Minutes from December 2, 2003

Minutes of the December 2, 2003
United States Sentencing Commission
Public Meeting Minutes

The following Commissioners and staff participated in the meeting held in Sarasota, Florida:

Ruben Castillo, Vice Chair
William K. Sessions, III, Vice Chair
John R. Steer, Vice Chair
Ricardo H. Hinojosa, Commissioner
John Richter, Ex Officio Commissioner
Timothy B. McGrath, Staff Director
Charles R. Tetzlaff, General Counsel

The following Commissioners and staff participated in the meeting via conference call from the Commissioners Conference Room, Washington, D.C.:

Michael E. O’Neill, Commissioner
Michael E. Horowitz, Commissioner
Judy Sheon, Special Counsel

The meeting was called to order at 11:30 a.m. by Vice Chair Castillo in Chair Murphy’s absence.

Vice Chair Castillo began the meeting by welcoming the public. He then requested a motion to approve the minutes from the November 2003 public meeting. A motion to approve the minutes was made by Vice Chair Steer and seconded by Vice Chair Sessions. The motion passed unanimously.

Vice Chair Castillo asked General Counsel Charles Tetzlaff to present for the Commission’s consideration the amendments being considered for a vote to publish, beginning with the Sex Abuse and Child Pornography Amendment. General Counsel Tetzlaff stated that the proposed amendment contained a number of proposals designed to implement directives to the Commission in the PROTECT Act related to child pornography and sexual abuse offenses. The amendment also addressed a number of issues raised by the Child Exploitation and Obscenity Section at the Department of Justice, case law, and calls to the Commission’s Helpline.

General Counsel Tetzlaff noted that the PROTECT Act created mandatory minimums and increased statutory maximum penalties for offenses relating to the trafficking of child pornography. The proposed amendment included a number of options to increase the base offense level for section 2G2.2, the child pornography trafficking guideline, in response to these statutory changes. The PROTECT Act also created new child pornography offenses which included directives to the Commission to ensure that such offenses have appropriate guideline penalties. The proposed amendment contained a number of options for addressing these new offenses. Because the PROTECT Act increased the statutory maximum penalties for simple possession of child pornography offenses, changes were proposed in § 2G2.4, the child pornography possession guideline. In addition, the proposed amendment contained an option to consolidate §§ 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) and 2G2.4 (Possession of Materials Depicting a Minor Engaged in Sexually Explicit Conduct) into one guideline. A number of options with alternative base offense levels and enhancements for distribution or engaging in a pattern of activity also were proposed.

The amendment proposed increases in the base offense level and new enhancements for § 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) as a result of the PROTECT Act changes to both mandatory minimum and statutory maximum penalties. In addition, three issues for comment were included.

General Counsel Tetzlaff stated that the proposed amendment would create a new guideline in § 2G1.3 in an effort specifically to address cases involving travel and transportation of minors for illegal sexual activity. Such an approach would allow this new guideline to address the travel cases, with § 2A3.2 (Criminal Sexual Abuse of Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts), to which these cases presently are cross referenced, more specifically targeting the statutory rape cases, most of which involve Native American defendants. Such an approach was recommended by the Commission’s Ad Hoc Advisory Group on Native American Sentencing Issues. In addition, the proposed amendment would refer the offense of using a misleading domain name on the Internet, 18 U.S.C. § 2252B, a new offense created under the PROTECT Act, to § 2G3.1 (Importing, Mailing, or Transporting Obscene matter; Transferring Obscene Matter to a Minor) and proposed a number of enhancements.

In an effort to resolve a circuit conflict, the amendment proposed to amend those guidelines dealing with the imposition of conditions of probation and conditions of supervised release by adding a condition limiting or prohibiting the use of a computer if the defendant was convicted of certain sexual abuse or sexual exploitation offenses and either used, or the offense involved, the use of a computer.

Finally, in response to another directive in the PROTECT Act, amendments were proposed to the criminal sexual abuse guidelines to increase penalties involving sexual contact or sexual abuse of a ward, including two issues for comment regarding pattern of activity issues and whether an incest enhancement should be considered.

General Counsel Tetzlaff then stated that a motion would be in order to publish for comment this package of amendments relating to child pornography and sexual abuse of minors, including those changes authorized today, with a 60-day comment period, and with staff being authorized to make technical and conforming changes as necessary.

Vice Chair Sessions so moved to publish the package of amendments relating to child pornography and sexual abuse of minors. Vice Chair Steer seconded the motion. The motion passed unanimously by roll call vote.

General Counsel Tetzlaff stated that the next package of proposed amendments addressed offenses involving public corruption. Part One proposed to consolidate §§ 2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe) and 2C1.7 (Fraud Involving Deprivation of the Intangible Right to the Honest Services of Public Officials). Part Two proposed to consolidate §§ 2C1.2 (Offering, Giving, Soliciting, or Receiving a Gratuity) and 2C1.6 (Loan or Gratuity to Bank Examiner, or Gratuity for Adjustment of Farm Indebtedness, or Procuring Bank Loan, or Discount of Commercial Paper). This proposed amendment would move away from a guideline structure that relies heavily on monetary harm to determine the offense severity. While the proposed amendment generally would provide increased punishment for all bribery and gratuity offenses, it also would provide enhancements in both consolidated guidelines to address some of the aggravating factors that are involved in public corruption cases. The proposed amendment would increase the base offense level for all bribery and gratuity cases from 10 to 12 levels for bribery cases and from 7 to 9 levels for gratuity cases. Under a consolidated § 2C1.1, 18 U.S.C. §§ 1341-1343 offenses, currently sentenced under § 2C1.7, would be referenced in Appendix A (Statutory Index) to § 2C1.1.

The proposed amendment would make two major changes to the current "loss" and "public official" enhancements in both proposed consolidated guidelines. First, it would make the enhancement cumulative. Second, the proposed amendment proposes two new enhancements that focus on public officials. The first would modify the current "high-level or sensitive position" enhancement by providing a 2 to 4 level increase, and in §§ 2C1.1 and 2C1.2, minimum offense levels of 18 and 15, respectively, if the offense involved an unlawful payment for the purpose of influencing an official act of a public official in a high position of public trust. The corresponding application note would define public officials in high positions of public trust and include jurors in the definition. The second new enhancement pertaining to public officials would provide a 2 to 4 level increase if the defendant was a public official at the time of the offense. The proposed amendment also would provide a new 2 to 4 level enhancement if the offense involved an unlawful payment (1) to a United States Customs Border Protection Inspector; (2) to obtain a passport or a document relating to naturalization, citizenship, or legal entry or resident status; or (3) to obtain a government issued identification document. The proposed amendment would provide a definition of "public official" and include former public officials in that definition. Also, it would make clear that an unlawful payment may be anything of value, not necessarily a monetary payment. Several issues for comment also were included.

General Counsel Tetzlaff stated that a motion would be in order to publish this package of public corruption amendments for public comment, including those changes which the Commission made today, along with several issues for comment, all with a 60-day comment period, and with staff being authorized to make technical and conforming changes, if required.

Vice Chair Steer so moved to publish the package of amendments relating to public corruption. Vice Chair Sessions seconded the motion. The motion passed unanimously by roll call vote.

General Counsel Tetzlaff then addressed the proposed drug amendment which would make a number of amendments to §§ 2D1.1 and 2D1.11 and Appendix A. First, the proposed amendment addressed section 608 of the PROTECT Act by increasing the offense levels for GHB, a schedule I depressant, and GBL, a precursor for GHB. The proposed amendment provided two options for increasing the penalties for GHB in the Drug Equivalency Tables of Application Note 10 of § 2D1.1 and two options for increasing the penalties for GBL in § 2D1.11.

Second, the proposed amendment would add to Application Note 5 a reference to controlled substance analogues by providing that any reference to a particular controlled substance also includes any analogue of that controlled substance, unless otherwise provided. Third, the proposed amendment would correct a technical error in the Drug Quantity Table of § 2D1.1 with respect to Schedule III substances. Fourth, the proposed amendment would update the statutory references in § 2D1.11(b)(2) and accompanying commentary to conform to statutory redesignations. Fifth, the proposed amendment would add White Phosphorus and Hypophosphorous Acid to the Chemical Quantity Table in § 2D1.11(e). Sixth, the proposed amendment would modify Appendix A (Statutory Index) by eliminating a reference to a nonsubstantive criminal provision.

The proposed amendment included four issues for comment regarding (1) offenses involving anhydrous ammonia; (2) an enhancement for distribution of controlled substances and other illegal substances over the Internet; (3) drug facilitated sexual assault; and (4) a circuit conflict pertaining to Application Note 12 of section 2D1.1, which was most recently noted in United States v. Smack.

Finally, the package included an amendment to repeal the current "mitigating role cap" at section 2D1.1(a)(3) and replace it with an alternative approach. The proposed replacement would provide a gradually increasing mitigating role reduction based on drug quantity base offense levels under §§ 2D1.1 and 2D1.11. This alternative approach would maintain the current distinctions among mitigating role defendants, rather than capping the drug quantity base offense level at level 30 for all qualifying defendants. This approach would "compress" the effect of increasing drug quantity above level 30, rather than capping it at that level. A broad issue for comment also was included.

General Counsel Tetzlaff stated that a motion would be in order to publish this package of drug amendments, including those revisions made today, with a 60-day comment period and with staff being authorized to make technical and conforming changes, if required.

Ex Officio Commissioner Richter inquired whether the Commission could consider any amount of GHB between the one liter referenced in option one and the five liters in option two for the amendment to the Drug Equivalency Tables. General Counsel Tetzlaff confirmed that the amendment as drafted would preserve consideration of any amount between one and five liters. Mr. Richter also stated that the Department of Justice continued to advocate a general repeal of the mitigating role cap. He expressed the Department’s hope to provide more information during the comment period concerning this issue.

Vice Chair Castillo stated that his vote to publish the proposed amendments would not indicate his approval of the change to the mitigating role cap. Vice Chair Sessions stated that he was concerned about the impact of the alternative approach to the mitigating role cap on low level offenders. Commissioner O’Neill remarked that although he would vote in favor of the issues for purposes of publication, the Commission needed to consider further whether the intended goals of the amendments could be reached by other means.

Vice Chair Steer moved to publish the package of amendments relating to drugs, including today’s revisions, all with a 60-day comment period and with staff authorized to make technical and conforming changes, if needed. Commissioner Hinojosa seconded the motion. The motion passed unanimously by roll call vote.

General Counsel Tetzlaff then addressed the proposed amendments to the homicide and assault guidelines which were intended to address longstanding proportionality concerns and to implement the congressional directive in the 21st Century Department of Justice Appropriations Authorization Act. First, the amendment proposed increases in the base offense levels for second degree murder, voluntary manslaughter, and involuntary manslaughter in order to address proportionality issues among the homicide guidelines and between the homicide guidelines and other offense guidelines, such as kidnapping and the production of child pornography. The amendment also proposed to add a special instruction in the involuntary manslaughter guideline, § 2A1.4, that if the offense involved involuntary manslaughter of more than one victim, multiple counts should be applied as if the involuntary manslaughter of each victim had been contained in a separate count of conviction, in order to ensure incremental punishment for multiple victims. An issue for comment was included regarding whether such an instruction should be added to each of the other homicide guidelines.

Second, the amendment proposed a number of changes to the assault guidelines and the Chapter Three adjustment relating to official victims in response to a congressional directive contained in the 21st Century Department of Justice Appropriations Authorization Act. The Act directed the Commission to provide an appropriate sentencing enhancement for offenses involving assaulting or threatening a federal judge or any other official described in section 111 or 115 of title 18, United States Code. The Act also increased a number of the statutory maximum terms of imprisonment for offenses committed against certain federal officials. The changes proposed to implement the Act also would complement the proposed amendments to the homicide guidelines. Issues for comment were included regarding whether the base offense level in the assault guideline should be reduced, whether the aggravated assault guideline should contain an enhancement for the involvement of a dangerous weapon, whether the assault guidelines should be consolidated, and whether the Chapter Three adjustment for official victims should provide a tiered approach.

General Counsel Tetzlaff stated that a motion would be in order to publish for comment this package of homicide and assault guideline amendments, to include changes made today, all with a 60-day comment period and with staff being authorized to make technical and conforming changes, if required.

Vice Chair Steer so moved and Vice Chair Sessions seconded the motion. The motion passed unanimously by roll call vote.

General Counsel Tetzlaff then addressed the proposed amendment that would create a new guideline at §2K2.6 (Possessing, Purchasing or Owning Body Armor by Violent Felons) in response to the new offense at 18 U.S.C. § 931 created in the 21st Century Department of Justice Appropriations Authorization Act, which prohibited persons with a prior state or federal felony conviction for a crime of violence from purchasing, owning or possessing body armor. The amendment proposed possible base levels of 8, 10, or 12 for the new guideline and an enhancement of 4 levels if the armor was used in connection with "a crime of violence" or "drug trafficking crime" or "another offense." It included an application note to address the interplay with §3B1.5 (Use of Body Armor in Drug Trafficking Crimes and Crimes of Violence).

General Counsel Tetzlaff then stated that a motion would be in order to publish for comment the body armor guideline amendment, with a 60-day comment period and with staff being authorized to make technical and conforming changes, if required.

Vice Chair Sessions so moved and Commissioner Hinojosa seconded the motion. The motion passed unanimously by roll call vote.

General Counsel Tetzlaff then addressed the miscellaneous amendments package consisting of ten amendments. One of the ten proposed amendments would make clear that the two level enhancement for violation of a prior judicial order in the fraud/theft guideline is defendant based and not offense based. Another proposed amendment to the fraud/theft guideline proposes would expand the special multiple victim rule for offenses involving stolen United States mail to include mail collection and delivery units that serve multiple postal customers. Another proposed amendment would make the two level enhancement at §2B1.1(b)(9) applicable to offenses involving authentication features.

In light of the new substantive offense in the PROTECT Act for the use of a minor in crimes of violence, another proposed amendment would creates a new guideline at §2X6.1 (Use of a Minor to Commit a Crime of Violence) directing the court to increase by two, four, or six levels the offense level from the guideline applicable to the offense of which the defendant was convicted if the offense involved the use of a minor. An issue for comment also was included.

Another proposed amendment sought to conform the definition of "crime of violence" in §4B1.2 to the definition provided in §2L1.2 by including a specific reference to statutory rape and sexual abuse of a minor. The proposed amendment also would add to the definition of "crime of violence" possession of a sawed-off shotgun and other firearms such as silencers, machine guns, and destructive devices. Another proposed amendment sought to update Chapter Six and, in particular, would incorporate amendments made to Rules 11 and 32 of the Federal Rules of Criminal Procedure, effective December 1, 2002.

General Counsel Tetzlaff indicated that a motion would be in order to publish for comment this package of miscellaneous amendments, all with a 60-day comment period and with staff being authorized to make technical and conforming changes, if required.

Commissioner Horowitz so moved and Commissioner O’Neill seconded the motion. The motion passed unanimously by roll call vote.

General Counsel Tetzlaff stated that in its annual submission to the Commission dated August 1, 2003, the Department of Justice recommended that guideline penalties be increased if the offense involved the use or attempted use of a destructive device known as the man-portable air defense system (MANPADS). MANPADS are portable rockets and missiles that pose particular risks due to their portability, potential range, accuracy, and destructive power. The Commission had before it a proposed amendment to address that concern by increasing the enhancement in §2K2.1(b)(3) for involvement of these types of destructive devices from two levels to as many as seven levels and correspondingly increasing the maximum cumulative offense level in the guideline from level 29 to level 34. An issue for comment followed regarding whether the increase should pertain to all destructive devices within the meaning of 26 U.S.C. § 5845(f) or only to MANPADs and similar weapons, or to some other subcategory of destructive devices, or whether there should be graduated increases for different kinds of destructive devices.

Similarly, the Department of Justice urged the Commission to increase guideline penalties for attempts and conspiracies to commit certain offenses if those offenses involved use of MANPADS or similar destructive devices. In response to this concern, the amendment proposes to amend the special instruction in §2X1.1(d) to prohibit application of the three level reduction for attempts and conspiracies for these offenses generally, and not just in the context of the use of MANPADS or similar destructive devices. Three issues for comment were included.

General Counsel Tetzlaff stated that a motion would be in order to publish for comment this MANPAD amendment, as revised by the Commission today, along with the issues for comment, all with a 60-day comment period and with staff being authorized to make technical and conforming changes, if required.

Commissioner Horowitz suggested that instead of bracketing the maximum cumulative offense level in §2K2.1 at level 34, the Commission should first consider whether there should be an increase to the maximum cumulative offense level. He also raised a question as to whether the statutory maximum applies in these circumstances. Vice Chair Steer stated that there should be further consideration and investigation in the firearms category regarding differences among destructive devices. Ex Officio Commissioner Richter thanked the Commission and staff for their efforts to address this area.

Commissioner Horowitz moved to publish the MANPADS amendment. Commissioner O’Neill seconded the motion. The motion passed unanimously by roll call vote.

General Counsel Tetzlaff then stated that the Department of Justice requested that the Commission revise the guideline treatment of transportation of hazardous materials under §2Q1.2 (Mishandling of Hazardous or Toxic Substances or Pesticides; Recordkeeping, Tampering and Falsification; Unlawfully Transporting Hazardous Materials in Commerce), which was originally intended to cover pollution-type cases, not the catastrophic occurrence that could occur in the transporting of hazardous materials. He stated that Commission staff met with the Department of Justice Environmental Crimes Section, which recommended the creation of a separate guideline for hazardous material transportation cases. Commission staff had concluded that there were numerous and complex issues raised by this proposal, but at this stage a number of issues for comment should be published. In the meantime the Commission and staff could consider what kind of time frame would be appropriate to address this issue.

General Counsel Tetzlaff stated that a motion would be in order to publish the issues for comment relating to hazardous materials, with a 60-day comment period and with staff authorized to make technical and conforming changes, if required.

Ex Officio Richter expressed his appreciation to the Commission and staff for their attention to this area.

Vice Chair Steer moved to publish the hazardous materials issues for comment, seconded by Commissioner Horowitz. The motion passed unanimously by roll call vote.

There being no further business, Vice Chair Castillo adjourned the public meeting at 12:18 p.m.