The meeting was called to order by Chair Diana E. Murphy at 1:30 p.m. on Monday, April 3 in the Commissioner Conference room. The following commissioners, staff, and members of the public participated:
Diana E. Murphy, Chair
Ruben Castillo, Vice Chair
William Sessions, Vice Chair
John R. Steer, Vice Chair
Sterling Johnson, Jr., Commissioner
Joe Kendall, Commissioner
Michael ONeill, Commissioner
Laird C. Kirkpatrick, Ex Officio Commissioner
Timothy McGrath, Staff Director
A. Donald Purdy, Acting General Counsel
Sharon Henegan, Director, Office of Education & Sentencing Practices
Paul Hofer, Senior Research Associate
Kenneth Cohen, Director, Office of Legislative & Governmental Affairs
Tom Hutchison, Representative, Federal Public and Community Defenders
Carmen Hernandez, Representative, Practitioners Advisory Group
David Quam, Representative, International Anticounterfeiting Coalition
Chair Murphy began the meeting by welcoming the guests and explaining the process the Commission took this amendment cycle. She stated that the commissioners met immediately upon appointment and selected issues to address, including legislative directives and circuit conflicts. Chair Murphy stated that much public comment had been received after the Commission published notices for comment and held a public hearing. She also mentioned that this would be the first meeting in which the new commissioners would be promulgating guideline amendments. Additionally, Chair Murphy announced the hiring of Tim McGrath as the Commissions new staff director.
Motion made by Commissioner Johnson to adopt the minutes of the February 2, 2000, business meeting; seconded by Commissioner Castillo. Passed unanimously.
Amendment 9 - Technical Amendments Package
This proposed amendment makes technical and conforming changes to various guidelines.
Motion made by Commissioner Castillo to adopt, with an effective date of November 1, 2000; seconded by Commissioner Sessions. Passed unanimously.
Amendment 4 - Offenses Relating to Methamphetamine
This amendment responds to the Methamphetamine Trafficking Penalty Enhancement Act of 1998, Pub. L. No.105277. That Act effectively increased the mandatory minimum sentences for methamphetamine trafficking offenses by cutting in half the quantities of methamphetamine mixture and methamphetamine substance (i.e., methamphetamine-actual) necessary to trigger the five- and ten-year mandatory minimum statutory penalties applicable to methamphetamine trafficking offenses.
Motion made by Commissioner Sessions to adopt the amendment with an effective date of November 1, 2000; seconded by Commissioner Castillo. Passed unanimously.
Amendment 2- Repromulgation of Temporary Emergency Telemarketing Fraud Amendment
This amendment proposes to re-promulgate as a permanent amendment the emergency telemarketing fraud amendment adopted by the Commission on September 23, 1998. It implements the directives to the Commission in section 6 of the Telemarketing Fraud Prevention Act of 1998, Pub. L. No. 105184, but in a somewhat broader form than that required by the directives.
Motion made by Commissioner Steer to adopt the previously promulgated emergency amendments for telemarketing fraud as permanent amendments; seconded by Commissioner ONeill. Passed unanimously.
Amendment 1 - Implementation of the Net Act
The No Electronic Theft (NET) Act of 1997, Pub. L. No. 105-147, directs the Commission to: (1) ensure that the applicable guideline range for a crime against intellectual property (including offenses set forth at section 506(a) of title 17, United States Code, and sections 2319, 2319A, and 2320 of title 18, United States Code) is sufficiently stringent to deter such crime; and (2) ensure that the guidelines provide for consideration of the retail value and quantity of the items with respect to which the intellectual property offense was committed.
Motion made by Commissioner Castillo to adopt revised option 3, both as an emergency amendment effective May 1, 2000, and as a permanent amendment effective November 1, 2000; seconded by Commissioner Steer. Passed unanimously.
Amendment 8 - Circuit Conflicts
Drug Sales in Protective Locations or to a Protected Individual
This amendment addresses the circuit conflict regarding whether the enhanced penalties in §2D1.2 (Drug Offenses Occurring Near Protected Locations or Involving Underage or Pregnant Individuals; Attempt or Conspiracy) apply only when the defendants relevant conduct included drug sales in a protected location or involving a protected individual.
Motion made by Commissioner Steer to adopt the revised March 31, 2000, amendment; seconded by Commissioner Johnson. Passed unanimously.
This amendment addresses the conflict regarding whether the fraud guideline enhancement for violation of a judicial or administrative order, injunction, decree, or process applies to falsely completing bankruptcy schedules and forms.
Motion made by Commissioner Castillo to adopt this amendment, seconded by Commissioner Sessions. Passed unanimously.
