Minutes from March 19, 2002

Minutes of the March 19, 2002
U.S. Sentencing Commission
Public Meeting

Chair Murphy called the meeting to order at 2:04 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
Michael E. O’Neill, Commissioner
John P. Elwood, Commissioner Ex-Officio
Edward F. Reilly, Commissioner Ex-Officio
Timothy McGrath, Staff Director
Charles Tetzlaff, General Counsel
Donald (Andy) Purdy, Chief Deputy General Counsel
Judith Sheon, Special Counsel
Pamela Montgomery, Director, Education and Sentencing Practice

The following members of the Probation Officers Advisory Group (POAG) participated:

Ellen Moore, Chair, Probation Officers Advisory Group, & Supervising U.S. Probation Officer, Middle District of Georgia
Cathy Battistelli, Sentencing Guidelines Specialist, Chair Elect, Probation Officers Advisory Group, and U.S. Probation Officer, District of New Hampshire

Chair Murphy began the meeting by welcoming representatives from the Probation Officers Advisory Group (POAG).

Pamela Montgomery introduced representatives of the POAG, stating that the group met in Washington D.C. on February 19 - 20, 2002, to assess proposed amendments to the guidelines. Ms. Montgomery stated that Ellen Moore will be stepping down as Chair of the POAG after the public meeting and that Cathy Battistelli will serve as the new Chair of the POAG.

Ms. Moore thanked the Commission for the opportunity to meet with them. She said that the POAG had identified eight proposed amendments which they would like to discuss with the Commission.

In discussing the proposed cultural heritage amendment, Ms. Battistelli stated that the POAG feels very strongly that there should be a separate guideline for cultural heritage offenses because of the unique harms caused by this type of offense. She stated that the POAG did not discern any application difficulties with having a stand alone guideline. The POAG did not take a position on the enhancements for pattern of similar violations or use of weapons; however, the POAG does believe that an upward departure would be appropriate if the value of the cultural heritage resource underestimates the actual value. Ms Battistelli stated that the POAG did have concerns with a potential grouping issue. She stated that in the latest version, multiple counts would be grouped under subsection (d) of §3D1.2, but the POAG saw a potential problem with multiple counts for cultural heritage violations and other types of federal theft. Ms. Battistelli stated that the POAG was not sure how the grouping rules would apply in that situation. The POAG suggests that the Commission consider a commentary note to address this issue.

Ms. Battistelli also stated that the POAG expressed concern that probation officers would be very dependent upon the government for information regarding loss or valuation of the cultural heritage item. The POAG believes this could be an issue that would be argued at sentencing, adding to the degree of complexity at sentencing hearings.

Ms. Moore discussed several areas of concern regarding the proposed amendment on the career offender provision and offenses under 18 U.S.C. §§ 924(c) and 929(a). She stated that the POAG understands the Commission’s desire to be in harmony with statutory directives; however, the POAG has concerns that stem from the difficulty in completing multiple sets of calculations for this specific offense, leaving room for error in calculation. Ms. Moore listed the potential application problems identified by the POAG:
• the procedural complexity inherent in determining the sentence for this offense in conjunction with §5G1.2;
• the imposition of sentence with respect to multiple counts of 18 U.S.C. § 924(c) convictions;
• the potential impact on appeal if a defendant is successful in having the sentence imposed on the 18 U.S.C. § 924(c) conviction reversed, and only one day of imprisonment was imposed on the underlying offense;
• the proposed example in the commentary note — the POAG suggests that this be clarified as necessary to provide total flexibility when imposing a sentence on each count of conviction to the extent that the mandatory minimum requirements are met.

Vice Chair Steer stated that he previously had asked Ms. Moore and Ms. Battistelli if they would provide him with some of their most complex cases. He stated that together, they identified a couple of areas in which the proposed language for determining the total career offender sentence could be clarified. When the POAG met in February, they suggested a model that would require the judge to impose as much of the sentence as possible under the 18 U.S.C. § 924(c) count.

Vice Chair Steer stated that after his most recent discussion with Ms. Moore and Ms. Battistelli, they agreed that it was better to allow sentencing courts to impose the sentence as best as they could, taking into account the statutory directives that require consecutive sentences on the
18 U.S.C. § 924(c) counts and any other counts that implicate mandatory minimum penalties. Vice Chair Steer stated that this would allow the court to configure the sentence to achieve the most appropriate career offender punishment. He indicated that some of the more complex cases would require additional work, but as Ms. Moore stated, some judges might not feel comfortable imposing a sentence of only one day on some counts. Vice Chair Steer said that he supported working out the details and submitting another draft proposal with revised application notes.

Vice Chair Castillo then asked whether the POAG was asking the Commission to defer this amendment.

Ms. Moore stated that the POAG’s former consensus was for deferral, but that she believed the group supported the new revisions.

Ms. Battistelli then stated that the POAG had no concerns with the proposal for expanding the official victim enhancement and that the group appreciated the commentary example and the definition of "prison employee."

In discussing the proposed revision to §3E1.1, the acceptance of responsibility guideline, Ms. Moore stated that the POAG was very passionate about this proposed amendment. She stated that the POAG believes that this is one area of the guidelines that is very subjective. The POAG believes that the additional one level decrease is best left to the recommendation of the government and the discretion of the court.

She stated the POAG believed "timeliness" should not be restricted because timeliness is measured differently according to the local rules in individual districts. Ms. Moore stated that the POAG strongly prefers Option 2 of the proposed amendment which addresses the circuit conflict about whether or not to deny acceptance if the defendant committed additional conduct after arrest.

Vice Chair Steer asked how frequently the probation officers encounter situations in which the defendant committed additional criminal conduct after arrest while awaiting trail. Specifically, he requested information on how frequently the additional criminal conduct is something other than a positive urinalysis.

Ms. Moore stated that the additional criminal conduct is usually discovered from a positive drug urinalysis. She stated that, in the Middle District of Georgia, the position on positive urinalysis has changed. Formerly, positive results would eliminate the applicability of the acceptance of responsibility adjustment. Now, however, if the defendant agrees to participate in a drug treatment program then the judge is more likely to grant the acceptance reduction. Ms. Moore stated that judges in her district apply this interpretation uniformly and allow the adjustment when the defendant is doing well and making a good effort to become drug free. Ms. Moore added she rarely encounters the situation where a defendant commits entirely new and unrelated criminal conduct while awaiting trial. In that instance, she stated that the judges in her district would uniformly deny acceptance.

Ms. Moore stated that the POAG supports the proposed amendments regarding terrorism offenses and believes that the proposal is probably a very good implementation of new statutory provisions. She stated that the POAG could not comment on the substance of the proposed amendments because they do not yet have any experience with terrorism defendants and the sentencing thereof.

Ms. Battistelli then discussed the POAG’s position on potential changes to the drug guidelines. She stated that her remarks were premised on the POAG’s belief that there should be a change in the penalties for crack cocaine. Ms. Battistelli stated that some of the POAG’s concerns about other guideline application issues, such as the application of acceptance of responsibility, are closely related to the high sentences that some drug defendants receive.

Having said that, Ms. Battistelli stated that the POAG prefers that the Commission resolve the circuit conflict regarding mitigating role prior to implementing the mitigating role proposal. The conflict concerns whether the defendant’s role in the offense is determined by comparing his role to other members of that conspiracy or by comparing his role to other like conspiracies. Further, she stated that the mitigating role proposal may create application difficulties because it appears to take the adjustment out of the application order set forth in Chapter One.

Regarding the proposed enhancement for underage or pregnant individuals, Ms. Battistelli stated that some members of the POAG questioned what would happen if a defendant was charged under 21 U.S.C. § 846 for conspiracy to distribute drugs in a protected location. She stated that the POAG saw a potential application problem because the statute was not listed under the first prong and this might prohibit the individual from getting the enhancement.

Regarding the enhancements for weapons and bodily injury, Ms. Battistelli stated that the POAG felt there could be some confusion in application because some of the enhancements are very defendant specific versus offense specific. Ms. Battistelli suggested that this could be clarified with an application note.

Ms Battistelli stated that the POAG did not take a position on the prior criminal conduct enhancement.

The POAG, however, is opposed to the proposed amendment establishing a floor of level 26, but they see no problem with giving a two level enhancement for a prior drug related controlled substance offense. Ms. Battistelli stated that this seems consistent with §2K2.1. This seems to be an instance where there is permissible double counting.

