Minutes from November 21, 2000

Minutes of the November 21, 2000
U.S. Sentencing Commission
Business Meeting

The meeting was called to order by Chair Diana E. Murphy at 1:04 p.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
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 October 30, 2000, business meeting. Seconded by Commissioner O’Neill. Passed unanimously.

Chair Murphy, reporting on the recent Commission activities, thanked staff for their hard work, particularly because the Commission has begun addressing additional congressional directives and its 15-year review of the sentencing guidelines (scheduled for October 2002 completion) while operating with an uncertain funding situation. She stated that Castillo and Steer and Deputy General Counsel Paula Desio participated in a program with the Ethics Officer Association (EOA) in New York. Commissioner Steer stated that the previous Commission had entered into a partnership with EOA to hold a series of regional programs featuring the organizational sentencing guidelines. Commissioner Castillo reported on his remarks to EOA at the New York program. He told the audience that, while the Commission likely would not address specific aspects or make changes to the Chapter Eight organizational sentencing guidelines in the current or next amendment cycle, he nonetheless encouraged the participants to begin giving the Commission feedback and information for future consideration and deliberation. Commissioner Castillo also commended Commissioner Steer’s and Deputy General Counsel Paula Desio’s participation and past efforts in working with the Ethics Officer Association.

Commissioner Kendall reported on his, Commissioner Johnson, and Office of Legislative Affairs Director Ken Cohen’s meeting with the Fifth Circuit Judges on November 13-14 in Austin, Texas regarding USSG §2L1.2 (Unlawful Entry or Remaining in the United States). He stated that the judges were concerned with the number of immigration cases in the southwest border region. Commissioner Kendall reported that they received input and recommendations on the proposed amendments, particularly on the sixteen level enhancement for aggravated felony. Chair Murphy said that the Commission plans to meet in South Dakota next spring to discuss sentencing issues for Native Americans.

Staff Director McGrath introduced Federal Public Defender Callie Steel (C.D. Ca.) on temporary assignment to the Commission, and Kate Holwill, who recently joined the Office of General Counsel as a law clerk. He stated that Paul Hofer, Kevin Blackwell, and Linda Maxfield presented papers at the American Society of Criminology meeting on November 15-18, 2000. Staff Director McGrath also reported that the next EOA/USSC Regional Conference will be held on June 21, 2001, in Columbus, Ohio.

Implementation of Emergency Amendment Regarding Enhanced Penalties for Amphetamine or Methamphetamine Laboratory Operators

This amendment addresses the directive in section 102 (the "substantial risk directive") of the Methamphetamine and Club Drug Anti-Proliferation Act of 2000, Pub. L. No. 106–878.

Motion made by Commissioner Castillo to publish the revised proposed amendment in the Federal Register to be effective December 16, 2000, and to give staff authority to make necessary clerical and technical changes. Seconded by Commissioner Kendall. Passed unanimously.

Safety Valve

This amendment proposes to delete the language in §2D1.1(b)(6) that limits application of the safety valve to defendants at offense levels 26 and greater. The proposed amendment also amends §5C1.2 (Limitation on Applicability on Statutory Minimum Sentences in Certain Cases) to require an offense level of 17 if the defendant otherwise was subject to a 5 year minimum.

Motion made by Commissioner Session to publish in the Federal Register for comment for sixty days the revised proposed amendment and an issue for comment regarding retroactivity; to request staff to do a retroactivity analysis, and to give staff authority to make clerical and technical changes. Seconded by Commissioner Steer. Passed unanimously.

Number of Firearms

This proposed amendment provides two options for implementing the recommendation of the Bureau of Alcohol, Tobacco and Firearms (ATF) to increase the penalties in §2K2.1 (Unlawful Receipt, Possession or Transportation of Firearms or Ammunition) for offenses involving more than 100 firearms.

Motion made by Commissioner Castillo to publish in the Federal Register the revised proposed amendment (Options 1 and 2) for comment for sixty days and to give staff authority to make clerical and technical changes. Seconded by Commissioner O’Neill. Commissioners Castillo and O’Neill then accepted Commissioner Steer’s friendly amendment to strikeout in Application Note 16 the term "substantially" and to redline the term "significantly". Passed unanimously.

Prior Felonies

This proposed amendment resolves a circuit conflict regarding whether a crime committed after the commission of the instant offense of felon in possession of a firearm, but sentenced before sentencing on the instant offense, is counted as a "felony conviction" for purposes of determining the base offense level.

Motion made by Commissioner Steer to publish in the Federal Register for comment for sixty days and to give staff authority to make clerical and technical changes. Seconded by Commissioner Sessions. Passed unanimously.

Prohibited Person Definition

This proposed amendment modifies the definition of "prohibited person" in §§2K1.3 (Unlawful Receipt, Possession, or Transportation of Explosive Materials; Prohibited Transactions Involving Explosive Materials) and 2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition) to refer to the relevant prohibited persons statutes for explosive and firearm offenses, respectively.

Motion made by Commissioner O’Neill to publish in the Federal Register for comment for sixty days the revised proposed amendment and an issue for comment regarding retroactivity, and to request staff to do a retroactivity analysis, and to give staff authority to make clerical and technical changes. Seconded by Commissioner Steer. Passed unanimously.

Circuit Conflicts

Acting General Counsel Purdy requested that the Commission vote to publish an issue for comment regarding retroactivity of the four circuit conflicts which the Commission voted to publish at the October 30th meeting. These circuit conflicts related to aggravated assault, mitigating role, stipulations, and fraudulent representation.

Motion made by Commissioner O’Neill to publish in the Federal Register an issue for comment as well as to request staff to do a retroactivity analysis. Seconded by Commissioner Kendall Passed unanimously.

Chair Murphy adjourned the meeting into executive session at 1:44 p.m.