Minutes from October 12, 1993

Minutes of the October 12, 1993,
United States Sentencing Commission
Business Meeting

The meeting was called to order at 10:04 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
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
Peter Hoffman, Principal Technical Advisor
Jeanneine Gabriel, Training and Technical Specialist
Jim Beck, Representative, Bureau of Prisons
Fred Bennett, Representative, Practitioners' Advisory Group
Tom Hutchinson, Representative, Federal Defenders
Vicki Portney, Representative, Criminal Division, DOJ
Julie Stewart, Representative, Families Against Mandatory Minimums

Chairman Wilkins introduced AUSA Victoria Majors and Probation Officer David Keeler (E.D. Mich.), both on temporary assignment to the Commission.

Motion made by Commissioner Nagel to adopt the minutes of the September 21, 1993, meeting. Passed unanimously.

In response to past criticism concerning the number of proposals published for public comment, Commissioner Carnes moved to adopt a requirement of three affirmative votes for publication of any proposal. Commissioner Gelacak, stating that although he did not intend to oppose publication of any amendment, believed that at least four votes were needed to adopt a rule. According to Chairman Wilkins and General Counsel Steer, the statute requires at least four votes for promulgation of amendments but that all other Commission business is conducted pursuant to a majority vote.

Commissioner Mazzone seconded Commissioner Carnes' motion to require three affirmative votes for publication of any proposal in the Federal Register. Commissioners Carnes, Mazzone, and Wilkins voted in favor of the requirement, with Commissioners Gelacak and Nagel voting against. Passed, 3-2.

Proposed Amendments for Public Comment

Public Corruption

Computer Fraud

Given the intensive examination of public corruption and computer fraud, Chairman Wilkins recommended that all proposed amendments from these working groups be published. Motion made by Commissioner Carnes to publish for public comment all proposed amendments from the Public Corruption and Computer Fraud Working Group reports. Passed unanimously.

Group One - Major Substantive Amendments

#1: Guideline Simplification - Reducing the Number of Offense Levels

Publication failed for lack of a motion.

#2: 2B1.1 Larceny, Embezzlement, and Other Forms of Theft; Receiving, Transporting, Transferring, Transmitting, or Possessing Stolen Property; 2F1.1 Fraud and Deceit

This proposed amendment has a number of options. The common element is that each option would either revise or eliminate the specific offense characteristic of "more than minimal planning" in the fraud and theft guidelines and the specific offense characteristic "sophisticated means were used to impede discovery of the nature or the extent of the offense" in the tax guidelines.

Motion made by Commissioner Carnes to publish Option B for comment. Commissioners Carnes, Gelacak, and Wilkins voted in favor of the proposal, with Commissioners Mazzone and Nagel voting against. Passed, 3-2.

#3 2S1.1 Laundering of Monetary Instruments; 2S1.2 Engaging in Monetary Transactions in Property Derived from Specified Unlawful Activity

Relates the offense levels for money laundering and other financial transaction offenses more closely to the offense levels for the underlying offense from which the funds were derived. Provides for an enhancement if the offense was designed to conceal or disguise the proceeds of criminal activity. An additional enhancement would be made if the offense involved sophisticated money laundering.

Motion made by Commissioner Mazzone to publish. Passed unanimously.

#4: 3B1.1 Aggravating Role; 3B1.4 Untitled

Consolidates 3B1.4 with the introductory commentary to Chapter Three, Part B. Reformulates 3B1.1 to simplify its operation.

Motion made by Commissioner Carnes to publish for comment. Commissioners Carnes and Wilkins voted in favor of the proposal, with Commissioners Gelacak, Mazzone, and Nagel voting against. Failed, 2-3.

#5: 3B1.2 Mitigating Role

Revises commentary to provide a clearer definition of the defendant who merits a mitigating role reduction and provide greater consistency in application.

Motion made by Commissioner Carnes to publish for comment. Commissioners Carnes and Wilkins voted in favor of the proposal, with Commissioners Gelacak, Mazzone, and Nagel voting against. Failed, 2-3.

#6: 4A1.1 Criminal History; 4A1.2 Definitions and Instructions for Computing Criminal History

This amendment invites comment on how the criminal history guidelines might be revised and simplified to make them more effective, clear, and workable.

