Minutes from April 18, 2007

Minutes of the April 18, 2007
United States Sentencing Commission
Public Meeting Minutes

Chair Ricardo H. Hinojosa called the meeting to order at 2:10 p.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
· Dabney L. Friedrich, Commissioner
· Michael E. Horowitz, Commissioner
· Beryl Howell, Commissioner
· Benton J. Campbell, Commissioner Ex Officio
· Edward F. Reilly, Jr., Commissioner Ex Officio

The following staff participated in the meeting:

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

The Chair called for a motion to adopt the minutes of the February 14, 2007, public meeting. Commissioner Howell made the motion to adopt the minutes, with Commissioner Horowitz seconding the motion. Hearing no further discussion, the Chair called for a vote and the motion was adopted by the Commission.

The Chair expressed his appreciation to the staff for their work during the current amendment cycle. He noted the importance of staff as its work enables the Commission to meet its statutory obligations under the Sentencing Reform Act. Chair Hinojosa also thanked the general public and members of the federal criminal justice system for their input on the matters before the Commission.

In the Staff Director’s report, Ms. Sheon expressed her personal thanks to the staff for its work during this amendment cycle.

Chair Hinojosa called on Mr. Cohen to inform the Commission on possible votes to promulgate amendments.

Mr. Cohen stated that the first proposed amendment addressed technical and conforming changes to the Guidelines Manual. The first part of the proposed amendment corrects typographical errors. The second part of the proposed amendment clarifies the application of the grouping rules when a defendant is sentenced on multiple counts contained in different indictments.

Mr. Cohen advised the Commissioners that a motion to adopt the proposed amendment would be in order, with an effective date of November 1, 2007, with the staff being authorized to make technical and conforming changes if needed. The Chair called for a motion as suggested by the General Counsel. Vice Chair Steer made a motion to adopt the proposed amendment, with Commissioner Howell seconding. Hearing no further discussion, the Chair called for a vote and the motion was adopted with at least four Commissioners voting in favor of the motion.

Mr. Cohen informed the Commission on a proposed amendment to make typographical corrections to subsection (b)(13)(C) of §2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States) and subsection (b)(1) of §2L1.1 (Smuggling, Transporting, or Harboring an Unlawful Alien).

Mr. Cohen advised the Commissioners that a motion to adopt the proposed amendment would be in order, with an effective date of November 1, 2007, with retroactive application, and with the staff being authorized to make technical and conforming changes if needed. The Chair called for a motion as suggested by the General Counsel. Commissioner Horowitz made a motion to adopt the proposed amendment, with Vice Chair Sessions seconding. Hearing no further discussion, the Chair called for a vote and the motion was adopted with at least four Commissioners voting in favor of the motion.

Mr. Cohen informed the Commission on a proposed amendment regarding miscellaneous laws. Mr. Cohen stated that the first part of the proposed amendment concerned 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 the new offense to §2B2.3 (Trespass) and expands the two-level enhancement in §2B2.3(b)(1) to include Arlington National Cemetery or a cemetery under the control of the National Cemetery Association. The second part of the proposed amendment addressed the SAFE Port Act, Pub. L. 109–347, by referring the new offense under 31 U.S.C. § 5363 to §2E3.1 (Gambling Offenses).

Mr. Cohen advised the Commissioners that a motion to adopt the proposed amendment would be in order, with an effective date of November 1, 2007, with the staff being authorized to make technical and conforming changes if needed. The Chair called for a motion as suggested by the General Counsel. Commissioner Howell made a motion to adopt the proposed amendment, with Vice Chair Sessions seconding. Hearing no further discussion, the Chair called for a vote and the motion was adopted with at least four Commissioners voting in favor of the motion.

Mr. Cohen informed the Commission on a possible vote to re-promulgate an emergency intellectual property amendment. Mr. Cohen stated that the proposed amendment re-promulgates the emergency amendment to §2B5.3 (Criminal Infringement of Copyright or Trademark), effective September 12, 2006, that responded to the directive contained in section 1(c) of the Stop Counterfeiting in Manufactured Goods Act, Pub. L. 109–181. The emergency amendment, however, did not address the portion of the directive pertaining to anti-circumvention devices. The proposed amendment, therefore, expands the specific offense characteristic in §2B5.3(b)(3) to include convictions under 17 U.S.C. § 1201(b) for trafficking in devices that circumvent a technological measure. The proposal also adds an application note regarding the determination of the infringement amount in cases under 17 U.S.C. §§ 1201 and 1204 in which the defendant circumvented a technological measure.

