Public Hearing Agenda and Written Testimony
United States Sentencing Commission
Federal Judicial Center Training Rooms
Thurgood Marshall Federal Judiciary Building , Washington, DC

March 17, 2004

Introductory Remarks — 9:30 a.m.

Judge Ruben Castillo
Vice Chair, United States Sentencing Commission

Panel One — 9:35 a.m
Chapter Eight: Scope, Preclusion, and Small Organization Concerns

Patrick Gnazzo
Corporate Member, Ethics Resource Center Fellows Program
Vice President Business Practices, United Technologies Corporation

Kenneth Johnson
Director, Ethics and Policy Integration Centre

Dov L. Seidman
Chair and CEO, LRN

Q&A

Panel Two — 10:20 a.m.
Chapter Eight: Waiver Issue and Advisory Group Recommendations

Mary Beth Buchanan
United States Attorney for the Western District of Pennsylvania
Chair, Attorney General’s Advisory Committee
Member, USSC Ad Hoc Advisory Group for Organizational Guidelines

Linda A. Madrid
Managing Director, General Counsel & Corporate Secretary, CarrAmerica Realty
Member, Board of Directors of the Association of Corporate Counsel (ACC)

Gregory J. Wallance
Partner, Kaye Scholer LLP
Member, USSC Ad Hoc Advisory Group for Organizational Guidelines

Q&A

Panel Three — 11:05 a.m.
Hazardous Materials

David Uhlmann
Chief, Environmental Crimes Section, United States Department of Justice

James W. Conrad, Jr.
Counsel, American Chemistry Council

Ronald A. Sarachan
Ballard Spahr Andrews & Ingersoll

Steven P. Solow
Hunton & Williams
Association of Oil Pipe Lines

Q&A

Lunch Break — 12:00 p.m.-12:50 p.m.

Panel Four — 12:50 p.m.
Proposed Amendments for 2004

Barry J. Pollack
Member, Board of Directors, National Association of Criminal Defense Lawyers
Co-Chair, White Collar Crime Committee

Mary Price
General Counsel, Families Against Mandatory Minimums (FAMM)

Jon L. Sands
Federal Public Defender, District of Arizona

Q&A

Panel Five — 1:35 p.m.
Proposed Amendments for 2004

Thomas Colantuono
United States Attorney for the District of New Hampshire

Jodi Avergun
Chief, Narcotic and Dangerous Drug Section, United States Department of Justice

Raymond N. Hulser
Public Integrity Section, United States Department of Justice

Q&A

Panel Six — 2:20 p.m.
Proposed Amendments for 2004

James E. Felman and L. Barrett Boss
Co-Chairs, United States Sentencing Commission Practitioners Advisory Group

Cathy Battistelli
Chair, Probation Officers Advisory Group

Q&A

Adjourn

Minutes of the March 19, 2004

United States Sentencing Commission
Public Meeting 

Vice Chair Castillo called the meeting to order at 10:20 a.m. in the Commissioners Conference Room.

The following Commissioners and staff participated in the meeting:

Ruben Castillo, Vice Chair
William K. Sessions, III, Vice Chair
John R. Steer, Vice Chair
Ricardo Hinojosa, Commissioner
Michael E. Horowitz, Commissioner
Michael E. O’Neill, Commissioner
Deborah J. Rhodes, Ex Officio Commissioner
Timothy B. McGrath, Staff Director
Charles Tetzlaff, General Counsel
Judith Sheon, Special Counsel

Vice Chair Castillo explained why he was presiding over the meeting. He noted that since the last public meeting the commissioners had met and agreed on a division of duties. It was decided that Vice Chair Castillo would continue to conduct the public meetings until a new Chair has been appointed. He congratulated Commissioner Hinojosa for his nomination by the President as Chair of the Commission. He noted that all of the commissioners are looking forward to Commissioner Hinojosa’s quick confirmation by the Senate.

Vice Chair Castillo stated that the minutes of the January public meeting had been circulated. Vice Chair Sessions requested that an amendment be made on the second line of page four. He requested that the term "guidelines" be changed to "issues to consider." Vice Chair Castillo asked if there was any objection to this friendly amendment. The amendment was accepted; the minutes, incorporating Vice Chair Sessions’s amendment, were approved unanimously by voice vote.

