Minutes from April 6, 1993

Minutes of the April 6, 1993,
United States Sentencing Commission
Business Meeting

The meeting was called to order at 10:15 a.m. by Chairman William W. Wilkins, Jr., in the conference room of the Sentencing Commission. The following Commissioners, staff, and guests participated:

 

William W. Wilkins, Jr., Chairman
Julie E. Carnes, Commissioner
Michael S. Gelacak, Commissioner
A. David Mazzone, Commissioner
Ilene H. Nagel, Commissioner
Roger Pauley, Acting Ex Officio Commissioner
Phyllis J. Newton, Staff Director
Paul K. Martin, Deputy Staff Director
John R. Steer, General Counsel
Sharon Henegan, Director, Training and Technical Assistant
Peter Hoffman, Principal Technical Advisor
Andy Purdy, Chief Deputy General Counsel
Vince Ventimiglia, Staff Attorney
Susan Winarsky, Deputy Director, Training and Technical Assistant
Fred Bennett, Practitioners' Advisory Group
Ted Greenburg, DOJ Representative, Money Laundering Division
Michael Karam, DOJ Representative, Tax Division
Vicki Portney, DOJ Representative, Criminal Division

Motion made by Commissioner Carnes to adopt the minutes of the March 23, 1993, meeting. Passed unanimously.

 

Chairman Wilkins introduced Probation Officer Debra James Marshall (W.D. OK.), on temporary assignment to the Commission and Janeen Heaney, an attorney who will work on the appeals database.

 

AMENDMENTS

 

#4 2A4.2 Demanding or Receiving Ransom Money

 

Section 2A4.2 currently provides a single offense level to cover a wide variety of conduct. This amendment revises this guideline to better differentiate the types of conduct covered.

 

Chairman Wilkins moved only the cross reference (2A4.2(c)(1)) and its definition (2A4.2, app. n. 1) of the proposed substitute amendment. Passed unanimously.

 

#14 2K1.3 Unlawful Receipt, Possession, or Transportation of Explosive Materials; Prohibited Transactions Involving Explosive Materials

 

Failed for lack of a motion.

 

#15 2K2.1 Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition

 

Failed for lack of a motion.

 

#16 2K2.1 Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition

 

Subsection (b)(4) of 2K2.1 enhances the offense level if the firearm was stolen. This amendment also clarifies that the enhancement applies whether or not the defendant knew or had reason to believe the firearm was stolen or had an altered or obliterated serial number.

 

Chairman Wilkins moved this amendment. Passed unanimously.

 

#17 Issue for comment concerning departure on the basis of the type or nature of the firearm.

 

Commissioner Nagel requested that this issue be placed on a general list of issues to be sent to the Attorney General and the President for comment.

 

Failed for lack of a motion.

 

#18 2K2.4 Use of Firearms or Armor-Piercing Ammunition During or in Relation to Certain Crimes

 

Attempts to clarify and ease application of note two concerning 18 U.S.C. 924(c) convictions.

 

Motion made by Commissioner Nagel to adopt the proposed substitute amendment (18(A)), option one. Passed unanimously.

 

#19 Issue for comment concerning adequacy of offense levels for violations of 18 U.S.C. 922(q) (possession of firearm in school zone) and 18 U.S.C. 930 (possession of dangerous weapon in federal facility) relative to other firearm offenses.

 

Commissioner Nagel requested that this issue be placed on a general list of issues to be sent to the Attorney General and the President for comment.

 

Failed for lack of a motion.

 

 

#28(A) 2A1.1 First Degree Murder

 

This amendment deletes commentary relating to the issue of whether life imprisonment is mandated for first degree murder.

 

Motion made by Commissioner Nagel to adopt. Passed unanimously.

 

#28(B) 2A2.1 Assault With Intent to Commit Murder; Attempted Murder; 2A2.2 Aggravated Assault

 

Deferred for further study.

 

#28(D) 2A4.1 Kidnapping, Abduction, Unlawful Restraint; 2K1.3 Unlawful Receipt, Possession, or Transportation of Explosive Materials; Prohibited Transactions Involving Explosive Materials

 

This amendment clarifies that subsections (b)(7) and (c)(1) of 2A4.1, subsections (b)(3) and (c)(1) of 2K1.3, and subsections (b)(5) and (c)(1) of 2K2.1 apply to federal, state, and local offenses.

 

Wilkins moved to adopt. Passed unanimously.

 

#28(F) Issue for comment concerning threatening communications.

 

Failed for lack of a motion.

 

#64 Issue for comment concerning firearm enhancements.

 

Commissioner Nagel requested that this issue be placed on a general list of issues to be sent to the Attorney General and the President for comment.

 

Failed for lack of a motion.

 

#66 Issue for comment concerning an enhancement for gang-related conduct.

 

Failed for lack of a motion.

 

#1 1B1.3 Relevant Conduct (Factors that Determine the Guideline Range)

 

This amendment revises 1B1.3 to provide that conduct for which the defendant has been acquitted after trial shall not be considered in determining the defendant's offense level but may, in an exceptional case, provide a basis for an upward departure.

 

 

Motion made by Commissioner Nagel to adopt the proposed substitute amendment (1(A)). Commissioners Gelacak and Nagel voted in favor of the proposal, with Commissioners Carnes, Mazzone, and Wilkins voting "no." Failed, 2-3.

 

This amendment was subsequently deferred for further study.

 

#2 1B1.11 Use of Guidelines Manual in Effect on Date of Sentencing (Policy Statement)

 

This amendment expands the commentary of 1B1.11 to address the application of amended guidelines to multiple count cases in which the effective date of guideline revision(s) occur between offenses of conviction.

 

Chairman Wilkins moved to adopt the proposed substitute amendment (2(A)). Passed unanimously.

 

#3 1B1.12 Persons Sentenced Under the Federal Juvenile Delinquency Act (Policy Statements)

 

This amendment adds a policy statement addressing the determination of the maximum imposable sentence in the case of a juvenile delinquent.

 

Commissioner Mazzone moved to adopt the proposed substitute amendment (3(A)). Chairman Wilkins and Commissioners Carnes and Mazzone voted in favor of the proposal, with Commissioners Gelacak and Nagel voting "no." Failed, 3-2.

 

#5 Concerns amendments to certain fraud, theft, and tax guidelines as they relate to loss and the treatment of the specific offense characteristic for more than minimal planning.

 

Commissioner Nagel requested that this issue be placed on a general list of issues to be sent to the Attorney General and the President for comment.

Failed for lack of a motion.

 

#6 2F1.1 Fraud and Deceit

This amendment expands the Commentary to 2F1.1 to provide guidance in cases in which the monetary loss does not adequately reflect the seriousness of the offense.

Deferred for further consideration.

#7 Issue for comment concerning non-monetary harm.

Deferred for discussion with amendment #6.

#8-#13 2D1.1 Unlawful Manufacturing, Importing, Exporting, or Trafficking (including Possession with Intent to Commit These Offenses); Attempt or Conspiracy

Deferred for future consideration.

#21 2T1.1 Tax Evasion; 2T1.2 Willful Failure to File Return, Supply Information, or Pay Tax; 2T1.3 Fraud and False Statements Under Penalty of Perjury

This amendment consolidates the tax guidelines and provides for a uniform definition of loss.

Chairman Wilkins moved to adopt the proposed substitute amendment (21(A)) in principle. Chairman Wilkins and Commissioners Carnes and Mazzone voted in favor of the proposal, with Commissioners Gelacak and Nagel voting "no." Failed, 3-2.

#22 Attempt, Solicitation, or Conspiracy

Failed for lack of a motion.

#23 3B1.3 Abuse of Position of Trust or Use of a Special Skill

This amendment reformulates the definition of an abuse of position of trust to provide a more detailed definition that better distinguished cases warranting this enhancement.

Motion made by Commissioner Carnes to adopt the proposed substitute amendment (23(A)). Chairman Wilkins and Commissioners Carnes and Gelacak voted in favor.

Subsequently, it was agreed to in principle by all and deferred for redrafting.

#24 5K1.1 Substantial Assistance to Authorities (Policy Statements)

Provides for departure in cases involving first offenders where no violence was associated with the offense.

Motion made by Commissioner Gelacak to adopt proposed substitute amendment (24(A)). Commissioners Gelacak and Nagel voted in favor, with Commissioners Carnes, Mazzone, and Wilkins voting "no." Failed, 2-3.

#25 6B1.2 Standards for Acceptance of Plea Agreements (Policy Statements)

Motion made by Commissioner Mazzone to adopt the proposed substitute amendment (25(A)).

Subsequently, Commissioner Mazzone withdrew his motion and the proposal was deferred for further consideration.

#26 Issue for comment concerning the most appropriate guideline for the armed carjacking statute.

Deferred for future consideration.

Commissioner Nagel requested all available data related to this issue.

#27 Concerns the deletion of various offense guidelines by consolidating them with other offense guidelines that cover similar offense conduct and have either identical or very similar characteristics.

Motion made by Commissioner Gelacak to adopt the proposed amendment up to, but not including, section (T). Passed unanimously.

#25 6B1.2 Standards for Acceptance of Plea Agreements (Policy Statements)

Motion made by Commissioner Mazzone to adopt the proposed substitute amendment (25(A)), with the deletion of "government" wherever it appears and the insertion of "prosecuting attorney" instead. Passed unanimously.

#28(C) 2A3.1 Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse; 2B3.1 Robbery; 2B3.2 Extortion by Force or Threat of Injury or Serious Damage; 2E2.1 Making or Financing an Extortionate Extension of Credit; Collecting an Extension of Credit by Extortionate Means

Chairman Wilkins moved to adopt with the addition of a homicide cross reference to the drug guideline. Passed unanimously.

#28(E) 2A5.2 Interference with Flight Crew Member or Flight Attendant; 2A6.1 Threatening Communications

This amendment substitutes the term "offense involved" for the term "defendant" in subsection (a)(1) of 2A5.2 and subsections (b)(1) and (2) of 2A6.1.

Wilkins moved to adopt. Passed unanimously.

#28(G) 2B1.1 Larceny, Embezzlement, and Other Forms of Theft; 2F1.1 Fraud and Deceit

This amendment makes the definition of loss in 2B1.1 and 2F1.1 more consistent.

Motion made by Commissioner Nagel to adopt. Passed unanimously.

#28(H) 2B3.3 Blackmail and Similar Forms of Extortion

Under certain statutes addressing extortion and blackmail, the count of conviction may not be specific enough to distinguish the appropriate guideline under the provisions of 1B1.2. This amendment revises 2B3.3 so that in such cases the appropriate guideline will be selected on the basis of the underlying conduct.

Chairman Wilkins moved to adopt. Chairman Wilkins and Commissioners Carnes, Mazzone, and Nagel voted in favor, with Commissioner Gelacak voting "no." Passed, 4-1.

#28(I) Concerns conforming changes pertaining to the interaction of Chapter Two and Chapter Eight.

Failed for lack of a motion.

Chairman Wilkins recessed the meeting until 2:15 p.m.

Chairman Wilkins reconvened the meeting at 2:21 p.m.

#67 5G1.3 Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment

This amendment inserts an additional application note in 5G1.3 addressing cases in which the defendant is serving a term for a probation, parole, or supervised release violation.

Chairman Wilkins moved to adopt this additional proposed amendment. Passed unanimously.

#68 2A3.1 Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse

Motion made by Commissioner Nagel to adopt the additional proposed amendment with the deletion of the term "aggravated" and the insertion of "criminal" instead.

Subsequently, the amendment was deferred for redrafting.

#20 Chapter Two, Part S (Money Laundering and Monetary Transaction Reporting)

Generally, this amendment consolidates 2S1.1 and 1.2 for ease of application and provides additional modifications with the aim of better assuring that the offense levels prescribed by these guidelines comport with the relative seriousness of the offense conduct. This amendment also consolidates 2S1.3 and 1.4 for ease of application and modifies these guidelines to assure greater consistency of punishment for similar offenses and greater sensitivity to indicia of offense seriousness.

Deferred for further consideration.

#57 4A1.2 Definitions and Instructions for Computing Criminal History

This amendment clarifies the Commission's intent with respect to whether 4A1.2 confers on defendants a right to attack prior convictions collaterally at sentencing.

Deferred for further consideration.

#8 2D1.1 Unlawful Manufacturing, Importing, Exporting, or Trafficking (including Possession with Intent to Commit These Offenses); Attempt or Conspiracy

Failed for lack of a motion.

#9 2D1.1 Unlawful Manufacturing, Importing, Exporting, or Trafficking (including Possession with Intent to Commit These Offenses); Attempt or Conspiracy

Failed for lack of a motion.

Chairman Wilkins announced that a Commission meeting has been scheduled for April 19, 1993, at 10:30 a.m.

Chairman Wilkins adjourned the meeting into executive session at 4:22 p.m.

 


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