Minutes from March 26, 2003

Minutes of the March 26, 2003
U.S. Sentencing Commission
Public Meeting

Chair Murphy called the meeting to order at 9:53 a.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
Michael E. O’Neill, Commissioner
Edward F. Reilly, Jr., Commissioner Ex Officio
Eric H. Jaso, Commissioner Ex Officio
Timothy B. McGrath, Staff Director
Charles Tetzlaff, General Counsel
Judith Sheon, Special Counsel

Chair Murphy opened the meeting by welcoming guests. She stated that the Commission would be taking up a number of proposed amendments today and has additional proposed amendments to address at its April meeting. Chair Murphy reported that the President’s two commissioner nominees, Michael Horowitz and Judge Ricardo Hinojosa, have had their hearing in the Senate Judiciary Committee. The Committee had scheduled a vote on their nominations for the week of March 17, 2003, but the vote was postponed until this week

Chair Murphy stated that the Commission’s March 25, 2003, public hearing was a success. The Commission heard testimony concerning issues related to manslaughter and the Sarbanes-Oxley Act. Chair Murphy said that these were complex issues on which the Commission received helpful feedback. She stated that the Commission expects to vote on amendments in these areas at its April meeting.

Chair Murphy noted that the Commission and the Guidelines have received a fair amount of media attention due to the Sarbanes Oxley Act and recent activity in the House of Representatives. She stated that there has been media interest in the House request for data on Judge James Rosenbaum’s sentencing practices and the expansion of this request to all federal district court judges across the country. The focus of the request is on drug sentencings, downward departures, and the use of the safety valve over a three-year period.

Chair Murphy reported that the House of Representatives also has been working on legislation related to sentencing and the guidelines. She said that the Fairness in Sentencing Act was reintroduced in the House, and floor consideration is expected today on an amendment to H.R. 1104, the Child Abduction Prevention Act, that includes several provisions related to the sentencing guidelines. It would place strict limits on departures by allowing them only for grounds specifically enumerated by the Commission. Sentencing courts would be required to provide specific and written reasons for any departures, and appellate review of departure decisions would be de novo, as it was before Koon. If the decision were reversed, the court could not apply the same departure on a different theory. An acceptance of responsibility reduction would be permitted only when the government agreed. Chair Murphy noted that the legislation also provides for several amendments to penalties for child pornography offenses.

Chair Murphy stated that the Commission is in the process of working on its Fifteen Year Review. The Commission had hoped to have this completed in 2002, but the scope of the review has expanded. Chair Murphy noted that several important aspects of the review have been completed. The Commission’s report on federal cocaine sentencing policy was issued in May of 2002. The report was well-received and provides a solid basis for continued work in this area. Chair Murphy stated that the Commission has also completed a report on the survey of federal judges regarding the operation of the sentencing guidelines, which will be available on the Commission’s website, www.ussc.gov. The Commission’s recidivism study is in progress and will be the most significant report in this area to date. Chair Murphy reported that the Commission is continuing its study of downward departures as part of the Fifteen Year Review. The Commission has been producing data for Congress and will be producing a report on this subject.

Staff Director McGrath reported on various outreach efforts of the Commission. He stated that the Probation Officers Advisory Group met at the Commission on March 5 - 6, 2003; the Native American Issues Advisory Group met in Phoenix on February 28, 2003; the Organizational Guidelines Advisory Group met at the Commission on March 13, 2003; and the Practitioners Advisory Group held its regularly scheduled meeting before the Commission’s public meeting. Staff Director McGrath noted that the Commission’s website has been redesigned and now includes a useful search function. Additionally, the Commission recently released a new issue of its Guidelines Newsletter, available on the website. Staff Director McGrath stated that Commission training staff recently taped a new FJTN program on economic crime and money laundering issues. This program will be available on CD-ROM, which will be distributed at the Commission’s National Sentencing Seminar.

Chair Murphy stated that the next item on the agenda was approval of the January 8, 2003, public meeting minutes. Vice Chair Castillo moved to approve the minutes and expressed appreciation for their thoroughness. Seconded by Commissioner O’Neill. The minutes for January 8, 2003, were approved unanimously.

