Minutes from April 14, 1994

Minutes of the April 14, 1994,
United States Sentencing Commission
Business Meeting

The meeting was called to order at 9:04 a.m. by William W. Wilkins, Jr., in the conference room of the United States 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
Fred Bennett, Representative, Practitioners' Advisory Group
Tom Hutchinson, Representative, Federal Public Defenders
Vicki Portney, Representative, Criminal Division, DOJ

Chairman Wilkins, on behalf of the Commission, expressed appreciation to Federal Public Defender Debrorah Williams for her fine work while on temporary assignment to the Commission. Chairman Wilkins then introduced Margaret Smith, a federal public defender on temporary assignment to the Commission, and Theresa Ann Cortese, who recently joined the Office of General Counsel as a law clerk.

Motion made by Commissioner Nagel to adopt the minutes of the March 25, 1994, meeting. Passed unanimously.

Amendments

Chairman Wilkins stated that it is his belief that his and Commissioner Nagel's positions, as holdover commissioners, are constitutionally constituted and, thus, they will not violate the enabling statutes by participating/voting in this amendment cycle. Because of the possibility of litigation, however, Chairman Wilkins stated that he would not vote in favor of any amendment that in his opinion would provide the foundation for litigation unless overriding concerns existed. Commissioners Nagel and Mazzone concurred with Chairman Wilkins. Commissioner Katzmann stated that the Attorney General, through legal memorandum from the Office of Legal Counsel, supports the contention that holdover commissioners may constitutionally serve. Commissioner Gelacak again expressed opposition to promulgating so many amendments.

1: 2B1.1 Larceny, Embezzlement, and Other Forms of Theft; Receiving, Transporting, Transferring, Transmitting, or Possessing Stolen Property; 2B1.3 Property Damage or Destruction; 2F1.1 Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States

This amendment adds commentary to 2B1.1, 1.3, and 2F1.1 to address harms that may be significant in computer-related cases but not adequately accounted for by the loss table.

Failed for lack of a motion.

2(A). 2C1.3 Conflict of Interest; 2C1.4 Payment of Receipt of Unauthorized Compensation

This amendment consolidates 2C1.3 and 1.4 and replaces the adjustment for actual or planned harm to the government with an upward departure consideration and a cross-reference to the guidelines for offenses involving a bribe or gratuity.

Failed for lack of a motion.

2(B): 2C1.2 Offering, Giving, Soliciting, or Receiving a Gratuity; 2C1.6 Loan or Gratuity to Bank Examiner, or Gratuity for Adjustment of Farm Indebtness, or Procuring Bank Loan, or Discount of Commercial Paper

This amendment consolidates 2C1.2 and 1.6 and inserts an application note to clarify the treatment of a gratuity in the form of a loan.

Failed for lack of a motion.

2(C): Issue for comment regarding whether 2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe; Extortion under Color of Official Right) should be consolidate with 2C1.2 (Offering, Giving, Soliciting, or Receiving a Gratuity)

Failed for lack of a motion.

3: Issue for comment regarding whether the offense levels for public corruption guidelines and other guidelines concerning bribes and gratuities appropriately account for the seriousness of these offenses

Failed for lack of a motion.

4(A): 2C1.1 Offering, Giving, Soliciting, or Receiving a Bribe; Extortion under Color of Official Right; 2C1.2 Offering, Giving, Soliciting, or Receiving a Gratuity

The adjustments in 2C1.1 and 1.2 for more than one bribe, extortion, or gratuity were designed to reflect the increased culpability associated with offenses that involved more than a single incident. Commission data indicate that a majority of cases involve more than one such option. Option One would retain these adjustments but make the commentary and guideline language for 2C1.1 and 1.2 more consistent. Option Two would eliminate these adjustments as substantially duplicative with the adjustments based on value or benefit of the payment.

Failed for lack of a motion.

4(B): Issue for comment regarding whether the discussion of the adjustments for multiple payments in the Commentary to 2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe; Extortion under Color of Official Right) and 1.2 (Offering, Giving, Soliciting, or Receiving a Gratuity) should be amended to facilitate more consistent application of these adjustments

Failed for lack of a motion.

5(A): 2C1.1 Offering, Giving, Soliciting, or Receiving a Bribe; Extortion under Color of Official Right; 2C1.2 Offering, Giving, Soliciting, or Receiving a Gratuity; 2C1.7 Fraud Involving Deprivation of the Intangible Right to Honest Services of Public Officials; Conspiracy to Defraud by Interference with Governmental Functions

This amendment makes the adjustments for value of the payment and high-level official in 2C1.1, 1.2, and 1.7 cumulative, rather than alternative, so as to reflect the harm involved in offenses involving both high values of payment or benefit and high-level officials.

Failed for lack of a motion.

5(B): Issue for comment regarding whether the definition of high-level official in 2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe; Extortion under Color of Official Right), 1.2 (Offering, Giving, Soliciting, or Receiving a Gratuity), and 1.7 (Fraud Involving Deprivation of the Intangible Right to Honest Services of Public Officials; Conspiracy to Defraud by Interference with Governmental Functions) should be modified to facilitate more consistent application of this adjustment

Failed for lack of a motion.

6(A): 2C1.1 Offering, Giving, Soliciting, or Receiving a Bribe; Extortion under Color of Official Right; 2C1.7 Fraud Involving Deprivation of the Intangible Right to Honest Services of Public Officials; Conspiracy to Defraud by Interference with Governmental Functions

This amendment clarifies that the term "payment" in 2C1.1 and 1.7 refers to anything of value and need not be monetary. In addition, this amendment clarifies the definition of the value of "the benefit received or to be received" in respect to cases involving extortion under color of official right. This amendment also clarifies that the term "high-level official" for the purposes of 2C1.7(b)(1) is limited to high-level public officials.

Failed for lack of a motion.

Commissioner Mazzone requested that if the Computer Fraud Working Group reconvenes, they study the issue of freedom of speech versus copyrights in the computer software context.

6(B): Issue for comment regarding whether Application Note Two of 2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe; Extortion under Color of Official Right) defining "benefit received" should be clarified to address varying approaches among the circuits as to the extent to which the defendant is to be held accountable for relevant conduct of others

Failed for lack of a motion.

7: Issue for comment regarding departures based upon collateral consequences

Failed for lack of a motion.

8(A): Chapter Two, Part D (Offenses Involving Drugs) and Chapter Three, Part B (Role in the Offense)

This amendment keys the mandatory minimum levels in the Drug Quantity Table to levels 30 and 24, rather than 32 and 26, and sets the upper limit of this table at level 38.

Deferred until later today.

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

This amendment adds an additional enhancement in 2D1.1 for weapon use/assault.

Deferred until later today.

8(C): Chapter Two, Part D (Offenses Involving Drugs) and Chapter Three, Part B (Role in the Offense)

This amendment revises 2D1.1(a)(3) to provide a ceiling in the Chapter Two offense level for defendants who receive a mitigating role adjustment under 3B1.2.

Deferred until later today.

9: Chapter Two, Part D (Offenses Involving Drugs) and Chapter Three, Part B (Role in the Offense)

This amendment revises 3B1.1 (Aggravating role) by (1) defining "participant" more comprehensively, and (2) providing that subsection (b) applies where the defendant managed or supervised at least four other participants.

Failed for lack of a motion.

10: Chapter Two, Part D (Offenses Involving Drugs) and Chapter Three, Part B (Role in the Offense)

This amendment revises the Introductory Commentary of Chapter Three, Part B, Section 3B1.2 (Mitigating Role), and the commentary to 3B1.2 to provide clearer definitions of defendants who merit a mitigating role reduction.

Deferred until later today.

11: Chapter Two, Part S (Money Laundering and Money Transaction Reporting)

This amendment revises and consolidates 2S1.1 (Laundering of Monetary Instruments) and 2S1.2 (Engaging in Monetary Transactions in Property Derived from Specified Unlawful Activity), relating the offense levels more closely to the offense level for the underlying offense from which the funds were derived.

Motion made by Commissioner Nagel to adopt the substitute amendment. Commissioner Nagel voted in favor, with Commissioners Gelacak and Mazzone voting against, and Commissioners Carnes and Wilkins voting to defer consideration. Failed.