General Counsel Tetzlaff noted that, in accordance with past practice, the Commission may want to waive Rule 4.1 of the Rules of Practice and Procedure, under the authority of Rule 1.2 subparagraph b, in order to take additional time in considering the retroactive application of any amendment promulgated during the meeting which may result in reduced penalties. General Counsel Tetzlaff noted that while this was not intended to be an inclusive list, examples could be found in the aggravated assault guideline, and the 924(c) miscellaneous amendment on the double-counting in the armed career criminal guideline. Vice Chair Castillo asked if this waiver would apply to all of the amendments being voted on during the meeting. General Counsel Tetzlaff recommended its application to all of the amendments being voted on during the meeting. Vice Chair Steer moved to apply the waiver to all of the amendments being voted on during the meeting. Seconded by Vice Chair Sessions.

The motion to waive the requirement of Rule 4.1 of the Rules of Practice and Procedure and to take additional time to consider the retroactive application of any amendment promulgated during the meeting which may result in reduced penalties, passed unanimously by voice vote.

Body Armor

Vice Chair Castillo called on General Counsel Charles Tetzlaff to summarize the first issue on the agenda, the proposed amendment to the body armor guideline.

General Counsel Tetzlaff introduced the proposed amendments to the body armor guideline. He stated that as part of the 21st Century Department of Justice Appropriations Authorization Act, Congress created a new offense, which prohibits individuals with a prior state or federal felony conviction for a crime of violence, from purchasing, owning, or possessing body armor. General Counsel Tetzlaff noted that the proposed amendment provides a new guideline at §2K2.6 (Possessing, Purchasing, or Owning Body Armor by Violent Felons) with a base offense level of 10. He also noted that the proposed amendment provides a specific offense characteristic for cases in which the body armor was used in connection with another felony offense. General Counsel Tetzlaff stated that commentary provides certain definitions, as well as guidance on grouping of closely related counts, and an application note regarding the interaction of this guideline with the adjustment at §3B1.5 (Use of Body Armor in Drug Trafficking and Crimes of Violence).

General Counsel Tetzlaff stated that a motion would be in order to adopt the proposed amendment with an effective date of November 1, 2004, and to authorize staff to make technical and conforming changes, if needed.

Vice Chair Steer moved to adopt the proposed amendment to the body armor guideline. Seconded by Commissioner O’Neill.

Vice Chair Steer was pleased the proposed amendment was modified to include an enhancement for using body armor in connection with another felony offense. However, he noted that the language of the proposed amendment had been imported from the language of the firearm guideline, which has caused some litigation and a circuit conflict regarding issues that are less likely to arise under the body armor guideline. Vice Chair Steer provided the example of a firearm being stolen from a firearm store, or a pawnshop, raising the issue of whether the theft of the firearm from the firearm store, or the pawnshop, constitutes use in another felony offense. Vice Chair Steer flagged this issue, and the circuit conflict, as a potential matter to be addressed in the near future by the Commission as part of the miscellaneous amendment package.

Vice Chair Castillo added that he had faced body armor issues within his district. He noted that the Commission is aware of the sacrifices that law enforcement officers make on a daily basis. He concluded that these sacrifices should not include placing their lives unduly at risk. He stated that by passing this amendment the Commission supports the efforts of law enforcement officers. Vice Chair Castillo called for a voice vote on the motion.

The motion to adopt the proposed amendment to the body armor guideline passed unanimously by voice vote.

Public Corruption

Vice Chair Castillo called on General Counsel Tetzlaff to introduce the proposed amendment regarding the public corruption guidelines. General Counsel Tetzlaff stated that following the Commission’s work on Campaign Finance during last amendment cycle, it indicated a desire to address the Chapter Two guidelines involving public corruption. He noted that the proposed amendment is the result of that effort.

General Counsel Tetzlaff noted that the amendment consolidates the bribery and extortion guideline at §2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color Official Right) and the §2C1.7 guideline (Fraud Involving Deprivation of the Intangible Right of the Honest Services of Public Officials; Conspiracy to Defraud by Interference with Governmental Functions). The amendment also consolidates the gratuity guideline at §2C1.2 (Offering, Giving, Soliciting, or Receiving a Gratuity) with the §2C1.6 guideline (Loan or Gratuity to Bank Examiner, or Gratuity for Adjustment of Farm Indebtedness, or Procuring Bank Loan, or Discount of Commercial Paper).

General Counsel Tetzlaff noted that, while generally providing for increased punishment, the new guideline relies less heavily on monetary harm for offense severity, and instead provides enhancements tailored to address some of the other aggravating factors involved in public corruption cases.

General Counsel Tetzlaff stated that in the new consolidated bribery and extortion guideline, §2C1.1, the current base offense level of 10 has been changed to level 14, if the defendant is a public official, a level 12 otherwise. Similarly, in the new consolidated §2C1.2 gratuity guideline, the current base offense level of level 7 has been changed to level 11, if the defendant is a public official, a level 9 otherwise.

General Counsel Tetzlaff also explained that the proposed amendment makes a number of changes in enhancements. First, the proposed amendment makes the enhancement for loss cumulative to the public official enhancement, if applicable. Second, it modifies the current "high level decision making or sensitive position" enhancement and provides a definition based on case law as to what that term means, as well as gives examples of public officials who would be included. Finally, the term "public official" is given a broad and expansive definition, beyond the one found in 18 U.S.C. § 201, so as to encompass state and local officials, government contractors, persons acting under color of law or official right, and leaders of political parties when they act in the manner described in that subsection.

Finally, General Counsel Tetzlaff stated that a new two level enhancement is provided in both proposed consolidated guidelines involving a bribe or gratuity given to a defendant, who was a public official, in order to facilitate entry into the United States, or to obtain certain documents, such as a passport or government identification document. This enhancement recognizes not only those concerns of the increased risk of domestic terrorism from foreign nationals illegally entering or residing in the United States through the use of illegally obtained identification documents, but also balances the small payment that may be involved in such cases with the harm which cannot be quantified by use of the loss tables.

General Counsel Tetzlaff stated that a motion would be in order to adopt the proposed amendment with an effective date of November 1, 2004, and to authorize staff to make technical and conforming changes, if needed.

Commissioner Horowitz moved to adopt the proposed amendment to the public corruption guidelines. Seconded by Vice Chair Steer.

Ex Officio Commissioner Rhodes congratulated the staff for its hard work on the public corruption guidelines. She noted that these offenses undermine the integrity of our political system and raise issues directly related to our homeland security.

Commissioner Horowitz commented on a concern that was raised while he was an Ex Officio Commissioner, as a prosecutor, and since he has been with the Commission, which was the concern regarding the existing guideline being at a level which allows a number of these offenses committed by public officials to be sentenced potentially to a probationary sentence range. Commissioner Horowitz stated that, in light of the efforts made in other administration of justice offenses, namely raising the base offense level in the obstruction of justice guideline to a level 14, it is appropriate to raise the base offense level for public officials who commit crimes to a level that will require some jail sentence if the public officials are found guilty of selling their office. Commissioner Horowitz commended the Department of Justice and the Commission’s staff for their work in this area. He stated that the end product on the public corruption guideline is carefully considered and takes into account the need to amend the guideline in an appropriate manner.

Commissioner O’Neill noted the importance of guideline adjustment in this particular area. He stated that the position of public trust is among one of the most important positions in our representative democracy. Therefore it is important for public officials to hold dear the sacred trust that has been placed in them by the public, regardless of whether these officials are elected democratically or appointed. Commissioner O’Neill requested a minor technical amendment in keeping with attempts to construe broadly the term "public official" for purposes of 18 U.S.C. § 201, to include federal public officials, but also state officials, which may include public officials not necessarily included under the federal definition. He also requested a minor technical change at the bottom of page five under part three - Application of Subsection(b)(3) so that the pertinent sentence be amended as follows: "examples of public officials who hold a sensitive position may include a juror, a law enforcement officer, or an election official."

Vice Chair Castillo asked Commissioner Horowitz, who had moved for this amendment, whether he accepted it as a friendly amendment. Commissioner Horowitz accepted the amendment.

Vice Chair Castillo called for a voice vote on the motion. The motion to adopt the proposed amendment to the public corruption guidelines passed unanimously by voice vote.

Vice Chair Castillo stated that he kept his comments until after the vote because he did not want to influence the vote of any commissioner, even though he noted that it would be impossible to unduly influence a commissioner’s vote. Vice Chair Castillo stated that this vote is an historic vote for the Commission; it is a major event in the Commission’s history. He thanked the public corruption team comprised of Tom Brown, Janeen Gaffney, Amy Schreiber, Patrick Smith and Krista Rubin. Vice Chair Castillo noted that the Commission self-initiated the work on the public corruption guidelines; this work was effectuated without any congressional directive. This project was accomplished with the full support of the Department of Justice. He stated that the Commission is sending a strong message and is also providing the Department of Justice with a powerful weapon to condemn public corruption. He hopes, as a former prosecutor, that the Department of Justice will use this weapon wisely with the full use of its prosecutorial discretion and not sweep too broadly. Vice Chair Castillo stated his belief in zero tolerance when it comes to public corruption. He noted that, prior to 9/11, the problem of external terrorism was already an issue the Commission had addressed. He equated public corruption to internal terrorism, which tears at the heart of democracy. Vice Chair Castillo stated that it was pointless for people to vote if those who assume public office turn around and betray the public trust. He also noted that many of the individuals voted into office are elected on platforms of being tough on crime; these individuals tell the general public that if people do the crime, they will do the time. Vice Chair Castillo stated that the Commission sends the message that the same rules apply doubly to those officials who hold positions of public trust; there is no immunity for public officials.

