Minutes from December 8, 1994

Minutes of the December 8, 1994,
United States Sentencing Commission
Business Meeting

The meeting was called to order at 1:12 p.m. by Chairman Richard P. Conaboy in the Sentencing Commission's conference room. The following commissioners, staff, and guests participated:

Richard P. Conaboy, Chairman

Michael S. Gelacak, Vice Chairman

A. David Mazzone, Vice Chairman

Wayne A. Budd, Commissioner

Julie E. Carnes, Commissioner
Michael Goldsmith, Commissioner
Deanell R. Tacha, Commissioner
Jo Ann Harris, Ex Officio Commissioner
Edward F. Reilly, Jr., Ex Officio Commissioner
Phyllis J. Newton, Staff Director
Paul K. Martin, Deputy Staff Director
John R. Steer, General Counsel
Peter Hoffman, Principal Technical Advisor
Lou Reedt, Senior Research Associate
Ronnie M. Scotkin, Guideline Analyst

Fred Bennett, Representative, Practitioners' Advisory Group
Alan Chaset, Representative, American Bar Association, National Association of Criminal Defense Lawyers, Practitioners' Advisory Group
Tom Hutchison, Representative, Federal Public Defenders
Maggie Jensen, Representative, Probation and Pretrial Services Division of the Administrative Office of the U.S. Courts
Julie Stewart, Families Against Mandatory Minimums
Lyle Yurko, Practitioners' Advisory Group

Chairman Conaboy, expressing appreciation for the comments and suggestions from various parties, stated that the Commission takes its work seriously and understands its obligations to study everything thoroughly. He acknowledged the hard work of individual parties and stated that the Commission hopes to incorporate much of what has been submitted for publication in the Federal Register.

Motion made by Commissioner Mazzone to adopt the minutes of the November 22, 1994, meeting; seconded by Commissioner Budd. Passed unanimously.

Drug Guideline Revisions

Motion made by Commissioner Gelacak to adopt the two drug proposals, with offense levels incorporated in Alternative Two, for publication in the Federal Register; seconded by Commissioner Mazzone. Passed unanimously.

Commissioner Gelacak stated that even though the crack report was not on the agenda, the Commission was taking the report seriously. He stated that there is always the chance that the report would not be finished on time, although the Commission expected to meet its congressional deadline. Staff Director Newton stated that staff currently was incorporating commissioners' comments and would recirculate the draft next week.

Chairman Conaboy introduced probation officer Daniel E. Fittz (W.D. VA), who is on temporary assignment to the Commission.

Crime Bill Firearms and Violent Offenses Provisions

Sec. 60003(a)(14). Carjacking

No motion was made because Commission action is not necessary.

Sec. 110506. Resentencing Upon Revocation of Probation; Sec. 280001, Imposition of Sentence

No motion was made because Commission action is not necessary.

Sec. 60008. New Offenses for the Indiscriminate Use of Weapons to Further Drug Conspiracies

Motion made by Commissioner Gelacak to adopt the proposed amendments for publication in the Federal Register, with an issue for comment regarding an enhancement for reckless endangerment when there is a shooting into a crowd but no additional injury; seconded by Commissioner Tacha. Passed unanimously.

Sec. 60019. Offenses of Violence Against Maritime Navigation or Fixed Platforms

Motion made by Commissioner Budd to adopt the proposed amendment for publication in the Federal Register; seconded by Commissioner Tacha. Passed unanimously.

Sec. 110102. Restriction on Manufacture, Transfer, and Possession of Certain Semiautomatic Assault Weapons

Motion made by Commissioner Tacha to adopt the proposed amendment for publication in the Federal Register, with an issue for comment regarding whether 18 U.S.C. 922(v) should be reflected as an enhanced base offense level in the firearms guideline; seconded by Commissioner Carnes. Passed unanimously.

 

Sec. 110103. Ban of Large Capacity Ammunition Feeding Devices

Motion made by Commissioner Mazzone to adopt the proposed amendment for publication in the Federal Register; seconded by Commissioner Goldsmith. Passed unanimously.

Sec. 110518. Firearms and Explosives Conspiracy

Motion made by Commissioner Carnes to adopt the proposed amendment for publication in the Federal Register, with an issue for comment regarding whether a co-conspirator should be subject to a guideline more closely aligned to the substantive offense under 18 U.S.C. 924(c); seconded by Commissioner Tacha. Passed unanimously.

Sec. 110201. Prohibition of the Possession of a Handgun or Ammunition by, or the Private Transfer of a Handgun or Ammunition to, a Juvenile

Motion made by Commissioner Budd to adopt the proposed amendments for publication in the Federal Register; seconded by Commissioner Carnes. Passed unanimously.

Sec. 110501. Enhanced Penalty for Use of a Semiautomatic Firearm During a Crime of Violence or a Drug Trafficking Crime (Directive)

Motion made by Commissioner Tacha to adopt the proposed amendment for publication in the Federal Register, modified to ask "how" the offense level for an offense involving a semi-automatic firearm should be increased not "whether;" seconded by Commissioner Goldsmith. Passed unanimously.

Sec. 110502. Enhanced Penalty for Second Offense of Using an Explosive to Commit a Felony (Directive); Sec. 320106. Increased Penalties for Arson

Motion made by Commissioner Carnes to adopt the proposed amendment for publication in the Federal Register; seconded by Commissioner Mazzone. Passed unanimously.

Sec. 110504. Theft of Firearms and Explosives; Sec. 110511. Prohibition Against Transactions Involving Stolen Firearms Which Have Moved in Interstate or Foreign Commerce; Sec. 110515. Theft of Firearms or Explosives from Licensee

Motion made by Commissioner Carnes to adopt the proposed amendments for publication in the Federal Register; seconded by Commissioner Tacha. Passed unanimously.

Sec. 110505. Revocation of Supervised Release After Imprisonment

Motion made by Commissioner Mazzone to adopt the proposed amendment for publication in the Federal Register; seconded by Commissioner Tacha. Passed unanimously.

 

Sec. 110506. Mandatory Revocation for Possession of Controlled Substance or Firearm or Refusal to Comply with Drug Testing; Sec. 20414. Drug Testing of Federal Offenders on Post-Conviction Release

Motion made by Commissioner Carnes to adopt the proposed amendment for publication in the Federal Register; seconded by Commissioner Tacha. Passed unanimously.

Sec. 110512. Using a Firearm in the Commission of Counterfeiting or Forgery (Directive)

Motion made by Commissioner Carnes to adopt the proposed amendments for publication in the Federal Register, with an issue for comment regarding whether the use of a firearm is more appropriately treated in one of the forms currently provided under the drug or robbery guidelines; seconded by Commissioner Budd. Passed unanimously.

Sec. 110513. Enhanced Penalties for Firearms Possession by Violent Felons and Serious Drug Offenders (Directive)

Motion made by Commissioner Carnes to adopt the proposed amendment for publication in the Federal Register; seconded by Commissioner Tacha. Passed unanimously.

Sec. 320102. Increased Penalties for Manslaughter

Motion made by Commissioner Carnes to adopt the proposed amendment for publication in the Federal Register; seconded by Commissioner Mazzone. Passed unanimously.

Crime Bill Sex Offense Provisions

Sec. 40111. Repeat Sex Crimes

Motion made by Commissioner Tacha to adopt the proposed amendments for publication in the Federal Register; seconded by Commissioners Goldsmith and Mazzone. Passed unanimously.

Section 40112. Federal Penalties

Motion made by Commissioner Carnes to adopt the proposed amendment for publication in the Federal Register; seconded by Commissioner Mazzone. Passed unanimously.

Sec. 40113. Mandatory Restitution for Sex Crimes

Motion made by Commissioner Carnes to adopt the proposed amendment for publication in the Federal Register; seconded by Commissioner Tacha. Passed unanimously.

 

Sec. 40502. Increased Penalties for Sex Offense Against Victims Under Age 16

No motion was made because Commission action is not necessary.

Sec. 40503. Payment for Cost of Testing for Sexually Transmitted Diseases

Motion made by Commissioner Tacha to adopt the proposed amendment for publication in the Federal Register; seconded by Commissioner Mazzone. Passed unanimously.

Sec. 160001. Penalties for International Trafficking in Child Pornography

Motion made by Commissioner Carnes to adopt the proposed amendment for publication in the Federal Register, with an additional cross reference of 18 U.S.C. 2243(b) to USSG 2G1.2; seconded by Commissioner Budd. Passed unanimously.

Crime Bill Drug Provisions, Domestic Chemical Diversion Act

Sec. 90101. Enhancement of Penalties for Drug Trafficking in Prison

Motion made by Commissioner Carnes to adopt the proposed amendment for publication in the Federal Register; seconded by Commissioner Tacha. Passed unanimously.

Sec. 90103. Enhanced Penalties for Illegal Drug Use in Federal Prisons and for Smuggling Drugs in Federal Prisons

Motion made by Commissioner Mazzone to adopt the proposed amendment for publication in the Federal Register; seconded by Commissioner Goldsmith. Passed unanimously.

Domestic Chemical Diversion Act of 1993

Motion made by Commissioner Carnes to adopt the proposed amendments for publication in the Federal Register; seconded by Commissioner Tacha. Passed unanimously.

Other

Public Law No. 103-159, Brady Handgun Violence Prevention Act; 5C1.2. Limitations on Applicability of Statutory Minimum Sentences in Certain Cases;

Motion made by Commissioner Tacha to adopt the proposed amendments for publication in the Federal Register; seconded by Commissioner Mazzone. Passed unanimously.

 

Department of Justice Proposals

Motion made by Commissioner Mazzone to adopt the DOJ amendments for publication in the Federal Register; seconded by Commissioner Tacha. Passed unanimously.

Sec. 280003. Hate Crimes

Motion made by Commissioner Mazzone to adopt the proposed DOJ amendment for hate crimes to be included in the previously adopted proposals for publication in the Federal Register; seconded by Commissioner Budd. Passed unanimously.

Miscellaneous Amendments - Staff Proposals (new)

(A) Chapter Five, Part H Specific Offense Characteristics (5H1.5, Employment Record, 5H1.13, Status as a Deportable Alien)

Motion made by Commissioner Carnes to adopt the proposed 5H1.13 amendment for publication in the Federal Register; seconded by Commissioner Tacha.

Commissioner Gelacak stated that he would vote against all miscellaneous amendments because the Commission has too much else to do.

Commissioner Carnes withdraw her motion.

(C) 5G1.3, Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment

Motion made by Commissioner Mazzone to adopt the proposed amendment for publication in the Federal Register; seconded by Commissioner Tacha. Passed unanimously.

Miscellaneous Amendments - Staff Proposals (previously published)

Motion made by Commissioner Gelacak to table until the next amendment cycle all, previously published and new, miscellaneous amendments; seconded by Commissioner Tacha. Passed unanimously.

Outside Group Amendment Proposals

Probation Officers' Advisory Group

2. Money Laundering

Motion made by Commissioner Mazzone to adopt for publication in the Federal Register; seconded by Commissioners Budd and Tacha. Passed unanimously.

 

Committee on Criminal Law of the Judicial Conference of the United States

62. 5D1.1 Imposition of a Term of Supervised Release; 5D1.2. Term of Supervised Release

Motion made by Commissioner Tacha to adopt the proposed amendment for publication in the Federal Register; seconded by Commissioner Carnes . Commissioner Gelacak left for the rest of the meeting. Passed unanimously.

Practitioners' Advisory Group

4(d) Issue for Comment regarding the ratio between powder and crack cocaine

Motion made by Commissioner Budd to adopt the proposed issue for comment for publication in the Federal Register, drafted in neutral language and with reference to the crack report; seconded by Commissioner Goldsmith. Passed unanimously.

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

Motion made by Commissioner Mazzone to adopt the proposed amendments for publication in the Federal Register; seconded by Commissioner Tacha. Passed unanimously.

Commissioners agreed to a suggestion offered by Tom Hutchison that for proposed amendments previously agreed to by the Commission, the proposals be broaden to provide sufficient latitude to allow for consideration of a defense position when adopting final proposals for submission to Congress.

Chairman Conaboy adjourned the meeting at 3:20 p.m.


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