12(A): Chapter One, Part B (General Application Principles) and Chapter Two, Parts A (Offenses Against the Person), B (Offenses Involving Property), and F (Offenses Involving Fraud or Deceit)

This amendment revises the specific offense characteristic "more than minimal planning" to distinguish better those defendants whose culpability warrants an enhancement for this factor.

Failed for lack of a motion.

12(B): Chapter One, Part B (General Application Principles) and Chapter Two, Parts A (Offenses Against the Person), B (Offenses Involving Property), and F (Offenses Involving Fraud or Deceit)

This amendment raises the base offense level in 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Receiving, Transporting, Transferring, Transmitting, or Possessing Stolen Property) from level four to level six (the same as in 2F1.1, Fraud and Deceit), and conforms the loss table in 2B1.1 to that in 2F1.1.

Failed for lack of a motion.

12(C): Issue for comment regarding whether the loss tables in 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Receiving, Transporting, Transferring, Transmitting, or Possessing Stolen Property), 2F1.1 (Fraud and Deceit), and 2T4.1 (Tax Table) should be revised to provide one-level increases with a more uniform slope from small to large offenses

Failed, for lack of a motion.

13(A): 4B1.1 Career Offender

This amendment adds additional background commentary explaining the Commission's rationale and authority for 4B1.1.

Motion made by Commissioner Nagel to adopt. Commissioners Carnes, Nagel, and Wilkins voted in the affirmative, with Commissioners Gelacak and Mazzone voting against. Failed, 3-2.

13(B): 4B1.1 Career Offender

This amendment revises 4B1.1 by defining the term "offense statutory maximum" as the statutory maximum prior to any enhancement based on prior criminal record.

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

13(C): 4B1.2 Definitions of Terms Used in Section 4B1.1

This amendment makes 4B1.1 (Career Offender) more of a true recidivist provision by providing that the offense that resulted in two qualifying prior convictions must be separated by an intervening arrest for one of the offenses. Option Two includes the provisions of Option One but, in addition, broadens the portion of the career offender provision for prior convictions of a crime of violence or possession of a weapon during and in relation to a drug offense.

Motion made by Commissioner Carnes to adopt Option One. Commissioner Carnes voted in the affirmative, with Commissioners Gelacak, Mazzone, Nagel, and Wilkins voting against. Failed, 1-4.

13(D): 4B1.2 Definitions of Terms Used in Section 4B1.1

This amendment clarifies the operation of 4B1.2 and addresses an intercircuit conflict.

Motion made by Commissioner Carnes to adopt. Commissioners Carnes and Wilkins voted in the affirmative, with Commissioners Gelacak, Mazzone, and Nagel voting against. Failed, 2-3.

13(E): 4B1.2 Definitions of Terms Used in Section 4B1.1

This amendment revises 4B1.2 to narrow the portion of the definition of crimes of violence "that otherwise involve conduct that presents a serious risk of physical injury" to offenses that are in some respect similar to the offenses expressly listed.

Motion made by Commissioner Carnes to adopt the substitute amendment, Option One. Commissioners Carnes voted in the affirmative, with Commissioners Gelacak, Mazzone, Nagel, and Wilkins voting against. Failed, 1-4.

14: Chapter Five, Part H (Specific Offense Characteristics); Chapter Five, Part K (Departures)

This amendment addresses the issue of a departure for an offender characteristic or other circumstance, or combination of characteristics or circumstances that are not ordinarily relevant to a determination of whether a sentence should be outside the applicable guideline range.

Motion made by Commissioner Carnes to adopt substitute amendment #14(X). Passed unanimously. Commissioner Katzmann reiterated the Department of Justice's concerns regarding this amendment.

15: Guideline Simplification - Consolidation of Offense Guidelines

Failed for lack of a motion.

16: Issue for comment regarding whether and how the guidelines, policy statements, and pertinent statutory provisions should be amended to provide greater sentencing flexibility, or authority for modification of a previously imposed sentence of imprisonment, in the case of older, infirm defendants who do not pose a risk to public safety

Failed, for lack of a motion.

Commissioner Nagel requested that the Commission establish a task force, comprised of outside experts, including Jonathan Turley and members from the Bureau of Prisons and the Department of Justice, to devise an experimental program. Staff Director Newton will report on the feasibilty of this task force/experimental program at the next Commission meeting.

17(A): 1B1.3 Relevant Conduct (Factors that Determine the Guideline Range)

This amendment clarifies the operation of 1B1.3 in respect to the liability of a defendant for actions of conspirators prior to the defendant joining the conspiracy.

Motion made by Commissioner Carnes to adopt the substitute amendment. Commissioners Carnes, Mazzone, and Wilkins voted in the affirmative, with Commissioners Gelacak and Nagel abstaining. Failed, 3-0-2.

17(B): Miscellaneous Substantive, Clarifying, and Conforming Amendments

This amendment makes conforming changes pertaining to the interaction of Chapter Two (Offense Conduct) and Chapter Eight (Sentencing of Organizations).

Failed for lack of a motion.

17(C): 2B5.1 Offenses Involving Counterfeit Bearer Obligations of the United States

This amendment clarifies the operation of 2B5.1.

Failed for lack of a motion.

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

This amendment adds definitions of hashish and hashish oil to subsection (c) of 2D1.1. In addition, this amendment clarifies the treatment of marihuana that has a moisture content sufficient to render it unusable without drying.

Failed for lack of a motion.

 

17(E): 2D1.2 Drug Offenses Near Protected Locations or Involving Underage or Pregnant Individuals; Attempt or Conspiracy

This amendment revises the Commentary to 2D1.2 to make explicit that 3B1.1 (Aggravating Role) operates independently of 2D1.2.

Failed for lack of a motion.

17(F): Miscellaneous Substantive, Clarifying, and Conforming Amendments

This amendment clarifies the operation of 2D1.6 (Use of Communication Facility in Committing Drug Offense; Attempt or Conspiracy), 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), and 2E1.4 (Use of Interstate Commerce Facilities in the Commission of Murder-For-Hire) in a manner consistent with the operation of 1B1.2 (Applicable Guidelines) governing the selection of the offense guideline section. In addition, this amendment deletes an application note from 2E1.1, 1.2, and 1.3 that is unnecessary and is not included in other sections of the Guidelines Manual.

Motion made by Commissioner Mazzone to adopt. Commissioners Carnes, Mazzone, and Wilkins voted in the affirmative, with Commissioners Gelacak and Nagel abstaining. Failed, 3-0-2.

17(G): 2F1.1 Fraud and Deceit; Forgery; Offense Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States

This amendment revises Application Note 13 in the Commentary to 2F1.1.

Failed for lack of a motion.

17(H): Miscellaneous Substantive, Clarifying, and Conforming Amendments

This amendment clarifies the interaction of subsection (c)(1) of 2J1.2 (Obstruction of Justice) and subsection (c)(1) of 2J1.3 (Perjury or Subornation of Perjury; Bribery of Witness) with 2X1.1 (Attempt, Solicitation, or Conspiracy) and 2X3.1 (Accessory After the Fact) when these guidelines are used as a result of a cross reference.

Failed for lack of a motion.

17(I): 2K2.1 Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition: Prohibited Transactions Involving Firearms or Ammunition

This amendment clarifies the application of subsection (c) of 2K2.1 and addresses an intercircuit conflict.

Failed for lack of a motion.

17(J): 2K2.4 Use of Firearm, Armor-Piercing Ammunition, or Explosive During or in Relation to Certain Crimes

This amendment revises the Commentary to 2K2.4 by expanding the list of examples to which Application Note Two applies to facilitate application of this provision.

Failed for lack of a motion.

17(K): 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 of Another; Fraudulent Marriage to Assist Alien to Evade Immigration Law

This amendment corrects a technical error in 2L2.1.

Failed for lack of a motion.

17(L): Miscellaneous Substantive, Clarifying, and Conforming Amendments

This amendment clarifies the operation of Chapter Three, Part D (Multiple Counts) and 5G1.2 (Sentencing on Multiple Counts of Conviction) in respect to statutes that require consecutive sentences of imprisonment.

Motion made by Commissioner Carnes to adopt. Commissioners Carnes, Mazzone, and Wilkins voted in the affirmative, with Commissioner Gelacak voting against and Commissioner Nagel abstaining. Failed, 3-1-1.

