Minutes of the November 14, 2001
U.S. Sentencing Commission
Public Meeting

Chair Murphy called the meeting to order at 10:17 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
Sterling Johnson, Jr., Commissioner, participating via teleconference
Joe Kendall, Commissioner
Michael E. O’Neill, Commissioner
John P. Elwood, Commissioner Ex-Officio
Edward F. Reilly, Commissioner Ex-Officio
Timothy McGrath, Staff Director
Charles Tetzlaff, General Counsel
Donald (Andy) Purdy, Chief Deputy General Counsel
Judith Sheon, Special Counsel

Chair Murphy began the public meeting by mentioning that Ex-Officio Commissioner Reilly has returned to the Commission, and has the longest tenure of any Commissioner having served from 1992 - 1997.

Chair Murphy stated that the Commission recently held guideline training sessions related to Native American Sentencing issues in three cities in South Dakota: Pierre, Rapid City, and Sioux Falls. Vice Chairs Castillo and Steer participated in the training. Chair Murphy stated that the training sessions were successful and that the Commission had received positive feedback. Vice Chair Castillo, who participated in the South Dakota training sessions with Vice Chair Steer, thanked Pam Montgomery, Alan Dorhoffer, and Krista Rubin for organizing three very effective training sessions. He stated that this was a good first step in following up on the June public hearing in South Dakota and in addressing guideline issues with regard to Native Americans. Vice Chair Castillo stated that he is looking forward to the second and third steps. Vice Chair Steer concurred with Vice Chair Castillo’s comments.

Chair Murphy stated that the Commission is continuing with the fifteen year review and that Commissioner O’Neill is spearheading the work on the study. Chair Murphy also mentioned that Commissioner O’Neill recently published an article in the Boston College Law Review relating to recidivism, with a particular focus on first-time offenders. Commissioner O’Neill stated that he also discusses criminal history categories and the Commission’s work on further refining the categories. Commissioner O’Neill commended Paul Hofer, Linda Maxfield, and Lou Reedt for their work in coordinating all of these projects. He stated that these studies represent a large, multi-year undertaking and thanked the staff.

Chair Murphy stated that another part of the fifteen year review involves a survey designed to get feedback from all federal district and appellate judges on how the guidelines and mandatory minimums are serving the statutory goals of the Sentencing Reform Act. Chair Murphy indicated that the anonymous survey will be mailed soon and hopes that judges will take the time to participate. The Commission believes that the survey will contribute to the fifteen year review.

Chair Murphy mentioned that the Commission had met with D.C. district judges that morning. She stated that the meeting was very valuable and that the Commission had received considerable input from the judges on problems related to supervised release and crack/powder sentencing.

Staff Director McGrath updated those present on recent Commission activities. He stated that two new publications were recently released: the new Guidelines Manual, effective November 1, 2001, and the Fall edition of the GuideLines newsletter. The new Manual was sent out to all courts, probation officers, federal public defenders, and United States attorneys. Additionally, the Commission has adopted a new Equal Employment Opportunity policy that has been distributed to all staff and is available online at www.ussc.gov(link is external). Staff Director McGrath then stated that the Commission’s Eleventh Annual National Training Seminar will be held May 8 - 10, 2002, at the Riviera Hotel in Palm Springs, California.

Chair Murphy then asked if there were a motion to approve the minutes of the September 10, 2001, Public Meeting. Vice Chair Castillo so moved. Seconded by Commissioner O’Neill. Commissioner Ex-Officio Reilly had one correction to the minutes: to change his middle initial from "J" to "F." The motion to approve the minutes as corrected passed unanimously.

Chair Murphy stated that the Commission had a number of issues that were listed on the notice of the public meeting. The Commission would proceed on all except consideration of alternatives to incarceration. She stated that the Commission is still in the process of discussing this topic.

Cultural Heritage Resources

General Counsel Tetzlaff introduced the Cultural Heritage Resources proposal. He stated that the topic was originally on the agenda for last year’s amendment cycle, but it was held over to allow greater opportunity for public comment and input. General Counsel Tetzlaff stated that the Commission had received feedback from a number of sources, including federal prosecutors, law enforcement officials, archeologists, the National Park Service, the Bureau of Indian Affairs, and museum curators.

