Minutes from September 17, 1998

Minutes of the September 17, 1998,
United States Sentencing Commission
Business Meeting

The meeting was called to order at 1:17 p.m. by Chairman Richard P. Conaboy in the USSC Commissioners Conference Room. The following commissioners, staff, and members of the public participated:

Richard P. Conaboy, Chairman
Michael S. Gelacak, Vice Chairman
Michael Goldsmith, Commissioner
Deanell R. Tacha, Commissioner
Mary F. Harkenrider, Ex Officio Commissioner
Timothy B. McGrath, Interim Staff Director
John R. Steer, General Counsel
Donald A. Purdy, Chief Deputy General Counsel
Judith Sheon, Principal Drafter
Janeen Heaney, Assistant Drafter
Lou Reedt, Acting Director, Office of Policy Analysis
Kevin Blackwell, Senior Researcher
James Gibson, Attorney Advisor
Catherine Goodwin, Associate General Counsel, Administrative Office of the U.S. Courts
Tom Hutchison, Representative, Federal Public Defenders
Lyle Yurko, Representative, Practitioners’ Advisory Group
Fred Bennett, Representative, Practitioners’ Advisory Group

Motion made by Commissioner Goldsmith to adopt the minutes of the June 17, 1998, and August 17, 1998, business meetings. Seconded by Commissioner Tacha. Passed unanimously.

Interim Staff Director McGrath introduced and welcomed five new Commission employees: Keri Burchfield, Office of Policy Analysis; Mary C.W. Rushen, Office of Policy Analysis; Sharon Long, Visiting Assistant U.S. Attorney; Cynthia Matthews, Visiting Federal Public Defender; and Paul Fiorelli, Judicial Fellow.

Chairman Conaboy asked the commissioners to consider publishing for public comment various issues pertaining to new and pending legislation.

Commissioner Tacha moved to publish issues for comment pertaining to the Wireless Telephone Protection Act. This motion was seconded by Commissioner Goldsmith who submitted an additional paragraph for Commission approval. Commissioner Goldsmith’s amendment was accepted and the motion to publish for public comment passed unanimously.

Concerning issues addressing nuclear, biological, and chemical weapons offenses, Commissioner Goldsmith motioned to publish for public comment. Motion seconded by Commissioner Tacha. Passed unanimously.

Commissioner Tacha moved to publish for comment issues concerning tax offenses that implicate privacy interests. Commissioner Goldsmith seconded this motion. After discussion, the motion to publish for public comment passed with Chairman Conaboy, Commissioner Tacha and Commissioner Goldsmith voting for and Vice Chairman Gelacak voting against.

Chairman Conaboy directed the Commission to vote on several miscellaneous proposed changes to guideline commentary. He noted that these amendments do not require submission to the Congress since they modify only commentary to the guidelines.

Motion made by Commissioner Tacha to adopt an amendment to the commentary to §2J1.1 which will more clearly state how the section applies to the Deadbeat Parents Punishment Act. The motion was seconded by Commissioner Goldsmith. Passed unanimously.

Commissioner Goldsmith moved to adopt an amendment to the commentary of §2C1.4 which deletes a reference to misdemeanor offenses that are now felony offenses. Motion seconded by Commissioner Tacha. Passed unanimously.

Commissioner Tacha moved to adopt an amendment to the statutory index which will reference 18 U.S.C. § 924(j) to both the manslaughter and murder guidelines. Commissioner Goldsmith seconded the motion. Passed unanimously.

Commissioner Tacha moved to publish for public comment an issue concerning the guideline offense levels in §2C1.4 (Payment or Receipt of Unauthorized Compensation). This motion was seconded by Commissioner Goldsmith. Passed unanimously.

Commissioner Tacha moved to publish for public comment consideration of a new condition of probation and supervised release for sex offenders. Motion seconded by Commissioner Goldsmith. Passed unanimously.

Chairman Conaboy briefed the Commission on a conversation he had with Congressman Goodlatte in reference to the No Electronic Theft Act and specific directives to the Sentencing Commission. Chairman Conaboy stated that he will direct the Staff Director to convene a Policy Development Team to study electronic theft and fully advise the Commission in such a way that action can be taken at the earliest possible date.

Chairman Conaboy directed the Commission to consider several amendments pursuant to a congressional directive to substantially increase penalties for persons convicted of offenses in connection with the conduct of telemarketing fraud.

Motion was made by Commissioner Tacha to adopt an amendment that will provide for a mass marketing enhancement from 2 levels to 4 levels. Motion seconded by Commissioner Goldsmith. Pending further discussion, the motion was temporarily tabled.

Commissioner Tacha moved for adoption of an amendment to provide an enhancement if the offense involved sophisticated means of concealment. Goldsmith seconded the motion. Passed unanimously.

Commissioner Tacha moved for adoption of an enhancement to the vulnerable victim guideline if the number of vulnerable victims is “large.” Motion seconded by Goldsmith. Passed unanimously.

Chairman Conaboy directed the Commission to return to the motion that had been tabled. After a vote on Commissioner Tacha’s previous recommendation, the amendment did not pass. Commissioners Tacha and Goldsmith voted for and Chairman Conaboy and Vice Chairman Gelacak voted against.

Commissioner Tacha then moved to adopt a mass marketing enhancement that would provide for an sentencing increase from 2 levels to 3 levels. Seconded by Goldsmith. Motion did not pass, with Commissioners Tacha and Goldsmith voting for and Chairman Conaboy and Vice-Chairman Gelacak voting against.

Commissioner Tacha moved to adopt an enhancement with a specific reference to telemarketing that would increase the penalty by 4 levels. Seconded by Goldsmith. Motion did not pass, with Commissioners Tacha and Goldsmith voting for and Chairman Conaboy and Vice Chairman Gelacak voting against.

Commissioner Tacha then moved to adopt an enhancement with specific reference to telemarketing that would increase the penalty by 3 levels. Seconded by Goldsmith. Motion did not pass, with Commissioners Tacha and Goldsmith voting for and Chairman Conaboy and Vice Chairman Gelacak voting against.

Commissioner Tacha requested that the staff indicate that the Commission was clearly divided on the proposed telemarketing enhancements and that there exists no clear consensus on whether or not the Commission responded to the congressional directive to substantially increase penalties for telemarketing offenses. Vice Chairman Gelacak stated for the record that the Commission was not divided on all telemarketing issues, particularly in regard to providing enhancements targeted to the most culpable offenders.

Chief Deputy General Counsel Andy Purdy updated the Commission on the loss field test debriefing session which was held on September 16, 1998. He stated that the staff will compose a report to fully inform new commissioners on issues concerning the definition of loss and the results of the loss field test.

Lou Reedt, Acting Director of the Office of Policy Analysis, briefed the Commission on pending research topics to be presented at the November 1998 meeting of the American Society of Criminology. Previews of the following topics were provided: Trends in Offender Drug Use; Safety Valve; Certainty and Severity of Sentences after the Guidelines; Sentencing for Illegal Entry; Sentencing Decisions for Federal Economic Offenders; Race of Offenders and Appeal Decisions; and Non-citizens and the Diffusion of Methamphetamine in the United States.

In closing, Commissioner Goldsmith expressed his sincere appreciation to the staff and members of the public who have consistently participated in Commission meetings. He gave special thanks to Chairman Conaboy for establishing a tone of civility and collegiality at the Commission. Echoing Commissioner Goldsmith, Commissioner Tacha expressed similar sentiments and her appreciation to the Chairman.

Chairman Conaboy adjourned the meeting at 3:45 p.m.