Minutes from January 9, 2001

Minutes of the January 9, 2001,
United States Sentencing Commission
Business Meeting

Chair Diana E. Murphy called the meeting to order at 12:59 p.m. on Tuesday, January 9, 2001. The meeting was held via video-teleconference between Fort Myers, Florida, and the Commission Conference Room in Washington, D.C. Members of the commission and staff were in Florida for the meeting of the Criminal Law Committee for the United States Judicial Conference.

The following commissioners, and staff, participated from Fort Meyers, Florida:

Diana E. Murphy, Chair
Ruben Castillo, Vice Chair
William K. Sessions, III, Vice Chair
John R. Steer, Vice Chair
Sterling Johnson, Jr., Commissioner
Joe Kendall, Commissioner
Timothy McGrath, Staff Director
A. Donald Purdy, Acting General Counsel
Pamela Montgomery, Director and Chief Counsel, Office of Education & Sentencing Practice
Jonathan Wroblewski, Representative, Department of Justice

The following commissioner and staff participated from Washington, D.C.:

Michael E. O'Neill, Commissioner
Kenneth Cohen, Director, Office of Legislative & Governmental Affairs
Paula Desio, Deputy General Counsel
Lou Reedt, Acting Director, Office of Policy Analysis
Judith Sheon, Director, Office of Special Counsel

Chair Murphy began by welcoming those present in Washington, D.C. and members of the Criminal Law Committee in Fort Meyers, Florida.

Chair Murphy then called on A. Donald Purdy to clarify several technical points before addressing whether to publish proposed amendments for public comment. Purdy stated that while Rule 3.2 of the of the Commission's Rules of Practice and Procedure states that, to the extent practicable, the Chair shall issue public notice of any public meeting at least seven days prior to the date of the meeting, Rule 1.2(b) provides that the Commission may temporarily suspend any rule by affirmative majority vote in any public meeting.

Purdy recommended that the Commission waive Rule 3.2, specifically regarding seven days notice prior to seeking comment, in order to seek public comment, for a period of 60 days from the date of publication in the Federal Register,for any guidelines that may be lowered by virtue of amendments and whether they should be made retroactive. Further, the Commission will seek public comment, to be submitted on or before February 5, 2001, on proposed emergency drug amendments because the Commission will consider promulgating the emergency drug amendments at the February meeting. Purdy also recommended that the Commission move to authorize the staff to perform an impact analysis with respect to guideline amendments and to make any technical changes with respect to emergency drug amendments.

Motion made by Vice Chair Steer to waive Rule 3.2 in order to seek public comment and to authorize the staff to perform the retroactivity analysis and make technical changes to the proposed amendment language. Seconded by Vice Chair Sessions. The motion carried unanimously.

Chair Murphy stated that the January 9th meeting would be the last at which the Commission issues notices of publication. She also reminded attendees that the Commission will hold a public hearing on March 19, 2001.

Issues for Comment

Proposed Amendment: Trafficking in List I Chemicals

This proposed amendment addresses the three-part directive in section 3561 of the Methamphetamine Anti-Proliferation Act of 2000, Pub. L. 106-310, regarding enhanced punishment for trafficking in List I chemicals. That section requires the Commission to promulgate an amendment implementing the directive under emergency amendment authority.

Motion made by Vice Chair Castillo to publish in the Federal Register issues for comment regarding proposed emergency and permanent amendments for trafficking in List I chemicals, specifically requesting comment on whether the proposed penalty structure for §2D1.11 should be changed to increase penalties for Benzaldehyde, Hydriodic Acid, Methylamine, Nitroethane and Norseudoephredine in the chemical quantity table, and, if so, by how much. Comment on emergency amendments should be received on or before February 5, 2001; comment on proposed permanent amendments should be received within sixty days from the date of publication in the Federal Register. Motion seconded by Vice Chair Sessions.

Jonathan Wroblewski discussed the fact that the Commission did consider publishing an issue for comment regarding GHB and the chemicals associated with GHB and that, according to his understanding, the Commission decided to put that consideration off until next year as well as consideration of addressing schedule 1 and 2 offenses.

Chair Murphy thanked him for mentioning this and stated that the Commission has expressed an interest in having experts on drugs talk to the Commission about these issues. Additionally, Chair Murphy confirmed consideration of these issues will continue beyond the current amendment cycle.

Vice Chair Steer clarified that the motion immediately before the Commission was limited to List I chemicals.

Motion passed unanimously.

Proposed Amendment: GHB

This proposed amendment implements the Hillory J. Farias and Samantha Reid Date-Rape Drug Prohibition Act of 2000, Pub. L. 106-172, which provided the emergency scheduling of gamma hydroxybutryic acid ("GHB") as a Schedule I controlled substance under the Controlled Substances Act when the drug is used illicitly. The proposed amendment also adds gamma butyrolactone ("GBL") and iodine to the Chemical Quantity Table in response to recent classifications as List II chemicals.

Motion made by Vice Chair Steer to publish in the Federal Register issues for comment on proposed permanent amendments regarding GHB, GBL, and iodine. Comment should be received within sixty days from the date of publication in the Federal Register. Motion seconded by Vice Chair Castillo. Passed unanimously.

Proposed Amendment: Sexual Predators

This proposed amendment is a three-part amendment that includes: A) amendments to implement the "pattern of activity" directive in the Protection of Children from Sexual Predators Act of 1998, Pub. L. 105-314 (the "Act"), and related amendments; B) amendments related to grouping certain child pornography counts of conviction; and C) amendments to implement the directive in the Act to provide an enhancement for transportation offenses under chapter 117 of title 18, United States Code, and other related amendments.

Motion made by Vice Chair Steer to publish in the Federal Register issues regarding proposed amendments to sexual predator guidelines for public comment. Comment should be received within received sixty days from the date of publication in the Federal Register. Seconded by Vice Chair Castillo.

Vice Chair Sessions raised an objection to the proposed language which adds "Sexual Predator Determination," stating that he believed this would place federal judges in the position of determining whether a defendant is a sexual predator based on totality of the circumstances, by preponderance of the evidence. Jonathan Wroblewski stated that the Department of Justice shared similar concerns. Chair Murphy highlighted the fact that the Commission is seeking public comment on the sexual predator issue in order to receive feedback; this was not to promulgate an amendment. The motion to publish for comment passed unanimously.

Proposed Amendments: Economic Crime Package

The proposed Economic Crime Package consists of six parts. Part A is a proposal to consolidate the theft, property destruction and fraud guidelines. Part B contains three options for the loss table for the consolidated guideline and two options for a revised loss table in §2T4.1 (Tax Table). Part C contains two proposals to amend the definition of loss for the consolidated guideline. Part D proposes necessary changes to several guidelines which refer to the loss tables in either §2B1.1 (Larceny, Embezzlement, and Other Forms of Theft) or §2F1.1 (Fraud and Deceit) if the Commission were to adopt one of the proposed new loss tables. Part E contains the technical and conforming amendments to the guidelines that would be necessary as a result of the theft and fraud consolidation. Part F contains a proposal to resolve a circuit split regarding the computation of tax loss in §2T1.1.

Motion made by Vice Chair Steer to publish in the Federal Register issues for comment concerning the consolidation of the fraud, theft, and property destruction guidelines; what conforming changes should be made to 2X1.1 to ensure similar treatment for similar offense conduct not subject to the revised consolidated guideline; whether the sophisticated concealment enhancement in §2T1.1(B)(2) and §2T1.4(b)(2) should be revised to conform to the sophisticated means enhancement in §2F1.1(b)(6)(C), including imposition of an interim offense level of 12; and whether, and if so, to what extent to provide an enhancement to the destruction of or damage to unique or irreplaceable items of cultural heritage, archeological or historical significance. Motion seconded by Vice Chair Castillo. Vice Chair Castillo also thanked the Criminal Law Committee for their assistance. Comment should be received within sixty days from the date of publication in the Federal Register. Motion carried unanimously.

