Minutes from January 7, 2004

Minutes of the January 7, 2004
United States Sentencing Commission
Public Meeting Minutes

Vice Chair Castillo called the meeting to order at 10:05 a.m. in the Commissioners Conference Room.

The following Commissioners and staff participated in the meeting:

Ruben Castillo, Vice Chair
William K. Sessions, III, Vice Chair
John R. Steer, Vice Chair
Ricardo Hinojosa, Commissioner
Michael E. Horowitz, Commissioner
Michael E. O’Neill, Commissioner
Deborah J. Rhodes, Ex Officio Commissioner
John Richter, Ex Officio Commissioner
Timothy B. McGrath, Staff Director
Charles Tetzlaff, General Counsel
Judith Sheon, Special Counsel

Vice Chair Castillo began by explaining why he was presiding over the meeting. He explained that Chair Murphy had submitted her letter of resignation to the President and her resignation would be effective at the end of January. Vice Chair Castillo added that he could talk at great length about what Chair Murphy had meant to the Commission, but it was not the appropriate time to do so. He stated that all commissioners owed her a great deal of gratitude for what she had done for the Commission, and for the personal sacrifices she made while serving as Chair. He stated that the public meeting would be followed by an executive meeting to discuss how to structure the interim period while awaiting the new Chair. He stated that at an appropriate time the Commission would express its gratitude for Chair Murphy.

Vice Chair Castillo stated that Vice Chair Sessions was confirmed for a new six year term with the Commission. He also introduced Deborah J. Rhodes, the new Ex Officio Commissioner for the Department of Justice. Vice Chair Castillo also thanked John Richter for the period that he served as interim Ex Officio Commissioner.

Ex Officio Commissioner Rhodes thanked Vice Chair Castillo for the welcome and the introduction. She stated that she looked forward to her time at the Commission and to working with the Commission’s staff.

Vice Chair Castillo stated that on the agenda there were three proposed matters to be voted on for publication in the Federal Register. He asked Staff Director McGrath if he had any announcements. Staff Director McGrath noted that the minutes of the last meeting had been circulated. Vice Chair Castillo asked if there was a motion to approve the minutes of the December public meeting. Commissioner Steer moved to approve the minutes, seconded by Commissioner O’Neill. The minutes were approved unanimously by voice vote.

Proposed Amendment: Immigration

Vice Chair Castillo called on General Counsel Charles Tetzlaff to summarize the first issue on the agenda, the immigration proposal.

General Counsel Tetzlaff stated that the proposed amendment would make changes to §2L1.1 (Smuggling of Unlawful Alien guideline) and §2L2.2 (Fraudulently Acquiring or Improperly Using a United States Passport guideline). He noted that, with respect to the smuggling guideline, the proposed amendment would provide enhancements of [2], [4], or [6] levels if the defendant smuggled an alien knowing the alien intended to commit a crime of violence or controlled substance offense, and alternatively, a [12] level enhancement with a floor of [32], if the alien intended to engage in terrorist activity, as that term is defined by statute. General Counsel Tetzlaff stated that an issue for comment was included regarding the appropriate interaction between this proposed terrorism enhancement and the terrorism adjustment at §3A1.4 (Terrorism).

General Counsel Tetzlaff noted that the proposed amendment would make three significant changes to the smuggling guideline in cases in which death occurred. First, it would remove the increase of 8 levels if death resulted from the current specific offense characteristic that primarily deals with bodily injury. Instead, it would provide for a stand alone specific offense characteristic of [8], [10], or [12] levels with a floor of [25] to [30] if death resulted. Second, the proposed amendment would expand the cross reference to cover deaths other than murder, if the resulting offense level were greater than the offense level determined under §2L1.1. Third, the proposed amendment would provide a new special instruction for cases involving multiple deaths which, when applicable, would apply the guideline as if each death were a separate count of conviction. It also would provide additional offense levels for the number of unlawful aliens involved in the offense; [11] to [12] levels would be added if the offense involved 200 to 299 aliens, and [13] to [18] levels for 300 or more aliens.

General Counsel Tetzlaff stated that, with respect to the immigration documentation fraud guideline, the proposed amendment would make several changes. First, it would increase the base offense level from level 8 to level [10] or [12]. Second, it would increase by [2] levels the current enhancements regarding aliens who had been deported on one or more occasions, or for defendants who previously had been convicted of one or more felony immigration offenses. The proposed amendment also would provide a new [4] to [10] level enhancement if the defendant was a fugitive. Finally, it would provide for a new [2] to [8] level enhancement if the defendant fraudulently used or obtained a United States passport. General Counsel Tetzlaff stated that an issue for comment was included regarding whether the fugitive enhancement should include fugitive status in a foreign country.

General Counsel Tetzlaff stated that a motion would be in order to publish for comment these proposed amendments to §§2L1.1 and 2L2.2 in the Federal Register along with the two issues for comment with a sixty day comment period, and to authorize staff to make technical and conforming changes if needed.

Vice Chair Steer moved to publish the proposed amendments along with the two issues for comment. Seconded by Commissioner Hinojosa.

Commissioner Horowitz stated that he was abstaining from voting on both of the proposed amendments because of the sentiment within the Commission to consider broader changes with regard to §§2L1.1 and 2L2.2. Commissioner Horowitz believed that the changes to §§2L1.1 and 2L2.2 should be undertaken all at once, rather than some changes undertaken this year and others at a later date. He stated that it would be in the institutional interest of the Commission to make changes to these guidelines in one undertaking. Commissioner Horowitz noted that the immigration guideline was changed in 2001, 2002 and 2003, that the Commission might be amending this guideline again in 2004, and would most likely change it again in 2005. He stated that annual changes to this guideline are detrimental to prosecutors, defense attorneys, probation officers, and judges. Commissioner Horowitz stated that he was abstaining from voting to publish the proposed amendments because, although he agreed with the proposed changes, he disagreed with the process. He stated that the Commission was overwhelming the system with its annual tinkering of the immigration guideline.

Vice Chair Castillo stated that he shared some of Commissioner Horowitz’s concerns. Nevertheless, he stated that the Commission continues to improve certain areas in response to the country’s needs and prosecutorial needs that the country is now facing in this new era after September 11th. Vice Chair Castillo stated that there is a sentiment within the Commission that amendments to the immigration guideline should be undertaken in a two year process. He stated that in the future the criminal justice community will be hearing more from the Commission, as the Commission struggles with the immigration area. Vice Chair Castillo stated that the yearly amendments to the immigration guideline unfortunately have been necessary to respond to the needs of the criminal justice community.

Vice Chair Steer stated that he was in favor of publishing the proposed amendments. He stated that it was remarkable that within the proposed amendments there was nothing mentioned relating to the unlawful entry guideline, §2L1.2. Vice Chair Steer stated that the Commission has worked very hard to come up with further amendments to address some of the problems that have been brought to the Commission’s attention with respect to §2L1.2. He stated that at this stage the Commission was unable to reach a consensus about what to publish, and therefore the Commission was unable to complete changes to the unlawful entry guideline in the current amendment cycle. Vice Chair Steer mentioned the possibility of compiling a list of issues for comment that would highlight some of the issues with respect to the unlawful entry guideline in order to continue a dialogue with the field and to address some of the concerns.

Vice Chair Sessions stated that he supported publication of the proposed amendments because they were appropriate issues to consider. Vice Chair Sessions stated that next year he wants the Commission to address wholeheartedly the immigration issue. He stated that this could entail going out into the field and hearing from the individuals who practice in this particular area, specifically focusing on the Southwestern states. Vice Chair Sessions stated that it was important to open this issue for comment in order to make a final determination on how this guideline should work and prevent yearly revisitation of the immigration guideline. He stated that the immigration guideline should be the top issue on the following year’s agenda.

Vice Chair Castillo requested that Staff Director McGrath take a roll call vote. Commissioner O’Neill voted yes. Commissioner Horowitz abstained. Commissioner Hinojosa voted yes. Vice Chair Steer voted yes. Vice Chair Sessions voted yes. Vice Chair Castillo voted yes. The motion passed by a vote of five and one abstention.

