Probation Officer’s Advisory Group
Meeting held March 6 & 7, 2003
United States Sentencing Commission
Meeting opened at 9:10 a.m. by Pamela Montgomery and Timothy McGrath. Present at the meeting were Cathy Battistelli, Colleen Rahill-Bueler, Joan Leiby, Betsy Ervin, David Wolfe, Barry Case, Phelps Jones (for the vacant 6th Circuit position), Rex Morgan, Jim Mitzel, Felippe Ortiz, Ken Ramsdell, Deb Marshall, Ray Owens, Doug Mathis, Theresa Brown, Cindy Easley, and John Fitzgerald.
Mr. McGrath provided updated information on significant United States Sentencing Commission events, discussions and plans:
Two commissioners terms have expired, Judge Joseph Kendall and Judge Sterling Johnson. Currently, there are five active commissioners, although nominations have been submitted and are pending to fill the two vacancies.
There will be a public hearing held by the Sentencing Commission on March 25, 2003 at 3:15 p.m. The following topics will be included in the hearing: Sarbanes Oxley Act and how the guidelines should reflect the elements/directives in the Act, and the current manslaughter guidelines.
The Sentencing Commission is researching effective ways to implement an electronic case filing system. There will be a strong effort to get such a system up and running within the next 12 months. A survey will be sent to districts regarding best practices, suggestions and implementation strategies.
A Fairness in Sentencing Act is gaining momentum in Congress. This Act, as currently written, would disallow the mitigating role cap for drug offenders that was recently added to the 2D1.1 guideline. The Act also examines ways to tighten up the use of Safety Valve and other departure issues.
Some members raised a concern about the recent BOP’s change in policy regarding sentencing and Zone C placements. This issue is not officially on the Commission’s agenda, however, they are aware of the issue and the significant impact it is having.
Recognition of Two Departing POAG Members
Cindy Easley - FPPOA’s Representative
Ray Owens - 9th Circuit Representative
Pam Montgomery thanked the outgoing representatives for their time and service to the group. In appreciation for their efforts, Commission staff presented them with gifts recognizing the excellent work they had done while members of POAG.
Matt Rowland, Administrative Office, Deputy Chief
Matt advised POAG of a project that will be conducted by the A.O. in the coming months highlighting the importance of the presentence document and establishing what probation offices/officers should be held accountable for in the presentence process. Two questions raised involved the timeliness of presentence reports and how do we define success when it comes to presentence work?
One of the aims of the project will be to improve the collection of data among agencies, including, but not necessarily limited to the Sentencing Commission, the Administrative Office, and the Bureau of Prisons. This includes access to Bureau of Prisons data, for example, the information currently available in their Sentry System.
Use of PDA’s was also briefly discussed as a sentencing tool. What automated technologies are available that will assist officers in completing presentence reports? Matt mentioned one program, www.crimetimesw.com, being utilized by several probation offices that computes the guidelines.
John Steer, Vice Chairman, USSC
Commissioner John Steer welcomed the committee, emphasizing the importance of our work. Some of the issues discussed are based on legislative initiatives, but all are important. Commissioner Steer encouraged POAG to let the USSC know our opinions as we provide a "most valuable resource" in determining the best possible amendments.
POAG members Joan Lieby and Phelps Jones highlighted the conference call comments regarding the proposed corporate fraud guideline amendments.
Question: Should USSC amend 2B1.1 more extensively to provide increased offense levels for lower loss amounts?
The group discussed the recent BOP/CCC issue which has impacted lower-level offenders who have historically been treated more leniently by the courts.
POAG discussed the question, what is a white collar offender? There has been an ongoing debate at the USSC–at what level does an offender become a "white collar offender"? POAG decided such an offender typically had no criminal history, possessed a higher level of education, was often a community leader, and may have committed the offense using sophisticated means.
There were three revision options, Tables A, B, and C, in §2B1.1, for POAG to consider. POAG discussed the possibility that the adjustment for abuse of a position of trust appropriately sanctions high-level offenders. Charging decisions (bank larceny v. bank fraud) also affected the punishment for offenders.
