Minutes from December 17, 1997

Minutes of the December 17, 1997,
United States Sentencing Commission
Business Meeting

The meeting was called to order at 9:41 a.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, Commissioner
Deanell R. Tacha, Commissioner
John H. Kramer, Staff Director
Paul K. Martin, Deputy Staff Director
John R. Steer, General Counsel
Alan Chaset, Representative, Practitioners’ Advisory Group
Catherine Goodwin, Representative, Criminal Law Committee
Lisa Kuca, Representative, Practitioners’ Advisory Group
Lyle Yurko, Representative, Practitioners’ Advisory Group
Ex Officio Commissioners Michael J. Gaines and Mary F. Harkenrider were unable to attend.

Motion made by Commissioner Goldsmith to adopt the minutes of the November 12, 1997, business meeting; seconded by Commissioner Tacha. Passed unanimously.

Amendments

Fraud, Theft, Property Destruction Guideline

Consolidation

Amendment consolidates the three guidelines covering theft (§2B1.1), property destruction (§2B1.3), and fraud (§2F1.1).

Motion made by Commissioner Tacha to publish in the Federal Register for comment, with introductory language explaining the origin of the amendment; seconded by Commissioner Goldsmith. Commissioners Conaboy, Goldsmith, and Tacha voted in the affirmative to publish, with Commissioner Gelacak voting against. Passed, 3-1.

Loss Definition

Motion made by Commissioner Tacha to publish in the Federal Register for comment, with deletion of the proposed victim’s table, the bracketing of the language in (B), and from the list of encourage departure factors, the continuing of them as departure options those not listed as specific offense characteristics; seconded by Commissioner Goldsmith. Commissioners Conaboy, Goldsmith, and Tacha voted in the affirmative to publish, with Commissioner Gelacak voting against. Passed, 3-1.

Practitioners’ Advisory Group Amendment

This amendment proposes a two-level reduction in the theft and fraud guidelines for cases involving only limited or insignificant planning if more-than-minimal-planning is built into the loss tables.

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

Circuit Conflicts

Issue 1 (bankruptcy)

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

Issue 2 (charitable organization)

Motion made by Commissioner Tacha to publish in the Federal Register for comment option three; seconded by Commissioner Goldsmith. Commissioners Conaboy, Goldsmith, and Tacha voted in the affirmative to publish, with Commissioner Gelacak voting against. Passed, 3-1.

Issue 3 (abuse of position of trust)

Motion made by Commissioner Tacha to publish in the Federal Register for comment option one, with an issue for comment related to defining scope of the abuse of trust sentencing enhancement to exclude imposters; seconded by Commissioner Goldsmith. Commissioners Conaboy, Goldsmith, and Tacha voted in the affirmative to publish, with Commissioner Gelacak voting against. Passed, 3-1.

Issue 4 (aberrant behavior)

Motion made by Commissioner Goldsmith to publish in the Federal Register for comment; seconded by Commissioner Tacha. Commissioners Conaboy, Goldsmith, and Tacha voted in the affirmative to publish, with Commissioner Gelacak voting against. Passed, 3-1.

Issue 5 (obstruction of justice)

Motion made by Commissioner Tacha to publish in the Federal Register for comment; seconded by Commissioner Goldsmith. Commissioners Conaboy, Goldsmith, and Tacha voted in the affirmative to publish, with Commissioner Gelacak voting against. Passed, 3-1.

Issue 6 (Obstruction of justice)

Motion made by Commissioner Tacha to publish in the Federal Register for comment; seconded by Commissioner Goldsmith. Commissioners Conaboy, Goldsmith, and Tacha voted in the affirmative to publish, with Commissioner Gelacak voting against. Passed, 3-1.

Issue 7 (failure to appear)

Motion made by Commissioner Tacha to publish in the Federal Register for comment; seconded by Commissioner Goldsmith. Commissioners Conaboy, Goldsmith, and Tacha voted in the affirmative to publish, with Commissioner Gelacak voting against. Passed, 3-1.

Issue 8 (computing criminal history)

Motion made by Commissioner Goldsmith to publish in the Federal Register for comment; seconded by Commissioner Tacha. Commissioners Conaboy, Goldsmith, and Tacha voted in the affirmative to publish, with Commissioner Gelacak voting against. Passed, 3-1.

