Minutes from August 29, 2007

Minutes of the August 29, 2007
United States Sentencing Commission
Public Meeting Minutes

Chair Ricardo H. Hinojosa called the meeting to order at 10:05 a.m. in the Commissioners’ Conference Room.

The following Commissioners were present via teleconference:

· Judge Ricardo H. Hinojosa, Chair
· Judge Ruben Castillo, Vice Chair
· John R. Steer, Vice Chair
· Dabney L. Friedrich, Commissioner
· Beryl Howell, Commissioner
· Kelli Ferry, Commissioner Ex Officio

The following Commissioners were not present:

· Judge William K. Sessions, III, Vice Chair
· Michael E. Horowitz, Commissioner
· Edward F. Reilly, Jr., Commissioner Ex Officio

The following staff participated in the meeting:

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

Chair Hinojosa called for a motion to adopt the minutes of the June 12, 2007, and July 26, 2007, public meetings. Commissioner Howell made the motion to adopt the minutes, with Vice Chair Steer seconding the motion. Hearing no discussion, the Chair called for a vote and the motion was adopted.

The Chair welcomed to the Commission Ms. Kelli Ferry of the Department of Justice. Ms. Ferry replaces Mr. Benton J. Campbell as the Attorney General’s ex officio representative on the Commission. Ms. Ferry thanked the Chair for his welcome. The Chair thanked Mr. Campbell for his service on the Commission. Mr. Campbell thanked the Chair and expressed his appreciation for the opportunity to serve on the Commission.

Ms. Sheon reported that the Commission’s dataset for the third quarter of FY 2007 is ready and will be posted shortly on the Commission’s webpage.

Chair Hinojosa called on Mr. Cohen to advise the Commission on a possible vote to adopt and publish in the Federal Register the list of final priorities for the Commission’s 2007-2008 amendment cycle.

Mr. Cohen reminded the Commission that in July 2007, it published for public comment a list of proposed priorities in the Federal Register. After considering the public comment it received, the Commission has identified several priorities for the current amendment cycle.

(1) Implementation of crime legislation enacted during the 110th Congress warranting a Commission response, including (A) the Animal Fighting Prohibition Enforcement Act of 2007, Pub. L. 110–22 ; and (B) any other legislation authorizing statutory penalties or creating new offenses that requires incorporation into the guidelines;

(2) Continuation of its work with Congress and other interested parties on cocaine sentencing policy to implement the recommendations set forth in the Commission's 2002 and 2007 reports to Congress, both entitled Cocaine and Federal Sentencing Policy, and to develop appropriate guideline amendments in response to any related legislation;

(3) Continuation of its work with the congressional, executive, and judicial branches of the government and other interested parties on appropriate responses to United States v. Booker and United States v. Rita, including any appropriate amendments to the guidelines or other changes to the Guidelines Manual with respect to those decisions and other cases that may be adjudicated during this amendment cycle, as well as continuation of its monitoring and analysis of post-Booker federal sentencing practices, data, case law, and other feedback, including reasons for departures and variances stated by sentencing courts;

(4) Continuation of its policy work regarding immigration offenses, specifically, offenses sentenced under §§2L1.1 (Smuggling, Transporting, or Harboring an Unlawful Alien) and 2L1.2 (Unlawfully Entering or Remaining in the United States) and implementation of any immigration legislation that may be enacted;

(5) Continuation of its policy work, in light of the Commission's prior and ongoing research on criminal history, to develop and consider possible options that might improve the operation of Chapter Four (Criminal History).

(6) Continuation of guideline simplification efforts with consideration and possible development of options for guideline amendments that might improve the operation of the sentencing guidelines;

(7) Resolution of a number of circuit conflicts, pursuant to the Commission's continuing authority and responsibility, under 28 U.S.C. § 991(b)(1)(B) and Braxton v. United States, 500 U.S. 344 (1991), to resolve conflicting interpretations of the guidelines by the federal courts;

(8) Consideration of a limited number of miscellaneous guideline application issues, including issues concerning the determination of harm and the definition of "victim" in certain types of cases; the treatment under the guidelines of counterfeit controlled substances, human growth hormone (HGH), Prescription Drug Marketing Act of 1987 (Pub. L. 100–293) offenses, and other food and drug violations; specific concerns regarding application of the Chapter Three enhancements for abuse of trust and obstruction; and other miscellaneous priority issues coming to the Commission's attention; and

(9) Preparation and dissemination, pursuant to the Commission's authority under 28 U.S.C. § 995(a)(12)-(16), of research reports on various aspects of federal sentencing policy and practice, such as updating the Commission's 1991 report to Congress entitled Mandatory Minimum Penalties in the Federal Criminal Justice System and studying alternatives to incarceration, including information on and possible development of any guideline amendments that might be appropriate in response to any research reports.

Mr. Cohen advised the Commissioners that a motion to adopt the proposed list of final priorities would be in order. The Chair called for a motion as suggested by Mr. Cohen. Vice Chair Steer made a motion to that effect 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.

Chair Hinojosa called on Mr. Cohen to inform the Commission on possible votes to promulgate two technical and conforming amendments.

Mr. Cohen stated that the first proposed amendment addressed technical and conforming changes to the amendments submitted to Congress on May 1, 2007, which will become effective November 1, 2007, absent congressional action to the contrary. The amendment corrects typographical errors and amends statutory references. The proposed amendment also modifies guideline commentary at §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) to address a sentencing anomaly in polydrug cases involving crack cocaine.

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 Mr. Cohen. Commissioner Friedrich 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 that the second proposed amendment implements the Commission’s vote at the April, 2007, public meeting to retroactively apply an amendment that corrected typographical errors at 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). The proposed amendment adds the promulgated amendment to the list at subsection (c) of §1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)) as an amendment that the court may consider for retroactive application.

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 Mr. Cohen. Vice Chair Steer made a motion to adopt the proposed amendment, with Vice Chair Castillo 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.

Chair Hinojosa called on Mr. Cohen to inform the Commission on possible votes concerning the Commission’s Victims’ Advisory Group (“VAG”).

Mr. Cohen stated that the first proposed vote amends Rule 5.4 of the Commission’s Rules of Practice and Procedure to add the VAG to the list of advisory groups authorized under the rule.

The Chair called for a motion to adopt the proposed rule change. Commissioner Howell made a motion to adopt the proposed rule change, 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 stated that the second proposed vote concerned the adoption of a charter for the Victims’ Advisory Group. The charter provides for the advisory group’s establishment, membership, selection of a chair, meeting procedure, and charter amendment.

The Chair called for a motion to adopt the proposed charter for the VAG. Commissioner Howell made a motion to adopt the proposed rule change, with Vice Chair Castillo seconding. Vice Chair Steer stated his belief that it is a good idea for the Victims’ Advisory Group to have a charter so that the advisory group will have structure and an understanding of the Commission expectations. Vice Chair Castillo agreed with Vice Chair Steer’s comments and offered his thanks to Commissioner Howell and staff for their efforts in developing the VAG. Commissioner Howell observed that the applications for membership on the Victims’ Advisory Group has raised her expectation for the group. She also agreed with Vice Chair Steer’s comment that having a charter helps establish structure and accountability for the advisory group. 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.

The Chair called on Mr. Cohen to inform the Commission on extending the time period in which the Commission can accept applications for membership on the Victims’ Advisory Group.

Mr. Cohen noted that the Commission had previously published in the Federal Register a deadline for accepting applications of July 30, 2007. He advised the Commission that extension of the time period by 60 days for application will enable more interested parties to apply to the VAG and will provide all parties sufficient time to apply for membership.

Mr. Cohen advised the Commissioners that a motion would be in order. The Chair called for a motion to extend the application period for membership on the VAG as suggested by Mr. Cohen. Vice Chair Castillo made a motion to adopt the proposed extension, with Commissioner Friedrich seconding. The Chair yielded the floor for discussion on the motion. Vice Chair Castillo noted the Commission has received public comment that the Victims’ Advisory Group should include a wide range of views and have representation from across the nation, and an extension of the time in which to apply for VAG membership will help achieve those goals. 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.

The Chair announced that the Commission is holding a Federal Service Ceremony immediately following the meeting. He welcomed the members of the public attending the meeting to join the Commissioners and staff at the event.

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 Castillo made a motion to adjourn, with Vice Chair Steer seconding the motion. The Chair called for a vote on the motion, and the motion was adopted. The meeting was adjourned at 10:23 a.m.