17(M): 3D1.2 Groups of Closely Related Counts

This amendment makes the listing of the offense guidelines in subsection (d) of 3D1.2 more comprehensive.

Motion to adopt was made by Commissioner Carnes and subsequently withdrawn.

17(N): 4A1.2 Definitions and Instructions for Computing Criminal History

This amendment clarifies that Application Note Seven in the Commentary to 4A1.2 explains 4A1.2(d) and does not impose an additional limitation on the counting of sentences committed prior to age eighteen.

Failed for lack of a motion.

17(O): Miscellaneous Substantive, Clarifying, and Conforming Amendments

This amendment adds an additional paragraph to the Commentary to 5G1.1 (Sentencing on a Single Count of Conviction) to clarify that where the guideline sentence is determined by the statutorily authorized maximum sentence under 5G1.1(b), the guideline range from Chapter Five, Part A remains the applicable guideline range for other purposes.

Motion made by Commissioner Carnes to adopt the substitute amendment. Commissioners Carnes, Mazzone, and Wilkins voted in the affirmative. Commissioners Gelacak and Nagel abstained. Failed, 3-0-2.

17(P): 5K2.17 Restitution Prior to Discovery (Policy Statement)

This amendment adds a policy statement to Chapter Five, Part K (Departures) providing expressly that a downward departure may be warranted where the defendant made complete, or substantially complete, restitution prior to the discovery of the offense or the defendant's participation of the offense, except in the case of a crime of violence.

Failed for lack of a motion.

17(Q): 7B1.1 Classification of Violations (Policy Statement)

This amendment provides expressly how 7B1.1 is to be applied in the case of false statements made to probation officers by probationers or supervised releasees.

Failed for lack of a motion.

18: 1B1.3 Relevant Conduct (Factors that Determine the Guideline Range)

This amendment provides that conduct of which the defendant has been acquitted after trial may not be used in determining the guideline range but may, if found by a preponderance of the evidence, provide the basis for an upward departure.

Motion made by Commissioner Nagel to adopt. Commissioners Gelacak, Mazzone, and Nagel voted in the affirmative, with Commissioner Wilkins voting against and Commissioner Carnes abstaining. Failed, 3-1-1.

19: 1B1.10 Retroactivity of Amended Guideline Range (Policy Statement)

This amendment makes a number of minor revisions to clarify the operation of 1B1.10.

Motion made by Commissioner Nagel to adopt the substitute amendment. Passed unanimously. Commissioner Katzmann expressed the Department of Justice's concern about

this proposed amendment.

20(A): 2F1.1 Fraud and Deceit; Forgery; Offense Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States

This amendment revises the Commentary to 2F1.1 to provide greater consistency between the definitions of loss in 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Receiving, Transporting, Transferring, Transmitting, or Possessing Stolen Property) and 2F1.1.

Failed for lack of a motion.

20(B): Issue for comment regarding whether the Commentary to 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Receiving, Transporting, Transferring, Transmitting, or Possessing Stolen Property) should be conformed to the commentary to 2F1.1 (Fraud and Deceit; Forgery; Offense Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States)

Failed for lack of a motion.

20(C): Issue for comment regarding whether the provisions concerning loss in Chapter Two, Parts B (Offenses Involving Property) and F (Offenses Involving Fraud or Deceit) should be revised to make it clear that interest is not to be counted under any circumstances

Failed for lack of a motion.

21: 2X1.1 Attempt, Solicitation, or Conspiracy (Not Covered by a Specific Offense Guideline)

This amendment clarifies the intended coverage of 2X1.1.

Chairman Wilkins moved adoption of the substitute amendment. Commissioners Carnes, Mazzone, and Wilkins voted in the affirmative, with Commissioner Gelacak voting against and Commissioner Nagel abstaining. Failed, 3-1-1.

22: 5K2.13 Diminished Capacity (Policy Statement)

This amendment addresses the meaning of the term "non-violent offense" in 5K2.13.

Failed for lack of a motion.

23: 5G1.3 Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment

This amendment revises 5G1.3 by deleting subsection (c), which currently requires the court to employ a methodology that parallels the multiple count rules of Chapter Three, and substituting a provision that allows the court to impose the sentence either concurrently or consecutively, with an application note suggesting use of the multiple count methodology only if accurate, factual, and reliable information concerning the prior sentence is readily available.

