Minutes from July 27, 1993

Minutes of the July 27, 1993,
United States Sentencing Commission
Business Meeting

The meeting was called to order at 10:03 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
Henry Brenner, Representative, U.S. Parole Commission
Philip B. Heymann, Deputy Attorney General
Gary Katzmann, Assistant to the Deputy Attorney General
Phyllis J. Newton, Staff Director
Paul K. Martin, Deputy Staff Director
John R. Steer, General Counsel
Sharon Henegan, Director, Office of Training and Technical Assistance
Peter Hoffman, Principal Technical Advisor
Susan Katzenelson, Director, Office of Policy Analysis
Andy Purdy, Chief Deputy General Counsel
Ronnie Scotkin, Guideline Analyst
Michael Quinlan, Consultant, U.S. Sentencing Commission
Fred Bennett, Representative, Practitioners' Advisory Group
Alan Chaset, Representative, Practitioners' Advisory Group
Vicki Portney, Representative, DOJ
Julie Stewart, Representative, Families Against Mandatory Minimums

Chairman Wilkins welcomed Deputy Attorney General Heymann as the Attorney General's designee to the Commission. Wilkins also welcomed Gary Katzmann, Mr. Heymann's deputy. Chairman Wilkins introduced Warren Cikins, formerly of the Brookings Institution and Doris Page of GAO. He also introduced AUSA Amy LeCocq and Probation Officers Dae Hollis Combs (S.D. IN) and Ronald Hudson (N.D. IN.), all on temporary assignment to the Commission.

Motion made by Commissioner Carnes to adopt the minutes of the June 16, 1993, meeting. Passed unanimously.

General Counsel Steer, explaining the process of screening amendments to be considered for retroactivity, stated that the staff reviews any amendment that might meet the statutory requirement of reducing the guideline range. The Commission has indicated that certain criteria, such as the purpose of the amendment, its relative ease of retroactive application, and whether the change makes at least a six-month difference in the applicable guideline range, are then to be considered.

1993 Amendments Considered for Retroactivity

12. 2D1.1 Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses)

This amendment resolves an inter-circuit conflict regarding the meaning of the term "mixture" or "substance," as used in 2D1.1, by expressly providing that this term does not include portions of a drug mixture that must be separated from the controlled substance before the controlled substance can be used.

Motion made by Commissioner Mazzone to make this amendment retroactive. Passed unanimously.

14. 2D1.1 Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses)

This amendment changes the way offense levels for LSD on a carrier medium are calculated.

Motion made by Commissioner Mazzone to make this amendment retroactive. Passed unanimously.

15. 2D1.1 Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses)

This amendment addresses an inter-circuit conflict by defining, for guideline purposes, "cocaine base" to mean "crack."

Motion made by Commissioner Mazzone to make this amendment retroactive. Commissioners Gelacak, Mazzone, and Wilkins voted in favor of the proposal, with Commissioners Carnes and Nagel voting against. Failed, 3-2.

Commissioner Nagel requested that the crack working group examine whether presentence reports make the distinction between what is cocaine base and crack, and whether there are significant differences among circuits.

Commissioner Nagel also requested information on the relationship between form of cocaine substance and the importation/manufacturing/distribution process.

Chairman Wilkins thanked Deputy Attorney General Heymann for his presence at the meeting, noting with pleasure the message his presence signifies regarding the importance with which the Attorney General holds the Commission and sentencing-related issues. Deputy Attorney Heymann stated that his presence was more than just a courtesy, as DOJ considered the issues of sentencing, prisons, prosecutorial discretion in sentencing and charging matters to be very important.

(Gary Katzmann assumed Mr. Heymann's position at the table representing the Attorney General.)

17. 2S1.3 Structuring Transactions to Evade Reporting Requirements; Failure to Report Cash or Monetary Transactions; Failure to File Currency and Monetary Instrument Report; Knowingly Filing False Reports

This amendment reformulates 2S1.3 and 2S1.4 and combines them into one guideline. It provides lower sentences in certain cases involving no intent to hide money from unlawful activity.

Motion made by Commissioner Mazzone to make this amendment retroactive. Commissioners Carnes, Gelacak, Mazzone, and Wilkins voted in favor of the proposal. Commissioner Nagel was not present for the vote. Passed with four votes.

Chairman Wilkins announced that the next Commission meeting will be on August 30, 1993, at 1:00 p.m.

Amendments from 1992

448. 2D1.8 Renting or Managing a Drug Establishment

This amendment ties the offense level to the underlying behavior.

Motion made by Commissioner Gelacak to make this amendment retroactive. Commissioners Gelacak, Mazzone, and Wilkins voted in favor of the proposal, with Commissioners Carnes and Nagel voting against. Failed, 3-2.

454. 3A1.1 Vulnerable Victim

This amendment clarifies that, under normal circumstances, a bank teller is not a vulnerable victim.

Motion made by Commissioner Carnes to make this amendment retroactive. Commissioners Carnes, Gelacak, Mazzone, and Wilkins voted in favor of this proposal, with Commissioner Nagel voting against. Passed, 4-1.

Amendments from 1991

396. 2D1.1 Unlawful Manufacturing, Exporting, Importing, or Trafficking

This amendment changes the equivalency for certain Schedule III controlled substances. It also caps the offense level for certain lower schedule controlled substances.

371. 2D1.11 Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; 2D1.12 Unlawful Possession, Manufacture, Distribution, or Importation of Prohibited Flask or Equipment; and 2D1.13 Structuring Chemical Transactions or Creating a Chemical Mixture to Evade Reporting or Recordkeeping Requirements; Presenting False or Fraudulent Identification to Obtain a Listed Chemical

This amendment resolves a split in the courts concerning the proper guideline to apply for convictions under 21 U.S.C. 841(d)(1), (2), (g)(1), and 960(d)(1) and (2) previous to the inception of 2D1.11.

Motion made by Commissioner Gelacak to defer for future consideration amendment #396 and #371.

Prison Resources Report

Michael Quinlan, briefing the Commission on the revised prison resources report, stated that the report concludes that BOP has been utilizing its resources and appropriated funding to keep pace and to modify existing structures to better accommodate prisoners entering the system. He stated, however, that unless sufficient future appropriations are approved, it would be difficult for BOP to maintain efficiency and effectiveness because of the continuing increase in the prison population. Commissioner Nagel asked that a section on bootcamps that focused more on education, social and vocational skills, as opposed to intensive physical exercise, be added to the report. The Commission consented to forward the draft to Director Kathleen Hawk in order for cross-agency discussions to begin, and to authorize Staff Director Newton to work with BOP until a satisfactory draft is ready for final approval.

Commentary Amendments

Commissioner Gelacak set forth a number of reasons why he intended to vote against all proposed amendments, including his general opposition to amendments, the need for caution because we have only five Commissioners, the lack of need to respond to every court decision, the Stinson decision affirming commentary having the force of law, and the need to search for simplification.

1. 1B1.1 Application Instructions

This amendment clarifies that adjustments from different guideline sections are to be applied cumulatively.

Motion made by Commissioner Mazzone to adopt the proposed commentary amendment. Commissioners Carnes, Mazzone, Nagel, and Wilkins voted in favor of this amendment, with Commissioner Gelacak voting against. Passed, 4-1.

2. 1B1.7 Significance of Commentary

This amendment substitutes language stressing the authoritative nature of commentary, as reflected in Stinson v. United States.

Motion made by Commissioner Carnes to adopt the proposed commentary amendment. Commissioners Carnes, Mazzone, Nagel, and Wilkins voted in favor of this amendment, with Commissioner Gelacak voting against. Passed, 4-1.

3. 1B1.10 Retroactivity of Amended Guideline Range (Policy Statement)

This amendment clarifies that the guidelines to be applied are those in effect at the time the court considers any petition for reduction in sentence.

Failed for lack of a motion.

4. 2B5.1 Offenses Involving Counterfeit Bearer Obligations of the United States

This amendment clarifies the operation of the guideline.

Motion made by Commissioner Mazzone to adopt the proposed commentary amendment. Commissioners Mazzone and Wilkins voted in favor of the proposal, with Commissioners Gelacak and Nagel voting against. Commissioner Carnes abstained. Failed, 2-2-1.

5. 2D1.1 Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy

This amendment revises the equivalency for N-ethyl-phenylcyclohexylamine (PCE) to equal 1 kilogram of marihuana.

Table for discussion at the August 30 Commission meeting.

6. 2D1.1 Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy

This amendment adds an application note providing that the guideline for cocaine, not cocaine base, is to be used in an unusual case in which non-crack cocaine base is distributed or marketed to be smoked in its current form. It also provides that an upward departure may be warranted in such cases.

Table for discussion at the August 30 Commission meeting.

7. 2D1.1 Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy

This amendment defines that a marijuana plant is an organism having leaves and a root system.

Failed for lack of a motion.

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

This amendment adds an example to illustrate the operation of new application note 16 to 2D1.1.

Motion made by Commissioner Mazzone to adopt the proposed commentary amendment. Commissioners Carnes, Mazzone, and Wilkins voted in favor of the proposal, with Commissioners Gelacak and Nagel voting against. Failed, 3-2.

9. 2J1.2 Obstruction of Justice; 2J1.3 Perjury or Subornation of Perjury; 2X1.1 Attempt, Solicitation, or Conspiracy (Not Covered by a Specific Offense Guideline); 2X3.1 Accessory After the Fact

This amendment clarifies the interaction of 2J1.2(c)(1) and 2J1.3(c)(1) with 2X3.1.

Motion made by Commissioner Carnes to adopt the proposed commentary amendment. Commissioners Carnes, Mazzone, and Wilkins voted in favor of the proposal, with Commissioners Gelacak and Nagel. Failed, 3-2.

10. 2K2.4 Use of Firearm, Armor-piercing Ammunition, or Explosive During or in Relation to Certain Crimes

This amendment clarifies the operation of this provision by expanding the list of examples to which the provision applies.

Motion made by Commissioner Mazzone to adopt the proposed commentary amendment. Commissioners Carnes, Mazzone, and Wilkins voted in favor of the proposal, with Commissioners Gelacak and Nagel voting against. Failed, 3-2.

11. 4B1.1 Career Offender

This amendment adds additional background commentary explaining the Commission's rationale and authority for the career offender guideline.

Motion made by Commissioner Carnes to adopt the proposed commentary amendment. Commissioners Carnes, Mazzone, and Wilkins voted in favor of the proposal, with Commissioner Gelacak voting against. Commissioner Nagel abstained. Failed, 3-1-1.

12. 5E1.1 Restitution

This amendment deletes a portion of a Background Commentary paragraph pertaining to a statute that has been repealed.

Table for discussion at the August 30 Commission meeting.

13. 7B1.1 Classification of Violations (Policy Statement)

This amendment provides that a false statement made to a probation officer during supervision is to be treated as a Class C violation (absent a felony conviction for such false statement).

Failed for lack of a motion.

14. 3C1.1 Obstructing or Impeding the Administration of Justice

This amendment makes the listing of offense guidelines to which this section applies more comprehensive and corrects an inadvertent omission of a reference to "sentencing" in the commentary of this section.

Motion made by Commissioner Mazzone to adopt the proposed commentary amendment. Commissioners Carnes, Mazzone, Nagel, and Wilkins voted in favor of the proposal, with Commissioner Gelacak voting against. Failed, 4-1.

15. Recommended Amendments to Appendix A (Statutory Index)

Table for discussion at the August 30 Commission meeting.

Commissioners requested that Amendments 8, 9, 10, and 11 also be reconsidered at the August 30 Commission meeting.

The Department of Justice will submit its proposed requests in amendment form.

Susan Katzenelson briefed the Commission on the Request for Proposal on Selective Incapacitation. She stated that the Commission hopes to award the contract by September 18, 1993. General consensus was to move forward with this request.

Deputy Staff Director Martin announced that there would be a Sentencing Institute for the Fourth and Sixth Circuits on September 8-10, 1993, and one for the Tenth Circuit and those judges who were not able to attend previous institutes on August 15-18, 1993.

Chairman Wilkins adjourned the meeting into executive session at 1:57 p.m.


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