Minutes from April 6, 2001

Minutes of the April 6, 2001
U.S. Sentencing Commission
Business Meeting

Chair Murphy called the meting to order at 2:00 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 K. Sessions, III, Vice Chair
John R. Steer, Vice Chair
Sterling Johnson, Jr., Commissioner
Joe Kendall, Commissioner
Michael E. O’Neill, Commissioner
Michael E. Horowitz, Commissioner Ex-Officio
Timothy B. McGrath, Staff Director
Charles Tetzlaff, General Counsel
Donald Purdy, Chief Deputy General Counsel

Chair Murphy began the meeting by describing the process which led up to the scheduled votes for proposed amendments. She discussed the organizational chart that the Commission developed to plan its agenda for the year. She stated that she had displayed the chart at an earlier meeting and that, at that time, it was daunting to consider the year ahead and the crunch-time that would necessarily come at the end of the amendment cycle as the Commission voted on the proposed amendments to the guidelines.

Chair Murphy stated that the Commission had received a great deal of input from many sources on the proposed amendments. Additionally, the Commission received input at the public hearing. She stated that, as a result of all of the feedback, the Commission revised its thinking in a number of areas. The Commission also met with many groups concerning the proposed amendments, including the Criminal Law Committee of the Judicial Conference, which had been working on possible revisions to the guidelines for economic crimes for a number of years. Chair Murphy also stated that at the public meeting the Commission received a suggestion that outside groups have more access to all of the materials that the Commission receives in its deliberation process. Reaffirming comments she made at the March 2000 Commission meeting, she explained that the agency is working on how to make things more accessible to interested parties.

Chair Murphy stated that as the Commission moved through all the material on its agenda for the year, the Commission has appreciated the staff for their valuable input. She then invited Tim McGrath to speak about the Commission staff.

Tim McGrath stated his admiration for the diligent staff work completed during this amendment cycle. He thanked the staff members for their hard work and extended special recognition to the contributions made by Jeanneine Gabriel, Judith Sheon, Andy Purdy, and Ken Cohen.

Chair Murphy then called for a motion on the minutes from the February 13, 2001, and March 20, 2001, business meetings.

Commissioner Johnson moved to adopt the minutes as circulated. Seconded by Vice Chair Castillo. Passed unanimously.

The Commission then addressed the substantive items on the agenda, first considering the proposed Economic Crime Package of amendments.

Economic Crimes Package

The following provides a description of the Economic Crime Package.

Part A. Consolidation of Theft, Property Destruction and Fraud.

This amendment consolidates the three guidelines covering theft (§2B1.1), property destruction (§2B1.3), and fraud (§2F1.1). Consolidation of these guidelines is proposed in response to concerns raised by probation officers, judges, and practitioners over several years. The issues were among those discussed during Commission public hearings in 1997 and 1998 on difficulties posed by having different commentary in the theft and fraud guidelines applicable to the determination and definition of loss and related issues. Commentators have also noted that although theft and fraud offenses are conceptually similar, differences in guideline structure can lead to disparate penalty levels among similar cases, depending on how the offense is charged, and the court’s choice of the applicable guideline pursuant to §1B1.2.

Part B. Loss Tables for Consolidated Guideline and §2T4.1 (Tax Table).

This amendment amends the loss tables for the proposed consolidated guideline and for the tax guideline. Notably, the proposed loss table for the consolidated guideline would change the table from one-level increments to two-level increments, thereby decreasing the need for as fine a level of fact-finding and would provide more severe punishment for offenses involving large amounts of loss while slightly decreasing penalties at the lowest loss amounts.

Part C. Definition of Loss for Offenses Sentenced Pursuant to §2B1.1, the Consolidated Guideline.

The proposed amendment revises the definition of loss for offenses sentenced pursuant to §§2B1.1 (Larceny, Embezzlement and Other Forms of Theft) and 2F1.1 (Fraud and Deceit). The revision is designed to solve circuit conflicts, address case law and application issues, and to promote consistency in application. To the extent practicable, the proposed definition retains concepts that have not proven problematic.

Part D. Referring Guidelines for Theft and Fraud.

These amendments are intended to be made in conjunction with a change to the loss tables in §2B1.1 (Larceny, Embezzlement, and Other Forms of Theft) or §2F1.1 (Fraud and Deceit). The amendments provide a 1-level increase in several guidelines that refer to the loss tables for cases in which the loss is more than $2,000 but not more than $5,000. This increase would be provided to avoid a 1-level decrease that would otherwise occur for offenses involving losses of more than $2,000 but not more than $5,000 because the proposed table does not provide the first increase for loss amount until loss exceeds $5,000. This is in contrast to the current tables that provide the first one-level increase for losses that are greater than $2,000, but less than $5,000.

Part E. Technical and Conforming Amendments.

Part F. Computing Tax Loss under §2T1.1.

This proposed amendment addresses a circuit conflict regarding how tax loss under §2T1.1 (Tax Evasion) is computed for cases that involve a defendant’s under-reporting of income on both individual and corporate tax returns. Such a case often arises when (1) the defendant fails to report, and pay corporate income taxes on, income earned by the corporation, (2) diverts that unreported corporate income for the defendant’s personal use, and (3) fails to report, and to pay personal income taxes on, that income. The proposed amendment clarifies that the amount of the tax loss is the aggregate amount of federal income tax that would have been due by both the corporation and the individual defendant.

Donald Purdy described the Economic Crime Package and stated that the Commission had considered the prison impact for all of the potential amendments on the meeting agenda.

Motion made by Vice Chair Castillo to adopt the Economic Crime Package. Seconded by Vice Chair Sessions.

Prior to voting on the proposed amendment, the Commission discussed the amendment; several commissioners made statements for the record. These statements follow.

Vice Chair Castillo first thanked the staff for all the hard work that has been done over this amendment cycle. He stated that the Economic Crime Package was the culmination of a three-year process. Vice Chair Castillo also thanked Cathy Goodwin, Judge Phil Gilbert and his colleagues on the Criminal Law Committee. He stated that the Economic Crime Package brings more focus, and clear definition, and will hopefully increase the ease of application to an important area of federal criminal sentencing law. Vice Chair Castillo asserted that the bottom line for the proposed amendment package is that, according to the prison impact statement, more people will go to jail for economic crimes. He stated that it is sobering to see the overall prison impact depicting a minimum of 1,300 additional prison beds. He indicated that the majority of Commissioners feel that this is appropriate because most of the prison beds will be for individuals at the high end of the scale. This reflects a feeling that sentences at the high level of dollar loss for theft and fraud cases have not been sufficient.

Vice Chair Castillo stated that many of the Commissioners see a real connection between the proposed money laundering amendment and this Economic Crime Package, even though they are being voted separately. He added that there has been much discussion and compromise concerning the consolidation of the guidelines and loss tables. Vice Chair Castillo indicated that he believes that the proposed amendment package brings a little moderation and expanded sentencing options for low-end offenders and increases penalties for high-end offenders. Vice Chair Castillo stated that while he believes that high-end white collar criminals need to go to jail, his personal emphasis is on restitution for those low-end offenders (defined at $70,000 and less). He would like to see more emphasis placed on the victims of those offenses, and more opportunity, where appropriate, for judges to sentence those offenders with split sentences to place a premium on restitution as one of the outcomes of sentencing.

Vice Chair Castillo identified that there will always be levels of disagreement with regard to this. In fact, some will say that there is no need at all to increase the loss tables one iota. In making this argument, some have accused the Commission of somehow increasing these penalties just to bring them more in line with the drug penalties. Vice Chair Castillo emphasized that nothing could be further from the truth.

Vice Chair Castillo emphasized that criminal tax penalties overall will be increased as a result of the proposed amendment and that the Commission strongly supports the enforcement efforts of the IRS in every respect.

Lastly, Vice Chair Castillo stated that the Commission received meaningful comment regarding the important issues of the Archeological Protection Act and the Native American Graves Protection and Reparation Act. Though amendments concerning these acts were deferred, the Commission believes that these are important issues which might justify an independent, stand-alone guideline. He stated that the Commission will seek additional feedback before proceeding with these issues.

Chair Murphy reiterated that Vice Chair Castillo strongly believes in restitution for victims of economic crimes. She stated that this is one of his reasons for supporting the amendment because it allows a split sentence for the appropriate situations so that an offender can work and try to make restitution to the victim.

