Minutes from April 7, 1998

United States Sentencing Commission
Minutes of the April 7, 1998,
Business Meeting

The meeting was called to order at 1:07 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, Commissioner
Deanell R. Tacha, Commissioner
Mary F. Harkenrider, Ex Officio Commissioner
John H. Kramer, Staff Director
John R. Steer, General Counsel
Fred Bennett, Representative, Practitioners’ Advisory Group
Alan Chaset, Representative, Practitioners’ Advisory Group
Tom Hutchison, Representative, Federal Public Defenders
Lyle Yurko, Representative, Practitioners’ Advisory Group

Ex Officio Commissioner Michael J. Gaines was unable to attend.

Motion made by Commissioner Tacha to adopt the minutes of the February 10, 1998, business meeting; seconded by Commissioner Goldsmith. Passed unanimously.

Circuit Conflicts

Issue 1: This amendment addresses whether filing fraudulent forms with bankruptcy and probate courts violates a judicial order or process within the meaning of §2F1.1(b)(3)(B).

Motion made by Commissioner Tacha to adopt Option 1(a); seconded by Commissioner Goldsmith. Commissioners Goldsmith and Tacha voted in the affirmative, with Vice Chairman Gelacak voting against, and Chairman Conaboy abstaining. Failed 2-1-1.

Issue 2: This amendment addresses whether an employee of a charity or government agency who misapplies or embezzles funds misrepresents that he was acting “on behalf of the agency” within the meaning of §2F1.1(b)(3)(A).

Motion made by Commissioner Tacha to adopt; seconded by Commissioner Goldsmith. Commissioners Goldsmith and Tacha voted in the affirmative, with Vice Chairman Gelacak voting against, and Chairman Conaboy abstaining. Failed 2-1-1.

Issue 3: This amendment addresses whether the abuse of position of trust enhancement in §3B1.3 applies to imposters.

Motion made by Commissioner Goldsmith to adopt; seconded by Commissioner Tacha. Passed unanimously.

Issue 4: This amendment addresses whether the aberrant behavior departure is limited to only spontaneous and thoughtless acts.

Motion made by Commissioner Goldsmith to adopt the revised proposed amendment; seconded by Commissioner Tacha. Commissioners Goldsmith and Tacha voted in the affirmative, with Vice Chairman Gelacak voting against, and Chairman Conaboy abstaining. Failed 2-1-1.

Issue 5: This amendment addresses whether the term “instant offense” as used in §3C1.1 includes obstruction that occurred in cases closely related to the defendant’s case or in only those specifically related to the “offense of conviction.”

Motion made by Commissioner Tacha to adopt revised proposed amendment, Option 1(a); seconded by Chairman Conaboy. Vice Chairman Gelacak and Commissioner Tacha voted in the affirmative, with Commissioner Goldsmith voting against, and Chairman Conaboy abstaining. Failed 2-1-1.

Motion made by Commissioner Goldsmith to adopt revised proposed amendment, Option 1(b); seconded by Chairman Conaboy. Passed unanimously.

Issue 6: This amendment addresses whether lying to a probation officer about drug use while out on bail warrants the obstruction of justice adjustment.

Motion made by Commissioner Tacha to adopt; seconded by Commissioner Goldsmith. Passed unanimously.

Issue 7: This amendment addresses whether the guideline procedure of grouping the failure-to-appear count of conviction with the underlying offense violates the statutory mandate to impose a consecutive sentence.

Motion made by Commissioner Tacha to adopt the revised proposed amendment; seconded by Commissioner Goldsmith. Passed unanimously.

Issue 8: This amendment addresses whether confinement in a community treatment center or halfway house following revocation of parole, probation, or supervised release qualifies as “incarceration” in determining the defendant’s subsequent criminal history score.

Motion made by Commissioner Tacha to adopt the revised proposed amendment, Option 1; seconded by Commissioner Goldsmith. Commissioners Goldsmith and Tacha voted in the affirmative, with Vice Chairman Gelacak voting against, and Chairman Conaboy abstaining. Failed 2-2-1.

Issue 9: This amendment addresses whether a diminished capacity departure is precluded if the defendant committed a “crime of violence” as defined in §4B1.2.

Motion made by Commissioner Goldsmith to adopt Option 3; seconded by Commissioner Tacha. Passed unanimously.

