Federal Register Notice of proposed priorities and request for public comment



Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission

ACTION: Notice of proposed priorities. Request for public comment.

SUMMARY: As part of its statutory authority and responsibility to analyze sentencing issues, including operation of the federal sentencing guidelines, and in accordance with Rule 5.2 of its Rules of Practice and Procedure, the Commission is seeking comment on possible priority policy issues for the amendment cycle ending May 1, 2006.

DATE: Public comment should be received on or before August 15, 2005.

ADDRESS: Send comments to: United States Sentencing Commission, One Columbus Circle, NE, Suite 2-500, South Lobby, Washington, DC 20002-8002, Attention: Public Affairs-Priorities Comment.

FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs Officer, Telephone: (202) 502-4590.

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is an independent agency in the judicial branch of the United States Government. The Commission promulgates sentencing guidelines and policy statements for federal sentencing courts pursuant to 28 U.S.C. § 994(a). The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. § 994(o) and submits guideline amendments to the Congress not later than the first day of May each year pursuant to 28 U.S.C. § 994(p).

While the Commission provides this notice to identify tentative priorities, it recognizes that other factors, most notably changes that may be required as a result of United States v. Booker, 543 U.S. ___ (2005); 125 S.Ct. 738 (2005), as well as the enactment of any legislation requiring Commission action, may affect the Commission’s ability to complete work on any or all policy issues by the statutory deadline of May 1, 2006.

For the amendment cycle ending May 1, 2006, and possibly continuing into the amendment cycle ending May 1, 2007, the Commission has identified the following tentative priorities:

(1) implementation of crime legislation enacted during the 108th Congress and the first session of the 109th Congress warranting a Commission response, including (A) the Family Entertainment and Copyright Act of 2005, Pub. L. 109–9; (B) the Intellectual Property Protection and Courts Amendment Act of 2004, Pub. L. 108–482; (C) the Anabolic Steroids Act, Pub. L. 108–358; (D) the Intelligence Reform and Terrorism Reform Act of 2004, Pub. L. 108–458; and (E) other legislation, authorizing statutory penalties and creating new offenses, that requires incorporation into the guidelines;

(2) 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, including any appropriate guideline changes;

(3) continuation of its policy work regarding immigration offenses, specifically, offenses under §§2L1.1 (Smuggling, Transporting, or Harboring an Unlawful Alien) and 2L1.2 (Unlawfully Entering or Remaining in the United States), and Chapter Two, Part L, Subpart 2 (Naturalization and Passports), which also may involve the formation of an ad hoc advisory group on immigration offenses;

(4) continuation of its work with the congressional, executive, and judicial branches of the government and other interested parties on cocaine sentencing policy, including the update of Commission research, in view of the Commission’s 2002 report to Congress, Cocaine and Federal Sentencing Policy;

(5) review, and possible amendment, of commentary in Chapter Eight (Organizations) regarding waiver of the attorney-client privilege and work product protections;

(6) 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; and

(7) review and amendment of pertinent guideline provisions to address structural issues regarding the Sentencing Table in Chapter Five, Part A, particularly "cliff-like" effects occurring between levels 42 and 43, and a possible adjustment to the offense level computation in cases in which the offense level exceeds level 43.

The Commission hereby gives notice that it is seeking comment on these tentative priorities and on any other issues that interested persons believe the Commission should address during the amendment cycle ending May 1, 2006, including short- and long-term research issues. To the extent practicable, comments submitted on such issues should include the following: (1) a statement of the issue, including scope and manner of study, particular problem areas and possible solutions, and any other matters relevant to a proposed priority; (2) citations to applicable sentencing guidelines, statutes, case law, and constitutional provisions; and (3) a direct and concise statement of why the Commission should make the issue a priority.

AUTHORITY: 28 U.S.C. § 994(a), (o); USSC Rules of Practice and Procedure 5.2.

Ricardo H. Hinojosa,

United States Sentencing Commission: