Minutes from August 8, 2000

Minutes of the August 8, 2000,
United States Sentencing Commission
Business Meeting

The meeting was called to order by Chair Diana E. Murphy at 10:06 a.m. in the Commissioners' Conference room. The following commissioners and staff participated:

Diana E. Murphy, Chair
Ruben Castillo, Vice Chair
William Sessions, Vice Chair
John R. Steer, Vice Chair
Sterling Johnson, Jr., Commissioner
Joe Kendall, Commissioner
Michael O’Neill, Commissioner
Laird C. Kirkpatrick, Ex Officio Commissioner
Timothy McGrath, Staff Director
A. Donald Purdy, Acting General Counsel

Motion made by Commissioner Castillo to approve the minutes of the April 20, 2000, business meeting; seconded by Commissioner Johnson. Passed unanimously.

Chair Murphy reported on a number of events the commissioners had participated in since the last Commission meeting. She mentioned the commissioners' retreat where they assessed the recently concluded amendment cycle, as well as discussed upcoming priorities, and meetings with the Criminal Law Committee, Practitioners' Advisory Group, Federal Public Defenders, and Probations Officers Advisory Group. Chair Murphy reported on upcoming conferences, including the Sentencing Institute Symposium in September and the Economic Crimes Symposium in October 2000. Additionally, Chair Murphy mentioned that based on feedback received from the judiciary, the judges would now be receiving amendment notices through the JNET in addition to the Commission's website and the Federal Register.

Staff Director McGrath reported that Deon Haynes has been named the Acting Director of Monitoring, Vanessa Locke has joined the Office of the General Counsel, and Jennifer Siegel has been selected as the new judicial fellow. He also introduced recently-hired personnel, including Theresa Cooney and Alice Englehart in the Office of the General Counsel, Lawanda Jackson and Patrick Smith in the Office of Policy Analysis, and Tony Wright, Daniela Fairbairn, Derrick Washington, and Susan Fiechtner in the Office of Administration. Staff Director McGrath thanked Aimee Clifford for her contributions as the Commission's Judicial Fellow and stated that Clifford had received the Justice Clark Fellow award.

Acting General Counsel Purdy thanked AUSA Greg Anderson, who was on detail to the Commission, and law clerks Todd Heflin and Jennifer Gartner for their contributions to the Commission's work.

Retroactivity

Amendment 1: Protected Locations and Protected Individuals

This amendment addresses a circuit conflict regarding whether the enhanced penalties in §2D1.2 apply only in a case in which the defendant was convicted of an offense referenced to that guideline or alternatively, in any case in which the defendant's relevant conduct included drug sales in a protected location or involved a protected individual.

Motion made by Commissioner Kendall to make amendment #1 retroactive; seconded by Commissioner Castillo. Commissioners Castillo, Johnson, Kendall, Murphy, O'Neill, and Session voted in the affirmative, with Commissioner Steer voting against. Passed, 6-1.

Amendment 7: Bankruptcy Fraud

The amendment addresses the circuit conflict regarding whether the enhancement in §2F1.1 for "violation of any judicial or administrative order, injunction, decree, or process" applies to false statements made during bankruptcy proceedings.

Motion made by Commissioner Kendall not to make amendment #7 retroactive; seconded by Commissioner Sessions. Passed unanimously.

Amendment 8: Offenses Relating to Firearms

This amendment revises §§2K2.4 to clarify how the minimum, consecutive terms of imprisonment mandated by the statutes indexed to this guideline should be treated for purposes of guideline application.

Motion made by Commissioner Steer not to make amendment #8 retroactive; seconded by Commissioner Kendall. Passed unanimously.

Amendment 9: USSG §2K2.4 and Weapon Enhancements for Underlying Offense

This amendment clarifies under what circumstances defendants sentenced for violations of 18 U.S.C. § 924(c) in conjunction with convictions for other offenses may receive weapon enhancements contained in the guidelines for those other offenses.

Motion made by Commissioner Sessions to make amendment #9 retroactive; seconded by Commissioner Castillo. Passed unanimously.

Amendment 10: Career Offenders and Offenses Relating to Firearms

The amendment revises §2K2.4 and 4B1.2 to clarify guideline application for offenders convicted under 18 U.S.C. §§ 924(c) and 929(a) who might also qualify as career offenders under the rules and definitions provide in §4B1.1 and 4B1.2.

The sense of the Commission was to defer consideration.

Amendment 15: This amendment corrects a typographical error in the Chemical Quantity Table in §2D1.11 (Unlawfully Distributing, Importing, Exporting, or Possessing a Listed Chemical) regarding certain quantities of Isosafrole and Safrole by changing those quantities from grams to kilograms.

Motion made by Commissioner Steer to make retroactive for List 1 Chemicals Isosafrole and Safrole at levels 12 and 14; seconded by Commissioner Castillo. Passed unanimously.

Motion made by Commissioner Steer to give staff authority to insert the appropriate amendment numbers in §1B1.10; seconded by Commissioner O'Neill. Passed unanimously.

Vice Chair Sessions highlighted policy priorities for the amendment cycle ending May 1, 2001. These priorities include an economic crimes package, money laundering, counterfeiting, sexual predators, firearms, nuclear, chemical, and biological weapons, criminal history, "safety -valve," as well as any enacted crime legislation.

Vice Chair Steer highlighted circuit conflicts deemed priorities for this amendment cycle. These include circuit conflicts relating to defendant admissions, aggravated assault, the use of a dangerous weapon, calculations of interest and intended loss amounts, and grouping fraud money laundering offenses.

Vice Chair Castillo articulated the criteria used for addressing circuit conflicts. He stated that the criteria include potential defendant impact, potential impact on unwarranted sentencing disparity, as well as more traditional types of considerations such as the ease of resolution and the variation in court holdings.

Motion made by Commissioner Castillo to adjourn; seconded by Commissioner Sessions. Passed unanimously.

The meeting was adjourned at 11:15 a.m.