The Cultural Heritage Resources amendment proposes to add to Chapter Two, Part B, a new guideline, §2B1.5, to cover a variety of offenses involving the theft of, damage to, destruction of, or illicit trafficking in cultural heritage resources, including national memorials, archeological resources, national parks, and national historic landmarks. The proposal was developed in response to concerns raised by the Departments of Justice and the Interior, among others, that the guidelines inadequately address such offenses.

Additionally, there are three issues for comment:

(1) The proposed amendment provides an enhancement in subsection (b)(4)(B) for a "pattern of similar violations", which proposed Application Note 5 defines as "two or more civil or administrative adjudications of misconduct similar to the instant offense, in violation of any federal, state, or local provision, rule, regulation, ordinance, or permit". The Commission requests comment on the extent of this enhancement. For example, in addition to civil or administrative adjudications, should the enhancement cover prior convictions for similar misconduct as well? Should the enhancement cover similar misconduct for which there has not been a civil or administrative adjudication?

(2) Proposed Application Note 7 provides, as an example of an upward departure that might be warranted, a structured upward departure for cases in which the offense also involved theft of, damage to, or destruction of, items that are not cultural heritage items. Instead of a structured upward departure, should the Commission provide an enhancement if the offense involved theft of, damage to, or destruction of, items that are not cultural heritage items? If so, should the extent of the enhancement correspond to the applicable number of levels from the loss table in §2B1.1 (Theft, Property Destruction, and Fraud), and should the loss commentary from §2B1.1 be used to determine the dollar amount of the theft, damage, or destruction? Generally, should proposed Application Note 7 provide an upward departure if the value of a cultural heritage resource, as determined under subsection (b)(1) and Application Note 2, underestimates its actual value?

(3) Should the proposed amendment include an enhancement if the offense involved the use of destructive devices?

Vice Chair Castillo moved to publish the proposed cultural heritage guideline and issues for comment for a sixty day public comment period and to authorize staff to make technical and clarifying changes. Vice Chair Sessions seconded the motion.

Chair Murphy commented that a Cultural Heritage Resources amendment was on the agenda for last year, but it that was much more limited than this proposal. The Commission had decided to hold off on further action in order to receive feedback at the public hearing in South Dakota. Chair Murphy indicated that most of the feedback at the public hearing concerned the existing guidelines, rather than the proposed Cultural Heritage Resources amendment. She stated that since then, staff and the Commission have been looking at other aspects of this issue and that recent events have made it all the more important to consider the protection of cultural heritage resources and national treasures.

Vice Chair Castillo stated that he agreed with the Chair’s comments. He said that there was not an amendment that could be more timely. Vice Chair Castillo mentioned that the hearing in South Dakota was the first step. He sees this amendment as the direct second step in that it will protect items that are of concern to all communities, but especially to Native American communities. Vice Chair Castillo noted that the Commission had just approved the September 10 Public Meeting minutes, and at that time no one knew how drastically the world would change the next day. Vice Chair Castillo stated that the events of September 11, 2001, showed that there are irreplaceable national treasures that are of tremendous symbolic value to all Americans. Thus, the proposed amendment is very deserving of a stand-alone guideline. Vice Chair Castillo indicated that there is a concern that the statutory maximum for cultural heritage offenses is not sufficient. He stated that he would support a dialogue with Congress on raising the statutory maximum.

Vice Chair Steer stated that he concurred with Vice Chair Castillo’s statements.

Ex-Officio Commissioner Elwood commended the staff for their excellent work. He stated that the proposed amendment is an excellent step towards preserving the nation’s cultural heritage resources.

The motion to publish the proposed amendment for a sixty day comment period and to authorize staff to make technical and clarifying changes passed unanimously by voice vote.

Consent Calendar Part I

General Counsel Tetzlaff introduced items on Consent Calendar Part I. The proposed amendment makes technical and conforming changes to various guideline provisions. The proposed amendment accomplishes the following:

(1) Clarifies that language in §5D1.2(c) (recommending the maximum term of supervised release for sex offenders) is a policy statement.

(2) Conforms the language in §2B4.1(b)(2) concerning offenses that "affect a financial institution" with subsection (b)(12) of §2B1.1 (Larceny, Embezzlement, and other forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit).

(3) Inserts a missing "or" in §§2C1.7(b)(1)(A) and 2Q1.6(a)(3).