POAG discussed increasing offense levels at the lower end and adding an SOC allowing a reduction for simple theft as increased offense levels would penalize lower level simple thefts, as well as identity thefts.
In addition, the group discussed the §2B1.1 emergency amendment for a six level increase based on the size of the company. This change is to comply with the Sarbanes-Oxley act.
Also discussed was the proposed four level increase to §2B1.1 which may not adequately sanction retirement fund theft. The PAG thought this change could result in a double counting issue; however, POAG agreed the harm to the victim was more substantial if entire retirement savings were stolen. The group agreed that an encouraged departure may be appropriate for retirement funds theft.
The USSC staff proposed a BOL of 7 in §2B1.1. The committee heard from USSC staff Courtney Semisch of the Sarbanes-Oxley Policy Team re: the Prison Impact Analysis and Tables A, B, or C. Eleven possible options were proposed by the working group. In these tables, all factors were constant except for loss amounts. The impact of Tables A, B, and C with BOLs of 7 and varying statutory maximums was presented. Courtney emphasized that the amount of information was overwhelming and will take a while to fully understand.
The group discussed increased statutory penalties from 10 to 20 years for fraud offenders and the need for §2B1.1 to reflect these penalties.
POAG compared proposed Tables A, B, and C. In Table C, all changes were in Zone C and affected offenders committing large amounts of loss. Tables A and B are similar. A change to the BOL affected more offenders than a loss table change while Table C affected more fraud than theft cases.
The group also discussed the impact of conspiracies on the proposed loss tables.
Staff indicated that in reacting to the new loss table possibilities, PAG advocated no more changes to §2B1.1. They maintained the new guidelines were adequate to sanction behavior and stated that they provide no break for losses under $70,000.00. The CLC asked the USSC to hold off on revising the tables.
The possibility of deconsolidating §2B1.1 into fraud and theft guidelines to differentiate types of offenses has been proposed but does not have much support by the USSC.
POAG agreed that examples of "real world" application would be helpful in our position paper regarding §2B1.1.
It was also noted that the changes to §2B1.1 have not reflected statutory changes. POAG discussed Congress’ intent in increasing statutory penalties. Increased statutory maximums prevent lower-level offenders at capping out at lower guideline levels.
Effecting a change in loss tables at this point would create multiple calculation issues–which guideline manual to use? Although only two manuals need be compared, this is altered if more than minimal planning in the pre-2001 manual is overruled by the court. Plea bargains exist in which a superseding information date is charged to ensure the use of a less punitive guideline manual.
Historically, POAG has lobbied for changes at the lower end to provide sanctions for white collar offenders. The elimination of more than minimal planning has had a positive effect–resulted in less debates with defense counsel. The group discussed that changes to the lower end of the loss table will negatively impact Native Americans and in simple theft cases.
POAG’s consensus was that no change should be made to §2B1.1 at this time because:
* Due to expost facto issues, the 2001 consolidated fraud guideline (§2B1.1) has not yet been consistently applied. New SOCs in §2B1.1 may provide adequate sanctions.
* None of Tables A, B, or C provide additional sanctions for lower-level offenders, as proposed in the past by POAG .
* Tables A, B, and C have no impact on losses of $70,000.00 or less (where 2/3 of fraud/theft offenses fall).
* The ease of guideline application is the same in all three tables.
*Although POAG advocates no change pending more data, Table C provided the best option as it provides the least change.
* Changes to §2B1.1 without more data to support would raise credibility issues
* The 2002 and January 25, 2003 amendments have SOC changes which impact victims, securities fraud, and create higher offense levels and the impact of these changes has yet to be seen.
The meeting resumed at 1:30 p.m. with a discussion of the proposed enhancement for registered broker or dealers at 2B1.1(b)(13). It was noted that ordinarily a company is a registered broker and not an individual agent. However, the definition in the Securities Exchange Act of 1943 is reportedly broad enough to cover both the company and the agent.
The proposed change at 2J1.1, Contempt, gives a specific guideline reference to 2B1.1 for a case involving a violation of judicial order enjoining fraudulent behavior. The change ensures consistency nationwide in guideline application and is recommended by POAG members.
The base offense level at 2J1.3, Perjury, is to be increased to a level 14 to conform to the increase at 2J1.2, Obstruction of Justice. The change is offered for consistency and ease in application for these similar types of offenses. An encouraged upward departure for "extreme violence" is included for cases falling outside the heartland. Discussion by the group resulted in agreement to recommend a better working definition of "extreme violence" or additional examples. Without more guidance, the group expects prolonged litigation at sentencing hearings.
The Cybercrime amendment proposal was addressed with Cindy Easley and Doug Mathis leading the discussion. The Commission proposed an increase of two or four levels at 2B1.1(b)(7) if the defendant was convicted of an offense under 18 U.S.C. § 1030(a)(5)(A)(i). The proposal is in response to an increase in statutory penalties in this section ranging from twenty years imprisonment to life. POAG discussed whether a cross reference to Chapter 2, Part A should be included if death or bodily injury occurred since a two to four level increase seems minimal. Also discussed was whether the indictment would be required to contain a notice for enhanced penalties. Commission staff Lisa Klem and Janeen Gaffney explained to POAG that death and bodily injury are not the heartland cases and reminded us that no other cross references exist in 2B1.1 for death or bodily injury. These cases can be addressed by upward departure provisions as well as charges by other statutes. Although the group noted that our experience with this guideline is still limited due to ex post facto issues, we believe the four level enhancement best addresses the seriousness of this type offense and responds to the dramatic increase in the statutory penalties.
The expanded language proposal in the loss definition for protected computer cases in Application Note 2 mirrors the loss language in the statute. The definition addressed consequential damages without using that terminology. POAG is concerned about difficulty in ascertaining these loss amounts and the sentencing delays that may result. Although U.S. Attorney's Offices are to produce this information, it is often not provided.
As to the guideline floor proposed at 2B1.1(b)(14)(B), POAG did not see any application difficulty in any level the Commission chooses to select.
The suggested Upward Departure for Disruption of Services was discussed and appears problematic. USSG §5K2.7 is referenced, however, the group agreed the language in the Specific Offense Characteristic at (b)(14)(A)(ii) mirrors §5K2.7. As such, the group felt the upward departure could be applied. POAG recommended eliminating the reference to §5K2.7 and adding examples to clarify use.
No application issues were voiced regarding the proposed changes in the Trespass and Extortion by Force or Threat of Injury or Serious Damage guidelines.
Oxycodone and Red Phosphorus
Deb Marshall led the discussion on the Oxycodone and Red Phosphorus amendments. The new guideline equated one gram of oxycodone to 6700 grams of marijuana. This change encourages ease in application with the gram to gram ratio. The amendment also dropped the equivalency for Percocet and other prescription drugs containing oxycodone as Oxycotin contains more oxycodone per dosage.
Red Phosphorous, a precursor for methamphetamine, is recommended for addition to the chemical table at 2D1.11 to give structure in guideline application. The amount proposed is based on a 50% theoretical yield of methamphetamine. POAG agreed the analysis conducted by the Commission is helpful and will decrease disparity in guideline application.
Colleen Rahill-Bueller led this discussion which focused on a proposed amendment, USSG§3B1.5, Use of Body Armor in Drug Trafficking Crimes and Crimes of Violence. POAG relied upon the February 13, 2003, revised draft of this proposed amendment. Comments from the group included questions regarding whether a two, four, or six level enhancement was appropriate in this guideline. The group preferred a two level enhancement for consistency between the body armor adjustment and the typical two level specific offense characteristic for a firearm enhancement.
Application Note 1 described "crime of violence" as having the meaning given in 18 USC § 16. POAG suggested the USSC include a note directing one to refer to the statutory definition in 18 USC § 16, not the Chapter 4 definition found in the Guidelines Manual to clarify the term "meaning given." This will provide easier application of this Chapter 3 adjustment.
While recognizing this Chapter 3 adjustment is defendant based, a large portion of the discussion focused on the question of "why not broaden Application Note 2 to include the complete definition of relevant conduct?" POAG discussed a case scenario in which four individuals conspired to rob a bank; two robbers entered the bank to commit the robbery and wore body armor; the third robber served as a look-out and the fourth robber was a getaway driver. The third and fourth individuals did not wear body armor, but it was reasonably foreseeable to them that codefendants one and two were wearing body armor since it is more likely than not all four participated in the planning of the robbery. The question or concern that came about during the discussion involved the fact that defendants one and two would receive more punishment than defendants three and four even though all four were equally culpable in this jointly undertaken criminal activity. If a gun was possessed or used in the robbery, in all likelihood, all four individuals would be held accountable for a two level firearm enhancement under relevant conduct provision 1B1.3. Thoughts or concerns were raised that the individuals should also be held accountable under the same relevant conduct provision pertaining to the body armor enhancement.
Several POAG members expressed concern about the wording of the phrase "or actively used the body armor in a manner to protect defendant's person from gunfire," found in Application Note 3. Additional examples or explanation of the term "actively used" should be included to insure this Chapter 3 enhancement is utilized correctly.
Charles Tetzlaff, General Counsel, addressed the group regarding some of these concerns and provided the group with background regarding the drafting of this amendment.
Theresa Brown and Betsy Ervin led the discussion on this issue which involved changing the proposed amendment for Campaign Finance to a permanent amendment. The USSC asked whether the interim guideline that became effective January 25, 2003, is appropriate as written. POAG members agreed the Campaign Finance amendment appeared appropriate but the group has no application experience. POAG recognized that the application notes do not offer much by way of examples.
This discussion was led by Barry Case and Ray Owens. In addition, Pam Barron, Deputy General Counsel, addressed the group regarding the drafting of the proposed amendment options and provided guidance to the group about said proposals.
Proposed Amendment IA:
POAG agreed the term "terrorism" should be deleted from USSG§2S1.1(b)(1) to prevent double counting with the terrorism adjustment under USSG§3A1.4.
Proposed Amendment IB:
The group learned there was a newer, hybrid version of this proposed amendment that we did not have before us during this meeting. We were unable to comment.
Proposed Amendment IC:
Members thought the proposed amendment explaining the cap offense levels was too wordy and difficult to follow. There may be some confusion applying this guideline.
Proposed Amendment IIA:
There were no USSC issues listed for comment under this proposed amendment. However, several POAG members predicted there would be an application problem with USSG§2M6.1(a)(1) because there is no definition in the commentary that explains "with intent to injure the United States."
Proposed Amendment IIB:
This amendment proposed the consolidation of USSG§2N1 and 2Q1 guidelines. POAG had no strong conviction one way or the other about consolidation. In general, however, we thought it is probably best not to combine guidelines because it is difficult to foresee potential application issues.
Proposed Amendment IIC and Proposed Amendment Part III:
There were no issues for comment. The group did not see any potential application problems or issues with these proposed amendments.
The meeting concluded at 5:00 p.m.
Thursday, March 7, 2003
The meeting opened at 8:30 am.
Ken Ramsdell reported on this section concerning the amendments to the Immigration Chapter Two guideline. It was noted that changes had been made to the amendment by the Commission during the course of the week and, therefore, Mr. Ramsdell commented on those changes. In addition, the recent changes to the amendment remedied many problems identified by Ken and the district representatives in the 9th Circuit.
The amendment contained new definitions of which most were welcomed by the 9th Circuit district representatives. The definition of "crime of violence" under an application note to assist in the application of subsection (b)(1), as well as the addition of "or" in that same application note was considered to be a positive change. Individuals believed these changes will ease application of this guideline.
After review of the available amendment options, it was reported that Option Two appeared to be more acceptable and the time frame of "60 days" was the preferable language choice under the amendment of subsection (b)(1).
The group discussed sentencing methods in various jurisdictions including "time served" dispositions. It was noted that the last POAG position paper on Immigration requested work on this portion of the guideline and that there had been numerous requests from the field to "clean up" this guideline.
There was a change in Application Note 3 of USSG §2L2.2, regarding the definition of aggravated felony which calls for the application of 8 U.S.C. §1101(a)(43) for definition of this item. It was noted that some of the application note language may be at odds with language in 8 U.S.C. §1101. Pam Montgomery reported this application note contained language that distinguished offenses from the definition contained in 8 USC 1101(a)(43). There was extensive discussion by several members regarding the offenses in the different jurisdictions that would be treated differently under this section. Problems with obtaining prior offense details and documents were also discussed.
Option 2 in Application Note 3(A) was discussed concerning problems with language "under such section." It was suggested this language be replaced with "under 21 USC 844" to clarify the application note. The group further discussed eliminating language in Option 2 in Application Note 3(A) and including information that asked for a different definition or one which takes into consideration "sentence imposed."
POAG recognized a problem with the language in this same application note regarding the use of the phrase, "consisting of conduct." POAG expressed concern about the possibility of application disparity as some jurisdictions plea bargain and reduce charges of drug distribution to aggravated drug possessions. Another argument was made that the charging decision of the prior offense without consideration of the actual offense conduct of the prior drug offense would render disparity in many cases. This argument mirrors the issue raised by George Kazen, Chief U.S. District Judge, Southern District of Texas (see Public Comment, February 2003).
Lastly, the group discussed the possible departure consideration for "cultural assimilation" in reference to this guideline.
5G1.3- (Imposition of a sentence on a defendant to an undischarged term of imprisonment)
David Wolfe led the discussion on this topic. The proposed amendment involved resolving a circuit conflict regarding whether language should be changed from "should" to "shall" in 5G1.3. Several circuits do not run sentences consecutively and believe the word "should" provides an alternative to choose between running the sentence concurrent or consecutive basis.
Three options were presented to the group. Option 1 and Option 1A used the word "shall" in the language and Option 2 used the term "it is recommended" the sentence run consecutive.
The group was informed DOJ recommended the word "shall" to be used.
POAG recommended Option 1, which is clear and provided a more consistent and stronger language.
It was also recommended by the group to amend Application Note 6 to simplify the language to make it easier to understand.
An other issue of conflict exists in 5G1.3(c). In U.S. v. Ruggiano (3rd Cir 2002) the Court gave "credit"to a state sentence and ordered the state sentence to run concurrently with the federal sentence even though state offense was unrelated to federal offense and contradicted the decision in U.S. v. Fermin (2nd Cir 2001). One member suggested consideration be given for a departure for extraordinary cases as listed in Option 2(d). While another member suggested possibly adding "shall be used" and then add departure language with a specific subsection stating this should rarely occur. An application note to explain "extraordinary case" should be clear and if not considered an "extraordinary case", the state sentence should not be ordered to run concurrent.
Discussion also occurred regarding BOP’s concern in regards to the language used on J and C’s where the court stated "credit" be given. The BOP does its own calculations and give credits on sentences. It was suggested another Application Note with clearer language be provided. The group was informed the Commission preferred language stating "downward departure be used in these cases instead of the word "adjustment" or "credit". The language could be highlighted to show §5G1.3 departure language which would allow the commission to "flag" this departure when used. The group believed the use of the words adjustment or downward departure could result in great confusion. The language needed to be consistent and conform to the rest of the guidelines.
It was also suggested by the group that the bench book for judges be amended to reflect new changes in the language and to provide judges with the appropriate language to be used on the J and C when there are giving credit or a downward departure. This would allow the BOP to correctly determine the credit to be given on a sentence. Judges should be provided examples of how to do adjustments under 5G1.3(b) and examples under 5G1.3(c) for departures.
The group also suggested for the guidelines to be consistent, Chapter 7 should be reviewed if specific language is needed to order sentences concurrent or consecutive.
The group decided Nunc Pro Tunc was not an issue for the group at this time. It is something the Commission may have to address in the future.
POAG had no recommendations or discussion on the Miscellaneous Amendments.