Motion made by Vice Chair Sessions to publish in the Federal Register issues for public comment concerning two options on aggravating and mitigating factors for fraud, proposed amendments to the sentencing table which will expand zones B and C of the sentencing table by two levels each; and a proposed amendment alternative to the sentencing table that provides for decreases in certain instances. Comment should be received within sixty days from the date of publication in the Federal Register. Motion seconded by Vice Chair Castillo.

Prior to the roll-call vote, there was discussion over whether or not to publish these issues:

Vice Chair Castillo spoke to recognize that the work that has been done with regard to the proposed amendment options has been ongoing for a significant period of time; commending Judge Sessions, in particular, for his work on the proposed economic crime package. Vice Chair Castillo stated that he views the options as part of a comprehensive economic crimes package. He further stated that the Commission is working to bring justice to both the lower level offenses as well increase penalties for the higher level offenses appropriately while allowing for a certain amount of judicial discretion. Vice Chair Castillo stated that he supports publishing the issues in order to start a more comprehensive dialog with the general public with regard to these issues.

Vice Chair Steer stated that he will oppose publishing the issues under motion, listing three specific reasons for his opposition. First, he opposes option one of the aggravating and mitigating factors because he continues to believe that the proposal as drafted does not comply with the appellate review statute, or the so-called 25% rule, which requires that a unique guideline range be determined for each category of offense and offender which does not exceed twenty-five percent, or six months, whichever is greater. Second, Vice Chair Steer stated that with respect to the two options on the sentencing table, including the one he drafted as a narrower alternative, he opposes publishing at this juncture in the amendment cycle for procedural reasons. Both proposals are expected to have momentous impact, cutting far more broadly than economic crimes alone, and it does not serve well for this agency's process of rule making to raise such major proposals on their own initiative this late in the amendment cycle. Finally, Vice Chair Steer stated that modifying the table in this way will send the wrong signal and may jeopardize the work that has been done. Publication and eventual adoption of these amendments would nullify what the Commission seeks to accomplish with the economic crime package. Vice Chair Steer concluded by stating that his preference is that this work be held for the next amendment cycle.

Vice Chair Sessions stated that, with regard to the aggravating and mitigating factors, the Commission was recently called to address the Senate about the increase in the frequency of downward departures. He stated that the departure rate has continued to grow. That with this growing number of departures, he feels that the best way to stem this trend is to provide some discretion and directives for judges so that they will not feel the necessity of departing from the guidelines. By using the proposed table, judges will feel that they can provide justice within the guidelines without the need for departure. Vice Chair Sessions also stated that with regard to the sentencing table, he would be interested to see how people respond to the proposal because, from his experience, many judges tend to depart when faced with situations involving first-time offenders who are just above the zone and face significant time. Thus, if the zone is expanded there will be fewer departures.

Jonathan Wroblewski stated that the Department of Justice will work with the Commission on these issues over the next several months. He said that they also share some initial concerns with regard to the proposals. Wroblewski said that the Department of Justice has supported in the past, and continues to support, sentence reductions for certain low-level white collar offenders where appropriate, but the proposed table may affect many other offenses beyond white collar crime. The proposal will change the threshold at which confinement is required. This alone will cause concern for the Department.

Chair Murphy stated that she plans to vote for the motion because some of the commissioners feel very strongly about getting the proposal out to the world in order to receive feedback. Chair Murphy said that if the motion passes, it would be the Commission's intention to have an explanatory note indicating that it is seeking feedback to begin a dialog. Vice Chair Castillo stated that he thinks the record will bear out that, early on, this Commission indicated that criminal history is something they planned to take under consideration. He stated that while he agrees that the notice might not have been as precise as desired, the Commission wants to start a constructive dialog and looks forward to getting input from the Criminal Law Committee, Department of Justice, and all other interested people.

After the discussion, the motion passed 6-1, with Vice Chair Steer voting no.

Motion made by Commissioner Johnson to publish in the Federal Register an issue for comment regarding whether, in connection with the two options that were voted for publication, one or more of the specific offense characteristics in §§2B1.1, 2F1.1, and possibly even 2B1.3 should be taken out of the specific offense characteristic category and placed into flexibility options one or two. Comment should be received within sixty days from the date of publication in the Federal Register. Motion seconded by Vice Chair Sessions. Passed unanimously.

Proposed Amendments: Immigration

This amendment modifies §2L1.2(b)(1) (Unlawful Entering or Remaining in the United States) to provide more graduated sentencing enhancements based on the seriousness of the prior aggravated felony conviction. The proposed amendment is intended to achieve more proportionate punishment by providing tiered sentencing enhancements based on the period of imprisonment the defendant actually served for the prior aggravated felony.

Chair Murphy recognized the valuable feedback the Commission has received from judges in the southwest border areas about their heavy caseload and related immigration guideline issues. She further stated that this proposal addresses those concerns.

Motion made by Vice Chair Castillo to publish in the Federal Register the proposed amendment and two issues for comment regarding proposed immigration amendments. First, the Commission invites comment on whether the enhancement in §2L1.2(b)(1) for a previous conviction for an aggravated felony should be graduated based on a factor other than, or in addition to, the period of imprisonment the defendant actually served on the type of aggravated felony. Second, the Commission invites comment on whether the enhancement in §2L1.2(b)(1) for a previous conviction for an aggravated felony should take into consideration only aggravated felonies that were committed within a specified time period, e.g., fifteen years.

Motion seconded by Commissioner Kendall. Comment should be received within sixty days of publication in the Federal Register. Commissioner Castillo discussed the fact that the proposed immigration amendments reflect the unanimous determination that the immigration guideline needs to be amended. Motion passed unanimously.

Proposed Amendment: Miscellaneous New Legislation and Technical Amendments

This is a two-part proposed amendment. First, the amendment addresses miscellaneous legislation enacted during the 106th Congress by (1) adding to the Appendix A (Statutory Index) and the statutory provisions of several guidelines references to new statutes; and (2) providing commentary to §2M3.9 that implements the new consecutive sentencing requirement of 50 U.S.C. § 421 (pertaining to the disclosure of information identifying a covert agent). Second, the proposed amendment makes technical and conforming changes as follows: (1) modifies Application Note 3 of the Commentary to §2J1.6 to improve the transition between the first and second paragraphs; (2) adds a reference to 18 U.S.C. § 842(l)-(o) to the Commentary of §2K1.3; and (3) adds a reference to 7 U.S.C. § 6810 to the Commentary of §2N2.1.

Motion made by Vice Chair Steer to publish for comment in the Federal Register issues regarding miscellaneous new legislation and technical amendments. Motion seconded by Vice Chair Sessions. Passed unanimously.

Issue for Comment: Nuclear, Biological, and Chemical Weapons

Motion made by Vice Chair Steer to publish in the Federal Register issues for comment regarding whether attempts, conspiracies, and solicitations to commit nuclear, biological, and chemical weapon offenses should be covered under the proposed new guideline, §2M6.1, or whether they should be covered under §2X1.1. Comment should be received within sixty days from publication in the Federal Register. Motion seconded by Commissioner Johnson. Passed unanimously.

Chair Murphy concluded the meeting by thanking staff, especially Judy Sheon, Janeen Gaffney, Jeanne Gabriel, Lou Reedt, Kenneth Cohen, Paula Desio, and Andy Purdy for their work in preparing proposed amendments and issues for comment. Chair Murphy also thanked Jonathan Wroblewski for his participation and assistance during this interim period. She adjourned the meeting at 1:54 p.m.

United States Sentencing Commission