Minutes from September 10, 2001

Minutes of the September 10, 2001
U.S. Sentencing Commission
Public Meeting

Chair Murphy called the meeting to order at 12:38 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
John P. Elwood, Commissioner Ex-Officio
Edward F. Reilly, Commissioner Ex-Officio
Judith Sheon, Acting Deputy Staff Director
Charles Tetzlaff, General Counsel
Donald (Andy) Purdy, Chief Deputy General Counsel


Chair Murphy began the meeting by introducing the Commission’s newest ex-officio member, Parole Commission Chair Edward F. Reilly.

Chair Murphy stated that Staff Director Tim McGrath was on family leave because he and his wife had a baby daughter that morning. Judith Sheon was filling in for Staff Director McGrath in his absence.

Chair Murphy then sought a motion to approve the minutes from the August 28, 2001 Public Meeting. Vice Chair Castillo moved to approve the minutes. Seconded by Commissioner O’Neill. The motion passed unanimously by voice vote.

General Counsel Tetzlaff provided the Commission with a summary of the proposed summer commentary amendments to the guidelines. The proposed amendments make technical and conforming changes to various guidelines as follows:

(1) It makes a minor, technical amendment to commentary to §2D1.1 (Unlawfully Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) to reinstate two asterisks and an introductory proviso that were deleted inadvertently.


(2) It makes a minor, technical amendment to commentary to §2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy) to correct erroneous references to the new chemical tables.

(3) It clarifies, in the new money laundering guideline: (A) the application of Chapter Three adjustments in cases in which subsection §2S1.1(a)(1) applies; and (B) the operation of §2S1.1(b)(2)(B) in cases in which there is a conviction for conspiracy under 18 U.S.C.
§ 1956(h) and the sole object of that conspiracy was to commit an offense set forth in 18 U.S.C. § 1957. It also makes a conforming change to the commentary in §1B1.3 (Relevant Conduct).

(4) It adds conforming language to the illustrations that follow §3D1.5 (Determining the Total Punishment) to make Example 3 consistent with §2B1.1 (Theft, Property Destruction, and Fraud) as amended by the Economic Crime Package.

(5) It corrects a change to Appendix A.

Vice Chair Steer moved to adopt the proposed summer commentary amendments, with an effective date of November 1, 2001, and authority to the staff to make technical and conforming amendments. Vice Chair Sessions seconded the motion.

Prior to voting, the Commission briefly discussed the proposed amendments.

Vice Chair Steer stated that the Commission considered these summer commentary amendments at a nonpublic meeting last month. He said that after that meeting he expressed his belief that several of the changes were of such a character that they could affect a defendant’s resulting penalty, particularly the proposed changes to the new money laundering guideline. Vice Chair Steer stated that these sorts of changes should be made by the Commission by public vote.

Commissioner O’Neill added that when they become so enmeshed in the particulars of the drafted language, changes that initially seem minor can actually have an impact on other sections of the guidelines. Therefore, in his view, these changes are best voted upon in a public forum.

The motion to adopt the proposed summer commentary amendments, with an effective date of November 1, 2001, and authority to the staff to make technical and conforming amendments passed unanimously by voice vote.

Chair Murphy introduced the next item on the agenda, a vote to publish the Commission’s notice of priorities and solicitation for comment on the development of ad hoc advisory groups on the organizational guidelines and on Native American issues as they relate to the application of the federal sentencing guidelines in Indian Country. Chair Murphy stated that the Commission spent considerable time debating its list of priorities and discussing the solicitation for comment on the ad hoc advisory groups.
General Counsel Tetzlaff described the Commission’s proposed list of priorities, stating that the publication seeks to advise the public on the selection of the Commission’s priorities for this amendment cycle and those which will cover a two year time frame. The publication articulates the Commission’s desire to focus on the following: the fifteen year study; drug offenses; criminal history; congressional directives; a "consent calendar"; discreet, miscellaneous issues including the cultural heritage issue previously discussed; and select circuit conflicts related to chosen priority issues. General Counsel Tetzlaff stated that the publication includes a solicitation for comment on possibly forming ad hoc advisory groups on the organizational guidelines and the impact of the guidelines on Native Americans in Indian Country. General Counsel Tetzlaff suggested that the Commission adopt a forty-five day comment period for this notice.

Vice Chair Castillo moved to publish the notice for a forty-five day comment period. Seconded by Commissioner Johnson.

Prior to voting on the motion the Commission briefly discussed the notice of priorities and solicitation for comment.

Vice Chair Castillo reiterated Chair Murphy’s statement that the Commission spent considerable time discussing and setting its priority areas. The Commission will try to stay focused on its list of priorities, but this should not discourage groups from making suggestions to the Commission. Vice Chair Castillo specifically suggested that outside groups submit proposed amendment language that addresses any sentencing disparity issues. This may increase the chance that the Commission will be able to consider such proposed changes as part of its consent calendar.