Ms. Battistelli stated that the POAG does not support the proposed reduction for no prior convictions. She stated that the POAG believes the Safety Valve provision sufficiently addresses this issue. If, however, the Commission prefers to provide a further reduction, the POAG suggests that the Commission consider creating a zero criminal history calculation in Chapter Four. She stated that it seems unfair to allow this reduction solely for drug defendants. A zero criminal history category would allow all defendants to benefit and be sentenced fairly.
Chair Murphy stated that the Commission had been considering and hearing testimony on drugs for some time and that it was beneficial to receive input from the POAG.

Ms. Battistelli indicated that the POAG’s greatest concern about the drug proposals was the possibility of having enhancements go into effect without a change in the quantity levels. She stated that this would increase sentences that are already very high.

Vice Chair Steer stated that he was not certain as to whether the Commission would be in a position to clarify the circuit conflict on mitigating role. He then asked which approach the POAG would prefer, comparing the defendant’s role to others in the same conspiracy or some hypothetical average.

Ms. Battistelli indicated that there was no consensus on this issue, but she stated that some probation officers were astonished at the idea of comparing a defendant’s role to anyone beyond the immediate conspiracy. However, in the First Circuit, the defendants are compared to other conspiracies. Ms. Battistelli indicated that this makes it difficult to get a mitigating role adjustment. Ms. Moore added that a number of other Circuits take the Eleventh Circuit’s approach and only compare the defendant’s role to that of other members of the immediate conspiracy.

Ms. Battistelli stated that the POAG prefers Option 1 of the proposed amendment regarding sentencing alternatives because it would be easiest to implement. She further added that the POAG believes that placing defendants in community confinement centers beyond a specific time limit is very difficult for the offender and for the facility itself. Ms. Battistelli stated that the POAG understands that the Commission has received information indicating that community confinement centers are widely available. She stated that many of the community confinement centers are actually local jails from which defendants might not be able to look for work or are in a lock down status.

Chair Murphy stated that the Commission recently met with Kathy Hawk Sawyer, Director of the Bureau of Prisons, and had heard about the difficulty in getting more halfway houses.

Ms. Battistelli relayed her personal experience with the difficulties in obtaining new halfway houses. She stated that in the District of New Hampshire, the probation officers have been trying to obtain approval for a new halfway house for the past two years, and it does not appear that they will be successful in the foreseeable future due to lack of public support.

Ms. Battistelli then stated that the POAG does not support Option Three of the proposed amendment. She stated that if the availability of sentencing alternatives is limited to only those defendants in Criminal History Category One, then this might disadvantage defendants who are in Criminal History Category Two for very minor offenses.

Vice Chair Steer asked whether the POAG had guidance regarding the maximum length of recommended home detention.

Ms. Battistelli replied that the maximum recommended time is six months.

Vice Chair Steer then asked about the general availability of electronic confinement and what is required for implementation.

Ms. Battistelli responded that electronic monitoring is available in every district. All that is generally required for implementation is the availability of a dedicated telephone line. She added that in some instances, the Probation Office has had to provide funds for telephone line installation and maintenance.

Vice Chair Steer asked whether it would be feasible to increase the recommended time for home confinement from six months to ten months.

Ms. Battistelli responded that this might be feasible, but that the effectiveness tends to diminish after six months and defendants may tend to violate the terms of confinement after six months. She stated that the ideal term is six months. Ms. Battistelli added that this is not based on empirical data, but the guidance may have originated with the Administrative Office of U.S. Courts; additionally, the community confinement center discussed in a guideline application note refers to a six month period of confinement.

Vice Chair Steer added that there was also a statutory basis for the six month term.

In discussing the proposed amendment to §5G1.3, Ms. Battistelli stated that the POAG prefers Option One because it would be easiest to implement. She stated that the POAG requests that the Commission clarify the term "fully taken into account" in §5G1.3(b). The POAG does believe, however, that in fairness to all defendants those who are similarly situated should receive the benefit of sentence adjustment for discharged prior terms that are fully accounted for in the instant federal sentence.

Chair Murphy thanked the POAG for sharing its experience with the Commission. She stated that the Commission will miss working with Ms. Moore, and she also welcomed Ms. Battistelli as the new Chair of the POAG.

Chair Murphy adjourned the meeting at 2:33 p.m.