Chair Ricardo H. Hinojosa called the meeting to order at 7:30 p.m. in the Commissioners’ Conference Room.
The following Commissioners were present:
· John R. Steer, Vice Chair
· Michael E. Horowitz, Commissioner
The following Commissioners were present via telephone:
· Judge Ricardo H. Hinojosa, Chair
· Judge Ruben Castillo, Vice Chair
· Judge William K. Sessions, III, Vice Chair
· Dabney L. Friedrich, Commissioner
· Beryl Howell, Commissioner
· Benton J. Campbell, Commissioner Ex Officio
· Edward F. Reilly, Jr., Commissioner Ex Officio
The following staff participated in the meeting:
· Judith Sheon, Staff Director
· Kenneth Cohen, General Counsel
Chair Hinojosa noted that a motion pursuant to Rule 1.2(b) of the Commission’s Rules of Practice and Procedure, which allows for the temporary suspension of a rule, was in order with regards to Rule 3.2 (Public Meetings). Vice Chair Castillo made a motion to temporarily suspend the notice requirement of Rule 3.2. Commissioner Howell seconded Vice Chair Castillo’s motion. Hearing no discussion, the Chair called for a voice vote on the motion, which was adopted by the Commission.
The Chair reminded the public that the Commission placed the issue of federal cocaine sentencing policy on the priority list for the current amendment cycle and reported that the Commission has continued its work with the three branches of the federal government and other interested members of the criminal justice community on the topic of crack cocaine sentencing. He then opened the floor for discussion on the topic.
Vice Chair Steer noted that the Commission is updating its 2002 report on federal cocaine sentencing and the work is close to completion. Vice Chair Steer made a motion to send the completed report to Congress on or before May 15, 2007. Vice Chair Sessions seconded Vice Chair Steer’s motion. Hearing no discussion, the Chair called for a voice vote on the motion and the motion was adopted by the Commission.
Chair Hinojosa called on General Counsel Cohen to report on any other matters regarding federal cocaine sentencing policy.
Mr. Cohen advised the Commission on a possible amendment to amend §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) to adjust the quantity thresholds for cocaine base (“crack”) so that the base offense level for cocaine base, as determined by the Drug Quantity Table, is reduced by two-levels. The proposed amendment will result in a base offense level corresponding to a guideline range that includes the five- and ten-year mandatory minimum terms of imprisonment for 5 and 50 grams of crack cocaine, respectively. Currently, at least 5 grams but less than 20 grams of cocaine base are assigned a base offense level of 26 (63 to 78 months at Criminal History Category I (CHC I)), and at least 50 grams but less than 150 grams of cocaine base are assigned a base offense level of 32 (121 to 152 months at CHC I). Under the proposed amendment those same quantities of cocaine base would be assigned a base offense level of 24 (51 to 63 months at CHC I) and 30 (97 to 121 months at CHC I), respectively. The proposed amendment also addresses how to determine the base offense level in a case involving cocaine base and other controlled substances (“a poly-drug case”). This mechanism is required because the amendment changes the mathematical relationship between crack cocaine and other drugs in the Drug Quantity Table.
Mr. Cohen advised the Commission that a motion to adopt the proposed amendment would be in order, with an effective date of November 1, 2007, with the staff being authorized to make technical and conforming changes if needed. The Chair called for a motion as suggested by the General Counsel. Vice Chair Sessions made a motion to that effect, with Vice Chair Castillo seconding the motion.
Vice Chair Castillo stated that now is the time to address the disparity between crack and powder cocaine. He noted that the proposed amendment was a modest step by the Commission and is not intended to be the ultimate solution to crack and powder cocaine sentencing. Vice Chair Castillo concluded by stating that only Congress can solve the problem and expressed hope that this step by the Commission will begin a discussion on cocaine sentencing policy in Congress.
Commissioner Howell observed that the statutory mandatory minimums are the major reason for disparity between crack and powder cocaine sentences. The proposed amendment only addresses the Commission’s contribution to the disparity between crack and powder cocaine sentencing.
Vice Chair Sessions agreed with the comments made by Vice Chair Castillo and Commissioner Howell. Vice Chair Sessions emphasized that the proposed amendment is a modest step. He acknowledged that the final step in addressing the disparity between crack and powder cocaine is within the discretion and authority of Congress. Vice Chair Sessions also voiced his concern that disparity in sentencing may increase due to the splits among the circuits arising in crack cocaine sentencing cases.
Vice Chair Steer expressed his concern that action by the Commission may cause Congress to be less likely, not more likely, to take action on the issue of mandatory minimums for cocaine offenses. While he did not disagree with adopting an intermediate amendment, Vice Chair Steer stated he could not support the proposed amendment because it granted relief in too broad a fashion, including possible reductions to defendants who personally engage in violence or who use the threat of violence. Vice Chair Steer noted that such defendants are blocked from receiving reductions under the safety valve provisions, and he believes they should be blocked from receiving reductions under any interim amendment the Commission adopts. Vice Chair Steer also expressed his concern that use of the Drug Quantity Table was not the proper mechanism to grant relief.
After yielding the chair to Vice Chair Steer, Chair Hinojosa stated that other existing guideline enhancements, such as the enhancement for the use of a firearm in relation to a drug trafficking offense, will address defendants who use violence or use threats of violence in relation to their offenses. Chair Hinojosa added that the proposed amendment was a modest step. The matter must be addressed from a congressional standpoint, and the Chair expressed hope that all three branches of the federal government and other interested members of the criminal justice communtiy will work together to address this issue. Vice Chair Steer then yielded the chair back to Chair Hinojosa.
Vice Chair Castillo agreed with the Chair’s statements and added his hope that Congress will address the issue before additional sentencing disparity results.
Commissioner Horowitz noted that the ratios that result from the proposed amendment to the Drug Quantity Table vary depending upon quantity. Commissioner Horowitz stated that this was appropriate because the Commission has avoided adopting a ratio and has instead left it to Congress to determine the appropriate ratio. Commissioner Horowitz stated his hope that the Commission’s action will spur debate in Congress on the issue of cocaine sentencing.
Commissioner ex officio Campbell stated that the Department of Justice welcomes the dialogue concerning cocaine sentencing policy and recognizes that legislative reform is necessary to comprehensively address the issue of cocaine sentencing. He added that this reform should be in the context of broader sentencing reform. Commission Campbell concluded by stating that the Department of Justice looks forward to continuing its discussions on this issue with the Commission.
Hearing no further discussion, Chair Hinojosa called on the Staff Director to perform a roll call vote on the motion to adopt the proposed amendment. The motion was adopted by a 6 to 1 vote with Chair Hinojosa, Vice Chairs Castillo and Sessions, and Commissioners Horowitz, Howell, and Friedrich voting in favor of the motion and Vice Chair Steer voting against the motion.
The Chair asked if there was any further business before the Commission, and hearing none, called for a motion to adjourn the meeting. Commissioner Horowitz made a motion to adjourn, with Commissioner Howell seconding the motion. The Chair called for a vote, and the motion was adopted by the Commission.
The meeting was adjourned at 7:55 p.m.