(4) (a) Updates statutory references in §§2D1.9 (Placing or Maintaining Dangerous Devices on Federal Property to Protect the Unlawful Production of Controlled Substances; Attempt and Conspiracy), 2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy), 2D1.13 (Structuring Chemical Transactions or Creating a Chemical Mixture to Evade Reporting or Recordkeeping Requirements) and Appendix A (Statutory Index) to correspond to statutory redesignations made by the Hillory J. Farias and Samantha Reid Date Rape Prevention Act; and (b) corrects references to the new chemical quantity tables in §2D1.11.

(5) Corrects a change to the commentary of §2N2.1(b)(1) that was inadvertently made as part of the conforming package of amendments in the Economic Crime Package.

(6) Corrects a grammatical error in Note (D) of §2T1.1(c)(1) by replacing "subdivisions (A), (B), or (C)" with "subdivision (A), (B), or (C)".

(7) Adds a mandatory condition to §§5B1.3 (Conditions of Probation) and 5D1.3 (Conditions of Supervised Release) that the defendant provide DNA if the defendant is required to do so by the DNA Analysis Backlog Elimination Act of 2000. Pursuant to section 3 of this Act, a defendant is required to provide a DNA sample if the defendant is convicted of certain offenses (e.g., murder, kidnapping).

(8) Deletes from Application Note 5 of §5E1.1 (Fines for Individual Defendants) an incorrect statement concerning the Clean Air Act.

(9) Inserts a missing "Background" title in §5F1.7 (Shock Incarceration).

(10) Conforms Part A of Chapter Seven and §7B1.3 (Revocation of Supervised Release) to current statutory law and provides an explanatory note concerning the condition of intermittent confinement as a condition of supervised release.

(11) Updates statutory references in §5F1.5 (Occupational Restrictions).

(12) Refers 18 U.S.C. § 2245 (sexual abuse resulting in death) to §2A1.1 (First Degree Murder) in Appendix A (Statutory Index).

(13) Repromulgates amendment 568, effective November 1, 1997, to correct an inadvertent omission of a conforming amendment to §4B1.4 (Armed Career Criminal) from amendment 568.

General Counsel Tetzlaff stated that it would be appropriate for the Commission to entertain a motion to publish Consent Calendar Part I for a sixty day comment period and to authorize staff to make technical and clarifying changes.

Vice Chair Steer moved to publish the Consent Calendar Part I. Commissioner O’Neill seconded the motion. The motion passed unanimously.
Rules of Practice and Procedure

The Commission turned to consideration of adopting amendments to the Rules of Practice and Procedure. Chair Murphy stated that she noticed an error in the notice for the public meeting: the intent regarding the proposed amended Rules of Practice and Procedure was for adoption, not to publish for comment. She stated that while this was not a perfect notice, she believed that the Commission could proceed to vote on adoption of the proposed amended Rules. She stated that the Commission had received comment from the Federal Public Defenders after the close of the public comment period, which ended on October 5, 2001. Chair Murphy said that everyone has had an opportunity to comment on the proposed new Rules.

General Counsel Tetzlaff stated that if the Commission intended to vote on adoption of the rules, it would be appropriate to entertain a motion to waive the notice requirement. Commissioner O’Neill moved to waive the notice requirement. Seconded by Vice Chair Sessions. Passed unanimously.

General Counsel Tetzlaff then discussed changes to the Rules. He stated that the amended Rules are designed to increase public access to Commission meetings and materials. The amended Rules delete the introduction as superfluous because most of the provisions are contained in other sections. Rule 3.1 as amended provides for Commissioner participation in meetings by electronic means. Rules 3.2 and 3.3 establish the presumption that Commission meetings with outside parties are public unless the meetings are for such purposes as personnel or budget issues; or discussions between the Commission and staff or Ex-Officio members’ staff. Additionally, an exception for public meetings may be determined by majority vote if the Commission believes that the information to be presented is inappropriate for public disclosure. Examples of what might not be appropriate for public disclosure include revealing confidential investigatory techniques or an ongoing investigation. Rule 6.2 and 5.1 read together clarify what materials are available to the public and establishes the general proposition that materials submitted by outside parties are available to the public. This does not include internal communications among Commissioners, Commission staff or support staff to Ex-Officio Commissioners.

Vice Chair Castillo moved to adopt the amendments to the Commission’s Rules of Practice and Procedure. Vice Chair Steer seconded.

Chair Murphy stated that the new Rules respond to comment that the Commission received last amendment cycle. She said that the Commission took seriously the comments that were raised. She stated that the Commission believes it is responding to these comments and will see how the amended Rules work in practice. She stated that she understands that there are those who want the Commission to go further, but Rome was not built in a day and this is a step in the right direction.

