Federal Register Notice of Priority Areas



Sentencing Guidelines for United States Courts

Agency: United States Sentencing Commission

Action: Notice of priority areas for Commission research and amendment consideration. Request for public comment.

Summary: As part of its continuing statutory responsibility to analyze sentencing issues, including the operation of the federal sentencing guidelines, the Commission preliminarily has identified certain priorities as the principal focus of its work in the coming year and, in some cases, beyond. Following the practice of past years, the Commission invites comment on identified priorities (including the scope and manner of study, particular problem areas and possible solutions, and any other matters relevant to an identified priority). The Commission also invites comment on any other aspect of guideline application that it should address during the coming year.

Dates: Public comment should be received not later than August 30, 1996, to be considered by the Commission in shaping its work during the next year.

Addresses: Send comments to: United States Sentencing Commission, One Columbus Circle, N.E., Suite 2-500, Washington, D.C. 20002-8002, Attention: Public Information - Priorities Comment.

For Further Information Contact: Michael Courlander, Public Information Specialist, Telephone: (202) 273-4590.

Supplementary Information: The United States Sentencing Commission, an independent agency in the judicial branch of the United States Government, is empowered by 28 U.S.C. 994(a) to promulgate sentencing guidelines and policy statements for federal sentencing courts. The statute further directs the Commission to periodically review and revise guidelines previously promulgated and authorizes it to submit guideline amendments to the Congress no later than the first day of May each year. See 28 U.S.C. 994(o), (p).

As in previous years, the Commission uses this announcement to solicit formal and informal comment regarding certain areas upon which the Commission expects to concentrate its attention during the coming year. This notice provides interested persons with an opportunity to inform the Commission of legal, operational, or policy concerns within the identified areas relating to the guidelines and to suggest specific solutions and alternative approaches.

Following are the anticipated priority areas for amendment study, research, or other planned actions identified by the Commission. In some cases, a general time frame for the initiative is indicated. These time frames are subject to change as the Commission deems necessary.

The Commission welcomes comments on these priorities as well as any other aspect of guideline application or implementation of the Sentencing Reform Act.

Authority: 28 U.S.C. 994(a), (o), (p).

Richard P. Conaboy,


1. Implementation of New Laws Affecting Criminal Penalties

The Commission will continue to give priority to developing guideline amendments that implement legislation enacted by Congress. In this regard, Congress has recently enacted, or is expected to pass in this Session, a number of bills that may necessitate changes in the sentencing guidelines. Some of the more significant legislative initiatives are:

The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132 (April 24, 1996). This Act contains several directives to amend the guidelines in specific ways, including a provision (section 730) granting the Commission emergency authority to amend the enhancement in USSG 3A1.4 (International Terrorism) so that it applies broadly to any "Federal Crime of terrorism" as defined in 18 U.S.C. 2332b(g). The Act also contains numerous other provisions (e.g., increases in statutory maximum penalties, new offenses) that the Commission must analyze in order to ascertain whether guideline amendments are needed and, if so, what changes are appropriate.

The Telecommunications Act of 1996, Pub. L. No. 104-104 (February 8, 1996). This Act contains several provisions on obscene, harassing, or wrongful use of telecommunications facilities that may necessitate guideline amendments. The Commission recently promulgated an amendment to USSG 2G1.2 to implement a new offense created by section 508 of the Act (involving the solicitation of a minor to engage in prohibited sexual conduct). See 61 F.R. 20308-09 (May 6, 1996).

The Sex Crimes Against Children Prevention Act of 1995, Pub. L. No. 104-71 (December 23, 1995). The Commission recently promulgated amendments to USSG 2G2.1, 2G2.2, and 2G1.1 to implement directives of that Act. See 61 F.R. 20306-09, supra. The Commission is now considering additional conforming amendments to the child pornography guidelines in Chapter Two, Part G and possible amendments to the sexual abuse guidelines in Chapter Two, Part A, Subpart 3.

Immigration Bill, Other Legislation. Congress is finalizing an Immigration Bill and is considering other bills affecting criminal penalties. Enactment of any such legislation may necessitate additional guideline amendments in the coming year.

II. Guideline Simplification and Modification

In 1995, the Commission announced that it was initiating a multi-year project to comprehensively assess and simplify provisions of the Guidelines Manual. See 60 F.R. 49316-17 (Sept. 22, 1995). After considering a number of staff papers and input from interested individuals and groups, the Commission anticipates focusing its attention and possible amendment consideration on the following specific issues:

Relevant Conduct. Priority issues for the 1996-97 amendment cycle include: (1) clarifying/streamlining the relevant conduct guideline assuming no substantive policy changes; and (2) developing options to limit the use of acquitted conduct at sentencing. Issues of lower priority that may be further explored during future amendment cycles include: (1) substantively changing the relevant conduct guideline to limit the extent to which unconvicted conduct can affect the sentence; and (2) increasing the burden of proof at sentencing to a "clear and convincing" standard.

Level of Detail/Guideline Complexity. Priority issues for the 1996-97 amendment cycle include: (1) simplification of guideline/specific offense characteristics through consolidation or elimination; (2) clarification of the definition of loss; (3) examination of problematic cross references; and (4) revision of Acceptance of Responsibility adjustment.

Departures/Offender Characteristics. Priority issues for the 1996-97 amendment cycle include: (1) developing options for revising/clarifying the language describing the "heartland concept" in Chapter One and departure policy statements in Chapter Five in light of the recent U.S. Supreme Court decision in Koon v. U.S., No. 94-1664, 1996 WL 315800 (U.S. June 17, 1996); and (2) focusing on family and community ties, age, and combination of factors.

Criminal History. Priority issues for the 1996-97 amendment cycle include: (1) re-ordering and streamlining Chapter Four; and (2) revising assignment of criminal history points to better target serious, repeat offenders.

Sentencing Table. Issues of lower immediate priority for discussion during future amendment cycles include: (1) options to streamline sentencing table to reduce significantly the number of offense levels; (2) options to revise the current sentencing table's "zone" structure; and (3) additional or expanded sentencing options.

Appellate Litigation and Other Statutory Issues. Priority issues for the 1996-97 amendment cycle include: (1) consideration of the impact of the recent U.S. Supreme Court decision in Koon v. United States, supra, on appellate review of guideline sentences and on the need to revise the introduction to the Guidelines Manual and Departure Section (5K2.0) to address the deference appellate courts should afford district courts on guideline determinations; and (2) consideration of widening the bands in monetary and drug tables to decrease litigation.

Drug Sentencing/Role in the Offense. Priority issues for 1996-97 amendment cycle include: (1) revising the Role in the Offense guideline to better reflect actual experience, case law development, and to provide sufficient flexibility when sentencing drug offenders.

Introduction to Guidelines Manual. Priority issues for 1996-97 amendment cycle include: (1) updating the introduction to reflect the evolution of the guideline sentencing process.

III. Circuit Conflicts, Miscellaneous Amendments

As part of the 1996-97 amendment cycle, the Commission expects to consider and propose for comment amendments that address some of the more important application issues involving conflicting court interpretations of guideline language.

IV. Cocaine Offenses

Under Pub. L. No. 104-38 (Oct. 30, 1995), the Commission is directed to submit recommendations to Congress regarding changes in the penalty statutes and sentencing guidelines for cocaine offenses (including crack). See 61 F.R. 80 (January 2, 1996). The Commission has been gathering and analyzing data and other relevant information, including public comment, in preparation for formulating the required recommendations. It expects to continue this process during the coming months and again invites comment regarding implementation of this congressional directive. Comment should focus on (1) the quantity ratio that should be substituted for the current 100-to-1 ratio in the relevant penalty statutes and sentencing guidelines (see USSG 2D1.1(c)), and (2) appropriate enhancements in 2D1.1 for violence and other harms associated with crack and powder cocaine.

V. Revisions to Money Laundering Guidelines

As directed by Pub. L. No. 104-38, supra, the Commission will respond to an expected Department of Justice report on money laundering charging and plea practices and will continue its study of the money laundering guidelines (USSG 2S1.1-2S1.2).

VI. Guideline Assessment, Research Initiatives

Under the direction of an outside consultant, Commission staff have initiated a number of research projects designed to assess the success of the guidelines. See 60 F.R. 49316-17 (Sept. 22, 1995). These efforts will continue in the coming year, focusing primarily on the use of an intensive study sample (ISS) of cases to better evaluate operation of the Relevant Conduct and Criminal History guidelines.

V. Administrative Initiatives

As indicated in its 1995 work priorities notice, see 60 F.R. 49316, 17 (Sept. 22, 1995), the Commission is engaged in an ongoing effort to maximize the efficiency of its limited staff resources. Additionally, the Commission expects to soon publish for comment a set of Rules of Practice and Procedure describing its internal operating practices and the manner in which interested persons can participate in the Commission's work.

United States Sentencing Commission