Minutes from January 17, 2007

Minutes of the January 17, 2007
United States Sentencing Commission
Public Meeting Minutes

Chair Ricardo H. Hinojosa called the meeting to order at 1:38 p.m. in the Commissioners’ Conference Room.

The following Commissioners were present:

· Judge Ricardo H. Hinojosa, Chair
· Judge William K. Sessions, III, Vice Chair
· John R. Steer, Vice Chair
· Michael E. Horowitz, Commissioner
· Beryl Howell, Commissioner
· Dabney L. Friedrich, Commissioner
· Edward F. Reilly, Jr., Commissioner Ex Officio
· Benton J. Campbell, Commissioner Ex Officio

The following staff participated in the meeting:

· Judith Sheon, Staff Director
· Paula Desio, Deputy General Counsel, Office of the General Counsel

The Chair called for a motion to adopt the minutes of the October 18, 2006, public meeting. Commissioner Howell made the motion to adopt the minutes, with Vice Chair Steer seconding the motion. Hearing no further discussion, the Chair called for a vote. The motion was adopted by a unanimous vote of the Commissioners present at the October meeting, with newly appointed Commissioner Friedrich abstaining.

The Chair reported that the Commission now has a full complement of Commissioners with the appointment of Dabney L. Friedrich and the reappointment of Vice Chair Steer and Commissioner Howell. The Chair welcomed Commissioner Friedrich on behalf of the Commission.

In the Staff Director’s report, Ms. Sheon invited the public and staff to a reception to be held after the meeting to welcome the newly appointed Commissioners.

Chair Hinojosa called on Ms. Desio to inform the Commission on possible votes to publish in the Federal Register a set of proposed guideline amendments and issues for public comment.

Ms. Desio stated that the first proposed amendment related to transportation issues contained in the USA PATRIOT Improvement and Reauthorization Act of 2005 ("the PATRIOT Reauthorization Act"), Pub. L. 109–177 and the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users ("SAFETEA-LU"), Pub. L. 109–59. Provisions in both acts concern attacks against railroad carriers and mass transportation systems; interference with maritime vessels and facilities; theft or destruction of interstate commercial shipments; failure to release household goods, and violation of a commercial motor vehicle’s out-of-service order. The proposed amendment incorporates the provisions of both acts into the guidelines by creating new guidelines, amending existing guidelines, and updating Appendix A (Statutory Index). The proposed amendment also includes several issues for comment.

Ms. Desio advised the Commissioners that a motion to publish the proposed amendment would be in order, with a 60-day comment period, with the staff being authorized to make technical and conforming changes if needed. The Chair called for a motion as suggested by Ms. Desio. Commissioner Horowitz made a motion to publish the proposed amendment, with Vice Chair Steer seconding. Hearing no further discussion, the Chair called for a vote on the motion. The motion was adopted by a unanimous vote.

Ms. Desio informed the Commission on a possible vote to publish for public comment a proposed amendment concerning intellectual property. Ms. Desio stated that the proposed amendment re-promulgates the emergency amendment that responded to the directive contained in the Stop Counterfeiting in Manufactured Goods Act, Pub. L. 109–181. The proposed amendment includes two options to implement another provision in the directive, but which was not covered by the emergency amendment authority provided by the directive, and also includes two issues for comment.

Ms. Desio advised the Commissioners that a motion to publish the proposed amendment would be in order, with a 60-day comment period, with the staff being authorized to make technical and conforming changes if needed. The Chair called for a motion as suggested by Ms. Desio. Vice Chair Sessions made a motion to publish the proposed amendment, with Vice Chair Steer seconding. Hearing no further discussion, the Chair called for a vote on the motion. The motion was adopted by a unanimous vote.

Ms. Desio informed the Commission on a possible vote to publish an issue for comment concerning "pretexting." Ms. Desio stated that the Telephone Records and Privacy Protection Act of 2006, Pub. L. 109–476, created a new offense at 18 U.S.C. § 1039 pertaining to the fraudulent acquisition or disclosure of confidential telephone records ("pretexting"). The Act directs the Commission to review and, if appropriate, amend the guidelines applicable to the new offense not later than 180 days after enactment of the Act. The issue for comment requests comment regarding how best to implement this legislation.

Ms. Desio advised the Commissioners that a motion to publish the issue 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. The Chair called for a motion as suggested by Ms. Desio. Commissioner Howell made a motion to publish the issue for comment, with Commissioner Horowitz seconding. Hearing no further discussion, the Chair called for a vote on the motion. The motion was adopted by a unanimous vote.

