Minutes from April 19, 1993

Minutes of the April 19, 1993,
United States Sentencing Commission
Business Meeting

The meeting was called to order at 10:06 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 Assistance
Peter Hoffman, Principal Technical Advisor
Andy Purdy, Chief Deputy General Counsel
Fred Bennett, Practitioners' Advisory Group
Magdeline Jensen, Probation and Pretrial Services
Michael Karam, DOJ Representative, Tax Division
Michael Koltz, Representative, Internal Revenue Services
Vicki Portney, DOJ Representative, Criminal Division

Chairman Wilkins introduced Probation Officer Larry Valadez (E.D. Wash.) and Federal Defender Jon Sands (D. Arizona), both on temporary assignment to the Commission. Chairman Wilkins, on behalf of the Commission, commended David Levitt, a visiting Federal Defender who just completed his temporary assignment, for his contributions to the work of the Commission.

 

Motion made by Commissioner Mazzone to adopt the minutes of the April 6, 1993, meeting. Passed unanimously.

 

 

AMENDMENTS

 

#10 2D1.1 Unlawful Manufacturing, Importing, Exporting, or Trafficking (including Possession with Intent to Commit These Offenses); Attempt or Conspiracy

 

This amendment is intended to resolve the split among the circuits as to the meaning of the term "mixture or substance" as used in 2D1.1 by expressly providing that this term does not include unusable portions of a drug mixture.

 

Deferred for further revision.

 

 

 

#12 2D1.1 Unlawful Manufacturing, Importing, Exporting, or Trafficking (including Possession with Intent to Commit These Offenses); Attempt or Conspiracy

 

This amendment is intended to resolve a split among the circuits by revising the phrase "did not intend to produce and was not reasonably capable of producing" in Application Note 12 of the Commentary to 2D1.1 by changing the conjunctive to the disjunctive.

 

Motion made by Commissioner Carnes to adopt the proposed substitute amendment 12(A). Chairman Wilkins and Commissioners Carnes and Mazzone voted in favor of the proposal, with Commissioners Gelacak and Nagel abstaining. Failed, 3-0-2.

 

#10 2D1.1 Unlawful Manufacturing, Importing, Exporting, or Trafficking (including Possession with Intent to Commit These Offenses); Attempt or Conspiracy

 

Resumed consideration of earlier amendment. Further delayed for additional revision.

 

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

 

This amendment addresses the issue of calculating the weight of drugs under negotiation in a reverse sting operation when government agents have set a price for the controlled substance that is substantially below the market value of the controlled substance, thereby leading to the defendant's purchase of a significantly greater quantity of controlled substance than his available resources would have allowed him to purchase, except for the artificially low price set by the government agents.

 

Motion made by Commissioner Carnes to adopt proposed substitute amendment 13(A). Chairman Wilkins and Commissioners Carnes and Mazzone voted in favor of the proposal, with Commissioners Gelacak and Nagel abstaining. Failed, 3-0-2.

 

#51 2D1.1 Unlawful Manufacturing, Importing, Exporting, or Trafficking (including Possession with Intent to Commit These Offenses); Attempt or Conspiracy

 

This amendment specifies that the term "cocaine base" in 2D1.1 means "crack."

 

Motion made by Commissioner Mazzone to adopt the proposed substitute amendment 51(A). Passed unanimously.

 

#10 2D1.1 Unlawful Manufacturing, Importing, Exporting, or Trafficking (including Possession with Intent to Commit These Offenses); Attempt or Conspiracy

 

Resumed consideration of earlier amendment with modifications.

 

 

 

Motion made by Commissioner Carnes to adopt the proposed revised (April 19, 1993) substitute amendment 10(A). Passed unanimously.

 

#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 distinguishes cases warranting this enhancement. The amendment also states that the theft of mail by postal employees shall constitute an abuse of trust.

 

Motion made by Commissioner Carnes to adopt the proposed revised substitute amendment 23(A). Passed unanimously.

 

#26 2B3.1 Robbery

 

This amendment addresses the issue concerning the most appropriate guideline for the armed carjacking statute by placing carjacking under the robbery guideline.

 

Motion made by Commissioner Carnes to adopt the proposed revised substitute amendment 26(A). Chairman Wilkins and Commissioners Carnes, Gelacak, and Mazzone voted in favor of the proposal, with Commissioner Nagel voting "no." Passed, 4-1.

 

#37 2F1.1 Fraud and Deceit; 2B1.1 Larceny, Embezzlement, and Other Forms of Theft

 

This amendment conforms the commentary to 2B1.1 to 2F1.1; clarifies applicability of 2X1.1 to attempted loss.

 

Motion made by Commissioner Mazzone to adopt proposed substitute amendment 37(A). Chairman Wilkins and Commissioners Carnes and Mazzone voted in favor of the proposal, with Commissioners Gelacak and Nagel abstaining. Failed, 3-0-2.

 

#54 Definitions and Instructions for Computing Criminal History

 

This amendment modifies 4A1.2, Application Note 1, to define "instant offense."

 

Motion made by Commissioner Mazzone to adopt proposed substitute amendment 54(A). Chairman Wilkins and Commissioners Carnes, Mazzone, and Nagel voted in favor of the proposal, with Commissioner Gelacak abstaining. Passed, 4-0-1.

 

 

 

 

#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.

 

Motion made by Commissioner Carnes to adopt the proposed revised substitute amendment 57(A), with the deletion in Application Note Six, first paragraph, of the term "proceeding" and the insertion in lieu thereof of the term "case." Chairman Wilkins and Commissioners Carnes, Mazzone, and Nagel voted in favor of the proposal, with Commissioner Gelacak voting "no." Passed, 4-1.

 

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

 

This amendment adds an application note inviting upward departure in certain cases involving multiple rapes.

 

Motion made by Commissioner Nagel to adopt the proposed revised substitute amendment. Passed unanimously.

 

#40 Issue for Comment Regarding the provisions that distinguish between the punishment for cocaine base (crack) and powder cocaine at the 100 to 1 quantity ratio

 

Motion made by Commissioner Mazzone to direct the Commission to study this issue. Passed unanimously. Chairman Wilkins asked Staff Director Newton to organize a staff working group to carry out the study.

 

Commissioner Nagel suggested that the Commission review Richard Berk's California study on prosecutorial charging decisions. She also requested that this issue be placed on a general list of issues to be sent to the Attorney General and the President for comment.

 

#6(C) Fraud and Deceit

 

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

 

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

 

 

Chairman Wilkins recessed the meeting until 12:45 p.m.

 

Chairman Wilkins thereafter reconvened the meeting.

 

#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, eases application, and provides for a uniform definition of tax loss.

 

Motion made by Commissioner Mazzone to adopt the proposed revised substitute amendment 21(A). Passed unanimously.

 

#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, pertaining to structuring transactions to avoid reporting requirements and related regulatory offenses, 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.

 

Motion made by Commissioner Mazzone to adopt the proposed revised substitute amendment 20(A). Chairman Wilkins and Commissioners Carnes and Mazzone voted in favor of the proposal, with Commissioners Gelacak and Nagel voting "no." Failed, 3-2.

 

Motion made by Commissioner Nagel to adopt the structuring transactions section of the amendment only. Passed unanimously.

 

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

 

#50 2D1.1 Unlawful Manufacturing, Importing, Exporting, or Trafficking (including Possession with Intent to Commit These Offenses); Attempt or Conspiracy

 

This amendment bases the offense levels in 2D1.1 for offenses involving LSD on a carrier medium on a uniform dosage weight of 0.4 mg, in order to avoid disproportionate and disparate impact of varying carrier weights.

 

Motion made by Commissioners Carnes and Mazzone to adopt the proposed revised (April 19, 1993) substitute amendment that treats medium carriers as equal to 0.4 mg. Passed unanimously.

 

#8(A) 3B1.2 Mitigating Role

 

This amendment revises the commentary to 3B1.2 to more clearly describe cases in which a mitigating role adjustment is warranted, as well as to differentiate between minor and

 

 

minimal roles.

 

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

 

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

 

This amendment authorizes a limited downward departure for certain defendants whose offense level under 2D1.1 exceeds level 36, have a mitigating role in the offense, did not possess a weapon, and for whom the court determines that the offense level for drug quantity overstates the defendants' culpability.

 

Chairman Wilkins moved the proposed substitute amendment. Chairman Wilkins and Commissioners Carnes and Mazzone voted in favor of this proposal, with Commissioners Gelacak and Nagel voted "no." Failed, 3-2.

 

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

 

This amendment authorizes a limited downward departure for certain defendants whose base offense level under 2D1.1 exceeds level 36, for whom the court determines that the offense level overrepresents culpability due to the defendants' limited and peripheral involvement in criminal activity, and who meet certain other criteria.

 

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

 

Motion made by Commissioner Gelacak, supported by Commissioner Mazzone, to adopt the above proposed amendment with the insertion of level 26 instead of level 36, the addition of mitigating role as a qualifier, and the deletion of the statutory reference. Commissioners Gelacak, Mazzone, and Nagel voted in favor of the proposal, with Chairman Wilkins and Commissioner Carnes voting "no." Failed, 3-2.

 

Subsequently, the amendment was amended back to level 36 and agreed to in principle by all Commissioners, pending redrafting for later consideration.

 

 

 

#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.

 

Chairman Wilkins moved to reconsider adopting the proposed substitute amendment 3(A). Chairman Wilkins and Commissioners Carnes, Mazzone, and Nagel voted in favor of the proposal, with Commissioner Gelacak voting "no." Passed, 4-1.

 

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

 

Motion for reconsideration made by Commissioner Gelacak to adopt proposed substitute amendment 13(A). Passed unanimously.

 

#6(C) Fraud and Deceit

 

Commissioner Nagel requested reconsideration. Motion made by Commissioner Mazzone to adopt the proposed revised substitute amendment. Chairman Wilkins and Commissioners Carnes, Mazzone, and Nagel voted in favor of the proposal, with Commissioner Gelacak abstaining. Passed, 4-0-1.

 

 

Chairman Wilkins recessed the meeting.

 

Chairman Wilkins thereafter reconvened the meeting.

 

 

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

 

Motion made by Commissioner Gelacak to adopt the proposed revised (April 19, 1993) substitute amendment. Passed unanimously.

 

Chairman Wilkins moved that all amendments affirmatively adopted by the requisite four votes be submitted to Congress, with an effective date of November 1, 1993. Passed unanimously.

 

Chairman Wilkins thanked all participants involved in the amendment process for their cooperation and adjourned the meeting at 2:17 p.m.

 


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