Minutes from January 11, 2006

Minutes of the January 11, 2006
United States Sentencing Commission
Public Meeting Minutes

Chair Hinojosa called the meeting to order at 3:05 PM in the Commissioners’ Conference Room.

The following Commissioners were present:

· Judge Ricardo Hinojosa, Chair
· Judge Ruben Castillo, Vice Chair
· Judge William K. Sessions, III, Vice Chair
· John R. Steer, Vice Chair
· Michael E. Horowitz, Commissioner
· Beryl Howell, Commissioner
· Michael Elston, Commissioner Ex Officio
· Edward F. Reilly, Jr., Commissioner Ex Officio

The following staff participated in the meeting:

· Judith Sheon, Staff Director
· Charles Tetzlaff, General Counsel, OGC

I. Miscellaneous Items of Business

Prior to his report, Chair Hinojosa asked if there was a motion to adopt the November 15, 2005, public meeting minutes. Vice Chair Steer proposed two minor grammatical changes. Vice Chair Castillo moved that they be approved as amended by Vice Chair Steer’s changes. The motion was seconded by Commissioner Howell. The meeting minutes were unanimously approved.

II. Report of the Chair

The next item of business was the Chair’s Report. Chair Hinojosa announced that Judy Sheon, after serving as the Commission’s Interim Staff Director for six months, has accepted the permanent position of Staff Director.

The Chair then announced that the Commission will be releasing a new dataset, current through December 21, 2005. The dataset contains 54,624 cases and it will be available on the Commission’s website. The Chair stated that the Commission will publish a post-Booker report compiled by the staff.

The Chair reminded the audience that the Commission will publish a request for comment on many items the Commissioners will vote on later in the meeting.

The Chair announced the retirement of the General Counsel, Mr. Charles Tetzlaff, at the end of February. All the Commissioners expressed their appreciation for the General Counsel’s service to the Sentencing Commission.

Mr. Tetzlaff expressed his appreciation for having been given the privilege to serve as the Sentencing Commission’s General Counsel.

A vacancy announcement for the position of General Counsel has been posted, with an application deadline of February 3, 2006.

III. Report of the Staff Director

Ms. Sheon began her report by thanking the Commission for the opportunity to serve as Staff Director. She also thanked Mr. Tetzlaff on behalf of the staff. Ms. Sheon noted that Mary Harris, an OGC Confidential Assistant, will be retiring February 3, 2006. Ms. Sheon reported that the 2005 Guidelines Manual has been printed and distributed. She added that 64 districts were currently submitting their documents to the Commission electronically, and that she hoped to have 100% of the districts participating in electronic submission by the end of FY 2006.

IV. Votes for Publication in Federal Register

Immigration: The Chair called on Mr. Tetzlaff to advise the Commissioners on the next item of business, the vote on several proposed amendments to the immigration guidelines. Mr. Tetzlaff informed the Commissioners that the issues contained in the four-part proposed amendment package were identified via Helpline calls to the Commission, feedback from Commission-sponsored training seminars, public comment, and information from an immigration roundtable discussion conducted by members of the Commission’s staff. The General Counsel proceeded to supply the Commission with an overview of the proposals contained in the immigration guidelines package.

The first amendment proposal concerns §2L1.1 (Smuggling of Aliens). With respect to national security concerns, the amendment contains two options. Option One provides for a base offense level (BOL) of 25 for a conviction under 8 U.S.C. § 1327 involving an alien inadmissible for security reasons as defined at 8 U.S.C. § 1182. Option Two provides for a specific offense characteristic (SOC) with an increase of 2-, 4-, or 6-levels for a defendant who smuggles, transports, or harbors an alien inadmissible under 8 U.S.C. § 1182. Mr. Tetzlaff turned next to the issue of the number of aliens involved in the offense under §2L1.1 and again presented two options for the Commissioners’ consideration. The first option preserves the current guideline structure and amends the table in §2L1.1 by adding a 9-level increase for offenses involving 100 to 199 aliens; a 12-level increase for 200 to 299 aliens; and a 15-level increase for offenses involving 300 or more aliens. The second option provides for smaller categories at the low end of the table and somewhat higher offense levels at the upper end of the table. The second option also includes an issue for comment on whether the table’s 3-level increments should be modified in the future.

With respect to endangerment to minors, the proposed amendment presents two options. The first option provides a 2-, 4-, or 6-level increase if the defendant smuggles a minor unaccompanied by the minor’s parent. The second option provides for a graduated increase based on the age of the minor. In addition, there is a request for comment on whether the risk of smuggling a minor would be better addressed as a Chapter Three Adjustment under §3A1.1 (Hate Crime Motivation/Vulnerable Victim).

With respect to alien smuggling offenses in which death occurred, several changes to the guidelines are proposed. First, the proposal removes from the bodily injury SOC the 8-level increase if death occurs and places the increase in a stand-alone SOC, while also raising the increase to 10-levels. In addition, the proposal expands a cross-reference at §2L1.1 to cover deaths other than murder.

With respect to abducting aliens or holding aliens for ransom, the proposal suggests an SOC with a 4-level increase and a minimum BOL of 23 in cases in which an alien is held through threats, coercion, or deception.

Part Two of the proposal regards §2L2.1 (Trafficking in Documents Relating to Naturalization and Citizenship and U.S. Passports) and §2L2.2 (Fraudulently Acquiring Documents Relating to Naturalization and Citizenship and U.S. Passports). With respect to the number of documents, the proposal provides for two options for §2L2.1 to amend the SOC involving the number of documents and passports involved in the offense. The two options are similar to the proposals made to §2L1.1 regarding the number of aliens involved in the offense. Option One maintains the nature of the table, while amending the table to provide for a 12-level increase for offenses involving 299 documents and a 15-level increase for offenses involving 300 or more documents. The proposed amendment includes a new SOC at §2L2.1 providing for a 4-level increase where the defendant fraudulently used or obtained a U.S. passport. This same SOC was included in §2L2.2 effective November 1, 2004. The addition of the proposed SOC promotes proportionality between the document fraud guidelines, §2L2.1 and §2L2.2. The proposal also provides for a 2-level increase in the SOC in cases in which the defendant fraudulently used or obtained a foreign passport.

Part Three of the proposed immigration guideline amendment package concerns §2L1.2 (Unlawful Entry) and is related to offenses sentenced under §2L2.2. The §2L1.2 guideline requires courts to adopt the categorical approach to assess whether a prior conviction qualifies for a particular category under the guideline. This is a complicated analysis. Options One, Two, and Three propose using the guideline’s definition of “aggravated felony” in combination with the length of the sentence imposed in the prior felony conviction to determine the sentence. These three options are contrasted to the fourth option, which maintains the current guideline structure, but uses the statutory definition of “aggravated felony” found at 8 U.S.C. § 1101(a)(43). The fifth option in this part provides an increased BOL and a reduction if the offense is not a felony, placing the burden on the defendant to prove the nature of the prior offense.

Finally, in Part Four of the proposed amendments, there are multiple issues for comment regarding the immigration guidelines.

Mr. Tetzlaff advised the Commissioners that a motion to publish the proposed amendments for comment would be in order, with a 60-day comment period, with the staff being authorized to make technical and conforming changes if needed. Vice Chair Sessions moved to publish the proposed amendments for comment, with Vice Chair Castillo seconding. Vice Chair Castillo added that because immigration offenses represents over 20% of federal criminal cases, the amendment warrants careful review. He also underscored the importance of the upcoming regional public hearings the Commission will be holding in the southwest border area. Hearing no further discussion, the Chair called for a vote on the motion to publish the proposed immigration amendments for comment. The motion was adopted by a unanimous vote.

Firearms: The next amendment addressed multiple issues under §2K2.1 (Firearms) and other firearms provisions in the guidelines.

First, the proposed amendment addresses offenses involving a weapon described in 18 U.S.C. § 921(a)(30), which expired September 13, 2004. The proposed amendment offers two options for providing increases for weapons previously covered under the expired statute. Option One bases each of the four base offense level provisions on whether the offense involved high-capacity, semiautomatic firearms (defined as “a semiautomatic firearm that has a magazine capacity of more than [15] cartridges”). Option Two provides for an upward departure if the offense involved a high-capacity semiautomatic firearm. The proposed amendment also presents an issue for comment on the semiautomatic firearm definition, and whether any corresponding changes should be made to §5K2.17.

Second, the proposed amendment addresses firearms trafficking; it provides for a 2- to 4-level enhancement under §2K2.1 if the defendant engaged in the trafficking of 2 to 24 firearms or 6- to 8-levels for 25 or more firearms. The amendment borrows from the “trafficking” definition found in the United States Code, but makes two modifications to the definition. The amendment includes an issue for comment regarding the proposed “trafficking” definition.

Third, the proposed amendment modifies §2K2.1(b)(4), increasing the penalties for offenses that involve altered or obliterated serial numbers. The proposed amendment provides a 2-level enhancement for stolen firearms and a 4-level enhancement for offenses involving altered serial numbers. The amendment also makes slight technical changes to the application note.

Fourth, the proposed amendment addresses the circuit conflict in applying §§2K2.1(b)(5) and (c)(1). The courts are currently split on how the Smith standard applies with respect to the use of a firearm in burglary and drug offenses. Smith v. United States, 508 U.S. 223 (1993). The proposed amendment presents three options to resolve this conflict, which differ in terms of whether the mere presence of a firearm during the course of a burglary or drug offense is sufficient to trigger the enhancement; whether the mere presence is only sufficient in a drug offense; or whether the mere presence of a firearm will not trigger either §2K2.1(b)(5) or §2K2.1(c)(1).

Fifth, the proposed amendment modifies §5K2.11 (Lesser Harms), prohibiting a downward departure in any case in which a defendant is convicted under 18 U.S.C. § 922(g).

Last, the proposed amendment addresses the circuit conflict regarding whether pointing or waving a firearm at a specific person constitutes “brandishment” or “otherwise using.” The proposed amendment presents two options – Option One combines “brandished” and “otherwise used,” and Option Two presents the majority and minority circuit court views. Option One also includes an issue for comment on whether the Commission should make similar changes to other guidelines that have enhancements for brandishing and otherwise using a firearm.

Mr. Tetzlaff noted that a motion to publish the proposed amendment for comment would be in order, with a 60-day comment period, and with authorization for the staff to make technical and conforming changes if needed. Commissioner Howell moved to publish the amendment for comment, with Vice Chair Steer seconding. Vice Chair Steer added that the proposed firearm amendment shows the systematic fashion of the Commission’s work in trying to address policy and application issues. The Commission tries to respond to feedback from staff, courts, the Helpline, public comment, and the legal community. Hearing no further discussion, the Chair called for a vote to publish the proposed firearms amendment for comment. The motion was adopted unanimously.

Steroids: The next amendment increases the penalties for offenses involving anabolic steroids, by changing their treatment under §2D1.1. The Commission received a directive from Congress in the Anabolic Steroid Control Act of 2004 to review the guidelines and consider increasing the penalties for offenses involving anabolic steroids to reflect the seriousness of the offenses and need to deter their trafficking and use. Emergency amendment authority was extended with a 180-day promulgation date, ending on March 27, 2006. Two options to increase penalties are proposed. Option One bases the offense level for anabolic steroid offenses on the “actual” quantity of steroid involved in the offense, with one unit equaling 25-, 50-, or 100-milligrams of a steroid. The definition of unit includes the various steroid delivery methods, such as creams, patches, inhalants, etc., with a rebuttable presumption that the steroid label accurately reflects the purity of the steroid. Option Two eliminates the sentencing distinction between anabolic steroids and other Schedule III substances, defining one unit as one pill, tab, or capsule.

The proposed amendment also includes sentence enhancements to address cases that involve masking agents and the distribution to professional or college athletes, including increased penalties for coaches who distribute anabolic steroids to their athletes. There are two options that address the coaching issue – the first provides for a 2-level increase under §2D1.1, and the second amends Application Note 2 of §3B1.3. The amendment also includes three issues for comment.

The General Counsel stated that the Commission is acting under emergency amendment authority, and is subject to a 180-day promulgation period; the promulgation deadline is March 27, 2006. Mr. Tetzlaff then noted that a motion to publish the proposed amendment for comment would be in order, with the staff being authorized to make technical and conforming changes if needed. He added that there would be an abbreviated (30-day) public comment period. The amendment would become permanent in 60 days. Vice Chair Sessions moved to publish the amendment for comment, with Vice Chair Steer seconding. Hearing no further discussion, the Chair called for a vote on the motion to publish the amendment for comment. The motion was adopted by unanimous vote.

Intelligence Reform: The next amendment implements a number of provisions of the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. 108-458; specifically, the amendment adds specific offense characteristics and/or references the new offenses created under Sections 5401, 6702, 6803, 6903, 6905, and 6906 of the Act. The amendment also provides an issue for comment.

Mr. Tetzlaff noted that a motion to publish the proposed amendment for comment would be in order, with a 60-day comment period, and the staff being authorized to make technical and conforming changes if needed. Vice Chair Castillo moved to publish the amendment for comment, with Commissioner Howell seconding. Hearing no further discussion, the Chair called for a vote on the motion, with the motion being adopted unanimously.

Miscellaneous Laws: The next amendment implements miscellaneous enacted laws. Specifically, the amendment references new offenses and/or provides increased penalties to address: The Veterans’ Memorial Preservation and Recognition Act of 2003, the Plant Protection Act of 2002, the Clean Diamond Trade Act of 2003, the Unborn Victims of Violence Act of 2004, the Farm Security and Rural Investment Act of 2002, the Social Security Administration Act, the Consumer Product Protection Act of 2002, the Justice for All Act of 2004, and the Video Voyeurism Prevention Act of 2004. The proposed amendment also creates a new guideline at §2X5.2 to capture all Class A misdemeanors not otherwise provided for in a more specific Chapter Two guideline.

Mr. Tetzlaff noted that a motion to publish the proposed amendment for comment would be in order, with a 60-day comment period, and the staff being authorized to make technical and conforming changes if needed. Vice Chair Steer moved to publish the proposed amendment for comment, with Commissioner Howell seconding. Hearing no further discussion, the Chair called for a vote on the motion to publish the proposed miscellaneous laws amendment for comment. The motion was adopted by a unanimous vote.

Application Issues: The next amendment addresses several guideline application issues that were identified through the Commission’s Helpline inquiries and at guideline seminars. The proposed amendment modifies the cross reference in §2D1.1, adds a new guideline, §3C1.3, to Chapter Three, and deletes language from the Drug Quantity Table in §2D1.1.

Mr. Tetzlaff noted that a motion to publish the proposed amendment for comment would be in order, with a 60-day comment period, and the staff being authorized to make technical and conforming changes if needed. Commissioner Howell moved to publish the proposed amendment for comment, with Commissioner Castillo seconding. Hearing no further discussion, the Chair called for a vote on the motion to publish the proposed application issues amendment for comment. The motion was adopted by a unanimous vote.

Circuit Conflicts: The next amendment addresses a circuit conflict about whether pre-investigative conduct can be a basis for adjustment under §3C1.1. The proposed amendment would allow §3C1.1 to apply to pre-investigative conduct if that conduct was intended to prevent or hinder the investigation, prosecution, or sentencing of the offense. The amendment also addresses two additional circuit conflicts about the application of §3C1.1 to specific types of conduct, by amending Application Note 4(b).

Mr. Tetzlaff noted that a motion to publish the proposed amendment for comment would be in order, with a 60-day comment period, and the staff being authorized to make technical and conforming changes if needed. Chair Hinojosa indicated that the Commission had changed the citation to United States v. Clayton to reflect the fact that the Fifth Circuit discussed the guideline in dicta. The Commission also changed the signal introducing that citation from “See” to “See Also.” Vice Chair Castillo moved to publish the proposed amendment for comment, with Vice Chair Steer seconding. Hearing no further discussion, the Chair called for a vote on the motion and the motion to publish the proposed amendment for comment was adopted by a unanimous vote.

Chapter Eight Waiver of Privilege/Work Product Protections: The next amendment addresses recent requests for the Commission to modify or remove language from the attorney-client privilege/work product waiver in §8C2.5(g), Application Note 12. There is an issue for comment on the matter.

Mr. Tetzlaff noted that a motion to publish the proposed amendment for comment would be in order, with a 60-day comment period, and the staff being authorized to make technical and conforming changes if needed. Vice Chair Steer moved to publish the amendment for comment, with Vice Chair Castillo seconding the motion. Vice Chair Castillo added that the Commission’s reconsideration of the issue is a serious matter, adding that the Commission needs specific information on the issue’s adverse effects. Hearing no further discussion, the Chair called for a vote to publish the proposed Chapter Eight amendment for comment. The motion to publish the proposed amendment for comment was passed by a unanimous vote.

Obstruction of Justice/Terrorism. The next proposed amendment re-promulgates, as a permanent amendment, the temporary emergency amendment that responded to Section 6703 of the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. 108-458. The proposed amendment provides a 12-level enhancement in §2J1.2 if the defendant is convicted under 18 U.S.C. § 1001 or § 1505 and the sentencing enhancement provision regarding international or domestic terrorism applies. The proposed enhancement also provides a new application note instructing the court to refrain from applying the new enhancement if an adjustment under §3A1.4 (Terrorism) applies.

Mr. Tetzlaff noted that a motion to publish the proposed amendment for comment would be in order, with a 60-day comment period, and the staff being authorized to make technical and conforming changes if needed. Commissioner Howell moved to publish the amendment for comment, with Vice Chair Castillo seconding. Hearing no further discussion, the Chair called for a vote on publishing the proposed obstruction of justice amendment for comment. The motion was adopted by a unanimous vote.

Transportation. The next proposed amendment implements several provisions of the Safe, Accountable, Flexible, Efficient Transportation Act: A Legacy for Users, Pub. L. 109-59; specifically, the amendment revises several guidelines, amends several guideline headings, and references the new offenses created under Sections 3402, 4102, and 4210 of the Transportation Act. The amendment also provides an issue for comment.

Mr. Tetzlaff noted that a motion to publish the proposed amendment for comment would be in order, with a 60-day comment period, and the staff being authorized to make technical and conforming changes if needed. Commissioner Horowitz moved to publish the amendment for comment, with Vice Chair Castillo seconding. Hearing no further discussion, the Chair called for a vote and the motion was adopted by a unanimous vote.

Intellectual Property (FECA). The next proposed amendment proposes to re-promulgate, as a permanent amendment, the temporary emergency amendment that implemented the directive in section 105 of the Family Entertainment and Copyright Act of 2005, Pub. L. 109-9.

The proposed amendment provides a 2-level increase if the offense involved a pre-release work. The amendment also adds language to Application Note 2 about pre-release works. The proposed amendment modifies and clarifies the current definition of “uploading” to include making an infringing item available on the Internet by storing the item as an openly shared file.
The proposed amendment also addresses the directive by amending Application Note 2 to codify the courts’ current practice into the guideline. The proposed amendment also references the new offense at 18 U.S.C. § 2319B in Appendix A to §2B5.3.

Mr. Tetzlaff noted that a motion to publish the proposed amendment for comment would be in order, with a 60-day comment period, and the staff being authorized to make technical and conforming changes if needed. Vice Chair Sessions moved to publish the amendment for comment, with Vice Chair Castillo seconding. Hearing no further discussion, the Chair called for a vote on publishing the proposed intellectual property amendment for comment. The motion was passed by a unanimous vote.

False Domain Names/CANSPAM: The next proposed amendment implements the directive in Section 204(b) of the Intellectual Property Protection and Courts Amendments Act of 2004, Pub. L. 108-482; and implements the new offense in section 5(d) of the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM Act”), Pub. L. 108-187, 15 U.S.C. § 7704(d).

The proposed amendment implements the false registration of a domain name directive by providing a new Chapter Three guideline for cases in which a statutory enhancement under 18 U.S.C. § 3559(f)(1) applies.

The proposed amendment also references the new offense under the CAN-SPAM Act to §2G2.5. The amendment also expands the §2G2.5 (Recordkeeping Offenses) heading specifically to cover the offenses under 15 U.S.C. § 7704(d).

Mr. Tetzlaff noted that a motion to publish the proposed amendment for comment would be in order, with a 60-day comment period, and the staff being authorized to make technical and conforming changes if needed. Commissioner Howell moved to publish the amendment for comment, with Vice Chair Steer seconding. Hearing no further discussion, the Chair called for a vote to publish the proposed false domain names/CAN-SPAM amendment for comment. The motion was passed by a unanimous vote.

Crime Victims Rights: The next proposed amendment amends Chapter Six to provide a policy statement regarding crime victims’ rights.

Mr. Tetzlaff noted that a motion to publish the proposed amendment for comment would be in order, with a 60-day comment period, and the staff being authorized to make technical and conforming changes if needed. Commissioner Howell moved to publish the amendment for comment, with Vice Chair Sessions seconding. Hearing no further discussion, the Chair called for a vote to publish the proposed crime victims’ rights amendment for comment. The motion was adopted by a unanimous vote.

Compassionate Release: The last proposed amendment implements the directive in 28 U.S.C. § 994(t), and provides a new policy statement at §1B1.13. The policy statement restates the statutory basis for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A), and provides that in all cases the court must make a determination that the defendant is no longer a danger to the community. The amendment also proposes an Application Note and an issue for comment.

Mr. Tetzlaff noted that a motion to publish the proposed amendment for comment would be in order, with a 60-day comment period, and the staff being authorized to make technical and conforming changes if needed. Vice Chair Steer moved to publish the amendment for comment, with Vice Chair Castillo seconding. Vice Chair Castillo commented that the Commission would very much like to hear from the public about the sentencing reductions based on the Bureau of Prisons motion, which is why the Commission decided to include an issue for comment. Vice Chair Steer commented that this amendment fulfills part of the Commission’s original statutory mandate, but cautioned that there is a practical limit on what the Commission can do in this area. Hearing no further discussion, the Chair called for a vote on the motion to publish the proposed compassionate release amendment for comment. The motion was passed by a unanimous vote.

Commissioner Howell commended the steroid and immigration policy teams on their work. She also thanked the staff for conducting the immigration roundtable and working on the Senate briefing, which the commissioner believes was an important part of the record.

V. Adjourn

The Chair asked if there was any further business before the Commission. Hearing none, the Chair asked if there was a motion to adjourn the meeting. Vice Chair Castillo made a motion to adjourn the meeting, with Commissioner Horowitz seconding the motion. After asking if there was any discussion on the motion and hearing none, the Chair submitted the motion to voice vote. The motion was adopted unanimously, and the meeting was adjourned at 4:23 PM.