This amendment disallows a downward departure for post-sentencing rehabilitative efforts, even if those efforts are exceptional.
Motion made by Commissioner Steer to adopt the amendment; seconded by Commissioner ONeill. Commissioners Castillo, Johnson, Kendall, Murphy, ONeill, and Steer voted in the affirmative, with Commissioner Sessions voting against. Passed 6-1.
Upward Departure Based on Dismissed or Uncharged Conduct
This amendment addresses the circuit conflict regarding whether a court can base an upward departure on conduct that was dismissed or uncharged as part of a plea agreement in the case.
Motion made by Commissioner Steer to adopt this amendment, including substituting the revised language in §1B1.4 by replacing the last seven words in the redline sentence to read and may provide a reason for sentencing above the guideline range; seconded by Commissioner Johnson. Commissioners Castillo, Johnson, Kendall, Murphy, Sessions, and Steer voted in the affirmative, with Commissioner ONeill voting against. Passed 6-1.
Motion by Commissioner Johnson to make all the permanent amendments effective November 1, 2000; seconded by Commissioner ONeill. Passed unanimously.
Motion by Commissioner Sessions to delegate authority to staff to write conforming technical changes and reasons for the amendments; seconded by Commissioner Steer. Passed unanimously.
Chair Murphy recessed the meeting at 3:45 p.m. until April 4 at 1:30 p.m.
April 4, 2000
The Chair reconvened the meeting by providing introductory remarks regarding the amendment process similar to the meeting on April 3 and then called upon the staff director for his report.
Staff Director McGrath introduced Mark Fife as the Commissions new personnel management specialist and announced the posting of various job vacancies in the Office of Policy Analysis and the Office of Administration and Planning.
Amendment 5 - Implementation of the Identity Theft and Assumption Deterrence Act and Amendment 6 - Wireless Phone Cloning
The Identity Theft and Assumption Deterrence Act of 1998 amended 18 U.S.C. § 1028 to criminalize the unauthorized use or transfer of a means of identification with the intent to commit or aid or abet any federal violation or state felony. The Wireless Telephone Protection Act amended 18 U.S.C. § 1029 relating to cloning of cellular telephones.
Motion made by Commissioner Steer to adopt the amendment with technical changes; seconded by Commissioner Kendall. Passed unanimously.
Amendment 7 - Offenses relating to Firearms
This amendment responds to Pub. L. No. 105-386, which relates to firearms, as well as resolves circuit conflict concerning weapon enhancements.
Motion made by Commissioner Steer to adopt the amendment, seconded by Commissioner Castillo. Passed unanimously.
Pursuant to Rule 1.2(b) of the Commissions Rules of Practice and Procedures, motion made by Commissioner Steer to temporarily suspend Rule 4.1, which would have required the Commission to vote on retroactivity at the time it promulgates an amendment, direct the staff to prepare a retroactivity analysis, and publish for sixty day comment period the issue of whether these provisions should be made retroactive; seconded by Commissioner Castillo. Passed unanimously.
Amendment 8 - Circuit Conflicts
This amendment addresses whether for purposes of downward departure from the guideline range a single act of aberrant behavior includes multiple acts occurring over a period of time.
Motion made by Commissioner Sessions to adopt, with an effective date of November 1, 2000; seconded by Commissioner Steer. Motion then made by Commissioner ONeill to substitute the language in Application Note 1 of the proposed guideline to read as follows: "?Aberrant behavior means a single criminal occurrence or single criminal transaction . . . .; seconded by Commissioner Castillo. Commissioners Sessions and Steer accepted the amendment and both motions passed unanimously.
For the record, Commissioner Sessions stated that it is extraordinarily important for the Commission and for Congressional review that although varying sentencing philosophies exists this amendment was adopted through compromise and unanimously.
Amendment 3 - Sexual Predators Act
This proposed amendment responds to the Protection of Children from Sexual Predators Act of 1998, Pub. L. No. 105314.
Motion made by Commissioner ONeill to adopt the revised amendment with technical changes; seconded by Commissioner Johnson. Passed unanimously.
Chair Murphy stated that the Commission would continue addressing the congressional directive regarding "pattern of activity" involving sex crimes during the next amendment cycle.
Motioned made by Commissioner Castillo to make the effective date of all amendments promulgated today November 1, 2000; seconded by Commissioner Steer. Passed unanimously.
Motioned made by Commissioner ONeill to delegate authority to staff to write conforming technical changes and reason for amendments; seconded by Commissioner Johnson. Passed unanimously.
Chair Murphy adjourned the meeting at 2:45 p.m.