Campaign Finance

General Counsel Tetzlaff introduced the campaign finance amendment, stating that this proposed amendment repromulgates as a permanent amendment the temporary, emergency amendment (effective January 25, 2003) without change. General Counsel Tetzlaff stated that the Commission had received no additional public comment regarding this amendment since the passage of the emergency amendment. The proposed amendment responds to the Bipartisan Campaign Reform Act of 2002 which directed that the Commission provide guidelines for violations of the Federal Election Campaign Act of 1971 (the "FECA") and related election laws. The Bipartisan Campaign Reform Act of 2002 increased the main penalty provisions of FECA, providing for a five year penalty for offenses involving amounts in excess of $25,000. FECA banned soft money, restricted hard money contributions, banned contributions and donations from foreign nationals, restricted electioneering communications, addressed fraudulent misrepresentations in the political arena, and prohibits conduit contributions.

In order to implement this directive, the proposed amendment expands the scope of Chapter Two, Part C (Offenses Involving Public Officials) by providing within that Part a new guideline for offenses under the FECA and related offenses. The proposed amendment provides for a base offense level of level 8. The amendment also creates a number of specific offense characteristics in response to the directive in section 314(b) of the Act.

First, the directive requires the Commission to provide an enhancement if the offense involved a large aggregate amount of illegal contributions, donations, or expenditures. To address this consideration, the proposed amendment provides a specific offense characteristic, at subsection (b)(1), that uses the fraud loss table in §2B1.1 to increase the offense level incrementally according to the dollar amount of the illegal transactions. Second, the proposed amendment provides a two part enhancement at subsection (b)(2), providing for the greater of a two level enhancement if the offense involved a contribution, donation, or expenditure from a foreign national and a four level enhancement if the offense involved a contribution, donation, or expenditure from a foreign government or organization. Third, the proposed amendment provides an alternative pronged enhancement at subsection (b)(3) if (1) the offense involved a donation, contribution, or expenditure, disbursement, or receipt of government funds, or (2) the defendant committed the offense for the purpose of achieving a specific, identifiable nonmonetary Federal benefit. Fourth, the amendment proposes to add an enhancement at subsection (b)(4) if the defendant engaged in thirty or more illegal transactions during the course of the offense. Fifth, the amendment proposes to add an enhancement at subsection (b)(5) if the contribution, donation, or expenditure was obtained through, or a solicitation was made by, intimidation, threat of harm, including pecuniary harm, or coercion. Sixth, the proposed amendment provides a cross reference in the new guideline to either the bribery guideline or the gratuity guideline, if the offense involved such conduct and the resulting offense level is greater than that determined under the new guideline. The proposed amendment also amends the guideline on fines for individual defendants, §5E1.2, to set forth the fine provisions unique to FECA.

General Counsel Tetzlaff stated that a motion would be in order to repromulgate the proposed amendment as a permanent amendment with an effective date of November 1, 2003, and to authorize staff to make technical and conforming changes.

Vice Chair Castillo moved to repromulgate the amendment as a permanent amendment with an effective date of November 1, 2003, and to authorize staff to make technical and conforming changes. Seconded by Vice Chair Steer.

Vice Chair Castillo noted that members of the Commission had remarked extensively about this amendment when it was initially passed as an emergency amendment in January. He complimented the campaign finance team members, Tom Brown, Judy Sheon, Bobby Evans, and Patrick Smith. Vice Chair Castillo stated that, in his view, the Commission has received no additional public comment on the permanency of this amendment because the emergency amendment was an excellent product. He hopes the passage of this amendment will be the start of an effort to look at the public corruption guidelines as a whole and to work with the Department of Justice to increase penalties for public corruption appropriately.

Vice Chair Steer pointed out that the Commission had commented extensively on this topic when considering the emergency amendment. He noted that this proposed amendment reflects the fine cooperative effort made by the Public Integrity Section of the Department of Justice, the Federal Election Commission staff, and Commission staff; this effort resulted in a very satisfactory guideline.

Ex Officio Commissioner Jaso stated that the Department of Justice agrees that broader consideration of existing statutory penalties for public corruption may be in order. Further, the Department looks forward to working with the Commission and perhaps making a joint recommendation to Congress in this area.

Ex Officio Commissioner Jaso stated that the proposed amendments currently before the Commission represent the collaborative effort between the Commission, Department of Justice, and other interested groups. He noted that one thing often said about the Supreme Court is that the only decisions appearing on the front page of the newspaper are those with a five to four vote, while the vast majority of important court decisions are decided unanimously. Ex Officio Commissioner Jaso said that like the Supreme Court, the bulk of decisions reached by the Commission are unanimous, resulting from cooperative efforts that achieve the correct, mutually agreed-upon decision. He said that in the areas of campaign finance, drug crimes, violent crimes, and terrorism, the Department of Justice and Commission work arm-in-arm, staff-to-staff, to arrive at a consensual product that improves the criminal justice system. Ex Officio Commissioner Jaso stated that, in his view, it is important to remind the public that the bulk of the Commission's work is noncontroversial but incredibly important. He thanked the Commissioners and staff for this background of cooperation.

Chair Murphy then called for the vote. The vote was unanimous to promulgate the campaign finance amendment as a permanent amendment, with an effective date of November 1, 2003, and to authorize staff to make technical and conforming changes.

Oxycodone

General Counsel Tetzlaff introduced the proposed oxycodone amendment, stating that this proposed amendment responds to proportionality issues in the sentencing of oxycodone trafficking. Oxycodone is an opium alkaloid found in certain prescription pain relievers such as Percocet and Oxycontin. This prescription drug generally is sold in pill form, and the sentencing guidelines currently establish penalties for oxycodone trafficking based on the entire weight of the pill. The proportionality issues arise (1) because of the formulations of the different medicines, and (2) because different amounts of oxycodone are found in pills of identical weight. To remedy these proportionality issues it is proposed that sentences for oxycodone offenses be calculated using the weight of the actual oxycodone instead of the current mechanism of calculating the weight of the entire pill. Currently the Drug Equivalency Tables in §2D1.1 equate 1 gram of oxycodone mixture to 500 grams of marijuana. The proposal would equate 1 gram of actual oxycodone to 6,700 grams of marijuana. This equivalency would keep penalties for offenses involving 10 mg Oxycontin identical to current levels but would increase penalties for all other doses of Oxycontin. At the same time, penalties for Percocet would be reduced substantially.

General Counsel Tetzlaff stated that a motion would be in order to promulgate the proposed amendment, with an effective date of November 1, 2003, and to authorize staff to make technical and conforming changes.

Vice Chair Sessions moved to promulgate the proposed amendment. Seconded by Vice Chair Castillo.

Chair Murphy noted that members of Congress would be particularly interested in this amendment because the illicit drug market for oxycodone has grown.

Vice Chair Steer stated that he is very pleased with this proposed amendment because he believes it is a rational approach to focus on the controlled substance itself and provide for proportional guideline penalties based on the amount of the controlled substance, rather than the way the substance is formulated. He noted that the Department of Justice supports this approach even though the punishment for Percocet trafficking offenses will be lowered. Vice Chair Steer stated that he is not certain whether he is prepared to make this amendment retroactive, but will support a motion to allow the Commission to consider the matter further. He specifically noted for those members of the defense bar present that the Department of Justice supports the proportionality approach and supports the guidelines approach overall, such that similar offenses are treated similarly.

Ex Officio Commissioner Jaso stated that the Department of Justice's support of this amendment in no way means that the Department of Justice or the Drug Enforcement Administration will back off on the enforcement of these laws. He added that after considerable debate, the Department of Justice determined it would support this amendment despite reservations about the decrease in penalties for Percocet offenses. Ex Officio Commissioner Jaso noted that this proposed amendment brings proportionality by basing oxycodone penalties on the amount of the active ingredient rather than the delivery substance. He stated that the DEA will continue to investigate and prosecute these types of crimes, which frequently involve medical professionals who abuse their authority and violate the public trust by making these substances available for non-medical purposes. Ex Officio Commissioner Jaso stated that the Department of Justice will continue to monitor this area and will bring to the Commission's attention any unintended effects resulting from the proposed amendment.

Commissioner O'Neill thanked staff and the Department of Justice for their collaborative efforts on this proposed amendment. He said that this represents an area in which the Department of Justice and Commission were able to work very profitably together in arriving at an agreeable proposal. Commissioner O'Neill stated that this proposal represents the Department of Justice doing its work in the finest sense of the word because too often the Department of Justice is accused of seeking ever higher penalties. He remarked that in this instance, the Department of Justice demonstrated its commitment to ensuring just punishment for criminal offenses. He added that Ex Officio Commissioner Jaso's statement regarding the Department's continued monitoring of this area illustrates how both the Department and Commission have the opportunity to further study these offenses and observe any ripple effects in the punishment for Percocet. Further, the Commission and Department can work together to determine whether the amendment brings any deterrence in this area.

Chair Murphy then called for the vote. The motion to promulgate the proposed oxycodone amendment, with an effective date of November 1, 2003, and to authorize staff to make technical and conforming changes passed unanimously.

General Counsel Tetzlaff stated that the oxycodone amendment presents a retroactivity issue for the Commission's consideration because the penalties for Percocet offenses will be lowered.

Vice Chair Sessions moved, under Rule 1.2(b) of the Commission's Rules of Practice and Procedure, to waive Rule 4.1 which requires consideration of retroactivity contemporaneously with the passage of an amendment. He stated that this will allow staff to engage in a comprehensive retroactivity analysis. The motion was seconded by Vice Chair Castillo.

Chair Murphy called for a vote. The motion to waive Rule 4.1 passed unanimously by voice vote. Chair Murphy noted that by waiving the rule, the Commission preserved the oxycodone retroactivity issue.

Terrorism

General Counsel Tetzlaff introduced the proposed terrorism amendment, stating that this proposed amendment is a continuation of the Commission’s work over the past two years to ensure that the guidelines provide appropriate guideline penalties for offenses involving terrorism. Specifically, this proposed amendment (1) further responds to the USA PATRIOT Act; (2) responds to the Public Health Security and Bioterrorism Preparedness and Response Act of 2002; and (3) responds to the Terrorist Bombings Convention Implementation Act of 2002.

There are three remaining proposed amendments resulting from the USA PATRIOT Act. First, this amendment eliminates the terrorism enhancement in the main money laundering guideline, §2S1.1. Elimination of the enhancement is appropriate because it prevents "double-counting" with the terrorism adjustment in §3A1.4 (Terrorism). Second, this amendment addresses the treatment of certain offenses under 18 U.S.C. § 1960. These offenses prohibit knowingly conducting, controlling, managing, supervising, directing, or owning all or part of an unlicensed money transmitting business as defined in 18 U.S.C. § 1960(b)(1)(C). The proposed amendment changes the Statutory Index reference for these offenses from §2S1.3 (Structuring Transactions to Evade Reporting Requirements) to the main money laundering guideline, §2S1.1. This change is appropriate for this offense because its essence is money laundering rather than structuring to evade reporting requirements. Third, there is an amendment to 2X3.1 (Accessory after the Fact) to apply an offense level "cap" of level 30 to any harboring of a terrorist offense, as opposed to the level 20 cap for harboring fugitives.

With respect to the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 ("the Act"), there are three areas addressed by the proposed amendment. The first involves biological agents. The proposed amendment amends the Statutory Index to refer new offenses involving biological agents and toxins to the guideline covering nuclear, biological, and chemical weapons and materials, §2M6.1. It provides for a base offense level of level 22 for the new offenses involving transfer to, or possession of select biological agents, by unregistered persons. The proposed amendment also makes two modifications to the definition of "select biological agent" in §2M6.1 in response to the Act.

Second, the proposed amendment responds to the Act’s amendments to the Safe Drinking Water Act. The amendment proposes to consolidate the water tampering guideline, §2Q1.4, with the guideline covering threatening to tamper with the water supply, §2Q1.5. It also proposes to increase the base offense level for offenses involving tampering and threatened tampering with a public water system. The base offense level for tampering with a public water system would increase from level 18 to level 26. The base offense level for threatening to tamper with a public water system, without conduct evidencing an intent to carry out the threat is proposed to increase from level 10 to level 16. A base offense level of 22 is proposed if there is conduct evidencing an intent to carry out the threat. These substantial increases in the base offense levels are proposed to ensure proportionality with similar offenses and to respond to the increased statutory maximum penalties made by section 403 of the Act.

The enhancement in subsection (b)(2), regarding the disruption of the public water system, has been slightly expanded to make it consistent with similar enhancements in other related guidelines, such as the nuclear, biological, and chemical guideline, §2M6.1. Similar to the consumer product tampering guideline, §2N1.1, the proposed amendment adds cross references to the water tampering guideline if the offense resulted in death, was tantamount to murder, or involved extortion. The amendment also proposes to provide an application note that an upward departure would be warranted if the tampering or threatened tampering was accompanied by a terrorist motive.

The third area is animal enterprise terrorism. The proposed amendment adds an invited upward departure provision in the fraud, theft, and property destruction guideline, §2B1.1, to account for aggravating conduct that may occur in connection with an animal enterprise offense under 18 U.S.C. § 43.

Finally, the proposed amendment amends the Statutory Index (and the Statutory Provisions of the pertinent Chapter Two guidelines) to add three new offenses created by the Terrorist Bombings Convention Implementation Act of 2002 and provides conforming amendments within a number of Chapter Two guidelines to incorporate the new offenses more fully into the offense guidelines. There are also several miscellaneous proposed amendments related to terrorism.

General Counsel Tetzlaff stated that a motion would be in order to promulgate the proposed amendments with an effective date of November 1, 2003, and to authorize staff to make technical and conforming changes.

Commissioner O'Neill moved to promulgate the terrorism amendments, as described by General Counsel Tetzlaff. Seconded by Vice Chair Steer.

Chair Murphy stated that this collection of amendments represents an area in which the Commission has been working for the past several years. She then called for the vote. The motion to promulgate the terrorism amendments, effective November 1, 2003, and to authorize staff to make technical and conforming changes, passed unanimously.

Body Armor

General Counsel Tetzlaff introduced the proposed body armor amendment, stating that this proposed amendment implements the directive in section 11009 of the 21st Century Department of Justice Appropriations Authorization Act. The directive requires the Sentencing Commission to review and amend the Federal sentencing guidelines and the policy statements of the Commission, as appropriate, to provide an appropriate sentencing enhancement for any crime of violence or drug trafficking crime in which the defendant used body armor. The Act further states that it is the sense of Congress that any such enhancement should be at least two levels.

In response to the directive, the proposed amendment provides for a two-level adjustment at §3B1.5 (Use of Body Armor in Drug Trafficking Crimes and Crimes of Violence) if the defendant was convicted of a crime of violence or a drug trafficking crime, and the offense involved the use of body armor, or a four-level adjustment if the defendant used body armor in preparation for, during the commission of, or in an attempt to avoid apprehension for, the offense.

General Counsel Tetzlaff stated that a motion would be in order to promulgate the proposed amendment with an effective date of November 1, 2003, and to authorize staff to make technical and conforming changes.
Vice Chair Castillo moved to promulgate the proposed amendment. Seconded by Vice Chair Steer.

Vice Chair Castillo spoke briefly to express his appreciation to Ex Officio Commissioner Jaso for his earlier remarks and for his assistance with this particular amendment. Vice Chair Castillo noted that he had previously considered an even higher enhancement for the use of body armor, but the Department of Justice supports the proposed amendment and he is happy to join in this collaborative effort.

Vice Chair Steer stated that he, too, had considered a higher enhancement for the use of body armor, and at some time in the future may find that appropriate. He stated that an external factor needs to be included in the overall calculus in the application of this enhancement. That is, it would be a rare case where a defendant used body armor and did not also use a weapon. Vice Chair Steer noted that the defendant would receive either an enhancement for weapons or an 18 U.S.C. § 924(c) conviction. Vice Chair Steer said that penalties for the weapon use are considerable, and the body armor enhancement that responds to the congressional directive is not an insignificant increase. In fact, the enhancement provides for a 25% increase in the broad relevant conduct context, or a 50% increase if the defendant was personally involved in the use of body armor.

Vice Chair Steer stated that this amendment and this approach illustrate what he views as a very desirable way of working with Congress to effect desired penalty increases for a particular area. He said that Congress chose to give the Commission a fairly general directive and minimum enhancement level rather than promulgating a new offense for the use of body armor. Vice Chair Steer suggested that this is perhaps a realization that the existing penalty structure was adequate, and what was needed was the certainty of a sentencing enhancement for the use of body armor in a crime of violence or drug trafficking crime. He added that he hopes this approach will be appreciated and serve as a paradigm for future work with Congress. Vice Chair Steer noted that there is pending legislation regarding identity theft; he respectfully suggests that Congress's approach to the body armor enhancement would be preferable in the context of identity theft. Vice Chair Steer expressed regret that the Department of Justice apparently does not favor this approach in the identity theft context. He stated that the body armor approach is better suited to the guidelines system than mandatory minimums or some other more restrictive approach, and he hopes the Department of Justice and Congress will look favorably on this approach.

Chair Murphy then called for a vote on the motion. The motion to promulgate the proposed body armor amendment, with an effective date of November 1, 2003, and to authorize staff to make technical and conforming changes passed unanimously.

Miscellaneous Amendments

General Counsel Tetzlaff introduced miscellaneous technical and conforming changes in six areas, stating that the proposed amendment accomplishes the following:

(1) Amends §1B1.1 (Application Instructions) to (A) provide an instruction that makes clear that the application instructions are to be applied in the order presented in the guideline; (B) revise Application Note 4 to make clear that, absent an instruction to the contrary, Chapter Two enhancements, Chapter Three adjustments, or determinations under Chapter Four that are triggered by the same conduct are to be applied cumulatively; and (C) provide an application note concerning the use of abbreviated guideline titles to ease reference to guidelines that have exceptionally long titles.

(2) Restructures the definitions of "prohibited sexual conduct" in §§2A3.1 (Criminal Sexual Abuse) and 4B1.5 (Repeat and Dangerous Sex Offender Against Minors) to eliminate possible ambiguity regarding the interaction of "means" and "includes".

(3) Amends §2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical) by adding red phosphorus to the Chemical Quantity Table in response to a recent classification of red phosphorus as a List I chemical.

(4) Amends the departure provision in Application Note 6 of §2G2.1 (Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material; Custodian Permitting Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage in Production) to conform to Application Note 12 of §2G1.1 (Promoting Prostitution or Prohibited Sexual Conduct).

(5) Amends subsection (b)(5) of §2G2.2 (Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, or Advertising Material Involving the Sexual Exploitation of a Minor; Possessing Material Involving the Sexual Exploitation of a Minor with Intent to Traffic) to include receipt and distribution in the enhancement for use of a computer. Currently the enhancement only applies to offenses in which a computer was used for the transmission of child pornography.

(6) Responds to new miscellaneous legislation and amends the statutory index in Appendix A to include miscellaneous new offenses contained in the Farm Security and Rural Investment Act of 2002, the Animal Health Protection Act, and similar statutes.

General Counsel Tetzlaff stated that a motion would be in order to promulgate the proposed amendments, with an effective date of November 1, 2003, and to authorize staff to make technical and conforming changes.

Vice Chair Steer moved to promulgate the miscellaneous amendments as described by General Counsel Tetzlaff. Seconded by Commissioner O'Neill.

Vice Chair Steer stated that the proposed amendment regarding cumulative application of guideline adjustments is a very important amendment. He noted that there is considerable jurisprudence related to the guidelines that has developed over the years, and there has been much litigation regarding whether or not guideline enhancements that appear to overlap or account for the same factor are to be applied cumulatively. Vice Chair Steer stated that, in his view, it is troubling that courts seemed to have invented a loosely-called "anti-double counting" doctrine that does not exist in the guidelines manual. He added that the Commission works very hard to be conscious of the situations where double-counting is not desired and states so explicitly, intending the provisions of the manual to be applied cumulatively in the order provided absent an instruction to the contrary. Vice Chair Steer stated that he hopes this amendment will curtail the doctrine of "anti-double counting". He stated that while he does not fault any defense counsel for arguing this point, the defense bar can be assured that the Commission will continue to be conscious of unwanted double counting.

Commissioner O'Neill stated that he is troubled by increases in punishment that are by findings based upon less than a beyond a reasonable doubt standard. He said that he is concerned with the cumulative application of the guidelines as well as the body armor enhancement in this regard. Commissioner O'Neill stated that while this seems to fall within the letter of Apprendi v. New Jersey, findings by less than a reasonable doubt standard do not fall within the spirit of Apprendi. He added that he previously has expressed concern about the operation of relevant conduct. Commissioner O'Neill stated that he is not convinced that the Commission is not best served by having Congress pass specific statutes criminalizing specific conduct and requiring that the Department of Justice prove all elements of the offense, rather than providing the Commission with general directives for sentencing enhancements. He added that he raises this as a global concern.

Chair Murphy then called for a vote on the miscellaneous amendments. The motion to promulgate the miscellaneous amendments, effective November 1, 2003, and to authorize staff to make technical and conforming changes passed unanimously.

Undischarged Terms of Imprisonment

General Counsel Tetzlaff introduced the proposed amendment regarding undischarged terms of imprisonment, stating that the proposed amendment addresses a number of issues in §5G1.3 (Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment).

First, this amendment proposes to clarify the rule for application of subsection (b) to a prior term of imprisonment. There has been litigation regarding what "fully taken into account" means. The proposed amendment makes clear that subsection (b) shall apply only to prior offenses that are relevant conduct to the instant offense of conviction and that resulted in an increase in the offense level for the instant offense.

Second, this proposed amendment addresses how this guideline applies in cases in which an instant offense is committed while the defendant is on federal or state probation, parole, or supervised release, and has had such probation, parole, or supervised release revoked. Under this amendment, the sentence for the instant offense may be run concurrently, partially concurrently, or consecutively to the undischarged term of imprisonment, although the Commission recommends a consecutive sentence.

Third, this amendment provides a new downward departure provision in §5K2.22 regarding discharged terms of imprisonment. This provision replaces the departure provision previously set forth in Application Note 7.

Finally, this proposed amendment addresses a circuit conflict regarding whether the sentencing court may grant "credit" for time served in state prison for an undischarged sentence covered under subsection (c). Proposed Application Note 3(D) addresses the circuit conflict by making clear that the court may not give "credit" for time served on an undischarged term of imprisonment covered under subsection (c). Ordinarily a sentence for the instant offense imposed to run concurrently to such an undischarged term of imprisonment is sufficient to achieve a reasonable punishment for the instant offense of conviction. However, in an extraordinary case under subsection (c), the proposed amendment authorizes a downward departure.

General Counsel Tetzlaff stated that a motion would be in order to promulgate this amendment with an effective date of November 1, 2003, and to authorize staff to make technical and conforming changes.

Vice Chair Steer moved to promulgate the proposed amendment to §5G1.3 as described by General Counsel Tetzlaff. Seconded by Vice Chair Sessions.

Chair Murphy called for the vote. The motion to promulgate the proposed amendment regarding undischarged terms of imprisonment, with an effective date of November 1, 2003, and to authorize staff to make technical and conforming changes, passed unanimously.

Chair Murphy stated that this concluded the meeting agenda. There being no additional comment from commissioners, she adjourned the meeting at 10:50 a.m.