Deferred for summer comentary consideration.

24: 2D1.1 Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy

This amendment revises the Commentary to 2D1.1 to provide that in a case involving negotiation for a quantity of a controlled substance, the negotiated quantity is used to determine the offense level unless the completed transaction establishes a larger quantity, or the defendant establishes that he was not reasonably capable of producing the negotiated amount or otherwise did not intend to produce that amount.

Motion made by Commissioner Carnes to adopt. Commissioners Carnes and Mazzone voted in the affirmative, with Commissioners Gelacak and Wilkins voting against and Commissioner Nagel abstaining. Failed, 2-2-1.

25: 2P1.1 Escape, Instigating or Assisting Arrest

This amendment revises 2P1.1 to conform the definition of non-secure custody in subsection (b)(3) to that used in subsection (b)(2). The difference between Options One and Two is that Option Two would exclude a prisoner who fails to return from a furlough from a secure institution from the operation of subsection (b)(3).

Failed for lack of a motion.

26: 2H2.1 Obstructing an Election or Registration

This amendment provides that the base offense level of 12 in 2H2.1 applies in all cases where the defendant corrupts the registration or votes of others, while the alternative base offense level of six applies where the defendant corrupts only his or her own registration or ballot.

Failed for lack of a motion.

27: 2K2.1 Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition: 2K2.5 Possession of Firearm or Dangerous Weapon in Federal Facility; Possession or Discharge of Firearm in School Zone

This amendment revises 2K2.1 and 2K2.5 to provide a four-level increase if the defendant committed the offense as a member of, on behalf of, or in association with a criminal gang.

Failed for lack of a motion.

28: Issue for comment regarding whether 2K2.5 (Possession of Firearm or Dangerous Weapon in Federal Facility; Possession or Discharge of Firearm in School Zone) should be amended to include enhancements if the firearm was discharged or loaded or if the defendant possessed both a firearm and ammunition in a school zone, and whether enhancements currently found in 2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition) should be included in 2K2.5

Failed for lack of a motion.

29: Issue for comment regarding whether to add an enhancement in Chapter Three (Adjustments) applicable to members of criminal organizations who expressly agree, or require others to agree, to commit a crime of violence as a formal condition of membership in the organization or promise of such act in the future may be required

Failed for lack of a motion.

30: Issue for comment regarding whether 4A1.1 (Criminal History Category) and Chapter Five, Part A (Sentencing Table) should be amended to add additional distinctions

Failed for lack of a motion.

31: Issue for comment regarding whether 1B1.10(b) (Retroactivity of Amended Guideline Range) should be retained as written or modified so that the amended guideline range is determined by using only those amendments that have been expressly designated for retroactive application

This amendment was taken care of with passage of amendment #19, 1B1.10 (Retroactivity of Amended Guideline Range).

32: 3E1.2 Assisting in the Fair and Expeditious Administration of Justice

This amendment creates an additional guideline in Chapter Three, Part E (Acceptance of Responsibility) to provide an additional one-level decrease for a defendant who goes to trial but avoids actions that unreasonably delay or burden the proceedings or place an undue burden on the government.

Failed for lack of a motion.

33(A): Issue for comment regarding whether the provisions in 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy)) that distinguish between cocaine and crack cocaine at the ratio of 100-to-1 should be modified

Failed for lack of a motion.

33(B): Issue for comment regarding the appropriate equivalency between a marijuana plant and marijuana for guideline purposes

Failed for lack of a motion.

34(A): 3A1.4 Multiple Victims

This amendment creates a new adjustment in Chapter Three, Part A (Victim Adjustments), to address the harm caused when there is more than one victim.

Failed for lack of a motion.

34(B): Issue for comment regarding methods other than the use of a victim table to reflect the harm when there is more than one victim of the offense

Failed for lack of a motion.

35: 2B1.1 Larceny, Embezzlement, and Other Forms of Theft; Receiving, Transporting, Transferring, Transmitting, or Possessing Stolen Property

This amendment provides a minimum offense level of 14 for an organized scheme to steal mail.

