Minutes from February 14, 2007

Minutes of the February 14, 2007
United States Sentencing Commission
Public Meeting Minutes

Chair Ricardo H. Hinojosa called the meeting to order at 10:20 a.m. in the Commissioners’ Conference Room.

The following Commissioners were present:

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

The following Commissioner was present via telephone:

· Michael E. Horowitz, Commissioner

The following staff participated in the meeting:

· Judith Sheon, Staff Director
· Kenneth Cohen, General Counsel

The following individuals participated in the meeting:

· Drew Arena, Assistant General Counsel for Legal Compliance, Verizon Communications, Inc.
· Paul R. Almanza, Deputy Chief, Department of Justice, Criminal Division, Child Exploitation and Obscenity Section
· Evelyn Fortier, Vice President of Public Policy, Rape, Abuse & Incest National Network (RAINN)
· Amy Baron-Evans, Sentencing Resource Counsel to the Federal Public and Community Defenders
· Stephen McCue, Federal Public Defender, District of New Mexico
· John Morton, Deputy Chief, Department of Justice, Criminal Division, Domestic Security Section
· Joseph Kohler, Assistant United States Attorney, District of Arizona
· Christina Cabanillas, Chief of Appeals, United States Attorneys Office, District of Arizona
· Jon Sands, Federal Public Defender, District of Arizona

The Chair called for a motion to adopt the minutes of the January 17, 2007, 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.

Chair Hinojosa announced that Ken Cohen is the Commission’s new General Counsel. Mr. Cohen, recently the Commission’s Deputy Staff Director, expressed his appreciation for the opportunity to serve the Commission in this new role and thanked Deputy General Counsels Pam Barron and Paula Desio for their leadership of the Office of the General Counsel during the past several months.

The Chair welcomed the individuals invited to participate in the meeting. He stated that the Commissioners appreciated hearing from participants in the criminal justice community and added that the views expressed by them will help the Commissioners and staff.

In the Staff Director’s report, Ms. Sheon reported that the Commission will post the fiscal year 2006 annual report and sourcebook to its website later in the week. The Staff Director thanked staff for completing the report and sourcebook earlier than in any prior year.

Chair Hinojosa introduced the first meeting topic, “pretexting.” The Chair informed the public that the Telephone Records and Privacy Protection Act of 2006, Pub. L. 109–476, created a new offense in 18 U.S.C. § 1039 pertaining to the fraudulent acquisition or disclosure of confidential telephone records, conduct which is also known as pretexting. Chair Hinojosa asked Mr. Arena to share his perspective on this matter.

Mr. Arena thanked the Commission for the chance to speak on this important issue. Mr. Arena’s presentation to the Commission covered five areas regarding pretexting: 1) a suggested working definition of pretexting offered to help guide the Commission during its deliberations; 2) the frequency and scope of pretexting activity experienced by Verizon; 3) the harms caused by pretexting; 4) the demographics of the perpetrators and victims of pretexting, and; 5) the types of organizations that engage in pretexting activities. A question and answer period followed Mr. Arena’s presentations. The Chair concluded the discussion on pretexting by thanking Mr. Arena for his participation.

The Chair introduced the next topic, sexual abuse and child exploitation offenses, specifically those types of offenses which were amended under the Adam Walsh Child Protection and Safety Act of 2006 (“the Adam Walsh Act” or “the Act”), Pub. L. 109–248. Chair Hinojosa invited Mr. Almanza to begin the discussion.

Mr. Almanza thanked the Commission and staff for the opportunity to present the Department of Justice’s proposals regarding the Adam Walsh Act. He stressed that the Department of Justice’s proposals were not directed toward increasing sentences overall but are focused on simply making changes required to implement the Act.

Ms. Fortier spoke on the impact that sexual abuse and child exploitation offenses have on victims of these offenses. She reported that victims suffer from nightmares, flashbacks, and emotional and/or psychological injuries and that these effects may last a lifetime. Victims of sexual abuse may exhibit passive-aggressive behavior, develop substance abuse problems, and are at risk of becoming sexual abusers themselves.

Ms. Baron-Evans and Mr. McCue conveyed to the Commission the concerns the federal defender community has regarding the provisions of the Act, especially the sex offender registration requirements. Both noted potential conflicts and gaps between the requirements of the Adam Walsh Act and the registration practices of the various states. Ms. Baron-Evans and Mr. McCue also cautioned the Commission about the possible impact any guideline amendments may have on Native Americans. A question and answer period followed the panel’s presentations and concluded with the Chair thanking the attendees for their participation.

The Chair welcomed the next panel to discuss immigration. As noted by Chair Hinojosa, immigration represents a significant and growing portion of the federal criminal docket. The Chair called on Mr. Morton to begin the discussion.

Mr. Morton urged the Commission to amend the table at §2L1.1 (Smuggling, Transporting, or Harboring an Unlawful Alien) concerning the number of aliens smuggled and the table at §2L2.1 (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) concerning the number of documents involved in an offense to better capture the types of cases now being prosecuted. He also asked the Commission to consider one of the amendment options submitted by the Department of Justice designed to eliminate the use of the “Taylor” or categorical approach currently used to sentence defendants for illegal re-entry offenses.
Mr. Kohler agreed with Mr. Morton’s statements regarding the need to eliminate the use of the categorical approach when sentencing illegal re-entry cases. He illustrated his point by citing statistics showing an increase in the number of times the categorical approach was litigated in the past five years.

Ms. Cabanillas also spoke about the need to eliminate the use of the categorical approach at sentencing. She noted the difficultly in obtaining from another court the documents necessary under this sentencing approach.

Mr. Sands cautioned the Commission about amending the immigration guidelines at this time. He noted that Congress is again likely to take up the issue. Mr. Sands suggested that if the Commission were to amend the guidelines now and then Congress were to pass immigration legislation, the Commission would have to amend the guidelines again. Mr. Sands observed that in such an event, the multiple versions of the guidelines would cause confusion in the field. He also raised the issue of the existence of early disposition programs or “fast-track” systems in some districts. Suggesting that the fast-track systems accounted for 75 percent of the nation’s immigration cases, he observed that the Commission is in fact promulgating guidelines that will cover only a small portion of the actual number of immigration cases. Mr. Sands stated that he was open to the approach proposed by the Department of Justice, but would reserve judgment until he saw impact data from the Commission. A question and answer period followed the panel’s presentations and concluded with the Chair thanking the attendees for their participation.

The Chair adjourned the meeting at 1:00 p.m.