Publication failed for lack of a motion.

#7: 4B1.1 Career Offender; 4B1.2 Definitions of Terms Used in 4B1.1

Amendment 7(A) narrows the career offender provision by defining "offense statutory maximum" as referring to the maximum term of imprisonment authorized for the qualifying offense of conviction before the maximum term has been increased by any statutory

sentencing enhancements.

Amendment 7(B) narrows the career offender provision by requiring that for a prior conviction to count under this provision, such prior conviction must have resulted in criminal history points.

Amendment 7(C) narrows the career offender provision by providing that offenses that result in two qualifying prior convictions be separated by an intervening arrest for one of the offenses.

Motion made by Commissioners Carnes and Mazzone to publish for comment. Motion made by Commissioner Nagel to amend 7(C) to provide another option stating that for purposes of career offender, each instance of prior violence or weapon use in a drug offense is to be counted as one offense regardless of consolidation. Commissioner Carnes modified her original motion to include only amendments 7(A) and 7(C) with Commissioner Nagel's amendment. Passed unanimously.

#8: 4B1.2 Definitions of Terms Used in Section 4B1.1

Amends the commentary by narrowing the definition of the term "crime of violence" to conform to that in 18 U.S.C. 924(e).

Motion made by Commissioner Carnes to publish for comment. Passed unanimously.

#9: 5C1.1 Imposition of Term of Imprisonment

This amendment would recognize community service as an alternative to imprisonment in 5C1.1(c) and (d), to be used in conjunction with or as an alternative to home detention or community confinement.

Motion made by Commissioner Mazzone to publish for comment. Commissioner Mazzone voted in favor of the proposal, with Commissioners Carnes, Gelacak, Nagel, and Wilkins voting against. Failed, 1-4.

 

Group II - Miscellaneous Substantive, Clarifying, and Conforming Amendments

#10: Guideline Simplification - Consolidation of Offense Guidelines

Motion made by Commissioner Mazzone to publish for comment. Commissioners Carnes, Gelacak, Mazzone, and Wilkins voted in favor of the proposal, with Commissioner Nagel voting against. Passed, 4-1.

#11: 1B1.1 Application Instructions

This amendment clarifies the meaning of the term "defendant," and transfers the definitions of "reckless" and "criminally negligent" to 1B1.1.

Publication failed for lack of a motion.

#12: 1B1.3 Relevant Conduct (Factors that determine the Guideline Range)

Amendment 12(A) clarifies that a defendant's relevant conduct under subsection (a)(1)(B) does not include the conduct of members of a conspiracy prior to the defendant joining the conspiracy.

Amendment 12(B) adds a well-phrased formulation for analyzing the same course of conduct developed by the Ninth Circuit in United States v. Hahn, 960 F.2d 903 (9th Cir. 1992) that provides a useful supplement to the current commentary addressing this concept.

Motion made by Commissioner Mazzone to publish for comment. Passed unanimously.

#13: 1B1.10 Retroactivity of Amended Guideline Range (Policy Statement)

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

Publication failed for lack of a motion.

#14: 2B3.1 Robbery

This amendment makes explicit that the term "property of a post office" includes undelivered U.S. mail.

Publication failed for lack of a motion.

#15: 2B4.1 Bribery in Procurement of Bank Loan and Other Commercial Bribery; 2C1.6 Loan or Gratuity to Bank Examiner, or Gratuity for Adjustment of Farm Indebtedness, or Procuring Bank Loan, or Discount of Commercial Paper; 2C1.7 Fraud Involving Deprivation of the Intangible Right to the Honest Services of Public Officials; Conspiracy to Defraud by Interference with Governmental Functions; 2E5.1 Offering, Accepting, or Soliciting a Bribe or Gratuity Affecting the Operation of an Employee Welfare or Pension Benefit Plan; Prohibited Payments or Lending of Money by Employer or Agent to Employees, Representatives, or Labor Organizations; 2R1.1 Bid-Rigging, Price-Fixing or Market-Allocation Agreements Among Competitors

This amendment conforms several provisions of Chapter Two to Chapter Eight.

Motion made by Commissioner Nagel to publish for comment. Passed unanimously.

#16: 2B5.1 Offenses Involving Counterfeit Bearer Obligations of the United States

This amendment clarifies the operation of this guideline.

Motion made by Commissioner Carnes to publish for comment. Commissioners Carnes, Mazzone, and Wilkins voted in favor of the proposal, with Commissioners Gelacak and Nagel voting against. Passed, 3-2.

#17: 2D1.6 Use of Communication Facility in Committing Drug Offense; 2E1.1 Unlawful Conduct Relating to Racketeer Influenced and Corrupt Organizations; 2E1.2 Interstate or Foreign Travel or Transportation in Aid of a Racketeering Enterprise; 2E1.3 Violent Crimes in Aid of Racketeering Activity; 2E1.4 Use of Interstate Commerce Facilities in the Commission of Murder-For-Hire

This amendment clarifies the operation of these guidelines with respect to 1B1.2. This amendment also deletes an unnecessary redundant application note from 2E1.1, 2, and 3.

Motion made by Commissioner Mazzone to publish for comment. Passed unanimously.

#18: 2F1.1 Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other Than Counterfeit Bearer Obligations of the United States

This amendment clarifies the intended operation of application note 13.

Motion made by Commissioner Carnes to publish for comment. Passed unanimously.

#19: 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 publish for comment. Commissioners Carnes, Nagel, and Wilkins voted in favor of the proposal, with Commissioners Gelacak and Mazzone voting against. Passed, 3-2.

#20: 2J1.6 Failure to Appear by Defendant

This amendment replaces the phrase "while away from the facility" with the clearer and more appropriate phrase "while on release or in failure to surrender status" compatible with the definition of that phrase in 2P1.1.

Publication failed for lack of a motion.

#21: 2K1.3 Unlawful Receipt, Possession, or Transportation of Explosive Materials; Prohibited Transactions Involving Explosive Materials; 2K2.1 Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition; 4B1.1 Career Offender; 4B1.2 Definitions of Terms Used in Section 4B1.1; 7B1.1 Classification of Violations (Policy Statements)

This amendment clarifies the operation of the guidelines by substituting the term "controlled substance trafficking offense" for "controlled substance offense."

Publication failed for lack of a motion.

#22: 2K2.1 Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition

This amendment clarifies the application of this section and addresses a circuit conflict concerning cross-referencing a specific offense characteristic for weapon use.

Motion made by Commissioner Mazzone to publish for comment. Commissioners Carnes, Mazzone, and Wilkins voted in favor of the proposal, with Commissioners Gelacak and Nagel voting against. Passed, 3-2.

#23: 2L2.1 Trafficking in a Document Relating to Naturalization, Citizenship, or Legal resident Status, or a United States Passport; False Statement in Respect to the Citizenship or Immigration Status or Another; Fraudulent Marriage to Assist Alien to Evade Immigration Law

This amendment corrects a technical error.

Motion made by Commissioner Mazzone to publish for comment. Passed unanimously.

#24: 2P1.1 Escape, Instigating or Assisting Escape

This amendment expressly provides that (1) a failure to return from a furlough from secure custody is excluded from subsection (b)(3); and (2) an institution with no security perimeter (a minimum security camp) is included under subsection (b)(3). In addition, it makes an editorial improvement to the commentary.

Publication failed for lack of a motion.

#25: 3C1.2 Reckless Endangerment During Flight

This amendment moves material from the commentary to the guideline and provides an example of the interaction of this section with 3A1.2(b).

Publication failed for lack of a motion.

 

#26: 3D1.1 Procedure for Determining Offense Level on Multiple Counts; 3D1.2 Groups of Closely-Related Counts; 5G1.2 Sentencing on Multiple Counts of Conviction

This amendment clarifies the operation of the guideline by adding material currently contained in Most Frequently Asked Question 116.

Motion made by Commissioner Nagel to publish for comment. Commissioners Mazzone, Nagel, and Wilkins voted in favor of the proposal, with Commissioners Carnes and Gelacak voting against. Passed, 3-2.

#27: 3D1.2 Groups of Closely-Related Counts

This amendment adds additional guideline sections to the list of guidelines expressly covered by 3D1.2(d).

Motion made by Commissioner Carnes to publish for comment. Commissioners Carnes, Gelacak, Mazzone, and Wilkins voted in favor of the proposal. Commissioner Nagel was not present. Passed.

#28: 4A1.2 Definitions and Instructions for Computing Criminal History

This amendment makes a minor change in phraseology to clarify that Application Note 7 explains 4A1.2(d) and does not impose an additional limitation on the counting of sentences committed prior to age eighteen.

Motion made by Commissioner Carnes to publish for comment. Commissioners Carnes, Mazzone, and Wilkins voted in favor of the proposal, with Commissioners Gelacak and Nagel voting against. Passed, 3-2.

#29: 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 publish for comment. Commissioners Carnes, Mazzone, Nagel, and Wilkins voted in favor of the amendment, with Commissioner Gelacak voting against. Passed, 4-1.

 

#30: 4B1.2 Definitions of Terms Used in Section 4B1.1

This amendment clarifies the operation of this section and addresses an inter-circuit conflict concerning crime of violence as it relates to burglary.

Motion made by Commissioner Carnes to publish for comment with additional language stating that burglary of a dwelling includes adjacent outbuildings within the premises/curtilage. Commissioners Carnes, Mazzone, Nagel, and Wilkins voted in favor of the proposal, with Commissioner Gelacak voting against. Passed, 4-1.

#31: Chapter Five, Part A (Sentencing Table)

This amendment converts material describing the Sentencing Table from Commentary to guideline.

Publication failed for lack of a motion.

#32: Chapter Five, Part K, Subpart 2 (Other Grounds for Departure)

This amendment expressly provides that a departure based upon restitution prior to the discovery of an offense may be considered and distinguishes this from the more common case of restitution after the defendant is apprehended but prior to sentencing, which is covered by 3E1.1 (Acceptance of Responsibility).

Motion made by Commissioner Nagel to publish for comment, with an amendment limiting it to non-violent offenses. Amendment limiting it to certain offenses to be brought back at next meeting.

#33: 7B1.1 Classification of Violations (Policy Statements)

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

Motion made by Commissioner Nagel to publish for comment, with an amendment asking that grade violations be offered in the alternative. Commissioners Carnes, Mazzone, Nagel, and Wilkins voted in favor of the proposal, with Commissioner Gelacak voting against. Passed, 4-1.

Commissioner Gelacak stated that when he comments about the amendment process, it is not because he is an obstructionist or trying to create conflict. Rather, it is because history shows that systems fail if they do not serve the people they are intended to serve. That is, he believes that this system [USSC amendment process] does not serve the criminal justice system because the Commission continuously tinkers with its rules and does not address global issues, such as the drug problem experiment, and the failure to do so is not in the best interest of the Commission. He does believe, however, that the guidelines are a great idea and do work well in some cases.

Jean Gabriel, presenting an overview of the Crack Cocaine Working Group report, highlighted two findings: 1) evidence does not support the 100-to-one ratio; and 2) cocaine and crack are far more similar than they are dissimilar. She reported that the major difference between cocaine and crack is the root of administration into the body. She further reported that the effects of smoking crack is no different than snorting cocaine except that the effects from smoking crack come quicker and last for a shorter period of time. In terms of ancillary violence and crack cocaine, a correlation between the two, or any other drug, is difficult to determine because of the involvement of other factors, social and economic. She also reported that the group was unable to identified any potency ratio. Finally, a Bureau of Justice Statistics study concluded that absent the crack guideline and the crack mandatory minimum, there was no racial disparity.

Commissioner Nagel requested that the Commission authorize a short-term, on site federal and/or state study to collect data to help determine such information as the nature of the offense, the amount of violence involved, and whether the drug was crack or cocaine.

Staff Director Newton announced that on the morning of November 9, 1993, the Commission would hold a public hearing on the issue of crack cocaine. She reported that there would be four or five panels comprised of law enforcement personnel, researchers to show the relationship between crack and violence, pharmacological experts, and professionals addressing the relationship between crack and various social institutions. A Commission meeting will be held in the afternoon.

Chairman Wilkins adjourned the meeting at 12:37 p.m.


United States Sentencing Commission: