Minutes of the October 19, 2005
United States Sentencing Commission
Public Meeting 

Chair Hinojosa called the meeting to order at 10:05 a.m. in the Commissioner’s Conference Room.

The following Commissioners and staff participated in the meeting:

Judge Ricardo H. Hinojosa, Chair
Judge Ruben Castillo, Vice Chair
Judge William K. Sessions, III, Vice Chair
John R. Steer, Vice Chair
Michael E. Horowitz, Commissioner
Beryl Howell, Commissioner
Michael Elston, Ex Officio
Edward F. Reilly, Jr., Ex Officio
Judith Sheon, Interim Staff Director
Charles Tetzlaff, General Counsel

The first item of business was the Chair’s Report. Chair Hinojosa announced that the Commission has prepared a new data set, which will be posted on the Commission’s website. The Chair noted that as of September 30, 2005, approximately 43,214 cases have been submitted to the Commission. In 41,579 of these cases, the Commission was able to identify the factors used by the court when determining the sentence. Of the total number of cases, 61.9% were within the guideline range, a result noted by the Chair as being consistent with the Commission’s prior data sets. Departures above the guideline range totaled about 1.4%, while government-sponsored departures below the guideline range accounted for approximately 23.9% of the total. The remaining 12.8% of the sentences were below the guideline range and of these, approximately 3.3% were based on guideline departures. Of the remaining 9.5%, some cases cited either Booker or 18 U.S.C. § 3553 factors as a reason for the variance, while in other cases it was not possible to determine the court’s reason for a variance or departure from the documents submitted to the Commission. The Chair closed his report by thanking the staff for their continuing efforts to collect and analyze the sentencing data received by the Commission and disseminating the results to the public and other interested parties in the criminal justice community.

Ms. Sheon reported that the compilation of the FY2004 data will be completed soon and the results will be provided to the Commissioners shortly thereafter. She also announced that the printing and distribution of the 2005 Guideline Manual has been delayed by approximately three weeks due to the two pending emergency amendments the Commissioners will shortly consider. Ms. Sheon added that any action taken on the emergency amendments will be published in the Federal Register by the week of October 24 and will also be posted on the Commission’s website.

The Chair announced that Michael Elston is replacing ex officio commissioner Deborah Rhodes as the Department of Justice’s representative on the Commission. The Chair welcomed Mr. Elston and thanked Ms. Rhodes for her work on the Commission and wished her well as she takes up her new duties as Acting United States Attorney for the Southern District of Alabama.

For the next item of business, Chair Hinojosa asked for approval of the August 24, 2005, public meeting minutes. There being no additions or corrections, Commissioner Howell moved that they be approved. Upon the motion being seconded by Commissioner Horowitz, the meeting minutes were unanimously approved.

The Chair called on Mr. Tetzlaff to advise the Commissioners on the next item of business, the vote on an emergency amendment on intellectual property. The General Counsel stated that the proposed amendment implements the directive in § 105 of the Family Entertainment and Copyright Act of 2005. This Act, which became effective April 27, 2005, penalizes the unauthorized recording of motion pictures as well as the unauthorized distribution of pre-release copyrighted works such as computer programs, musical recordings, motion pictures, and other audio/visual works. The directive to the Commission requires the Commission to review and amend the guidelines, as appropriate, not later than 180 days from date of enactment.

Mr. Tetzlaff informed the Commissioners that the directive specifically asked the Commission to focus on generally ensuring that the guidelines were sufficiently stringent to deter intellectual property rights crimes; to address Congress’ concern with intellectual property rights offenses that involve the distribution of a copyrighted work prior to its distribution having been authorized by its owner; to ensure that the scope of the term "uploading" is adequate to cover losses attributable to those who without authorization, broadly distribute copyrighted works over the Internet; and finally, to ensure that the guidelines adequately reflect any harm to victims from copyright infringement if law enforcement authorities cannot determine how many times copyrighted material has been reproduced or distributed.

In response to this directive, the General Counsel continued, with respect to pre-release works, the proposed amendment to §2B5.3 provides a separate two-level enhancement if the offense involved a pre-release work. The amendment also adds language to Application Note 2 that explains that in cases involving pre-release works, the infringement amount should be determined by using the retail value of the infringed item, rather than any premium price attributed to the infringing item because of its pre-release status. The proposed amendment reflects that distribution of an item before it is legally available to the consumer is more serious conduct than distribution of other infringing items and involves a harm not addressed by the current guideline.

With respect to uploading, the concern underlying this part of the directive pertains to offenses in which the copyrighted work is transferred through file sharing, particularly peer-to-peer models. The proposed amendment, Mr. Tetzlaff noted, builds on the current definition of "uploading" to include an infringing item available on the Internet by storing an infringing item in an openly shared file (i.e., a file that is stored on a peer-to-peer network). The proposed amendment also clarifies that uploading does not include merely downloading or installing infringing items on a hard drive of the defendant’s computer unless the infringing item is in an openly shared file. By clarifying the definition of uploading in this manner, Application Note 3, which is a restatement of the uploading definition, is no longer necessary and the proposed amendment deletes the application note from the guideline.

The proposed amendment addresses the final directive regarding the difficulty in determining the number of infringed items by amending Application Note 2, which sets forth the rules for determining the infringement amount. The proposed note provides that the court may make a reasonable estimate of the infringement amount using any relevant information including financial records in cases in which the court cannot determine the number of infringing items. Mr. Tetzlaff observed that this proposed amendment simply codifies into the guideline the practice currently employed by the courts.

