Simplification Draft Paper

DRAFT

Disclaimer: This document was developed by staff for discussion purposes only and does not represent the views of any commissioner. It should not be interpreted as legislative history to any subsequent Commission action. The discussion draft is provided to facilitate public comment on improving and simplifying the sentencing guidelines.

I. Introduction and Overview of Chapter Three

This paper examines Chapter Three (except for Part D - Multiple Counts) of the Guidelines Manual. Specifically, we attempt to:

identify and describe the major policy issues in Chapter Three;

assess the current operation of this chapter by examining the data, case law, hotline calls, training experiences, and literature;

identify ways to improve the operation of this chapter and the guidelines.

Section II of the report reviews the history of Chapter Three. Section III examines current operation of the Chapter Three guidelines and explores the criticisms and problems with these guidelines. Section IV compares the federal guideline structure with several state guideline systems. Finally, Section V contains a range of potential options for improving the Chapter. The goal of this report is to provide the Commission with all pertinent information about chapter three including: 1) why Chapter Three includes the factors it does; 2) how they are working; 3) the problems or criticisms with the factors and the way they are organized; and 4) the possible options to simplify or improve the present structure (including factors missing from Chapter Three).

The five sub-parts of Chapter Three add important adjustments to the offense level. They are: Part A - Victim-Related Adjustments, Part B - Role in the Offense, Part C - Obstruction, Part D - Multiple Counts, and Part E - Acceptance of Responsibility. (Part D - Multiple Counts will be addressed in a separate paper.) Whereas the Specific Offense Characteristics (SOCs) in Chapter Two are offense-specific, the adjustments in Chapter Three are universals. If they are present, they apply regardless of the offense type.

In the four parts of Chapter Three that are the focus of this report, there are currently 11 guidelines. Three of these guidelines were adopted by the present Commission and are scheduled to go into effect on November 1, 1995.1The November 1, 1995 version of the Guidelines Manual will include three new provisions, 3A1.1 (Hate Crime Motivation), 3A1.4 (International Terrorism), and 3B1.4 (Using a Minor to Commit a Crime).

The Chapter Three guidelines are:

Hate Crime Motivation or Vulnerable Victim (3A1.1) - 3-level enhancement if the offense was motivated because of race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation, and 2-level enhancement if the offender knew (or should have known) that the victim was unusually vulnerable due to age, physical, or mental condition.

Official Victim (3A1.2) - 3-level enhancement if the offender targeted a law enforcement, corrections officer, or government official specified by statute, or assaulted such a person creating a risk of serious bodily injury.

Restraint of Victim (3A1.3) - 2-level enhancement if a victim was physically restrained during the offense.

International Terrorism (3A1.4) - 12-level enhancement (with a floor of level 32) and an increase to Criminal History Category VI if the offense involved international terrorism.

Aggravating Role (3B1.1) - 2, 3, or 4-level enhancements for defendants that acted as organizers, leaders, managers, or supervisors of others. These enhancements are based on the role the defendant played in committing the offense and the size of the criminal organization.

Mitigating Role (3B1.2) - 2 or 4-level reductions for minor and minimal defendants, based on their culpability.

Abuse of Position of Trust or Use of a Special Skill (3B1.3) - 2-level enhancement for defendants who abuse a public or private trust or use a special skill in the commission or concealment of the offense.

Using a Minor to Commit a Crime (3B1.4) - 2-level enhancement if the defendant used a minor in the offense.

Obstructing or Impeding the Administration of Justice (3C1.1) - 2-level enhancement for defendants who obstruct the investigation, prosecution, or sentencing of the offense.

Reckless Endangerment During Flight (3C1.2) - 2-level enhancement for defendants who create a substantial risk of death or serious bodily injury while fleeing from a law enforcement officer.

Acceptance of Responsibility (3E1.1) - a reduction of two or three levels (depending on the offense level, timeliness, and completeness of the information provided) for defendants who accept responsibility for the offense.

These generally applicable adjustments must be considered in every case. These adjustments were placed in Chapter Three, based on two basic principles. First, if the adjustment applied to a large number of cases and a wide range of offenses in pre-guideline sentences, it became part of Chapter Three. Second, if the adjustment provided great policy or symbolic importance, it became part of Chapter Three. Thus, Chapter Three guidelines were created much like the Chapter Two guidelines, that is, through examination of available empirical data on past practices and from policy considerations (e.g., victim-related adjustments represent a belief that victim concerns need special attention).

II. Brief History of Development

Congress provided in 28 U.S.C. 994 that the Commission determine whether, and to what extent, role in the offense is relevant in determining an appropriate sentence.228 U.S.C. 994(d)(8). While the Congress gave no further indication as to how role in the offense should be considered, it did instruct in section 991 that the Commission "establish sentencing policies and practices that provide certainty and fairness in meeting the purposes of sentencing...while maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices."328 U.S.C. 991(b)(1)(B).

The original Commission struggled to determine whether the factors we now think of as Chapter Three adjustments should be included within individual guidelines or whether these factors should be listed as general provisions. While the Commission attempted, in the first draft published, to include these provisions as adjustments to individual guidelines, the approach was inconsistent4For example, victim and vulnerable victim issues were limited to each guideline for which the Commission believed there was potential for those adjustments while unlawful restraint was a separate guideline in "Offenses Involving the Person." Other guideline parts often referred the user back to the restraint guideline if the enhancement was warranted. and the structure became overly inclusive and application overly cumbersome. The Commission next tried to list in a general provision section all factors that occurred across offense types, providing flexible ranges for these factors (e.g., victim, injury, property loss). Following lengthy debate and competing staff and Department of Justice legal positions as to the ranges of levels within the general provisions, the Commission retreated from this position, seeking instead some middle ground.

Finally, in the 1987 Guidelines Manual, the Commission separated these factors into their own chapter because they considered them as generic adjustments that should be considered for all offense types and would apply to a wide variety of offenses with some degree of frequency. Today the structure and operation of the Chapter Three adjustments continues to be similar to that of the Chapter Two SOCs.

But, even as a compromise position was reached and factors were included in a separate chapter, it is clear from the commentary in that first manual (and all that have followed) that the Commission recognized they were including some adjustments in Chapter Two that also were included in the Chapter Three general provisions.

Since then, the Commission has added more specific offense characteristics into the guidelines, each time requiring commentary to advise the user not to apply the general provision in Chapter Three if the factor has been included in the Chapter Two offense level determination. (See Appendix 1.)

At the same time, the Commission has amended each Chapter Three provision at least once, with 3C1.1 (Obstruction of Justice) being amended five times. Although the majority of these amendments were clarifying, some were substantive, as in the amendment to acceptance of responsibility providing for an additional one-level reduction for defendants whose acceptance "includes assistance to the government in the investigation or prosecution of their own misconduct."5USSG App. C., amendment number 459.

Most recently, the Commission chose to address congressional directives contained in the Violent Crime Control and Law Enforcement Act of 19946Pub. L. 103-322 (Sept. 13, 1994). by adding three new sections to Chapter Three: 3A1.1 (Hate Crimes or Vulnerable Victim),7Pub. L. 103-322, 108 Stat 2096, sec. 280002. The Commission also added to 3A1.1 upward departure language for crimes of violence against the elderly in response to the directive that the guidelines provide sufficiently stringent penalties. Pub. L. 103-322, 108 Stat. 2081, 240002. Finally, noting inconsistent application of whether the adjustment in 3A1.1 required proof that the defendant "targeted the victim on account of the victim's vulnerability," the Commission clarified the commentary to make clear that the adjustment did not require such proof. 3A1.4 (International Terrorism),8Pub. L. 103-322, 108 Stat. 2022, 120004. and 3B1.4 (Use of a Minor to Commit a Federal Offense).9Pub. L. 103-322, 108 Stat. 2033, 140008. Although the directives did not specifically instruct the Commission to place the adjustments in Chapter Three, Congress did mandate that the Commission provide appropriate enhancements for any offense in which the aggravating conduct occurred.

III. Chapter Three Guidelines in Operation

A. Key Points Gleaned from Monitoring Data

Guideline application information collected by the Commission is a valuable tool for the simplification process. It can be used to describe application of the guidelines as well as to uncover heretofore unknown patterns. In this section, monitoring data are used to address four areas of inquiry: 1) the frequency of application of Chapter Three guidelines; 2) instances of double counting that occur when Chapter Two and Chapter Three guidelines are applied that address the same factor; 3) the impact of Chapter Three adjustments on the guideline range; and 4) circuit and district variation in application of Chapter Three guidelines.

1. Frequency of Guideline Application

Our evaluation of the operation of Chapter Three began with an examination of the frequency with which the current guidelines are applied. Appendix 2 shows how often each Chapter Three guideline was applied in fiscal years 1992, 1993, and 1994. The data indicate that vulnerable victim (3A1.1), official victim (3A1.2 ), restraint of victim (3A1.3), and reckless flight (3C1.2) were applied in less than one percent of the cases for each fiscal year. Aggravating role (3B1.1), mitigating role (3B1.2), abuse of trust (3B1.3), and obstruction (3C1.1) are each applied in less than ten percent of all cases. By using data from three years, Appendix 2 also shows the change in the percentage of application of the Chapter Three guidelines.10Because this analysis is based on guideline calculation, not defendant, the percent of application of each Chapter Three guideline is calculated by dividing the number of instances of Chapter Three guideline application by the total number of Chapter Two guideline applications. The denominator was taken from Table 24 in the USSC Annual Reports for 1992, 93, and 94.

We also explored whether application of any Chapter Three guidelines are associated closely with specific Chapter Two guidelines. This analysis examines every instance of each Chapter Three guideline applied to 1994 cases (limited to amendment years 1991, 1992, 1993, and 1994). For the vulnerable victim guideline (3A1.1), the most frequent Chapter Two guideline applied is the fraud guideline ( n=161). Appendix 3 shows the frequency and proportion of Chapter Two guidelines applied with each Chapter Three adjustment, listing the four most frequently applied Chapter Two guidelines for each Chapter Three factor. For example, the fraud guideline accounts for more than half of all applications of the vulnerable victim adjustment in fiscal year 1994.11Another way to study application of Chapter Three adjustments is to look at the frequency of Chapter Three application standardized by the number of times a Chapter Two guideline has been applied. For example, 2F1.1 was the Chapter Two guideline in 161 guideline calculations that include an adjustment for vulnerable victim (3A1.1). In 1994 2F1.1 was applied in 6,235 guideline calculations (Table 24 1994 USSC Annual Report). Therefore, 3A1.1 was applied in 2.6 percent of all 2F1.1 calculations. In contrast, 2S1.1, which was applied 705 times, is the associated Chapter Two guideline in 12 applications of 3A1.1 (1.7%). By controlling for the frequency of Chapter Two guideline application, we can see that the vulnerable victim adjustment is applied in a greater proportion for some Chapter Two guideline calculations than for others.

2. Double-Counting Offense Behavior

In some instances, a Chapter Two guideline contains a specific offense characteristic that covers the same offense elements as a Chapter Three guideline, or the Chapter Three guideline considers offense behavior that is an inherent part of the offense and is taken into account in the Chapter Two guideline. Although this duplication provides a potential source of confusion and misapplication, our review of cases found that the guidelines are being applied correctly. Of the 29,663 cases, there were only seven instances in which a prohibited combination of a Chapter Two SOC and a Chapter Three guideline had been applied.12We reviewed the data set for cases sentenced in 1994 under the 1993 guidelines. The Chapter Two and Chapter Three combinations and the number of times the prohibited combination was applied: 2J1.1 and 3C1.1 (3); 2J1.3 and 3C1.1 (1); 2J1.6 and 3C1.1 (2); and 2P1.1 and 3B1.3 (1). Our review found that when there is the potential for misapplication by applying both a Chapter Two SOC and a Chapter Three guideline, rarely was a Chapter Three guideline applied. For example, when 2C1.2 (Offering, Giving, Solicitor or Receiving a Gratuity) is applied, the Chapter Three adjustment for abuse of trust (3B1.3) should not be applied. The data suggest that Chapter Two SOCs are being applied instead of the Chapter Three adjustments, which is consistent with guideline application procedure.

3. Impact of Chapter Three Adjustments on Sentences Imposed

Another factor for consideration is the effect of Chapter Three adjustments on the final offense level. We looked at the overall impact of the Chapter Three guidelines on the offense level. Appendix A shows the average final offense level, the average offense level after removing any Chapter Three adjustments, and the difference in the average offense level by offense type category.13To eliminate the confounding effect of application of guidelines that may not have had an effect on the final offense level, this analysis is based on cases with a single guideline calculation. Overall, the average effect of Chapter Three adjustments is a two-level reduction in the offense level. The two level reduction can serve as a rough guide for interpreting Appendix 4. Any offense category with a difference between "with Chapter Three" and "without Chapter Three" of less than two offense levels indicates that, on average, defendants in that offense category receive more aggravating Chapter Three adjustments that increase the offense level and/or not receiving adjustments that reduce the offense level, such as acceptance of responsibility or mitigating role. For example Appendix 4 shows that on average drug trafficking and robbery receive the most benefit from Chapter Three adjustments (a reduction of 2.4 levels).14Note: Three points for acceptance is applicable only when the adjusted offense level is greater than sixteen. Because there is variation in the effect of Chapter Three adjustments on the average offense level, secondary analysis that focuses on the average effect of each Chapter Three adjustment by offense type may be informative.

4. Circuit and District Variation in Application of Chapter Three Guidelines

We examined whether there exists circuit to circuit variation in the application of the Chapter Three adjustments and found no statistically significant association. However, our analysis of the application of the mitigating role adjustment indicates that there may be significant variation at the district court level.15Analysis was based on the use of the Chapter Three adjustments in connection with the guideline that resulted in the highest adjusted offense level. For example, in the Eastern District of New York 71.3 percent of all 2D1.1 (drug trafficking) cases received at least one-level reduction for mitigating role. In contrast, in the Southern District of Florida only 21.3 percent of all 2D1.1 cases received at least one-level reduction for mitigating role. The variation in application of mitigating role (and perhaps other Chapter Three adjustments) may merit more comprehensive analysis. (See Appendix 5.)

B. Key Issues Raised by Analysis of Hotline Calls

Compared to other areas of guideline application, the number of hotline questions on Chapter Three is small. In 1994, the Sentencing Commissions' hotlines received a total of 2,517 questions. Only 137 (5%) of these questions pertained to Chapter Three adjustments. There were 55 questions about role in the offense, 43 questions about obstruction, 29 questions about acceptance of responsibility, and 10 questions about victim-related adjustments according to the 1994 Annual Report.