Revised Amendment 7(A):

This amendment addresses whether §5K2.0 should be amended to incorporate the principal holding and key analytical points from Koon v. United States.

Motion made by Commissioner Tacha to adopt; seconded by Commissioner Goldsmith. Passed unanimously.

Legislative Amendments

Amendment 9:Electronic Copyright Infringement

This amendment implements directives contained in the No Electronic Theft Act, Pub. L. No. 105-147.

This amendment was deferred until the April 23, 1998, business meeting.

Amendment 10:Property Offenses at National Cemeteries

This amendment implements the directive to the Commission in the Veterans’ Cemetery Protection Act of 1997.

Motion made by Commissioner Tacha to adopt; seconded by Commissioner Goldsmith. Passed unanimously.

Amendment 11:Prohibited Persons

This amendment responds to section 658 of the Treasury, Postal Service and General Government Appropriations Act, 1997, and addresses a proposed directive contained in juvenile justice legislation.

Motion made by Commissioner Tacha to adopt parts a and b of the proposed amendment, including the bracketed language in part b, and the revised proposed amendment pertaining to statutory references; seconded by Commissioner Goldsmith.

Motion made by Commissioner Goldsmith to table; seconded by Vice Chairman Gelacak. Chairman Conaboy, Vice Chairman Gelacak, and Commissioner Goldsmith voted in the affirmative, with Commissioner Tacha voting against. Motion to table carried.

Amendment 12:Conditions of Probation and Supervised Release

This amendment corrects omissions arising out of the 1996-97 reworking of the guidelines related to conditions of probation (§5B1.3) and supervised release (§5D1.3).

Motion made by Commissioner Tacha to adopt; seconded by Chairman Conaboy. Passed unanimously.

Amendment 6:Telemarketing Fraud

This amendment presents options for providing a telemarketing fraud enhancement.

Motion made by Commissioner Tacha to adopt Options 2 and 4, with bracketed language; seconded by Commissioner Goldsmith.

Motion made by Vice Chairman Gelacak to table; seconded by Commissioner Goldsmith. Motion to table carried.

Economic Crime Package

Chairman Conaboy moved for adoption of the proposed economic crime package; seconded by Commissioner Goldsmith. Commissioner Tacha stated for the record that she was not prepared to vote on the loss definitional issues until the definition was field-tested. Chairman Conaboy and Commissioner Goldsmith voted in the affirmative, with Vice Chairman Gelacak and Tacha voting against. Failed 2-2.

Motion made by Commissioner Tacha to adopt Option 2 of the proposed loss tables, adding a June 1, 1998, deadline for a loss definition submission, a September 15, 1998, deadline for field testing, and a provision for staff analysis of the appellate database of the loss definition; seconded by Commissioner Goldsmith. Commissioners Goldsmith and Tacha voted in the affirmative, with Vice Chairman Gelacak voting against, and Chairman Conaboy abstaining. Failed 2-1-1.

Motion made by Commissioner Tacha to adopt Option 3 of the proposed loss tables, adding a June 1, 1998, deadline for a loss definition submission, a September 15, 1998, deadline for field testing, and a provision for staff analysis of the appellate database of the loss definition; seconded by Commissioner Goldsmith. Commissioners Goldsmith and Tacha voted in the affirmative, with Vice Chairman Gelacak voting against, and Chairman Conaboy abstaining. Failed 2-1-1.

Sophisticated Concealment

Motion made by Commissioner Goldsmith to adopt Option 1, with the insertion in Application Note 19 of “especially” before “complex” and before “intricate”, and the proposed application note providing for application of both the more-than-minimal planning and sophisticated concealment enhancements; seconded by Commissioner Tacha. Commissioners Goldsmith and Tacha voted in the affirmative, with Vice Chairman Gelacak voting against, and Chairman Conaboy abstaining. Failed 2-1-1.

Motion made by Commissioner Tacha to adopt Option 1, with the insertion in Application Note 19 of “especially” before “complex” and before “intricate”; seconded by Commissioner Goldsmith. Passed unanimously.

Commissioner Tacha praised the Office of General Counsel for their “fabulous” work during this amendment cycle.

Chairman Conaboy announced that the next business meeting (via telephone) will be held April 23, 1998, and will include proposed amendments relating to electronic copyright infringement, telemarketing fraud, and prohibited persons.

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