Commissioner O’Neill stated that, in some respects, the Economic Crime Package is a little bit like having a wedding and receiving wedding presents — some presents you like and some you would like to return. Although he strongly supports the Economic Crime Package in its totality, Commissioner O’Neill stated that he has two fundamental concerns with the issue of consolidation of the fraud and theft loss tables.

First, Commissioner O’Neill stated that in his view, there didn’t seem to be any practical problems in applying the existing fraud and loss tables. Also, because the fraud and loss tables were constructed, in part, on the basis of empirical evidence and empirical work that the initial Commission completed, Commissioner O’Neill stated that he saw no strong justification for consolidating the tables at this point. Second, Commissioner O’Neill expressed a theoretical concern: he believes that the nature of a fraud and the nature of a theft crime, as substantive criminal activities, are fundamentally different. Given fundamental differences in the types of fraud crimes and the types of theft crimes that are routinely prosecuted, and given the fact that there are proof differences, in terms of scienter, Commissioner O’Neill stated that he is not convinced that the Commission is well-advised in consolidating the fraud and loss tables. Though he has problems with consolidating the two tables, Commissioner O’Neill stated that he will support the package as a whole.

Before discussing his views on the Economic Crime Package, Vice Chair Steer motioned to use the phrase “offenses added together”, instead of “taken together” in the text of the amendment which addresses the Harvey/Cseplo circuit conflict. Motion seconded by Commissioner Johnson. Passed unanimously.

While Vice Chair Steer stated that he personally disagrees with the resolution of Harvey/Cseplo issue, he discussed other issues regarding the outcome of the fraud/theft loss statements. He stated that the Commission had the benefit of where the previous Commission left off on the fraud/theft loss issue which was reflected in Option One of the proposed amendment, and also a distinct proposal from the Criminal Law Committee that was published as Option Three. Option Two was developed by the staff and this group of commissioners. Vice Chair Steer stated that he tended to favor either Option One or Option Three. Specifically the Criminal Law Committee’s Option Three came the closest to achieving the balance he believes is appropriate.

Vice Chair Steer stated that Vice Chair Castillo spelled out the reasons why he, and perhaps others, have come to the particular point that they have and why he thinks that it is appropriate to provide, in effect, some sentence reduction for offenses of $70,000 or less. Vice Chair Steer stated that he thinks this figure is too high. He agrees with the resolution regarding the upper end of the table, and is not opposed to some modest reduction at the lower end of the table, but Vice Chair Steer stated that he thinks the $70,000 point is simply higher than is warranted.

Vice Chair Steer indicated that $70,000 is the break-point; about two-thirds of the fraud offenders, and about eighty percent of the theft offenders, have dollar amounts less than $70,000. Vice Chair Steer stated that the actual sentence reduction for these offenders will not be that great because the enhancement for more than minimal planning will no longer be a specific offense characteristic. On average, the reduction will amount to three months or less, depending on the type of offense. In Vice Chair Steer’s view, it is simply a judgment call as to where you draw the line; he would draw the line lower in the table and would limit the reduction to losses that are substantially less than $70,000. Although he respectfully disagreed with this portion of the Economic Crime Package, Vice Chair Steer stated that he would support the overall package.

Ex-Officio Commissioner Horowitz stated that he had two issues to discuss. First, with regard to the loss table, he would echo Vice Chair Steer’s comments that the reductions should be more modest at the mid-level loss amounts. Also, the Department of Justice supported the Criminal Law Committee’s proposal, which would have limited sentence reductions to offenses involving losses of $40,000 or less. Ex-Officio Commissioner Horowitz stated that the Department appreciated that the Commission has taken the high-end fraud very seriously. Second, regarding the cultural resources issues, Ex-Officio Commissioner Horowitz stated that the Department of Justice strongly supports the efforts made by the Commission to consider this issue and hopes that the Commission will take this up early in the next amendment cycle. He stated that the cultural resource issue is a very important problem affecting a number of groups across the country who have important cultural heritage resources in their communities.

Vice Chair Sessions stated that the Economic Crime Package is clearly a compromise involving a set of guidelines that has been worked on for a number of years. He stated that the work contributed by the Criminal Law Committee has been very helpful. Vice Chair Sessions stated that in his view penalties for economic crimes at the high end are not significant enough because there is a level of culpability at the higher loss amounts that is attendant with a person’s education, intent, and experience, which needs to be appropriately reflected in the severity of the sentence. Vice Chair Sessions also thinks it is incredibly important to ensure that first-time offenders receive sentences that reflect their lack of experience and criminal history. Therefore, he has strongly supported the proposed loss table.

Vice Chair Sessions stated that he has some concerns about the loss definition. Obviously, there has been an extensive debate over this issue and he trusts the Criminal Law Committee and all of the work they did to define loss. He stated that his concern is that there is a possibility that reasonable foreseeability could lead to over inclusion of consequential damages. Vice Chair Sessions stated that the Commission has put in place certain limits which will not encourage judges to add layers upon layers of consequential damages. He concluded by stating that most are persuaded that we can trust judges appropriately to interpret reasonable foreseeability. As a result, he will agree to the loss definition.  

Vice Chair Castillo added that the Criminal Law Committee, even with all their experience, deferred to the Commission on the loss tables. Also, he stated that the reductions are modest that will only create sentencing options for low-end offenders. Vice Chair Castillo mentioned that the entire package was a result of compromise and a lot of discussion with fellow Commissioners, and he appreciated Chair Murphy’s stewardship throughout the process.

Chair Murphy stated that the Commission determined to vote on the amendments in the Economic Crime Package as a group rather than to go through each amendment. The vote will be on the whole package, with the understanding that individual Commissioners who have expressed concern about the loss tables, consolidation, or the outcome of the tax question would have been able to make their statement on the record. This is reflected in the statements that were just made. Chair Murphy discussed the fact that there is a sense among all of the Commissioners that there are parts that each Commissioner might have done differently. However, like the Court of Appeals, one cannot just make a decision without the contribution of the entire group if you want to achieve a workable result.

Chair Murphy then called for a roll-call vote on the Economic Crime Package.

Prior to the vote, Commissioner Kendall clarified that the Commission is not voting to adopt the synopses of the amendments, but only the amendment language itself.

Vice Chair Castillo voted yes. Vice Chair Sessions voted yes. Vice Chair Steer voted yes. Commissioner Johnson voted yes. Commissioner Kendall voted yes. Commissioner O’Neill voted yes. Chair Murphy voted yes. The Economic Crime Package passed unanimously.

Money Laundering

The proposed amendment consolidates the two current money laundering guidelines, §§2S1.1 and 2S1.2, and applies to convictions under either 18 U.S.C. § 1956 or § 1957. The structure of the amendment ties offense levels for money laundering more closely to the underlying criminal conduct that was the course of the criminally derived funds. The amendment accomplishes this objective by separating money laundering offenders, regardless of the statute of conviction, into two categories for purposes of determining the base offense level. The base offense level is determined differently, depending on whether the defendant is a “direct” or a “third party” money launderer (money launderers who commit the underlying offense which generated the criminal proceeds versus money launderers who did not commit the underlying offense). Specific offense characteristics are included in this proposed amendment to increase the total offense level in order to assure greater punishment for those money laundering defendants whose conduct is considered more serious and harmful to the societal interests which the money laundering laws are designed to protect.

Donald Purdy provided an overview of the third revised proposed money laundering amendment.

Vice Chair Steer moved for adoption of this amendment. Seconded by Vice Chair Castillo.

Vice Chair Steer stated that he had a few remarks about the money laundering amendment. He said that the Economic Crime Package had a fairly lengthy and involved history, and, if anything, the money laundering package exceeds that both in terms of length and in terms of other ways that one would measure — the saga back and forth to Congress, et cetera. Vice Chair Steer stated that, hopefully, this amendment will survive Congressional review; he believes it is a fair compromise although it is still not perfectly satisfactory to perhaps any of the Commissioners.

Vice Chair Steer thanked the principal groups who have worked tirelessly on the money laundering project: the Practitioners’ Advisory Group; other defense bar groups; the Department of Justice; and the Commission staff, particularly Paula Desio, Ken Cohen, Courtney Semisch, Judy Sheon, Andy Purdy, and Charles Tetzlaff, and many others who have done a phenomenal job on this. Vice Chair Steer stated that the amendment is a fair compromise, and follows a structure that was recognized as an improvement over the original structure because the penalties for money laundering will be tied more closely to the underlying offense. The amendment maintains very stringent penalties overall and recognizes that money laundering is a distinct and separate offense, although the Commission gives it only a modest incremental penalty increase unless there is significant additional criminal conduct.