A review of the hotline database, which includes hotline questions from several years, revealed questions about:

Part A (victim-related), Part B (aggravating role only), Part C (obstruction), and Part E (acceptance) were almost exclusively whether the facts of the particular case met the definitions in the manual;

the mitigating role guideline focused on the interaction between role and relevant conduct when interpreting the definitions or lack thereof; and

abuse of a position of trust predominately involved whether a postal worker should be considered to have violated a position of trust (a question that was answered by a November 1, 1993 amendment to the manual).

Overwhelmingly, callers to the hotline seek guidance in how to interpret the guideline language, particularly in applying the definitions to the facts of their particular case.

C. Frequency of Appeals Involving Chapter Three Guideline Issues

This section discusses the frequency of appeals involving Chapter Three adjustments without opining whether frequency of appeals indicates problems with the guidelines at issue.

In 1994, defendants and the government brought 4,044 appeals involving at least one sentencing issue. Of those 4,044 appeals, 1,402 involved the Chapter Three issues discussed in this report.16Because often more than one issue was appealed, the number of issues totals more than the number of defendants. In this section, therefore, we refer to the frequency with which an issue was appealed as the number of "appeals." The source for the information on number of appeals is the 1994 Appeals Datafile. It is important to note that of all the guideline issues appealed in 1994, role in the offense and acceptance of responsibility were two of the most frequently appealed.

Role in the offense, the most frequently appealed of all the Chapter Three guidelines, was involved in 622 appeals, or about 15 percent of all sentencing-related appeal issues in 1994.17Specifically, the aggravating role guideline was involved in 307 appeals, mitigating role in 258 appeals, and abuse of position of trust/use of special skill in 57 appeals. Acceptance of responsibility was the next most frequently appealed issue (449 appeals or 11% of all sentencing-related appeal issues), followed by obstruction of justice (287 appeals or 7% of all sentencing-related appeal issues). Less frequently appealed Chapter Three issues were the victim-related adjustments (1% of all sentencing-related appeal issues), specifically, vulnerable victim (24 appeals), official victim (16 appeals), and restraint of victim (3 appeals).

The large number of appeals based, at least in part, on role in the offense may be significant when one compares it to the infrequency with which the role guidelines are applied. In 1994, there were 34,642 cases in which the Chapter Three guidelines were applicable and in which we have Chapter Three application information. Courts gave an adjustment for role in the offense in approximately 18 percent of all cases sentenced; role issues are approximately 15 percent of all issues appealed.18A closer examination of appeals involving role in the offense guidelines reveals that an overwhelming number involved the 3B1.1 (Aggravating Role) determination of whether the defendant was an organizer or leader. In addition, a large number of appeals involved the 3B1.2 (Mitigating Role) question of whether the defendant was a minor participant in the offense and the issue of application of reduction and level of culpability. Other issues frequently appealed were whether the defendant was a minimal participant in the offense under 3B1.2, application and definition issues regarding 3B1.3 (Abuse of Position of Trust/Use of Special Skill), and whether the defendant was a manager or supervisor under 3B1.1.

An adjustment for acceptance of responsibility, on the other hand, was made in approximately 85 percent of all cases sentenced and only represents 11 percent of all issues appealed. Moreover, of the 6,183 cases in which there was a role adjustment in 1994, role issues were involved in 622 appeals or ten percent of the time. During the same year, courts gave an acceptance of responsibility adjustment in 29,549 cases. Of those 29,549 cases, the acceptance issue was involved in 449 appeals or only one percent of the time.

D. Criticisms/Problems with Current Guidelines

1. Issues Identified by Commissioners and Staff

The Chapter Three Simplification Working Group is conducting personal interviews with some commissioners and staff regarding problems and criticisms of Chapter Three guidelines. Some interviews have yet to be completed; however, some issues have been raised by those already interviewed.

The application of the Chapter Three guidelines (for the most part) is less problematic than the more complex guidelines such as relevant conduct and multiple count rules. The role (Part B) and acceptance of responsibility (Part E) adjustments, however, provide ample challenge to those learning guideline application. According to the interviewees, the role guidelines represent the biggest problem, especially mitigating role. The problems are two-fold: an unclear policy about the basic application of the guideline, and confusing, contradictory, and generally unhelpful commentary to the guideline.

Application of the mitigating role guideline requires a comparative assessment of the defendant's conduct with others involved in the offense. However, because of a consistent narrowing of the scope of the relevant conduct guideline, not all participants in the offense are held for the same relevant conduct and often the common basis for comparison is lost. In the first manual (11/1/87), the scope of relevant conduct was as least as broad as criminal liability, and the commentary to the guideline added that "[t]he governing standard should be liberally construed in favor of considering information generally appropriate to sentencing."19Guidelines Manual, effective November 1, 1987, see 1B1.3. The guideline specified that relevant conduct included all "acts or omissions committed or aided or abetted by the defendant, or by a person for whose conduct the defendant is legally accountable, that (1) are part of the same course of conduct, or a common scheme or plan, as the offense of conviction . . ."20Ibid.

In 1987, relevant conduct provided no co-defendant distinction as it does today; this was left to the role guidelines. All co-defendants in a drug conspiracy likely were held for the same drug amounts and had the same offense level from Chapter Two. The role analysis was to compare the acts of the defendant to those of the group. A minimal participant (a 4-level reduction) was "intended to cover defendants who are plainly among the least culpable of those involved in the conduct of the group."21Guidelines Manual, Application Note 1 of 3B1.2, in every version of the manual from 1987 to date.

As envisioned initially, role and relevant conduct were compatible. However, as the scope of relevant conduct began to narrow (through amendment as early as January 15, 1988), it began to provide significant co-defendant distinction. Subsequent amendments further narrowed the scope of relevant conduct, and these changes confound the operation of the role guidelines, especially mitigating role, which has not changed substantially since 1987.22There was one amendment to mitigating role (effective November 1, 1992) that moved discussion of an unrelated issue from the Introductory Commentary to Application Note 4.

Application of the mitigating role guideline continues to require a comparison of the defendant's conduct to that of others involved in the offense23Ibid., Note 1 of 3B1.2. even though the common basis for comparison frequently is lost. Defendants who are "plainly among the least culpable of those involved in the conduct of the group" (such as a latecomer to a drug conspiracy who had limited involvement) can qualify for the 4-level reduction even when correct application of relevant conduct only held the defendant accountable for his/her own acts and not for the acts of others. Application of the mitigating role reduction in this example gives the defendant two reductions, one through relevant conduct and another through role.

Although Application Note 1 of the mitigating role guideline clearly requires a comparison of the defendant's conduct to others in the group, the Background Commentary to this guideline says something else. "This section provides a range of adjustments for a defendant who plays a part in committing the offense that makes him substantially less culpable than the average [emphasis added] participant." Who is the "average" participant? A hypothetical participant who is to be used as a standard for comparison, or the defendant from the group whose conduct was most typical of the group? Under either construction, the question about the interplay between relevant conduct and role remains unanswered.

In recent years, the Commission has published proposed amendments to the mitigating role guideline that addressed some of these concerns. However, frequently the proposed amendments were tied to the "capping" of offense levels in the drug guideline, an idea that never engendered sufficient Commission support. Although recent versions of the proposed amendment addressed the question about the basis for application, the training staff believed the proposal to be too detailed, confusing, and difficult to apply.

In addition to those issues already outlined, mitigating role suffers from other language problems. Application Note 2 begins with "[i]t is intended that the downward adjustment for a minimal participant will be used infrequently." Guidelines are applied on a case by case basis, and the judgment about the application of a particular guideline does not include an assessment of the frequency of application, only its applicability to the facts of the case. This note is difficult to interpret as other than an attempt to dissuade the court from frequent (overly generous) application. The examples of when a minimal participant adjustment would be appropriate (found in Note 2) are narrow in scope and unrealistic, and may discourage application of the reduction.24A defendant who did nothing other than "off-load part of a single marihuana shipment" and a defendant who was "a courier for a single smuggling transaction involving a small amount of drugs" implies that if the amount of drugs is other than small (or the drug other than marihuana), the reduction may not apply. This seems an irrelevant point when the drug guideline is based on type and amount, and when the amount is other than small (whatever this term means), this factor has already been considered.

Other staff comment that the role guidelines attempt to determine defendant culpability by describing defendant functions, however; the definitions presented are too generic for specific offenses and are confusing and contradictory. Another criticism of Chapter Three guidelines is that a numeric description of role (as used in aggravating role) is often inaccurate. The number of participants does not always capture the relative importance of the defendant's role. For example, a robbery involving five people is unusually large but a five-person drug conspiracy is common.

As a general comment about Chapter Three, an interviewee noted that a clear distinction between the topics that belong in Chapter Two or Chapter Three does not exist. The interviewee feels there is no clear perception of what constitutes Chapter Three material. For example, victim-related factors are found in Chapter Two and Three guidelines. It was suggested that the abuse of trust guideline belongs in Chapter Two as a specific offense characteristic and it was noted that, occasionally, courts will give a one-level increase instead of a two-level increase for abuse of trust.

Some interviewees feel that a review of the acceptance guideline should start by going back to the original philosophy that serves as the foundation for the guideline. Training the operation and rationale of the acceptance guideline frequently generates the comment, "Well, which is it, a reduction for the defendant who accepts responsibility for his conduct, or a guilty plea discount?" If the acceptance guideline aims to distinguish those who accept responsibility for their conduct, why don't they have to admit to the conduct (see App. Note 1a)? Others noted that occasionally courts will give the additional one-level decrease for acceptance even though the defendant's offense level does not qualify. When this occurs, the court does not treat it as a departure. Instead, the courts have stated that they are giving the additional point because the defendant gave additional help.

2. Law Review Articles

There is limited literature specifically addressing the application of Chapter Three adjustments. The Commission has addressed by amendment some of the criticism concerning application of 3B1.3 (Abuse of a Position of Trust or Use of a Special Skill) and 3E1.1 (Acceptance of Responsibility).25See e.g., Erich D. Andersen, Enhancement for "Abuse of a Position of Trust" under the Federal Sentencing Guidelines, 70 Or. L. Rev. 181 (1991) (asserting that the language of USSG 3B1.3 is vague resulting in inconsistent application of the enhancement); USSG App. C (492) ("reformulat[ing] the definition of an abuse of position of trust to better distinguish cases warranting this enhancement); Jon M. Sands, Cynthia A. Coates, The Mikado's Object: the Tension Between Relevant Conduct and Acceptance of Responsibility in the Federal Sentencing Guidelines, 23 Ariz. St. L. J. 61 (1991)(urging the Commission to limit the scope of relevant conduct to the defendant's offense of conviction for purposes of applying acceptance of responsibility); USSG App. C (adding language that the "defendant is not required to volunteer, or affirmatively admit, relevant conduct beyond the offense of conviction in order to obtain a reduction under subsection (a)"). However, critics are troubled still by the application of 3C1.1 (Obstruction of Justice) to a defendant whose testimony the district court determined was perjured.

Although the defendant's right to testify does not include the right to testify falsely,26United States v. Grayson, 438 U.S. 41 (1978). critics are concerned that the current structure of 3C1.1 permits both sentencing and appellate courts to use the jury's guilty verdict as an automatic indication that the defendant committed perjury. They argue that the guideline permits sentencing courts to dispense with independent appraisals as to whether the defendant committed perjury. In other words, a finding of guilt necessarily means that the defendant lied on the witness stand and committed an obstructive act. Specifically, critics are concerned that the guidelines lack procedural guidance as to when a defendant's permissible denial of guilt rises to the level of perjury. "The obstruction guideline creates a significant risk that convicted defendants who testify on their own behalf will receive enhanced sentences based solely on juries' verdicts, regardless of whether their testimony was in fact perjured."27Ami L. Feinstein, United States v. Dunnigan and Sentence Enhancements for Perjury: Constitutional Perhaps, But Unnecessary in Fact, 31 Am. Crim. L. Rev. 169, 178 (1993).

Critics also charge that the Supreme Court's decision in United States v. Dunnigan28113 U.S. 1111 (1992). did little to resolve the guideline's lack of procedural guidance. Although the Supreme Court in Dunnigan provided that "district courts must make an independent finding `encompassing all of the factual predicates for a finding of perjury,'"29Feinstein at 175. critics argue that the Supreme Court actually applied a much weaker test. They charge that the Court merely relied on the district court's statement that the defendant presented untruthful testimony at trial concerning material matters.30Id. at 175-176. Critics charge that as a result of Dunnigan, district courts are not required to "identify [clearly] which specific segments of a defendant's testimony are found to be untrue, nor [are they required] to establish all of the elements of perjury."31Id. at 176.

The circuit courts are reluctant to overturn an obstruction of justice enhancement, even when the district court's decision was based on the "most minimal finding of fact as to perjury."32Peter J. Henning, Balancing the Need for Enhanced Sentences for Perjury at Trial under Section 3C1.1 of the Sentencing Guidelines and the Defendant's Right to Testify, 29 Am. Crim. L. Rev. 933, 944 (1992). Further, critics assert that after Dunnigan, "a defendant's appeal of an enhanced sentence is relatively useless"33Feinstein at 178. because the clearly erroneous standard of review permits the circuit court to uphold the enhancement based on any inconsistency in the record.34Id. The appellate courts do not make an "effort to ascertain whether the testimony amounted to perjury or whether the sentencing court had based the enhancement on an independent determination of the defendant's testimony."35Henning at 945. Critics argue that this amounts to an elimination of important safeguards to protecting the defendant's right to go to trial and testify.36Id; Feinstein at 180.

Finally, one critic has expressed the view that there is an inconsistency to the application of the obstruction of justice enhancement because of the lack of procedural guidance and the deferential review of the sentencing court's application of the enhancement. This inconsistency runs counter to the Commission's goal of uniformity in sentencing.37Feinstein at 179.

3. Circuit Conflicts and Key Cases Involving Chapter Three Issues

As a method of identifying problem areas, we reviewed circuit court conflicts and recent cases that raise significant issues unresolved by the Chapter Three guidelines. That information, gleaned from the February 6, 1995, Commission report on Ongoing Circuit Conflicts and from the appeals database, is summarized in Appendix 6.

IV. Comparison of Federal and State Guideline Systems

An examination of several state guideline systems38The guideline systems in Oregon, Minnesota, Michigan, Pennsylvania, and Virginia were reviewed. reveals that most have not developed a structured approach like our Chapter Three. In the state systems reviewed, Chapter Three type factors typically do not increase or decrease the sentencing range as they do in the federal system. Instead these factors (e.g., acceptance of responsibility, role in the offense, obstructive behavior) may be identified as aggravating or mitigating factors to be considered by the court and may justify a departure.

When comparing the structure of the federal system to various state systems, the most salient difference is that the state systems base guideline application on the conduct contained in the count(s) of conviction. Unlike the federal guidelines, the states do not treat unconvicted conduct (including uncharged, dismissed, and acquitted conduct) as the equal of convicted conduct. The treatment of conduct beyond the count(s) of conviction varies from state to state. While Michigan's guideline system has a SOC-like factor that increases the guideline range for related criminal conduct similar to the offense of conviction, Minnesota prohibits the use of any conduct outside the count of conviction even for departure consideration.

The chart in Appendix 7 presents a comparison of the federal guideline system and five state systems. In addition to the factors currently listed in Chapter Three of the Guidelines Manual, the chart includes a factor that could be added to Chapter Three, as a new guideline. This new guideline would provide offense level enhancement for criminal conduct that is beyond the offense of conviction yet similar to the count(s) of conviction. It could be structured to provide a specific offense level increase (two levels, for example) or a number of increases (two, four, or six levels39A two-level increase typically provides a 25 percent increase in the guideline range and a six-level increase typically doubles the guideline range throughout the sentencing table.) for similar conduct beyond the count(s) of conviction.

V. Options for Refinement

Much can be done to improve and simplify the operation of Chapter Three, and many improvements can be accomplished quickly without requiring any change to the statute. We have identified a range of options available to the Commission, and anticipate that several other options will emerge as the Commission begins to make decisions about simplification.

A. Simplify the Chapter Three guidelines identified as problematic by clarifying the existing language. Some guidelines, such as mitigating role, need more than clarification of existing language. (See discussion in Section III D.)

B. Move infrequently applied Chapter Three adjustments to either the appropriate Chapter Two guideline(s) or use them as a departure consideration in Chapter Five. For example,

the Commission could remove from Chapter Three 3A1.3 (Vulnerable Victim), which is applied in one-tenth of one percent of all cases, and add it as a departure consideration in Chapter Five without undermining the importance of the factor.

C. Restructure some of the Chapter Three guidelines, particularly the role guidelines, to achieve an increased level of judicial discretion in these determinations. This could be achieved in a variety of ways. The Commission could replace existing commentary with clearer and more flexible language that recognizes that the district court is in a unique position to assess the role or culpability of the defendant. The determination of each role adjustment (e.g.,the 4-level increase for aggravating role, the 2-level increase for aggravating role) could be based on the court's finding that the defendant meets most of the criteria listed for that specific adjustment.

There are several other suggested approaches including, for example, the Criminal Law Committee's proposed 1995 amendment to the role guidelines that established a range of one to six levels (increase or decrease) dependent on the absence or presence of established factors. (See Appendix 8 for a copy of this proposal, and three 1995 staff proposals regarding mitigating role.) Caveat: The Criminal Law Committee's approach may violate the 25% rule.

D. Modify the operation of the Chapter Three adjustments so that the same factors (victim, role, obstruction, acceptance) are used to determine whether they create an overall aggravated range, a mitigated range, or the standard range. This structure could give district courts more discretion, and reduce application confusion. This is similar to the structure of the Pennsylvania guideline system. Caveat: This approach may violate the 25 percent rule, depending on how the three ranges are established.

E. Eliminate all of Chapter Three (or all but Acceptance of Responsibility) and list all of these factors in Chapter Five as factors that may warrant departure. Most of the state guideline systems reviewed have adopted a similar approach.

F. Create a new Chapter Three adjustment that replaces the (a)(2) prong of relevant conduct (1B1.3). This new adjustment would provide offense level increase(s) for additional criminal conduct similar to the offense of conviction not contained in the count(s) of conviction. Currently, 1B1.3 treats conduct that was "part of the same course of conduct or common scheme or plan as the offense of conviction"40See 1B1.3(a)(2) in the Guidelines Manual. as the equal of convicted conduct.

This a restructuring would retain the compromise between charge and real offense sentencing and expand it to all offense types, without the complexity and fairness issues inherent in the present structure. This would provide a limited sentence increase for additional criminal conduct, while addressing one of the most criticized aspects of guideline application: treating unconvicted, uncharged, and acquitted conduct as the equal of convicted conduct. However, this aspect of relevant conduct is not universal across offense types. It applies to guidelines that are based on a measure of aggregate harm (e.g., drugs, fraud, theft, money laundering, taxes), but not to offenses against the person, robberies, sexual exploitation of a minor, and many others.

G. Re-examine the issue of "role in the offense" in the context of philosophical questions underlying the guidelines. Should guidelines serve the "crime control" purpose or "just deserts" purpose of criminal punishment? Under a "just deserts" principle, "punishment should be scaled to the offender's culpability and the resulting harms. Thus if a defendant is less blameworthy, he should receive less punishment. . ."41Supplementary Report on the Initial Sentencing Guidelines and Policy Statements, June 18, 1987, p.15. On the other hand, the "crime control" philosophy that defendants "should receive the punishment that most effectively lessens the likelihood of future crime,"42Ibid. emphasizes deterrence. Although the current guidelines were drafted to serve both of these purposes, role is arguably downplayed because it is merely an adjustment in Chapter Three. In order to give greater impact to the culpability and role factors in a "just deserts" model, the guidelines may need to be re-formulated to increase the importance of those factors in determining a sentence.

1Of the 39,971 guideline cases, 15,743 were sentenced under 2D1.1. The mitigating role and aggravating role adjustments used in this table were only considered when 2D1.1 was the highest guideline applied.

2 The abuse of position role adjustment was excluded from this table due to too few cases occurring under this guideline. Cases may appear in more than one category.

SOURCE: U.S. Sentencing Commission, 1994 Datafile, MONFY94.

Circuit Conflicts and Key Cases Involving Chapter Three Issues

(Issues directly involving a current circuit court conflict are identified in parentheses.)

1. 3A1.1 Vulnerable Victim

Does "victim of the offense" refer only to the victim of the offense of conviction and not to the victim of any relevant conduct? In other words, what is the "scope of the offense" for purposes of this enhancement? (Circuit conflict.)

2. 3B1.2 Mitigating Role

a. Should a mitigating role adjustment be determined on the basis of a comparison of the defendant's conduct with that of actual co-participants in the instant case, or with that of a hypothetical average participant? (Circuit conflict.)

b. Is a departure under 5K2.0, by analogy to 3B1.2, permissible based on mitigating role in the offense if the defendant was the only participant in the offense? (Circuit conflict.)

3. 3B1.3 Use of a Special Skill

What exactly constitutes a special skill? A comparison of two cases exemplifies what may be inconsistency of application. In a recent Seventh Circuit case, the court affirmed the district court's decision to give a 3B1.3 enhancement, finding that the defendant used his "special skill" as a professional truck driver, operating an 18-wheeler. In another case decided around the same time, the Ninth Circuit reversed a district court's determination of special skill under 3B1.3. In that case, the district court found that the knowledge the defendant gained about automated teller machines ("ATMs") - as an employee of an ATM service company and then as an employee of the bank she attempted to rob - qualified as a special skill; the defendant intentionally caused an ATM to malfunction so that she could attempt to rob the ATM technicians when they opened the ATM to perform repairs. The circuit court ruled that the defendant's special knowledge of ATM machines and their service procedures did not involve the kind of education, training, or licensing required to constitute a special skill.

4. 3C1.1 Obstruction of Justice

a. Does "instant offense" refer only to the offense of conviction or to all relevant conduct? The Eighth Circuit has held that it is proper to give an obstruction enhancement when a defendant obstructs an investigation wholly unrelated to the offense of conviction, while the Seventh, Tenth, and Eleventh Circuits have held that it is not proper to give the enhancement if the defendant obstructed an investigation unrelated to the offense of conviction.

b. Must the standard of proof for a finding that the defendant has given perjured testimony for purposes of the Obstruction enhancement be based on a preponderance of the evidence or a clear and convincing evidence standard? In a November 1994 decision, the D.C. Circuit vacated the district court's obstruction enhancement and remanded the case to the district court to reconsider the evidence of perjury using the clear and convincing standard of proof. The appellate court stated that "section 3C1.1 and the Application Note [n.1], taken together, express a standard of proof greater than a preponderance of the evidence. . . . In short, we hold that when a district court judge makes a finding of perjury under 3C1.1, he or she must make independent findings based on clear and convincing evidence." United States v. Montague, 40 F.3d 1251 (D.C. Cir. 1994).

c. Does a defendant's failure to admit to use of a controlled substance amount to willful and material obstruction of justice under 3C1.1? Specifically, see Comment n.1. (Circuit conflict.)

5. 3E1.1 Acceptance of Responsibility

a. Can a sentencing court deny a reduction for acceptance of responsibility on grounds that post-indictment conduct not directly related to the underlying offense of conviction evidences a failure to accept responsibility for the offense? Specifically, see Comment n.1(b). (Circuit conflict.)

b. Must a defendant plead guilty before the court sets a trial date in order to qualify for an additional one-level reduction? (Circuit conflict.)

c. Is an insanity defense inconsistent with acceptance of responsibility? The Eighth Circuit recently held that a defendant who goes to trial on an insanity defense may qualify for an acceptance reduction. In that case, the court cited Application Note 2, to the effect that when a defendant goes to trial to assert and preserve issues unrelated to factual guilt, a determination that he has accepted responsibility will be based primarily on pretrial statements and conduct.

United States Sentencing Commission