Issue 9 (diminished capacity departure)

Motion made by Commissioner Tacha to publish in the Federal Register for comment; seconded by Commissioner Goldsmith. Commissioners Conaboy, Goldsmith, and Tacha voted in the affirmative to publish, with Commissioner Gelacak voting against. Passed, 3-1.

Issue for Comment - Departures

Amendment invites comment on whether §5K2.0 should be amended to incorporate the holding of Koon v. United States, 116 S. Ct. 2035 (1996).

Motion made by Commissioner Tacha to publish in the Federal Register for comment; seconded by Commissioner Goldsmith. Commissioners Conaboy, Goldsmith, and Tacha voted in the affirmative to publish, with Commissioner Gelacak voting against. Passed, 3-1.

Conditions of Probation and Supervised Release

A three-part amendment relating to last year’s reworking of the guidelines related to conditions of probation, §5B1.3, and supervised release, §5D1.3.

Motion made by Commissioner Tacha to publish in the Federal Register for comment; seconded by Commissioner Goldsmith. Commissioners Conaboy, Goldsmith, and Tacha voted in the affirmative to publish, with Commissioner Gelacak voting against. Passed, 3-1.

Prohibited Persons

This amendment addresses section 658 of the Treasury, Postal Service, and General Government Appropriations Act, 1997, which expands the definition of “prohibited person” (for sale of a firearm or ammunition) to include offenders convicted of a misdemeanor crime of domestic violence.

Motion made by Commissioner Goldsmith to publish in the Federal Register for comment; seconded by Commissioner Tacha. Commissioners Conaboy, Goldsmith, and Tacha voted in the affirmative to publish, with Commissioner Gelacak voting against. Passed, 3-1.

Veterans’ Cemeteries

This amendment implements section two of the Veterans’ Cemetery Protection Act of 1997, Public Law No. 105-101, which directs the Commission to enhance sentences for offenses involving property of a national cemetery.

Motion made by Commissioner Tacha to publish in the Federal Register for comment; seconded by Commissioner Goldsmith. Commissioners Conaboy, Goldsmith, and Tacha voted in the affirmative to publish, with Commissioner Gelacak voting against. Passed, 3-1.

Electronic Theft

This amendment addresses the No Electronic Theft (NET) Act, Public Law No. 105-147, for crimes involving intellectual property.

Motion made by Commissioner Tacha to publish in the Federal Register for comment, with the base offense level bracketed; seconded by Commissioner Goldsmith. Commissioners Conaboy, Goldsmith, and Tacha voted in the affirmative to publish, with Commissioner Gelacak voting against. Passed, 3-1.

Issues for Comment - Homicide Guidelines

Motion made by Commissioner Tacha to publish in the Federal Register for comment, with the deletion in (D) of “i.e.” and the insertion instead of “e.g.”; seconded by Commissioner Goldsmith. Commissioners Conaboy, Goldsmith, and Tacha voted in the affirmative to publish, with Commissioner Gelacak voting against. Passed, 3-1.

Issues for Comment - Telemarketing Fraud

Commissioner Tacha commended the members of the Telemarketing Fraud Working Group for their presentation on December 16. Members include Mary Didier, Chair, Kevin Blackwell, Paula Desio, Stephen Marley, Krista Murray, and Sandra Murray.

Motion made by Commissioner Tacha to publish in the Federal Register for comment, with the deletion in (2) of the term “large” and the insertion instead of the term “multiple”; seconded by Commissioner Goldsmith. Commissioners Conaboy, Goldsmith, and Tacha voted in the affirmative to publish, with Commissioner Gelacak voting against. Passed, 3-1.

Staff Director Kramer, reporting on staff activities, mentioned that Price Waterhouse was in the final stages of their review of the organization and thanked staff members Kevin Blackwell, Margaret Forde, Tim McGrath, Lou Reedt, Judy Sheon, Susan Winarsky, and Jonathan Wroblewski for their involvement on the “change team.” He stated that the Commission has scheduled a public hearing on proposed guideline amendments in San Francisco on March 5 and Commission meetings March 12-13, 1998, in Washington, D.C. He stated the Commission’s Internet web site has been expanded to include meeting agendas and materials. Finally, the Staff Director commended the members of the Manslaughter and Telemarketing Fraud Working Groups for their hard work.

Chairman Conaboy adjourned the meeting at 10:41 a.m.