Commissioner O’Neill also expressed his appreciation for the great work the staff has done on this issue and also thanked the Department of Justice. He stated that he has personally observed the Department’s deep involvement with the money laundering issue over the course of his time at the Department of Justice, Senate Judiciary Committee, and now again as a Commissioner. Commissioner O’Neill stated that money laundering and the ability to prosecute money laundering offenses has obviously been a significant tool in the arsenal of prosecutors in bringing down organized crime and large-scale drug distribution and organized crime. Nevertheless, it is important to ensure that criminal conduct is criminalized on the basis of not only the specific act of money laundering, but also the intent. Commissioner O’Neill stated that money laundering was a crime that needed to be somewhat cabined, and the Commission has made a major advance in tying the money laundering offenses much more closely to the substantive underlying offense. In conclusion, Commissioner O’Neill stated that while no proposal is going to perfectly satisfy every side in this debate, he believes that the proposal strikes a reasonable and fair balance in trying to achieve equity and justice.

Ex-Officio Commissioner Horowitz also thanked the staff for working so hard with the Department over the years that the money laundering amendment has been in the works. He stated that he had expressed to the Commission that there were several issues that he wished had been given more time to try to develop a resolution more acceptable to the Department. However, he appreciated all the work that was done on this issue to address the legitimate concern that the money laundering statute be use appropriately.

Vice Chair Steer then stated that the data analysis that is part of the amendment summary makes it clear that, overall, the sentencing impact from this proposal and from the past proposal actually increased the penalties. He stated that there is some deliberate decrease for first-party fraud offenders who launder money, but that comes about because of the change in structure when the Commission ties the new structure closer to the underlying penalty for the underlying crime. For drug crimes and for other serious types of offenses, Vice Chair Steer said that he thinks it is clear that this proposal will provide a substantial increase in penalties. He stated that, overall, this should not be seen as an effort by the Commission to reduce penalties.

Vice Chair Castillo added that virtually everyone who has considered this issue, be they judges, or even the Department of Justice, recognizes the fundamental unfairness that occurs when fraud defendants, who merely deposit the results of their criminal proceeds, are charged with money laundering and are accordingly subject to a dramatically increased sentence. Vice Chair Castillo stated that he has witnessed this unfortunate situation in sentencing criminal defendants.

On the other hand, Vice Chair Castillo stated that he has also seen situations, and has not hesitated to sentence the more egregious offenders, who are appropriately targeted by money laundering. He stated that he believes this amendment does a better job of targeting the most appropriate violators, brings some moderation, and is a fair compromise. He will support the amendment because the true violators are going to see their penalties increased.

Vice Chair Sessions commended both the staff and the Department of Justice for all the work that has been done on the money laundering issue. He also stated that there have been very significant compromises made along the way. The Commission sees this amendment as part and parcel of the Economic Crime Package and this is one of the primary motivating factors in its resolution. Although Vice Chair Sessions finds it unfortunate that the Commission was unable to agree on every possible part of the amendment, he really appreciates the effort on the part of the Justice Department and the effort of the staff.

Chair Murphy added that through the amendment process conversations have been very respectful on both sides. Of course, in addition to the input from the Department of Justice, the Commission has received comment from other groups that are interested in the Sentencing Reform Act. Chair Murphy then called for a roll-call vote.

Vice Chair Castillo voted yes. Vice Chair Sessions voted yes. Vice Chair Steer voted yes. Commissioner Johnson voted yes. Commissioner Kendall voted yes. Commissioner O’Neill voted yes. Chair Murphy voted yes. The motion passed unanimously.

Immigration

Donald Purdy described the proposed immigration amendment, stating that it will provide proportionality among those illegal re-entry offenders whose prior aggravated felonies warrant increases under §2L1.2. In contrast to the draft published in the Federal Register, this amendment does not use the concept of time served, nor does it require, except with one minor exception, that an analysis of the prior offenses includes a determination of the statutory maximum of prior offenses because of the difficulty and burden that would be involved.

Donald Purdy stated that the revised proposed amendment builds on what was published in the Federal Register as Option One. The proposed amendment expands and clarifies the list of offenses that will automatically receive a sixteen-level enhancement.

Commissioner Kendall moved to adopt the proposed amendment in its most recent version. Seconded by Commissioner Johnson.

Before voting on the proposed amendment, Commissioner Kendall provided a brief history of the problems with the existing guideline and the process that led to the proposed amendment.

Commissioner Kendall stated that it is important to note that for 1999, the most recent year for which there is completed data, immigration cases account for 9,669 cases, or 17.5 percent of the federal criminal docket. This is a significant number of cases, affecting a significant number of people. Commissioner Kendall also stated that it is important to note that the vast majority of those affected are primarily Hispanic individuals.

While it should be a major concern of the federal criminal justice system to protect its citizens from foreign criminals who return to our country illegally, Commissioner Kendall acknowledged that the existing guideline has been roundly criticized for its basic unfairness and lack of proportionality. He explained that because it treats all illegal re-entry offenders with a prior aggravated felony the same, no matter what the nature of that aggravated felony, its sweep is overly broad.

Commissioner Kendall stated that it is important to recall that this issue was initially placed on the Commission’s agenda not because it was a Commission initiative, but as a result of complaints about the basic unfairness and lack of proportionality in the guideline heard from a number of different sources, including defense lawyers, probation officers, and members of the judiciary from the border areas.

Commissioner Kendall then recounted a September 2000 meeting that the Commission had with a number of judges from the District of Arizona. He stated that at that meeting one of the primary concerns expressed regarding the guidelines was this issue, the lack of proportionality, and the lack of fairness that the one-size-fits-all, 16-level enhancement has on such a large number of cases.

In October 2000, the Commission testified at an oversight hearing in which the Commission responded to criticisms that were being leveled by the Senate Judiciary Committee with regard to departure rates. Also at that time the Justice Department was the beneficiary of some criticism for not “riding herd” on district judges through the appellate process on those departures. Commissioner Kendall stated that he believed that many of those departures reflected that members of the criminal justice system felt the one-size-fits-all, 16-level enhancement was unfair.

In November 2000, Commissioners Kendall and Johnson and Ken Cohen met with judges of the Fifth Circuit in Austin Texas. Commissioner Kendall stated that the Fifth Circuit accounts for more than thirty percent of immigration cases nationwide. The judges of the Fifth Circuit expressed the same concerns that the Commission heard in Arizona — that there is a problem with §2L1.2 that needs to be addressed.

Commissioner Kendall stated that through this process the Commission learned about what is referred to as the “fast track.” He stated that this is the local practice of some U.S. Attorneys in certain districts to expedite the disposition of immigration cases. It is not a uniform practice, but, in fairness to both judges and prosecutors in those areas, the “fast track” is a result of the exigent circumstances of having caseloads that required extraordinary measures to deal with the volume of immigration cases. Essentially, the “fast track” is a procedure for allowing individuals charged in immigration cases who agree to waive the pre-sentence process and plead guilty in an expedited manner, to receive special considerations. Commissioner Kendall stated that these considerations may or may not strictly comply with the guideline structure.

Because of the lack of uniformity in application from district to district, the “fast track” policies of some districts have resulted in a wide disparity in sentencing relative to districts that do not use a “fast track” approach. Commissioner Kendall stated that he is not trying to be critical of the Justice Department because this could not happen unless the judges went along with the policies. Commissioner Kendall said that this is simply the result of people trying to wrestle with a burden dumped upon them because of the tremendous case load coupled with an inflexible guideline.

Commissioner Kendall stated that the “fast track” policies cause a problem in that they fly in the face of the basic principle and philosophy of the guidelines — that similar defendants, charged with similar crimes, should be treated similarly without regard to where they are. The simple fact of the matter is that an illegal reentry case in Laredo, Texas, is treated differently, and indeed more leniently, than a similar immigration case in a place where there is no “fast track” program, like Kansas City or Des Moines.

Commissioner Kendall stated that from the public comment received by the Commission, the overall consensus is that something should be done about this problem. He said that this amendment attempts to achieve proportionality and consistency, district-to-district, and obviate the need for the “fast track” process. Hopefully, this will be the result of the amendment.

Commissioner Kendall then discussed the process by which the Commission devised the precise amendment language that was up for consideration and vote. The revised proposed amendment reflects criticism of the original published version which called for incremental punishment based on the amount of time served on the underlying felony. The Department of Justice objected to this proposal, and upon further reflection the Commission adjusted the amendment accordingly. The Department of Justice suggested a methodology based on the character of the underlying offense, as a means of differentiation between the varying levels of severity of the underlying aggravated felony. The proposal before the Commission adopts this approach.

Commissioner Kendall discussed several other elements in the original published proposal to which the Department of Justice objected. The Commission removed the following elements from the proposal: a provision that allowed shelf-life or recency limitations on the use of aggravated felonies; and a departure provision that gave judges more flexibility if there was an offense that overstated the seriousness of the prior aggravated felony.

Additionally, the Commission addressed other Department of Justice concerns by adjusting the offense level from 6 to 8 for “aggravated felonies” that are not crimes of violence, and by including a specific offense characteristic in §2L1.2(b)(1)(B). Commissioner Kendall stated that, essentially, the Department wanted the language tweaked, so the Commission tweaked the language. Commissioner Kendall indicated that the only Department of Justice suggestion the Commission has not followed is to do nothing.

Commissioner Kendall said that this guideline does nothing to lessen the prosecutors’ and judges’ creative abilities to deal with the tremendous case loads that they are faced with. Again, this raises a philosophical question as to whether this is the Sentencing Commission’s bailiwick or whether this is a matter that is internal to the Department of Justice. Commissioner Kendall stated that he believes that the consensus is that it is the latter.

Commissioner Kendall stated that the amended guideline will bring proportionality to the sentences for criminals who commit crimes that are very serious in nature; the amendment speaks for itself with regard to crimes of violence, drug trafficking, sexual offense, firearms violations, illegal alien smuggling for profit, and crimes that involve national security or terrorism. Commissioner Kendall concluded by stating that the new guideline will not affect the sentences for well over half of the cases; but most importantly, he believes the amendment answers the concerns expressed by judges, the Department of Justice, and other outside groups that the Commission bring some proportionality to the guideline.

Chair Murphy added that the Commission received a considerable amount of negative feedback on the time served proposal, not just from the Department of Justice, but also from probation officers, judges, and others, because of the difficulty in getting that information in a timely fashion. So, this is why the Commission was persuaded that it had to develop another approach.

Commissioner Kendall briefly mentioned that there was an expressed concern about timing on this amendment, but the proposal has been out in the public domain for months.

Vice Chair Castillo stated that he commends Commissioner Kendall for his work on this amendment, and for meeting with judges along the border, not only colleagues in Texas, but in other places as well. He added that everyone agreed that the existing guideline is wrong in that it treats everyone the same way, even dissimilar offenders. Vice Chair Castillo stated that the Commission is simply adjusting this guideline to target the right offenders. And with regard to the rest, Vice Chair Castillo suggested adopting Commissioner Kendall’s statements as our findings of fact.

Commissioner O’Neill thanked Commissioner Kendall for working so hard on this amendment and trying to address what has been a significant problem for some of the border states. He stated that the main reason he will support this amendment is that, in addition to providing some sort of relief to the judges who are dealing with the problem, the amendment will hopefully bring some attention to the difficulty in controlling the borders and controlling immigration, generally. While Commissioner O’Neill is a strong proponent of immigration, he stated that he recognizes that with the addition of many new INS agents along the borders, unfortunately, there has not been a corresponding increase in probation officers, judges, and assistant United States attorneys to deal with the problem. Ultimately, Commissioner O’Neill supports this amendment as a way of dealing with what has become a very difficult problem.

Ex-Officio Commissioner Horowitz spoke to concur and respond to some of the comments made by Commissioner Kendall. He stated that he appreciated all the work Commissioner Kendall did on this amendment and also appreciated the Commission’s responsiveness in working with the Department and addressing its concerns. 

Ex-Officio Commissioner Horowitz stated that the Department has recognized that the one-size-fits-all approach was problematic and that there needed to be a fix. He indicated that the Department’s concern with the published proposal centered on the time served versus time imposed issue. Not only did the Department of Justice oppose this, but also probation officers, and the Criminal Law Committee. Ex-Officio Commissioner Horowitz stated that, fortunately, the Commission took this opposition into account and shifted to the offense-based proposal.

Ex-Officio Commissioner Horowitz clarified that the Department did not ask the Commission to do nothing on this issue, but rather requested that the Commission go slowly because this issue impacts almost 20 percent of the federal criminal cases in the country. He stated that he would guess that this is, by far, the largest single category of crimes prosecuted across the country by the Department.

Ex-Officio Commissioner Horowitz stated that it may be that when the prosecutors, border patrol agents, probation officers, and judges on the Southwest border see this amendment, they will think that the 8-12-16 gradation of levels works just fine. However, the Commission will have passed a proposal that will be in effect on November 1, 2001, and if any of these groups come back or notice a problem with the proposal, the Commission will not have had the benefit of hearing that advice or information prior to deciding on this amendment. Hopefully, they will come back and say, “This looks good. We think it will implement fine,” and the amendment will be well received. However, the prosecutors who represent a significant group of persons involved with this issue have not yet had the time to comment on how these categories will break out.

Ex-Officio Commissioner Horowitz concluded by stating that he does believe that the Commission has done a very important job in trying to address the significant concerns that were raised about the existing guideline and the Department certainly appreciated all the hard work.

Commissioner Kendall briefly responded to state that he read Acting Deputy Attorney General Mueller’s letter as a request to “do nothing” on this issue. Also, with regard to the Criminal Law Committee, Commissioner Kendall stated that they only opposed the time served issue. Commissioner Kendall stated that he wants the record to be clear that any delay on this issue is not because the Commission was trying to sneak something in at the eleventh hour, but that this has been solely because of a non-stop effort to address every concern raised by the Department.

Chair Murphy spoke to thank Commissioner Kendall for all his hard work in this process. She also thanked Commissioner Horowitz and Robert Mueller for their contribution. Chair Murphy stated that despite the Department’s request to delay consideration of the immigration amendment, the Department was very helpful in working with the Commission on the issues.

Commissioner Kendall added that if this amendment is not the correct solution it can certainly be changed if it is problematic, as the Guidelines Manual is not written in stone.

Ex-Officio Commissioner Horowitz stated that certainly the Commission has been very responsive to the Department’s issues; he is simply concerned that the field has not yet had a chance to digest the revised proposed amendment.

Vice Chair Steer commented that the process by which the Commission has arrived at this amendment is a microcosm of sorts of the process of adopting the initial guidelines. The Commission was faced with a very compressed time frame, but this amendment addresses important and difficult subject matter that affects a lot of individuals. Vice Chair Steer stated that there have been some dramatic changes in direction from what was first proposed to the current amendment, and this demonstrates the Commission’s responsiveness to concerns at play.

Vice Chair Steer joined everyone else in stating that this process also demonstrates a great deal of commitment on the part of Commissioner Kendall, individually, and strong leadership on his part to get this accomplished. Vice Chair Steer stated that in the final analysis, this is crunch time, and the Commission has to make a decision. Vice Chair Steer said that it appears the amendment is a fair and reasonable product, one that appears to be well-drafted. He added that the Commission will not know exactly how this guideline amendment will work in the field until the guideline is in use. Vice Chair Steer stated that because this guideline amendment will impact quickly the Commission will know some results fairly quickly as well.

Vice Chair Steer stated that he was pleased to hear Commissioner Kendall state that the Manual is not written in stone — the Commission has to be willing to respond to problems if they develop.

Staff Director Tim McGrath then called a roll-call vote.

Vice Chair Castillo voted yes. Vice Chair Sessions voted yes. Vice Chair Steer voted yes. Commissioner Johnson voted yes. Commissioner Kendall voted yes. Commissioner O’Neill voted yes. Chair Murphy voted yes. The motion passed unanimously.

Sexual Predators

This 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, 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.

Commissioner Kendall moved to adopt this amendment. Seconded by Vice Chair Steer.

Commissioner Kendall stated that when considering many of the types of cases in the federal system, the argument made against penalizing certain offenses harshly is that the offense itself primarily affects the individual committing the crime. For example, the argument made against harsh sentences for drug offenders is that the individual taking the drugs is the one most affected by the drug crime. Additionally, when considering punishment for property offenses, the harm is assessed by loss of property. Commissioner Kendall stressed that sexual offenses are entirely different because they are offenses against an individual’s very person. Commissioner Kendall stated that because sexual offenses often involve children, the most vulnerable members of society, if anything is to be punished harshly or seriously, sexual offenses should be punished most severely. 

