Federal Register Notice of Final 2004 Priorities



Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of final priorities.

SUMMARY: In June 2004, the Commission published a notice of possible policy priorities for the amendment cycle ending May 1, 2005. See 69 FR 36148 (June 28, 2004). After reviewing public comment received pursuant to the notice of proposed priorities, the Commission has identified its policy priorities for the upcoming amendment cycle and hereby gives notice of these policy priorities.

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

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission, an independent commission in the judicial branch of the United States Government, is authorized by 28 U.S.C. § 994(a) to promulgate sentencing guidelines and policy statements for federal courts. Section 994 also directs the Commission periodically to review and revise promulgated guidelines and authorizes it to submit guideline amendments to Congress not later than the first day of May each year. See 28 U.S.C. § 994(o), (p).

As part of its statutory authority and responsibility to analyze sentencing issues, including operation of the federal sentencing guidelines, the Commission has identified its policy priorities for the amendment cycle ending May 1, 2005, and possibly continuing into the amendment cycle ending May 1, 2006. While the Commission intends to address these priority issues, it recognizes that other factors, most notably the resolution of United States v. Booker, ___ F.3d ___, 2004, WL 1535858 (7th Cir. 2004), cert. granted, ___ S.Ct. ___, 2004 WL 1713654 (Aug. 2, 2004) (No. 04-104) and United States v. Fanfan, 2004 WL 1723114 (D. Me. June 28, 2004), cert. granted, ___ S.Ct. ___, 2004 WL 1713655 (Aug. 2, 2004) (No. 04-105), both of which currently are pending before the United States Supreme Court, as well as the enactment of any legislation requiring Commission action, may affect the Commission’s ability to complete work on any or all of the identified policy priorities by the statutory deadline of May 1, 2005.

The Commission’s policy priorities for the upcoming amendment cycle are as follows:

(1) implementation of crime legislation enacted during the second session of the 108th Congress warranting a Commission response;

(2) 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;

(3) completion of its work on the "15 Year Study," which is composed of a number of projects geared toward analyzing the guidelines in light of the goals of sentencing reform described in the Sentencing Reform Act;

(4) continuation of its multi-year research and policy work, and possible guideline amendments, relating to Chapter Four (Criminal History and Criminal Livelihood), which may include (A) assessment of the calculation of criminal history points for first time offenders and offenders who are in the highest criminal history categories; (B) assessment of the criminal history rules for the inclusion or exclusion of certain prior offenses; (C) assessment of the criminal history rules for related cases; and (D) consideration of other application issues relating to simplifying the operation of Chapter Four;

(5) continued review of data regarding the incidence of downward departures and fast-track programs, in view of the PROTECT Act;

(6) continuation of its work with Congress and other interested parties on cocaine sentencing policy in view of the Commission’s 2002 report to Congress, Cocaine and Federal Sentencing Policy;

(7) a general review of the firearms guidelines in Chapter Two, Part K (Offenses Involving Public Safety), including an assessment of non-MANPADS destructive devices;

(8) consideration of policy statements pertaining to motions under 18 U.S.C. § 3582(c)(1)(A)(i) for sentence reductions for "extraordinary and compelling reasons";

(9) a general review of, and possible amendments pertaining to, hazardous materials, and possibly other environmental offenses under Chapter Two, Part Q (Offenses Involving the Environment);

(10) continued monitoring of, and/or possible amendments pertaining to, section 5 of the CAN-SPAM Act, Pub. L. 108–187;

(11) other miscellaneous and limited issues pertaining to the operation of the sentencing guidelines, including (A) resolution of a number of circuit conflicts, including the circuit conflict regarding the definition of "felony", as incorporated into §2K2.6 (Possessing, Purchasing, or Owning Body Armor by Violent Felons) effective November 1, 2004; (B) continuation of policy work regarding offenses involving gamma-butyrolactone (GBL), a precursor for gamma-hydroxybutyric acid (GHB), sentenced under §2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy); (C) simulated controlled substances; (D) 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 when the offense level exceeds level 43; (E) commentary regarding the appropriate starting point for departures under §5K1.1 (Substantial Assistance), particularly in cases in which the government has moved for relief from imposition of an otherwise applicable mandatory minimum term of imprisonment; (F) commentary to §3C1.1 (Obstructing or Impeding the Administration of Justice) regarding encryption; and (G) counterespionage offenses under 18 U.S.C. § 951.

(12) amendments to the Commission’s Rules of Practice and Procedure regarding retroactivity, public access to Commission materials, and access to nonpublic Commission meetings.

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

Ricardo Hinojosa,

United States Sentencing Commission: