United States Sentencing Commission
Minutes of the July 18, 1996,
The meeting was called to order at 2:39 p.m. by Chairman Richard P. Conaboy in the Commissioners' Conference room. The following commissioners and staff participated:
Richard P. Conaboy, Chairman
A. David Mazzone, Vice Chairman
Wayne A. Budd, Commissioner
Julie E. Carnes, Commissioner
Michael Goldsmith, Commissioner
Mary Frances Harkenrider, Ex Officio Commissioner
Edward F. Reilly, Jr., Ex Officio Commissioner
Paul K. Martin, Deputy Staff Director
John R. Steer, General Counsel
Donald A. Purdy, Chief Deputy General Counsel
Ronnie M. Scotkin, Guideline Analyst Specialist
Judith Sheon, Principal Technical Advisor
Vice Chairman Michael S. Gelacak participated via telephone and Commissioner Deanell R. Tacha was unable to participate.
Chairman Conaboy introduced Assistant Federal Defender Gustavo Gelpi, who is on temporary assignment to the Commission.
Motion made by Commissioner Mazzone to approve the minutes of the May 24 and June 17 and 19, 1996, business meetings; seconded by Commissioner Budd. Passed unanimously (6-0).
Motion made by Commissioner Budd to publish for comment in the Federal Register for 90 days rules of practice and procedure for the Commission; seconded by Commissioner Mazzone. Passed unanimously (6-0).
Andy Purdy, briefing the Commission on the August 12, 1996, public hearing in Denver, Colorado, stated that panels of witnesses would be addressing relevant conduct, drugs and role in the offense, and departures and offender characteristics as part of the Commission's simplification effort.
Amendment One clarifies and more fully explains the operation of the relevant conduct guideline. Amendment Two incorporates into the relevant conduct guideline the holding in United States v. Hill, 79 F.3d 1477 (6th Cir. 1996), that when two controlled substance transactions are conducted more than one year apart, the fact that the same controlled substance was involved in both transactions is insufficient, without more, to demonstrate that the transactions were part of the same course of conduct or common scheme or plan.
Motion made by Commissioner Goldsmith to publish in the Federal Register for public comment; seconded by Commissioner Budd. Passed unanimously (6-0).
Option One excludes the use of acquitted conduct as a basis for determining the guideline range. Option Two excludes acquitted conduct from consideration in determining the guideline range unless such conduct is established by the "clear and convincing" standard, rather than the less exacting "preponderance of the evidence" standard generally applicable to the determination of relevant conduct. Option Three expressly provides what currently is arguably implicit in the relevant conduct guideline: that acquitted conduct should be evaluated using the same standards as any other form of unconvicted conduct and included in determining the guideline range if those standards are met. However, the court may depart downward to limit or exclude the effect of acquitted conduct. Option Four allows a downward departure for acquitted conduct or other unconvicted conduct when such conduct contributes undue weight to the determination of the guideline sentence.
Motion made by Commissioner Carnes to publish Options One, Two, and Three; seconded by Commissioner Mazzone. Motion amended by Commissioner Goldsmith to bracket in Option One, Application Note 10, the term "ordinarily". Passed unanimously (5-0). (Commissioner Budd was necessarily absent for this and subsequent votes because of other business).
Acceptance of Responsibility:
Part I allows defendants at all adjusted offense levels to qualify for the three-level downward adjustment. Part II addresses a circuit split regarding whether continued dissimilar offense conduct properly can be a basis for denying a two-level reduction under 3E1.1(a). Part III, Option One makes the additional one-level decrease contingent upon the defendant's receiving the two-level decrease. Part III, Option Two provides (1) a three-level decrease if all of the enumerated factors are satisfied, (2) a two-level decrease if some of the enumerated factors are satisfied, and (3) a one-level decrease if the defendant entered a guilty plea before the opening of the government's case at trial but satisfied none of the other enumerated factors.
Motion made by Commissioner Mazzone to publish Parts I, II, and III; seconded by Commissioner Goldsmith. Motion amended by Commissioner Carnes to publish only Parts I and II. Passed unanimously (5-0).
The amendment implements section 730 of the Antiterrorism and Effective Death Penalty Act of 1996, which gives the Commission emergency authority to amend 3A1.4, relating to international terrorism, to apply more broadly to federal crimes of terrorism, as defined in 18 U.S.C. 2332b(g).
Motion made by Commissioner Mazzone to adopt, effective November 1, 1996; seconded by Commissioner Carnes. Passed unanimously (4-0). (Commissioner Goldsmith was not present for this vote).
This amendment makes Appendix A (Statutory Index) more comprehensive.
Motion made by Commissioner Mazzone to adopt proposed changes to the Statutory Index, except for the Hatch Reform Act of 1993 recommendations, effective November 1, 1996 ; seconded by Commissioner Carnes. Passed unanimously (5-0).
Paul Martin, briefing the Commission on staff projects, stated that the coding project relating to criminal history was almost complete and the one relating to drugs and role in the offense was commencing. He also stated that the Commission was coordinating with the Federal Judicial Center and the Administrative Office of the Courts on teleconferencing and that there was a possibility that the Commission would assist in building a studio.
Chairman Conaboy adjourned the meeting at 3:36 p.m.
United States Sentencing Commission