Simplification Draft Paper

DRAFT

Disclaimer: This document was developed by staff for discussion purposes only and does not represent the views of any commissioner. It should not be interpreted as legislative history to any subsequent Commission action. The discussion draft is provided to facilitate public comment on improving and simplifying the sentencing guidelines.

Level of detail in Chapter Two

I. Introduction

Chapter Two of the Guidelines Manual contains 151 individual guidelines and comprises more than 50 percent of the 1994 Manual. This figure is based on Chapters 1-8 and does not include Appendices A-C. This should not be surprising, given the guideline structure adopted by the original Commission that placed the bulk of offense-related determinants in this chapter. Furthermore, the guidelines strive for a level of precision in identifying and quantifying federal criminal conduct that surpasses that attempted by any state guideline system. A critical analysis of this "level of detail" is the subject of this paper.

How a particular level of detail in specifying offense characteristics affects the sentencing process is related integrally to decisions made about relevant conduct, Chapter Three adjustments, and departures/offender characteristics, as well as whether the Commission seeks a more flexible interpretation of the so-called "25 percent rule." Consequently, it is important to keep in mind how amending or not amending other guidelines affects the operation of Chapter Two.

An overview of the structure of Chapter Two opens the paper, followed by a brief discussion of its historical development, a look at its current operation, and options for refinement.

II. Overview of Chapter Two

If relevant conduct is considered the framework that defines what conduct will be considered "relevant" for sentencing purposes, Chapter Two puts flesh on those bones. The chapter is organized by offense type (e.g., "Offenses Against the Person" includes guidelines for homicide, aggravated assault, and criminal sexual abuse) and divided into 19 alphabetic "parts" labeled A through X containing 151 different guidelines. Parts I, O, U, V, W, Y, and Z are not used. Each guideline may cover one or many statutes (e.g., guideline 2F1.1 covers more than 75 listed fraud-related offenses; the treason guideline, 2M1.1, covers violation of a single statute). Thus, the Chapter Two guidelines set out the offense levels for violations of hundreds of federal statutes.

Each Chapter Two guideline begins with a prescribed base offense level (ranging from 4 to 43) that serves as the starting point for calculation of the offense level prong of a guideline sentence. While the majority of guidelines present a singular base offense level upon which to build, 49 guidelines contain a choice among alternative base offense levels. In some cases, the alternatives demarcate varying degrees of offense severity (e.g., 2A1.4 (Involuntary Manslaughter) in which the base offense levels distinguish between negligent and reckless conduct). In other guidelines, the alternative base offense serves to identify factors such as criminal history (e.g., the firearms guideline (2K2.1), in which the base offense levels not only distinguish between the type of firearm involved in the offense, but also the number and type of certain prior convictions). In many respects, the base offense level can be viewed as the punishment attributable to a "stripped down" version of a particular offense. For example, the robbery guideline (2B3.1) begins with a base offense level of 20 (33-41 months for an offender in Criminal History Category I). This base offense level can be increased, depending on the facts of a particular robbery, by six different specific offense characteristics (SOCs), each containing between one and eight levels of distinction. The court must consider whether any or all of the SOCs in the robbery guideline are applicable given the facts of the particular case. Consequently, if a bank was robbed with a firearm, the offense level (and, therefore, the ultimate sentence) will increase in a prescribed manner. It is this level of specification and quantification of the possible permutations of an offense (e.g., robbery of a bank (+2) while waving a knife (+3) netting $12,000 (+1)) that can make judicial fact finding time consuming. Furthermore, inconsistent or unclear language in SOCs is sometimes a source of application complexity (e.g., definition of "loss" in fraud and theft guidelines).

To further advance the guidelines' modified real offense sentencing philosophy, more than 60 guidelines contain cross references that send the user from one Chapter Two guideline to another (usually more punitive). As an aid to understanding and applying the various provisions, most Chapter Two guidelines contain commentary in the form of application notes and background that provide definitions, examples, and underlying rationale to assist in understanding and applying the guidelines. Finally, an historical note identifies the date the guideline or any amendments to that guideline took effect, an important element in ex post facto analysis.

Once directed to a particular Chapter Two guideline from the Statutory Index (Appendix A), the court determines the applicability of an alternative base offense level, specific offense characteristic, or cross references based on the parameters of relevant conduct and a preponderance of the evidence. Relevant Conduct (1B1.3) determines which of an offender's acts are considered in setting Chapter Two offense levels. This was described in more detail in the relevant conduct paper presented to commissioners in September. Application of Chapter Two and Three guidelines results in a combined, adjusted offense level that the Commission presently quantifies on a 43-level scale. Values in excess of 43 are possible, but not common.

Why 43 levels rather than 10 or 20 levels? The answer results from the Commission's decisions: 1) to have overlapping ranges; 2) constraints of the statute (i.e., the 25% rule and a decision to have ranges as wide as statutorily permitted); and 3) mathematics.

The original Commission devised its 43-level offense seriousness ranking so that most ranges on the sentencing table would overlap at the midpoint of the preceding range. The Commission hoped that overlapping ranges would discourage litigation by reducing the incentive for the parties to argue about minor factual issues that would result in no substantive difference in the sentence. After adding a few levels at the lower end of the table for alternative or non-incarcerative sentences, and a few levels at the top to accommodate life imprisonment, the fewest number of gradations possible mathematically that would overlap at the midpoint was 43. This and other sentencing table-related topics will be explored in greater detail in upcoming papers.

Of the 151 guidelines listed in Chapter Two, 20 accounted for more than 90 percent of all cases sentenced in 1994. Conversely, 34 of these 151 guidelines - more than one-fifth - were not applied in a single case in 1994. An additional 67 guidelines were applied fewer than 50 times in 1994. Similarly, application of specific offense characteristics in Chapter Two varies widely from guideline to guideline. Many are never applied, while some, like the "more than minimal planning" adjustment in the fraud guideline, are used in more than 75 percent of all fraud cases.

Finally, monitoring data illustrate the importance quantitative measures of offense seriousness, or aggregation, play in determining offense levels in Chapter Two: 79.5 percent of all cases sentenced in 1994 used a quantity-driven guideline (e.g., drugs, fraud, tax, firearms). While tables like those used in the drug or fraud guidelines are simple to use once the court has determined the quantity of drugs or amount of money, the detailed, relevant conduct-based fact finding required by the Chapter Two guidelines to reach this quantity determination can make guideline application time consuming and complex.

III. Development of Chapter Two's Level of Detail

A. Introduction

During development of the initial guidelines, the Commission considered alternative guideline structures that would have made the offense level determination (in large measure what we now call Chapter Two) somewhat simpler as well as infinitely more complex. Options ranged from a more flexible offense seriousness ranking that permitted the court to choose among a range of base offense levels and specific offense characteristics to a system based on the totality of an offender's real offense conduct that attempted to specify and quantify all possible harms. The latter system, known informally as the "Robinson Draft" after former Commissioner Paul Robinson, was premised on a just deserts rationale and did not employ a sentencing table.

Confronted with opposing visions of the appropriate level of guideline specificity and simplicity, commissioners ultimately devised a system that attempted to identify and assign weights to the most important and commonly occurring offense-related factors that were considered important in determining past sentences. This method of "carving out a heartland" left to departure those offense characteristics that occurred infrequently or were difficult to quantify. The balance struck between the level of guideline specificity - an attempt to individualize sentences for offenders of differing culpabilities convicted of the same broad federal offense - and the concomitant restriction of judicial flexibility to individualize sentences outside these rather specific boundaries, creates the tension that lies at the heart of criticism of the guidelines.

As stated in more detail in the paper on the Sentencing Reform Act, the Senate Judiciary Committee report stated that the Commission was to develop "a complete set of guidelines that covers... all important variations that may be expected in criminal cases, and that reliably breaks cases into their relevant components and assures consistent and fair results." S. Rep. No. 225, 98th Cong., 1st Sess. 168 (1983). The Commission's original decision on the appropriate level of detail represented a policy decision made in the context of the acknowledged tension "between the mandate of uniformity and the mandate of proportionality." In short, the Commission had to "balance the comparative virtues and vices of broad, simple categorization and detailed, complex subcategorization, and within the constraints established by that balance, minimize the discretionary powers of the sentencing court." U.S.S.G. Ch.1, Pt.A, Introduction. Commissioners struggled long and hard to strike this balance, mindful of the fact that a "simple" guideline system can sacrifice fairness by lumping together dissimilar offenders.

The Commission used data culled from 10,000 presentence investigation reports prepared on offenders sentenced prior to the guidelines as a starting point in identifying the level of detail appropriate in Chapter Two. Using multiple regression analysis and other statistical techniques, staff identified the offense-related factors that judges deemed important in sentencing defendants in actual cases. The Commission also considered distinctions made in statutes for criminal offenses, the U.S. Parole guidelines, and data from other sources. In the end, the Commission opted for a level of detail that permitted the guidelines to "take account of a number of important, commonly occurring real offense elements such as an offender's role in the offense, the presence of a gun, or the amount of money actually taken, through alternative base offense levels, specific offense characteristics, cross references, and adjustments." Ibid.