Failed for lack of a motion.

Commissioner Gelacak, stating his understanding of the position staff might find themselves in, expressed his appreciation to staff for their work done this amendment cycle. Commissioner Nagel also complimented the staff for the superb package of materials.

8(A): Chapter Two, Part D (Offenses Involving Drugs) and Chapter Three, Part B (Role in the Offense)

This amendment keys the mandatory minimum levels in the Drug Quantity Table to levels 30 and 24, rather than 32 and 26, and sets the upper limit of this table at level 38.

Motion made by Commissioner Carnes to adopt. Commissioners Carnes, Mazzone, and Wilkins voted in the affirmative, with Commissioners Gelacak and Nagel voting against. Failed, 3-2. The Department of Justice expressed opposition to this proposed amendment.

Motion made by Commissioner Carnes to set the upper limit of the Drug Quantity Table at level 36. Commissioner Carnes voted in the affirmative, with Commissioners Gelacak, Mazzone, Nagel, and Wilkins voting against. Failed, 1-4.

Motion made by Commissioner Carnes to set the upper limit of the Drug Quantity Table at level 38. Commissioners Carnes, Mazzone, and Wilkins voted in the affirmative, with Commissioner Gelacak voting against and Commissioner Nagel abstaining. Failed, 3-1-1.

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

This amendment adds an additional enhancement in 2D1.1 for weapon use/assault.

Failed for lack of a motion.

8(C): Chapter Two, Part D (Offenses Involving Drugs) and Chapter Three, Part B (Role in the Offense)

This amendment revises 2D1.1(a)(3) to provide a ceiling in the Chapter Two offense level for defendants who receive a mitigating role adjustment under 3B1.2.

Chairman Wilkins moved offense level 32 in 2D1.1 as the ceiling for defendants who receive a mitigating role adjustment under 3B1.2. Commissioners Carnes, Mazzone, and Wilkins voted in the affirmative, with Commissioners Gelacak and Nagel voting against. Failed, 3-2.

17(A): 1B1.3 Relevant Conduct (Factors that Determine the Guideline Range)

This amendment clarifies the operation of 1B1.3 in respect to the liability of a defendant for actions of conspirators prior to the defendant's joining the conspiracy.

Motion again made by Commissioner Carnes to adopt the substitute amendment. Passed unanimously.

17(O): Miscellaneous Substantive, Clarifying, and Conforming Amendments

This amendment adds an additional paragraph to the Commentary to 5G1.1 (Sentencing on a Single Count of Conviction) to clarify that where the guideline sentence is determined by the statutorily authorized maximum sentence under 5G1.1(b), the guideline range from Chapter Five, Part A remains the applicable guideline range for other purposes.

Motion again made by Commissioner Carnes to adopt the substitute amendment. Commissioners Carnes, Mazzone, Nagel, and Wilkins voted in the affirmative, with Commissioner Gelacak voting against. Passed, 4-1.

Motion made by Commissioners Mazzone and Nagel to forward the proposed amendments to Congress on May 1, 1994, with a November 1, 1994, effective date. Passed unanimously.

Commissioner Gelacak requested that the Department of Justice transmit its Office of Legal Counsel memorandum concerning holdover Commissioners to Congress.

Chairman Wilkins announced that the next Commission meeting would be held on May 3, 1994, at 9:30 a.m., with Employee Recognition Day following at 11:00 a.m.

Chairman Wilkins adjourned the meeting at 11:31 a.m.

The Commission reconvened for reconsideration of amendment #8(A) that had previously failed. Commissioner Carnes moved to amend the Drug Quantity Table by revising the language to read "At least 30 KG or more of heroin . . . ." Commissioners asked that staff draft departure language that would allow courts to depart upward for extreme quantities of drugs. Commissioners Carnes, Gelacak, Nagel, and Wilkins voted in the affirmative. Commissioner Mazzone was not present for the vote. Commissioner Gelacak said that he opposes the amendment and voted in the affirmative only to reflect the vote of Commissioner Mazzone (who earlier in the day had voted for the amendment) had he still been present. Commissioner Mazzone later reiterated his support for the amendment. Passed.


United States Sentencing Commission: