Public Hearing Agenda

April 12, 2005

Introductory Remarks — 9:00 a.m.

Judge Ricardo H. Hinojosa
Chair, United States Sentencing Commission

Panel One — 9:05 a.m

Richard D. Collins
National Association of Criminal Defense Lawyers (NACDL)

Donald C. Klawiter
Partner, Morgan, Lewis & Bockius LLP
American Bar Association, Chair-Elect, Section of Antitrust Law

James E. Felman
Partner, Kynes, Markman & Felman, P.A.
Practitioners Advisory Group

Jon L. Sands
Federal Defender, District of Arizona

Q &A

Panel Two — 9:45 a.m.

Scott D. Hammond
Deputy Assistant Attorney General, Antitrust Division
United States Department of Justice

Robert McCampbell
United States Attorney for the Western District of Oklahoma
Chair, Attorney General Advisory Sub-Committee on Sentencing
United States Department of Justice

Q&A

Adjourn

Public Meeting Minutes

April 13, 2005

Chair Ricardo Hinojosa called the meeting to order at 10:30 a.m. in the Commissioner’s Conference Room.

The following Commissioners and staff participated in the meeting:

Judge Ricardo H. Hinojosa, Chair
Judge Ruben Castillo, Vice Chair
Judge William K. Sessions, III, Vice Chair
John R. Steer, Vice Chair
Michael Horowitz, Commissioner (via teleconference)
Beryl Howell, Commissioner
Deborah Rhodes, Commissioner Ex Officio
Edward F. Reilly, Jr., Commissioner Ex Officio
Timothy B. McGrath, Staff Director
Charles Tetzlaff, General Counsel

The Chair asked if there was a motion to adopt the previous meeting’s minutes. Vice Chair Steer made a motion to that effect which was seconded by Commissioner Howell. The Chair called for a vote, and the minutes of the March 23, 2005 public meeting were unanimously approved.

The Chair proceeded to give his report. He indicated that the plans for the Commission’s 14th Annual National Seminar to take place in San Francisco on May 25-27 were in place and further stated that the Commission is continuing its training program for judges, probation officers, defense attorneys, prosecutors, and circuit staff attorneys.

The Chair also stated that the Commission will post the updated results of its post-Booker data collection efforts. The Commission has collected 8,969 cases, approximately 12 percent of the total cases expected in a year. The Commission will also publish shortly the Annual Report and Sourcebook for the 2003 fiscal year.

The Chair announced that Staff Director Tim McGrath has tendered his resignation and will be leaving the Commission in June. Mr. McGrath has accepted the position of Clerk of the Court for the Federal Bankruptcy Court for the Eastern District of Pennsylvania. The Chair expressed the Commission’s regret over Mr. McGrath’s departure, but also expressed the Commission’s appreciation for the Staff Director’s excellent work and best wishes for the future. Each Commissioner made remarks in appreciation of Mr. McGrath’s substantial contribution to the Commission during his tenure. Mr. McGrath expressed his appreciation to the Commissioners and the staff.

The Chair called on General Counsel Charles Tetzlaff to present the pending amendments before the Commission. Mr. Tetzlaff stated that when Congress passed last year’s "Identity Theft Penalty Enhancement Act," two new criminal offenses were created. The first, at 18 U.S.C. § 1028A(a)(1), prohibited the use of another person’s identification during the commission of certain enumerated felonies, typically frauds involving passports, visas, and other immigration, nationality and citizenship laws, programs under the Social Security Act, and acquisition of firearms. A conviction carries a two-year mandatory sentence, consecutive to any other term of imprisonment. The second new offense, at 18 U.S.C. § 1028A(b)(1), prohibits using a means of identification of another person in relationship to federal crimes of terrorism. A five-year mandatory, consecutive sentence is provided.

In response to the creation of these new offenses, Mr. Tetzlaff continued, the proposed amendment creates a new guideline at §2B1.6 (Aggravated Identity Theft). The proposed guideline provides that the guideline sentence is the term of imprisonment required by the statute, which is how a similar firearms statute was treated under the firearms guideline, §2K2.4. An application note to avoid double counting is also included in the proposal.

The General Counsel noted that Congress also directed the Commission to amend the Abuse of Trust guideline at §3B1.3 to include "a defendant [who] exceeds or abuses the authority of his or her position in order to obtain unlawfully or use without authority any means of identification . . ." In response to this directive, the proposed amendment amends §3B1.3 (Abuse of Trust) by adding an application note to ensure that an adjustment under this guideline applies to "a defendant who exceeds or abuses his or her position in order to obtain unlawfully, or use without authority, any means of identification."

The proposed amendment also provides a non-exhaustive list of factors for the court to consider in determining whether multiple counts of 18 U.S.C. § 1028A should run concurrently or consecutively to each other. Finally, the proposed amendment makes clear that 18 U.S.C. § 1028A offenses are excluded from the general grouping rules. The General Counsel concluded by stating that there are no retroactivity issues related to the proposed guideline amendment.

Mr. Tetzlaff advised the Commissioners that a motion to promulgate the amendment with an effective date of November 1, 2005, would be in order, with the staff being authorized to make technical and conforming changes.

The Chair asked if there was a motion to promulgate the proposed amendment. Vice Chair Steer made a motion to so promulgate, with Vice Chair Castillo seconding the motion. Asking if there was any additional discussion and hearing none, the Chair called for a vote on the motion. The amendment was passed unanimously.

Mr. Tetzlaff then introduced the second proposed amendment, which concerned antitrust. The General Counsel stated that the amendment responds to the "Antitrust Criminal Penalty Enhancement and Reform Act of 2004." This Act increased the statutory maximum term of imprisonment under the Sherman Antitrust Act from three to ten years, increased the maximum fine for corporations from $10,000,000 to $100,000,000 and increased the maximum fine for individuals from $350,000 to $1,000,000.