B. Evolution of the Guidelines

The initial guidelines took effect November 1, 1987, evolving through at least three published versions - the September 1986 "Preliminary Draft," the January 1987 "Revised Draft," and the April 13, 1987 submission to Congress (whose commentary was extensively revised and application notes added prior to its implementation in November of that year). A brief review of the different guideline iterations shows the Commission's difficulty in striking a balance between guideline specificity (viewed by some as complexity) and judicial discretion (viewed by some as simplicity).

Preliminary Draft

The September 1986 draft presented a guideline system that employed alternative base offense levels, long lists of potentially applicable specific offense characteristics, and multiple cross references within Chapter Two guidelines. It was roundly criticized for its complexity (the sentencing table contained 74 gradations of "sanction units" and calculators were required to determine some factors), rigidity, and severity at a series of public hearings across the country.

Revised Draft

In response to the less than enthusiastic reception for its Preliminary Draft, the Commission, in December 1986, adopted a set of principles to govern its redrafting. In point three of this seven-point document, the Commission made explicit its intent to "simplify the September draft considerably" by taking a number of steps: 1) limiting the number of distinctions made in Chapter Two; 2) including in Chapter Two "all relevant distinctions that it is practical to include"; and 3) eliminating cross references. The Principles expressed an intent to limit the number of distinctions - i.e., the level of detail - by providing that the revised Chapter Two would not make distinctions unless:

(1) a statute legally requires the Commission to make the distinction in question;

(2) distinctions are made in the statute itself and are not mandated but current practice data show they now constitute a basis for distinguishing in terms of punishment;

(3) distinctions are not made in the statute but are supported by current practice data showing they now constitute a relevant factor for distinguishing levels of punishment; or

(4) there is nonetheless a persuasive or special reason for making the distinctions, in which case the rationale is to be presented to the Commission. Principle four signaled the Commission's expectation that the succeeding draft would increase flexibility and "minimize the number and complexity of mathematical computations" by 1) using an offense level approach; 2) creating overlapping ranges; 3) increasing the width of the range for cooperation; and 4) stating explicitly that "not every factor has been given consideration for every offense" to clarify the availability of departures. See "Principles Governing the Redrafting of the Preliminary Guidelines (December 1986) (copy on file at Commission).

The January 1987 Draft delivered on a number of these promises by providing a system with fewer general adjustments and increased judicial discretion through flexible ranges in Chapter Two for certain base offense level and specific offense characteristic adjustments (e.g., increase by 1 to 4 levels). The Commission recognized that because this draft had "simpler and more flexible guidelines" brought about by the reduction of the number and complexity of different categories, "each category will contain larger numbers of different offenders," thus resulting in some unwarranted disparity. The Commission emphasized that its "immediate task is to prevent significant and unwarranted deviations, not to seek the impossible goal of ending all disparity." U.S. Sentencing Commission, Revised Draft Sentencing Guidelines (January 1987), at 7.

Final Guidelines

The guidelines submitted to Congress on the statutory due date of April 13, 1987, however, retreated from several of the January Draft's innovations in light of concerns about potential legal challenges (i.e., the 25% rule), and the amount of unwarranted disparity that would result. In its Supplementary Report on the Initial Sentencing Guidelines and Policy Statements (June 18, 1987), the Commission expounded on its decision to reject the use of specific factors with flexible ranges (e.g., 1 to 6 levels depending on the level of injury) for intermediate determinations in favor of static numerical values. Such an approach "would have risked... broad disparity in sentencing; different courts would have exercised their discretionary powers in significantly different ways" (report at 14). As far as Chapter Two was concerned, the Commission stated that the April 1987 guidelines will not specify a factor about which "the sentencing data do not permit the Commission, at this time, to conclude that the factor is empirically important in relation to a particular offense." For example, physical injury occurs rarely in connection with a fraud offense, so the original Commission decided that physical injury in fraud cases should be treated by departure. In so doing it reaffirmed the principle that the guidelines are based on typical, not unusual, cases. U.S. Sentencing Commission, Sentencing Guidelines and Policy Statements (April 13, 1987), at 1.7. Ironically, the Commission amended the fraud guideline in 1989 to add a 2-level enhancement if the offense involved the "conscious or reckless risk of serious bodily injury."

C. Postscript

The concept of a sentencing table with ranges that overlap the preceding and successive levels was expected to play a significant role in discouraging unnecessary litigation. "Both prosecution and defense will realize that the difference between one level and another will not necessarily make a difference in the sentence that the court imposes. Thus, little purpose will be served in protracted litigation trying to determine, for example, whether $10,000 or $11,000 was obtained as a result of a fraud." U.S.S.G. Ch.1, Pt.A at 9-10. In practice, however, the presence of overlapping ranges does not appear to have impacted substantially on the amount of litigation surrounding Chapter Two sentencing factors.