Vice Chair Sessions stated that he will dissent from this vote for a number of reasons. He stated that he is certainly appreciative of the fact that this is an appalling kind of offense. It involves children. Vice Chair Sessions said that all of the Commissioners are very sensitive to that and he is also sensitive to that. Vice Chair Sessions stated that it is also important to actually reflect upon what the Commissioners are doing here.

Vice Chair Sessions objects to the “pattern of activity” amendment and the increase in the base offense level for statutory rape from level 15 to level 18. He stated that the reason he objects to these provisions is that this is going to have an enormous impact upon Native Americans. Vice Chair Sessions stated that if one looks at the sentencing impact, the average sentence for these kinds of offenses for Native Americans, in many cases, more than doubles.

Vice Chair Sessions stated that he previously met with the sexual predators team and that they had done a tremendous job considering these very difficult issues. He is not critical of the ultimate conclusions reached or recommended by the team, and will certainly treat the decision of the Commission extraordinarily respectfully, but he disagrees with the amendment.

Regarding the pattern of activity, Vice Chair Sessions stated that there are really two different kinds of increases. First, Vice Chair Sessions stated that if one looks at subsection (a) of §4B1.5, one sees that if one has one prior conviction for sexual assault or a sexually related offense, then one automatically jumps, at a minimum, to a Criminal History Category V; this will have a tremendous impact on the sentence. Vice Chair Sessions stated that he felt most fervently about the second category in the amendment, “Repeat and Dangerous Sex Offenders.” He stated that in subsection (b), a repeat and dangerous sex offender is a person who has no criminal record or could have no criminal record who is involved in two separate incidents with a total of two or more persons.

Vice Chair Sessions stated that while there may be dangerous persons with no criminal record who risk recidivism, there may very well be others who do not fit the category because they have never been through treatment prior to the offense of conviction. In fact, there may be persons for whom the criminal justice system has never intervened. Despite that fact, they are given the label “repeat and dangerous sex offender,” and they will be subject to a 5-level increase. Vice Chair Sessions stated that he believes this is too much. He stated that he is sensitive to the serious consequence of these crimes, but also thinks that one must consider each individual defendant, especially those who have never seen a court before, and especially when there has not been any intervention which may reduce recidivism rates. Vice Chair Sessions stated that he is concerned that people who leave prison may well create more crimes more frequently than persons who engage in treatment.

Vice Chair Sessions stated that he also objects to the increase in the penalty for statutory rape. He stated that persons who are guilty of statutory rape will be sentenced as if they had committed forcible rape. Again, the impact on Native Americans, in this particular situation, is enormous.

Vice Chair Sessions concluded by saying that while he tremendously respects the thought that went into this amendment, he respectfully disagrees.

Chair Murphy added that the Commission did receive expert comment on this area. Also, the Commission looked at a lot of the cases gathered by staff, including the Native American cases.

Commissioner O’Neill stated that he believes it is clear that sexual offenses, particularly those perpetuated against children, are among the most devastating crimes that occur in society. Certainly these crimes not only visit a great deal of emotional, physical, and mental trauma upon the individual who is victimized, but also cause untold devastation in families and can be perpetuated for years.

Commissioner O’Neill indicated that the best evidence suggests that people who commit these types of offenses have often suffered at the hands of an abuser when they themselves were children, and this makes this amendment extraordinarily difficult. Commissioner O’Neill stated that for this reason — despite the fact that he recognizes clearly, as does Vice Chair Sessions, that these are very serious offenses — these offenses are deserving of high penalties, not so much as a deterrent, but rather as a means of selective incapacitation to ensure that these individuals do not recidivate.

Despite advocating that the decay factor be relaxed from determining prior conduct and allowing prior conduct to come into play in these cases, Commissioner O’Neill stated that he will address one theoretical concern with respect to pattern of activity. He indicated that this concern has troubled him in some ways less with respect to this guideline, but more across the board. Ordinarily, when the criminal law is used as a tool for punishment, as the Supreme Court recently held in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), juries or judges must make certain factual findings beyond a reasonable doubt. Commissioner O’Neill stated that while he is fully supportive of this amendment, he is troubled by using uncharged, uncounseled allegations, for which there have been no criminal convictions, as a means of apportioning criminal punishment.

Commissioner O’Neill stated that there are certainly situations in which involuntary incapacitation is provided — civil commitment, for example — he has much less difficulty in allowing prior conduct to affect that decision. In criminal law, however, the reasons for apportioning punishment are slightly different. Commissioner O’Neill stated that this gives him some pause in that under the proposed pattern of activity enhancement, the guidelines will allow uncharged conduct not proven beyond a reasonable doubt to affect an individual’s quantum of punishment. Nevertheless, he will support the amendment.

Commissioner Kendall spoke to respond to an issue that Vice Chair Sessions discussed, the Native American issue. Commissioner Kendall stated that for this offense, like other crimes, because of jurisdiction alone, Native Americans are more affected because they are subject to federal jurisdiction in the criminal area. With regard to the argument that this amendment will somehow adversely affect Native Americans, Commissioner Kendall stated there is another half of the story: for every Native American defendant, according to Commission data, there is a Native American woman or a Native American child who is the victim.

Staff Director McGrath then called the roll-call vote.

Vice Chair Castillo voted yes. Vice Chair Sessions voted no. Vice Chair Steer voted yes. Commissioner Johnson voted yes. Commissioner Kendall voted yes. Commissioner O’Neill voted yes. Chair Murphy voted yes. The motion passed six to one.

Safety Valve

This revised proposed amendment deletes 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 adds subsection (b) to §5C1.2. This new subsection provides that a defendant who meets the criteria for the safety valve, and for whom a statutorily required mandatory minimum sentence is at least five years, shall not receive a Chapter Two and Three offense level lower than level 17. The level 17 minimum derives from the provision in the safety valve legislation that the lowest sentence that should result from application of the safety valve is 24 months, which is the bottom of the range at level 17, criminal history Category I. The proposed amendment also deletes commentary that is outdated because of the operation of §5C1.2 (Limitation on Applicability on Statutory Minimum Sentences in Certain Cases). Conforming changes are made to §5C1.2.

This revised proposed amendment differs from the published version only with respect to §2D1.1(b)(6). The language of this subsection has been modified slightly to eliminate an ambiguity that existed in the published version.

Vice Chair Sessions moved that this amendment be adopted. Seconded by Vice Chair Castillo.

Vice Chair Sessions stated that he felt much better about this amendment than the sexual predators amendment. This amendment seems to remove an obstacle which impacted first-time offenders or persons in criminal history Category I, in particular, who were convicted of drug offenses. Vice Chair Sessions stated that the threshold level was 26 in the past; there could not be a reduction of two levels, based upon a safety valve application, aside from negating the mandatory minimum, if an individual’s base offense level is under 26. Vice Chair Sessions stated that the amendment will give many first-time offenders an opportunity to receive the safety valve application, and this will be a significant contribution toward justice for the sentencing of these individuals.

Vice Chair Sessions stated that the amended minimum level of 17 stems from a 1994 Congressional directive that if a mandatory minimum was implicated, then the safety valve could apply, but the sentence could not be less than 24 months. Vice Chair Sessions stated that he believes that one of the Sentencing Commission’s primary functions is to be directly responsive to the will of Congress.

Chair Murphy remarked that many people generally think that the safety valve has worked, and that it can be expanded. She added that the Commission is undertaking an in-depth study on recidivism.

Vice Chair Castillo stated that he is happy to support this amendment; it is the first amendment in some time that will actually free up close to one thousand prison beds within the next two years. Vice Chair Castillo then read from a letter that he received from federal inmates in Pekin, Illinois. He quoted, “I’m writing to you on behalf of myself and fellow inmates now incarcerated in the federal prison camp for women in Pekin, Illinois. We are all first-time non-violent offenders with sentences that fall under the mandatory minimum sentencing guidelines. We are pleading with the lawmakers of this country to vote for the restructuring of the sentencing guidelines.” This letter was signed by about sixty women who are in prison. Vice Chair Castillo stated that this amendment is a moderate move in the right direction. He added that the recidivism rates for first-time non-violent offenders are significantly different from those for sex offenders. Moreover, the Bureau of Prisons has studied recidivism rates, and first-time non-violent offenders do not represent a threat for recidivism. Vice Chair Sessions indicated that he is frustrated with the Congressional directive that creates a base offense level of 17 and hopes that in the future the Commission can address this by having a better dialog with Congress concerning the safety valve.

