, 2019.--Ordered to be printed

                                _______
                                

 Mr. Johnson, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 1430]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 1430) to amend 
title 5, United States Code, to prevent fraud by representative 
payees, having considered the same, reports favorably thereon 
with amendments and recommends that the bill, as amended, do 
pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................2
III. Legislative History..............................................3
 IV. Section-by-Section Analysis......................................4
  V. Evaluation of Regulatory Impact..................................5
 VI. Congressional Budget Office Cost Estimate........................5
VII. Changes in Existing Law Made by the Bill, as Reported............6

                         I. Purpose and Summary

    The purpose of S. 1430, the Representative Payee Fraud 
Prevention Act of 2019, is to protect recipients of Federal 
retiree benefits from unscrupulous caretakers who take the 
retiree's payments and use them not for the retiree's benefit, 
but for their own. S. 1430 closes a loophole that currently 
exists in statute whereby the embezzlement or conversion of 
Social Security and Veterans' benefits by representative payees 
is a Federal felony, but the same embezzlement or conversion of 
benefits provided to Federal retirees through the Federal 
retirement system is not.\1\
---------------------------------------------------------------------------
    \1\On July 27, 2015, the Committee approved S. 1576, the 
Representative Payee Fraud Prevention Act of 2015. That bill is 
substantially similar to S. 1430. Accordingly, this committee report is 
in large part a reproduction of Chairman Johnson's committee report for 
S. 1576, S. Rep. No 114-95.
---------------------------------------------------------------------------

              II. Background and the Need for Legislation

    In addition to other Federal benefits, Federal employees 
may be eligible for Federal retiree benefits processed through 
the Office of Personnel and Management (OPM): Federal Employees 
Retirement System (FERS) benefits,\2\ and Civil Service 
Retirement System (CSRS) benefits.\3\ Under Federal statute, 
individuals who are minors, mentally incompetent, or under some 
other qualifying legal disability can have their benefits paid 
on their behalf through a court-appointed or agency-approved 
representative.\4\ Such individuals authorized to receive the 
payments under these circumstances are frequently referred to 
as ``representative payees.''
---------------------------------------------------------------------------
    \2\5 U.S.C. Sec. 8401, et seq.
    \3\5 U.S.C. Sec. 8331, et seq.
    \4\ 5 U.S.C. Sec. 8466(c); 5 U.S.C. 8345(e).
---------------------------------------------------------------------------
    The OPM Office of Inspector General (OIG) has reported to 
Congress an increase during recent years in the number of 
representative payees who take advantage of their position and 
use the money they receive for purposes other than to benefit 
the Federal retiree.\5\ The OPM OIG has further reported that 
OPM has an antiquated paper system for tracking representative 
payees.\6\
---------------------------------------------------------------------------
    \5\Meetings and written communication between OPM IG staff and 
Committee staff in May, June, and July, 2015.
    \6\Meetings between OPM IG staff and Committee staff in May, June, 
and July, 2015.
---------------------------------------------------------------------------
    From 2004 to 2005, Congress created penalties for anyone 
who takes funds from Social Security Disability Insurance 
Benefits,\7\ Social Security Supplemental Income,\8\ or 
Veterans' Benefits\9\ and fraudulently uses the funds for their 
own purposes, rather than on behalf of the intended recipient. 
These statutes criminalize such misuse of government benefits 
as a felony, punishable by a fine of up to $250,000, up to five 
years in prison, or both.\10\
---------------------------------------------------------------------------
    \7\42 U.S.C. Sec. 408 (characterizing the conversion of another's 
Social Security benefit payments as a felony, punishable by fine 
pursuant to title 18 and/or up to five years in prison).
    \8\8 42 U.S.C. Sec. 1383a.
    \9\38 U.S.C. Sec. 6101 (criminalizing fiduciary misuse of money or 
property intended for the veteran's use).
    \10\18 U.S.C. Sec. 3571(b)(3).
---------------------------------------------------------------------------
    No similar penalty was created for those represenatives who 
misuse or embezzle CSRS or FERS benefits distributed by OPM. 
The absence of Federal statutory authority often dissuades U.S. 
Attorneys from bringing to justice those appointed to take care 
of government retirees' benefits when they use these funds for 
any purpose other than for the benefit of the retiree that they 
represent.\11\
---------------------------------------------------------------------------
    \11\Meetings between OPM IG staff and Committee staff in May, June, 
and July, 2015.
---------------------------------------------------------------------------
    In one example provided by the OPM OIG, Sakina Park 
represented that she was running a personal care facility out 
of her home in Philadelphia, housing at least seven people with 
mental-health problems.\12\ However, Ms. Park did not have a 
license to do so.\13\ At least one of the individuals alleged 
to be under her care was an annuitant entitled to OPM benefits, 
but mentally incompetent and unable to accept Federal payments 
for herself.\14\ Ms. Park was listed as that individual's 
represenative payee, authorized to collect OPM benefits on the 
annuitant's behalf.\15\ In 2009, investigators arrived with 
police at the home and removed the occupants.\16\ At that time, 
it was discovered that the annuitant was not present--Ms. Park 
stated that the retiree was ``always running away'' and 
investigators found she had been admitted to another facility 
after being found on a street unconscious.\17\ The OPM OIG 
determined that Ms. Park had received just under $8,000 from 
OPM on the annuitant's behalf and did not use any of those 
funds to care for the annuitant.\18\
---------------------------------------------------------------------------
    \12\Information provided to Committee staff by the OPM IG; see also 
Court shuts down West Philly mental health facility, Philly.com (Jan. 
18, 2008).
    \13\See Court shuts down West Philly mental health facility, 
Philly.com (Jan. 18, 2008).
    \14\Information provided to Committee staff by the OPM OIG; see 
also Court shuts down West Philly mental health facility, Philly.com 
(Jan. 18, 2008).
    \15\Information provided to Committee staff by the OPM OIG.
    \16\Information provided to Committee staff by the OPM OIG; see 
also Court shuts down West Philly mental health facility, Philly.com 
(Jan. 18, 2008).
    \17\Information provided to Committee staff by the OPM OIG.
    \18\Id.
---------------------------------------------------------------------------
    The local district attorney prosecuted Ms. Park in 2013 
because she also embezzled Social Security benefits from other 
individuals that were supposed to be in her care. Federal 
prosecutors may be reluctant to prosecute the misuse of OPM 
benefit payments alone because while such conduct may violate 
state embezzlement or conversion laws, it is not a specific 
Federal crime.\19\
---------------------------------------------------------------------------
    \19\Meetings between OPM OIG staff and Committee staff in May, 
June, and July, 2015.
---------------------------------------------------------------------------
    The Committee believes this lack of Federal penalty leaves 
some of its most vulnerable civil servants, including those who 
may be mentally incompetent, with less legal recourse when they 
are taken advantage of and their retirement funds are misused. 
This legislation criminalizes the misuse of CSRS and FERS funds 
in the same manner that already exists for Social Security and 
Veterans' benefits. In addition to prosecuting those who 
abscond with benefits intended for government retirees, S. 1430 
prevents those who have committed this crime before (whether 
for CSRS, FERS, Social Security, or Veterans' benefits) from 
serving in the future as a representative payee.

                        III. Legislative History

    Senators James Lankford, Gary Peters, and Kyrsten Sinema 
introduced S. 1430 on May 13, 2019. The bill was referred to 
the Committee on Homeland Security and Governmental Affairs.
    The Committee considered S. 1430 at a business meeting on 
May 15, 2019. The Committee ordered the bill reported favorably 
en bloc by voice vote as amended. Senators present for the vote 
on the bill were Senators Johnson, Paul, Lankford, Scott, 
Peters, Carper, Hassan, and Rosen. For the record only, 
Senators Portman, Romney, Hawley, and Sinema later asked to be 
recorded as a ``yes'' by unanimous consent.
    Consistent with Committee rules, the Committee reports the 
bill with a technical amendment by mutual agreement of the 
Chairman and Ranking Member.

        IV. Section-by-Section Analysis of the Bill, as Reported


Section 1. Short title

    This section provides the bill's short title, the 
``Representative Payee Fraud Prevention Act of 2019.''

Section 2. Representative payee fraud

    Paragraphs (a)(1) and (a)(2) of this section amend Title 5, 
chapter 83, subchapter III of the United States Code to include 
the definition of a ``representative payee'' as an individual 
appointed under section 8345(e)(1) and 8466(c)(1) to receive 
payments on behalf of a minor or an individual mentally 
incompetent or under other legal disability.
    Paragraphs (b)(1) and (b)(2) of this section amend Title 5, 
chapter 83, subchapter III of the United States Code to add a 
new section 8345a following section 8345, and Title 5, chapter 
84, subchapter VI of the United States Code to add a new 
section 8466a following section 8466, respectively.
    New section 8345a makes it unlawful for any person 
authorized by OPM to receive CSRS payments on behalf of a minor 
or other qualifying individual (a representative payee) to 
embezzle or in any manner convert any portion of the amount 
received from such payments to a use other than for the use and 
benefit of such individual. If it is determined that a 
representative payee has embezzled or converted such payments, 
OPM is required to revoke the payments promptly and certify 
payment to another representative payee, or to the individual 
should it serve their best interest. Such conduct is punishable 
by a fine under Title 18 of the United States Code or 
imprisonment for not more than 5 years, or both.
    New section 8466a makes it unlawful for any person 
authorized by OPM to receive FERS payments on behalf of a minor 
or other qualifying individual (a representative payee) to 
embezzle or in any manner convert any portion of the amount 
received from such payments to a use other than for the use and 
benefit of such individual. If it is determined that a 
representative payee has embezzled or converted such payments, 
OPM is required to revoke the payments promptly and certify 
payment to another representative payee, or to the individual 
should it serve their best interest. Such conduct is punishable 
by a fine under Title 18 of the United States Code or 
imprisonment for not more than 5 years, or both.
    Paragraph (b)(3) makes technical and conforming amendments 
to the table of sections of chapters 83 and 84 of Title 5, 
United States Code, to reflect the new sections added in 
paragraphs (b)(1) and (b)(2).
    Subsection (c) clarifies that in the case that OPM suspends 
payment to a mentally incompetent or legally disabled 
individual until a representative payee is appointed, payments 
should resume as soon as practicable and include all amounts 
due.
    Subsection (d) prohibits an individual from being appointed 
as a representative payee to receive CSRS or FERS payments on 
behalf of a minor or individual with a legal disability if he 
or she has been convicted of violating the new sections 8345a 
or 8466a created by this bill, 42 U.S.C. 408 or 1383a (similar 
prohibitions on embezzlement of Social Security benefits), or 
38 U.S.C. 6101 (similar prohibitions on embezzlement of 
Veterans' benefits).

Section 3. Implementation

    Paragraph (a) amends section 8348(a)(1)(B) of Title 5 
(Civil Service Retirement and Disability Fund) to include 
administering fraud prevention under sections 8345, 8345a, 
8466, 8466a as an eligible use of the funds.
    Paragraph (b) requires OPM to issue regulations necessary 
to carry out the changes in law made by this bill within one 
year of the date of enactment. This subsection also authorizes 
OPM to issue additional regulations related to the 
administration of the representative payee program.

Section 4. Effective date

    This section requires the legislation to take effect on the 
date of enactment and to apply on the effective date of the 
regulations promulgated under section 3(b)(1) of the bill.

                   V. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill and determined 
that the bill will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. Congressional Budget Office Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 13, 2019.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, 
        United States Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1430, the 
Representative Payee Fraud Prevention Act of 2019.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Amber 
Marcellino.
            Sincerely,
                                         Phillip L. Swagel,
                                                          Director.
    Enclosure.
 
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    

    S. 1430 would establish new federal crimes related to 
representative payees who misuse payments received from the 
Federal Employees Retirement System and the Civil Service 
Retirement System. (A representative payee is a person or an 
organization that manages federal retirement benefits for 
recipients who are unable to do so themselves.) Enacting S. 
1430 would enable the government to pursue cases that it 
otherwise would not be able to prosecute. CBO expects that only 
a relatively small number of offenders would be affected, 
however, so any increase in costs for law enforcement, court 
proceedings, or prison operations would not be significant. Any 
such costs would be subject to the availability of appropriated 
funds.
    Because those prosecuted and convicted under S. 1430 could 
be subject to civil and criminal fines, the federal government 
might collect additional amounts. Civil fines are recorded in 
the budget as revenues. Criminal fines also are recorded as 
revenues, deposited in the Crime Victims Fund, and later spent 
without future appropriation action. CBO estimates that the 
revenues and spending associated with those penalties would not 
be significant in any year because of the relatively small 
number of cases likely to be affected.
    The CBO staff contact for this estimate is Amber 
Marcellino. The estimate was reviewed by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