Since implementation of the initial guidelines, the Commission has exercised its amendment authority liberally for a variety of reasons, including: 1) appellate decisions; 2) directives from Congress; The Commission has amended Chapter Two rather frequently over the years to implement specific congressional directives mandating specific enhancements. See Appendix A to the Sentencing Reform Act discussion paper for a detailed list of congressional directives. 3) requests from outside groups (e.g., Department of Justice, Criminal Law Committee, Practitioners' Advisory Group, Probation Officers' Advisory Group); 4) research and monitoring data; and 5) commissioner policy decisions. As listed in Appendix C of the Guidelines Manual, the Commission has made 509 amendments in the past seven years. The first 364 amendments took effect on or before November 1, 1990; 73 more on November 27, 1991 (cumulative total: 437); and an additional 36 on November 1, 1992 (cumulative total: 473). Recently, the Commission has slowed the pace of guideline amendments considerably; only 36 amendments have taken effect since 1992. This total does not include the 27 amendments send to Congress on May 1, 1995. Since 1993, the Commission has reduced the number of Chapter Two guidelines by 30 through consolidation.

IV. Chapter Two in Practice

A. Introduction

The 151 guidelines in Chapter Two are used with widely varying frequency. During 1994, 75 percent of all cases were sentenced under just five guidelines:

2D1.1, Drug Trafficking, applied to 39.3 percent (n = 15,188) of the cases;

2F1.1, Fraud, applied to 15.4 percent (n = 5,952) of the cases;

2B1.1, Larceny, applied to 8.9 percent (n = 3,453) of the cases;

2K2.1, Firearms, applied to 6.2 percent (n = 2,384) of the cases; and

2B3.1, Robbery, applied to 5.5 percent (n = 2,117) of the cases. Rounding out the top 20 most frequently applied guidelines in 1994 were 2L1.2, Immigration, applied to 3.3 percent (n = 1,265) of the cases; 2D2.1, Drug Possession, 2.1 percent (n = 809); 2S1.1, Money Laundering, 1.4 percent (n = 541); 2B5.4, Counterfeiting, 1.3

percent (n = 504); 2L1.1, Immigration, 1.1 percent (n = 423); 2T1.1, Tax Evasion, 1.1 percent (n = 403); 2D1.2, Drug Trafficking - Protected Locations, 0.9 percent (n = 335); 2S1.3, Monetary Transactions, 0.7 percent (n = 260); 2C1.1, Public Corruption, 0.6 percent (n = 246); 2L2.2, Trafficking in Immigration Documents, 0.5 percent (n = 208); and 2D1.6, Drug Trafficking - Communication Facility, 0.5 percent (n = 198).

Importantly, 34 of the 151 Chapter Two guidelines - more than one-fifth - were never used in 1994 (see Table 1 in Appendix A for a list of the frequency of guideline usage). An additional 21 guidelines were applied only one and five times during the year.

B. Specific Offense Characteristics

Much like the use of individual guidelines, monitoring data reveal a dramatic variance in the frequency with which specific offense characteristics are applied among Chapter Two guidelines. See Table 2 in Appendix A for information on application of specific offense characteristics in the seven most frequently applied guidelines. Such "frequency of use" data can be used, in some sense, to measure how successful the Commission has been in capturing the most commonly occurring characteristics of particular offenses (one of the original Commission's goals in developing a "heartland" guideline system).

For example, the fraud guideline (2F1.1) lists six specific offense characteristics. Of the 4,007 cases in which 2F1.1 was applied in 1994, only two SOCs - the "loss table" and the "more than minimal planning" adjustment - were applied with any frequency. As discussed in Part V of this paper, rarely used SOCs could be eliminated and serve instead as a basis for a sentence at the upper end of the guideline range, or as a reason for departure. Those SOCs applied most frequently could be built into the base offense level or another adjustment (e.g., grafting the "more than minimal planning" adjustment onto the loss table).

In addition to SOCs unique to individual guidelines, several offense characteristics are applicable to a variety of Chapter Two guidelines. These offense characteristics include weapons, bodily injury, drug quantity, pecuniary loss, and planning. One of the complicating factors in guideline application is that these adjustments are defined differently and given varying weights across different guidelines. An overview of these more common Chapter Two adjustments follows.

Weapon Adjustments

Weapon adjustments are included in ten offense guidelines. See 2A2.2, 2A2.4, 2A4.1, 2B2.1, 2B2.3, 2B3.1, 2B3.2, 2D1.1, 2D1.11, and 2E2.1. These ten guidelines provide for varying types of enhancements:

five guidelines Inconsistent standards exist for applying the weapon possession enhancement to defendants sentenced under different guidelines. For example, under 2D1.1 and related guidelines the 2-level enhancement applies "if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." Under 2B3.1, the 3-level possession enhancement is applicable if the "dangerous weapon was... possessed" under the standards of relevant conduct. provide a 2-level enhancement if a dangerous weapon or firearm was possessed, while a fifth provides a 3-level enhancement for the same characteristic;

two guidelines provide a 3-level enhancement if a dangerous weapon or firearm was brandished, displayed, or possessed; a 4-level enhancement if a dangerous weapon or firearm was otherwise used; and a 5-level enhancement if a firearm was discharged; and

two guidelines provide a 3-level enhancement if a dangerous weapon was brandished, displayed, or possessed; a 4-level enhancement if a dangerous weapon was otherwise used; a 5-level enhancement if a firearm was brandished, displayed, or possessed; a 6-level enhancement if a firearm was otherwise used; and a 7-level enhancement if a firearm was discharged.

The data indicate that the weapon adjustment is applied in 18 percent (n = 2,629) of the cases sentenced under these ten guidelines (see Table 3 in Appendix A). Its rate of application varies by guideline: the weapons adjustment was applied in approximately 82 percent of the cases sentenced under the guideline for obstructing or impeding officers (2A2.4), but only 3 percent of the cases sentenced under the guideline for distributing a listed chemical (2D1.11).

Bodily Injury

Bodily injury adjustments are included in 15 offense guidelines See 2A2.1, 2A2.2, 2A3.1, 2A4.1, 2A5.1, 2B3.1, 2B3.2, 2E2.1, 2F1.1, 2J1.2, 2J1.3, 2N1.1, and 2Q1.2-1.4. and range from 2- and 4-level adjustments; 2-, 4-, and 6-level adjustments; a 5-level adjustment if the offense resulted in death; a 6-level enhancement if the offense resulted in serious bodily injury or death; an 8-level enhancement if the offense resulted in physical injury or physical injury was threatened; a 9-level enhancement if the offense resulted in serious bodily injury or death; and an 11-level enhancement if the offense resulted in serious bodily injury or death.

The data show that the bodily injury adjustment is applied in six percent (n = 451) of the cases sentenced under these guidelines (see Table 4 in Appendix A). The rate of application varies by guideline: the bodily injury adjustment was applied in approximately 81 percent of the cases sentenced pursuant to the aggravated assault guideline (2A2.2), but only 1 percent of the cases sentenced under the fraud guideline (2F1.1).

Drug Quantity

Adjustments for drug quantity are included in seven offense guidelines. See 2D1.1, 2D1.2, 2D1.5, 2D1.6, 2D1.8, 2D1.10, and 2D1.11. For all practical purposes, quantity is sole determinant of the base offense level in two guidelines - drug trafficking (2D1.1) and distribution of a listed chemical (2D1.11). The base offense level in the other five guidelines is based, at least in part, on specific offense elements in addition to quantity (e.g., proximity to a protected location).

The data indicate that approximately 25 percent of all drug trafficking cases involved less than the equivalent of 80 kg of marijuana (level 22); 50 percent of the cases involved less than the equivalent of 400 kg of marijuana (level 26); and 75 percent of the cases involved less than the equivalent of 1,000 kg of marijuana (level 30) (see Table 5 in Appendix A).

Pecuniary Loss

Twenty-three Chapter Two guidelines include adjustments for pecuniary loss. See 2B1.1, 2B1.3, 2B2.1, 2B2.2, 2B3.1, 2B3.2, 2B3.3, 2B4.1, 2B5.1, 2B5.3, 2B6.1, 2C1.1, 2C1.2, 2C1.6, 2C1.7, 2E5.1, 2F1.1, 2T1.1, 2T1.4, 2T1.6, 2T2.1, 2T3.1, and 2T1.7. These 23 guidelines reference one of five loss tables in guidelines for theft (2B1.1), burglary (2B2.1), robbery (2B3.1), fraud (2F1.1), and tax (2T1.1) (see Tables 6 through 10 in Appendix A). The remaining guidelines that reference a loss table reference that table at 2F1.1. These cases were excluded from the analysis because they typically represent such a small percentage of the cases sentenced. These data are available for inspection.

The data indicate that an enhancement for loss was provided in approximately 69 percent (n = 6,324) of the cases sentenced pursuant to these guidelines. The data further indicate that the loss was typically under $40,000: 75 percent of the cases sentenced pursuant to the theft guideline involved losses of less than $40,000 compared to 79 percent of the cases sentenced pursuant to the tax guideline and 58 percent of the cases sentenced under the fraud guideline.

Planning "Planning" for purposes of this discussion incorporates both the "more than minimal planning" adjustment in 2A2.2, 2B1.1, 2B1.3, 2B2.1, and 2F1.1 as well as the "sophisticated planning" adjustment in 2T1.1, 2T1.4, 2T3.1. While not included herein, "planning" could also include enhancements for multiple bribes at 2C1.1 and 2C1.2 or the obstruction enhancement in 2K1.4

Planning adjustments are included in eight offense guidelines See 2A2.2, 2B2.1, 2B1.1, 2B1.3, 2F1.1, 2T1.1, 2T1.4, and 2T3.1. and provide for a two-level enhancement (see Table 11 in Appendix A). The data indicate that the planning adjustment is applied in approximately 63 percent (n = 4,485) of the cases sentenced under these eight guidelines. The rate of application varies by guideline: the planning adjustment was applied in approximately 78 percent of the cases sentenced under the fraud guideline (2F1.1), but only 8 percent of the cases sentenced for tax offenses (2T1.1).

C. Appeals Data

The Commission's appeals database provides the possibility of highlighting areas in which guideline complexity and ambiguity may present particular problems. During 1994, we received information on 3,923 appeals involving sentencing issues. Of the 6,745 appeals cases, 2,701 conviction-only appeals were excluded. Of the remaining 4,044 cases, 121 were excluded due to one or more of the following reasons: missing district information (57) or missing type of appeal (102). These appeals resulted in affirmance of the district courts' rulings in 77 percent of the cases; three percent were dismissed. The lower courts' rulings were reversed in ten percent of the cases and affirmed in part and reversed in part in another ten percent. U.S. Sentencing Commission, 1994 Annual Report at 140.

The appeals database reveals four basic findings regarding Chapter Two:

24 percent (947) of the 3,923 appeals involved Chapter Two issues (a total of 1,315 different guideline application issues (see Table 12 in Appendix A);

11 of the 151 offense guidelines account for 85 percent of the Chapter Two issues appealed (primarily 2D1.1, the drug trafficking guideline (calculation of drug quantity), 2F1.1, the fraud guidelines (amount of loss); and 2K1.1 and 2B3.2, the firearms and robbery guidelines (weapon issues);

the defendant was the appellant in 98 percent (n=924) of the cases; and

lower courts' rulings were affirmed in 80 percent (n=826) of the cases.

D. Most Frequently Occurring Chapter Two Application Problems

Criticism of Chapter Two has focused on the appearance of complexity, the difficulty of

applying certain guideline provisions, inconsistent or unclear definitions, ambiguous instructions, Training staff and those who work the hotlines find that practitioners do not always understand what the Commission intended when it wrote a particular guideline or application note. The Guidelines Manual is written in a highly technical style. It may very well be that this level of precision is necessary, but critics of the guidelines have faulted the style of writing for producing ambiguity and confusion. and litigation surrounding disputed sentencing factors. Commission training and legal staff, after conducting hundreds of guideline training programs and answering thousands of hotline calls, In 1994, the TAS and Legal Hotlines received 2,517 calls, 940 of which (37%) involved questions regarding Chapter Two guidelines. Of these Chapter Two calls, 681 (72%) concerned questions about the following five topics: drugs (244 calls), fraud and theft (215 calls), firearms

(125 calls), administration of justice (52 calls), and taxes (45 calls). have a clear sense of what judges, probation officers, and practitioners find difficult about Chapter Two. The following summary highlights specific criticism for frequently used Chapter Two guidelines: Some critics complain that the Commission appeared to assign a weight to every conceivable fact either as a specific offense characteristic or adjustment to the guidelines. (See, e.g., R. Haines, Jr., memorandum to the ABA Committee on Sentencing Guidelines regarding Simplification of the Sentencing Guidelines (January 20, 1995) at 2.

The National Assessment of Structured Sentencing Final Report (July 15, 1994) concludes that the U.S. Sentencing Commission incorporates many more factors in its guidelines than any state systematically attempts to include. Furthermore, the report points out that the federal guidelines measure these factors in greater detail than any of the states.

Drug Guidelines

The bulk of the difficulties reported by training staff revolve around the determination of drug quantity in a conspiracy. (This complexity issue relates to the current relevant conduct guideline and how it affects the determination of drug quantity.) Other areas of complexity are the multiple application notes relating to determining sentencing factors such as drug amounts under negotiation, performing drug conversions when faced with multiple drugs, and correct application of the weapons enhancement.

Determination of Loss

Determining the meaning of "loss" in the theft (2B1.1) and fraud (2F1.1) guidelines causes a great deal of consternation and litigation. The application notes that define loss are complex, and hotline callers express confusion about the slightly different definitions of loss in the two guidelines. Within each guideline, concepts such as "expected," "actual," "intended," or "attempted" loss are difficult to understand and apply. Another complicating factor in applying the fraud and theft guideline is understanding the concept of "gain."

Clarification of the definition of "tax loss" is one of the more common concerns raised about the tax guidelines. Application of relevant conduct to tax loss that occurs over more than one year is also problematic to some practitioners.

Firearms

Although questions are raised about virtually every aspect of the firearms guideline (2K2.1), the most common areas of concern are the alternative base offense levels, cross references, and the enhancement for use of a weapon in connection with another offense. In addition to application issues, this guideline is criticized for "double-counting" criminal history because prior convictions are taken into consideration when determining the appropriate base offense level and again in Chapter Four. From an appearance perspective, the guideline looks complex with its eight base offense levels, six specific offense characteristics, and two cross references. In addition, guideline 2K2.4 (Use of Firearms in Relation to Certain Crimes), in which a sentence is imposed in conjunction with a sentence for an underlying offense, can be confusing and is prone to application problems.

Administration of Justice

The contempt guideline (2J1.1) triggers a cross reference, applicable in most cases, to the Commission's catch-all Chapter Two guideline 2X5.1 (Other Offenses) which instructs the court to apply the most analogous guideline. Hotline callers have found it difficult to select an analogous guideline given the lack of specific guidance and multitude of choices in Chapter Two. Similar confusion exists in applying the Obstruction of Justice and Perjury guidelines (2J1.2 and 2J1.3, respectively) when application of the cross reference to 2X3.1 (Accessory After the Fact) is required.

Conspiracies, Attempts, Solicitations

The Commission's training and legal staff - together with the ASSYST programmers - cite the guideline for Attempt, Solicitation, or Conspiracy (2X1.1) as particularly difficult to apply. One of the major problems with this guideline is that the concept of a "partially completed offense" is not defined, leading to inconsistent and incorrect application.

Bribery

Hotline callers have had difficulty in determining the "value of the payment, the benefit received or to be received in return for the payment" as required in the Bribery guideline (2C1.1). Additional questions have been raised about the term "net value" used in Application Note 2 to define "the benefit received or to be received."

Cross References (and references to other guidelines)

Over the years, the Commission has moved decidedly toward adding cross references to Chapter Two guidelines. The original Guidelines Manual, effective November 1, 1987, contained 12 cross references clearly labeled as such within the Chapter Two guidelines. The November 1994 Manual contains 63 Chapter Two cross references labeled as such. However, these numbers do not include all references to other guidelines that require the same detailed application as if they were bona fide cross references. For example, Application Note 9 to the Fraud guideline (2F1.1) instructs the court to apply the guideline for Attempt, Solicitation, or Conspiracy (2X1.1) in the case of a partially completed offense.

Application of cross references and references to other guidelines can be problematic. It is clear that some practitioners consider application of the cross references to be optional. It is unclear how often this occurs or whether when it does occur it is because of a lack of understanding or a sense that to punish an offender using a guideline that is not the guideline suggested by the offense of conviction may be unfair. Each time a cross reference is used, it increases the work involved in applying a guideline. Particularly frustrating for practitioners (and embarrassing for hotline staff who attempt to clear up the inevitable confusion) are guidelines with cross references that send the court to another guideline with its own cross reference. One memorable hotline call taken by the training staff cross referenced the court to three different guidelines before sending them back to the original guideline. Additional confusion results from practitioner uncertainty over whether certain cross references require application of just the Chapter Two guideline or Chapter Three adjustments as well.

It is instructive that the programmers who designed the most recent version of the ASSYST software considered programming certain cross references in Chapter Two one of the most problematic aspects of the entire project. After studying all cross references and application instructions requiring cross references, the programmers identified and named three different types of cross references: "alternate," "substitute," and "pull through." Much to their consternation, they found that each cross reference type was applied differently.

V. Options for Refinement

Option 1: Retain the current structure of Chapter Two but revise the overly complex language in those areas that cause confusion and unnecessary application difficulty.

Variation: retain the current structure of Chapter Two, but rethink the policy decisions underpinning those areas identified as overly complex concepts that cause the most frequent or serious application difficulties.