Vice Chair Steer spoke to thank the federal public defenders for their letter and analysis with respect to subsection (b), dealing with the floor of 17. He stated that the analysis had him convinced for a while, but because the Commission is facing a clear directive the Commission does not want to risk any concern on the part of Congress. Also, as Vice Chair Castillo pointed out, this will free up about one thousand prison beds in five years. Vice Chair Steer stated that this amendment will benefit an estimated 3,300 defendants a year.

Commissioner O’Neill remarked that he is also supportive of this amendment and noted that he also believes it is important that the Commission give effect to the plain language of Congressional directives. He also stated that while it is important to leave the floor at level 17 for purposes of the directive, it is also important to note that in 18 U.S.C. § 994(j), Congress has also directed the Commission to ensure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases where the defendant is a first-time offender.

Commissioner O’Neill concluded by stating that it is incumbent upon the Commission to ensure that it gives effect to all of Congress’s directives, but it is also important that the Commission is careful to revisit the issue and ensure that in criminal history Category I, offenders are not grouped together who may be very differently situated in terms of their prior offense status.

Commissioner Kendall stated that he is very much in favor of this amendment.

Staff Director McGrath then called the roll-call vote. 

Vice Chair Castillo voted yes. Vice Chair Sessions voted yes. Vice Chair Steer voted yes. Commissioner Johnson voted yes. Commissioner Kendall voted yes. Commissioner O’Neill voted yes. Chair Murphy voted yes. The amendment passed unanimously.

Methamphetamine

This revised proposed amendment repromulgates, with change, the emergency amendmet regarding the “substantial risk” directive in the Methamphetamine and Club Drug Anti-Proliferation Act of 2000, section 102 of Pub. L. 106–310.

Commissioner Johnson moved to adopt this amendment. Seconded by Commissioner O’Neill.

Commissioner Johnson stated that this amendment increases the penalties for manufacturing amphetamine and methamphetamine. He added that Congress found, and he agrees, as a former narcotics prosecutor, and as a parent, that the manufacturing of these substances creates a substantial risk to human life or the environment. Commissioner Johnson stated he supports the passage of this amendment.

Vice Chair Steer stated that he will support this amendment, but is troubled by two issues: the way in which the Commission has chosen to implement this directive; and the directive itself in respect to its impact in §2D1.10. With regard to the first issue, Vice Chair Steer stated that it has been the usual practice of the Commission when it gets a directive from Congress, to try to be responsive, but to also ask the question, “How do we meld this directive with the basic principle of treating similar offenders similarly?” Vice Chair Steer stated that as a consequence of this, time after time the Commission has gone broader than the directive to round out the directive to ensure that comparable conduct was punished in the same way.

Vice Chair Steer stated that in implementing this directive, the Commission has decided not to broaden the directive. Vice Chair Steer provided an example: if one has a controlled substance manufacturing offense that does not involve methamphetamine or amphetamine, and if there is such an operation that endangers human life or the environment, the guideline provides no increase. Vice Chair Steer stated that he respectfully disagrees with the decision not to broaden this particular enhancement to cover all comparable conduct involving all controlled substance manufacturing offenses.

With respect to the implementation of the directive in §2D1.10, Vice Chair Steer remarked that the Commission had found no flexibility in the directive and will implement the directive literally to provide an additional three-level increase. He stated that the problem was that Congress apparently did not recognize that in this particular guideline there is already a three-level increase above the base offense level determined on the basis of drug quantity if the conduct involves endangering human life while manufacturing a controlled substance.

Vice Chair Steer stated that the there will be a three-level increase because the directive seems to require the increase. This, however, creates a number of anomalous results; Vice Chair Steer stated that he hopes that the Commission will find a way to inform Congress of the problems the Commission encountered in implementing this directive. Vice Chair Steer provided the following example: for the same conduct, if a defendant is prosecuted and convicted under the statute that goes to this guideline, §2D1.10, the offense level will be three levels higher than if the defendant is convicted of drug manufacturing or drug trafficking and is sentenced under the main drug trafficking guideline. Further, because the Commission has not broadened the directive to cover all controlled substances, there is a difference of as much as six levels under this guideline between consequences for methamphetamine or amphetamine manufacturing, as opposed to other controlled substances.

Vice Chair Steer stated that these kinds of inconsistencies trouble him greatly. They are inconsistent with the Commission’s statutory mandate. Vice Chair Steer concluded by stating that he hopes that the Commission can open a dialogue with Congress and pursue this issue in order to achieve greater consistency among the guidelines in the future.

Vice Chair Castillo stated that he wanted the record to reflect that he agreed with Vice Chair Steer. Commissioner O’Neill also concurred.

Chair Murphy remarked that the issue of broadening the directive to cover all controlled substances was discussed at length.

Staff Director McGrath then called the roll-call vote.

Vice Chair Castillo voted yes. Vice Chair Sessions voted yes. Vice Chair Steer voted yes. Commissioner Johnson voted yes. Commissioner Kendall voted yes. Commissioner O’Neill voted yes. Chair Murphy voted yes. The motion passed unanimously.

Anhydrous Ammonia

This revised proposed amendment addresses the new offense at section 423 of the Controlled Substances Act (21 U.S.C. § 864), of stealing or transporting across state lines anhydrous ammonia, knowing, intending, or having reasonable cause to believe that such anhydrous ammonia will be used to manufacture a controlled substance. This new offense, created by the Methamphetamine Anti-Proliferation Act of 2000, section 3653 of Pub. L. 106–310, carries the statutory penalties contained in section 403 of the Controlled Substances Act (21 U.S.C. § 843), i.e., not more than four years’ imprisonment (or not more than eight years’ imprisonment in the case of certain prior convictions) or not more than 10 years’ imprisonment (or not more than 20 years’ imprisonment in the case of certain prior offenses) if the offense involved the manufacture of methamphetamine.

Commissioner Johnson moved to adopt this revised proposed amendment. Seconded by Vice Chair Sessions.

Commissioner Johnson stated that this amendment provides for a new offense: the theft of anhydrous ammonia. The substance is often stolen to be used for the manufacturing of methamphetamine. This new provision will be under the guidelines that cover unlawful possession of any product, chemical, or material which may be used to manufacture a chemical substance. Commissioner Johnson stated that he will support the amendment.

Staff Director McGrath then called for the roll-call vote.

Vice Chair Castillo voted yes. Vice Chair Sessions voted yes. Vice Chair Steer voted yes. Commissioner Johnson voted yes. Commissioner Kendall voted yes. Commissioner O’Neill voted yes. Chair Murphy voted yes. The amendment passed unanimously.

Nuclear, Biological, and Chemical Weapons

This is a two-part amendment.

First, the proposed amendment increases by four levels the base offense levels in §§2M5.1 (the guideline covering the evasion of export controls) and 2M5.2 (the guideline covering the exportation of arms, munitions, and military equipment without a license), in response to the sense of Congress contained in section 1423(a) of the National Defense Authorization Act for Fiscal Year 1997 indicating that guideline penalties are inadequate for certain offense involving the importation, attempted importation, exportation, and attempted exportation of nuclear, chemical, and biological weapons, materials, or technologies. A four-level increase is proposed for those offenses in subsection (a)(1) of both §§2M5.1 and 2M5.2 to make the penalty structure for those offenses proportional to other national security guidelines in Chapter Two, Part M. In addition, the Statutory Index is proposed to be amended to refer one of the offenses, 50 U.S.C. § 1701 (which currently is not referenced in the Statutory Index), to both §§2M5.1 and 2M5.2.

Second, the proposed amendment substantially revises §2M6.1 (the guideline covering the unlawful acquisition, alteration, use, transfer, or possession of nuclear material, weapons, or facilities) in order to incorporate into that guideline two relatively new offenses, 18 U.S.C. § 175, relating to biological weapons, and 18 U.S.C. § 229, relating to chemical weapons.

Commissioner O’Neill moved to adopt this amendment. Seconded by Vice Chair Steer.

Commissioner O’Neill stated that among the most serious offenses that can be perpetrated against citizens of the United States would be the use or the threatened use of nuclear, biological, or chemical weapons. He stated that this amendment is necessary and an important step, particularly in response to the 1996 Antiterrorism and Effective Death Penalty Act, as well as the 1997 Defense Authorization Act, which contained the sense of Congress to ensure that the Commission increased penalties for these types of crimes.