Vice Chair Castillo stated that previously there was some discussion of creating the ad hoc advisory groups without soliciting comment on the parties to be involved. He stated that the solicitation for comment is a more inclusive approach, allowing outside parties to comment on whether groups should be formed and who should be included in the formation of the ad hoc advisory groups. Vice Chair Castillo stated that he hopes that there will be support for the creation of both groups. Vice Chair Castillo said that because Native Americans have been historically mistreated he is especially interested in anything the Commission can do to address Native American issues. Regarding the ad hoc advisory group on organizational guidelines, Vice Chair Castillo indicated that Vice Chair Steer, Chair Murphy, and many staff members have given various presentations on the organizational guidelines. While the organizational guidelines have been an overwhelming success, Vice Chair Castillo stated that he believes they can still be improved. He concluded by stating that the key to both groups is determining who should be involved, the scope, and the duration of the ad hoc advisory groups.

Commissioner O’Neill stated that during the Commission’s first truncated year and second full year, the Commission had a very ambitious agenda. He said that because the Commission accomplished the incredible amount of work that it set for itself, including circuit conflicts, addressing congressional directives, and addressing a limited Commission-initiated agenda, it was now very important to take stock of the work that has been done. This is especially important because the fifteen year review is one of the items on the Commission’s agenda. Commissioner O’Neill mentioned that the fifteen year anniversary of the guidelines is fast approaching.

Commissioner O’Neill stated that when the Commission is enmeshed in promulgating the guidelines, and dealing with the daily tasks of the Commission by working to resolve circuit conflicts and to respond to congressional directives, the Department of Justice, the defense bar, and other members of the community, it is important to take time to recognize the theoretical underpinnings upon which the guidelines are founded. He stated that the Commission should not only understand those theoretical underpinnings but also should take stock of the Commission’s congressional mandate and directives to ensure that the guidelines are promulgated in such a fashion that the Commission meets the goals set forth by Congress. He is happy that the Commission is focusing on this fifteen year review project because it will be important not only for the short-term, but also for the long-term legitimacy of the guidelines by demonstrating to Congress, the public, judges, prosecutors, and the defense bar that the Commission is working to fulfill its congressional mandate.

Commissioner O’Neill also stated that he had a great deal of sympathy with the argument that was made to set up the ad hoc advisory groups on Native American issues and organizational guidelines without seeking public comment on who should be involved. He indicated that he is generally in favor of that approach. In these particular areas, however, the Commission should demonstrate sensitivity to the groups that are actually affected and seek the most broad notice of involvement and active participation possible. Commissioner O’Neill stated that he hopes this current solicitation for comment does not set some sort of precedent — that any time the Commission chooses to set up an ad hoc advisory group it proceeds only after a comment period. In these two areas, however, Commissioner O’Neill believes that it is important to give time for notice and comment.

Vice Chair Steer stated that reference had been made to his argument and preference that the Commission go ahead with the ad hoc advisory committees without seeking public comment. He stated that this preference was not because he did not want to be inclusive or reach out and seek advice on how to set up the groups. Vice Chair Steer stated that he believes that the Federal Register method of notice and comment is a poor way to receive feedback. He stated, however, that he was quite willing to vote for this manner of proceeding but thinks that the Commission will not rely solely on the Federal Register for soliciting input; rather it will be a formal notification mechanism.

Regarding the list of priorities, Vice Chair Steer indicated that a number of compromises had been made and some items did not make the final list. He said that he does not want the staff and outside groups to think that the Commission has not set a rigorous enough agenda because Congress will surely add to the Commission’s workload with complex congressional directives.

Chair Murphy added that this is the list of priorities for the time-being. This does not mean that the Commission will not continue to discuss certain issues as part of either this amendment cycle or a two-year cycle. She stated that this is the first time the Commission was truly able to select priorities because there was a significant backlog when they were appointed. Chair Murphy stated that the Commission’s list of priorities will allow it to tackle issues in greater depth.

Vice Chair Sessions added that the Commission’s agenda presents a significant amount of work and they will all be very busy in the upcoming amendment cycle.

Commissioner Kendall agreed that the Commissioners will be focusing on major issues this cycle.

Acting Deputy Staff Director Sheon 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 to publish the Commission’s list of priorities and a solicitation for public comment on the development of ad hoc advisory groups for a period of forty-five days passed unanimously.

Vice Chair Castillo then stated that September 10, 2001, was a historic day for the Commission because Chair Murphy was a recipient of the 19th Annual Edward J. Devitt Distinguished Service to Justice Award. This award recognizes an Article III judge "who has achieved an exemplary career and has made significant contributions to the administration of justice, the advancement of the rule of law and the improvement of society as a whole." Judge Murphy was one of two judges so honored. Judge Frank M. Coffin from the U.S. Court of Appeals for the First Circuit was the other recipient of this year's Devitt Award. On behalf of the Commission and staff, Vice Chair Castillo thanked the Chair for giving them the privilege of serving with her. General Counsel Tetzlaff also stated it was a privilege for the staff to work for Chair Murphy.

Chair Murphy thanked everyone for their kind words and then adjourned the meeting at 1:02 p.m.