Issues for Comment: Implementation of the CAN-SPAM Act of 2003

Vice Chair Castillo asked General Counsel Tetzlaff to introduce the proposed issues for comment on the implementation of the CAN-SPAM Act of 2003, Public Law 108-187. General Counsel Tetzlaff stated that on December 16, 2003, the President signed the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, better known as the CAN-SPAM Act of 2003. The Act became effective January 1, 2004. The Act was directed against predatory and abusive use of commercial electronic mail. Section 4 of the Act created a new criminal offense codified at 18 U.S.C. § 1037 entitled "Fraud and Related Activity in Connection with Electronic Mail." Section 4(b)(1) of the Act directed the Commission to review and, as appropriate, amend the sentencing guidelines and policy statements to establish appropriate penalties for violations of 18 U.S.C. § 1037 and other offenses that may be facilitated by the sending of a large volume of unsolicited mail. General Counsel Tetzlaff stated that the Commission was proposing a request for comment regarding the most appropriate amendments that might be made to the guidelines to implement the directive. He stated that the request for comment would address such issues as: what are the appropriate guideline penalties; should the new offenses be referenced to §2B1.1, the fraud and theft guideline, or to some other guidelines; what is the appropriate base offense level; should commentary be added to that guideline that ensures application of the multiple victim enhancement or the mass marketing enhancement; are there circumstances under which an offense under 18 U.S.C. § 1037 could be considered to involve sophisticated means; should §2B1.1 contain an enhancement for defendants who obtain e-mail addresses through improper means, or knew that the commercial e-mail messages involved an internet domain for which the registrant had provided false registration information; what are the appropriate guideline penalties for offenses other than 18 U.S.C. § 1037, such as offenses involving fraud, identity theft, obscenity, child pornography, and the sexual exploitation of children, that may be facilitated by the sending of a large volume of unsolicited e-mail; should the Commission consider providing an additional enhancement for the sending of a large volume of unsolicited e-mail; and what constitutes a large volume of unsolicited e-mail.

General Counsel Tetzlaff stated that, with respect to another new statute under the CAN-SPAM Act prohibiting the transmission of sexually oriented material without certain required warning labels, the Commission was requesting comment on whether to reference this offense in Appendix A to §2G2.2, the child pornography guideline, or to §2G3.1, the obscenity guideline, and whether any enhancements should be added.

General Counsel Tetzlaff stated that a motion would be in order to publish these issues for comment with a sixty day comment period, and to authorize staff to make technical and conforming changes, if needed.

Commissioner O’Neill moved to publish the request for comment on the CAN-SPAM Act issues. Seconded by Vice Chair Steer.

The motion to publish a request for comment on the CAN-SPAM Act issues, and to authorize staff to make technical and conforming changes, passed unanimously by voice vote.

Proposed Amendment Regarding Analogues and Drugs Not Listed in §2D1.1

Vice Chair Castillo asked General Counsel Tetzlaff to introduce the proposed amendment regarding analogues and drugs not listed in §2D1.1. General Counsel Tetzlaff pointed out that at its previous meeting in December, the Commission voted to publish a similar drug analogue amendment. This proposed amendment would make some modest adjustments in language from that which previously was published. This proposed amendment would provide an application note regarding controlled substances not currently referenced in §2D1.1. The note would direct the court to use the marihuana equivalency of the closest analogue of the controlled substance in order to determine the base offense level.

General Counsel Tetzlaff stated that a motion would be in order to publish the proposed amendment. He recommended that due to the number of proposed amendments before the Commission in this amendment cycle, and since a similar amendment previously had been published, the Commission make a finding that it was more practical to shorten the public comment period to coincide with that set in the prior notice, March 1, 2004. Finally, he recommended that staff be authorized to make technical and conforming changes if needed.

Vice Chair Steer moved to publish the proposed amendment regarding analogues and drugs not listed in §2D1.1, to waive the usually applicable sixty day comment period in order to accomplish the objectives outlined, to provide for an abbreviated comment period, and to authorize staff to make technical and conforming changes. Seconded by Vice Chair Sessions.

Commissioner Horowitz asked how soon the notice for publication would appear in the Federal Register. Special Counsel Sheon stated that under normal circumstances the notice for publication appears three to five days from the date of submission. She stated that the notice would probably appear by the following week; however Federal Register publications recently had been delayed, so the notice might appear later. General Counsel Tetzlaff added that an analogue proposal is currently out in circulation; therefore the public is already on notice that the Commission is considering the analogue issue. Commissioner Horowitz stated that his concern was to get the notice in on time, with the understanding that the sixty day period might be shortened, but without trying to shorten the comment period to the March 1st date. Special Counsel Sheon stated that, following the meeting, the proposed amendments to the guidelines would be available immediately to the public on the Commission’s website.

Vice Chair Castillo called for a voice vote on the motion. The motion passed unanimously by voice vote.

Vice Chair Castillo ended the meeting by stating that it had been a privilege for staff and all commissioners to work with Chair Murphy. Vice Chair Castillo thanked staff and commissioners for their hard work. He adjourned the meeting at 10:34 a.m.