Chair Murphy called the meeting to order at 9:32 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
Joe Kendall, Commissioner
John P. Elwood, Commissioner Ex-Officio
Edward F. Reilly, Jr., Commissioner Ex-Officio
Timothy McGrath, Staff Director
Judith Sheon, Special Counsel
Charles Tetzlaff, General Counsel
Donald (Andy) Purdy, Chief Deputy General Counsel
Chair Murphy opened the meeting by welcoming members of the public and expressing
appreciation for their interest in the Commission’s work. She stated that
Commissioner Michael O’Neill was unable to participate in the meeting
due to a death in his family. Chair Murphy expressed condolences for his loss
and stated that the Commission would miss his presence at the meeting.
Chair Murphy informed those present that the Commission had decided to hold
an additional public hearing during this amendment cycle in response to previous
requests for more time. The hearings will take place at the end of February
and in March; the Commission will hear testimony concerning two of its current
agenda items: crack and powder cocaine and terrorism. Chair Murphy indicated
that the Commission is considering updating its report to the Congress on crack
and powder cocaine sentencing.
Chair Murphy announced that the survey of all Article III judges, which is part of the 15 year study, has been sent out. She stated that the Commission hopes to receive a good response. The survey asks federal judges, on the basis of their experience, how well they believe the guidelines and mandatory minimums relate to the sentencing goals identified by Congress.
Chair Murphy mentioned that the Commissioners are actively engaged in speaking with various groups on the guidelines.
Chair Murphy then stated that the first thing on the agenda is the approval of the minutes from the last public meeting, November 14, 2001.
Commissioner Johnson moved to adopt the minutes of November 14, 2001. Seconded by Vice Chair Castillo. The motion passed unanimously.
Terrorism
Chair Murphy asked General Counsel Tetzlaff to introduce proposed guideline amendments and issues for comment concerning terrorism. He stated that on October 26, 2001, the President signed the USA PATRIOT Act of 2001 ("the Act") which created new terrorism, money laundering, and currency offenses, as well as increased statutory maximum penalties for some existing offenses. He stated that the Commission reacted swiftly to these events and directed staff to begin a review of the legislation and determine an appropriate response with respect to guideline treatment of terrorism. A team, led by Pam Barron, and consisting of Mary Didier, Vanessa Locke, Mark Allenbaugh, and Judy Sheon, has worked diligently and in a relatively short time period has prepared a proposed multipart amendment for the Commission’s consideration to publish for comment. For ease of identification, the team has broken the amendment into eight parts. The following summarizes the key parts of the proposed amendment:
Part A addresses new predicate offenses for federal crimes of terrorism. The proposed amendment would modify the air piracy guideline in Chapter Two to include offenses against mass transportation systems. It also includes several issues for comment, including an issue on how hoaxes should be treated and an issue regarding how the guidelines should treat offenses involving the conveying of false information and threats. The proposed amendment also references the new offense of interfering with flight crew members or flight attendants. The proposed amendment would expand the guideline covering nuclear, biological, and chemical weapons, §2M6.1, to cover new offenses involving possession of biological agents, toxins, and delivery systems. Finally, the amendment proposes to make appropriate amendments to the Statutory Index.
Part B covers preexisting predicate offenses to federal crimes of terrorism not currently covered by the guidelines. A number of offenses that are currently enumerated in 18 U.S.C. § 2332b(g)(5) as federal crimes of terrorism are not listed in the Statutory Index. The amendment proposes a number of Statutory Index references, as well as modifications to various Chapter Two guidelines for these offenses. It also provides an issue for comment on how the Commission should treat threat cases. The proposed amendment also would create a new guideline at §2M6.3 (Providing Material Support to Terrorist and Foreign Terrorist Organizations) for two preexisting offenses: 18 U.S.C. § 2339A, which prohibits the provision of material support or resources to terrorists; and 18 U.S.C. § 2339B, which prohibits the provision of material support or resources to a foreign terrorist organization. Additionally, an issue for comment is included on how the new guideline proposed to be added at §2M6.3 should cover the wide variety of conduct encompassed by these two offenses. The amendment also proposes to reference torture offenses in the Statutory Index because they are now predicate offenses that may qualify as "federal crimes of terrorism." The amendment also proposes to reference damaging or destroying an interstate gas or hazardous liquid pipeline facility to certain delineated guidelines in the Statutory Index because this offense is also now a predicate offense that may qualify as a federal crime of terrorism. An issue for comment is included regarding which, if any, of these guidelines are appropriate for these offenses.