Vice Chair Castillo concurred with the Chair’s comments. He further stated that the Commission is sensitive to, and took to heart, the remarks that have been made. Vice Chair Castillo stated that the Commission does deal with many sensitive issues. For example, last year, the Commission dealt with the very sensitive issues of nuclear, biological, and chemical offenses. He stated that in light of the events of September 11, he believes that issues like these will reoccur. Vice Chair Castillo stated that this is as far as the majority of the Commission is willing to go at this point in time. He added that some of the comments received are better directed towards Congress because the composition of the Commission is mandated by statute. He concluded by stating that he sees the amendments to the Rules as a first step and something that the Commission may be willing to reevaluate in time.

Commissioner Kendall spoke to recognize the contribution made by Julie Stewart of Families Against Mandatory Minimums (FAMM). Commissioner Kendall stated that Ms. Stewart caused the Commission to attend to criticism that it does not listen to outside groups, but he said that the criticism is wrong and that the Commission is very concerned about receiving information and input from outside groups and it does take FAMM’s comments seriously, as reflected by these amendments. Commissioner Kendall added that, as a former law enforcement officer, he understands that there may be things that do not warrant public disclosure. By way of example, the newly passed USA Patriot Act will likely call on the Commission to address certain acts of terrorism and money laundering related to terrorism. Commissioner Kendall does not believe that it will be prudent to open meetings on these issues to the public because of the potential for compromising investigatory techniques or ongoing investigations. He stated that this is a prime example of information that the Commission might receive from third parties that will not be disclosed to the public. Commissioner Kendall then stated that the amended Rules of Practice and Procedure strike an appropriate balance between the goals of open government and the statutory directives of 28 U.S.C. § 991 and 18 U.S.C. § 3553 to ensure that criminal penalties protect the public.

Commissioner O’Neill added his appreciation for the fact that there are outside groups that care enough about these important issues to provide the Commission with constructive feedback and comments. He stated that these comments propelled the Commission to engage in self-assessment and determine that it should make meetings and materials more publicly available. Commissioner O’Neill stated that, for better or for worse, the American criminal justice system is an adversarial system and the Commission is a part of that system. It is important that as much information as possible be made public, but that it was also important for the Commission to maintain some deliberations that are closed. He said that few Commissioners would want to open up all internal deliberations to outside scrutiny. Commissioner O’Neill said that an important counter-balance is that every rule and guideline promulgated has been subject to outside scrutiny and comment.

The motion to adopt the Rules of Practice and Procedure, as amended, passed unanimously by voice vote.

Consent Calendar Part II

General Counsel Tetzlaff then introduced Consent Calendar II. The proposed amendments would accomplish the following:

(1) Responds to new legislation as follows:

(A) Updates, in §2B1.1, a statutory reference in the definition of "means of identification" to correspond to a redesignation made by the Internet False Identification Prevention Act of 2000, Pub. L. 106–578, Dec. 28, 2000, 114 Stat. 305.

(B) References in Appendix A two new offenses created by the American Homeownership and Economic Opportunity Act of 2000, Pub. L. 106–569, Dec. 27, 2000, __ Stat. __. Section 5410(b) of title 42, United States Code, which provides that knowing and willful violations of a state’s installation program standards shall be punishable as Class A misdemeanors, is referenced to §2N2.1. Section 14905 of title 42, which provides a criminal penalty of a $250,000 fine and five years’ imprisonment for equity skimming, is referenced to §2B1.1.

References 16 U.S.C. § 1437(c) to §2A2.4 (Obstructing or Impeding Officers). Section 1437, as amended by the National Marine Sanctuaries Act of 2000, Pub. L. 106–513, Nov. 13, 2000, 114 Stat. 2387, prohibits the interference with the enforcement of conservation activities authorized in title 16, United States Code, including refusing to permit any officer authorized to enforce such title to board a vessel for purposes of conducting a search or inspection in connection with the enforcement of title 16. The Act provides a statutory maximum of six months, or if the offense involved the use of a dangerous weapon or resulted in bodily injury, a statutory maximum of 10 years. Section 1437(c) seems sufficiently similar to other offenses referenced to §2A2.4 to warrant reference to this guideline.

(2) Proposes several changes to §2G1.1 (Promoting Prostitution or Prohibited Sexual Conduct) to address more adequately the portion of section 112(b) of the Victims of Trafficking and Violence Protection Act of 2000 (the "Act"), Pub. L. 106–386, pertaining to the new offense at 18 U.S.C. § 1591 (Sex Trafficking of Children by Force, Fraud or Coercion). Section 1591 prohibits knowingly transporting or harboring any person, or benefitting from such transporting or harboring, knowing either that force, fraud, or coercion will be used to cause that person to engage in a commercial sex act, or that the person is not 18 years old and will be forced to engage in a commercial sex act.

In response to the Act, the Commission, in March 2001, passed an amendment that (A) referenced 18 U.S.C. § 1591 to §§2G1.1 (Promoting Prostitution or Prohibited Sexual Conduct) and 2G2.1 (Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material); and (B) provided an encouraged upward departure in §2G1.1 to address cases in which (i) the defendant was convicted under 18 U.S.C. § 1591 and the offense involved a victim who had not attained the age of 14 years; or (ii) the offense involved more than 10 victims. Staff had recommended additional changes to §2G1.1 at that time but because adequate public notice regarding those changes had not been provided, staff recommended that the changes be made during this amendment cycle.

This amendment proposes three substantive changes to §2G1.1. First, this amendment broadens the conduct covered by the guideline to all commercial sex acts. Currently, the conduct covered by the guideline is limited to prostitution. Second, this amendment expands the "force or coercion" prong of §2G1.1(b)(1) to also cover offenses involving fraud. This change addresses the increased punishment provided by section 1591 for offenses effected by "force, fraud, or coercion". Third, after reviewing again the statute and the encouraged upward departure note that the Commission passed in March, staff recommends deleting the portion of the note pertaining to the age of the victim because it encourages a departure for conduct arguably covered by the guideline in subsection (b)(2).

General Counsel Tetzlaff stated that it would be appropriate for the Commission to entertain a motion to publish Consent Calendar Part II for a sixty day comment period and to authorize the staff to make clarifying and technical changes.

Vice Chair Steer moved to publish Consent Calendar Part II. Seconded by Vice Chair Castillo. The motion passed unanimously by voice vote.

Official Victims Enhancement

General Counsel Tetzlaff then introduced the proposed amendment concerning expansion of the official victims enhancement. The amendment proposes to expand the persons who may qualify as official victims for purposes of the enhancement in §3A1.2 (Official Victim). Specifically, this proposed amendment responds to United States v. Walker, 202 F.3d 181 (3d Cir. 1999), which held that the enhancement under §3A1.2(b) was not applicable in the case of a defendant prison inmate who attacked his supervisor, a food service department employee at the prison. Walker held that the work supervisor was not a corrections officer within the meaning of §3A1.2. The proposal amends §3A1.2(b) to apply to assaults of any prison employee or other person retained or designated by the prison to perform duties within the prison. The amendment also limits application of the enhancement, in the case of assaults on corrections officers and prison employees, to offenses that occurred while the defendant was in the custody or control of the correctional facility or prison.

The proposal also requests comment on the appropriate scope of the enhancement provided in §3A1.2(b)(2). Are there particular individuals or groups of individuals against whom assaults by the defendant in a correctional or prison setting should subject the defendant to enhanced punishment? For example, should the enhancement be expanded further than proposed in the amendment to include individuals who assist law enforcement officers in the performance of official duties? Should the enhancement cover individuals who perform functions within a prison (as an employee, under contract, or otherwise) but who do not have regular contact with, or exercise any supervision of, prisoners (e.g., an electrician under contract who repairs wiring in a building typically off-limits to prisoners)? Should the enhancement cover, for example, a minister or attorney who is assaulted while providing volunteer services to inmates?

Vice Chair Castillo moved to publish the proposal for a sixty day public comment period and to authorize staff to make technical and clarifying changes. Seconded by Commissioner O’Neill.

Vice Chair Castillo stated that he believes this amendment is very much needed; it was not the Commission’s intention to create any type of class system in terms of the different assignments of positions in the Bureau of Prisons. Vice Chair Castillo stated that he believes that everyone should be protected equally.

Vice Chair Steer stated that when he first read the Third Circuit’s decision, he was very concerned and exchanged correspondence with Dr. Kathleen Hawk Sawyer, Director of the Bureau of Prisons. He had indicated to Dr. Hawk Sawyer that the Commission would address this issue as soon as there was room on the agenda. Vice Chair Steer stated that he is very pleased that the Department of Justice brought this issue to the Commission. He said that he concurred with Vice Chair Castillo’s comments and thought this was an important item to address.

The motion to publish the proposed amendment for a sixty-day comment period passed unanimously.

Foreign Corrupt Practices Act

General Counsel Tetzlaff introduced the proposal regarding implementation of the Foreign Corrupt Practices Act. This amendment changes the Statutory Index reference for violations of the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1 through 78dd-3, from §2B4.1(Bribery in Procurement of Bank Loan and Other Commercial Bribery) to §2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right). This change is proposed because many such violations involve public corruption of foreign officials and therefore are more like public corruption cases than commercial bribery cases. In addition, such a change arguably would better implement the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, which requires the United States, as a signatory, to impose comparable sentences for foreign bribery cases as for domestic bribery cases.

Also proposed was an issue for comment regarding the appropriate placement of various bribery offenses. Although this proposed amendment references all offenses under the Foreign Corrupt Practice Act to §2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right), the Commission requests comment regarding whether some of the offenses under that Act should continue to be referenced to §2B4.1. Although offenses under 15 U.S.C. §§ 78dd-1(a)(1), 78dd-2(a)(1), and 78dd-3(a)(1) involve bribery of foreign officials, some of the offenses under that Act involve bribery of foreign candidates for political office (see 15 U.S.C. §§ 78dd-1(a)(2), 78dd-2(a)(2), and 78dd-3(a)(2)). Other offenses involve bribery of persons who are neither public officials nor candidates for political office, but the defendant knows that some portion of the funds might be used directly or indirectly to influence public officials or political candidates (see 15 U.S.C. §§ 78dd-1(a)(3), 78dd-2(a)(3), and 78dd-3(a)(3)). Similar offenses involving United States Presidential and Vice Presidential candidates under 26 U.S.C. §§ 9012(e) and 9042(d) currently are referenced to §2B4.1. Is §2B4.1 the appropriate guideline for offenses which do not directly involve a foreign governmental official? Alternatively, should offenses under 26 U.S.C. §§ 9012(e) and 9042(d) be referenced to §2C1.1 instead of §2B4.1, inasmuch as those offenses are more akin to public bribery than to commercial bribery?

Commissioner O’Neill moved to publish the proposed amendment and issue for comment for a sixty day public comment period and to authorize staff to make technical and clarifying changes. Vice Chair Castillo seconded the motion.

Commissioner O’Neill commented that while he supports the proposed amendment, this is an area that is very important to revisit as a Commission. He stated that offenses involving corrupt public officials are among the most serious of offenses because they violate the public trust. Commissioner O’Neill indicated that current penalties are too low and thus, should be revisited by the Commission.

Vice Chair Castillo stated that he wholeheartedly agrees with Commissioner O’Neill. He added the United States should be leading the international community in combating bribery on both domestic and foreign soil. Vice Chair Castillo stated that he is happy to support the proposed amendment.

Vice Chair Sessions stated that he agreed with Commissioner O’Neill in that this is a significant area that should be reconsidered.

The motion to publish the amendment and issue for comment for a sixty day comment period passed unanimously.

Career Offenders and Convictions under §§ 924(c) and 929(a).

General Counsel Tetzlaff introduced the proposal regarding career offenders and convictions under 18 U.S.C. §§ 924(c) and 929(a). This proposed amendment provides special rules in §4B1.1 for determining and imposing a guideline sentence when the defendant is convicted of an offense under 18 U.S.C. § 924(c) or § 929(a) and, as a result of that conviction, is determined to be a Career Offender under §§4B1.1 and 4B1.2. The amendment reverses the decision made by the Commission in Amendment 600 (effective November 1, 2000), that such offenses do not qualify as a crime of violence or controlled substance offense for Career Offender purposes, except as a prior conviction. The Department of Justice has expressed doubt about whether that decision complies with the statutory command in 28 U.S.C. § 994(h), as construed by the United States Supreme Court in United States v. Labonte, 520 U.S. 751 (1997).