Mr. Cohen advised the Commissioners that a motion to adopt the proposed amendment would be in order, with an effective date of November 1, 2007, with the staff being authorized to make technical and conforming changes if needed. The Chair called for a motion as suggested by the General Counsel. Vice Chair Steer made a motion to adopt the proposed amendment, with Commissioner Friedrich seconding. Hearing no further discussion, the Chair called for a vote and the motion was adopted with at least four Commissioners voting in favor of the motion.

Mr. Cohen informed the Commission on a proposed amendment that implements the directive in section 4 of the Telephone Records and Privacy Act of 2006, Pub. L. 109–476. The directive instructs the Commission to promulgate an amendment under emergency amendment authority by July 11, 2007, addressing the new offense at 18 U.S.C. § 1039, which prohibits the acquisition of confidential telephone records by fraudulent means (“pretexting”). The proposed temporary, emergency amendment refers the offense to §2H3.1 (Interception of Communications; Eavesdropping; Disclosure of Tax Return Information), expands the three-level enhancement at §2H3.1(b)(1) for convictions under sections 1039(d) or (e), and adds an upward departure note under §2H3.1.

Mr. Cohen advised the Commissioners that a motion to adopt the proposed amendment would be in order, with an effective date of May 1, 2007, with the staff being authorized to make technical and conforming changes if needed. The Chair called for a motion as suggested by the General Counsel. Commissioner Howell made a motion to adopt the proposed amendment, with Commissioner Horowitz seconding. Hearing no further discussion, the Chair called for a vote and the motion was adopted with at least four Commissioners voting in favor of the motion.

Mr. Cohen informed the Commission on a proposed amendment concerning pretexting. The proposed amendment consolidates into one proposal the amendments to §2H3.1 pertaining to (A) re-promulgation of the emergency amendment regarding pretexting offenses under 18 U.S.C. § 1039 (previously presented as its own temporary, emergency amendment); (B) offenses involving the improper use of a child’s fingerprints under 42 U.S.C. §§ 16984 and 16962 (to implement part of the Adam Walsh Child Protection and Safety Act of 2006 (the “Adam Walsh Act”), Pub. L. 109–248); and (C) various other offenses relating to private or protected information.

Mr. Cohen advised the Commissioners that a motion to adopt the proposed amendment would be in order, with an effective date of November 1, 2007, with the staff being authorized to make technical and conforming changes if needed. The Chair called for a motion as suggested by the General Counsel. Commissioner Howell made a motion to adopt the proposed amendment, with Vice Chair Steer seconding. Hearing no further discussion, the Chair called for a vote and the motion was adopted with at least four Commissioners voting in favor of the motion.

Mr. Cohen informed the Commission on a proposed amendment concerning transportation offenses. The proposed amendment implements a number of provisions of 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, Pub. L. 109–59. The proposed amendment modifies several guidelines that cover protection of the nation’s transportation infrastructure, especially its maritime facilities and seaports, from acts of terrorism.

Mr. Cohen advised the Commissioners that a motion to adopt the proposed amendment would be in order, with an effective date of November 1, 2007, with the staff being authorized to make technical and conforming changes if needed. The Chair called for a motion as suggested by the General Counsel. Commissioner Horowitz made a motion to adopt the proposed amendment, with Commissioner Howell seconding. Vice Chair Steer commented on the provision of the amendment concerning organized cargo theft. He noted that he has discussed with representatives of the trucking industry the impact cargo theft has on both their members and society in general. The Vice Chair commended the Commission for addressing this important issue. Hearing no further discussion, the Chair called for a vote and the motion was adopted with at least four Commissioners voting in favor of the motion.

Mr. Cohen informed the Commission on a proposed amendment concerning terrorism offenses. The proposed amendment implements the PATRIOT Reauthorization Act and the Department of Homeland Security Appropriations Act, 2007, Pub. L. 109–295. The amendment creates two new guidelines, §2D1.14 (Narco-Terrorism) and §2X7.1 (Border Tunnels and Subterranean Passages), and amends several other guidelines to address the provisions of both Acts.

Mr. Cohen advised the Commissioners that a motion to adopt the proposed amendment would be in order, with an effective date of November 1, 2007, with the staff being authorized to make technical and conforming changes if needed. The Chair called for a motion as suggested by the General Counsel. Commissioner Howell made a motion to adopt the proposed amendment, with Commissioner Friedrich seconding. Hearing no further discussion, the Chair called for a vote and the motion was adopted with at least four Commissioners voting in favor of the motion.

Mr. Cohen informed the Commission on a proposed amendment concerning drug offenses. Mr. Cohen stated that the proposed amendment addresses the drug offense provisions contained in the PATRIOT Reauthorization Act and the Adam Walsh Act. The proposal adds a two-level enhancement to §§2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) and 2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy) for convictions under 21 U.S.C. § 865, smuggling methamphetamine or any listed chemical into the United States while using a facilitated entry program administered by the federal government. The Adam Walsh Act created a new offense at 21 U.S.C. § 841(g), which prohibits the use of the Internet to distribute date rape drugs. The amendment adds a two-level enhancement at §2D1.1 for convictions under section 841(g)(1)(A). The proposed amendment also responds to the new offense at 21 U.S.C. § 860a, which mandates an additional 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, by amending the “substantial risk enhancement” in §2D1.1.

Mr. Cohen advised the Commissioners that a motion to adopt the proposed amendment would be in order, with an effective date of November 1, 2007, with the staff being authorized to make technical and conforming changes if needed. The Chair called for a motion as suggested by the General Counsel. Vice Chair Castillo made a motion to adopt the proposed amendment, with Commissioner Howell seconding. Hearing no further discussion, the Chair called for a vote and the motion was adopted with at least four Commissioners voting in favor of the motion.

Mr. Cohen informed the Commission on a proposed amendment concerning sex offenses. The proposed amendment implements provisions of the Adam Walsh Act. The Adam Walsh Act created a new offense in 18 U.S.C. § 2250 for the failure to register as a sex offender. The proposed amendment implements the directive in section 141 of the Act, which instructs the Commission to consider five enumerated matters.

The proposed amendment provides a new guideline in §2A3.5 (Failure to Register as a Sex Offender) that implements 18 U.S.C. § 2250. The new guideline: 1) provides multiple base offense levels based on the category of offender; 2) provides an enhancement based on the commission of an enumerated offense while in failure to register status; and 3) addresses the directive to consider voluntary attempts to correct the failure to register by providing a reduction for such conduct. The proposed amendment also provides another new guideline for certain aggravated offenses related to the requirement to register as a sex offender. The new guideline, §2A3.6 (Aggravated Offenses Relating to Registration as a Sex Offender), will apply to convictions under 18 U.S.C. §§ 2250(c) or 2260A. The proposed amendment also: 1) implements several new offenses created by the Act; and 2) amends existing guidelines to respond to penalties increased by the Adam Walsh Act.

Mr. Cohen advised the Commissioners that a motion to adopt the amendment would be in order, with an effective date of November 1, 2007, with the staff being authorized to make technical and conforming changes if needed. The Chair called for a motion as suggested by the General Counsel. Commissioner Howell made a motion to adopt the proposed amendment, with Vice Chair Sessions seconding. Hearing no further discussion, the Chair called for a vote and the motion was adopted with at least four Commissioners voting in favor of the motion.

Mr. Cohen informed the Commission on possible vote to promulgate a proposed amendment concerning §1B1.13 (Reduction in Term of Imprisonment as a Result of Motion by Director of Bureau of Prisons). Mr. Cohen stated that the proposed amendment further refines §1B1.13 to provide examples of extraordinary and compelling reasons that may warrant a reduction in a term of imprisonment.

Mr. Cohen advised the Commissioners that a motion to adopt the proposed amendment would be in order, with an effective date of November 1, 2007, with the staff being authorized to make technical and conforming changes if needed. The Chair called for a motion as suggested by the General Counsel. Vice Chair Castillo made a motion to adopt the proposed amendment, with Vice Chair Steer seconding. Vice Chair Castillo thanked everyone who submitted comment on the issue of compassionate release and in particular noted the proposal submitted by the American Bar Association (ABA). While he supported the ABA’s proposal, he noted that there were concerns that some of factors may be too subjective. The Vice Chair stated that the Commission has met its statutory mandate with the proposed amendment and expressed his appreciation for the Commission’s support. Hearing no further discussion, the Chair called for a vote and the motion was adopted with at least four Commissioners voting in favor of the motion.

Mr. Cohen informed the Commission on a proposed amendment concerning criminal history. Mr. Cohen stated that the proposed amendment addresses two aspects of criminal history: minor offenses and related cases. The first part of the proposed amendment modifies subsection (c) of §4A1.2 (Definitions and Instructions for Computing Criminal History) to move to the excluded list of offenses at §4A1.2(c)(2) fish and game violations and local ordinance violations (except those violations that are also violations under state criminal law) and changes the probation criterion at §4A1.2(c)(1) from a term of “at least” one year to a term of “more than” one year. The second part of the proposed amendment addresses the rules pertaining to “related cases” in Application Note 3 of §4A1.2. The amendment eliminates the use of the term “related cases” and instead uses the terms “single sentence” and “separate sentence.”

Mr. Cohen advised the Commissioners that a motion to adopt the proposed amendment would be in order, with an effective date of November 1, 2007, with the staff being authorized to make technical and conforming changes if needed. The Chair called for a motion as suggested by the General Counsel. Vice Chair Steer made a motion to adopt the proposed amendment, with Vice Chair Castillo seconding. Vice Chair Steer made note of a change needed in the amendment as it appeared in the meeting materials. Hearing no objection to the proposed change and there being no further discussion, the Chair called for a vote and the motion was adopted with at least four Commissioners voting in favor of the motion.

The Chair stated that other priority issues remained before the Commission and that the Commission may take further action on the remaining issues on a later date. The Chair called on Commissioner Howell to announce the formation of a new Commission advisory group.

Commission Howell reported that in December 2006 the Judicial Conference of the United States asked the Commission to consider adding a victims advisory group to its standing committees. After consultations, the Commission has decided to do so. The Commission is drafting a charter for the new advisory group for publication in the Federal Register along with an invitation to individuals to participate on the advisory group. Commissioner Howell believes the victims advisory group will provide the Commission with helpful information as the Commission responds to new victims’ rights legislation.

The Chair thanked his fellow Commissioners for their hard work during the current amendment cycle. He noted how the members of the Commission worked in a bipartisan fashion as they considered the matters before the Commission.

Vice Chair Steer expressed the Commissioner’s appreciation for the work of the Chair in keeping the Commission focused on the issues before it during the amendment cycle. The Vice Chair added that he believes the staff work this year was extraordinary and thanked staff. He specifically noted the contributions made by Janeen Gaffney, Lauren Reid, and Janet Henry.

Vice Chair Sessions also expressed his appreciation for the work of the Commission’s staff.

Vice Chair Castillo joined in his fellow Commissioners’ appreciation of staff. The Vice Chair reminded the audience of his statement at the beginning of the current amendment cycle when he observed that the agenda before the Commission was the broadest he has encountered as a Commissioner. The Vice Chair noted that the Commission’s work on criminal history is a two year project, continuing into the next amendment cycle. Regarding the issue of immigration, Vice Chair Castillo stated that the Commission is continuing its work. He added that the Commission hoped to continue working with Congress on the issue of crack/powder cocaine sentencing. The Vice Chair believes the Commission has met its other obligations to Congress on the issues of methamphetamine, technology, sex offenses, and other issues, but he expressed the view that crack cocaine sentencing should be revisited. He stated that comments from many interested parties reflect the need to change the current laws to make them more fair. In the Vice Chair’s opinion the present situation is getting worse with courts producing inconsistent rulings at the court of appeals level, which are resulting in disparate sentences across the country. He called on Congress to act regarding the statutory mandatory minimums for cocaine sentences, reminding the audience that the Commission can do nothing in this regard.

Commissioner ex officio Reilly expressed his appreciation as the Chairman of the U.S. Parole Commission to the Commission and staff for their assistance to the Parole Commission during the past year.

The Chair thanked Commissioner Reilly for his comments and also thanked him and Commissioner ex officio Campbell for their hard 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. Commissioner Horowitz made a motion to adjourn, with Commissioner Friedrich seconding the motion. The Chair called for a vote, and the motion was adopted by the Commission.

The meeting was adjourned at 3:10 p.m.