Part C is essentially an issue for comment as to whether guideline penalties should be increased in response to section 810 of the Act which increases the statutory maximums for eight specific offenses.
Part D applies to penalties for terrorist conspiracies. The Act amended eleven specific offenses to provide that a conspiracy to commit any of those offenses shall subject the offender to the same penalties as those prescribed for the offense. There is an issue for comment regarding how the guidelines should treat conspiracies to commit these terrorist offenses, including whether and how to amend §2X1.1.
Part E deals with the terrorism adjustment in §3A1.4. This proposed amendment would add an invited structured upward departure in §3A1.4 for offenses that involve domestic or international terrorism but do not otherwise qualify as offenses that involved or were intended to promote "federal crimes of terrorism." Also included are a number of issues for comment, such as whether the terrorism enhancement currently addresses appropriately the sentencing of terrorists.
Part F addresses money laundering offenses. This amendment proposes to amend §2S1.3 which deals with structuring transactions to evade reporting requirements, failing to report cash or monetary transactions, failing to file currency and monetary instrument reports, and knowingly filing false reports. The proposed amendment would incorporate new money laundering provisions created by the Act. It also would add an enhancement if the defendant committed the offense as part of a pattern of unlawful activity. Included is an issue for comment regarding how the Commission should treat these offenses. Also, there is an issue for comment on whether the money laundering guideline, §2S1.1, should be amended to add public corruption to the list of offenses that qualify for a six level enhancement.
Part G addresses currency and counterfeiting offenses. The Act increased a number of statutory maximum penalties for offenses involving counterfeiting domestic and foreign currency obligations. An issue for comment is included regarding whether guideline penalties should be increased in light of the increase in statutory maximum penalties.
Finally, Part H addresses eight miscellaneous amendments related to terrorism.
General Counsel Tetzlaff suggested that a motion would be in order to publish
the proposed amendment for a 60 day comment period, to request public comment
on retroactivity, and to authorize staff to make technical and clarifying changes
to the guidelines.
Vice Chair Castillo moved to publish the proposed amendment for a 60 day comment
period, request public comment on whether to make the amendment retroactive,
and authorize staff to make technical and clarifying changes. Seconded by Vice
Chair Steer.
Chair Murphy stated that this subject was not anticipated last May to be part of this amendment cycle, but like every other institution, the Commission has needed to modify its agenda since that time. She stated that the proposed amendment involved a tremendous amount of work for staff. The Commissioners reviewed the language and made some changes to make it tighter. Chair Murphy added that the proposed amendment builds on the work that the Commission did last year regarding the nuclear, biological, and chemical weapons guideline.
Vice Chair Sessions stated that staff has done a phenomenal job in preparing all of these proposals. He remarked that it is extraordinarily important for the Commission to act swiftly in response to the legislation and the concerns of the American people regarding terrorism offenses. Vice Chair Sessions added that he has two concerns: that the Commission be certain that the proposed amendment address acts of terrorism; and that the Commission ensure that the amendments are not overbroad, that they specifically address what Congress wanted to accomplish.
Vice Chair Castillo also commended the Terrorism Team, headed by Pam Barron. He stated that their current work followed on the heels of the great work done on nuclear, biological, and chemical weapons offenses. Vice Chair Castillo stated that this proposed amendment was a quick turn around and that it was the right thing to do for many reasons. He added that when it comes to terrorism offenses, deterrence may be a minimal factor in punishment; however, deterrence might be a more important factor with regard to copycat crimes. Vice Chair Castillo concluded by stating that overall, the Commission needs to focus on just punishment for these types of crimes and focus on assisting law enforcement to ensure that these types of crimes are kept to a minimum.