Ms. Desio informed the Commission on a possible vote to publish for public comment a proposed amendment concerning sex offenses. Ms. Desio stated that the proposed multi-part amendment implements the sex offense provisions contained in the Adam Walsh Child Protection and Safety Act of 2006 ("the Adam Walsh Act" or "the Act"), Pub. L. 109–248. The Adam Walsh Act creates a federal requirement that defendants convicted of certain offenses register as a sex offender. The Act also establishes a three tier classification system for sex offenders based on the seriousness of the offense which gave rise to the requirement to register. In addition to creating new offenses, the Act increases the applicable statutory maximum term of imprisonment or increases the statutory minimum term of imprisonment for certain existing offenses. The proposed amendment addresses the Act’s provisions by creating new guidelines, including a guideline applicable for a defendant’s failure to register as a sex offender; changing existing guidelines to incorporate new offense conduct and increased penalties; and adding the requirement to register to the guidelines governing probation and supervised release. The proposed amendment also contains a number of issues for comment.

Ms. Desio advised the Commissioners that a motion to publish the proposed amendment would be in order, with a 60-day comment period, with the staff being authorized to make technical and conforming changes if needed. The Chair called for a motion as suggested by Ms. Desio. Commissioner Horowitz made a motion to publish the proposed amendment, with Vice Chair Steer seconding. Hearing no further discussion, the Chair called for a vote on the motion. The motion was adopted by a unanimous vote.

Ms. Desio informed the Commission on a possible vote to publish for public comment a proposed amendment concerning terrorism and national security. Ms. Desio stated that the proposed multi-part amendment implements the terrorism related provisions of the PATRIOT Reauthorization Act and the Department of Homeland Security Appropriations Act, 2007 ("Homeland Security Act"), Pub. L. 109–295. In addition to amending a number of terrorism related offenses, the PATRIOT Reauthorization Act creates several new offenses, including the offense at 21 U.S.C. § 960a covering narco-terrorism. The Homeland Security Act creates a new offense at 18 U.S.C. § 554 regarding border tunnels. The proposed amendment addresses the provisions of both acts by creating new guidelines, including a new guideline at §2X7.1 (Border Tunnels and Subterranean Passages); amending existing guidelines to include new offense conduct and changed penalties; and updating the statutory references in Appendix A. The proposed amendment also presents two issues for comment.

Ms. Desio advised the Commissioners that a motion to publish the proposed amendment would be in order, with a 60-day comment period, with the staff being authorized to make technical and conforming changes if needed. The Chair called for a motion as suggested by Ms. Desio. Commissioner Howell made a motion to publish the proposed amendment, with Vice Chair Steer seconding. Hearing no further discussion, the Chair called for a vote on the motion. The motion was adopted by a unanimous vote.

Ms. Desio informed the Commission on a possible vote to publish for public comment a proposed amendment concerning miscellaneous laws. Ms. Desio stated that Part One of the proposed amendment addresses the Respect for America’s Fallen Heroes Act, Pub. L. 109–228, which created a new offense in 38 U.S.C. § 2413, prohibiting certain demonstrations at Arlington National Cemetery and at cemeteries under control of the National Cemetery Administration. The proposed amendment references this new offense to §2B2.3 (Trespass). Part Two of this proposed amendment addresses the Violence Against Women and Department of Justice Reauthorization Act of 2005 ("VAWA"), Pub.L. 109–162. VAWA includes the International Marriage Broker Regulation Act of 2005 ("IMBRA"), which requires marriage brokers to collect background information about United States clients and places limitations on the marriage brokers’ sharing of information about foreign national clients. The proposed amendment refers the new offense to §2H3.1 (Interception of Communications; Eavesdropping; Disclosure of Tax Return Information). It also includes an issue for comment regarding implementation of the SAFE Port Act, Pub. L. 109–347, which prohibits the acceptance of any financial instrument for unlawful Internet gambling.

Ms. Desio advised the Commissioners that a motion to publish the proposed amendment would be in order, with a 60-day comment period, with the staff being authorized to make technical and conforming changes if needed. The Chair called for a motion as suggested by Ms. Desio. Vice Chair Steer made a motion to publish the proposed amendment, with Vice Chair Sessions seconding. Hearing no further discussion, the Chair called for a vote on the motion. The motion was adopted by a unanimous vote.

Ms. Desio informed the Commission on a possible vote to publish for public comment a proposed amendment concerning technical and clarifying amendments to the sentencing guidelines. Ms. Desio stated that the proposed amendment corrects typographical errors and addresses application of the grouping rules when a defendant is sentenced on multiple counts contained in different indictments.

Ms. Desio advised the Commissioners that a motion to publish the proposed amendment would be in order, with a 60-day comment period, with the staff being authorized to make technical and conforming changes if needed. The Chair called for a motion as suggested by Ms. Desio. Vice Chair Steer made a motion to publish the proposed amendment, with Commissioner Howell seconding. Hearing no further discussion, the Chair called for a vote on the motion. The motion was adopted by a unanimous vote.

Ms. Desio informed the Commission on a possible vote to publish an issue for comment concerning a motion for a reduction in sentence. Ms. Desio stated that the Commission proposes to publish an issue for comment requesting additional comment regarding the appropriate criteria and examples of extraordinary and compelling reasons for sentence reduction pursuant to the policy statement at §1B1.13 (Reduction in Term of Imprisonment as a Result of Motion by Director of Bureau of Prisons).