Vice Chair Sessions complimented the Department of Justice for making the specific recommendation to reduce the base offense level for threats in certain circumstances.

Commissioner Horowitz complimented the Commission and the staff for working very hard on this important amendment, particularly at a time when this threat is growing.

Staff Director McGrath then called for the roll-call vote.

Vice Chair Castillo voted yes. Vice Chair Sessions voted yes. Vice Chair Steer voted yes. Commissioner Johnson voted yes. Commissioner Kendall voted yes. Commissioner O’Neill voted yes. Chair Murphy voted yes. The amendment passed unanimously.

Circuit Conflict Concerning Certain Drug Defendants and Mitigating Role

This amendment proposes to resolve a circuit conflict regarding whether application of §3B1.2 (Mitigating Role) is precluded (i.e., without the necessity of applying the guideline to the facts) in the case of a single defendant drug courier if the defendant’s base offense level is determined solely by the quantity personally handled by the defendant and that quantity constitutes all of the defendant’s relevant conduct. Compare e.g., United States v. Isaza-Zapata, 148 F.3d 236, 241 (3d Cir. 1998) (defendant who pleaded guilty to importing heroin was sentenced based on amounts in his personal possession, but if he can meet the requirements of §3B1.2 he is entitled to the reduction upon appropriate proof) with United States v. Isineyi, 207 F.3d 390 (7th Cir. 2000) (defendant pleaded guilty to one count of importing a specified quantity of heroin; held defendant ineligible for a mitigating role adjustment when his offense level consisted only of amounts he personally handled). The proposed amendment adopts the view that a defendant who is accountable under §1B1.3 (Relevant Conduct) only for the conduct in which the defendant personally was involved and who performs a limited function in concerted criminal activity is not precluded from consideration for an adjustment under §3B1.2.

Vice Chair Murphy stated that this proposed amendment was published earlier in the year and then set aside. Because the amendment was resurrected recently, she asked Donald Purdy to discuss suspension of Rule 3.2 of the Rules of Practice and Procedure.

Donald Purdy stated that Rule 3.2 of the Rules of Practice and Procedure requires that, to the extent practicable, the Chair shall issue a public notice of any public meeting at least seven days prior to the date of the meeting, and the public notice shall indicate the general purpose of the meeting, including agenda related items.

Donald Purdy stated that Rule 1.2(b) of the Rules of Practice and Procedure provides that the Commission may temporarily suspend any such rule and adopt the supplemental or superseding rule. Donald Purdy encouraged the Commission to invite a motion to suspend the applicability of Rule 3.2, as it applies to consideration in this meeting of an amendment concerning mitigating role.

Vice Chair Castillo moved for suspension of Rule 3.2, according to rule 1.2(b) of the Rules of Practice and Procedure. Seconded by Commissioner Johnson.

Chair Murphy called for a voice vote on suspension of the rule. The motion passed unanimously.

Vice Chair Castillo moved to adopt the revised proposed amendment concerning mitigating role. Seconded by Commissioner Johnson.

Vice Chair Castillo stated that he believed that some people have misinterpreted this amendment as providing a reduction for drug couriers. He stated that it really only provides a moderate option that is consistent with the circuit majority view.

Vice Chair Steer stated that he will vote against this amendment even though he does not agree with the minority circuit view which holds that defendants are entitled to no mitigating role reduction.

Vice Chair Steer remarked that he offered an alternative to the proposed amendment that would have allowed a minor role reduction, but would have precluded a greater reduction for these defendants who are held accountable only for the drugs carried. Vice Chair Steer stated that with the restriction of relevant conduct, particularly in the drug area, and the lack of standards in the guidelines for differentiating between a minimal and minor role, he believes that this amendment will cause disparity based on application of the guidelines to the facts. He stated that he is concerned that this may cause unwarranted disparity. Vice Chair Steer also indicated that judges who are frustrated with the severity of the drug guidelines will use this as a mechanism to provide lower penalties for couriers where the role adjustment may not be warranted. For these reasons, Vice Chair Steer stated that he will reluctantly oppose the amendment.

Ex-Officio Commissioner Horowitz stated that he echos Commissioner Steer’s comments. He stated that Commissioner Steer put forth a very fair, balanced, moderate approach to this issue that would not have tipped the balance either way, but would have laid out much more clearly how to deal with this issue.

Ex-Officio Commissioner Horowitz stated that the Department feels strongly that the proposed amendment is the wrong way to address this issue. He stated that there are 5,400 cases, just in 1999, that would have been eligible for this mitigating role reduction. Also, a significant result of this amendment will be a large increase in litigation over this issue. For these reasons, the Department is disappointed that the Commission did not accept Vice Chair Steer’s compromise.

Commissioner O’Neill stated that he is also opposed to this amendment, basically for the same reasons as Vice Chair Steer and Ex-Officio Commissioner Horowitz. He also does not think it is fundamentally unfair to hold the individual responsible for the drugs that he or she personally carried.

Commissioner O’Neill stated that he has problems, as he has mentioned in other contexts, with the idea of relevant conduct, especially in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). With regard to the particular facts of this type of circuit split, Commissioner O’Neill stated that he does not find the application of relevant conduct particularly unfair. He stated that the closeness of the circuit split does bespeak the problem that many people have with the perception of the relative harshness of the drug tables and the importance of role in the offense.

Commissioner O’Neill indicated that he hopes that at some time in the future, the Commission will reconsider the way in which role in the offense, and quantity of drugs, and drug type interact with one another. He hopes that the Commission will revisit the enormous problem created when drug quantity sometime greatly overstates the culpability of the criminal in a given offense. Commissioner O’Neill stated that, as a policy matter, he does not believe that this proposed amendment is the correct response to the problem. However, he does believe that a comprehensive review of both the drug tables, in terms of quantity, and role in the offense is something that it is incumbent upon the Commission to do.

Vice Chair Castillo stated that he looks forward to working with Commissioner O’Neill on the suggested review of the drug tables and role in the offense. Vice Chair Castillo stated that in the interim, the situation is this: in four circuits this reduction is available, though not mandated. According to his review of the law in these four circuits, in most cases, judges are affirming situations where the district court, in its discretion, has decided not to grant any reduction, neither minor nor minimal.

Vice Chair Castillo stated that he believes this amendment makes it plain that the downward adjustment for a minimal participant will be used infrequently. Moreover, Vice Chair Castillo believes that it creates unwarranted disparity that there are three circuits in which this role reduction is not even available. To allow this to continue would be simply unconscionable. For these reasons, Vice Chair Castillo stated that he will support the amendment and hopes that his colleagues will do the same.

Commissioner Kendall spoke to take exception to two things that were discussed concerning this amendment. First, it is true that when a federal judge takes his or her oath of office the genie is out of the bottle, and if one has a willingness to violate that oath, one can do it any time, and most of the time it is not reviewable. Having said that, Commissioner Kendall remarked that in his experience, even among those judges who gripe and complain about the guidelines, there are relatively few who would ever openly and defiantly violate their oath, so he rejects the proposition that this is somehow driving the application of this amendment. Commissioner Kendall stated that he believes judges make a good-faith analysis and apply the reduction if applicable, and do not apply the reduction when it is not warranted. Indeed, as Vice Chair Castillo pointed out, most of the circuit decisions deal with appeals of denials of the reduction.

Second, Commissioner Kendall stated that with regard to the increase in litigation that was suggested by Commissioner Horowitz, this amendment reflects the circuit majority view. This is the status quo in a good number of cases.

Vice Chair Sessions briefly stated that this amendment, like many others, is the result of a compromise. He reminded everyone that it retains the language, which had been recommended by staff to omit, that the adjustment is intended to be applied infrequently.

Chair Murphy stated that this is another area in which one must have faith that the judges are going to make sensible decisions based on the evidence before them and that the trial judge is the one best able to evaluate the situation. She added that Ex-Officio Commissioner Horowitz did describe to the Commission the situation in which the only actual witness to present information concerning the defendant’s role is the defendant. She stated that there is the counter view that judging credibility of witnesses is something that judges do all of the time. Thus, the availability of the role reduction does not mean that it will be applied in all of these cases, by any means.

Vice Chair Castillo added that there is guideline language that states that the court, in weighing the totality of the circumstances, is not required to find, based solely on the defendant’s bare assertion, that such a role adjustment is warranted.