Vice Chair Castillo stated that the whole concept of intangible rights prosecution was greatly expanded in Chicago, his hometown. He provided an example that haunts him every day as he enters the federal building. He stated that the son of a Seventh Circuit judge was elected to be governor of the state of Illinois. The son, having served as governor, was then himself appointed to the Seventh Circuit Court of Appeals. Thereafter, right before Christmas, the U.S. attorney informed that Seventh Circuit Judge, who was sitting on the Court of Appeals, that he had been indicted for selling his office while sitting as governor for the state of Illinois. Vice Chair Castillo noted that one would think that if you can indict a sitting Seventh Circuit Judge for the efforts he undertook to sell his office as governor, it would send the message once and for all in Chicago that there would be no further public corruption; unfortunately, the message did not have the intended impact because, thereafter, another governor of the state of Illinois was convicted for public corruption. He also noted that there is currently another former governor who is under indictment, although presumed innocent. He noted that this phenomena is not unique to Chicago. Corruption problems are in existence throughout the country. Vice Chair Castillo stated how over the past couple of days, possession of a U.S. Passport was equated to a gold standard. He noted that foreigners look to the United States to set the gold standard for zero tolerance regarding public corruption. He concluded by saying that, through this vote, the Commission has set a standard for zero tolerance concerning public corruption, and he hopes the Department of Justice will use this weapon effectively.

Homicide and Assault

Vice Chair Castillo called on General Counsel Tetzlaff to introduce the proposed amendment regarding the homicide and assault guidelines.

General Counsel Tetzlaff stated that this amendment proposes a number of changes to the homicide and assault guidelines in order to address longstanding proportionality concerns and to implement another congressional directive in the 21st Century Department of Justice Appropriations Authorization Act regarding assaults against federal officials, including federal judges.

General Counsel Tetzlaff noted that the amendment proposes a number of changes to the homicide guidelines. Generally, the amendment proposes increases in the base offense levels to address proportionality issues among the homicide guidelines themselves, as well as between the homicide guidelines and other Chapter Two guidelines, such as kidnaping and the production of child pornography. He stated that the base offense level in second-degree murder is increased from a level 33 to a level 38; the base offense level in voluntary manslaughter is increased from a level 25 to a level 29. Regarding involuntary manslaughter, the base offense level based on negligent conduct remains at level 12, and based on reckless conduct remains at level 18, however a second prong of a level 22 has been added if the conduct involves reckless operation of a means of transportation. The base offense level in the solicitation to commit murder guideline is raised from a level 28 to a level 33. The base offense level in the attempted murder guideline is raised from a level 28 to a level 33, if the object is to commit first-degree murder, otherwise the base offense level has been changed from level 22 to level 27.

General Counsel Tetzlaff stated that the 21st Century Department of Justice Appropriations Authorization Act increased a number of statutory maximum sentences for offenses relating to assaults and threats against federal officials, including federal judges. He noted that in furtherance of a congressional directive accompanying these changes, this amendment proposes a number of changes to the assault guidelines and the Chapter Three adjustment relating to official victims. These modifications are intended to compliment the proposed changes in the homicide guidelines.

General Counsel Tetzlaff explained that in §2A2.2 (Aggravated Assault) a two level enhancement has been added, if the defendant was convicted under 18 U.S.C. § 111(b) or 18 U.S.C. § 115, which constitutes assaults against federal officers, including judges. He noted that this enhancement is cumulative to the Chapter Three official victim adjustment. At the same time, he also noted that, largely as a result of work done by the Native American Advisory Group, the proposed amendment reduces the base offense level from level 15 to level 14 based on a combination of concerns with overall proportionality, high downward departure rates (20% in 2001), and the recommendation of the Native American Advisory Group to decrease the base offense level. However, General Counsel Tetzlaff noted that, in an effort to ensure no reduction in sentence for cases involving bodily injury, there are concomitant increases of one level to the enhancements for bodily injury table.

General Counsel Tetzlaff stated that, for reasons of proportionality, there is an increase of one level in the §2A2.3 (Minor Assault) and an increase of four levels to level 10 in the base offense level of §2A2.4 (Obstructing or Impeding Officers). He noted that there is also an increase from a level 3 to a level 6 in the official victim adjustment at §3A1.2 (Official Victim), if the victim was a government officer and a Chapter Two, Part A guideline is involved.

General Counsel Tetzlaff concluded by stating that, while this was not an exhaustive list of all changes to these homicide and assault guidelines, it represented a general overview.

General Counsel Tetzlaff stated that a motion would be in order to promulgate the proposed amendment with an effective date of November 1, 2004, and to authorize staff to make technical and conforming changes, if needed.

Vice Chair Steer moved to promulgate the proposed amendment for the homicide and assault guidelines. Seconded by Commissioner O’Neill.

Vice Chair Sessions stated that it had been a difficult decision as to whether he would support the proposed amendment. Ultimately, he decided to support this proposed amendment out of respect for the other commissioners and because he trusts their judgment. Vice Chair Sessions noted that he might have lost his judgment in his reaction to this particular event, as well as other increased penalties, which might be coming down in the future. He stated that he agrees to the proposed amendment, more specifically he agrees with the increases for second-degree murder. Vice Chair Sessions explained that two specific reasons were the cause of his distress; first, he was distressed by the penalties being imposed, and second by the process. He explained that he was not blaming any particular individual or group.

Vice Chair Sessions first addressed the issue of penalties. He commented on how the Commission passes judgment based on numbers; the Commission looks to individual enhancements that might require an increase. However, he noted that nobody seems to consider the big picture, or the cumulative effect of all the little decisions that the Commission makes. Vice Chair Sessions stated that, as a result, the penalties seem to continually grow based on apparently legitimate reasons. However, he noted that if one looks to the overall system, which is not known to be particularly lenient, it is continuously becoming more severe. He noted that those involved in the criminal justice system recognize that this is perhaps the strictest system of any system in the United States, and in many ways in the industrialized free world. He wondered if the Commission, after the past week, recognizes by how much it has increased penalties.

Vice Chair Sessions then addressed the issue of process. First, he noted that the commissioners and the Commission’s staff work well with the Department of Justice, however there are so many other units in the field that would provide balance to the Commission. He stated that the Commission could benefit from an active participation on the part of criminal defense lawyers, of probation officers, and of judges; this interaction would provide the Commission with a more balanced approach.

Vice Chair Sessions also noted how it is possible to see how penalties get ratcheted up. Congress passes a particular piece of legislation, of which many among the Commission were very critical. But once a guideline is set, such as the kidnaping base offense level being increased to level 32, as a result the Commission increases everything else, right down to minor assault, based on proportionality concerns. Vice Chair Sessions stated that, by accepting what Congress has done, and the Commission should accept Congress’s actions, the Commission has taken Congress’s actions and increased penalties all across the board. He noted that the Commission does not stop at mandatory minimums. When one starts adding the enhancements, the Commission far exceeds them. Vice Chair Sessions suggested that the Commission understand this proportionality issue and make independent judgments, and that it reflect upon its ultimate goal. Vice Chair Sessions concluded by saying that he respects the judgment of the other commissioners, but he cannot help notice that once again the penalties have gone up.

Vice Chair Steer addressed a different aspect of the process, he provided a historical note. For the record, Vice Chair Steer stated that some of these changes had been in the works for a long time. He stated that with regards to penalties for voluntary manslaughter, years ago, Judge Richard Battey, from the U.S. District Court of South Dakota, actively served on the criminal law committee; his efforts and suggestions led the Commission to make a recommendation to Congress to increase statutory maximums. Vice Chair Steer also noted that a previous Chair of the Commission, Judge Conaboy, was supportive of reviewing the involuntary manslaughter guideline, and in general reviewing the homicide guidelines. Vice Chair Steer noted that, at the time, the work on the homicide guidelines did not come to fruition, but in this set of amendments this past work has come to fruition. He also noted that the Native American Advisory Group, and the Commission’s previous Chair, Judge Murphy, had been appropriately sensitive to matters involving the aggravated assault guideline and how it impacts on Native Americans. He noted how Judge Murphy took members of the Commission out to South Dakota to hear the Native Americans’s concerns. Vice Chair Steer also thanked Vice Chair Castillo for keeping the Commission sensitized to the issues facing the Native Americans. He also thanked all the staff members who participated in the Native American project, more specifically Pam Barron for being chair of the team, and Kevin Blackwell for his work on managing the research team. Vice Chair Steer concluded by stating that he was pleased with the proposed amendment, and that the penalties had been appropriately increased. However, he acknowledged that Vice Chair Sessions raised some important concerns regarding the ratcheting up effect, but that these serious offenses should not fall behind because of the personal harm they cause.

Vice Chair Castillo thanked Vice Chair Steer for his kind comments directed at him. He noted that the Native American team, as well as Judge Murphy, deserved lots of credit for setting up the Native American Advisory Group and taking the Commission out to South Dakota. Vice Chair Castillo noted that when the Commission went out to South Dakota, it not only heard from the offenders, but also from the victims. He also addressed the comments of Vice Chair Sessions. He noted that deliberations among the commissioners can get very intense. He stated that, even though Vice Chair Sessions returns to Vermont frustrated, he returns to Chicago in good conscience. He believes the proposed amendment for these offenses is appropriate and that the Commission is doing the right thing. Vice Chair Castillo took exception to one of Vice Chair Sessions’s statements about his losing judgment. Vice Chair Castillo stated that, for as long as he has known Vice Chair Sessions, Vice Chair Sessions has never lost any judgment. He noted that it is every commissioner’s role not to increase penalties on any type of ad hoc basis without full justification. He stated that it is every commissioner’s role to bring their own conscience to the table and to fully explore what are the intended, as well as the unintended consequences of the proceeding. Vice Chair Castillo concluded by stating that he fully supported the proposed amendment.

Vice Chair Castillo called for a voice vote on the motion. The motion to adopt the proposed amendment to the homicide and assault guidelines passed unanimously by voice vote.

MANPADS and Other Destructive Devices:

Vice Chair Castillo called on General Counsel Tetzlaff to introduce the proposed amendment regarding MANPADS and other destructive devices.

General Counsel Tetzlaff stated that in its annual submission to the Commission dated August 1, 2003, the Department of Justice recommended that guideline penalties be increased, if the offense involved the use or attempted use of, or conspiracy to use, a kind of destructive device known as the man-portable air defense system (MANPADS) or any similar destructive device. He explained that MANPADS are portable rockets and missiles that pose particular risks due to their portability, potential range, accuracy, and destructive power. He stated that this proposed amendment addresses that concern by increasing the enhancement in §2K2.1(b)(3) for involvement of these types of destructive devices from 2 levels to 15 levels, and eliminating the maximum cumulative offense level provision for MANPADS and similar destructive devices. The proposed amendment also provides an upward departure note, if the offense level does not adequately account for the seriousness of the offense because of the type of destructive device involved (other than a MANPADS), and the location and manner in which the destructive device was possessed or transported.

General Counsel Tetzlaff stated that the Department of Justice also urged the Commission to increase guideline penalties for attempts and conspiracies to commit certain offenses, if those offenses involving the use of a MANPADS or similar destructive device. He noted that these offenses include: destruction of an aircraft or aircraft facilities, terrorist attacks and other acts of violence against mass transportation systems, and the use of certain weapons of mass destruction. In response to this concern, the amendment proposes to amend the special instruction in §2X1.1(d) (Attempt, Solicitation, or Conspiracy (Not Covered by a Specific Offense Guideline)) to prohibit application of the three level reduction for attempts and conspiracies for these offenses generally, and not just in the context of the use of a MANPADS or similar destructive device. General Counsel Tetzlaff noted that these offenses are comparable in nature to the offenses already listed in §2X1.1(d).

Finally, General Counsel Tetzlaff noted that the proposed amendment also amends Appendix A (Statutory Index) and the commentary to clarify the definition of "destructive device" by referring directly to the statutory definition provided in 26 U.S.C. § 5845(f). Similar commentary changes are proposed for the definitions of "ammunition" and "firearm."

General Counsel Tetzlaff stated that a motion would be in order to promulgate the proposed amendment with an effective date of November 1, 2004, and to authorize staff to make technical and conforming changes, if needed.

Commissioner O’Neill moved to promulgate the proposed amendment regarding MANPADS and other destructive devices. Seconded by Vice Chair Steer.

Ex Officio Rhodes commended the Commission and its staff for their hard work. She stated that this is a very important amendment in the Department of Justice’s view because it addresses terrorism directly. She also noted that the Department of Justice thanked the Commission for continuing to work on the possibility of an amendment on the destructive devices; the Department of Justice appreciated the upward departure.

Vice Chair Castillo thanked Pam Barron, the Commission’s resident terrorism expert, who has been invaluable to the Commission and the members of her team. Vice Chair Castillo noted that the Commission addressed the issues of terrorism in passing nuclear biological guidelines way before 9/11. He noted that this was another effort on the Commission’s part to show zero tolerance for terrorism. He stated that the only frustration, on the part of the commissioners, was the awareness that they can only deter very little, and that they can only punish. He noted that, harkening back to public corruption, the Commission can deter in the area of public corruption because of the sophisticated level of defendants.

Commissioner Horowitz also commended the staff for its work on the MANPADS guideline. He noted that the increase of 15 levels represents one of the very few instances where the Commission has decided that any violation warrants the maximum possible penalty authorized by law. He noted that the Commission did so because these rocket launchers are so dangerous and have no valid legitimate purpose. He concluded by stating that the Commission thought about the seriousness of this matter, and captured the ten-year statutory cap within this guideline.

Vice Chair Castillo called for a voice vote on the motion. The motion to adopt the proposed amendment to the MANPADS and other destructive devices guideline passed unanimously by voice vote.

Miscellaneous Amendments Package:

Vice Chair Castillo called on General Counsel Tetzlaff to introduce the miscellaneous amendments package.

General Counsel Tetzlaff stated that the package was comprised of nine miscellaneous amendments. He stated that the first amendment creates a special rule in the fraud/theft guideline, §2B1.1, Application Note 4(B)(ii), for determining the number of victims in offenses involving public or otherwise owned mail collection and delivery units that serve multiple postal customers, e.g. multiple dwelling mail cluster boxes.

General Counsel Tetzlaff noted that the second item modifies §2B1.1(b)(9), which provides a two level enhancement and a minimum offense level of level 12, in response to the SAFE ID Act. That act created a new offense at 18 U.S.C. § 1028(a)(8) prohibiting the trafficking of authentication features, such as a hologram, and amended 18 U.S.C. § 1028 to prohibit the transfer or possession of authentication features. The proposed amendment makes the two level enhancement, with a minimum offense level of level 12 at §2B1.1(b)(9), applicable to offenses involving authentication features.

General Counsel Tetzlaff stated that the third amendment addresses a new offense provided at 18 U.S.C. § 25 (Use of minors in crimes of violence), which was created by section 601 of the PROTECT Act. Section 25 of title 18 prohibits any person who is 18 years of age or older from intentionally using a minor to commit a crime of violence or to assist in avoiding detection or apprehension for such offense. The proposed amendment creates a new guideline for 18 U.S.C. § 25 offenses. General Counsel Tetzlaff noted that proposed guideline at §2X6.1 (Use of a Minor in a Crime of Violence) directs the court to increase by four levels the offense level from the guideline applicable to the underlying crime of violence. He stated that the proposed amendment also provides application notes addressing the interaction of the new guideline with §3B1.4 (Using a Minor to Commit a Crime) and the grouping of multiple counts, and amends Appendix A (Statutory Index) to reference the new offense.

General Counsel Tetzlaff noted that the fourth amendment corrects a typographical error in Application Note 4 of §3C1.1 (Obstruction or Impeding the Administration of Justice).

General Counsel Tetzlaff stated that the fifth amendment adds to the definition of "crime of violence" possession of a short-barreled shotgun and other firearms of the type described in 26 U.S.C. § 5845(a). He noted that Congress determined that such firearms are inherently dangerous and, when possessed unlawfully, serve only violent purposes. The proposed amendment adopts a categorical rule that possession of a firearm described in 26 U.S.C. § 5845(a) is a crime of violence. General Counsel Tetzlaff noted that besides sawed-off shotguns, section 5845(a) includes silencers, machine guns, and destructive devices. The proposed amendment also modifies the rule that excludes felon in possession offenses from the definition of "crime of violence" to except from that rule possession of firearms that are of the type described in 26 U.S.C. § 5845(a).

General Counsel Tetzlaff stated that the sixth amendment generally updates Chapter Six (Sentencing Procedures and Plea Agreements), and in particular, incorporates amendments to Rules 11 and 32 of the Federal Rules of Criminal Procedure, effective December 1, 2002. He noted that most of these changes were simply reorganization of Rules 11 and 32 as part of a general restyling of the Federal Rules of Criminal Procedure. This proposed amendment reflects relevant substantive amendments and those stylistic changes to ensure that the guidelines are in sync with the Federal Rules.

General Counsel Tetzlaff noted that the seventh amendment makes conforming amendments to various guideline provisions and commentary in light of the PROTECT Act departure amendments promulgated at the October 2003 meeting.

General Counsel Tetzlaff noted that the eighth amendment corrects error in the examples provided in Application Note 3(B)(iii) of §5G1.2 (Sentencing on Multiple Counts of Conviction).

Finally, General Counsel Tetzlaff stated that the ninth amendment provides an application note in §4B1.4 (Armed Career Criminal) regarding an apparent double-counting issue in cases in which the defendant is convicted of 18 U.S.C. § 922(g) (felon in possession), is an armed career criminal, and is convicted of an 18 U.S.C. § 924(c) offense for use of a firearm during a drug trafficking offense or crime of violence or similar offense carrying a mandatory minimum.

General Counsel Tetzlaff stated that a motion would be in order to promulgate this package of nine miscellaneous amendments with an effective date of November 1, 2004, and to authorize staff to make technical and conforming changes, if needed.

Vice Chair Steer moved to promulgate the miscellaneous amendment package. Seconded by Commissioner Hinojosa.

Commissioner O’Neill stated his support for the miscellaneous amendment package. However, he had two basic concerns regarding the third amendment, offenses using a minor in committing a crime of violence. He stated that his first concern is that he understands how the use of a minor in the commission of a crime of violence, or of any offense, is deserving of a greater quantum of punishment. Second he noted that, although he recognized that the Commission’s primary purpose is to provide punishment for offenses, it nevertheless must recognize that its decisions will have an effect of incentivizing and disincentivizing prosecutorial conduct. Commissioner O’Neill voiced his disconcertment when Congress enacts a statute that specifically penalizes the use of a minor in committing an offense by providing a statute for this offense and effectively acts as an enhancement to penalties, doubling the statutory maximums that would be involved. Commissioner O’Neill hopes that, in the future, the Department of Justice will not use the enhancement provisions and the sentencing guidelines as a means of effectively avoiding the charging of the conduct itself. He noted that the Commission does not want to place the Department of Justice in a position that incentivizes its behavior to avoid taking a case to a jury and proving beyond a reasonable doubt each of the elements of the statutory offense. Commissioner O’Neill noted broader concerns dealing with the use of relevant or acquitted conduct, and instances when Congress adopts a statute that would effectively duplicate a guideline enhancement. He stated that he clearly recognized that this was not an Apprendi question, since Apprendi only applies to the application of a statutory maximum, and as long as the ultimate penalty does not increase above the statutory maximum, no Apprendi issue is involved. Nevertheless, with the Blakely case, he stated that some members of the courts are concerned about the nature of the sentencing guidelines themselves, and the use of the guidelines to obtain enhancements that would otherwise be obtained through the jury system, by having a fair trial and by making sure that all the elements of the crime have been proved beyond a reasonable doubt.

Commissioner O’Neill believes that the Commission is setting itself up for future challenges by adopting this guideline. He stated that, if he were a defense counsel faced with a situation where the government sought an increase in the penalty at the sentencing phase, as opposed to at trial where the government had the opportunity to charge the conduct in the indictment, he would be concerned by this type of behavior. Commissioner O’Neill stated that if defendants are placed in a position where the only thing the government needs to do, in order to obtain enhancements at sentencing, is prove to a lone judge by a preponderance of the evidence that certain conduct occurred, in many respects the necessity of having a jury trial is subverted. Commissioner O’Neill concluded by speculating that the Supreme Court might decide that the Commission has gone too far, and consider the guidelines’s project as problematic. He noted that perhaps the Commission should consider this issue, and consider the larger issue of the use of acquitted and relevant conduct in similar instances.

Commissioner Hinojosa noted that there is no Chapter Three adjustments in this particular motion. He hoped that this would take care of Commissioner O’Neill’s concern. He stated that there is no Chapter Three adjustment, other than a Chapter Two base offense level, which is in conformance with the criminal statute.

Vice Chair Steer did not address the various issues in this package, however he discussed the process involved behind this type of amendment package. He noted that this package is ideal for conducting "pothole" repairs on the various guidelines, and address specific discrete issues within the guidelines. This process enables specific issues, which have been encountered in the field, to be addressed by the Commission. Vice Chair Steer thanked his fellow commissioners for their patience in dealing with the various issues in this amendment package.

Commissioner Horowitz stated that he shares some of the same concerns raised by Commissioner O’Neill. However, he stated that one of the reasons he is comfortable with this package, is that, although §3B1.4 exists, the Commission’s response to the congressional statute is to create a new Chapter Two guideline, and not amend Chapter Three, as noted by Commissioner Hinojosa. However he noted that this is an issue that the Commission must be mindful of, especially as the Supreme Court’s jurisprudence evolves.

Ex Officio Commissioner Rhodes noted that it was Commissioner O’Neill’s concern that led the Commission not to amend Chapter Three.

Vice Chair Castillo called for a voice vote on the motion. The motion to adopt the proposed miscellaneous amendment package passed unanimously by voice vote.

Vice Chair Castillo adjourned the meeting at 11:25 a.m.