[Federal Register: August 16, 2000 (Volume 65, Number 159)]
[Notices]
[Page 50034-50037]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16au00-121]
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UNITED STATES SENTENCING COMMISSION
Sentencing Guidelines for United States Courts
AGENCY: United States Sentencing Commission.
ACTION: Notice of (1) retroactive application of certain amendments
submitted to Congress on May 1, 2000; (2) final policy priorities for
amendment cycle ending May 1, 2001; and (3) request for comment on
proposed criteria for selecting circuit conflict issues as policy
priorities.
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SUMMARY: (1) Retroactive Application.--The Commission has reviewed
amendments submitted to Congress on May 1, 2000, that may result in
lower guideline ranges and has designated three such amendments for
inclusion in
[[Page 50035]]
policy statement Sec. 1B1.10 (Reduction in Term of Imprisonment as a
Result of Amended Guideline Range). See amendment following section
designated ``Authority''.
(2) Final Policy Priorities.--In June, 2000, the Commission
published a notice of possible policy priorities for the amendment
cycle ending May 1, 2001. See 65 FR 113 (June 12, 2000). After
reviewing public comment received pursuant to this notice, the
Commission has identified its policy priorities for the upcoming
amendment cycle. The Commission hereby gives notice of these policy
priorities.
(3) Criteria for selecting circuit conflict issues.--The Commission
has developed a set of criteria to guide its work in selecting, as
policy priorities for any given amendment cycle, issues that involve
conflicting interpretations of guideline language among the circuit
courts. The Commission invites comment on this set of criteria.
ADDRESSES: Send comments to: United States Sentencing Commission, One
Columbus Circle, NE, Suite 2-500 South, Washington, DC 20002-8002,
Attention: Public Information--Comment on Criteria.
FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs
Officer, Telephone: (202) 502-4590.
SUPPLEMENTARY INFORMATION: (1) Retroactive Application.--The United
States Sentencing Commission is an independent commission in the
judicial branch of the United States Government and is empowered by 28
U.S.C. Sec. 994(a) to promulgate sentencing guidelines and policy
statements for federal sentencing courts. Section 994 also directs the
Commission periodically to review and revise promulgated guidelines and
authorizes it to submit guideline amendments to the Congress not later
than the first day of May each year. See 28 U.S.C. Secs. 994(o), (p).
In connection with this promulgation authority, the Commission also is
required to determine which amendments submitted to Congress may result
in a reduced guideline range. See 28 U.S.C. Sec. 994(u); Sec. 1B1.10
(Reduction in Term of Imprisonment as a Result of Amended Guideline
Range). After identifying any such amendment, the Commission determines
whether the amendment should be given retroactive effect based on
factors such as the purpose of the amendment, the magnitude of the
change in the guideline range made by the amendment, and the difficulty
of applying the amendment retroactively to determine an amended
guideline range. See Sec. 1B1.10, comment. These amendments are then
included in the list of amendments in Sec. 1B1.10(c) that trigger a
defendant's eligibility for consideration of a reduced sentence
pursuant to 18 U.S.C. Sec. 3582(c)(2). (Inclusion of an amendment in
Sec. 1B1.10(c) ``does not entitle a defendant to a reduced term of
imprisonment as a matter of right.'' Sec. 1B1.10, comment. (backgr'd.))
The Commission has analyzed the amendments submitted to Congress on
May 1, 2000, and has designated three such amendments for inclusion in
policy statement Sec. 1B1.10. Those amendments are as follows:
(a) Amendment 591, which clarifies that a sentencing court must
apply the offense guideline referenced in the Statutory Index for the
statute of conviction unless the case falls within the limited
``stipulation'' exception set forth in Sec. 1B1.2(a). Accordingly, in
order for the enhanced penalties in Sec. 2D1.2 (Drug Offense Occurring
Near Protected Locations or Involving Underage or Pregnant Individuals)
to apply, the defendant must be convicted of an offense referenced to
that guideline.
(b) Amendment 599, which clarifies under what circumstances a
defendant sentenced for a violation of 18 U.S.C. Sec. 924(c) in
conjunction with a conviction for other offenses may receive a weapon
enhancement contained in the guidelines for those other offenses. This
amendment directs that no guideline weapon enhancement should be
applied when determining the sentence for the crime of violence or drug
trafficking offense underlying the 18 U.S.C. Sec. 924(c) conviction,
nor for any conduct with respect to that offense for which the
defendant is accountable under Sec. 1B1.3 (Relevant Conduct).
(c) Amendment 606, which corrects a typographical error in the
Chemical Quantity Table in Sec. 2D1.11 (Unlawfully Distributing,
Importing, Exporting, or Possessing a Listed Chemical) regarding
certain quantities of Isosafrole and Safrole by changing those
quantities from grams to kilograms.
(2) Final Policy Priorities.--As part of its statutory authority
and responsibility to analyze sentencing issues, including operation of
the federal sentencing guidelines, the Commission has identified
certain priorities as the focus of its policy development work,
including possible amendments to guidelines, policy statements, and
commentary, for the amendment cycle ending May 1, 2001. While the
Commission intends to address these priority issues, it recognizes that
other factors, such as the enactment of legislation requiring
Commission action, may affect the Commission's ability to complete work
on all of the identified policy priorities by the statutory deadline of
May 1, 2001. The Commission may address any unfinished policy
development work from this agenda during the amendment cycle ending May
1, 2002.
The specific policy priorities for the amendment cycle ending May
1, 2001, are as follows: (A) An economic crimes package, which may
include (i) a consolidation of the theft, property destruction, and
fraud guidelines to provide uniformity of applicable commentary and
consistency in application; (ii) a revised loss table for the
consolidated and related guidelines; (iii) a revised loss definition
that is more consistent across offense types, is easier to use, and
addresses issues raised by case law and guideline application; and (iv)
conforming changes to other guidelines that refer to the fraud and
theft loss tables; (B) money laundering; (C) counterfeiting of bearer
obligations of the United States; (D) further responses to the
Protection of Children from Sexual Predators Act of 1998, Pub. L. 105-
314; (E) firearms, with particular focus on the issue of the
involvement of multiple firearms in an offense; (F) nuclear, chemical,
and biological weapons, and, possibly, related national security
issues; (G) the implementation of any crime legislation enacted during
the second session of the 106th Congress warranting a Commission
response; (H) the initiation of a review of the guidelines relating to
criminal history and the computation of criminal history points under
those guidelines; (I) the initiation of an analysis of the operation of
the ``safety valve'' guideline, Sec. 5C1.2 (Limitation on Applicability
of Statutory Minimum Sentences in Certain Cases); (J) other guideline
amendments the Commission determines necessary for proper operation of
the sentencing guideline system; and (K) the resolution of conflicts
among the circuit courts on the following sentencing guideline issues:
(i) Whether admissions made by the defendant during a guilty plea
hearing, without more, can be considered ``stipulations'' under
Sec. 1B1.2(a). Compare, e.g., United States v. Nathan, 188 F.3d 190,
201 (3d Cir. 1999) (statements made by defendants during the factual-
basis hearing for a plea agreement do not constitute ``stipulations''
for the purpose of this sentencing enhancement, and a statement is a
stipulation only if it is part of a defendant's written plea agreement
or if both the government and the defendant explicitly agree at a
factual-basis hearing that the facts being placed on the record are
stipulations that might subject a defendant to
[[Page 50036]]
Sec. 1B1.2(a)), with United States v. Loos, 165 F.3d 504, 508 (7th Cir.
1998) (the objective behind Sec. 1B1.2(a) is best answered by reading
``stipulation'' to mean any acknowledgment by the defendant that he
committed the acts that justify use of the more serious guideline, not
in a formal agreement).
(ii) Whether the four-level adjustment for the use of a dangerous
weapon during an aggravated assault is impermissible double-counting in
a case in which the weapon is not ``inherently dangerous.'' Compare,
e.g., United States v. Williams, 954 F.2d 204, 205-08 (4th Cir. 1992)
(applying the dangerous weapon enhancement under Sec. 2A2.2(b)(2)(B)
for defendant's use of his chair as a dangerous weapon did not
constitute impermissible double counting, even though defendant's use
of the chair as a dangerous weapon increased his offense level twice:
first, by triggering the application of the aggravated assault
guidelines, and second, as the basis for the four-level enhancement),
with United States v. Hudson, 972 F.2d 504, 506-07 (2d Cir. 1992) (if
the use of a weapon has resulted in a higher base offense level because
the weapon caused the crime to be classified as an aggravated assault,
a district court is not permitted to enhance a base offense level
pursuant to Sec. 2A2.2(b) for the use of the same non-inherently
dangerous weapon (such as an automobile); a sentence may be enhanced
pursuant to Sec. 2A2.2(b) if an aggravated assault is accomplished with
an inherently dangerous weapon such as a gun).
(iii) Whether interest due but unpaid on a loan can be included in
the amount of victim's loss for purposes of calculating the offense
level under Sec. 2F1.1. Compare, e.g., United States v. Sharma, 190
F.3d 220, 228 (3d Cir. 1999) (interest due but unpaid on a fraudulently
obtained loan is included in the amount of the victim's loss for
purposes of calculating the offense level under Sec. 2F1.1), with
United States v. Hoyle, 33 F.3d 415, 419 (4th Cir. 1994) (bargained-for
interest on a fraudulently obtained student loan is not included in
loss calculation, and the interest represented by the time-value of
money lost by lenders should be excluded).
(iv) Whether the offense level can be calculated using intended
loss amounts without regard to any considerations of impossibility or
economic reality. Compare, e.g., United States v. Robinson, 94 F.3d
1325, 1328 (9th Cir. 1996) (intended loss is used in the offense-level
calculation under Sec. 2F1.1 even though the actual loss is zero or
even if the loss is not realistically possible), with United States v.
Ensminger, 174 F.3d 1143 (10th Cir. 1999) (an intended loss under
Sec. 2F1.1 cannot exceed the loss a defendant in fact could have
occasioned if the defendant's fraud had been entirely successful).
(v) Whether the fraud guideline enhancement for an offense that
involved a misrepresentation that the defendant was acting on behalf of
a charitable, educational, religious or political organization, or a
government agency (Sec. 2F1.1(b)(4)(A)) applies in the absence of
exploitative conduct. Compare, e.g., United States v. Marcum, 16 F.3d
599 (4th Cir. 1994) (enhancement is appropriate even if the defendant
did not misrepresent his authority to act on behalf of a particular
organization, but rather only misrepresented that he was conducting an
activity wholly on behalf of such organization), with United States v.
Frazier, 53 F.3d 1105 (10th Cir. 1995) (limiting the application of
Sec. 2F1.1(b)(4) to cases in which the defendant exploits his victim by
claiming to have authority which in fact does not exist rather than
using funds to which an organization was entitled for unauthorized
purposes).
(vi) Whether a crime committed after the commission of the instant
federal offense of felon in possession of a firearm, but for which the
defendant is sentenced prior to sentencing on the federal charge, is
counted as a prior felony conviction in determining the defendant's
base offense level. Compare, e.g., United States v. Pugh, 158 F.3d
1308, 1311 (D.C. Cir. 1998) (the guideline language is ambiguous but
the commentary language is clear, thereby counting prior felony
conviction that was sentenced prior to sentencing for the instant
federal offense, even if the defendant committed the prior felony
offense after the instant federal offense), with United States v.
Barton, 100 F.3d 43, 46 (6th Cir. 1996) (defendant's state drug crime,
which was committed after federal offense of being felon in possession
of firearm, could not have been counted as prior felony conviction
under Sec. 2K2.1(a), even though defendant was convicted and sentenced
on state offense prior to sentencing on federal charge; only those
convictions that occur prior to the commission of the firearm offense
may be counted against the defendant in determining the base offense
level).
(vii) Whether a mitigating role adjustment (Sec. 3B1.2) can be
precluded automatically in a single defendant drug courier case if the
courier's base offense level is determined solely by the quantity
personally handled by the courier and that quantity constitutes all of
the courier's relevant conduct. Compare, e.g., United States v. Isaza-
Zapata, 148 F.3d 236, 241 (3d. Cir. 1998) (court specifically rejects
argument that a defendant not charged with concerted activity and whose
base offense level corresponds only to amounts defendant personally
handled is precluded from a Sec. 3B1.2 downward adjustment; defendant
pleaded guilty to importing heroin and sentencing was based on amounts
in his personal possession, but if he can meet the requirements of
Sec. 3B1.2 he is entitled to the reduction upon appropriate proof;
specifically disagrees with the Seventh Circuit), with United States v.
Isienyi, 207 F.3d 390 (7th Cir. 2000) (defendant pleaded to one count
of importing a specified quantity of heroin; defendant is ineligible
for a mitigating role adjustment when his offense level consisted only
of amounts he personally handled).
(viii) Who constitutes the ``victim'' under section 3D1.2(a) in
child pornography cases and for purposes of grouping. Compare, e.g.,
United States v. Tillmon, 195 F.3d 640, 643 (11th Cir. 1999) (for
purposes of grouping, the victim of child pornography is the child or
children depicted and each child constitutes a separate group,
rejecting the concept that society at large was the victim), with
United States v. Toler, 901 F.2d 399 (4th Cir. 1990) (society as a
whole is the victim of child pornography trafficking offenses).
(ix) Whether money laundering and fraud convictions should be
grouped together for sentencing under Sec. 3D1.2. Compare, e.g., United
States v. Cusumano, 943 F.2d 305, 313 (3d Cir. 1991), cert. denied, 502
U.S. 1036 (1992) (affirming the district court's decision to group
money laundering with other offenses in a case in which ``the evidence
demonstrated that the unlawful kickbacks, the embezzlement, the
conspiracy, the Travel Act violations and the money laundering were all
part of one scheme to obtain money'' from an employee benefit fund),
with United States v. Napoli, 179 F.3d 1 (2d Cir.), cert. denied, 120
S. Ct. 1176 (1999) (fraud and money laundering harm different victims;
the respective guidelines measure the harms differently and therefore
the two offenses cannot be grouped).
(x) Whether a defendant's status as a deportable alien and his
consent to deportation is a ground for a downward departure during
sentencing, notwithstanding the lack of a colorable defense to
deportation. Compare, e.g., United States v. Galvez-Falconi, 174 F.3d
255, 260 (2d Cir. 1999) (must present a colorable, non-frivolous
defense to deportation, such that the act
[[Page 50037]]
of consenting to deportation carries with it unusual assistance to the
administration of justice; the act of consenting to deportation, alone,
would not constitute a circumstance that distinguishes a case as
sufficiently atypical to warrant a downward departure), with United
States v. Smith, 27 F.3d 649, 655 (D.C. Cir. 1994) (downward departure
may be appropriate in a case in which the defendant's status as a
deportable alien is likely to cause a fortuitous increase in the
severity of his sentence).
(xi) Whether collateral consequences that a deportable alien may
incur, such as likelihood of deportation, ineligibility for minimum
security facilities and absence from family in Mexico, constitute a
basis for downward departure. Compare, e.g., United States v. Restrepo,
999 F.2d 640, 647 (2d Cir. 1993) (erroneous to view deportation as so
harsh as to warrant a reduction in the period of imprisonment
prescribed by the Guidelines), with United States v. Farouil, 124 F.3d
838, 847 (7th Cir. 1997) (district court is free to consider whether
status as a deportable alien has resulted in unusual or exceptional
hardship in conditions of confinement).
(3) Criteria for Selecting Circuit Conflict Issues.--The Commission
has developed the following set of criteria to guide its work in
selecting, as policy priorities for any given amendment cycle, issues
that involve conflicting interpretations of guideline language among
the circuit courts:
Commission Policy Regarding Resolution of Guideline Circuit Conflicts
The United States Sentencing Commission will consider the
following non-exhaustive list of factors in deciding whether a
particular guideline circuit conflict warrants resolution by the
Commission: Potential defendant impact; potential impact on
sentencing disparity; number of court decisions involved in the
conflict and variation in holdings; and ease of resolution, both as
a discrete issue, and in the context of other agenda matters
scheduled for consideration during the available amendment cycle.
Commentary
The Commission has the authority and responsibility periodically
to amend previously issued guidelines, policy statements, or
commentary for the purpose of addressing and resolving conflicting
interpretations of Guidelines Manual language by the Federal courts,
including conflicts among the courts of appeals. See 28 U.S.C.
Secs. 991(b)(1)(B), 994(o), (p); Braxton v. United States, 500 U.S.
344 (1991). The purposes of amendments of this nature include (1)
promoting a more uniform body of guideline-related law, (2) reducing
unwarranted sentencing disparity, and (3) in general, achieving more
fully the purposes of sentencing and the goals of the Sentencing
Reform Act.
The Commission believes that resolution of outstanding circuit
conflicts necessitates a balanced consideration of the factors set
forth in this policy, along with other factors that may be relevant
to a particular issue. In applying these criteria to particular
issues, the Commission welcomes formal and informal communications
from members of the criminal justice system and any other interested
persons. Because of the press of other responsibilities, the
Commission anticipates that, in any given year, it will be able to
address successfully only a limited number of higher priority
conflict issues.''.
The Commission invites public comment on these criteria,
specifically regarding whether any additional criteria should be
considered.
Authority: 28 U.S.C. Sec. 994(a), (o), (p), (u); USSC Rules of
Practice and Procedure 5.2.
Diana E. Murphy,
Chair.
Amendment: Section 1B1.10(c) is amended by striking ``and 516.''
and inserting ``516, 591, 599, and 606.''.
Reason for Amendment: This amendment expands the listing in
Sec. 1B1.10(c) to implement the directive in 28 U.S.C. Sec. 994(u)
regarding guideline amendments that may be considered for retroactive
application. Inclusion of an amendment in Sec. 1B1.10(c) triggers a
defendant's eligibility for consideration of a reduced sentence
pursuant to 18 U.S.C. Sec. 3582(c)(2), although such inclusion does not
entitle a defendant to reduced sentence as a matter of right.
[FR Doc. 00-20780 Filed 8-15-00; 8:45 am]