Vice Chair Steer concurred in commendations for the Commission’s staff, particularly for their work in going through a very complex and voluminous piece of legislation. Vice Chair Steer remarked that, from the standpoint of seeking public comment, the Commission generally prefers to provide a very specific proposal so that the public may see where the Commission is heading and the parameters of the proposed penalties. He added that in some cases, this proposal may be somewhat frustrating because it may be far more general than usual. Vice Chair Steer stated that in order to comply with Commission procedures, the Commission has simply tried to preserve its ability to move forward in this amendment cycle by publishing general issues for comment. Vice Chair Steer stated that this is not ideal, but that he hoped the public would understand that the Commission is operating this way due to the short time frame and the public importance of the issue.
Vice Chair Steer stated that if one took this out of context, the way that the Commission historically has dealt with similar legislation was not to amend the guidelines quickly, but to wait until there has been some experience with the new offenses and then amend the guidelines in light of that experience. Vice Chair Steer stated that because of the public importance of this issue, the Commission needed to act quickly in response to the terrorism legislation. He requested that the public work with the Commission to provide expertise to try to fashion the best possible amendments. Vice Chair Steer concluded by stating that this is a very complex subject matter which requires ‘thinking outside the box’ because the Commission may need to think about more creative ways to address the legislation, including the creation of new guidelines. Finally, Vice Chair Steer stated that he felt sure that members of the public could help the Commission as it moves forward with this amendment cycle.
Chair Murphy then called for a voice vote on the motion to publish the amendment for a 60 day comment period, request public comment on retroactivity, and authorize staff to make technical and clarifying changes to the guidelines. The motion passed unanimously.
Drugs
General Counsel Tetzlaff introduced the proposed amendment and issues for comment regarding changes to the drug guidelines. He stated that last year, the Commission set as one of its priorities for this and the next amendment cycle a general assessment of the drug guidelines. This included possibly amending the guidelines to (1) lessen somewhat the contribution of drug quantity to penalty levels; (2) more adequately account for aggravating and mitigating conduct; (3) address the various circuit conflicts pertaining to the drug guidelines; and (4) improve generally the overall operation of the drug guidelines.
General Counsel Tetzlaff stated that much of this work will carry over to the next amendment cycle. During this amendment cycle, however, the Commission has expressed an interest in addressing the guidelines as they pertain to crack cocaine. As part of that assessment, the proposed amendments to §2D1.1 include a number of enhancements to account more adequately for aggravating conduct which is sometimes associated not only with crack cocaine offenses but also with drug trafficking offenses generally. In addition, the amendment includes proposed decreases in penalties in appropriate cases in which the current penalty structure may overstate the defendant’s culpability.
More specifically, the proposed amendment caps the base offense level between 24 and 32 if a defendant qualifies for an adjustment under §3B1.2 for mitigating role. The amendment includes two issues for comment: (1) whether the application of the maximum base offense level should be limited in some manner; and (2) whether the Commission should address three circuit conflicts pertaining to mitigating role, and if so, how those conflicts should be resolved.
The proposed amendment also would add certain enhancements for violence. It would modify subsection (b)(1) of §2D1.1 to provide a graduated enhancement of two to six levels for weapon involvement, for example, a six level enhancement if a firearm is discharged, a four level enhancement if a firearm is brandished or otherwise used, and a two level enhancement if a firearm is possessed. Similarly, proposed subsection (b)(2) of §2D1.1 would provide a graduated enhancement of two to eight levels for death or bodily injury, depending on the degree of injury. The proposed amendment also includes a bracketed option that limits the cumulative adjustments from subsections (b)(1) and (b)(2) to between ten and twelve levels.
There are two issues for comment: (1) whether subsections (b)(1) and (b)(2) should provide minimum offense levels; and (2) whether the Commission should also provide an enhancement if the offense involved an express or implied threat of death or bodily injury. The proposed amendment would consolidate §2D1.2, which deals with drug offenses occurring near protected locations or involving underage or pregnant individuals, with §2D1.1 and makes appropriate conforming changes to the Statutory Index. Proposed subsection (b)(3) would provide a two level enhancement if the defendant distributed to a pregnant individual, distributed to a minor, or used a minor to commit the offense. If the offense involved either distribution to a minor or using a minor, then a minimum offense level of 26 would be applied.
