Minutes from February 13, 2001

Minutes of the February 13, 2001
United States Sentencing Commission
Business Meeting

Chair Murphy called the meeting to order at 2:05 p.m. in the Commissioners Conference room.

The following Commissioners and staff participated in the meeting:

Diana E. Murphy, Chair
Ruben Castillo, Vice Chair
William Sessions, Vice Chair
John R. Steer, Vice Chair
Joe Kendall, Commissioner
Michael E. O'Neill, Commissioner
Michael Horowitz, Commissioner Ex-Officio
Tim McGrath, Staff Director
Donald Purdy, Chief Deputy General Counsel
Charles Tetzlaff, General Counsel
Judith Sheon, Special Counsel
Commissioner Sterling Johnson participated via teleconference.

Chair Murphy started the meeting by stating that this year the Commission has a very full agenda. The Commission set the schedule in order to vote on some issues in addition to the emergency amendment authority areas at this meeting where the Commission has the benefit of public comment and other background materials. Chair Murphy reminded those present that the Commission will hold its annual Public Hearing on March 19, 2001.

Chair Murphy stated that there is a new member of the Commission. The Commission's former Department of Justice representative and ex-officio commissioner, Laird Kirkpatrick, left the Department of Justice and has returned to academia. Chair Murphy then welcomed Michael Horowitz as the Commission's new ex-officio commissioner, representing the Department of Justice. Michael Horowitz is the Chief of Staff for the Criminal Division. He is also a former prosecutor from the Southern District of New York. Chair Murphy stated that with the new administration, this is a time of transition. The new attorney general has been installed, and some other appointments have been made, but this transition will obviously impact the Commission, especially depending on who is head of the Criminal Division.

Chair Murphy stated that the Commission is working on its fifteen-year study of the guidelines. Some of the literature has been gathered by staff; underlying that, the Commission is discussing a possible survey instruments for judges. She stated that, with the Commission's full agenda, it is difficult to find the staff time to get everything in place for the fifteen study. Chair Murphy thanked Commissioner O'Neill for taking the lead on this effort.

Vice Chair Steer stated that he had two corrections to the minutes of the January 9, 2001, Business Meeting. He moved to insert, in the second line of page 5, the words "appellate review" before the word "statute"; strike the comma after "or;" and strike the words "in appellate review" later in that line. It should read: "with the appellate review statute, or the so-called 25 percent rule which requires that . . .." Vice Chair Steer moved to insert a succinct summary of the proposed immigration amendment on page six. He also moved to insert "the proposed amendment and" before "two issues for comment" in the second paragraph of page six.

Motion made by Vice Chair Steer to adopt the January 9, 2001, minutes as corrected. Seconded by Vice Chair Castillo. Passed unanimously.

Vice Chair Castillo clarified that the Commission was also adopting the minutes from the December 12, 2000 Business Meeting. Passed unanimously.

The Commission then turned to consideration of proposed emergency amendments.

Emergency Amendment 1: List I Chemicals

This proposed amendment addresses the three-part directive in section 3651 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.

Donald Purdy suggested that the Commission defer consideration on publication of the proposed emergency amendment for List I chemicals until the next meeting. This suggestion was based on a question about List I chemicals that Tom Hutchinson, representative of the Federal Public and Community Defenders, raised immediately prior to the public meeting. The question concerned a 1990 Drug Enforcement Administration letter which reported that the theoretical yield for creating meth actual from ephedrine is not 100 percent equivalent, but .92. Tom Hutchinson suggested that the Commission use 50 percent of .92 for equivalency determinations, rather than 50 percent of 100 percent as in the pending proposed amendment; this may have the effect of lowering the penalty by up to two levels.

Chair Murphy stated that the Commission has four areas in which it received emergency amendment authority from Congress, one of which was List I chemicals. She stated that, given the question raised by Tom Hutchinson, it is prudent to wait for confirmation from the DEA before proceeding with the proposal for List I chemicals.

Emergency Amendment 2: Amphetamine

This revised proposed emergency amendment implements the directive in the Methamphetamine Anti-Proliferation Act of 2000, section 3611 of Pub. L. 106-310, which directs the Commission to provide, under emergency amendment authority, increased guideline penalties for amphetamine such that those penalties are comparable to the base offense level for methamphetamine. This emergency amendment will become effective May 1, 2001.

Motion made by Commissioner Kendall to approve the amendment as suggested. Seconded by Vice Chair Steer. Passed unanimously, with the votes of six members. Commissioner Johnson did not participate in the vote as he had not yet joined the meeting by teleconference.

Emergency Amendment 3: Ecstasy

This proposed amendment addresses the directive in the Ecstasy Anti-Proliferation Act of 2000, section 3664 of Pub. L. 106-310, which instructs the Commission to provide, under emergency amendment authority, increased penalties for the manufacture, importation, exportation, or trafficking of Ecstasy. The directive specifically requires the Commission to increase the base offense level for 3,4-methylenedioxy methamphetamine (MDMA), 3,4-methylenedioxy amphetamine (MDA), 3,4-methlenedioxy-N-ethylamphetamine (MDEA), paramethoxymethamphetamine (PMA), and other controlled substance that is marketed as Ecstasy and that has either a chemical structure similar to MDMA or an effect on the central nervous system substantially similar to or greater than MDMA.

Chair Murphy stated that the MDMA topic has generated a lot of interest on the part of the Commission and others. The Commission has had the opportunity to hear from pharmacological experts, case agents, and others familiar with its properties.

Donald Purdy suggested that before the Commission addressed the proposed amendment for MDMA, the Commission approve a technical housekeeping motion: that with each of these emergency amendments, the effective date is May 1, 2001, and that staff be authorized to make any technical and conforming amendments that may be necessary.

Commissioner O'Neill moved to approve the effective date and staff authorization to make necessary changes. Seconded by Vice Chair Castillo. Passed unanimously.

Donald Purdy then stated that the ecstasy amendment was the source of considerable public comment, including comment that was recently received from the National Association of Criminal Defense Lawyers (NACDL). The Commission considered various options, but the proposed amendment currently before the commission sets the five year mandatory minimum penalty at the 200 gram mark, which is between the 100 gram amount for heroin and the 500 gram amount for powder cocaine.

Chair Murphy stated that the Commission discussed this issue at length and that there was concern about equating the penalty level for ecstasy with heroin because of the difference in properties, use, and distribution. Congress did indicate that the penalty should be increased. Chair Murphy stated that the Commission has consistently thought that the mandatory minimum drug laws are inconsistent with the sentencing guidelines system as a whole. There are a few areas where Congress has given the Commission discretion and has not imposed mandatory minimums. The Commission realized that there was a desire on the part of Congress to increase the penalties for ecstasy. The proposal was published with an equivalency of heroin, but as the Commission further investigated and deliberated the penalty for ecstasy, it was determined that this was not a perfect fit. Thus, the Commission set the penalty to fall between that for heroin and powder cocaine.

Commissioner Kendall expressed concern about the Commission voting on the emergency ecstasy amendment at this juncture because the National Association of Criminal Defense Lawyers (NACDL) submitted a written request to be heard on this issue, and present expert testimony. Even though the letter was just received, Commissioner Kendall stated that he was concerned that the Commission might be subject to criticism if they voted on the proposed amendment before hearing from the NACDL when the group has such a great interest in the matter.

Motion made by Commissioner Kendall to delay voting on the proposed emergency ecstasy amendment until March 20, 2001. Seconded by Vice Chair Sessions. Michael Horowitz asked if the amendment could still be made effective on May 1, 2001. Donald Purdy confirmed that the amendment could take effect on that date, even with the delay.

Vice Chair Steer stated that he was somewhat reluctant to postpone the vote based on a letter received so belatedly. NACDL is one of several representatives of the defense bar, and the Commission has received input from the others. He stated that NACDL has not offered any information other than a summary of what their views would be. Further, this is not finalization of the amendment, it is proposing an emergency amendment that would last for a short period of time and the Commission, if persuaded by information that might be presented at the March hearing, could change the contours of the permanent amendment. Vice Chair Steer stated that it may be infrequent that the Commission backs off the penalties, but they do change somewhat the contours of the amendment going from emergency to permanent. In conclusion, Vice Chair Steer stated that he was reluctant to refrain from acting solely on the basis of the NACDL's letter.

Vice Chair Castillo spoke up in favor of deferring action. He stated that it is appropriate, given the effective date the Commission is proposing, to receive as much input as possible. Vice Chair Castillo stated that he believes that the decision the Commission has come up with is an appropriate decision based on the information they have now. Further, he stated that he hopes that whoever addresses this issue, be it the NACDL or anyone else, keeps in mind that the current decision, tentative as it is, is not to equate ecstasy with heroin or with powder cocaine. Vice Chair Castillo indicated that ecstasy is a unique drug that must be treated uniquely. He also stated that the Commission has received a lot of public comment that basically takes on Congress's determination that there should be an increase at all. He stated that he does not think it is appropriate for this Commission to question a Congressional decision; the opportunity to do that was before Congress. He stated that there is no question that there will be an increase in penalties for ecstasy, but the question is what that increase might be.

Vice Chair Sessions also spoke in favor of deferring the issue. He stated that the decision that the Commission might have made at the meeting was after great reflection and after having heard a substantial amount of evidence. Deferring, however, will at least afford another important constituent to provide additional evidence. Vice Chair Sessions expressed real concern about the Commission getting through the agenda.

Chair Murphy stated that she was not opposed to the motion, but pointed out that the Commission has taken on a huge workload in combination with the workload that has come from Congress. Chair Murphy expressed concern that if this motion passes, it may send the wrong message because all of the testimony at the public hearing will have to be very focused and condensed because there is not enough time for the Commission to hear from everyone that it would like to. That is why the Commission asks for written public comment; this is the most efficient way for the Commission to receive the information.

Vice Chair Steer pointed out the record on the substance of the proposal. The Commission, in light of the information that it received from experts during the briefing sessions, modified the proposal from the way it was published. The penalty is no longer set as an equivalent to heroin, but has been changed so that it is a somewhat lesser punishment than heroin, but still between cocaine and methamphetamine.

Commissioner O'Neill stated that although he is very reluctant to defer action under these circumstances, it is important that the Commission be respectful of Congress and recognize the fact that Congress does intend that the Commission raise penalties for ecstasy. The difficulty is in determining how much to raise these penalties. Commissioner O'Neill stated that in light of previous discussion and the presentation from the DEA, he will vote to defer simply because there are still some unsettled issues. Commissioner O'Neill stated that he would appreciate more information on what is still disputed science. Further, he suggested structuring future meetings, especially when the DEA testifies, to bring in other experts so that the Commission could better weigh the merits of the various sciences being presented.

The motion to defer voting on the proposed amendment increasing ecstasy penalties carried with Vice Chair Steer voting no.

Emergency Amendment 4: Human Trafficking

This revised emergency amendment implements the directive found at section 112(b) of the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386. The Commission is directed to "take all appropriate measures to ensure that these sentencing guidelines . . . are sufficiently stringent to deter and adequately reflect the heinous nature of these offenses." The Commission is also directed to "consider providing sentencing enhancements" in cases which involve: (A) a large number of victims; (B) a pattern of continued and flagrant violations; (C) the use or threatened use of a dangerous weapon; or (D) the death or bodily injury of any person. To address this multi-faceted directive, this revised amendment makes changes to several existing guidelines and creates a new guideline for criminal violations of the Migrant and Seasonal Agricultural Worker Protection Act.

Chair Murphy stated that this is an area of great concern to Congress. The Commission recognizes the seriousness of the offenses and social problems, some of increasing magnitude.

Donald Purdy suggested that both with respect to this emergency amendment and those that have been deferred, that the Commission encourage those who wish to comment to address not only the emergency amendment but also what the permanent amendment might look like. He stated that the Commission, in responding to emergency directives, has less flexibility because of the scope of the emergency authority. For those who are interested in testifying, they should consider whether the permanent amendment should be different from the emergency amendment.

Vice Chair Castillo moved to implement the revised emergency amendment, effective May 1, 2001. Seconded by Vice Chair Sessions.

Michael Horowitz noted that in terms of the guideline as it now exists, one of the concerns that he raised is inadequate offense levels and adjustments in the specific offense characteristics based on age of the victim. This emergency amendment guideline attempts to address that issue but there is concern that altering §2G1.1 might impact other guidelines. He stated that the Justice Department would want to see, by the next amendment cycle, an evaluation of all other guidelines affected, and a coherent and comprehensive scheme for addressing this problem.

The motion to implement the revised emergency amendment passed unanimously.

The Commission then turned to consideration of several permanent amendments. Chair Murphy stated that, in connection with theses amendments, the Commission considered possible retroactivity, but she did not believe there would be any motion to make the amendments retroactive.

Permanent Amendment 1: Counterfeiting

This revised proposed amendment (1) adds a two-level enhancement for manufacturing, in addition tot he "floor" offense level if 15 for manufacturing; (2) adds, alternatively to the two-level enhancement for manufacturing, a two-level enhancement if the offense involved possession or control of counterfeiting paper or other counterfeiting features and devices that are similar to counterfeiting deterrence papers, features, and devices adopted by the Secretary of the Treasury; and (3) proposes to delete commentary that suggests that the manufacturing adjustment does not apply if the defendant "merely photocopies".

Chair Murphy stated that the counterfeiting proposal was changed from the one that was sent out for comment, based in part on comment from the Department of the Treasury.

Michael Horowitz stated that the Department of Treasury sought a slight wording change. He stated that §2B5.1(B)(2)(ii) uses the words "essentially identical" and §2B5.1(B)(i) uses the word "similar." For consistency, the Treasury would prefer "similar" in both sections.

Judith Sheon stated that the wording was different because the proposal attempted to track the statutory elements in 18 U.S.C. § 474A. After a brief discussion, a representative from the Treasury stated that though they preferred the word "similar" they understood the source of the language.

Chair Murphy confirmed that both the Treasury and Department of Justice supported the proposed amendment in its current form.

Motion made by Commissioner Kendall to adopt the amendment. Seconded by Commissioner O'Neill. The motion passed unanimously.

The Commission next turned to consideration of circuit conflicts.

Circuit Conflicts

  • Mitigating Role

Chair Murphy stated that the Commission needed further discussion before proceeding on this issue.

Donald Purdy directed the attention of those who might submit public comment regarding mitigating role to issue one. The Commission would appreciate comment on this issue.

  • Stipulations

This proposed amendment addresses the circuit conflict regarding whether admissions made by the defendant during his guilty plea hearing, without more, can be considered "stipulations" for purposes of §1B1.2(a). Compare e.g., United States v. Nathan, 188 F.3d 190, 201 (3d Cir. 1999) (statements made by defendants during the factual-basis hearing for a plea agreement do not constitute "stipulations" for the purpose of this enhancement; a statement is a stipulation only if it is part of a defendant's written plea agreement or if both the government and the defendant explicitly agree at a factual-basis hearing that the facts being placed on the record are stipulations that might subject the defendant to §1B1.2(a)), with United States v. Loos, 165 F.3d 504, 508 (7th Cir. 1998) (the objective behind §1B1.2(a) is best answered by interpreting "stipulations" to mean any acknowledgment by the defendant that the defendant committed the acts that justify use of the more serious guideline, not in the formal agreement).

Vice Chair Castillo motioned to adopt the amendment as currently drafted. Seconded by Vice Chair Castillo. Passed unanimously.

  • Aggravated Assaults

This revised proposed amendment addresses the circuit conflict regarding whether the four-level enhancement in subsection (b)(2)(B) of §2A2.2 (Aggravated Assault) for use of a dangerous weapon during an aggravated assault is impermissible double counting in a case in which the weapon that was used was a non-inherently dangerous weapon. Compare e.g., United States v. Williams, 954 F.2d 204, 205-08 (4th Cir. 1992) (applying the dangerous weapon enhancement for the defendant's use of a chair did not constitute impermissible double counting even though the use of the chair increased defendant's level twice: first by triggering application of the aggravated assault guideline and second as the basis for the dangerous weapon enhancement), with United States v. Hudson, 972 F.2d 504, 506-07 (2d Cir. 1992) (in a case in which the use of an automobile cause the crime to be classified as an aggravated assault, the court may not enhance the base offense level under §2A2.2(b) for the use of the same non-inherently dangerous weapon).

Vice Chair Sessions motioned to adopt the amendment as drafted. Seconded by Vice Chair Steer. Passed unanimously.

  • Fraudulent misrepresentations

This proposed amendment resolves a circuit conflict regarding the scope of the enhancement in subsection (b)(4)(A) of §2F1.1 (Fraud and Deceit) for misrepresentation that the defendant was acting on behalf of a charitable, educational, religious, or political organization, or government agency. Specifically, the conflict concerns whether the misrepresentation applies only in cases in which the defendant does not have any authority to act on behalf of the covered organization or government agency or if it applies more broadly (i.e., to cases in which the defendant, who has a legitimate connection to the covered organization or government agency, misrepresents that the defendant was acting solely on behalf of the organization or agency). Compare e.g., United States v. Marcum 16 F.3d 599 (4th Cir. 1994) (enhancement appropriate even though defendant did not misrepresent his authority to act on behalf of the organization but rather only misrepresented that the was conducting an activity wholly on behalf of the organization), with United States v. Frazier, 5 F.3d 1105 (10th Cir. 1995) (application of the enhancement is limited to cases in which the defendant exploits his victim by claiming to have authority which in fact does not exist).

