Probation Officers Advisory Group to the United States
February 20 & 21, 2002
Minutes of Meeting
Probation Officers Advisory Group members in attendance were: Chair, Ellen Moore (11th Circuit); Cathy Battistelli, Chair Elect (1st Circuit); Colleen Rahill-Beuler (2nd Circuit); Joan Leiby (3rd Circuit); Elizabeth Ervin (4th Circuit); Barry Case (5th Circuit); David Wolfe (5th Circuit); Phelps Jones (6th Circuit); Rex Morgan (7th Circuit); Jim Mitzel (8th Circuit); Bob Musser (9th Circuit); Ken Ramsdell (9th Circuit); Debbie Marshall (10th Circuit); Ray Owens (11th Circuit); Theresa Brown (DC Circuit); Cindy Easley (FPPOA Ex-Officio Member); and John Fitzgerald (FPPOA Ex-Officio Member).
February 20, 2002
The meeting opened with comments made by Pamela G. Montgomery, Director and Chief Counsel of the Office of Education and Sentencing Practice. Ms. Montgomery provided information relating to the upcoming training events as well as a recent training event which was held in South Dakota to address Native American issues. Ms. Montgomery noted that it appears the United States Sentencing Commission's focus this year will be revisions of the drug guideline to include addressing penalty ratios with respect to cocaine base and powder cocaine, revisions of Chapter Four -- Criminal History, and a 15-year study of the Federal Sentencing Guidelines since the effective date of November 1, 1987. Other focus areas may include USSG §5G1.3, USSG §2K2.4, and USSG §3E1.1.
POAG was provided an agenda with respect to various members of working groups that would be making presentations of proposed or revised guideline issues.
Donald A. Purdy, Jr., Chief Deputy General Counsel, met with POAG and provided a synopsis of the Criminal Law Committee's concerns with respect to USSG §5G1.3, particularly sentences that were already completed versus undischarged terms of imprisonment. Mr. Purdy also provided insight as to the proposed revisions for USSG §2K2.4 and the establishment of a new guideline in Chapter Four to be used in conjunction with 2K2.4. Mr. Purdy noted that the importance of the revision was based on the perception that the congressional directive at 18 U.S.C. §994(h) calls for the sentence imposed to be as near the statutory maximum penalty as possible. It was also noted that the decision rendered in U.S. vs Labonte was impacting the need for the revision. Mr. Purdy noted that the work group would be extremely interested in POAG's response as to any application issues with respect to the proposed revised guideline.
Louis W. Reedt, Acting Director of Office and Policy Analysis, and Kenneth Cohen, Director of Office of Legislative Affairs, presented a summary of the revisions proposed that impact the drug guidelines.
Sentencing Alternatives and Acceptance of Responsibility
Charles R. Tetzlaff, General Counsel, presented a summary of the proposed amendments with respect to acceptance of responsibility and sentencing alternatives. Mr. Tetzlaff also commented on DOJ's proposal with respect to acceptance of responsibility and asked for POAG's feedback with respect to issues that have been presented for comment. As to sentencing alternatives, Mr. Tetzlaff noted that his committee would be extremely interested in any feedback POAG had with respect to the option of imposing a sentence which required placement in a halfway house for sentences with a range that included one year or less.
Pam Barron, Deputy General Counsel, presented historical information with respect to the creation of the terrorism guideline and also spoke about the Sixth Circuit's ruling in U.S. vs Graham.
The proposed amendment at USSG §2B1.5 was introduced by Paula J. Desio, Deputy General Counsel. The amendment seeks to recognize the special harm done by theft or damage to items of cultural heritage. These are items that have special historical, cultural, or spiritual significance. Differing from §2B1.1, offenses would have a base offense level of eight. Also different would be an assessment of value as opposed to loss. There would be adjustments if the items were taken from locations such as national parks or cemeteries, resources such as human remains, purpose for financial gain, or were part of a pattern of similar behavior.
Tim McGrath, Staff Director, addressed POAG and provided a synopsis of the 15-year study of the United States Sentencing Guidelines which should be completed during 2003 - 2004. It was noted that this review would provide an assessment to Congress as to the effectiveness or lack thereof of the United States Sentencing Guidelines. Mr. McGrath noted that the data with respect to the recidivist study should be available in approximately four months. This information may possibly be used to determine if criminal history changes are merited within the sentencing guidelines. Mr. McGrath noted that the Commission has formed two new advisory groups: Native Americans Advisory Group and Organizational Guidelines Advisory Group. The Native Americans Advisory Group members will be announced this summer and their scope defined. The Organizational Guidelines Advisory Group will be chaired by Todd Jones. The group's first meeting is scheduled for March 8, 2002. Mr. McGrath spoke briefly about the upcoming national training to be held in Palm Springs, California, in May as well as the upcoming Sentencing Institute in early June.
The Probation Officers Advisory Group began their deliberation on issues that were presented. The meeting was adjourned at approximately 4:45 PM.
February 21, 2002
The Probation Officers Advisory Group members resumed their discussion at 8:00 AM this morning.
With respect to the Official Victim proposed amendment, POAG recognizes the need for an expansion of the enhancement and agrees that sanctions for injury to non-correctional officer victims are lacking in the current guideline and supports the inclusion of the same. POAG is of the opinion that the proposed amendment accomplishes the intended purpose and supports the amendment as written.
With respect to the proposed amendment for acceptance of responsibility, POAG continues to adhere to the position set forth in the August 5, 2001, position paper. There does not seem to be uniformity in the application of acceptance of responsibility. It is, however, a guideline that seems to be applied in the majority of cases where defendants enter guilty pleas. Nonetheless, there are many Courts that require the defendant to address offense issues with the probation officer, whereas other Courts do not hold the defendant to the same requirement. It is difficult for a probation officer to make a proper analysis of a defendant's acceptance without engaging in a discussion with the defendant about the offense.
In response to the proposed amendment at USSG §5G1.3, POAG reached a consensus that Option One of the proposed options would provide for the clearest application of this guideline. The plain and simple addition of language including "discharged term of imprisonment" was preferred over Option Two. Option Two appears to have some limitations in cases that may require minimum mandatory sentencing since the Court, absent a 5K Substantial Assistance Motion, would be incapable of departing below a mandatory minimum sentence. The meaning of "conduct taken fully into account" was questioned and the group asked the Staff to consider a more detailed explanation as to the intent of this concept.
With respect to the proposal on terrorism, POAG does not have the experience to provide comment on this issue. POAG recognizes the extensive amount of effort put forth by the work group in fashioning the proposed terrorism guideline. These are evolving guidelines driven primarily by statute and no member of the group had any experience to bring to the table for discussion at this time.
POAG strongly supports the amendment presented for cultural heritage issues and recognizes the special harm caused by theft, damage, or destruction of items of cultural heritage. Because of the special significance of the artifacts, POAG is of the opinion that offenses of this type should be held separate and distinct from all other acts involving theft or destruction. For this reason, offenses involving items of cultural heritage and other items should be grouped or closely related. POAG is of the opinion that multiple acts involving items of cultural heritage should be grouped. However, in keeping with the philosophy of recognizing the harm caused by theft or destruction of items of great historical value, POAG suggests guideline commentary instructing that counts involving items of cultural heritage be scored separately from offenses involving other items. In this fashion, the government would need to be mindful to charge offenses involving cultural heritage in separate counts. POAG is of the opinion that there should be an application note to provide for an upward departure if the value of the cultural heritage resource underestimates its actual value. POAG does not take a position in the matter of an enhancement for use of explosives.
In response to the proposed amendment for alternative sentencing, POAG adopts its previous position and would not advocate the changing of the Sentencing Table. The resources are not available to accommodate split sentences. The Bureau of Prisons has presented information suggesting it has the community correctional center resources for individuals to complete sentences of 12 to 18 months. However, field experience indicates many of the community correctional centers identified by BOP are actually county jails and are not as effective in integrating offenders back into the community. POAG would also discourage the use of community correctional center placement as a condition of probation.
Altering the Sentencing Table to benefit low-level drug cases may allow fraud and other white collar individuals to fall into the sentencing range proposed in the alternative sentencing table. It is recommended that Chapter Four -- Criminal History be studied for possible changes to reduce criminal history scores.
Of the three options submitted for review, POAG would choose Option One based on its ease of application. Option Two would provide lengthy stays in community correctional centers which has previously been discussed. Option Three was viewed as confusing both the field and judges.
With respect to the revised proposed amendment for career offenders and convictions under 18 U.S.C. §924(c) and §929(a), POAG voiced numerous concerns and noted several application issues. Both the complexity of the guideline as well as a concern that two sets of calculations would be required in every case were just a few of the issues identified. Another concern was the suggested concept of imposing one-day custody for a Class A felony with the sentence to run consecutive to the sentence imposed for the §924(c) conviction. Issues regarding public perception as well as successful appeals were voiced.
Prior to adjournment of the meeting, Ellen Moore presented a certificate of appreciation to Phelps Jones whose tenure with POAG expired at the conclusion of this meeting. Pam Montgomery presented Ellen Moore with a certificate of appreciation for her contributions during her tenure of service.
A position paper will be prepared by Ellen Moore and Cathy Battistelli and forwarded to Ms. Montgomery. The position paper will be presented by Ellen Moore and Cathy Battistelli at the Commission's next meeting in March 2002.
Ellen presented a token of her appreciation to each member acknowledging their contributions to the Probation Officers Advisory Group. The meeting was adjourned at approximately 1:15 PM.