Proposed subsection (b)(8) of the amendment to §2D1.1 would provide a two to four level increase if the defendant committed any part of the instant offense after sustaining one felony conviction of either a crime of violence or controlled substance offense. An issue for comment is included regarding whether a minimum offense level should be provided.
The proposed amendment would provide an additional reduction of two levels for defendants who have no previous convictions and who currently qualify for a two level reduction for the safety valve. This reduction would be available only for defendants who have not been convicted of any prior offense. The proposed amendment would consolidate §2D1.8, which deals with renting or managing a drug establishment, with §2D1.1 and make a conforming change to the Statutory Index. The maximum offense level for these offenses would be increased to between levels 24 and 32. The proposed amendment also would amend the Typical Weight Per Unit Table (dosage, pill, or capsule) in Application Note 11 of §2D1.1 to reflect more accurately the type and quantity of ecstasy typically trafficked and consumed.
Lastly, dealing with simple possession of crack cocaine, the proposed amendment would delete the cross reference to the drug trafficking guideline to differentiate more adequately between the seriousness of an offense involving the distribution of crack cocaine and an offense merely involving simple possession with no intent to distribute.
General Counsel Tetzlaff then highlighted the more important of a number of issues for comment:
• The Commission requests comment regarding whether the current penalty structure for crack cocaine offenses is appropriate or whether some other penalty structure is more appropriate.
• The Commission also requests comment regarding the 100 to 1 drug quantity ratio for crack cocaine and powder cocaine offenses including whether some alternative ratio is more appropriate. If so, the Commission inquires how the alternative ratio should be achieved; how any such change to the penalty structure for crack cocaine would affect crime rates and deterrence; and how any such change would impact minority populations.
• The Commission requests comment regarding whether the penalties for crack cocaine offenses should be more severe, less severe, or equal to the penalties for heroin or methamphetamine offenses. In particular, the Commission inquires how the addictiveness of crack cocaine, the violence associated with its use or distribution, its trafficking pattern, and any secondary health consequences of its use (e.g., its effect on an infant who has been exposed prenatally to crack cocaine) compare to those factors as they are associated with heroin and methamphetamine.
• The Commission also inquires as to the short term and long term physiological and psychological effects of crack cocaine on the user.
General Counsel Tetzlaff stated that he had only provided a brief overview of the proposed drug amendment. He suggested that a motion would be in order to publish the proposed amendment for a 60 day comment period, request public comment on retroactivity, and authorize staff to make technical and conforming changes.
Chair Murphy stated that consideration of an amendment to the drug guidelines had been at the top of the Commission’s agenda since last May because of concerns raised regarding sentences for drug offenses. The Commission has a two year cycle for some of the issues, but all of the Commissioners wanted to address crack/powder sentencing during this amendment cycle. Chair Murphy stated that in addition to studying this issue, the Commission hopes to generate input from outside groups on approaches other than comparing crack to powder, including looking at whether quantity should be a driving force and comparing crack to other drug types. Chair Murphy stated that the proposed amendment and issues for comment reflect the Commission’s attempt to develop these concepts.
Commissioner Kendall stated that he had spent almost ten years as a federal judge dealing with these types of offenses. He said he would focus his comments on the politically charged crack/powder issue. Commissioner Kendall relayed an experience he had last March when he went to the National Advocacy Center in South Carolina to participate in guideline training for some 90 career prosecutors, most of whom were drug prosecutors. While there, Commissioner Kendall conducted a nonscientific survey, asking the prosecutors what they felt were the most serious drugs, based on their own experience in their home districts. Commissioner Kendall stated that heroin, methamphetamine, and crack cocaine virtually tied as the most serious of all drugs. He added that there was a significant fall off in considering other drugs such as powder cocaine, ecstasy, and marijuana.