Chair Murphy stated that this is an area, demonstrated by the circuit conflict, in which reasonable people are going to disagree. The Commission has been encouraged by the Supreme Court to address circuit conflicts. Further, one of the goals of the Sentencing Reform Act is uniformity, and by resolving this circuit conflict, the Commission is serving the purpose of the Act.

Staff Director McGrath then called for the roll-call vote.

Vice Chair Castillo voted yes. Vice Chair Sessions voted yes. Vice Chair Steer voted no. Commissioner Johnson voted yes. Commissioner Kendall voted yes. Commissioner O’Neill voted no. Chair Murphy voted yes. The amendment passed 5 to 2.

Remaining Items

The Commission then turned to consideration of a group of amendments in a pack called “Remaining Items.” The amendments, which included the repromulgation of some emergency amendments as permanent amendments and others which did not require discussion, were voted as a group. Following is a brief synopsis of each of the amendments in the group.

Ecstasy: This amendment repromulgates, without change, the emergency, temporary amendment regarding increases penalties for the manufacture, importation, exportation, or trafficking of Ecstasy which the Commission promulgated at its March meeting. This amendment implements the directive in the Ecstasy Anti-Proliferation Act of 2000, section 3664 of Pub. L. 106–310. The directive specifically requires the Commission to increase the base offense level for 3,4-methlenedioxy amphetamine (MDA), 2,4-methlenedioxy-N_ethlamphetamine (MDEA), paramethoxymethamphetamine (PMA), and any 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.

Amphetamine: This revised proposed amendment, repromulgates the temporary, emergency amendment regarding increased amphetamine penalties, which the Commission promulgated at its February meeting in response to section 3611 of the Methamphetamine Anti-Proliferation Act of 2000, Pub. L. 106–310. This revised proposed amendment differs from the temporary, emergency amendment in that it includes reference to amphetamine in §2D1.1(b)(4), which provides a two-level enhancement if the offense involved the importation of methamphetamine or the manufacture of methamphetamine from listed chemicals that the defendant knew were imported unlawfully. The revised proposed amendment also eliminates a reference to dextroamphetamine in the Drug Equivalency Tables in §2D1.1. In response to an issue for comment regarding whether the Commission should treat dextroamphetamine the same as it treats amphetamine and methamphetamine, the Department of Justice provided comment that dextroamphetamine is an isomer and should not be included either in the Drug Quantity Table or in the Drug Equivalency Tables of §2D1.1. Accordingly, this amendment proposes to strike the current reference to dextroamphetamine from the Drug Equivalency Tables.


Mandatory Restitution for Amphetamine and Methamphetamine Offenses: This proposed amendment implements the provision in the Methamphetamine Anti-Proliferation Act of 2000, section 3613 of Pub. L. 106–310, that amends 21 U.S.C. § 853(q) to provide mandatory restitution for offenses that involve the manufacture of methamphetamine. The proposed amendment amends §5E1.1 (Restitution) to include a reference to 21 U.S.C. § 853(q) in the guideline provision regarding mandatory restitution.

GHB: This revised proposed amendment implements the Hillory J. Farias and Samantha Reid Date-Rape Drug Prohibition Act of 2000, Pub. L. 106–172 (the “Act”), which provides the emergency scheduling of gamma hydroxybutyric acid (“GHB”) as a Schedule I controlled substance under the Controlled Substances Act when the drug is used illicitly. (There are approved applications of GHB under the Federal Food, Drug, and Cosmetic Act, for which the drug is scheduled in Schedule III.) The Act also amended section 401(b)(1)(C) of the Controlled Substances Act (21 U.S.C. § 841(b)(1)(C)) and section 1010(b)(3) of the Controlled Substances Import and Export Act (21 U.S.C. § 960(b)(3)) to provide penalties of not more than 20 years for an offense that involves GHB. Additionally, the Act added gamma butyrolactone (“GBL”) to the list of List I chemicals in section 401(b)(1)(C) of the Controlled Substances Act (21 U.S.C. § 841(b)(1)(C)).

List I Chemicals: This amendment repromulgates, without change, the emergency, temporary amendment regarding enhanced punishment for trafficking in List I chemicals which the Commission promulgated at its March meeting. The amendment implements the three-part directive in section 3651 of the Methamphetamine Anti-Proliferation Act of 2000, Pub. L. 106–310.

Stalking and Domestic Violence: This proposed amendment addresses section 1107 of the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106–386, (the “Act”). That section amends 18 U.S.C. §§ 2261, 2261A, and 2262 to broaden the reach of these statutes to include international travel to stalk, commit domestic violence, or violate a protective order. Section 2261A also is amended to broaden the category of persons protected by this statute to include intimate partners of the person. The Act also amends section 2261A to provide a new offense at section 2262A(2) that prohibits the use of the mail or any facility of interstate or foreign commerce to commit a stalking offense. Several technical changes were also made to these statutes.

Firearms Table: This revised proposed amendment was made in response to the recommendation of the Bureau of Alcohol, Tobacco and Firearms (ATF) to increase the penalties in §2K2.1 (Unlawful Receipt, Possession or Transportation or Firearms or Ammunition) for offenses involving more than 100 firearms.

Prohibited Persons 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. This proposed amendment also clarifies that the relevant time to determine whether a person qualifies as a “prohibited person” is as of the time that the defendant committed the instant offense. The relevant statutory provision for §2K1.3 is 18 U.S.C. § 842(i), and for §2K2.1, the relevant statutory provisions are 18 U.S.C. § 922(g) and (n).

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 defendant’s base offense level. The proposed amendment adopts the minority view that an offense committed after the commission of any part of the offense cannot be counted as a “felony conviction.” Accordingly, the proposed amendment clarifies, in §2K2.1(a)(1), (a)(2), (a)(3), and (a)(4)(A), that the instant offense must have been committed subsequent to sustaining the prior felony conviction(s). In so doing, the proposed amendment adopts a rule that is consistent with the requirements concerning the use of prior convictions under §§4B1.1 (Career Offender) and 4B1.2 (Definitions of Terms Used in Section 4B1.1).

Human Trafficking: This proposed amendment repromulgates, without change, the human trafficking emergency amendment that the Commission promulgated at its February meeting. The amendment implements the directive found at section 112(b) of the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106–386.

New Legislation: This is a two-part amendment. First, the proposed amendment addresses miscellaneous legislation enacted during the 106th Congress by (1) adding to 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). Note that there were no directives to the Commission contained in any of the legislation that created these new offenses.

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. (With respect to the latter two technical amendments, the statutory provision is listed in Appendix A (Statutory Index) but not in the Commentary of the respective guidelines).

Chair Murphy briefly discussed the group of amendments in the materials called “Remaining Items.” She stated that a large part of this group contains issues that the Commission previously voted on as emergency amendments; they will be voted on for repromulgation as permanent amendments. This applies to Ecstasy, Amphetamine, GHB, List I chemicals, and Human Trafficking. She also stated that there were several issues in the package that the Commission did not feel needed individual explanations during the meeting because of the bulk of work that the needed to be covered at this meeting.

Commissioner O’Neill moved to adopt the amendments listed in the package. Seconded by Vice Chair Steer.

Chair Murphy then called for a voice vote on the amendments. The motion passed unanimously.

Donald Purdy then read Rule 4.1 of the Rules of Practice and Procedure, stating, “Generally, promulgated amendments will be given prospective application only. However, in those cases in which the Commission considers an amendment for retroactive application to previously sentenced imprisoned defendants, it shall decide whether to make the amendments retroactive at the same meeting at which it decides to promulgate the amendment.” Donald Purdy then suggested that Chair Murphy entertain a potential motion for retroactive application of any of the amendments that the Commission had passed.

There was no motion made for retroactive application of the amendments.

Donald Purdy then requested that the Chair entertain a motion to designate the effective date of each of these amendments as November 1, 2001, and to authorize staff to make such technical and clarifying amendments as may be necessary.

Vice Chair Steer so moved. Commissioner Johnson seconded. Passed unanimously by voice vote.

Chair Murphy stated that there were obviously some items that were published for comment that were taken off the table. She stated that with the tremendous amount on the Commission’s agenda the Commission concentrated on those areas where it could do a thorough job. She added that although the incest portion of the sexual predator amendment was pulled, the Commission would be having a public hearing in Rapid City, South Dakota, on June 19, 2001. There, interested persons would be able to address that issue as well as the issue concerning cultural heritage and anthropological items.

Upon motion from Vice Chair Sessions to adjourn the meeting and unanimous approval, Chair Murphy adjourned the meeting at 4:15 p.m.