Operationally, this amendment achieves the goals of (1) permitting such offenses, whether as the instant or prior offense of conviction, to qualify for Career Offender purposes, and (2) ensuring that, when such an instant offense establishes the defendant as a Career Offender, the resulting guideline sentence is determined under §4B1.1 using a count of conviction that has a statutory maximum of life imprisonment. The resulting consecutive sentence to be imposed on the § 924(c) count is at least the minimum required by statute, and may be longer to the extent necessary to achieve the total Career Offender punishment. This amendment does not change the current guideline rules forbidding application of guideline weapon enhancements when the defendant is convicted of a § 924(c) or § 929(a) offense. Furthermore, under this amendment, when the defendant is convicted of a § 924(c) or § 929(a) offense but that offense, together with any prior convictions, does not establish the defendant as a Career Offender, the current guideline rules for sentencing on that § 924(c) or §929(a) count continue to apply. Accordingly, under §2K2.4, the guideline sentence on that count is the statutory minimum, and that sentence is imposed independently and consecutively to the sentence on other counts. No adjustments in Chapters Three or Four apply to adjust the guideline sentence for that § 924(c) or § 929(a) count.

However, under this amendment, when the § 924(c) or § 929(a) count establishes the defendant as a Career Offender, which the court will determine under §§4B1.1 and 4B1.2, new special rules/instructions will apply. To determine the guideline sentence on the § 924(c) or 929(a) count, the court moves directly from §2K2.4 to §4B1.1 and applies the new Special Instruction therein, including the instructions regarding multiple counts of conviction.

Commissioner O’Neill moved to publish the proposed amendment for a sixty day public comment period and to authorize staff to make technical and clarifying changes. Seconded by Vice Chair Steer.

Vice Chair Steer commented that the proposed amendment is admittedly complicated. He stated that the complication is a result of trying to marry two types of penalties: what used to be a fixed mandatory penalty that was changed to a minimum consecutive range of penalties with a life maximum with the proportionality of the guideline system. Vice Chair Steer stated that the policy reasons for doing this are clear. A defendant with two prior convictions for crimes of violence or controlled substances whose third conviction includes a 924(c) violation should be treated as a career offender. Vice Chair Steer stated that he felt it was appropriate to reverse the interim policy decision that was made two cycles ago. He indicated that he had continued to work with staff on this matter and with the help of the drafting staff has developed an attempted fix.

Vice Chair Steer then explained the operation of the proposed amendment: If there is a 924(c) conviction, look to the applicable guideline, §2K2.4. This guideline basically says that with respect to the ordinary situation of a 924(c) conviction, there are two things to do. First, if there is also a conviction for another offense, the weapon enhancement is not applied in computing the guidelines for that other offense in order to avoid double counting. As for the 924(c) punishment, the typical rule is that one takes the minimum consecutive punishment and sets it aside, performs the guideline calculation, and then adds in the minimum consecutive punishment. This typical rule is preserved, except in a career offender situation. There, one consults the new rule in the Career Offender guideline. The Career Offender guideline requires that one determine a total punishment offense level. This is subject to a statutory maximum of life. Therefore, the offense level would be 37, adjusted downward for any acceptance of responsibility. This will generate a total punishment of at least 262 months. Then, if there was only a 924(c) conviction, it would be imposed on that count. In there are multiple counts of conviction, the statute requires at least 60 months must be imposed consecutively.

Vice Chair Steer stated that expressing all of this in words takes time, but he would welcome any comment suggesting greater simplification. Vice Chair Steer stated that the concept is actually very simple and that the proposed amendment achieves the policy goal.

Commissioner Kendall stated that he is glad that the Commission is considering publishing this for comment. He also stated that he finds the proposal complicated. Commissioner Kendall expressed concern for CJA panel attorneys who must try to understand the mechanics of this amendment in order to explain it to their clients and to provide effective assistance.

Commissioner O’Neill commended Vice Chair Steer and the staff for their work on drafting this proposal. He said that this is a good first effort, and that the Commission publishes proposed amendments in order to receive public comment. He also stated that what seems complicated here may, in fact, be easier to apply to an actual case than reading the proposal in the abstract.

The motion to publish the proposed amendment for a sixty day comment period and authorize staff to make technical and clarifying changes passed unanimously.

Acceptance of Responsibility

General Counsel Tetzlaff introduced the proposed amendment regarding acceptance of responsibility. This proposal amends §3E1.1(Acceptance of Responsibility) by (1) deleting subsection (b)(1) which provides an additional one-level reduction if the defendant timely provides complete information to the government concerning his own involvement in the offense; and (2) resolving a circuit conflict regarding whether the court may deny an acceptance of responsibility reduction when the defendant commits a new offense unrelated to the offense of conviction.