       VII. Changes in Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 1430 as reported are shown as follows (existing law proposed 
to be omitted is enclosed in brackets, new matter is printed in 
italic, and existing law in which no change is proposed is 
shown in roman):

UNITED STATES CODE

           *       *       *       *       *       *       *


TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES

           *       *       *       *       *       *       *


PART III--EMPLOYEES

           *       *       *       *       *       *       *



Subpart G--Insurance and Annuities

           *       *       *       *       *       *       *



Chapter 83--Retirement

           *       *       *       *       *       *       *



Subchapter III--Civil Service Retirement

           *       *       *       *       *       *       *



SEC. 8331. DEFINITIONS

          (1) * * *

           *       *       *       *       *       *       *

          (31) ``customs and border protection officer'' means 
        an employee in the Department of Homeland Security (A) 
        who holds a position within the GS-1895 job series 
        (determined applying the criteria in effect as of 
        September 1, 2007) or any successor position, and (B) 
        whose duties include activities relating to the arrival 
        and departure of persons, conveyances, and merchandise 
        at ports of entry, including any such employee who is 
        transferred directly to a supervisory or administrative 
        position in the Department of Homeland Security after 
        performing such duties (as described in subparagraph 
        (B)) in 1 or more positions (as described in 
        subparagraph (A)) for at least 3 years; [and]
          (32) ``Director'' means the Director of the Office of 
        Personnel Management[.]; and
          (33) ``representative payee'' means a person 
        (including an organization) appointed under section 
        8345(e)(1) to receive payments on behalf of a minor or 
        an individual mentally incompetent or under other legal 
        disability.

SEC. 8345.  PAYMENTS OF BENEFITS; COMMENCEMENT, TERMINATION, AND WAIVER 
                    OF ANNUITY

    (a) * * *

           *       *       *       *       *       *       *

    (e)(1) Payment due a minor, or an individual mentally 
incompetent or under other legal disability, may be made to the 
person (including an organization) who is constituted guardian 
or other fiduciary by the law of the State of residence of the 
claimant or is otherwise legally vested with the care of the 
claimant or his estate. If a guardian or other fiduciary of the 
individual under legal disability has not been appointed under 
the law of the State of residence of the claimant, payment may 
be made to any person (including an organization) who, in the 
judgment of the Office, is responsible for the care of the 
claimant and may appropriately receive such payments on behalf 
of the claimant, and the payment bars recovery by any other 
person. If the office determines that direct payment of a 
benefit to an individual mentally incompetent or under other 
legal disability would cause substantial harm to the 
individual, the Office may defer or suspend direct payment of 
the benefit until such time as the appointment of a 
representative payee is made. The office shall resume payment 
as soon as practicable, including all amounts due.
    (f) The Office may not authorize a person to receive 
payments on behalf of a minor or individual of legal disability 
under subsection (e) if that person has been convicted of a 
violation of--
          (1) section 8345a or 8466a;
          (2) section 208 or 1632 of the Social Security Act 
        (42 U.S.C. 408, 1383a); or
          (3) section 6101 of title 38, United States Code.

           *       *       *       *       *       *       *


SEC. 8345A. EMBEZZLEMENT OR CONVERSION OF PAYMENTS

    (a) Embezzling and Conversion Generally
          (1) In general.--It shall be unlawful for a 
        representative payee to embezzle or in any manner 
        convert all or any part of the amounts received from 
        payments received as a representative payee to a use 
        other than for the use and benefit of the minor or 
        individual on whose behalf such payments were received.
          (2) Revocation.--If the Office determines that a 
        representative payee has embezzled or converted 
        payments as described in paragraph (1), the Office 
        shall promptly--
                  (A) revoke the certification for payment of 
                benefits to the representative payee; and
                  (B) certify payment--
                          (i) to another representative payee; 
                        or
                          (ii) if the interest of the 
                        individual under this title would be 
                        served thereby, to the individual.
    (b) Penalty.--Any person who violates subsection (a)(1) 
shall be fined under title 18, imprisoned for not more than 5 
years, or both.

           *       *       *       *       *       *       *


SEC. 8348.  CIVIL SERVICE RETIREMENT AND DISABILITY FUND

    (a) There is a Civil Service Retirement and Disability 
Fund. The Fund--
          (1) is appropriated for the payment of--
                  (A) * * *
                  (B) administrative expenses incurred by the 
                Office of Personnel Management in placing in 
                effect each annuity adjustment granted under 
                section 8340 or 8462 of this title, in 
                administering survivor annuities and elections 
                providing therefor under sections 8339 and 8341 
                of this title or subchapters II and IV of 
                chapter 84 of this title, in administering 
                alternative forms of annuities under sections 
                8343a and 8420a (and related provisions of 
                law), in making an allotment or assignment made 
                by an individual under section 8345(h) or 
                8465(b) of this title, in administering fraud 
                prevention under sections 8345, 8345a, 8466, 
                8466a of this title, and in withholding taxes 
                pursuant to section 3405 of title 26 or section 
                8345(k) or 8469 of this title;

           *       *       *       *       *       *       *


CHAPTER 84--FEDERAL EMPLOYEES' RETIREMENT SYSTEM

           *       *       *       *       *       *       *



Subchapter I--General Provisions

           *       *       *       *       *       *       *



SEC. 8401. DEFINITIONS

          (1) * * *

           *       *       *       *       *       *       *

          (37) the term ``revised annuity employee'' means any 
        individual who--
                  (A) * * *
                  (B) after December 31, 2012, and before 
                January 1, 2014, becomes employed as an 
                employee or becomes a Member covered under this 
                chapter performing service which is creditable 
                service under section 8411; [and]
          (38) the term ``further revised annuity employee 
        means any individual who--
                  (A) * * *
                          (i) * * *
                          (ii) * * *
                          (iii) * * *
                  (B) after December 31, 2013, becomes employed 
                as an employee or becomes a Member covered 
                under this chapter performing service which is 
                creditable service under section 8411[.]; and
          (39) ``representative payee'' means a person 
        (including an organization) appointed under section 
        8466(c)(1) to receive payments on behalf of a minor or 
        an individual mentally incompetent or under other legal 
        disability.

           *       *       *       *       *       *       *


Subchapter VI--General and Administrative Provisions

           *       *       *       *       *       *       *



SEC. 8466. APPLICATION FOR BENEFITS

    (a) * * *
    (b) * * *
    (c)
          (1) Payment due a minor, or an individual mentally 
        incompetent or under other legal disability, may be 
        made to the person (including an organization) who is 
        constituted guardian or other fiduciary by the law of 
        the State of residence of the claimant or is otherwise 
        legally vested with the care of the claimant or his 
        estate. If a guardian or other fiduciary of the 
        individual under legal disability has not been 
        appointed under the law of the State of residence of 
        the claimant, payment may be made to any person 
        (including an organization) who, in the judgment of the 
        Office, is responsible for the care of the claimant, 
        and may appropriately receive such payments on behalf 
        of the claimant, and the payment bars recovery by any 
        other person. If the office determines that direct 
        payment of a benefit to an individual mentally 
        incompetent or under other legal disability would cause 
        substantial harm to the individual, the Office may 
        defer or suspend direct payment of the benefit until 
        such time as the appointment of a representative payee 
        is made. The office shall resume payment as soon as 
        practicable, including all amounts due.
    (d) The Office may not authorize a person to receive 
payments on behalf of a minor or individual of legal disability 
under subsection (c) if that person has been convicted of a 
violation of--
          (1) section 8345a or 8466a;
          (2) section 208 or 1632 of the Social Security Act 
        (42 U.S.C. 408, 1383a); or
          (3) section 6101 of title 38, United States Code.

SEC. 8466A. EMBEZZLEMENT OR CONVERSION OF PAYMENTS

    (a) Embezzling and Conversion Generally.--
          (1) In general.--It shall be unlawful for a 
        representative payee to embezzle or in any manner 
        convert all or any part of the amounts received from 
        payments received as a representative payee to a use 
        other than for the use and benefit of the minor or 
        individual on whose behalf such payments were received.
          (2) Revocation.--If the Office determines that a 
        representative payee has embezzled or converted 
        payments as described in paragraph (1), the Office 
        shall promptly--
                  (A) revoke the certification for payment of 
                benefits to the representative payee; and
                  (B) certify payment--
                          (i) to another representative payee; 
                        or
                          (ii) if the interest of the 
                        individual under this title would be 
                        served thereby, to the individual.
    (b) Penalty.--Any person who violates subsection (a)(1) 
shall be fined under title 18, imprisoned for not more than 5 
years, or both.

           *       *       *       *       *       *       *


                                  [all]