Chair Murphy called the meeting to order at 2:07 p.m. in the Commissioners Conference Room.
The following Commissioners and staff participated in the meeting:
Diana E. Murphy, Chair
Ruben Castillo, Vice Chair
William K. Sessions, III, Vice Chair
John R. Steer, Vice Chair
Sterling Johnson, Jr., Commissioner, participating via teleconference
Joe Kendall, Commissioner
Michael E. O’Neill, Commissioner
John P. Elwood, Commissioner Ex-Officio
Edward F. Reilly, Commissioner Ex-Officio
Timothy McGrath, Staff Director
Charles Tetzlaff, General Counsel
Donald (Andy) Purdy, Chief Deputy General Counsel
Judith Sheon, Special Counsel
The following members of the Federal Public Defenders group participated in the meeting:
Jon Sands, AFPD from the District of Arizona and Chair of the Federal Defenders
Marianne Mariano, AFPD from Buffalo, New York, working with Defender Services Division
Michael Dane, Federal Public Defender for the Northern District of Ohio
Sigmund Adams, Chief of the Defender Services Division, Training Branch
Carmen Hernandez, Defender Services Division Training Branch
Anne Blanchard, AFPD from Camden, New Jersey
Chair Murphy welcomed the Federal Public Defenders (FPDs), stating that the Commission appreciated having the opportunity to meet with them.
Jon Sands thanked the Commission for the opportunity to engage in discussions with the Commission and staff. He began by discussing the proposed terrorism amendments. Mr. Sands stated that the FPDs echo the Commission’s concerns that whatever changes it makes to terrorism guidelines not be so broad as to include ordinary criminals, meaning those who fall within the heartland of a particular guideline and lack the intent to commit an act of terrorism. Mr. Sands stated that this is a key issue, and the FPDs are happy to help narrow the focus of the terrorism proposal.
Mr. Sands stated that the FPDs have grave concerns about the proposed amendment to Acceptance of Responsibility. He stated that these amendments would affect nearly every defendant who appears before a sentencing judge.
Michael Dane discussed the FPD’s concerns about Acceptance of Responsibility. He tailored his remarks to address the portion of the proposed amendment that relates to the elimination of subsection (b)(1) of §3E1.1. Mr. Dane stated that the essence of the FPD position is that the guideline is not broken and should be left as it currently is written, unless lengthy consideration is given to the specific effects of any change.
Mr. Dane stated that §3E1.1 has been in its present form for about 10 years. Mr. Dane said that the government suggested the proposed change to the guideline in order to provide stronger incentives for guilty pleas. He further stated the government is concerned that it spends time in trial preparation that is wasted when the defendant decides to plead guilty at the last moment and then still receives the third level reduction for acceptance of responsibility, under subsection (b)(1).
Mr. Dane equated the proposed change with punishing the defendant for failure
to provide timely notification of intent to plead guilty. Mr. Dane stated that
the FPDs believe the proposed amendment will result in a significant amount
of litigation to determine the meaning of "timely." The FPDs suggest
that the Commission also consider adding an incentive to plead guilty by allowing
a fourth reduction level for timely notification, rather than eliminating the
third point reduction. Mr. Dane stated that the FPDs take this position because
they believe that a close reading of §3E1.1 reveals that each of the three
main sections address separate concerns: subsection (a) addresses acceptance
of responsibility in the traditional sense; subsection (b)(1) addresses timely
provision of information about the defendant’s own involvement; and subsection
(b)(2) addresses the timely notification to the government of the intent to
Mr. Dane stated that §3E1.1(b)(2) involves one of the most important decisions a defendant will have to make from the time of indictment to the time of plea. Mr. Dane said that the defendant is entitled to, and must have, effective assistance of counsel in this decision making process. The defendant cannot receive effective assistance of counsel until counsel has the information necessary to advise the defendant in making an informed plea. Mr. Dane stated that the two primary sources of information from which counsel gleans factual information are the defendant himself and discovery from the government. Mr. Dane said that experienced defense attorneys will acknowledge that frequently the defendant is not a reliable source of information; thus, the defense attorney heavily relies upon Rule 16 materials from the government. When the receipt of discovery materials takes time, then it becomes difficult to interpret the meaning of timely notification of intent to plead guilty, as set forth in subsection (b)(2).
Mr. Dane stated that the guideline language need not be changed. If, however, the Commission gives serious consideration to the elimination of subsection (b)(1), FPD suggests that the Commission consider adding an application note that would incorporate the Speedy Trial time-stopping provisions incorporated in 18 U.S.C. § 3161(h) to the effect that notification of an intent to plead guilty under §3E1.1(b)(2) shall not be considered untimely if there is a delay due to any factor or proceeding identified in 18 U.S.C. § 3161(h).
Mr. Dane stated that the FPDs have collected information regarding the criminal discovery provisions relating to Rule 16 material and that there is a great deal of variation among districts as to when discovery materials are provided. This leads to a great deal of variation nationwide as to when individual defendants are in a position to give "timely" notification of intent to enter a guilty plea.
Vice Chair Sessions noted that delay in receipt of a plea offer from the government is not one of the factors in the Speedy Trial Act, and that tying an application note to the Speedy Trial Act would not address the issue of when the government delays in making a plea offer.
Mr. Dane agreed, stating that this is one of the considerations in defining "timely." Mr. Dane stated that if the Commission adopts the proposed amendment as currently written, then the Commission has given the prosecutor two very powerful weapons — prosecutors would be responsible for the release of discovery materials and, at the same time, would be indicating to the defense that unless there is a timely notification of intent to plead guilty, the defendant will not get the third level reduction for acceptance of responsibility.
Vice Chair Sessions asked if it would be better to use an application note to define "timely" as factoring in the impact upon the court schedule as well as the prosecutor’s schedule.
Mr. Dane stated that the FPDs would suggest that such a definition of "timely" would be appropriate.
Mr. Sands reiterated that the FPDs do not believe that the guideline is in need of amendment. He stated that the guideline seems to be working because 95% percent of the cases result in a plea agreement, and defendants are receiving reductions for acceptance of responsibility. Mr. Sands stated that the proposed restriction on eligibility for the third point amounts to policy making by anecdote. Mr. Sands stated that in some districts there may be a problem, but the Commission really needs to study this issue because it affects nearly everything across the board.
Vice Chair Steer stated that if one considers case law anecdotal, then perhaps this would be policy making based on anecdote. He also said that the Criminal Law Committee brought this issue to the Commission’s attention four or five years ago, long before the letter from the Justice Department. Vice Chair Steer described cases in which the sentencing judge had decided to give the defendant only a two level reduction, rather than a three level reduction. If the defendant had made an early statement to law enforcement indicating acceptance, however, Vice Chair Steer stated that in every case, the appellate court reversed the denial of the third point because of the early statement. Vice Chair Steer said that the courts have said that if the first two points are given, then the sentencing judge cannot deny the third. Vice Chair Steer stated that this was correct, based on the current wording of the guideline. Furthermore, there is a string of case law illustrating this situation. Vice Chair Steer stated that the proposed amendment would actually give the sentencing court the ability to impose the sentence originally desired, rather than place a restriction on discretion.
Mr. Sands stated that it may be beneficial to the system to increase the level of acceptance of responsibility available to address the DOJ’s concern about the conservation of scarce government resources. Mr. Sands stated that if the Commission intends to modify §3E1.1, then there needs to be further staff work and the FPDs are happy to help with this endeavor.
Vice Chair Sessions asked the FPDs whether they would support a "2 + 2" design for acceptance of responsibility: two levels for acceptance, and then two levels for timely entry of a plea.
Carmen Hernandez responded that the difficulty is in assessing the meaning
of "timely" because it is very difficult to advise a client on whether
to take a plea without discovery materials in hand.
Commissioner Kendall stated that the real issue is the "or test" embedded in §3E1.1. The problematic situation arises when everything is moving towards trial and the defendant enters a plea at the last minute on Monday morning after the prosecutor spent the weekend preparing for trial and flying witnesses in to testify. If the defendant had made an early statement, then he receives the three point reduction despite the time spent preparing for trial.
Vice Chair Steer stated that in this situation, the advice to a client could be that as long as he had made an early statement to law enforcement, then he could take all the time he wanted, as long as he ultimately pled guilty. Then, the defendant would qualify for the two level reduction and have a strong argument for the third.
Ms. Hernandez stated that there is no incentive for defense attorneys to give this kind of advice because they also have to prepare for trial.
Commissioner Kendall asked whether the public defenders had ever had a defendant change his mind about the plea at the last minute.
Mr. Sands answered that the judge does not have to accept the plea at this point and that the government can then exact a very high price for a plea at the last minute because the defendant must then plead to all of the charges. Mr. Sands also stated that the defendant would not receive any reduction for acceptance at this point, at least in the District of Arizona.
Mr. Dane asked the Commission to take into consideration the fact that defense attorneys have an interest in not wasting time in trial preparation.
Marianne Mariano added that the defendant also does not know if the judge will accept the plea at such a late time before trial.
Ex-Officio Commissioner Elwood stated that he had experienced situations where the defendant pled guilty on the morning before trial and still received a reduction for acceptance of responsibility, at least in the Eastern District of Virginia.
Ms. Mariano questioned how often the point is given under §3E1.1(b)(1), because it is often the case that the defendant did not make an early statement. She asserted that the third point reduction under subsection (b)(1) is not as common as it might seem because the judge gives a reduction under subsection (b)(2) for timeliness.
Vice Chair Sessions asked the FPDs about their definition of timely and how to define this in the application notes so that defendants will not be prejudiced.
Mr. Sands stated that the FPDs will submit a suggested definition of "timely,"adding that the 2 + 2 idea is a concept the FPDs would favor.
Mr. Sands then discussed the FPDs’ input regarding crack and powder cocaine penalties. He asked that when the Commission heard testimony related to crack and powder, it be prepared to ask questions about the assumptions that went into setting crack penalties because when Congress set the penalties there were assumptions about crack that may or may not have been borne out. Mr. Sands stated that crack might not be as bad as first perceived in the 1980s. He stated that the Commission may wish to ask what assumptions have been borne out, whether crack dealings tend to be more violent, and what the penalties are accomplishing. Mr. Sands said that with crack, the street dealer is more likely to be penalized than the kingpin dealer or the serious trafficker. He added that this is contrary to the intent of Congress. Mr. Sands asked that the Commission also consider the minority impact and the message this is sending with a general emphasis on the goals of drug penalties.
Anne Blanchard stated that the FPD supports the proposed mitigating role cap. They believe this is a solid step away from quantity driven sentences. Ms. Blanchard stated that when drug sentences are so quantity driven, then there is an identifiable class of defendants who are sentenced too harshly. The FPD believes that minor role is a good vehicle for sorting these defendants because the analysis strikes at the heart of the matter — relative culpability. Given the Commission’s most recent amendment to minor role, the FPD would support letting that amendment be litigated to determine if there are still problems with minor role.
Ms. Blanchard stated that, on the other hand, the cap serves to counter balance
what could be a very harsh reality. She stated that the Commission’s own
data indicate that 75% of drug cases do not receive a mitigating role adjustment,
which means 25% of drug defendants do receive a mitigating role adjustment.
Ms. Blanchard said the FPD believes that the new amendment provides sufficient
guidance that mitigating role is determined in light of the totality of the
circumstances. Thus, a judge has discretion to consider everything when deciding
whether someone gets an adjustment at all, and if so, what adjustment is applicable.
Additionally, Ms. Blanchard stated that the FPD supports the cap at the bottom
end of what was suggested. She stated that the lower the cap, the more this
would affect the prosecutor’s decision about whether to oppose the mitigating
role adjustment, and also the more this would affect the court’s determination
of where a sentence should fall. For these reasons, the FPD supports the cap
and suggests that the Commission wait to see how the recent amendment works
before addressing any other circuit conflicts.
Mr. Sands noted that the Commission’s approach to focus on the role of the individual steps away from the focus on quantity. Mr. Sands stated the FPD is concerned that the 100 to 1 crack/powder ratio already takes into account various enhancements, including weapons, increased violence, and affects on fetuses. Mr. Sands stated that if the ratio is lowered, it has to be lowered significantly. Additionally, FPD believes that it makes no sense to keep the ratio very high and bring in additional enhancements. Thus, if the Commission addresses the ratio and enhancements, the two must be addressed in tandem.
Vice Chair Sessions clarified that the FPDs’ position on mitigating role
was that they did not support any interpretation or clarification about drug
couriers under minor role because this might conflict with the most recent amendment,
and case law on the new amendment has not yet been developed.
Ms. Blanchard responded by stating that during the last amendment cycle, the Commission determined there is no per se rule that drug couriers cannot receive a mitigating role adjustment. Thus, the Commission has given as much guidance as is possible in a heavily fact dependent area and should see how the case law bears on this issue before revisiting mitigating role.
Mr. Sands concluded by thanking the Commission for the opportunity to meet with them and offered further assistance.
Chair Murphy said that the Commission very much appreciated the FPDs’ input and written testimony. She stated that the Commission is trying to do the just thing and improve the system, and they need help from everyone. Chair Murphy adjourned the meeting at 2:37 p.m.