Vice Chair Castillo motioned to adopt the amendment as currently drafted. Seconded by Commissioner O'Neill. Passed unanimously.

Permanent Amendment 2: Unauthorized compensation

This revised amendment addresses the issue of whether, and to what extent, the guideline offense levels should be increased in §2C1.4, the guideline for offenses involving violation of 18 U.S.C. § 209 involving the unlawful supplementation of the salary of various federal employees. This revised amendment consolidates the unauthorized compensation guideline (§2C1.4) with the conflict of interest guideline (§2C1.3) and adds a cross reference in the consolidated guideline to the bribery and gratuity guidelines.

Vice Chair Steer moved to adopt the revised amendment. Seconded by Vice Chair Sessions.

Vice Chair Steer stated that he supports the thrust of this amendment. He stated that it is a good idea to consolidate these two guidelines which are essentially very similar. Further, there does not seem to be any compelling reason to have a separate guideline for conflict of interest offenses and for payment or receipt of unauthorized compensation. Vice Chair Steer also stated that he supports the cross reference as one means for providing higher punishment for the more serious conduct which often constitutes bribery or a gratuity offense that has been pled down to one of these offenses. However, he is dissatisfied with the Commission's resolution of this issue. One of the things that started the Commission's consideration of these issues were changes in the statutory maximum penalties for these offenses and related offenses that were made more than a decade ago in 1989. Vice Chair Steer stated that the cross reference is an inadequate response, in many ways, to what Congress did when it increased the statutory maximum penalty from one year, a Class A misdemeanor, to five years if committed wilfully. The Commission is not in a position to better address this issue procedurally this year. He stated that the amendment also leaves some anomalies in the public corruption guidelines as a whole. For example, the guideline that the Commission decided not to consolidate, §2C1.5 (payments to obtain public office), still has statutory maximum penalty of one year, but now carries a higher base offense level of 8, but now the two consolidated guidelines carry a base offense level of 6. Vice Chair Steer stated that he hopes the Commission will return in another amendment cycle to look at these offenses more comprehensively, including bribery and gratuity, in order to make the guidelines in this area coordinate in a rational fashion.

Vice Chair Sessions stated that he supports the amendment but has serious concerns about the cross reference. He stated that it gives a court power to impose a sentence consistent with the bribery statute for conviction of a less serious offense. This is of concern in light of the preponderance of evidence standard as opposed to the beyond a reasonable doubt standard. Counter to that, is judicial discretion -- that the court essentially has the ultimate decision and in his view, in order to be consistent with general philosophical approaches to life, this is significant. As a result he stated that he will support amendment.

The motion to adopt the amendment passed unanimously.

Permanent Amendment 3: Tax Privacy

This amendment proposes to address several offenses relating to unlawful disclosure and/or inspection of tax return information. The amendment proposes to (A) amend the Statutory Index to refer to most of those offenses in the guideline covering eavesdropping and interception of communications, §2H3.1; and (B) amend §2H1.3 to add a three-level decrease in the base offense level for the least serious types of offense behavior, i.e., violations of 26 U.S.C. §§ 7213A and 7216.

Vice Chair Steer motioned to adopt the tax privacy amendment as drafted. Seconded by Vice Chair Sessions. Passed unanimously.

Donald Purdy then suggested the Commission consider a motion authorizing staff to make technical and conforming amendments and set the effective date for November 1, 2001.

Vice Chair Castillo motioned to authorize staff to make technical and conforming amendments, effective November 1, 2001. Seconded by Commissioner O'Neill. Passed unanimously.

Donald Purdy spoke to specifically encourage outside groups that want to comment on the amendments, notwithstanding the public comment deadline of March 26, 2001, to submit comment by March 9, 2001 so that the Commission may consider the comment for the upcoming public hearing.

Chair Murphy adjourned the meeting at 3:00 p.m.