Minutes from August 25, 2004

Minutes of the August 25, 2004
United States Sentencing Commission
Public Meeting Minutes

Chair Hinojosa called the meeting to order at 10:00 a.m. in the Commission Conference Room.

The following Commissioners and staff participated in the meeting:

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

Chair Hinojosa expressed his appreciation to Judge Castillo for having chaired the previous meetings and to his fellow Commissioners for taking on some of the responsibilities of Judge Murphy since her resignation from the Commission. He stated that Judges Wilkins, Conaboy, and Murphy were hard acts to follow and it would be difficult to fill their shoes. Nevertheless, he felt that taking on the job of Chair was exciting, challenging, and occurring at an opportune time. He stated that the job was made much easier because of the knowledge, experience, and collegiality that his fellow Commissioners brought to the table. The job was also made easier by the dedication and hard work of both the Staff Director, Tim McGrath, and the entire Commission staff. He stated that the staff was dedicated, hard working, and performed in an excellent manner.

Chair Hinojosa announced that one of the things to be voted on was the list of priorities for the upcoming amendment cycle. With regard to the upcoming oral argument before the United States Supreme Court in U.S. v. Booker and U.S. v. Fanfan, Chair Hinojosa said that the Commission’s belief continued to be that the Federal Sentencing Guidelines were constitutional, as was expressed by Commissioners in recent testimony before the Senate Judiciary Committee. This view would be reasserted in an amicus brief which the Commission would file with the United States Supreme Court. In addition, the Commission would continue to monitor viewpoints from individuals and organizations from across the country whose views would continue to be studied from the perspective of making possible guideline changes.

Chair Hinojosa concluded by saying he was both excited and appreciative of having been given the opportunity to serve on the United States Sentencing Commission because it is a Commission that has so much to do with what he does on a regular basis in the court room. He noted that the Commission has an impact on numerous individuals throughout our society and across the country; and he thanks those who have given him the opportunity to serve as the Commission’s Chair.

Chair Hinojosa then called on the Staff Director for his report.

Staff Director McGrath indicated he had only one item to report. The Commission had been looking at various methods for receiving documentation from the courts. Currently, such documents are received through the United States Postal Service. The Commission has developed a pilot program whereby five districts will be testing an electronic submission process effective next week. If it works, the Commission will implement a process for receiving the information and documentation required by the PROTECT Act through an electronic filing system. Staff are working cooperatively with the courts as well as sharing the results of the pilot program with the Administrative Office of the U.S. Courts which is reviewing the system with us.

Chair Hinojosa then turned to approval of the April 2004 meeting minutes and inquired whether there were any additions or corrections.

Vice Chair Steer moved the following changes, without objection:

On page 4, under the section relating to the Chapter Eight Organizational Guidelines, second paragraph, second line, the word “ethic” should be plural, “ethics.”

On page 6, the middle paragraph that begins “Vice Chair Steer,” line 7, change “coupled by other” to “coupled with other.”

On page 18, top of page, carryover paragraph, third line, replace the words “with a base offense level of 22" with “a two level decrease as provided for receipt or solicitation in cases in which the defendant did not intend to traffic in or distribute the child pornography.” Vice Chair Steer felt it would be clearer to strike the phrase “with a base offense level of 22.”

On page 20, the paragraph beginning “Vice Chair Steer,” in the phrase “what he calls simple receipt in solicitation,” change the word “in” to “and.”

Chair Hinojosa proposed, without objection, a change in the second full paragraph on page 12 which begins “Commissioner Hinojosa stated his reasons . . .” by deleting the word “however” and placing a period after the phrase “he is a firm believer in the attorney/client privilege.”

Ex Officio Commissioner Rhodes proposed, without objection, changing the last two words on page 10 to read instead of “actual reduction” to “by allowing the reduction.”

Commissioner O’Neill suggested, without objection, changing the word “activity” which appears in the first line of the carryover paragraph from page 7 to page 8 to “activities” and the word “appears” in the next line to “appear.”

There being no further additions or corrections, Commission O’Neill moved to adopt the minutes as amended. Commissioner Horowitz seconded the motion. The April 8, 2004 minutes, as amended, were approved unanimously.

Chair Hinojosa then called on the General Counsel to address the next item on the agenda, notice of priorities.

General Counsel Tetzlaff noted that in accordance with Rule 5.2 of the Commission Rules of Practice and Procedure, the Commission published the notice of tentative priorities in June 2004. That notice included a request for public comment with a deadline of August 5, 2004. Comments were received from numerous entities, both within and outside the federal criminal justice system. After having reviewed and discussed the comment, the Commission has identified twelve areas as priorities for the coming amendment cycle which will end May 1, 2005. This could possibly extend into subsequent amendment cycles, depending upon a number of factors, probably the most important of which is Commission involvement in the Booker and Fanfan cases. There could also be congressional legislation that requires Commission action. All of this could impact on the priorities. A motion was deemed in order to adopt, publish, and make available for public inspection the draft proposed notice of priorities which was before the Commission.

Vice Chair Steer moved to adopt and publish the proposed notice of priorities. Commissioner Horowitz seconded. The motion to adopt, publish, and make available for public inspection the notice of priorities was unanimously passed.

Chair Hinojosa then asked the General Counsel to address the next agenda item, commentary amendments.

General Counsel Tetzlaff stated that annually the Office of Special Counsel carefully reviews the commentary and amendment language to ensure that the commentary language conforms to that in the amendments that the Commission promulgated during the past amendment cycle. These are technical and conforming changes to the commentary and would be effective at the same time the other amendments are effective, November 1 of this year. A motion was deemed in order to promulgate the summer commentary amendments with an effective date of November 1, 2004, with staff being authorized to make technical and conforming changes if needed.

Vice Chair Steer moved to promulgate the summer commentary amendments with an effective date of November 1, 2004, and with staff authorized to make technical and conforming changes if needed. Commissioner O’Neill seconded the motion. The motion passed unanimously.

Chair Hinojosa recognized a greater than usual presence of members of the public at the meeting. He expressed the Commission’s appreciation of the public’s interest in the Commission’s activities and encouraged the public to share its views on upcoming issues.

There being no further matters for discussion, Vice Chair Sessions moved to adjourn; Commissioners O’Neill and Horowitz both seconded; and the motion passed unanimously.

Chair Hinojosa adjourned the meeting at 10:16 a.m