Some Chapter Two guidelines require the use of more than one cross reference. For example, if convicted of accessory after the fact, 2X3.1 instructs the court to apply the guideline most appropriate to the underlying offense. When that underlying offense is obstruction or perjury, the court must again cross reference another underlying offense. (In addition, the instruction to use the "underlying offense" creates problems because the term has different meanings throughout Chapter Two).

Option 2: Retain the current structure of Chapter Two, but consolidate Chapter Two guidelines in one of several possible ways: 1) combine overlapping or duplicative guidelines; 2) group Chapter Two guidelines into approximately 32 primary offenses such as it is done in our Annual Report; or 3) consolidate or eliminate guidelines never or rarely applied (data indicate that 34 guidelines were not applied during 1994). This would allow courts to exercise discretion in choosing an analogous guideline or, if one cannot be found, sentencing according to the general precepts of the Sentencing Reform Act. Policy considerations may influence the decision to retain several guidelines, despite their infrequent use, because of the gravity of the offense conduct (e.g., treason).

In the past, guidelines were consolidated with other offense guidelines when they covered similar offense conduct and had identical or similar base offense levels and specific offense characteristics. Guideline consolidation has the advantage of shortening the number of pages in Chapter Two and this may contribute to altering the perception that the guidelines are overly complex. Furthermore, in some cases it could reduce the importance of the prosecutorial charging decision.

Consolidation of offense guidelines in this manner has a number of practical advantages: it shortens the Guidelines Manual and reduces the likelihood of inconsistency in phraseology and definitions from section to section; and it will reduce the possible confusion and litigation as to which guidelines apply to particular conduct. In addition, consolidation will reduce the difficulty of selecting the most appropriate guideline for cases in which Appendix A references more than one guideline. An example of this type of consolidation might include combining the fraud, theft, and tax guidelines. The original Commission debated at great length the merits of having a single loss table for theft, fraud, and tax offenses. Over the years, staff have developed proposals to combine the theft and fraud guidelines (up to this point, the Internal Revenue Service has lobbied quite effectively that tax offenses present distinct harms and should be treated separately from theft and fraud offenses).

Option 3: Compress quantity tables for most frequently litigated Chapter Two guidelines (drugs and loss-related offenses). Currently, loss tables have dollar amounts corresponding to one-level increments and the drug table has quantity amounts corresponding to two-level increments. Consider options for compressing these tables that would have, in the case of loss, at least two-level increments, and for drugs, increments of three or more levels. Broader ranges within the drug and loss tables may result in less fact finding for the court because debate over a specified amount may prove to be irrelevant if the quantity amount remains within these broader bands.

Note: An additional issue for commissioner consideration is the guidelines' current reliance on quantity for determining offense levels in drug and loss-related cases. Some commissioners have expressed an interest in reevaluating the premise that quantity is a reliable, consistent, and precise indicator of offense seriousness in these cases.

Option 4: Retain the current structure, but reduce the number of specific offense characteristics throughout Chapter Two by the following methods:

Reduce the number of SOCs by eliminating those never or rarely applied.

Example: certain specific offense characteristics in the fraud guideline 2F1.1 could be eliminated because they are infrequently used and could otherwise serve as a basis for a sentence at the top of the guideline range or as an upward departure. SOCs that could be eliminated include: 1) "misrepresentation or violation of a judicial order" (applied in 64 of the 4,007 fraud cases sentenced in 1994); 2) "risk of serious bodily injury" (applied in 53 cases); 3) "use of foreign banks" (not applied in 1994).

Consolidate frequently used specific offense characteristics into the base offense level, combine with other specific offense characteristics, or include in a new, general Chapter Three adjustment.

Example: "more than minimal planning" adjustment (applied in 75 percent of the fraud cases sentenced in 1994) could be consolidated into either: 1) the base offense level because the characteristic occurs so frequently and could be considered part of the heartland, or 2) the loss table.

Consolidate certain specific offense characteristics that are common to a number of Chapter Two guidelines (e.g., weapon adjustment, bodily injury, loss) and create universal and consistent Chapter Two or Three adjustments.

Variation: Modify the current structure by eliminating or reducing the number of cross references and guidelines containing alternative base offense levels. These components of Chapter Two are often cited as examples of application complexity.

Option 5: Redesign Chapter Two to eliminate guidelines for individual offenses and replace them with broader offense categories. Each offense category would be assigned a number or range of months of imprisonment. All specific offense characteristics would be eliminated and replaced by general aggravating or mitigating factors (e.g., use of a deadly weapon, bodily injury). Application of these factors to a case would result in the addition or subtraction of a number of months of imprisonment.


United States Sentencing Commission