Section 3E1.1(b) now provides alternative reductions for either (1) timely providing complete information to the government concerning his own involvement in the offense; or (2) timely notifying authorities of his intention to enter a plea of guilty. Subsection (b)(2) specifically addresses the goal of permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently. However, it has been argued that subsection (b)(1) undermines the incentive to plead guilty in subsection (b)(2), because the defendant can receive the reduction even if the defendant has caused the government and the court to devote substantial resources to preparing the case for trial. Under this proposal, a defendant who accepts responsibility for the offense would receive a two-level reduction under subsection (a), and an additional one-level reduction only if the defendant timely notifies authorities of his intent to plead guilty. This proposal is intended to save both judicial and governmental resources by providing defendants a stronger incentive to timely plead guilty.

This amendment also resolves a circuit conflict regarding whether the court may deny an acceptance of responsibility reduction when the defendant commits a new offense unrelated to the offense of conviction. The majority of circuits have held that the sentencing court may consider new criminal conduct (i.e., conduct occurring after the defendant has been charged for the instant offense), such as subsequent drug use or the commission of the new offense, when determining whether an adjustment for acceptance of responsibility is warranted. The Sixth Circuit, the sole minority circuit, has held that the court may not look at post-indictment conduct unrelated to the offense of conviction when assessing the defendant’s acceptance of responsibility for the underlying offense (see United States v. Morrison, 983 F.2d 730 (6th Cir. 1993)). This amendment adopts the majority view by making clear that a defendant who commits another offense while pending trial or sentencing on the instant offense ordinarily is not entitled to a reduction under this guideline.

Commissioner Kendall moved to publish the proposed amendment for a sixty day comment period and to authorize staff to make technical and conforming changes. Seconded by Vice Chair Castillo.

Commissioner Kendall stated that he supports publishing this proposed amendment to obtain public comment. He said that he has some question about whether or not the current guideline undermines the incentive to plead guilty when 95% of the 58,800 cases in the year 2000 ended in a guilty plea. Commissioner Kendall questioned the proposed resolution of the circuit conflict in that the resolution might result in increased workload for the district courts.

Vice Chair Steer stated that the proposal for resolving the circuit conflict was his initiative, and that he believed this conflict could be easily fixed. Vice Chair Steer stated that only Sixth Circuit has held that a judge may not deny acceptance of responsibility when the defendant commits additional criminal conduct that is unrelated to the current offense.

Chair Murphy stated that this is not the only issue related to acceptance of responsibility, but that the Commission hopes to receive feedback on this issue.

Vice Chair Castillo stated that this is one area where he is fully in accord with his own circuit. He stated that it is important to publish this proposal because there has been too much subjectivity as to what constitutes timely and complete information to the government. This has created some sentencing disparity issues and the Commission is working towards clarifying who is entitled to the third point. Vice Chair Castillo indicated that this clarification is especially important for the Southern borders where criminal justice resources are extended to the outer limits.

Vice Chair Sessions stated that he also feels strongly about acceptance of responsibility in the broader sense. He indicated that this is a small adjustment to the acceptance of responsibility provision. Vice Chair Sessions stated that one of the central questions judges must face every day is whether defendants have accepted responsibility for their criminal conduct. The only way to actually judge this is to hear what defendants actually have to say about the scope of their activity. When guidelines discourage defendants from saying what they have done, then it is very difficult to determine whether a person has accepted responsibility. Vice Chair Sessions stated that he hopes that the Commission will address the question of how to encourage defendants to tell law enforcement officers at the time of their arrest the full scope of their activity, and to encourage defendants to provide complete information to probation officers as well.

Commissioner O’Neill stated that he agreed with Vice Chair Sessions on this point. He stated that acceptance of responsibility is necessarily a case-by-case determination based on individual defendants. The difficulty is that there is a perception of unfairness in the application at the margins. As a result, the acceptance of responsibility and §5K1 departures tend to raise issues because these are two of the few areas in which a judge can downwardly depart or offer additional incentive. Commissioner O’Neill stated that this points to macro issues of how to deal with pressure points in the system and how to tailor acceptance of responsibility to individual cases.

The motion to publish the proposal for a sixty day comment period and authorize staff to make technical and clarifying changes passed unanimously by voice vote.

Chair Murphy then thanked the staff for all their hard work in preparing these proposals to be published.

Chair Murphy adjourned the meeting at 11:38 a.m.