In the act’s legislative history, the General Counsel continued, Congress expressed its expectation that the Commission would revise its guidelines to increase the terms of imprisonment for antitrust violations to reflect the new statutory maximum penalties. The proposed amendment addresses Congress’s expectation in two ways. First, the proposed amendment increases the base offense level in §2R1.1, the antitrust guideline, from level 10 to level 12.

Second, the proposed amendment amends the Volume of Commerce Table at §2R1.1(b)(2) by raising the level at which the volume of commerce enhancement is triggered from the existing $400,000 to $1,000,000 with a 2-level incremental increase thereafter up to 16 levels for a volume of commerce of more than $1,500,000,000.

Together, these amendments to the base offense level and the Volume of Commerce Table recognize the increased statutory maximum penalty, make antitrust penalties more proportional to the penalties for other serious white collar crimes under §2B1.1, the Fraud/Theft guideline, provide more adequate punishment for large scale price fixing offenses, and account for the impact of inflation in the Volume of Commerce Table.

The proposed amendment also makes minor changes to the guideline commentary to 1) highlight the relevancy of Chapter Three adjustments to antitrust offenses, and 2) deletes outdated background commentary. The General Counsel advised that the proposed amendment presents no retroactivity issues.

The General Counsel stated that a motion to promulgate the amendment with an effective date of November 1, 2005, would be in order, with the staff being authorized to make technical and conforming changes.

The Chair asked if there was a motion to promulgate the proposed amendment. Vice Chair Castillo made a motion to promulgate, with Commissioner Howell seconding the motion. In response to the Chair’s call for any further discussion, Vice Chair Castillo stated that it was his belief that the policy of using large fines to deter antitrust violations was a failure. As the judge who imposed a $100,000,000 fine on ADM, Vice Chair Castillo believes such defendants make precise calculations about the risks and rewards involved and are willing to risk large fines because of the short terms of imprisonment involved. While agreeing with the need to restore the proportionality between antitrust and the recently increased penalties for sophisticated white-collar offenses, the Vice Chair voiced his belief that the proposed amendment would act as a greater deterrent and bring just punishment to the defendants in this particular category. Noting that while some outside the Commission have urged not making any changes in the aftermath of the Booker decision, he expressed his belief that it was appropriate to proceed in adopting the proposed amendment. Hearing no further discussion, the Chair called for a vote on the proposed antitrust amendment. The amendment was promulgated by a unanimous vote.

The next amendment item consisted of a package of miscellaneous amendments. Mr. Tetzlaff stated that the package of ten amendments make relatively minor, technical, clarifying, or conforming amendments to various guidelines, application notes, or commentary. The amendments present no retroactivity issues. Mr. Tetzlaff stated that a motion to promulgate the amendment package with an effective date of November 1, 2005, would be in order, with the staff being authorized to make technical and conforming changes, if needed.

Vice Chair Steer so moved, with Vice Chair Sessions seconding. Asking if there was any additional discussion and hearing none, the Chair called for a vote on the motion. The package of ten miscellaneous amendments was promulgated by a unanimous vote.

The General Counsel turned to the final proposed amendment concerning anabolic steroids. A request for comment as to how the Commission should address a congressional directive pertaining to anabolic steroids had been published. Mr. Tetzlaff suggested that the Commissioners may wish to address this proposal.

The Chair asked the Commissioners if there was any discussion or motions related to the topic of anabolic steroids. Vice Chair Steer stated that the Commission had been delayed in taking up the issue of anabolic steroids in the wake of the Booker decision. The Vice Chair noted that the Commission had heard testimony about the issue in the previous day’s public hearing. The Vice Chair made a motion to authorize the Chair to write an appropriate letter to the leadership of the House and Senate Judiciary Committees detailing the Commission’s efforts and progress in this area, expressing the Commission’s desire to make this a high priority this next amendment cycle and suggesting that Congress may wish give to the Commission emergency amendment authority to address the issue of anabolic steroids. With such authority, Vice Chair Steer continued, an amendment need not wait until the end of next cycle before it carries out the general direction of Congress in this area. Vice Chair Castillo seconded the motion. Vice Chair Castillo added that he reluctantly agreed that the Commission was not in a position to go ahead and vote on this issue today. He stated that the Commission had to act very carefully and study the steroid issue that has affected the nation and received so much attention. He added that the Commission needs more time to study the problem and perhaps more expert testimony to carefully determine how anabolic steroids should be treated in the guidelines. If the Commission received emergency amendment authority, Vice Chair Castillo felt confident that he and his fellow Commissioners would make anabolic steroids a top priority this coming amendment cycle. There being no further discussion, the Chair called for a vote on Vice Chair Steer’s motion. The motion passed by unanimous vote.

The Chair observed that while none of the amendments passed today had issues concerning retroactivity, three past amendments presented possible issues of retroactivity. These were the amendments promulgated in 2004 to §2D1.1(a)(3) and §2D1.11, known as the Mitigating Role Cap; to §2A2.2, Aggravated Assault and to §4D1.4, the Armed Career Criminal guideline. The Chair asked if there was any motion by any member of the Commission to make the application of any of these amendments retroactive. Hearing no motion, the Chair stated that there was no need for any further discussion on the subject of retroactivity.

The Chair asked if there was any further business. Hearing none, the Chair asked if there was a motion to adjourn the meeting. Vice Chair Castillo made the motion to adjourn, with Vice Chair Steer seconding. The motion to adjourn passed unanimously.

The Chair adjourned the meeting at 11:15 a.m.