Minutes from April 28, 1997

Minutes of the April 28, 1997,
United States Sentencing Commission
Business Meeting

The meeting was called to order by Chairman Richard P. Conaboy at 1:07 p.m. Chairman Conaboy, Vice Chairman Michael Goldsmith, Commissioners Wayne A. Budd and Deanell R. Tacha, and Ex Officio Commissioner Mary Harkenrider participated via telephone. Vice Chairman Michael S. Gelacak and the following staff and guest participated in the Commissioners' Conference room: Staff Director John Kramer, Deputy Staff Director Paul K. Martin, General Counsel John R. Steer, and Tom Hutchison, representative of the Federal Public Defenders.

Amendment #10 "Primary" Methamphetamine Amendment

This amendment embodies the Commission's response to the directives in the 1996 Methamphetamine Control Act to enhance appropriately the penalties for methamphetamine trafficking offenses.

Motion made by Commissioner Goldsmith to adopt the "Goldsmith option," with the following changes in base offense level 26 of "At least 50 grams but less than 200 grams of Methamphetamine"; seconded by Commissioner Tacha. Commissioners Budd, Conaboy, Goldsmith, and Tacha voted in the affirmative, with Commissioner Gelacak voting against. Passed, 4-1.

This amendment embodies the Commission's response to the directives in the 1996 Methamphetamine Control Act to determine whether the guidelines adequately punish environmental violations occurring in connection with precursor chemical offenses.

Motion made by Commissioner Tacha to adopt the proposed amendment to §2D1.1(b)(4); seconded by Commissioner Goldsmith. The motion was amended to provide a four-level increase under proposed §2D1.1(b)(4). Commissioner Tacha voted in the affirmative, with Commissioners Budd, Conaboy, Gelacak, and Goldsmith voting against. Failed, 1-4.

Chairman Conaboy moved to adopt the proposed amendment, with language indicating that an upward departure may be warranted when the two-level enhancement does not adequately reflect the harm. Commissioner Goldsmith seconded the motion. Passed unanimously.

This amendment addresses whether to add other, targeted enhancements relating to methamphetamine importation and manufacturing.

Motion made by Commissioner Tacha to adopt the proposed amendment that includes both the importation and manufacturing of methamphetamine. Commissioner Tacha withdrew the motion.

Motion made by Commissioner Tacha to adopt the proposed amendment concerning the importation of methamphetamine, including in proposed §2D1.1(b)(4) of the bracketed language; seconded by Commissioner Goldsmith. Commissioners Budd, Conaboy, Goldsmith, and Tacha voted in the affirmative, with Commissioner Gelacak voting against. Passed, 4-1. Commissioner Gelacak stated that his problem with enhancing penalties for importation relates to the continuing concerns raised around the country by persons involved in the criminal justice system of inappropriately punishing people at the very low levels of the importation /distribution network. He stated that in many instances the Commission has agreed with those thoughts and concerns in principle, but once again after expressing concern in an area, when it is time to establish policy, the Commission does so by raising the penalties. He stated that the Commission ought to be consistent in this area and he does not think the Commission is.

Amendment #9 "Secondary" Methamphetamine Issues

This amendment encompasses some of the lesser issues from the 1996 Methamphetamine Control Act. The first issue relates to the enhancement in the prohibited equipment guideline for intent to manufacture methamphetamine. The second issue relates to the offense level for simple possession of a List I chemical. The third issue relates to the statutory index references for two new offenses.

Motion made by Commissioner Tacha to adopt the substitute amendment relating to part (a) and the proposed amendments relating to parts (b) and (c); seconded by Commissioner Budd. Passed unanimously.

Amendment #11 Retroactivity

This amendment addresses recent litigation, Helpline questions, and administrative concerns regarding the operation of the policy statement governing amendment retroactivity.

Motion made by Commissioner Budd to reconsider adoption of this amendment; seconded by Commissioner Goldsmith. Passed unanimously.

Motion made by Commissioner Tacha to adopt the revised proposed amendment; seconded by Commissioner Goldsmith. Commissioners Budd, Conaboy, Goldsmith, and Tacha voted in the affirmative, with Commissioner Gelacak voting against. Passed, 4-1.

Theft, Fraud, Tax Loss Tables

Motion made by Commissioner Goldsmith to adopt; seconded by Commissioner Tacha. Commissioners Goldsmith and Tacha voted in the affirmative, with Commissioners Conaboy and Gelacak voting against, and Commissioner Budd abstaining. Failed, 2-2-1. Commissioner Gelacak listed as reasons why he did not support this amendment the following: (1) building the more than minimal planning enhancement into the table means that the least culpable offenders will be punished higher than now; (2) the Commission does not fully understand the effect on crimes that are crossed-referenced into the fraud tables; (3) only 37% of judges polled in their survey viewed this area as a problem; (4) the proposal does nothing but result in higher penalties although judges currently do not sentence at the high end of the applicable ranges for tax and fraud offenses; and (5) this proposal is a piecemeal attempt at a problem that should be addressed comprehensively. He stated that these issues should be the Commission's number one priority during the next amendment cycle beginning May 1, 1997. Commissioner Budd stated that he was not necessarily disagreeing with the merit of the amendment, but was concerned with the due process issue because an impression was given that this amendment would not be addressed this amendment cycle, and thus, would abstain. Commissioner Goldsmith stated that the Commission fully complied with notice requirements because materials had been published earlier and this amendment reflects a revision of those materials.

Chairman Conaboy adjourned the meeting at 2:14 p.m.


 

United States Sentencing Commission