Notice from August 19-20, 2003

August 11, 2003


Pursuant to Rule 3.2 of the Rules of Practice and Procedure of the United States Sentencing Commission, the following public hearing and meeting are scheduled:

(1) Public Hearing - Tuesday, August 19, 2003 at 3:00 p.m., and

(2) Public Meeting - Wednesday, August 20, 2003 at 9:30 a.m.

The public hearing on August 19 will be held in the Thurgood Marshall Federal Judiciary Building in the Federal Judicial Center’s Classrooms A-C. It is expected that the public hearing will last approximately two hours. The purpose of the public hearing is to gather testimony on the implementation of section 401(m) of the PROTECT Act requiring that within 180 days of enactment, the Sentencing Commission must “promulgate amendments to the sentencing guidelines, policy statements, and official commentary to ensure that the incidence of downward departures are substantially reduced.”

The public meeting on August 20 will be held in the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E., in Suite 2-500 (South Lobby). It is expected that the public meeting will last approximately 45 minutes. The purpose of the public meeting is for the Commission to conduct the business detailed in the following agenda:

Report of the Chair.

Report of the Staff Director.

Approval of Minutes.

Vote to Publish Federal Register Notice of Priorities for 2003-2004.

Vote on Commentary to the U.S. Sentencing Guidelines.

Public meeting materials are available at the Commission's website ( or from the Commission (202/502-4590).


Tuesday, August 19, 2003
Washington, DC

Introductory Remarks

Judge Diana E. Murphy, Chair, United States Sentencing Commission

Panel One

William Mercer, United States Attorney for the District of Montana; Chair, Subcommittee on Sentencing Guidelines, Attorney General's Advisory Committee

Michael Goldsmith, Professor, J. Reuben Clark Law School, Brigham Young University; Former Vice Chair, United States Sentencing Commission

Panel Two

James E. Felman, Partner, Kynes, Markman & Felman, Co-Chair, United States Sentencing Commission, Practitioners Advisory Group

John P. Rhodes, Assistant Public Defender for the District of Montana

Jon M. Sands, Assistant Public Defender for the District of Arizona; Chair, Federal Sentencing Guidelines Committee of the Federal Public and Community Defender

Panel Three

Judge David F. Hamilton, Judge, United States District Court for the Southern District of Indiana; Member, Committee on Criminal Law, Judicial Conference of the United States\




Minutes of the August 20, 2003
U.S. Sentencing Commission
Public Meeting

Chair Murphy called the meeting to order at 9:36 a.m. in the Commissioners Conference Room.

The following Commissioners and staff participated in the meeting:

Diana E. Murphy, Chair
Ruben Castillo, Vice Chair
William K. Sessions, III, Vice Chair
John R. Steer, Vice Chair
Ricardo H. Hinojosa, Commissioner
Michael E. Horowitz, Commissioner
Michael E. O'Neill, Commissioner
Eric H. Jaso, Commissioner Ex Officio
Timothy B. McGrath, Staff Director
Charles Tetzlaff, General Counsel

Chair Murphy stated that the Commission is hard at work on the responsibilities Congress has given it under the PROTECT Act. She noted that the 180 day time period by which the Commission must respond to Congress ends on October 27, 2003. The Commission will be holding a public meeting on October 8 at which time it will vote on any changes to the guidelines and commentary.

Chair Murphy noted that the Commission has a daunting challenge ahead of it, but that it takes its responsibility very seriously. She reported that the Commission held a public hearing regarding the PROTECT Act yesterday. She advised that the staff has been producing a substantial amount of material for the commissioners to examine and discuss and that the Commissioners recognize that improvements can be made with respect to obtaining data from sentencing courts. The Commission also is responding to the privacy and confidentiality concerns of the courts and is trying to work out the best system that it can.

Chair Murphy noted that as usual the commissioners have been participating in various speaking engagements throughout the country, including seminars, workshops, and ABA and circuit conferences. The staff also has been participating in these activities. While these types of activities provide the Commission with an opportunity to inform the public about what it is working on, it is also an opportunity for the Commission to receive valuable feedback about public concerns regarding federal sentencing.

Staff Director McGrath announced that he will be assigning staff teams in light of the action by the Commission to set its priorities for the coming amendment cycle. He noted that the staff now is deeply involved in PROTECT Act issues and document collection. The staff also has been assisting the General Accounting Office with a report it is working on at the request of Congress. Staff Director McGrath mentioned various training programs in which the staff is involved, including a new chief probation officer training session this month in Washington, D.C., a Second Circuit probation officer training session this month in New York, a First Circuit training session next month in Rhode Island, and training seminars in South Padre Island, Texas and Scottsdale, Arizona.

Chair Murphy stated that she would entertain a motion to approve the minutes from the June 24, 2003 meeting. Vice Chair Castillo moved to approve the June 24, 2003 minutes. Vice Chair Steer seconded the motion. The minutes were approved unanimously.

Chair Murphy noted that compared to many public meetings, the agenda for today's meeting is relatively short. She stated that the Commission published a notice of tentative priorities in June. Chair Murphy requested that General Counsel Tetzlaff summarize the final notice of priorities for this amendment cycle.

General Counsel Teztlaff stated that in June of this year, in accordance with Rule 5.2 of the Commission's Rules of Practice and Procedure, the Commission published a notice of possible priorities for the amendment cycle ending May 1, 2004. The Commission received public comment on the proposed priorities, reviewed and discussed the public comment, and subsequently identified those priorities which it wishes to undertake. General Counsel Tetzlaff pointed out that the Commission recognizes that other factors, such as Congressional directives, may require Commission action which could affect its ability to address some of the proposed priorities. Rather than discussing the entire list of priorities, General Counsel Tetzlaff highlighted the changes that the Commission decided to make to the published list of tentative priorities. He noted that the Commission expanded the priority regarding involuntary manslaughter so that it includes other homicide offenses. The Commission also added a provision to continue its work on the crack and powder cocaine issue addressed in its 2002 report to Congress. Lastly, the Commission added a provision that allows it to address any issues regarding terrorism in general, and more specifically, manned portable air defense systems and illegal transportation of hazardous materials. General Counsel Tetzlaff noted that with those exceptions, the list of priorities tracks the tentative list that was published in June. He indicated that a motion would be in order at this time to publish, in accordance with Rule 5.2, the Commission priorities for the amendment cycle ending May 1, 2004 with staff being authorized to make technical and conforming changes as necessary. Commissioner Horowitz moved to approve and publish the priorities. Vice Chair Steer seconded the motion.

Chair Murphy remarked that the list of priorities is quite long as usual. Vice Chair Castillo agreed that the Commission's priority list is ambitious, especially in view of the limitations on the Commission's work as a result of the time deadlines contained in the PROTECT Act. He noted, however, that he examined the provisions that were added to the tentative list of priorities very carefully to ensure that they were necessary. He is comfortable that all of the added issues are important issues that the Commission should address. Vice Chair Castillo stated that he will vote in favor of the list of priorities subject to his comments during the June public meeting.

The motion to approve the final list of priorities was approved unanimously.

Chair Murphy advised that the next item on the agenda was a series of technical changes to the Commentary of the guidelines.

General Counsel Tetzlaff stated that each year as Judy Sheon and her drafting unit revise the Guidelines Manual they look for technical changes that need to be made. He noted that under the Commission's Rules of Practice and Procedure changes to the Commentary can be made at any time and the procedures of the Administrative Procedure Act do not apply. He advised that the four technical amendments are to the commentary to §§ 2J1.2, 2B1.1, and 2L1.2 and Appendix A (Statutory Index). General Counsel Tetzlaff stated that a motion would be in order to promulgate these technical amendments to the commentary to the guidelines and Appendix A with an effective date of November 1, 2003, with the staff being authorized to make technical and conforming changes as necessary. Vice Chair Steer so moved. Commissioner O'Neill seconded the motion. The motion passed unanimously.

Chair Murphy adjourned the meeting at 9:48 a.m.