Minutes from November 9, 1993

Minutes of the November 9, 1993,
United States Sentencing Commission
Business Meeting

The meeting was called to order at 9:44 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
Phyllis J. Newton, Staff Director
Paul K. Martin, Deputy Staff Director
John R. Steer, General Counsel
Peter Hoffman, Principal Technical Advisor
Dr. Jan Chaiken, Abt Associates, Inc.
Alan Chaset, Representative, Practitioners' Advisory Group
Dr. Douglas C. McDonald, Abt Associates, Inc.

Chairman Wilkins introduced Federal Defender Deborah Williams (Arizona) and Probation Officer Linda Joseph (M.D. TN), both on temporary assignment to the Commission.

Motion made by Commissioner Carnes to adopt the minutes of the October 12, 1993, meeting. Passed unanimously.

General Counsel Steer briefed the Commission on pertinent amendments adopted by the Senate in its consideration of the crime bill. These included proposals such as mandatory life imprisonment for a third violent/drug felony, and a directive to the Commission to provide an enhancement for hate crimes.

Dr. Jan Chaiken and Dr. Douglas McDonald discussed the Bureau of Justice Statistics' 1993 study that (i) sought to account for racial/ethnic differences in sentences under guidelines, (ii) estimated separately the effects of guidelines and mandatory minimum provisions, and (iii) simulated effects on racial/ethnic sentencing differences of alternative sentencing policies for drug offenses between 1986-1988 (pre-guidelines) and 1989-June 1990 (guidelines). The study found, among other things, that generally there is no evidence of racial discrimination under the guidelines, nor that the guidelines have a built-in discriminatory effect. However, the study did find that the establishment of mandatory minimum sentencing laws resulted in substantial differences in sentences imposed on white and blacks under the guidelines for drug offenses, especially cocaine base (crack) offenses due to the differential involvement by race in cocaine versus crack cocaine offenses.

A vote for publication should not be interpreted to mean support for the substantive change proposed in the amendment.

Proposed Amendments

Proposals deferred from last meeting

1. Chapter Five, Part K, Subpart 2

This amendment would expressly provide that a downward departure may be warranted for cases in which the defendant made complete, or substantially complete, restitution prior to the discovery of the offense or the defendant's participation in the offense. Option One would make this provision available to all offenses. Option Two would exclude crimes of violence. Option Three would limit application to offenses covered by U.S.S.G. 2B1.1 and 2F1.1.

Chairman Wilkins proposed publication of Option Two. Passed unanimously.

United States Postal Service

1. 2B1.1 Larceny, Embezzlement, and Other Forms of Theft; Receiving, Transporting, Transferring, Transmitting, or Possessing Stolen Property)

This amendment would provide for a minimum offense level of 14 if the offense involved an organized scheme to steal mail.

2. 3A1.4 Multiple Victims

This amendment creates a new victim-related general adjustment to take into account the increased harm caused when there is more than one victim.

Commissioner Nagel requested that language permitting enhanced penalties when the offense involves more than one victim be drafted in lieu of the victims' table. The Commission unanimously agreed to publish both U.S. Postal Services proposals.

International Association of Residential & Community Alternatives

1. 5B1.1 Imposition of a Term of Probation

This amendment would require the court, where the guidelines make a defendant eligible for a sentence of probation without a confinement condition, to sentence that defendant to probation without a confinement condition unless the court finds that imprisonment is necessary to serve the purposes of sentencing.

Publication failed for lack of a motion.

2. Issue for comment concerning whether the Commission should increase the availability of the type of sentences provided for in Zones A and B of Chapter Five, Part A to more offense levels within all criminal history categories.

Publication failed for lack of a motion.

3. Issue for comment concerning whether the Commission should promulgate an amendment that would allow a court to impose a sentence other than imprisonment in the case of a first offender convicted of a non-violent or otherwise non-serious offense.

Publication failed for lack of a motion.

Probation Officers' Advisory Group

1. 5G1.3 Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment

This amendment would delete the current language in 5G1.3(c) and Application Note #3 and insert instead language that would permit a concurrent sentence to be imposed to the prior undischarged term of imprisonment.

The Commission unanimously approved publication.

Federal Public Defender

1. Chapter One, Part A (4)(b)

This amendment would delete language interpreted as overly restrictive of a court's ability to depart.

Publication failed for lack of a motion.

2. 1B1.3 Relevant Conduct

This amendment would provide that relevant conduct does not include conduct that is part of an offense of which the defendant has been acquitted.

Publication failed for lack of a motion. Commissioner Nagel asked that this amendment be deferred until the Federal Defenders submit a revised amendment to limit the use of acquitted conduct.

3. 1B1.10 Retroactivity of Amended Guideline Range

This amendment would provide for retroactive application of amendment 439 (concerning scope of a conspiracy defendant's agreement) and amendment 459 (providing a three-level acceptance of responsibility reduction).

Publication failed for lack of a motion.

4. 2D1.1 Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy

Proposal (A) would amend 2D1.1 to revise the method for determining quantity in cases involving a series of drug transactions, providing for a more accurate reflection of the extent of a defendant's culpability.

Proposal (B) would seek to redress the overpunishment of low-level participants in drug trafficking cases.

Proposal (C) provides, in terms of drug quantities under negotiation, intent and capability language.

Motion made by Commissioner Carnes to publish proposal (C). Passed unanimously.

5. 2K1.3 Explosive Materials; 2K2.1 Unlawful Possession of Firearms

This amendment revises Application Note 2 of 2K1.3 and Application Note 5 of 2K2.1, clarifying the method for determining prior felony convictions.

Chairman Wilkins moved publication. Commissioners Gelacak and Wilkins voted in favor, with Commissioners Carnes, Mazzone, and Nagel voting against. Failed, 2-3.

6. 2L1.2 Unlawfully Entering the United States

This amendment revises the enhancements for defendants who were deported after a previous conviction.

Publication failed for lack of a motion.

7. 2P1.1 Escape, Instigating or Assisting Escape

This amendment revises 2P1.1 to reflect the difference in risk of an offender who escapes from a secure facility compared to escape from nonsecure custody.

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

8. 3B1.2 Mitigating Role

This amendment revises 3B1.2, further clarifying that the determination of a defendant's role is to be made on the basis of all conduct within the scope of 1B1.3.

Motion made by Commissioner Mazzone to publish. Deferred until the next meeting.

9. 4A1.1 Criminal History Category

This amendment would revise criminal history to distinguish between sentences imposed before the commission of the offense and those imposed after the commission of the offense.

Publication failed for lack of a motion.

10. 4A1.2 Definitions and Instructions for Computing Criminal History

This amendment would revise criminal history to treat convictions that have been vacated, annulled, set aside, expunged or pardon and diversionary dispositions in a consistent manner.

Publication failed for lack of a motion.

11. Career Offender

Proposal (A) would interpret language in 28 U.S.C. 994(h) the same as the Supreme Court's interpretation of 18 U.S.C. 5037(c)(1)(B).

Proposal (B) would require that for a prior conviction to qualify as a predicate offense, the defendant must have actually served a felony sentence of more than 12 months in prison.

Publication failed for lack of a motion.

12. 5B1.1 Imposition of a Term of Probation

This amendment would revise 5B1.1 to require the sentencing court, if a defendant is eligible for straight probation, to impose a nonincarcerative sentence unless the court finds that imprisonment is necessary to serve the purposes of sentencing.

Publication failed for lack of a motion.

13. 5C1.1 Imposition of a Term of Imprisonment

This amendment would revise 5C1.1 to include community confinement among the substitutes for confinement.

Publication failed for lack of a motion.

14. Chapter Five, Part H - Specific Offender Characteristics

This amendment would provide language stating that Chapter Five does not prohibit departures if the circumstances are unusual or extraordinary.

Motion made by Commissioner Mazzone to publish. Commissioner Nagel suggested that it be deferred in conjunction with the Judicial Conference proposal and DOJ proposal (#1) until the next meeting at which time she and Commissioner Gelacak would provide a preliminary report relevant to this point from their departure study.

15. 5K1.1 Substantial Assistance to Authorities (Policy Statement)

This amendment would eliminate the 5K1.1 government motion requirement.

Publication failed for lack of a motion.

16. 5K2.13 Diminished Capacity (Policy Statement)

This amendment would delete the nonviolent requirement of 5K2.13.

Publication failed for lack of a motion.

Department of Justice

1. Departures

This proposal requests that the Guidelines Manual provide further explanation of the role of departures and guidance for the courts in making departure decisions.

Deferred with the Federal Public Defenders' proposal (#14) and the Judicial Conference proposal until the next meeting.

2. Firearms

This proposal encourages the Commission to strengthen the firearms guidelines in respect to possession of firearms in a school zone and sales to felons and underage persons. The proposal also requests that the firearms guidelines address violent, gang-related crime.

3. Organized Crime

This proposal recommends that the Commission provide a Chapter Three adjustment for organized crime groups who make membership contingent on an agreement to commit violent crime.

4. Public Corruption

This proposal would increase the base offense level for the bribery guideline from level 10 to level 14, create a two-tier enhancement for involvement of high-level officials, and provide for departure when the effect of the bribe is prolonged.

5. Election Fraud

This proposal would revise 2H2.1, clarifying that the base offense level 12 applies to all cases in which the defendant corrupts the registration or votes of others, while the base offense level 6 applies to cases in which the defendant corrupts only the defendant's

own registration or ballot.

Motion made by Commissioner Nagel to publish DOJ amendments #2-#5. Commissioner Carnes requested that the staff proposals and the Department's recommendations for public corruption be combined. Passed unanimously.

6. Criminal History

This proposal would request the Commission to examine issues related to the manner in which the guidelines score criminal history.

Motion made by Commissioner Nagel to publish, with an additional issue concerning an examination of the nature of the offense, particularly past violent offenses, as it relates to criminal history. Commissioners Gelacak, Mazzone, Nagel, and Wilkins voted in favor, with Commission Carnes voting against. Passed, 4-1.

Commissioner Nagel stated that the Environmental Crimes Advisory Group will submit to the Commission its proposals.

The American Civil Liberties Union

1. Crack and Powder Cocaine

The American Civil Liberties Union submitted a paper to the Commission commenting on the disparity in penalties between cocaine base (crack cocaine) and cocaine hydrochloride (powder cocaine). This organization believes that this sentencing disparity is irrational and unwarranted, and strongly urges the Commission to request that Congress eliminate the provisions that distinguish between the punishment for powder and crack cocaine at the quantity ratio of 100-to-one. The Commission is preparing a report to Congress on this issue.

Judicial Conference Committee on Criminal Law

1. Departure Factors

This amendment would permit departure when characteristics and circumstances are present to an unusual degree and are combined in ways that are important to sentencing purposes in the particular case.

Deferred with Federal Public Defenders' proposal (#14) and DOJ proposal (#1) until the next meeting.

Families Against Mandatory Minimums

1. Mandatory Minimums

Families Against Mandatory Minimums submitted a general statement suggesting that the Commission promulgate guidelines independent of mandatory minimum sentences, especially where the mandatory minimum statutes are ambiguous or contradict scientific findings. No Commission action taken.

2. Marijuana Plants

This proposal suggests that the Commission consider applying the 100-grams-per-plant equivalency across all numbers of plants, or use valid and reliable studies of typical plant weight instead of the statute-based system.

Motion made by Commissioner Carnes to publish. Passed unanimously.

General Counsel Steer will put proposal in publication form.

3. Cocaine-to-Cocaine Base Ratio

This proposal suggests that the Commission base any differential treatment of crack cocaine and powder cocaine on scientifically justifiable grounds and promulgate guidelines based on this evidence rather than the mandatory minimum statutes.

Motion made by Commissioner Mazzone to publish. Passed unanimously.

General Counsel Steer will put proposal in publication form.

4. Simple Possession of Cocaine Base

This amendment would eliminate the cross reference to 2D1.1 for simple possession of cocaine base.

Publication failed for lack of a motion.

American Bar Association

1. 5K1.1 Substantial Assistance

This amendment would eliminate the requirement that the reduction under 5K1.1 be triggered by a government motion.

Publication failed for lack of a motion.

2. Issue for comment concerning whether the Commission should promulgate an amendment that would allow a court to impose a sentence other than imprisonment in the case of a first offender convicted of a non-violent or otherwise non-serious offense.

Publication failed for lack of a motion.

3. Issue for comment concerning whether the Commission should increase the availability of the type of sentences provided for in Zones B and C to more offense levels within all criminal history categories

Publication failed for lack of a motion.

4. Issue for comment concerning whether the Commission should amend 1B1.3 so as to restrict the court's consideration of conduct that is relevant to determining the applicable guideline range to (a) conduct that is admitted by the defendant in connection with a plea of guilty or nolo contendere and/or (b) conduct that constitutes the elements of the offense of which the defendant was convicted.

Publication failed for lack of a motion.

5. Issue for comment concerning whether the money laundering guidelines should be amended, as suggested by last year's working group.

Motion made by Commissioner Mazzone to publish. Passed unanimously.

Practitioners' Advisory Group

1. 2D1.1 Unlawful Manufacturing, Importing, Exporting, or Trafficking (including Possession with Intent to Commit These Offenses); Attempt or Conspiracy; 3B1.2 Mitigating Role

This amendment reduces the maximum offense level for drug quantity from level 42 to level 38, provides an additional enhancement for weapon usage, places a cap on the offense level for defendants with mitigating roles, reduces the offense levels associated with higher drug quantities, and provides additional guidance for the determination of mitigating role.

Deferred to be included with staff proposals until the next meeting. Commissioner Nagel requested that the staff proposals include an additional general solicitation as to whether the drug guidelines should be revised to allow for greater flexibility in ranges for quantity and greater enhancements for weapons and ancillary violence.

2. 3B1.1 Aggravating Role

This amendment makes a number of changes in the Introductory Commentary to 3B1.1, to 3B1.1 itself, and to the application notes to 3B.

Publication failed for lack of a motion.

3. 1B1.3 Relevant Conduct

This amendment addresses the consideration for conduct of which the defendant has been acquitted after trial under 1B1.3.

Deferred until the next meeting.

4. 2B1.1 Larceny, Embezzlement and Other Forms of Theft; 2F1.1 Fraud and Deceit

This is an issue for comment on whether the commentary to 2B1.1 should be conformed to 2F1.1.

Motion made by Commissioner Carnes to publish. Passed unanimously.

5. Issue for comment on whether loss in Chapter Two, Parts B and F should be rewritten to make clear that interest should not be counted under any circumstances.

Chairman Wilkins moved publication. Passed unanimously.

6. Issue for comment on whether 2B1.1 and 2F1.1 should contain specific offense characteristics adjusting a defendant's offense level downward because defendant did not personally profit from the theft.

Publication failed for lack of a motion.

7. Issue for comment on whether pursuant to 28 U.S.C. 994 the Commission should ask Congress to modify or eliminate the provisions that distinguish between the punishment for powdered cocaine and cocaine base (crack) at the quantity ratio of 100-to-1.

Publication failed for lack of a motion.

8. 4A1.1 Criminal History Category; 4A1.2 Definitions and Instructions for Computing Criminal History

Criminal History Simplification, Recurring Issue of Related Cases, Other Definitional Problems.

Publication failed for lack of a motion.

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

This amendment clarifies the operation of 1B1.10 as well as deletes subsection (c).

Motion made by Commissioner Carnes to publish 9(a). Passed unanimously.

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

This amendment would provide for retroactive application of amendment 439 (concerning scope of a conspiracy defendant's agreement) and amendment 459 (providing a three-level acceptance of responsibility reduction).

Publication failed for lack of a motion.

10. 2P1.1 Escape, Instigating or Assisting

This amendment clarifies 2P1.1 and expressly provides (1) that failure to return from a furlough from secure custody is excluded from subsection (b)(3), and (2) that an institution with no security perimeter (a minimum security camp) is included under subsection (b)(3).

Chairman Wilkins moved publication in combination with the earlier proposal of the Federal Public Defenders. Passed unanimously.

11. Chapter One, Part A

This amendment deletes language that could be misinterpreted to be more restrictive of departures than the Commission intended.

Publication failed for lack of a motion.

12. 1B1.8 Use of Certain Information

This amendment will resolve the disparity in treatment of information with defendants who cooperate.

Publication failed for lack of a motion.

13. 6B1.4 Stipulations (Policy Statement)

Amends 6B1.4 to provide that a plea agreement should be accompanied by a written stipulation of facts relevant to sentencing.

Publication failed for lack of a motion.

14. 5K2.13 Diminished Capacity (Policy Statement)

This amendment clarifies the intent of this policy statement.

Motion made by Commissioner Carnes to publish. Passed unanimously.

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

This amendment restructures 2D1.1 so that the scale of the offense is based on the largest amount of controlled substances with which the defendant was associated at any one time (Option One), or in a thirty-day period (Option Two), except in extremely large scale cases.

Publication failed for lack of a motion.

16. 2D1.1 Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy

This amendment revises 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.

The Commission, in effect, has already voted to publish because it is the same as amendment #4(c) of the Federal Public Defenders' proposals.

17. 2X1.1 Attempt, Solicitation, or Conspiracy (Not Covered by a Specific Offense Guideline)

This amendment clarifies the intent of this guideline as well as simplifies the structure.

Motion made by Commissioner Carnes to publish. Passed unanimously.

18. 5C1.1 Imposition of a Term of Imprisonment

This amendment authorizes community service as an alternative to up to 60 days of imprisonment at a rate of eight hours of community service for one day of imprisonment.

Publication failed for lack of a motion.

19. 5K1.1 Substantial Assistance

This amendment would eliminate the requirement that the reduction under 5K1.1 be triggered by a government motion.

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

20. Issue for comment on whether 1B1.10 should be modified so that the Sentencing Table in effect at the time of sentencing should apply regardless of which Chapter One, Two, Three, and Four guidelines apply.

Publication failed for lack of a motion.

21. Issue for comment on whether the Commission should re-examine and modify the Drug Quantity Table's reliance on drug quantity as the primary indicant of offense seriousness, and consider establishing offense levels for drug offenses independent of quantities that trigger mandatory minimum sentencing statutes, and re-examine and modify punishment levels for quantities above those that trigger the applicability of such statutes.

Publication failed for lack of a motion.

Honorable John S. Martin, U.S. District Judge

1. 3E1.2 Assisting in the Fair and Expeditious Administration of Justice

This amendment would provide a one-level reduction for not protracting the trial.

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

Bill Cazalas, Supervising U.S. Probation Officer

1. 5K2.17 Single Act of Aberrant Behavior

This amendment would provide for a downward departure for a single act of aberrant behavior.

Publication failed for lack of a motion.

Chairman Wilkins announced that the next meeting would be held on November 30, 1993.

Chairman Wilkins announced that the Commission was holding a hearing on Crack Cocaine today at 1:00 p.m.

Chairman Wilkins adjourned the meeting at 11:29 a.m.


United States Sentencing Commission:

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