Ms. Desio advised the Commissioners that a motion to publish the issue 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. The Chair called for a motion as suggested by Ms. Desio. Vice Chair Steer made a motion to publish the issue for comment, with Commissioner Horowitz seconding. Hearing no further discussion, the Chair called for a vote on the motion. The motion was adopted by a unanimous vote.

Ms. Desio informed the Commission on a possible vote to publish for public comment a proposed amendment concerning drug offenses. Ms. Desio stated that the proposed amendment addresses the drug offense provisions contained in the PATRIOT Reauthorization Act and the Adam Walsh Act. The PATRIOT Reauthorization Act prohibits the smuggling of methamphetamine or any listed chemical while using a facilitated entry program for entry into the United States. The Adam Walsh Act prohibits the use of the Internet to distribute date rape drugs and mandates a consecutive term of imprisonment for manufacturing, distributing, or possessing with the intent to manufacture or distribute, methamphetamine on a premises in which a minor is present or resides. The proposed amendment changes existing guideline provisions and updates statutory references to address the new offense conduct and amended penalties contained in both acts. The proposed amendment also includes issues for comment.

Ms. Desio advised the Commissioners that a motion to publish the proposed amendment would be in order, with a 60-day comment period, with the staff being authorized to make technical and conforming changes if needed. The Chair called for a motion as suggested by Ms. Desio. Vice Chair Steer made a motion to publish the proposed amendment, with Commissioner Howell seconding. Hearing no further discussion, the Chair called for a vote on the motion. The motion was adopted by a unanimous vote.

Ms. Desio informed the Commission on a possible vote to publish an issue for comment concerning criminal history. Ms. Desio stated that the Commission has identified as a priority this amendment cycle the continuation of its policy work on Chapter Four (Criminal History and Criminal Livelihood). To assist the Commission with this work, issues for comment request public comment on the following issues: 1) the use of minor offenses in determining a defendant’s criminal history score; 2) whether there is an alternate point value that the Commission should consider assigning to minor offenses, or whether there is an alternative way of counting minor offenses for criminal history purposes, and 3) the definition of "related cases" under Application Note 3 of §4A1.2 (Definitions and Instructions for Computing Criminal History).

Ms. Desio advised the Commissioners that a motion to publish the issue 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. The Chair called for a motion as suggested by Ms. Desio. Vice Chair Sessions made a motion to publish the issue for comment, with Vice Chair Steer seconding. Hearing no further discussion, the Chair called for a vote on the motion. The motion was adopted by a unanimous vote.

Ms. Desio informed the Commission on possible vote to publish for public comment a proposed amendment concerning immigration. Ms. Desio stated that the proposed amendment provides two options for amending §2L1.1(b)(2) (Smuggling, Transporting, or Harboring an Unlawful Alien), and 2L2.1(b)(2) (Trafficking in a Document Relating to Naturalization, Citizenship, or Legal Resident Status, or a United States Passport; False Statement in Respect to the Citizenship or Immigration Status of Another; Fraudulent Marriage to Assist Alien to Evade Immigration Law) regarding the number of aliens and number of documents, respectively, involved in an offense. The proposed amendment also provides six options to address the complexity of the guideline found at §2L1.2 (Unlawfully Entering or Remaining in the United States) and includes two issues for comment.

Ms. Desio advised the Commissioners that a motion to publish the proposed amendment would be in order, with a 60-day comment period, with the staff being authorized to make technical and conforming changes if needed. The Chair called for a motion as suggested by Ms. Desio. Vice Chair Steer made a motion to publish the proposed amendment, with Vice Chair Sessions seconding. Hearing no further discussion, the Chair called for a vote on the motion. The motion was adopted by a unanimous vote.

Ms. Desio informed the Commission on a possible vote to publish an issue for comment concerning cocaine sentencing policy. Ms. Desio stated that the proposed issue for comment invites comment on any or all of the testimony received at the November 14, 2006, public hearing on federal cocaine sentencing policy, including comment on any of the suggestions at that hearing or any other suggestions (such as possible changes in the Drug Quantity Table) for addressing federal cocaine penalties.

Ms. Desio advised the Commissioners that a motion to publish the issue 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. The Chair called for a motion as suggested by Ms. Desio. Commissioner Howell made a motion to publish the issue for comment, with Vice Chair Sessions seconding. Hearing no further discussion, the Chair called for a vote on the motion. The motion was adopted by a unanimous vote.

The Chair thanked the staff on behalf of the Commission for its work during the current amendment cycle.

The Chair asked if there was any further business before the Commission and hearing none, called for a motion to adjourn the meeting. Vice Chair Steer made a motion to adjourn, with Vice Chair Sessions seconding the motion. The Chair called for a vote, and the motion was adopted unanimously. The meeting was adjourned at 2:30 p.m.