9 February 2000
Source: http://www.access.gpo.gov/su_docs/aces/fr-cont.html

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[Federal Register: February 9, 2000 (Volume 65, Number 27)]
[Notices]
[Page 6434-6436]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09fe00-104]

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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY:  United States Sentencing Commission.

ACTION:  Notice of finalized policy development agenda.

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SUMMARY:  As part of its statutory authority and responsibility to
analyze sentencing issues, including operation of the federal
sentencing guidelines, and in accordance with Rule 5.2 of its Rules of
Practice and Procedure, the Commission proposed, in December 1999,
certain priorities as the focus of its policy development work,
including amendments to guidelines, policy statements, and commentary,
for the amendment cycle ending May 1, 2000. The Commission was
reconstituted in November 1999, in the middle of that amendment cycle.
Due to the resulting constraints of an abbreviated amendment cycle, the
Commission has proposed as its priorities for the amendment cycle
ending May 1, 2000 only those items the Commission might be able to
conclude by its statutory deadline of May 1.
    The Commission published a notice of these proposed priorities in
the Federal Register on December 8, 1999. See 64 FR 68,715, Dec. 8
,1999. After reviewing public comment received pursuant to this notice,
the Commission has decided to limit its current policy development
priorities principally to the following areas: (i) Implementation of
legislative directives and other high priority crime legislation
enacted by the 105th Congress for which guideline amendments were not
developed or finalized by the previous Commission; and (ii) resolution
of a limited number of high priority circuit conflicts in guideline
interpretation, with the goal of enhancing the consistency with which
the guidelines are applied.

FOR FURTHER INFORMATION CONTACT:  Michael Courlander, Public Affairs
Officer, Telephone: (202) 502-4590.

SUPPLEMENTARY INFORMATION:  Priorities.''The specific policy
development issues that comprise the Commission's finalized agenda are
as follows--

I. Legislative Directives

    The Commission has identified the implementation of the following
directives as a priority for this amendment cycle:
    (A) The No Electronic Theft (NET) Act of 1997--Congress directed
the Commission, under emergency amendment authority, to ensure that:
(1) The guideline penalties for intellectual property offenses are
sufficiently stringent to deter those crimes; and (2) the guidelines
pertaining to intellectual property offenses provide for consideration
of the retail value and quantity of infringed items.
    (B) The Telemarketing Fraud Prevention Act of 1998--Congress

[[Page 6435]]

directed the Commission, under emergency authority, to provide: (1)
Substantially increased penalties for persons convicted of
telemarketing offenses; (2) an additional sentencing enhancement if the
offense involved sophisticated means, including but not limited to
sophisticated concealment efforts; and (3) an additional sentencing
enhancement for cases in which a large number of vulnerable victims are
affected by a fraudulent scheme or schemes. The Commission promulgated
emergency amendments in September 1998 in response to this directive,
but they must be re-promulgated in this amendment cycle to be made
permanent.
    (C) The Wireless Telephone Protection Act of 1998--Congress
directed the Commission to review and, if appropriate, amend the
guidelines to provide an appropriate penalty for offenses involving the
fraudulent cloning of wireless telephones.
    (D) The Identity Theft and Assumption Deterrence Act of 1998--
Congress directed the Commission to review and, if appropriate, amend
the guidelines to provide an appropriate penalty for each offense under
18 U.S.C. 1028 (fraud in connection with identification documents).
    (E) The Protection of Children from Sexual Predators Act of 1998--
Congress directed the Commission to: (1) Provide a sentencing
enhancement for offenses relating to the transportation of individuals
for illegal sexual activity; (2) provide a sentencing enhancement if
the defendant used a computer in connection with a sexual offense
against a minor; (3) provide a sentencing enhancement if the defendant
knowingly misrepresented the defendant's identity in connection with a
sexual offense against a minor; (4) increase the penalties in any case
in which the defendant engaged in a pattern of activity involving the
sexual abuse or exploitation of a minor; and (5) amend the guidelines
to clarify that the term ``distribution of pornography'' in the
guidelines relating to distribution of child pornography applies to
distribution for monetary remuneration or for a non-pecuniary interest.

II. Other High Priority Crime Legislation

    The Commission will consider amendments to the sentencing
guidelines to implement the following additional high priority crime
legislation:
    (A) The Methamphetamine Trafficking Control Act of 1998--This Act
does not contain a directive, but it increased the penalties for
manufacturing, importing, or trafficking in methamphetamine by reducing
by one-half the quantity of methamphetamine required to trigger the
various mandatory minimum sentences in the drug statutes.
    (B) Firearms Legislation--In Public Law 105-386, Congress amended
18 U.S.C. Sec. 924(c) to: (1) Create a tiered system of sentencing
enhancement ranges, each with a mandatory minimum and presumed life
maximum, in cases in which a firearm is involved in a crime of violence
or drug trafficking offense (the pertinent minimum sentence being
dependent on whether the firearm was possessed, brandished, or
discharged); (2) change the mandatory minimum for second or subsequent
convictions under Sec. 924(c) from 20 to 25 years; and (3) broadly
define the term ``brandish.''
    In Public Law 105-277 (section 121 of the General Provisions),
Congress amended 18 U.S.C. 922 to prohibit an alien who is lawfully
present in the United States under a non-immigrant visa from possessing
or otherwise being involved in a firearms offense.

III. Circuit Conflicts

    As it has in the past, the Commission has also identified as a
priority the resolution of a number of conflicts among the circuit
courts on sentencing guideline issues. See Braxton v. United States,
500 U.S. 344 (1991). The Commission, working with the Criminal Law
Committee of the Judicial Conference, the United States Department of
Justice, and other interested participants in the federal criminal
justice system, has identified the following circuit conflict issues as
priorities for this amendment cycle:
    (A) Whether for purposes of downward departure from the guideline
range a ``single act of aberrant behavior'' (Chapter 1, Part A,
Sec. 4(d)) includes multiple acts occurring over a period of time.
Compare United States v. Grandmaison, 77 F.3d 555 (1st Cir. 1996)
(Sentencing Commission intended the word ``single'' to refer to the
crime committed; therefore, ``single acts of aberrant behavior''
include multiple acts leading up to the commission of the crime; the
district court should review the totality of circumstances); with
United States v. Marcello, 13 F.3d 752 (3d Cir. 1994) (single act of
aberrant behavior requires a spontaneous, thoughtless, single act
involving lack of planning).
    (B) Whether the enhanced penalties in Sec. 2D1.2 (Drug Offenses
Occurring Near Protected Locations or Involving Underage or Pregnant
Individuals) apply only when the defendant is convicted of an offense
referenced to that guideline or, alternatively, whenever the
defendant's relevant conduct included drug sales in a protected
location or involving a protected individual. Compare United States v.
Chandler, 125 F.3d 892, 897-98 (5th Cir. 1997) (``First, utilizing the
Statutory Index located in Appendix A, the court determines the offense
guideline section `most applicable to the offense of conviction.' ''
Once the appropriate guideline is identified, a court can take relevant
conduct into account only as it relates to factors set forth in that
guideline); with United States v. Clay, 117 F.3d 317 (6th Cir.), cert.
denied, 118 S. Ct. 395 (1997) (applying Sec. 2D1.2 to defendant
convicted only of possession with intent to distribute under 21 U.S.C.
841 (but not convicted of any statute referenced to Sec. 2D1.2) based
on underlying facts indicating defendant involved a juvenile in drug
sales).
    (C) Whether the fraud guideline enhancement for ``violation of any
judicial or administrative order, injunction, decree, or process''
(Sec. 2F1.1(b)(4)(B)) applies to falsely completing bankruptcy
schedules and forms. Compare United States v. Saacks, 131 F.3d 540 (5th
Cir. 1997) (bankruptcy fraud implicates the violation of a judicial or
administrative order or process within the meaning of
Sec. 2F1.1(b)(3)(B)); with United States v. Shadduck, 112 F.3d 523 (1st
Cir. 1997) (falsely filling out bankruptcy forms does not violate
judicial process since the debtor is not accorded a position of trust).
    (D) Whether sentencing courts may consider post-conviction
rehabilitation while in prison or on probation as a basis for downward
departure at resentencing following an appeal. Compare United States v.
Rhodes, 145 F.3d 1375, 1379 (D.C. Cir. 1998) (post-conviction
rehabilitation is not a prohibited factor and, therefore, sentencing
courts may consider it as a possible ground for downward departure at
resentencing); with United States v. Sims, 174 F.3d 911 (8th Cir. 1999)
(district court lacks authority at resentencing following an appeal to
depart on ground of post-conviction rehabilitation which occurred after
the original sentencing; refuses to extend holding regarding departures
for post-offense rehabilitation to conduct that occurs in prison;
departure based on post-conviction conduct infringes on statutory
authority of the Bureau of Prisons to grant good-time credits.).
    (E) Whether a court can base an upward departure on conduct that
was dismissed or uncharged as part of a plea

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agreement in the case. Compare United States v. Figaro, 935 F.2d 4 (1st
Cir. 1991) (allowing upward departure based on uncharged conduct) with
United States v. Ruffin, 997 F.2d 343 (7th Cir. 1993) (error to depart
based on counts dismissed as part of plea agreement).

IV. Technical and Conforming Amendments

    The Commission expects to consider several minor technical or
conforming amendments necessary for maintaining the technical accuracy
Guidelines Manual.

Miscellaneous

    Reports, proposed amendments, and other information pertaining to
the final policy development priorities described in this notice may be
accessed through the Commission's website at www.ussc.gov.
    The Commission received and considered public comment concerning
other issues that the Commission should include in its priorities for
this amendment cycle. The Commission may address these issues in the
future.

    Authority: 28 U.S.C. 994(a), (o); USSC Rules of Practice and
Procedure 5.2.

Diana E. Murphy,
Chair.
[FR Doc. 00-2984 Filed 2-8-00; 8:45 am]
BILLING CODE 2211-01-P