The General Counsel stated that the proposed amendment also provides a reference in Appendix A (Statutory Index) for the new offense at 18 U.S.C. § 2319B.

Mr. Tetzlaff advised the Commission that a motion was in order to:

1) promulgate this temporary, emergency amendment with an effective date of October 24, 2005, and to remain in effect until November 1, 2006,

2) publish notice of intent to re-promulgate the amendment as a permanent amendment during this amendment cycle,

3) authorize staff to make technical and conforming changes, if needed, and

4) find that due to the very short time period given to the Commission in the Congressional directive, the pressing needs of other Commission business, and the fact that notice and public comment will be available for consideration of the permanent amendment, good cause exists in accordance with 5 U.S.C. § 553 to dispense with the notice and public procedure requirements, as well as the 30 day publication requirement, as being impracticable, unnecessary and contrary to the public interest.

The Chair asked if there was a motion to adopt the proposed amendment, and Vice Chair Steer moved that the four-part suggested motion as detailed by the General Counsel be adopted. After Commissioner Horowitz seconded the motion, the Chair asked if there was any further discussion on the proposed amendment. Hearing none, the Chair called for a voice vote to adopt the proposed amendment. The amendment was adopted unanimously.

Next before the Commission was the vote on an emergency amendment concerning obstruction in terrorism-related cases. The Chair again called on the General Counsel to advise the Commissioners on the proposed amendment. Mr. Tetzlaff stated that on September 29, 2005, the Commission was given emergency amendment authority by Congress to promulgate an amendment within 60 days to provide for an increased offense level for an offense under either section 1001 or 1505 of Title 18, U.S.C., if the offense involves international or domestic terrorism. Section 6703 of the Intelligence Reform and Terrorism Prevention Act of 2004 had increased the statutory maximum penalties for offenses under §§ 1001 and 1505 from 5 years to 8 years if the offenses involved international or domestic terrorism.

In response to the directive, Mr. Tetzlaff continued, the proposed amendment provides a 12-level enhancement in §2J1.2 (Obstruction of Justice) if the defendant is convicted under 18 U.S.C. § 1001 or § 1505 and the enhanced statutory sentencing provision pertaining to international or domestic terrorism applies. The General Counsel noted that the proposed amendment also provides an application note that instructs the court not to apply the new enhancement if an adjustment under §3A1.4 (Terrorism) applies.

Mr. Tetzlaff advised the Commission that a motion was in order to:

1) promulgate this temporary, emergency amendment with an effective date of October 24, 2005, and to remain in effect until November 1, 2006,

2) publish notice of intent to re-promulgate the amendment as a permanent amendment during this amendment cycle,

3) authorize staff to make technical and conforming changes, if needed, and

4) find that due to the very short time period given to the Commission in the Congressional directive, the pressing needs of other Commission business, and the fact that notice and public comment will be available for consideration of the permanent amendment, good cause exists in accordance with 5 U.S.C. § 553 to dispense with the notice and public procedure requirements, as well as the 30 day publication requirement, as being impracticable, unnecessary and contrary to the public interest.

The Chair asked if there was a motion to adopt the four-part suggested motion as outlined by the General Counsel. Vice Chair Castillo made such a motion, and Commissioner Howell seconded the motion. In response to the Chair’s request for any further discussion, Vice Chair Steer asked about the proposed amendment’s effective date of October 24, 2005. The Vice Chair noted that typically the Commission’s amendments had a November 1 effective date. Mr. Tetzlaff answered that the October 24 date was selected to be consistent with the previously adopted amendment on intellectual property, the latter having its effective date mandated by the Congressional directive. The Chair stated that if someone desired, a friendly amendment could be made to make the proposed amendment effective on November 1, 2005, rather than October 24, 2005, and Vice Chair Castillo expressed his willingness to accept such an amendment. Vice Chair Steer offered a friendly amendment to change the effective date of the proposed amendment to November 1, 2005, so that it would be consistent with the Commission’s past practices. Vice Chair Sessions asked if this change would have any effect on the previously announced schedule to publish the new Guidelines Manual. Ms. Sheon responded that the change would have no effect on the publication date for the manual. Commissioner Horowitz suggested that because the proposed amendment targeted terrorism, it may not be advisable to delay its effective date. Vice Chair Steer agreed with this assessment and withdrew his offer of a friendly amendment. Vice Chair Castillo also withdrew his agreement to a friendly amendment, stating that, upon further reflection, the proposed amendment was an important weapon in the fight against terrorism and its effective date should not be delayed. He added that it was his hope that, as the Commission passes guideline increases reflective of Congresses’ desire when it increases a statute’s mandatory maximum, the Department of Justice use its discretion appropriately as it prosecutes its cases. After asking for any further discussion, the Chair called for a voice vote on the motion to adopt the amendment as originally proposed by the General Counsel. The amendment was adopted unanimously.

The Chair asked if there was any further business before the Commission. Hearing none, the Chair asked if there was a motion to adjourn the meeting. Vice Chair Steer made a motion to adjourn the meeting, with Vice Chair Castillo seconding the motion. After asking if there was any discussion on the motion and hearing none, the Chair submitted the motion to voice vote. The motion was adopted unanimously, and the meeting was adjourned at 10:23 a.m.