Minutes from March 23, 2006

Minutes of the March 23, 2006
United States Sentencing Commission
Public Meeting Minutes

Chair Hinojosa called the telephone conference meeting to order at 6:25 PM in the Commissioners’ Conference Room.

The following Commissioners were present via telephone:

· 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

The following staff participated in the meeting:

· Judith Sheon, Staff Director
· Pamela Barron, Deputy General Counsel, OGC

There was no report from the Chair or the Staff Director. The Chair called on Ms. Barron to advise the Commission on the vote to promulgate an emergency amendment relating to steroids.

Ms. Barron stated that the proposed amendment implements the directive in the United States Parole Commission Extension and Sentencing Commission Authority Act of 2005, Pub. L. 109–76, which requires the Commission, under emergency amendment authority, to implement section 3 of the Anabolic Steroid Control Act of 2004, Pub. L. 108–358 (the "ASC Act"). The ASC Act directs the Commission to "review the Federal sentencing guidelines with respect to offenses involving anabolic steroids" and "consider amending the. . .guidelines to provide for increased penalties with respect to offenses involving anabolic steroids in a manner that reflects the seriousness of such offenses and the need to deter anabolic steroid trafficking and use. . . ." The Commission must promulgate an amendment not later than 180 days after the date of enactment of the United States Parole Commission Extension and Sentencing Commission Authority Act of 2005, which creates a promulgation deadline of March 27, 2006.

Ms. Barron explained that the proposed amendment implements the directives by increasing the penalties for offenses involving anabolic steroids. It does this by changing the manner in which anabolic steroids are treated under §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy). Currently, one unit of an anabolic steroid "means a 10 cc vial of an injectable steroid or fifty tablets." The proposed amendment eliminates the sentencing distinction between anabolic steroids and other Schedule III substances when the steroid is in a pill, capsule, tablet, or liquid form. Accordingly, if an anabolic steroid is in a pill, tablet, capsule, or liquid form, the court would sentence as it would in any other case involving a Schedule III substance. For anabolic steroids in other forms (e.g., patch, topical cream, aerosol), the proposed amendment instructs the court that it shall make a reasonable estimate of the quantity of anabolic steroid involved in the offense, and in making such estimate, consider that each 25 mg of anabolic steroid is one "unit".

Ms. Barron noted that the proposed amendment provides new enhancements in §2D1.1(b)(6) and (b)(7). Proposed subsection (b)(6) would provide a two-level enhancement if the offense involved the distribution of an anabolic steroid and a masking agent and provides a definition of "masking agent" in the application notes. Proposed subsection (b)(7) would provide a two-level enhancement if the defendant distributed an anabolic steroid to an athlete and provides a definition of "athlete" in Application Note 25. The proposed amendment also amends Application Note 8 of §2D1.1 to provide that an adjustment under §3B1.3 (Abuse of Position of Trust or Use of Special Skill) ordinarily would apply in the case of a defendant who used his or her position as a coach to influence an athlete to use an anabolic steroid.

The Chair called for a motion to adopt the proposed amendment. Vice Chair Castillo made a motion to adopt the proposed amendment, with Commissioner Howell seconding the motion. Hearing no further discussion, the Chair called for a vote. The emergency amendment was adopted by a unanimous vote with an effective date of March 27, 2006, with authority for the staff to make technical and conforming amendments and with the authority to post the staff report on steroids on the Commission’s website.

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 Vice Chair Sessions 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 6:30 PM.