Minutes from September 6, 1995

Minutes of the September 6, 1995,
United States Sentencing Commission
Business Meeting

The meeting was called to order at 1:27 p.m. by Chairman Richard P. Conaboy in the Commissioners' Conference room at the Sentencing Commission. 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
Michael Gaines, Representative, Parole Commission
Mary Frances Harkenrider, Ex Officio Commissioner
Phyllis J. Newton, Staff Director
Paul K. Martin, Deputy Staff Director
John R. Steer, General Counsel
Sharon Henegan, Director, Office of Training and Technical Assistance
Paul Hofer, Director, Special Projects
Susan Katzenelson, Director, Office of Policy Analysis
Frank Larry, Senior Training and Technical Assistance Specialist
Andy Purdy, Chief Deputy General Counsel
Amy Schreiber, Staff Attorney
Ronnie M. Scotkin, Guideline Analysis Specialist
Win Swenson, Deputy General Counsel
Peter Carlson, Assistant Director, Correctional Programs Division
Cathy Goodwin, Representative, Administrative Office of the U.S. Courts
Tom Hutchison, Representative, Federal and Community Defenders
Thomas R. Kane, Assistant Director, Information Policy and Public Affairs
John Kramer, Guidelines Simplification Consultant
Commissioner Deanell R. Tacha was unable to attend the meeting.

Chairman Conaboy introduced Amy Schreiber, who recently joined the Office of General Counsel as a staff attorney, Frank Bowman, an AUSU (S.D. Fl.) on temporary assignment to the Commission, and Barry R. Ruback, a participant in the Judicial Fellow Program. Sharon Henegan introduced probation officers Rex Morgan (E.D. WI.) and Patricia Jackson (N.D. Ind.), both on temporary assignment to the Commission. Commissioner Goldsmith introduced his new law clerk, Patrick Tanner.

Motion made by Commissioner Budd to adopt the minutes of the July 13, 1995, meeting; seconded by Commissioners Carnes and Goldsmith. Passed unanimously.

BOP Briefing

Representatives from the Bureau of Prisons, Peter Carlson and Thomas Kane, briefed the Commission on two early release programs that BOP will begin offering in September 1995. The Intensive Confinement Center, authorized under 18 U.S.C. 4046 (Shock incarceration program), is designed for minimal security inmates and consists of three phases: intensive confinement, intensive supervision in a halfway house, and then up to six months early release with participation in a community based program and supervised release. The other program, authorized under 18 U.S.C. 3621(e) (Substance abuse treatment), provides early release up to one year for non-violent inmates who successfully complete a residential drug abuse treatment program with subsequent transitional services in the community.

Commissioner Tacha earlier submitted a memorandum dated September 6, 1995, outlining her proxy votes on all agenda items for this Commission meeting.

USSG 5G1.3

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

Motion made by Commissioner Mazzone to adopt Option Two, with the shaded part of Option One, Application Note 1 made into a separate application note, and the inclusion of the current Application Note One language (including the strike-out language) as a separate paragraph; seconded by Commissioner Budd. Commissioners Budd, Conaboy, Gelacak, Mazzone, and Tacha (by proxy) voted in the affirmative, with Commissioners Carnes and Goldsmith voting against. Passed, 5-2.

Retroactivity

Amendments 5 and 18: 2D1.1, Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); 2S1.1, Laundering of Monetary Instruments; Engaging in Monetary Transactions in Property Derived from Unlawful Activity

Amendment 5 equalizes the offense level for offenses involving similar amounts of crack and powder cocaine. It adds enhancements for the use of a firearm during the commission of a drug offense, authorizes an upward departure if the offense resulted in bodily injury, and eliminates the cross reference under the simple possession guideline for five grams or more of crack. Amendment 18 consolidates 2S1.1 and 2S1.2 and ties the base offense level more closely to the underlying conduct.

Motion made by Commissioner Mazzone to defer consideration of retroactive application; seconded by Commissioner Gelacak. Commissioners Budd, Carnes, Conaboy, Gelacak, Mazzone, and Tacha (by proxy) voted in the affirmative, with Commissioner Goldsmith abstaining. Passed, 6-0-1.

Amendment #7: 2D1.1, Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses) (Safety Valve)

Repromulgates the "safety valve" provision (5C1.2 (Limitation on the Applicability of Statutory Minimum Sentences in Certain Cases)) and provides an additional two-level reduction under 2D1.1(b)(3) for defendants meeting the criteria set forth in 5C1.2 and having a base offense level of 26 or greater.

Motion made by Commissioner Gelacak to make this amendment retroactive; seconded by Commissioner Budd. Motion made by Commissioner Goldsmith to table; seconded by Commissioner Carnes. Commissioner Carnes and Goldsmith voted in the affirmative to table, with Commissioners Budd, Conaboy, Gelacak, and Mazzone voting against. Failed, 2-4. Commissioners Budd and Gelacak voted in favor of the first motion, with Commissioners Conaboy, Goldsmith, Mazzone, and Tacha (by proxy) voting against, and Commissioner Carnes abstaining. Failed, 2-4-1.

Motion made by Commissioner Budd to make the amendment retroactive to September 23, 1994 (effective date of statutory safety valve provision); seconded by Commissioner Gelacak. Commissioners Budd, Gelacak, and Goldsmith voted in the affirmative, with Commissioners Conaboy, Mazzone, and Tacha (by proxy) voting against, and Commissioner Carnes abstaining. Failed, 3-3-1.

Amendment 8: 2D1.1, Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses) (Marijuana plants)

Establishes a uniform, 100-grams-per plant, equivalency for marijuana.

Motion made by Commissioner Mazzone to make this amendment retroactive; seconded by Commissioner Carnes. Passed unanimously, with Commissioner Tacha voting by proxy.

Amendment 9: 2D1.1, Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses) ("Pills")

Determines base offense levels for Schedule I and II Depressants and Schedule III, IV, and V controlled substances by number of units/pills instead of gross weight.

Failed for lack of a motion.

Amendment 11: 2D1.11, Unlawfully Distributing, Importing, Exporting, or Possessing a Listed Chemical; Attempt or Conspiracy

Changes "listed precursors" and "listed essential chemicals" to "list I" and "list II" chemicals; adds pills containing ephedrine as a list I chemical; deletes d-lysergic acid and adds benzaldehyde and nitroethane to the Chemical Equivalency Table; addresses situations in which more than one list I chemical is used in the same manufacturing process; corrects an application note relating to the manufacturing of methamphetamine.

Failed for lack of a motion.

Amendment 12: 2D1.12, Possession of Prohibited Equipment

Adds a lower base offense level in cases involving only reasonable cause to believe a controlled substance was to be manufactured. Reflects the addition of the "reasonable cause to believe" language to 21 U.S.C. 843(a) by the Domestic Chemical Diversion Act of 1993.

Failed for lack of a motion.

Amendment 9 and 11: 2D1.1, Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses) ("Pills"); 2D1.11, Unlawfully Distributing, Importing, Exporting, or Possessing a Listed Chemical; Attempt or Conspiracy

Motion made by Commissioner Goldsmith to make amendments 9 and 11 retroactive; seconded by Commissioner Budd. Commissioner Goldsmith withdraws his motion for amendment 9 and Commissioner Budd withdraws his second for amendment 9. Commissioners Gelacak and Goldsmith voted in the affirmative, with Commissioners Budd, Carnes, Conaboy, Mazzone, and Tacha (by proxy) voting against. Failed, 2-5.

Amendment 505: 2D1.1, Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses)

Reduces the top of the Drug Equivalency Table from level 42 to level 38.

Motion made by Commissioner Carnes to make this amendment retroactive; seconded by Commissioner Mazzone. Commissioners Budd, Carnes, Conaboy, Gelacak, and Mazzone voted in the affirmative, with Commissioners Goldsmith and Tacha (by proxy) voting against. Passed, 5-2.

Civil Rights Commentary

2H1.1 Offenses Involving Individual Rights

Clarifies an ambiguity in Application Note One.

The Commissioners, by a 6-0 vote, agreed in principle to the amended commentary, with a staff redraft, under the Chairman's authority, of ambiguous language.

Assessment Plan

This proposed reordering of parts of the Commission's research effort is based upon point two of the Chairman's four-point plan. Based upon goals articulated by the Commission and Congress for sentencing and sentencing reform, Paul Hofer and John Kramer briefed the Commission on the proposed assessment program. The assessment program establishes three tracks with respective timeframes. Track One consists of projects to increase the simplicity and flexibility of the guidelines. Track Two assesses the overall functioning and effectiveness of the guideline system beyond the narrower issues of complexity and rigidity. Track Three involves criminal justice and sentencing policy research.

Food and Drug Amendment

2F1.1, Fraud and Deceit; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States; 2N2.1, Violations of Statutes and Regulations Dealing With Any Food, Drug, Biological Product, Device, Cosmetic, or Agriculture Product

Deletes 2N2.1 by consolidating it with 2F1.1, which covers similar offense conduct and has an identical base offense level.

Motion made by Commissioner Mazzone to publish for comment in the Federal Register; seconded by Commissioner Budd. Passed unanimously, with Commissioner Tacha voting by proxy.

Motion made by Commissioners Mazzone and Tacha (by proxy) to publish an issue for comment regarding the appropriateness of considering gain in lieu of loss when there is no economic loss; seconded by Commissioner Budd. Passed unanimously, with Commissioner Tacha voting by proxy.

Simplification

John Kramer, briefing the Commission on the simplification project, stated that two papers relating to relevant conduct and the Sentencing Reform Act, respectively, have been submitted for discussion. He stated that other papers covering topics such as offense severity and criminal history would be forthcoming.

Corporate Crime Symposium

Win Swenson, briefing the Commission on the upcoming corporate crime symposium, stated that expected attendance at the symposium was at full capacity for the hotel facility, with approximately 425 attendees, including Commission staff, government representatives, and press. He stated that the perspective list of attendees include government representatives, in house counsel, academics, and law firm and other corporate representatives. Andy Purdy stated that the Commission would be publishing a proceedings book following the symposium.

Staff Director Report

Staff Director Newton announced that the next scheduled Commission meeting is October 11, 1995, subject to no lapse in the Commission's appropriations. She stated that the draft substantial assistance report would be presented at that meeting. She also announced that construction on the new library was finished, although the shelving had not yet arrived, and that the Commission shortly will be able to e-mail the courts directly.

Chairman Conaboy adjourned the meeting at 4:38 p.m.


United States Sentencing Commission