Minutes from December 17, 1996

Minutes of the December 17, 1996,
United States Sentencing Commission
Business Meeting

The meeting was called to order at 1:41 p.m. by Chairman Richard P. Conaboy in the Commissioners' Conference room. The following commissioners, staff, and guests participated:

Richard P. Conaboy, Chairman

Michael S. Gelacak, Vice Chairman

Michael Goldsmith, Vice Chairman

Wayne A. Budd, Commissioner

Deanell R. Tacha, Commissioner

Mary Frances Harkenrider, Ex Officio Commissioner

Richard Preston, Representative, Parole Commission

John H. Kramer, Staff Director

Paul K. Martin, Deputy Staff Director

John R. Steer, General Counsel

Judith Sheon, Principal Technical Advisor

Jonathan Wroblewski, Legislative Counsel

Fred Bennett, Chairman, Practitioners' Advisory Group

Alan Chaset, Representative, National Association of Criminal Defense Lawyers

Jim Felman, Representative, Practitioners' Advisory Group

Cathy Goodwin, Representative, Criminal Law Committee

Tom Hutchison, Representative, Federal Public Defenders

Julie Stewart, President, Families Against Mandatory Minimums

Ex Officio Commissioner Edward F. Reilly, Jr., was unable to attend the meeting.

Chairman Conaboy announced that Jeanne M. Gravois and Janeen M. Heaney both joined the Office of General Counsel in the positions of staff attorney and assistant drafter, respectively. Commissioner Gelacak introduced Jim Felman, who coordinates seminars on the federal guidelines for private defense attorneys. Mr. Felman is instrumental in organizing a yearly conference on the guidelines co-sponsored by the Federal Bar Association and the Commission.

Motion made by Commissioner Tacha to adopt the minutes of the November 13, 1996, business meeting; seconded by Commissioner Budd. Passed unanimously.

Chairman Conaboy opened the new business portion of the meeting by inviting representatives of five interest groups to address briefly their priority areas for possible guideline amendment. Presentations were made by Fred Bennett, Alan Chaset, Jim Felman, Cathy Goodwin, Tom Hutchison, and Julie Stewart. There was consensus among the groups that the Commission should attempt to address both aggravating and mitigating roles in the offense and acceptance of responsibility this amendment cycle. Other areas of agreement among most of the groups included addressing circuit conflicts, departures, and the money laundering guideline. Chairman Conaboy welcomed comments on these and other issues at any time.

AMENDMENTS

Immigration

This amendment implements congressional directives from sections 203, 211, and 218 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

Motion made by Commissioner Tacha to publish for comment in the Federal Register the proposed substitute amendment; seconded by Commissioner Budd. Passed unanimously.

Circuit Conflicts

Amendment #4:Fencing Stolen Property Enhancement

This amendment addresses a circuit conflict involving the proper interpretation of the phrase "in the business of receiving and selling stolen property" in the theft guideline.

Deferred for further consideration.

Amendment #5:Express Threat of Death Enhancement in the Robbery Guideline

This amendment addresses a split among the circuit courts regarding the application of the "express threat of death" enhancement in §2B3.1 (Robbery).

Motion made by Commissioner Tacha to publish for comment in the Federal Register; seconded by Commissioner Goldsmith. Passed unanimously.

Amendment #6:Standard of Proof for Obstruction of Justice

This amendment addresses a split in the circuit courts over the meaning of the last sentence of Application Note 1 in the Commentary to the Chapter Three adjustment for obstruction of justice, specifically, whether that sentence requires the use of a heightened standard of proof when the court applies an enhancement for perjury.

Motion made by Commissioner Goldsmith to publish for comment in the Federal Register the proposed substitute amendment; seconded by Commissioner Tacha. Passed unanimously.

Amendment #7:Upward Departures and Criminal History Category VI

This amendment resolves a circuit conflict regarding whether the methodology described in §4A1.3 for structuring an upward departure above Criminal History Category VI is permissive or mandatory.

Deferred for further consideration.

Amendment #8:Circuit Conflicts Related to Career Offender Definitions (And Related Issues)

This amendment resolves two circuit conflicts with respect to definitions of terms used in the Chapter Four career offender guideline and presents related issues for the Commission's consideration.

Motion made by Commissioner Goldsmith to publish for comment in the Federal Register the proposed substitute amendment; seconded by Commissioner Tacha. Passed unanimously.

Fraud and Theft

Amendment #9:Revisions to the Fraud and Theft Guidelines

This amendment revises guidelines §§2B1.1 and 2F1.1.

Motion made by Commissioner Tacha to publish for comment in the Federal Register options one and two and the proposed substitute amendment; seconded by Commissioner Budd. Passed unanimously.

Role in the Offense

Amendment #11:Chapter Three, Part B - Introductory Commentary, §3B1.1 (Aggravating Role), and §3B1.2 (Mitigating Role)

This three-part amendment responds to a number of criticisms of these guidelines.

Motion made by Commissioner Goldsmith to publish for comment in the Federal Register the proposed substitute amendment; seconded by Commissioner Budd. Passed unanimously.

Commissioner Goldsmith circulated a proposed request for comment involving a general adjustment in the guidelines for aggravating or mitigating circumstances. Deferred for further consideration.

Departures

Amendment #13:Grounds for Departures

This amendment proposes to make changes to policy statement §5K2.0 (Grounds for Departure).

Motion made by Commissioner Budd to publish in the Federal Register the proposed substitute amendment; seconded by Commissioner Tacha. Passed unanimously.

Amendment #13A:Potential for Mistreatment in Prison

Option One proposes to create an additional policy statement in Chapter 5, Part H as §5H1.13 (Potential for Abuse in Prison (Policy Statement)).

Option Two proposes to create an additional policy statement in Chapter 5, Part H as §5H1.13 (Susceptibility to Abuse in Prison and Designation of Prison (Policy Statement)).

Motion made by Commissioner Tacha to publish for comment in the Federal Register the substitute proposed amendment, Option Two, with the insertion after the term "is" of the term "ordinarily"; seconded by Commissioner Goldsmith. Passed unanimously.

Amendment #13B:Successive Federal Prosecution

Option One proposes to create an additional amendment in Chapter 5, Part K as §5K2.19 (Successive Federal Prosecutions (Policy Statement)). The amendment provides that a federal prosecution following another jurisdiction's prosecution for the same or similar conduct, except as authorized by §5G1.3 (Imposition of a Sentence on a Defendant subject to an Undischarged Term of Imprisonment) is not ordinarily relevant in determining a departure.

Option Two proposes to create an additional amendment in Chapter 5, Part K as §5K2.19 (Successive Federal Prosecutions (Policy Statement)). The amendment provides that a successive federal prosecution following another jurisdiction's prosecution premised on substantially similar conduct is not an appropriate basis for departure.

Motion made by Commissioner Tacha to publish for comment in the Federal Register Option One; seconded by Commissioner Budd. Passed unanimously.

Miscellaneous

Amendment #14:Cross References

This amendment simplifies the operation of Chapter Two cross references.

Motion made by Commissioner Tacha to publish for comment in the Federal Register; seconded by Commissioner Goldsmith. Passed, 4-0. Commissioner Budd was absent for this and subsequent votes because of other business.

Amendment #15:Reworking of the Firearm Guidelines

Deferred for further consideration.

Amendment #16:The Sentencing Table

This amendment incorporates the Sentencing Table into a new guideline, §5A1.1, and addresses a "cliff" in the Sentencing Table between offense levels 42 and 43.

Motion made by Commissioner Tacha to publish for comment in the Federal Register; seconded by Commissioner Goldsmith. Passed, 4-0.

Amendment #17:Technical Changes in Chapter Six

This amendment makes a number of technical changes to Chapter Six (Sentencing Procedures and Plea Agreements) to reflect changes recently made in Rule 32, Fed R. Crim. P.

Motion made by Commissioner Tacha to publish for comment in the Federal Register; seconded by Commissioner Goldsmith. Passed, 4-0.

Consolidation

Amendment #18:Consolidation of §§2C1.2 and 2C1.6

This amendment consolidates §§2C1.2 (Offering, Giving, Soliciting, or Receiving a Gratuity) and 2C1.6 (Loan or Gratuity to Bank Examiner, or Gratuity for Adjustment of Farm Indebtedness, or Procuring Bank Loan, or Discount of Commercial Paper).

Amendment #19:Consolidation of §§2C1.3, 2C1.4, and 2C1.5

This amendment consolidates §§2C1.3 (Conflict of Interest), 2C1.4 (Payment or Receipt of Unauthorized Compensation), and 2C1.5 (Payments to Obtain Public Office).

Amendment #20:Consolidation of §§2E1.2 and 2E1.3

This amendment consolidates §§2E1.2 (Interstate or Foreign Travel or Transportation in Aid of a Racketeering Enterprise) and 2E1.3 (Violent Crimes in Aid of Racketeering Activity).

Amendment #21:Consolidation of §§2M2.1 and 2M2.3

This amendment consolidates §§2M2.1 (Destruction of, or Production of Defective, War Material, Premises, or Utilities) and 2M2.3 (Destruction of, or Production of Defective, National Defense Material, Premises, or Utilities).

Motion made by Commissioner Tacha to publish for comment in the Federal Register proposed substitute amendments #18 and #19, and proposed amendments #20 and #21; seconded by Commissioner Goldsmith. Passed, 4-0.

Circuit Conflicts

An issue for comment on whether and in what manner the Commission should address by amendment the listed circuit conflicts.

Motion made by Commissioner Tacha to publish for comment in the Federal Register; seconded by Commissioner Goldsmith. Passed, 4-0.

Relevant Conduct

Motion made by Commissioner Gelacak to remove from consideration the proposed amendment to relevant conduct approved for publication at the July 1996 meeting; seconded by Commissioner Tacha. Passed, 3-1. Commissioner Conaboy, Gelacak, and Tacha voted in the affirmative, with Commissioner Goldsmith voting no.

Staff Director Kramer, updating the Commission on staff activities, stated that the Commission's onsite Christmas party would be held tomorrow. He briefed the Commission on his experiences and activities in Latin America on behalf of the Commission. He also stated that staff presentations at the annual meeting of the American Society of Criminology were well received.

Chairman Conaboy announced that the next Commission meeting would be held on February 11, 1997.

Chairman Conaboy adjourned the meeting at 3:24 p.m.

 


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