Commissioner Kendall stated that this response caused him to conclude that these prosecutors thought that heroin, methamphetamine, and crack were comparable in terms of societal harm. This, in turn, caused him to consider the drug quantity ratios for sentencing and conclude that this structure is somewhat arbitrary, regardless of whether the ratio is 100:1, 50:1, 20:1, or some other ratio. Commissioner Kendall stated that the Commission dealt with ratio problems in considering the increased penalty structure for ecstasy. He stated that when determining how to treat a particular drug and relate it to other drugs, just considering mathematical numbers does not, in his judgment, capture the relative harm. Commissioner Kendall stated that this is why the Commission has requested public comment on the comparative harm between crack cocaine and other harmful drugs such as heroin and methamphetamine. He added that he hopes the Commission receives serious comment on how the drugs relate to one another, especially from the medical community, and that the comment will address the physiological and psychological harms, trafficking patterns, and violence associated with crack cocaine.
Commissioner Kendall requested comment on crimes associated with addictive drugs, such as robberies that are committed in order to obtain money to purchase drugs. He added that there is some current literature indicating that many of the predictions made in 1985, specifically with regard to crack addicted babies, simply did not come to pass. Commissioner Kendall also mentioned that Commissioner O’Neill has stated that the markets have become stabilized. Commissioner Kendall concluded by requesting that the public offer its assistance in helping the Commission determine the most appropriate penalty structure for crack cocaine sentencing.
Commissioner Kendall then moved to publish the proposed amendment for a 60 day comment period, request comment on retroactivity, and authorize staff to make technical and conforming changes to the guidelines. Seconded by Vice Chair Sessions.
Vice Chair Castillo stated that he believes it is appropriate to move from a discussion of terrorism to drugs. Further, it is appropriate that the Commission’s first meeting of the new year begins a new dialogue on how drugs are treated in this country. Vice Chair Castillo remarked that he sees a connection between terrorism and drugs in that the United States’ war on drugs has been semisuccessful; he believes that the statistics will show that a lot of hardline drug dealers are now serving time. Vice Chair Castillo stated that now is the time to become much more focused and targeted in the drug war in order to free up investigative resources and, ultimately, jail space for other purposes such as terrorism.
Vice Chair Castillo stated that his own record of prosecuting and presiding over drug cases speaks for itself — but, in the minority community, the crack/powder debate has hurt the standing and perception of the criminal justice community, and he believes it is time to rectify this situation. Vice Chair Castillo added that he hopes that people will provide the Commission with all the information it needs with regard to this important debate because at this time, we cannot afford to have one segment of our community completely disenfranchised. He concluded by stating that the Commission would appreciate as much information as possible from the public so that it can arrive at the best solution for this longstanding problem.
Vice Chair Sessions stated that he completely agrees with the statements made by Commissioner Kendall and Vice Chair Castillo. He said he believes everyone has been harmed in some way by framing the debate on crack cocaine sentencing in terms of the ratio between crack and powder cocaine. The Commission is indicating that this is not the debate; the debate is what is the appropriate penalty for crack cocaine. Vice Chair Sessions stated that one of the best ways to reach a conclusion on this debate is to compare all the elements and social consequences of crack cocaine with other illegal drugs. He added that this is a broad issue and that there are issues for comment that are almost overwhelming in number.
Vice Chair Sessions stated that he presumes that there are persons who are tremendously interested in this issue and will spend the next two months commenting on the proposal. He suggested that the public comment specifically address details such as specific enhancements and adjustments, as in mitigating role. Vice Chair Sessions stated that the impact on human beings is often most dramatically felt in the details. He requested that the public address these details as well as the broader question about crack as compared to other drugs. Vice Chair Sessions added that he hopes that people will refer to the Commission’s 1995 Report to the Congress on Cocaine Sentencing in formulating public comment. He asked that persons address those issues about which Congress was concerned because the Commission must directly respond to those concerns, and the Commission needs help with these important issues. Vice Chair Sessions concluded by asking that the public consider the history of this debate in providing public comment on solutions to the problem.
Chair Murphy then called for a voice vote on the motion to publish the proposal for a 60 day comment period, request public comment on retroactivity, and authorize staff to make technical and conforming changes. The motion passed unanimously.
Sentencing Alternatives
General Counsel Tetzlaff described the proposed amendment on sentencing alternatives. He stated that this amendment is an outgrowth from the Commission’s consideration of criminal history, which is one of the agenda priorities on a two year amendment cycle. The proposed amendment regarding sentencing alternatives would combine Zones B and C from the sentencing table by telescoping Zone C into Zone B. There are three options under this concept, and the intent is to allow those offenders who are presently in Zone C to have the benefits of those sentencing alternatives presently available under Zone B.
Option Two of the proposal has a slight modification or restriction: for offenders who fall at offense levels in which the minimum guideline range is eight months or more (which affects offenders at levels 11 and 12) no more than half the confinement may be in the form of home detention. In other words, at least half must be in a confinement setting other than home confinement, such as prison or a halfway house.
Option Three of the proposal limits the combining of Zone C with Zone B to only those offenders at levels 11 and 12 who are in criminal history Category I.
General Counsel Tetzlaff suggested the Commission consider a motion to publish the proposed amendment with the three options for a 60 day comment period, seek public comment on retroactivity, and authorize staff to make technical and conforming changes to the guidelines.
Vice Chair Steer so moved. Seconded by Vice Chair Castillo. The motion passed unanimously.
§5G1.3
General Counsel Tetzlaff stated that the Criminal Law Committee requested that the Commission review §5G1.3 (Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment) to consider expanding the scope of that guideline in order to give credit for prior discharged (completed) sentences, as well as prior undischarged sentences, either by changing the heading, making a substantive change to the guideline, or encouraging a structured departure. General Counsel Tetzlaff stated that there is also a circuit split regarding this issue.
General Counsel Tetzlaff stated that it would be appropriate for the Commission to consider a motion to publish the issue for comment for a 60 day period.
Vice Chair Steer so moved. Seconded by Vice Chair Sessions. The motion passed unanimously.
Retroactivity
General Counsel Tetzlaff then suggested that a motion would be in order to request public comment on whether to make retroactive any of those amendments published for comment in the Federal Register on November 27, 2001, and to provide for a 45 day comment period. That publication covered amendments dealing with cultural heritage, the Foreign Corrupt Practices Act, career offender treatment of 18 U.S.C. § 924(c) convictions, official victims, acceptance of responsibility, and the consent calendar.
Vice Chair Sessions moved to publish the issue for comment regarding retroactivity. Seconded by Vice Chair Steer. The motion passed unanimously.
Impact Analysis
General Counsel Tetzlaff then suggested that the Commission consider a motion to instruct staff to prepare a retroactivity impact analysis for criminal history, drugs, acceptance of responsibility, and any other such amendments which the staff believes require such analysis. General Counsel Tetzlaff stated that this motion was required by Rule 2.2 of the Rules of Practice and Procedure.
Lou Reedt stated that the staff would consider the impact of amendments to criminal history, drug guidelines, and acceptance of responsibility for all persons currently incarcerated who might be affected by a retroactive amendment.
Vice Chair Steer stated that if the Commission were to decide to make any of these amendments retroactive without further restriction, then this could potentially apply to any defendant who is still in prison. He stated that defendants could make a motion for a limited resentencing to get the benefit of that amendment. The Commission follows the policy statement contained in §1B1.10. Vice Chair Steer stated that the Commission has the authority to determine whether or not any reduction in sentences should be retroactive.
Chair Murphy remarked that any reduction would be separate from mandatory minimum penalties.
Vice Chair Steer moved to authorize the staff to perform the impact analysis. Seconded by Vice Chair Steer.
Vice Chair Steer stated that the procedure the Commission set in motion to authorize staff to perform an impact analysis should not be considered indicative of the view of the Commission or any Commissioner as to the merits of retroactivity.
The motion passed unanimously.
Chair Murphy then thanked those members of the public who had attended the meeting for their interest in the work of the Commission, and adjourned the meeting at 10:28 a.m.