Cathy announced the following assignment in preparation for the position paper to be submitted to the Commissioners:
Corporate Fraud -- Joan and Phelps
Campaign Finance - Theresa and Betsy
Offenses Involving Body Armor - Colleen
Oxycodone - Debbie
Assaults Against a Federal Judge - Rex
Cybersecurity - Cindy and Doug
Terrorism - Ray and Barry
Immigration - Ken
Involuntary Manslaughter - Jim
USSG §5G1.3 - David
POAG Membership Terms
POAG reviewed all member’s terms of service and asked each to confirm when they began their term. Starting dates were obtained from previous meeting minutes and needed to be confirmed. Starting dates are as follows:
Cathy Battistelli - June 1999
David Wolfe - February 2001
Betsy Ervin - June 2000
Theresa Brown - March 2000
Debbie Marshall - June 1999
Rex Morgan - June 2000
Colleen Rahill-Beuler - February 2001
Barry Case - June 2001
Jim Mitzel - June 2001
Ken Ramsdell - June 2001
Joan Leiby - February 2002
Doug Mathis - May 2003
Felipe Ortiz - May 2002
It was announced that Leslie Maxwell of Baltimore (DMD) would be the Federal Probation and Pretrial Services Officer’s Association representative, replacing Cindy Easley., and that Suzanne Fierra of Miami (FLS) would be the new representative for the 11th Circuit, replacing Ray Owens.
Sixth Circuit nominations will be requested to fill the spot of Tim Searcy, who has resigned due to a promotion.
Use of Alternates for Meeting Representation
Cathy cited that the charter called for a district representative to be chosen by the circuit representative to act in his/her place if the circuit representative is unable to attend a POAG meeting. The charter reads as follows:
"When a circuit representative is unable to attend a POAG meeting, a district representative in that circuit should be asked to attend. If no district representatives can attend, the circuit representative may designate another officer to attend."
It was suggested the Charter be amended to allow, as first choice, the previous representative of the absent member’s Circuit. If the previous representative could not attend, another representative could be chosen by the circuit representative, after consultation with the chair and Pam Montgomery.
POAG members believed having the telephone conference prior to the POAG meeting to introduce amendments to members was a good practice. Members suggested it would be helpful if Commission staff provided information to POAG about the Commission’s prior discussion of the issues.
National Guideline Training
POAG discussed various topics concerning the upcoming training in Miami Beach. The group suggested the color-coding of name tags for probation officers by circuit so POAG members could identify their constituency. We will check with Jim Feldman to see if that is a possibility.
POAG discussed the presentation at Miami. We will have approximately 45 minutes of presentation time. Cathy suggested a panel discussion headed by POAG members. The group brought up the discussion of "best practices" of districts. Suggestions of "best practices" that could be included were:
Calculation of Loss
Determination of Drug Weight in Historical Cases
Case Agent Interview
Offense Conduct Preparation
Dispositional Alternatives (Creative Sentencing)
It was decided that we would focus on three individual topics, and assign members to work on each. The three topics and assigned members are as follows:
Victim Issues - Joan and Colleen
Creative Use of Staff - Cindy, Theresa, and Betsy
Offense Conduct - Phelps, Rex, and David
The decision was made to contact each district representative for input on each of these subjects. It was decided that each of the above working groups would email Cathy one question concerning their topic. Cathy will, in turn, send an email with all questions back to all circuit representatives, who will then send the email to their circuit’s district representatives. District representatives will then send responses directly to the work groups. Emails, Position Papers, and minutes are due to Cathy on March 14, 2003.
Ray has been working on this issue for the past year as part of a special project and developed a sample guideline, 4B1.6-Repeat offenders of Economic Crimes. Cases were sent to Ray from around the country and he conceptualized what this guideline may look like. It is very similar to the repeated sex offender guideline and is based on prior offenses. Criminal history should be at least IV and the offense level tied into the statutory maximum. All priors would be counted, including misdemeanors, in addition, to looking at a "pattern of behavior". A handout was provided which indicated the percentage in the majority of cases was still less than statutory maximum. The period of incarceration could be either substantial or only provide for slight increases in some cases. The Commission staff agreed to review this proposal and give input next meeting. Ken and David will continue this project and Ray will continued to be consulted since this was Ray’s last meeting.