Minutes from August 30, 1993

Minutes of the August 30, 1993,
United States Sentencing Commission
Business Meeting

The meeting was called to order at 1:06 p.m. by Chairman William W. Wilkins, Jr., in the conference room of the Sentencing Commission. The following Commissioners and staff participated:

William W. Wilkins, Jr., Chairman
Julie E. Carnes, Commissioner
Michael S. Gelacak, Commissioner
A. David Mazzone, Commissioner
Ilene H. Nagel, Commissioner
Gary Katzmann, Ex Officio Commissioner
Edward Reilly, Ex Officio Commissioner
Phyllis J. Newton, Staff Director
Paul K. Martin, Deputy Staff Director
John R. Steer, General Counsel
Jeanneine Gabriel, Training and Technical Assistance Specialist
Peter Hoffman, Principal Technical Advisor
Amy LeCocq, Special Counsel

Chairman Wilkins introduced Rosann Greenspan, the new Judicial Fellow, and Sheila Dearybury and Elizabeth Atwater, both who recently joined the Office of General Counsel. He also introduced Probation Officers Joseph A. McNamara (D. VT.) and Pamela J. Lombardini (D. Mass.), both on temporary assignment to the Commission. Chairman Wilkins welcomed Paul Bergman from the New York Defense Counsel and Julie Stewart of FAMM.

Paul Martin stated that in the July 27, 1993, discussion on the prison resources report, the reference to "tough time" would be deleted. Commissioner Nagel explained that her request was for expanded opportunities for boot camps beyond physical requirements. Motion made by Commissioner Carnes to adopt the minutes of the July 27, 1993, meeting. Passed unanimously.

Commentary Amendments

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 marijuana.

Motion made by Commissioner Mazzone to adopt the proposed commentary amendment. Passed unanimously.

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.

Chairman Wilkins proposed amending the commentary to state that cocaine base means crack, and that crack in rock-like form or cocaine base in powder, granules, or paste that was intended to be smoked is to be treated the same.

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

Motion made by Commissioner Nagel to write a letter to Congress requesting withdrawal of the previously submitted crack/cocaine amendment (#15). The Commission would then study the 100 to 1 crack/cocaine ratio, the impact of differential treatment between crack and cocaine, and generally the question of whether higher sentences result for street dealers than manufacturers when crack cocaine is distributed, prior to its being converted into rock/crack. Commissioner Nagel voted in favor of the proposal, with Commissioners Carnes, Mazzone, and Wilkins voting against. Commissioner Gelacak abstained. Failed, 1-3-1.

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, with Commissioners Gelacak and Nagel voting against. Failed, 3-2.

10. 2K2.4 Use of Firearm, Amor-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, 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 Mazzone to adopt the proposed commentary amendment. Commissioners Carnes, Mazzone, and Wilkins voted in favor, with Commissioner Nagel voting against. Commissioner Gelacak abstained. Failed, 3-1-1. Commissioner Nagel requested that this amendment be considered during the next amendment cycle.

12. 5E1.1 Restitution

This amendment updates the background commentary to reflect a statute (18 U.S.C. 3579) that has been amended and renumbered to 18 U.S.C. 3663.

Motion made by Commissioner Carnes to adopt the proposed revised commentary amendment, including the bracketed language in paragraph two. Commissioners Carnes, Mazzone, Nagel, and Wilkins voted in favor, with Commissioner Gelacak voting against. Passed, 4-1.

15. Recommended Amendments to Appendix A (Statutory Index)

Motion made by Commissioner Carnes to adopt the recommended amendments to the Statutory Index. Commissioners Carnes, Gelacak, Mazzone, and Wilkins voted in favor. Commissioner Nagel abstained because of the importance of the Child Support Recovery Act of 1992. She would like further investigation of child support recovery cases. Passed, 4-0-1.

Motion made by Commissioner Mazzone to adopt DOJ suggested additions to the Statutory Index, with the substantive subsections listed instead of the now listed penalty subsections. Commission staff and DOJ will review all statutory/guideline references for agreement, with any reference not in agreement deferred until the next amendment cycle. Passed unanimously.

Commissioner Nagel requested DOJ to send all cases under the Child Support Recovery Act of 1992 to the Commission.

16. 3B1.1 Aggravating Role

This amendment resolves a split in the circuits concerning the definition of manager for purposes of 3B1.1.

Motion made by Commissioner Nagel to adopt the proposed substitute amendment (option 3), with the deletion in Application Note 2 of the word extensive. Commissioners Carnes, Mazzone, Nagel, and Wilkins voted in favor, with Commissioner Gelacak voting against. Passed, 4-1.

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

Retroactivity Issues

488. 2D1.1 Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses)

This amendment resolves an inter-circuit conflict by defining "cocaine base" to mean "crack."

Retroactivity failed for lack of a motion.

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

This amendment ties the offense level to the underlying behavior.

Retroactivity failed for lack of a motion.

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

This amendment changes the equivalency for certain Schedule III controlled substances.

Retroactivity failed for lack of a motion.

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 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.

Retroactivity failed for lack of a motion.

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 marijuana.

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

Chairman Wilkins announced that there would be a Sentencing Institute for the Fourth and Sixth Circuits on September 8, 9, and 10, 1993, at Durham, North Carolina.

Chairman Wilkins announced that the next Commission meeting would be held on September 21 and October 12, both at 10:00 a.m.

Commissioner Mazzone stated that the Tenth Circuit Sentencing Institute went well.

Chairman Wilkins adjourned the meeting into executive session at 2:32 p.m.


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