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UNITED STATES SENTENCING COMMISSION 

WASHINGTON, D.C. 

PUBLIC HEARING 

TUESDAY, MARCH 20, 2007 

 The Commission convened at the 

Thurgood Marshall Federal Judiciary Building, FJC 

Training Rooms A-C, Concourse Level, One Columbus 

Circle, N.E., Washington, D.C. at 9:00 a.m., JUDGE 

RICARDO H. HINOJOSA, Chair, presiding. 

COMMISSION MEMBERS PRESENT: 

JUDGE RUBEN CASTILLO 

CHIEF JUDGE WILLIAM K. SESSIONS, III 

JOHN R. STEER 

DABNEY FRIEDRICH 

MICHAEL E. HOROWITZ 

BENTON J. CAMPBELL 

FREE STATE REPORTING, INC. 

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PANELISTS PRESENT: 

JONATHAN WROBLEWSKI, Acting Director 

Office of Policy and Legislation 

Criminal Division 

United States Department of Justice 

MIRIAM CONRAD, Federal Public Defender 

District of Massachusetts, New Hampshire 

and Rhode Island 

ELISABETH ERVIN, Deputy Chief Probation Officer 

Western District of North Carolina 

Member, United States Sentencing Commission Probation 

Officers Advisory Group 

JOHN C. RICHTER, Chairman 

Attorney General's Advisory Subcommittee on Sentencing 

United States Attorney 

Western District of Oklahoma 

United States Department of Justice 

PAUL ALMANZA, Deputy Chief 

Department of Justice Criminal Division 

Child Exploitation and Obscenity Section 

JOE KOEHLER, Assistant United States Attorney 

District of Arizona 

JOHN MORTON, Deputy Chief 

Department of Justice 

Criminal Division, Domestic Security Section 

JON M. SANDS 

Federal Public and Community Defenders 

AMY BARON-EVANS 

Federal Public and Community Defenders 

DAVID DEBOLD, Chair 

United States Sentencing Commission Practitioners 

Advisory Group 

HON. REGGIE B. WALTON, Member 

United States Judicial Conference 

Committee on Criminal Law 

ERIC E. STERLING, President 

Criminal Justice Policy Foundation 

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PANELISTS PRESENT (Continued): 

DEBORAH SMALL 

Break the Chains 

ANNE E. BLANCHARD 

Federal Community and Public Defenders 

MARY PRICE 

Families Against Mandatory Minimums and Practitioners 

Advisory Group 

STEPHEN SALTZBURG 

American Bar Association 

SHAWN T. DRISCOLL 

American Trucking Association 

PETER J. PANTUSO 

American Bus Association 

FREDERIC HIRSCH 

Entertainment Software Association 

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I N D E X

ITEM 

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Introductory Remarks. . . . . . . . . . . . . . 5

Panel One - Criminal History Offenses 

 Jonathan Wroblewski . . . . . . . . 7

 Miriam Conrad . . . . . . . . . 13

 Elisabeth Ervin . . . . . . . . . 28

Question and Answer . . . . . . . . . . . . . . 32

Panel Two - Proposed Amendments for 2007 

 John C. Richter . . . . . . . . . . . 53

 Jon M. Sands . . . . . . . . . . . 68

 Amy Baron-Evans . . . . . . . . . . . 73

 David Debold . . . . . . . . . . . 90

Question and Answer . . . . . . . . . . . . . . 105

Panel Three - Proposed Amendments for 2007 

 Hon. Reggie B. Walton . . . . . . . . 120

Question and Answer . . . . . . . . . . . . . . 125

Panel Four - Community Interest Representatives 

 Stephen Saltzburg. . . . . . . . . . . 135

 Mary Price . . . . . . . . . 139

 Eric E. Sterling . . . . . . . . . 145

 Deborah Small . . . . . . . . . 150

 Anne E. Blanchard . . . . . . . . . 156

Question and Answer . . . . . . . . . . . . . . 160

Panel Five - Industry Representatives 

 

 Shawn T. Driscoll. . . . . . . . . . . 186

 Peter J. Pantuso . . . . . . . . . . . 190

 Frederic Hirsch . . . . . . . . . . . 196

Question and Answer . . . . . . . . . . . . . . 204

Closing Remarks . . . . . . . . . . . . . . 210

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P R O C E E D I N G S

(9:00 a.m.) 

 CHAIR HINOJOSA: Groups and individuals who 

appear before the Commission at our public hearings and 

who work with the Commission know that it is even more 

difficult than it actually is. Because it is through 

comments from individuals from different background and 

different viewpoints that the Commission is better able 

to satisfy its statutory requirements with regards to 

promulgation and the amendment of guidelines. And so, 

we will say that not only the public statements that 

are made, but the written statements that are 

submitted, as well as the continued help that we have 

from so many comments from so many of today's 

participants, our job becomes easier from the 

standpoint of having enough input into the process and, 

therefore, facilitating the Commission's ability to 

comply with the statutory requirements. 

 This morning, we are going to start with 

panel on criminal history. We are very fortunate with 

today's panel, with this morning's panel, as we are 

with all the other panels that we do have, individuals 

who have great experience on the particular subject or 

subjects that they will be addressing. 

 We have Mr. Jonathan Wroblewski, who is the 

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Acting Director of the Office of Policy and Legislation 

in the Criminal Division of the U.S. Department of 

Justice. He has been a prosecutor with the Civil 

Rights Division of Department of Justice, where he 

investigated and prosecuted criminal civil rights cases 

in federal district courts throughout the United 

States. He has been a member of the faculty at 

National Law Center at GW University and its George 

Mason University School of Law. 

 Ms. Miriam Conrad is the Federal Public 

Defender for the District of Massachusetts, New 

Hampshire and Rhode Island. She joined the Boston 

Federal Public Defender's Office in 1992 as an 

Assistant Federal Public Defender. And her background 

and the expertise that she brings, she has tried cases 

charging everything from RICO murder to union 

corruption. In 2001, she received the Boston Bar 

Association's John G. Brooks Award for representation 

of indigent clients. 

 Elisabeth Ervin was appointed to be a U.S. 

Probation Officer for the Western District of North 

Carolina in September of 1991. She has worked as a 

U.S. Probation Officer from 1991 until 1995 and has 

been a sentencing guidelines specialist from '95 to the 

year 2000. Since 2000, Ms. Ervin has been a 

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Supervisory Probation Officer for the Asheville Presentencing Pretrial Units and she has served as a 

district representative for a pro hac advisory group 

from 1995 until the year 2000. 

 So we thank you for being here. We'll start 

with Mr. Wroblewski and we'll go down the line. And 

then we will, hopefully, have some time for questions 

and answers. 

 MR. WROBLEWSKI: Chair Hinojosa, members of 

the Commission, thank you all very much for having me 

today. I appreciate the opportunity to be here and 

participate in this hearing. And it's a special treat 

to as a former employee, Commission employee, to be 

part of this hearing. 

 Also, if I may, I'd like to take this 

opportunity to thank the Commission and especially the 

staff for all the work that you do year in and year out 

putting together the data on federal sentencing. 

 One of the jobs of my office is to try to 

provide the leadership of the Criminal Division with 

information on what's happening in the federal criminal 

justice system. And to be perfectly frank, that job 

would be tremendously difficult without the 

Commission's data, data sets, resources on federal 

sentencing statistics. We know how much hard work goes 

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into that every year. We very much appreciate it and 

we also especially appreciate the work that the staff 

did this year in accelerating the release of the 2007 

data sets. So thank you very much for that. 

 Now, to criminal history. We're going to be 

talking in the next 45 minutes or so about a variety of 

different aspects of criminal history. We want to 

leave you with two thoughts. 

 First, given the tremendous challenges the 

Commission, that the original Commission faced, and 

this Commission continues to face in writing criminal 

history rules, we think -- and these challenges are 

both technical challenges and policy challenges -- we 

think that criminal history guidelines do a very, very 

good job of creating a workable system that identifies 

those offenders who have the greater risks of 

recidivism, and then provide proportionately, 

progressively and proportionately increasing punishment 

as that risk increases. So, in a more simple way, if I 

may say it, we think the criminal history guidelines 

are doing a very good job at achieving the purposes of 

sentencing that were meant for them. 

 The second point we'd like to make is that in 

November at the Commission's Roundtables on Criminal 

History, there was a lot of discussion about excluding 

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additional offenses from the criminal history score. 

We think that before the Commission does that, we think 

it should be very confident that only if the criminal 

history, resulting criminal history score will better 

predict risk of recidivism, should additional offenses 

be excluded. The existing research suggests that 

that's not the case; that excluding more offenses will 

not improve the ability of criminal history score to 

identify those offenders who carry a greater risk of 

recidivism. But nonetheless, we think that additional 

research ought to be done and that only if that 

additional research and information shows that the 

criminal history score will improve by excluding, 

should such exclusion happen. 

 What I'd like to do for the next few minutes 

is just expand a little bit on each of these two 

points. First, the challenges facing the Commission, 

back when it was first putting together a criminal 

history score, this Commission, because it's a federal 

commission, needs to account, and needed back in 1986 

and 1987 to account, for criminal history in all 50 

states. It needed to account for 50 different criminal 

codes, 50 different sentencing systems, 50 different 

sets of corrections laws. It needed to account for 

thousands and thousands of different prosecution 

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offices and their charging and plea practices. And it 

also needed to account and take into the consideration 

the fact that there are significant data issues with 

criminal history, that the data sets, the criminal 

history data sets are often incomplete. Those were 

very, very significant technical challenges. 

 In addition, the Commission faced significant 

policy challenges. In particular, the Commission was 

charged, under the purposes of sentencing laid out in 

3553, with trying to create a criminal history score 

that identified those offenders who carry a greater 

risk of recidivism. That is a very very difficult 

task. 

 In addition, it was charged with trying to 

provide additional punishment for offenders who commit 

additional crimes and despite their involvement with 

the criminal justice system, nonetheless commit more 

crimes. That's just punishment purpose of sentencing. 

 Now, given those challenges, what is our 

experience and what does the research show? The 

research shows and the experience shows this thing is 

workable. That remarkably, most probation officers, 

most prosecutors, most judges, most defense attorneys, 

in the vast, vast majority of cases, given all of these 

challenges, are able to calculate the criminal history 

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score readily and are able to use that score with 

offense level score to find an appropriate sentence. 

 Yes, there's litigation on the margins and we 

can talk about that some, I'm sure, over the next few 

minutes. But overall, in the vast majority of cases, 

the system is workable and the criminal history score 

is calculated and, remarkably, the criminal history 

score provides a good indicator of the risk of 

recidivism. And the best indicator for that is the 

Commission's own research of recidivism studies that it 

completed just a few years ago. 

 There is one graph that sticks out in my 

mind, and I'm sure that you're all aware of that, and 

that is that the stair step graph that shows for each 

additional criminal history point, the risk of 

recidivism increases. The Commission's research, which 

was extensive, and which I think has been praised by 

people on all sides of the spectrum, show that the 

criminal history score is a very, very good indicator 

of the risk of recidivism. Point by point, as the 

criminal history score increases, the risk of 

recidivism increases. 

 So again, the overall point of that is that 

while there are concerns that the margins, and we're 

not saying that the Commission should not add some 

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commentary and do other things to try to make the 

system more workable, overall, the system is very 

workable and the system does a very good job at 

achieving the purposes of sentencing, specifically, the 

incapacitative purpose of providing original prison 

sentences for those who create, those who have a 

greater risk of recidivism. 

 Now, let me talk about the second point a 

little bit. Again, back in the November during the 

roundtable discussions, there were many who suggested 

that additional offenses ought to be excluded from the 

criminal history score. And I suggest, and I suspect 

that my sister from Massachusetts will be recommending 

that to you today. I think that, and the Department 

believes, that in considering that, we should be guided 

and the Commission ought to be guided, again, by the 

purposes of sentencing and what the research shows. 

 The existing research suggests that excluding 

additional offenses will not make the criminal history 

score better at identifying those with higher risk of 

recidivism. And let me point to a couple of specifics. 

 The Commission did some additional research 

beyond the general recidivism studies that looked at 

certain low end criminal history scores. And what they 

found, what the Commissioner's research found, was that 

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those offenders who have a criminal history score of 

zero, but who nonetheless have some convictions that 

are currently excluded, that those exclusions actually 

do a very good job of identifying low risk, low 

recidivism risk offenders. In other words, the current 

exclusions seem to be working and seem to help identify 

those low risk offenders. 

 The research, though, also showed that those 

offenses that are not excluded and those offenders who 

have a criminal history point of one, rather than zero, 

do in fact have a significantly higher rate of 

recidivism. And we think before the Commission does 

anything to exclude additional offenses, whether that 

be minor offenses or through an expanded, related 

offenses definition, we think the Commission ought to 

be very confident that it is not making matters worse 

in terms of identifying those offenders with a higher 

risk of recidivism. 

 With that, I think I'll conclude and I'd be 

happy to answer any questions that you have. 

 CHAIR HINOJOSA: We'll turn to Mr. 

Wroblewski's sister, Ms. Conrad. 

 (Laughter.) 

 MS. CONRAD: That reminds me of clients when 

I was a state public defender who used to say, I didn't 

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know that prosecutor was your brother. 

 (Laughter.) 

 MS. CONRAD: Thank you so much for giving me 

the opportunity to be here. My name is Miriam Conrad, 

Federal Public Defender for Massachusetts, New 

Hampshire and Rhode Island. 

 And I think what I'm really, it really is 

such an incredible opportunity for me to be here after 

practicing criminal defense law in federal court for 15 

years now, it makes me sort of think of the Commission 

as this book, as opposed to some people that we can 

actually talk to and share our views and our 

experiences with. So this is really a very special 

occasion for me. 

 I also bring to this occasion my experience 

as a state public defender and a sense of how things 

play out, not just in federal court based on individual 

criminal records, but also in state court in the hustle 

bustle of the busy state district courts where 

misdemeanors are frequently resolved rather quickly. 

 I'm going to focus my remarks on the two 

issues published for comment, one on minor offenses and 

second on related offenses and, primarily, on minor 

offenses. 

 It seems to me that as it currently stands, 

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the minor offenses under excludes certain types of 

convictions. The first area -- we have proposed two 

separate proposals in our letter to the Commission. 

The first proposal is to move all of the offenses 

listed in the first category, that is, those that are 

counted unless they resulted in a sentence of at least 

one year probation or 30 days in jail to the second 

category, that is, making all of those listed minor 

offenses excluded, regardless of what the sentence was. 

 In addition, and we have added a number of 

offenses to the list of excluded offenses and broadened 

the category that I think is particularly troubling, 

which is the category of motor vehicle offenses. As it 

currently stands, minor offenses lists driving on a 

suspended license. But there are certain common motor 

vehicle offenses that are not listed and that, for 

example, in Massachusetts anyway, in my experience, are 

counted. Such as, driving without insurance. It seems 

to me that driving without insurance is certainly no 

more serious, no more reflective of a risk of 

recidivism, than driving on a suspended license. The 

same is true of driving an unregistered motor vehicle. 

 Those offenses, currently, are not 

specifically excluded. And we are proposing whether, 

both in proposal one and in proposal two, that all 

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motor vehicle offenses be excluded regardless, except 

for -- excuse me, except for drunk driving or operating 

under the influence or by whatever name it's known in 

the particular jurisdiction. And that those be 

excluded regardless of the sentence that is imposed. 

 The second proposal that we have is a 

narrower proposal, if you will. And that is to move 

certain offenses to the second category, that is, those 

that are always excluded, regardless of the sentence 

that is imposed, including motor vehicle offenses but 

leaving a few we have proposed as our alternative; 

resisting arrest, false information to a police 

officer, the types of offenses that involve contact 

with the police, perhaps a failure to obey the police 

in some way. And leaving those as offenses that are 

counted, if they meet certain criteria. 

 With respect to the criteria that we would 

propose applying to those offenses, we would suggest 

narrowing the types of sentences that would result in 

counting. And this is where my experience, as a state 

public defender, I would suggest, comes in. As it now 

stands, the 4A1.2(c)(1) offenses are counted if they 

result in a sentence of probation of at least one year. 

 In my experience, that is a default sentence. There 

essentially are very rarely sentences imposed of 

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probation of less than one year. 

 The alternative of 30 days imprisonment is 

one that sweeps into it situations where a defendant is 

financially unable to post bail and remains in jail, 

perhaps pending some other disposition, and winds up, 

the other case is dismissed, the Commonwealth -- the 

government, excuse me -- Commonwealth, I'm showing my 

Massachusetts background -- the prosecution can't go 

forward for whatever reason, it can't prove the case, 

it's dismissed, the defendant takes a time served 

sentence on the driving after suspension, for example. 

 That conviction then, as it currently is written in 

4A1.2(c), will count. 

 I think that changing the minimum sentence 

before one of those (c)(1) offenses will count to at 

least 60 days would better serve the purpose of 

capturing something that is truly a significant 

offense, perhaps a repeat offender or something of that 

nature. 

 Now why does all of this matter? Why are we 

tinkering with these 30 days versus 60 days probation 

versus not probation? Since, after all, we do have 

4A1.3 and a judge can always depart downward, if the 

judge feels that the sentence is one, or that the 

criminal history is one that over represents the 

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defendant's actual risk of recidivism. The problem 

comes up in two contexts, primarily. 

 One is safety valve. And the second is 

career offender. Now, I realize career offender is 

something the commission will be taking up at a later 

date and we look forward to the opportunity to 

participate in that. But, for example, 

resisting arrest, at this point, in Massachusetts, is 

counted as a career offender predicate and can increase 

a defendant's criminal, excuse me, guideline range, 

five fold in part, and I'll get to this in a minute, 

because under Massachusetts law, it's punishable by 

more than one year. But the bigger problem comes up 

with the defendant who has, let's say operating after 

suspension, receives a sentence of one year's probation 

and is on that one year probation at the time of the 

instant federal offense. And that's it. That's the 

defendant's entire criminal history. That defendant 

will not be eligible for safety valve. 

 Operating on a suspended license, operating 

uninsured, for example, operating an unregistered motor 

vehicle, those are the types of offenses that tend to 

reflect certain economic conditions. For example, the 

defendant who is ordered to pay child support and/or 

has outstanding parking tickets or fines. And as a 

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result of not paying those fines or not making those 

support payments, has his or her license suspended. 

That person needs to continue to work to meet his or 

her financial obligations. 

 In areas, rural areas, for example, that do 

not have a very developed public transportation system, 

that person needs to drive to get to work. So you have 

a Catch-22 where the person cannot pay off the fines or 

make the obligations that they need to make without 

driving and by driving, they are committing an offense, 

and if they get even a term of one year probation, that 

is going to count under the guidelines. 

 It seems to me somewhat, you know listening 

to Mr. Wroblewski talk about the data as far as one 

criminal history point, I sit here and I think, well, 

you know, you could have one criminal history point 

because you got probation on a robbery or burglary 

case, or an aggravated assault, or possession of a 

weapon, or a drug offense. And that one point is going 

to be reflected the same in the criminal history score 

or even less than the defendant was convicted of 

driving on a suspended license and was on probation at 

the time the instant federal offense was committed. It 

seems to me somewhat that there's a disconnect between 

a defendant getting three points for operating on a 

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suspension and one point, let's say, for a more serious 

offense. 

 It seems to me the purpose of 4A1.2(c) is to 

capture those offenses that are significant in purposes 

of telling the sentencing judge who this particular 

person is. So, we would urge the commission if it does 

not move the offenses in (c)(1) to (c)(2), to at least 

raise the bar, if you will, to at least 60 days of 

imprisonment. And if probation is going to stay in 

there, which we urge that the Commission get rid of 

probation, that it be first of all supervised 

probation, as opposed to unsupervised probation and 

that it be a term of probation of more than one year. 

Because to say at least one year, essentially winds up 

sweeping almost every disposition. 

 And one of the problems with that as well is 

that he issue of diversionary dispositions, which a 

number of states, including Massachusetts, New York, 

Illinois, and Kentucky have. And this is really where 

the disparate treatments, the inequity, if you will, 

becomes particularly acute. Because in those 

jurisdictions where there are condition discharges or 

continuance without a finding, whatever the 

diversionary disposition is called, a defendant doesn't 

even get a guilty finding on his or her record. It is 

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essentially a term of unsupervised probation, although 

there can be conditions imposed as in the First 

Circuit's decision in the United States versus Fraser

of community service and so forth, but the Judge has 

decided that this offense, given this defendant, and 

the circumstances, does not even warrant a guilty 

finding, a conviction appearing on the record. 

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 In Massachusetts, at the end of the period of 

continuance without a finding, the charge is dismissed. 

 It's essentially a nullity and yet, if that period of 

continuance without a finding or diversionary 

disposition is at least one year, which is again, the 

default, as things currently stand, the courts, 

including the First Circuit and the Second Circuit, and 

the Seventh Circuit, are counting those dispositions as 

if they were a term of probation of one year. 

 So the disconnect here is that the defendant 

who receives a continuance without a finding for one 

year and after that the charge is dismissed, the 

defendant stayed out of trouble, the charge is 

dismissed, that person gets a criminal history point 

under 4A1.2(c). But the defendant who received 15 days 

in jail or 20 days in jail, does not get a criminal 

history point. It seems to me that the disposition of 

a diversionary disposition, no matter the length, 

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should not be counted under 4A1.2 because it reflects a 

judgment by the sentencing court that this is not even 

something that should be reflected as a criminal 

conviction. 

 Another aspect of 4A1.2(c) that is very 

troubling to me and I'm sorry, I have somewhat of a 

bias here coming from Massachusetts in the peculiarity 

of our own sentencing system, but I think it's one that 

also occurs in Maryland and Pennsylvania and other 

districts nationwide, is the sentence at the outset of 

4A1.2(c) that states that felony convictions are always 

counted. And felonies are defined in 4A1.20 as any 

sentence of more than one year. 

 In Massachusetts, misdemeanors, and this 

dates back to, I think, the early 1800s, misdemeanors 

are punishable by up to two and a half years. The 

dividing line in Massachusetts is not the length of the 

sentence, so much as the place of incarceration. We 

have something called a house of correction. A house 

of correction sentence cannot be more than two and a 

half years. A state prison sentence is only available 

for felonies. Put it another way, felonies are defined 

as anything that can be punished by a state prison 

sentence. 

 Now, I understand that one might say, well, 

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if the state legislature made the judgment that this 

offense was serious enough to warrant two and a half 

years, then that reflects a judgment that should 

somehow be duplicated in the guidelines. And I 

strenuously disagree with that for a number of reasons. 

 One reason is because, in Massachusetts, for 

example, a defendant is eligible for parole on a two 

and a half year house of corrections sentence after 

serving half of the time. So the length of the 

sentence does not necessarily reflect the amount of 

time that that defendant will serve on the sentence. 

 The other point is the consequences of a 

misdemeanor conviction are different in terms of loss 

of civil rights, right to vote, jury service, and so 

forth, as well as even use of the conviction for 

purposes of impeachment. In Massachusetts the rules 

dictate that even for an arrest, a police officer 

cannot arrest a suspect on a misdemeanor offense 

without a warrant, unless the offense was committed in 

the presence of a police officer and constituted a 

breach of the peace. 

 The point, without getting into the 

intricacies of Massachusetts criminal law, the point is 

that where the exact same conduct operating to 

endanger, for example, in Massachusetts, which is 

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essentially careless driving, is punishable by two and 

a half years. So a defendant is convicted of the same 

offense in Massachusetts as in let's say Rhode Island, 

receives the same disposition, but because the 

Massachusetts scheme allows up to two and a half years 

for a misdemeanor, that defendant potentially loses 

safety valve because of that first sentence in 

4A1.2(c). And especially where the guidelines largely 

reflect a view that real offense conduct is what the 

sentencing judge and the what the guidelines are 

looking at, it seems to me inconsistent with that to 

have a system in which the fact that a particular state 

has chosen to set the maximum sentence, sometimes going 

back over 100 years, 150 years, does not reflect that 

that conduct is anymore serious than the conduct in a 

neighboring state. And it seems to me that getting rid 

of that first sentence is absolutely essential to 

eliminating an unwarranted disparity. 

 I understand that it is very difficult to 

write these guidelines in a way that takes into account 

the nuances and the intricacies of different states' 

criminal systems, but it seems to me that focusing on 

the conduct that is described in that list of minor 

offenses, as opposed to the sentence actually imposed 

or the label that is provided by the state in terms of 

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the length of the maximum sentence, I think there 

should be also some deference to the state in terms of 

if the nomination of an offense as a misdemeanor as 

opposed to a felony. 

 In addition, we would note that because 

different states have different parole eligibility and 

good time rules, we would urge the Commission, and we 

have set this forth in our second proposal, look to the 

term of the sentence that was actually served as 

opposed to the sentence imposed, because that more 

truly reflects what the sentencing judge in the state 

court intended to implement. 

 The second area with respect to minor 

offenses has to do with the language of offenses 

similar to them. We have proposed adding a number of 

offenses to the list of minor offenses, including, for 

example, fare evasion, panhandling, other offenses that 

are similar to the broad category of disorderly 

conduct. The problem with the current definition, well 

lack of definition, of similar to is that some courts 

have focused on the label and, therefore, you have 

offenses such as driving without insurance being 

counted, while driving on a suspended license isn't 

counted. 

 Fare evasion in urban areas and panhandling 

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is somewhat similar to disorderly conduct, but if it 

appears under a different statute, some judges are 

loath to discount that. And again, we have the problem 

of having certain offenses count in one jurisdiction 

and not in another. 

 There are other aspects of the second 

proposal, which include recentcy (ph.), that the 

offense be committed within three years of the instant 

offense, and also that offenses committed prior to age 

18, if they fall under the minor offenses category, 

should not be counted. 

 I'm going to move on to the area of related 

offenses. And I just simply want to say with respect 

to related offenses that we would urge the Commission 

to adopt the definition of relevant set forth in the 

relevant conduct provisions of 1B1.3 with respect to 

defining what is a common scheme or plan for 

consistency's sake. And also, we would propose that 

the commission make it clear that a formal order of 

consolidation is not required before cases will be 

considered consolidated for sentencing or trial. 

 Many of the districts nationwide, many of the 

states, including Massachusetts, do not have such an 

animal as a formal order of consolidation. The fact of 

the matter is when cases are set down for the same day, 

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disposed of together, and there are other circumstances 

and factors that we have set forth in our letter 

regarding factors that a court can consider in 

determining whether or not cases have been consolidated 

for sentencing or trial, to make that determination. 

 In addition, we would suggest, and have 

suggested in our letter, that with respect to related 

cases, rather than focusing on the happenstance of an 

intervening arrest, that that language under the 

application note for related cases be changed to an 

intervening conviction. It seems to me that a 

defendant who commits an offense is convicted, 

sentenced, and then is released, or gets probation for 

example, and then commits a new offense, that that 

sequence of events is much more reflective of a 

heightened risk of recidivism than someone who is 

arrested repeatedly within a short period of time as 

part of a common course of conduct. 

 For example, someone who has a drug addiction 

and is charged several days in a row with possession of 

drugs, simple possession of drugs. So we would urge 

that after there's been court intervention in the form 

of a conviction and sentence that that is a more 

meaningful distinction than intervening arrest, which 

may also reflect, for example, police harassment of a 

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particular individual. 

 And, unless you have questions, I assume 

there will be later, thank you very much. 

 CHAIR HINOJOSA: Thank you Ms. Conrad. Ms. 

Ervin is the cousin who is often criticized in her 

price by both your brother and sister to your right, 

depending on what reports you write. It's your turn to 

say something. 

 MS. ERVIN: I was thinking the redheaded 

stepchild is a possibility here as well. 

 I'd just like to start by thanking you all by 

allowing me to serve as the Fourth Circuit 

representative to the Probation Officers Advisory Group 

since 2000. It's been an amazing experience. I've met 

some wonderful people. The staff here has been 

tremendous and I thank you very much for this 

experience. 

 We had presented a position paper for each of 

you to review and a couple of the items I'll touch on 

here. The first one, obviously, is the minor offenses 

that are listed in 4A1.2(c)(1). In our discussions as 

a group, it has been amazing to me to see how many of 

the different districts count and don't count 

particular offenses within this category. And a 

particular example are the driving while suspended 

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violations. 

 In my area, that can quickly take somebody up 

to a category three or category four criminal history 

without any other convictions. In many of the other 

districts, from some of the other representatives, 

those never receive any points. And so we have seen 

tremendous disparity and this has been outlined in our 

position papers over the past years. It's routinely in 

our district that they will receive a year of probation 

or 30 days of active sentence and, as Miriam has also 

just said, that when these folks have one of these 

offenses, they are on probation at that point when they 

commit the instant drug offense, then they are not 

eligible for the safety valve and that's very clearly 

stated, even if a downward departure is granted for 

adequacy. That they are not able to have that benefit. 

 And we just see that as a real disparity in 

application across the country. 

 Based on our discussions, what we looked at 

was removing just a portion of the offenses under 

(c)(1) and moving those to (c)(2). And those were the 

careless and reckless driving, the driving without a 

license, the fish and game violations which we see 

primarily in my areas and others where there are a lot 

of federal lands, leaving the scene of an accident, and 

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local ordinance violations. These are the ones that 

particularly troubling to us in that we were able to 

see disparity across the different circuits in our 

discussions. 

 Another issue, the related cases issue has 

been a problem for us and that's also been mentioned 

time and time again in our position papers. And this 

is producing more and more objections and what my judge 

likes to call mini trials at sentencing to try to 

determine what the correct response should be. 

 One thing from an application perspective 

that we're finding, it's becoming more and more 

difficult for us to obtain criminal records. The 

larger districts across the country now no longer 

provide probation investigators with collateral record 

checks. What they are doing is they are referring us 

to the county courthouses. So, we may be trying 

ourselves to go directly to a county courthouse in LA 

or in New York City to get records. And with the 

misdemeanor cases pretty much across the country being 

reduced to a five year shelf life, the only thing 

that's left on that would be the single computer entry. 

 So this is becoming more and more difficult for us. 

 Even more difficult for us is something we 

were just talking about with the time served issue, to 

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try to go back to small jails or even large jails and 

get a time served when someone may have been in jail, 

out of jail, and back in, it's nearly impossible, if 

not completely impossible. And we would certainly urge 

that we not look at a time served or more as a sentence 

imposed issue. 

 Also in line with this too, it's also very 

difficult in not having the records to make the 

determination as far as intervening arrests go. We've 

laughed all along in talking about that section and the 

application note that at the end of the first sentence 

that says, if there are intervening arrests, stop. 

We'd like a flashing red light right there because so 

many practitioners still want to go to the second 

prong. They just don't stop at that point. And what 

we had suggested in our position paper this time is 

just removing the word "otherwise" and proceeding there 

with "if there was no intervening arrest" and then 

proceed to that prong. Because that has continued to 

raise issues for probation officers across the country. 

 The last two things that are also very 

problematic to us that we would like to see resolved 

and that would be circuit split between the functional 

versus the formal consolidation. This is something 

that we see as disparity in application based on what 

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each circuit has ruled and we would very much like to 

see that issue resolved as well. 

 And the last source of confusion for us are 

the multiple revocations on probation violations. This 

comes up also in the ability to obtain these records 

and also just in trying to make that determination if 

you've got consecutive sentences that were imposed in 

some of the various revocations that occurred. 

 But these are just some of the issues that we 

have discussed before. We very much are interested in 

the simplification of Chapter 4 and these are some of 

the ways that we think it would help us practitioners 

be able to achieve the results that the Commission 

would like. 

 CHAIR HINOJOSA: Who has got the first 

question for any member of the panel? I guess, I will. 

 I guess I'll start off with Ms. Conrad. You 

wisely pointed out that with regards to time that 

someone spends in prison, especially in the federal 

system where we have one-third of our defendants are 

non-citizens. And you know, when they get arrested for 

another crime, they don't make bond and so, therefore, 

they will usually get a sentence of imprisonment. And 

so that puts them in a different situation. But if we 

got rid of pretrial diversion or deferred adjudication, 

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I can see how some would be concerned that that is only 

available to a certain segment and type of defendant. 

That sometimes that's available to whoever has some 

kind of situation in the community where they might be 

able to make that argument, that they're entitled to 

that benefit. And would we be creating some kind of 

disparity by excluding that type of defendant that 

already has received some benefit with the ability to 

get that kind of disposition? 

 And it's really three questions, because this 

is something that we're all interested in. The other 

thing that I have observed through 24 years of reading 

pre-sentence reports under all types of sentencing 

systems is a lot of times the minor offenses tend to 

have been plea bargained. It's pretty rare that 

somebody just gets charged with resisting arrest, for 

example. That is, what ended up being the easiest plea 

bargain for everybody to get somebody to plead to and 

to be sentenced to. And so if we exclude some of these 

that, by themselves, might not seem the situation, 

should we then let 4A1.3 take care of that, or will 

that depend on the judge, as opposed to the guidance 

that a guideline gives? 

 And with regards to the second topic that you 

addressed, the issue of related conduct, should it 

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matter that it wasn't the same sentencing judge who did 

the sentencing on one day when it's clear that 

obviously, that they may have, you know, they all run 

concurrent, it's the same sentence, but they were just 

filed in different courts because of the filing system? 

 MS. CONRAD: Okay. Taking -- 

 CHAIR HINOJOSA: And if any one of you also 

wants to then add something to it, especially Ms. 

Ervin, since you touched on some of these also. 

 MS. CONRAD: I think you make a very good 

point, Judge Hinojosa about the disparity as far as a 

continuance without a finding, or excuse me I'm 

confusing my Massachusetts lingo, or diversionary 

dispositions, I should says. I think that that same 

problem, however, is currently in play because the 

defendant who, in the 4A1.2(c)(1) offenses gets a fine, 

no probation, no time, but is financially able to pay a 

fine, that defendant's conviction is not going to count 

under 4A1.2(c). Obviously, there are, based on 

economic disparities, there is differing abilities 

across the board of someone to pay a fine. The person 

who can't pay a fine may wind up getting probation or 

going to jail and so forth. 

 So I think whatever line you draw, there are 

going to be some people on one side and some people on 

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the other side and there will be disparities. But it 

seems to me that the diversionary disposition is one 

where the court has made, the sentencing court has made 

a judgment that this offense does not count. 

 Now, I don't know. I'm trying to think back 

to my experience, for example, as a state public 

defender, whether non-citizens, which is an interesting 

source of disparity, would be sort of ineligible for a 

continuance without a finding. Now, I suppose, if they 

were deportable and were going to wind up remaining in 

jail awaiting deportation that may be a concern. But 

it seems to me that again, that may be an area in which 

a court could look at the continuance without a finding 

and/or look at circumstances, same thing with a plea 

bargain, and consider, although we'd obviously oppose 

it, an upward departure under 4A1.3. But that person 

would not become ineligible for the safety valve by 

virtue of the diversionary disposition. 

 The other aspect of this is by proposing 

either moving everything to 4A1.2(c)(2), essentially 

eliminating 4A1.2(c)(1), that would take care of that 

disparity in terms of the treatment, whether it's time 

served, diversionary disposition, fine and so forth. 

 The other aspect of this would be by 

increasing the length of sentence that sets the 

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threshold for adding a criminal history point. So, it 

seems to me and again, line drawing problem, but the 30 

day sentence is one that is likely to be a time served 

disposition. A sentence of more than 60 days, I would 

suggest, is less likely to reflect the type of scenario 

that you describe, that is someone who is arrested, 

isn't bailable for whatever reason, and then gets time 

served. So, you would over capture fewer defendants 

than is currently in place, which is not to say that 

you would not continue to over capture some. 

 With respect to the plea bargaining point, it 

seems to me that that cuts both ways. In my 

experience, for example, sometimes things are over 

charged initially. And so the plea bargain is less a 

reflection of well, you know, I will let you plead to 

this, but we'll dismiss that, even though we know we 

can prove it. 

 But sometimes it's a we charged you 

with this, but we can't prove it. As you were 

describing the scenario, I thought back to many years 

ago as a state public defender and there was a big 

brawl at a party. And the police, you know, got a 

little out of hand, and the police charged everyone 

with assault and battery on a police officer but it was 

pretty clear that the police had been the aggressors. 

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And the judge called everybody. We're about to start 

this trial with five defendants. The judge called 

everybody up and said, is this basically a disorderly? 

 That, you know, the police charged assault and battery 

on a police officer because they're concerned about 

their liability. Is this basically just a disorderly? 

 And everyone, including the prosecutor, said yes. And 

he said, okay, we're going to treat it as a disorderly. 

 So, there are times when the prosecutor 

doesn't want to go forward because the prosecutor can't 

prove the more serious conduct that is charged. Again, 

it seems to me that that can be addressed in the form 

of 4A1.3, but the important point is not to take people 

out of safety valve eligibility for conduct that is 

truly minor. And the court, especially post-Booker can 

certainly assess whether the record as a whole reflects 

a more serious background or not. But with the safety 

valve, that's a bright line and the judge can't go 

below that, even if the judge things, obviously, that 

the conduct is less serious than what the criminal 

history score reflects. 

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 And the final point about related cases, 

whether different judges in different jurisdictions, it 

seems to me that may partly be captured by common 

scheme or plan, where you have different dispositions 

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in different courts. I think then, even if it's 

different judges, you could look to certain factors as 

outlined in our letter, such as whether this was part 

of a plea bargain. 

 I had a case a number of years back, two 

robberies committed two days apart in two separate 

counties that are right next to -- I mean you could 

walk from one courthouse to the other or one of the 

crime scenes to the other. And at the time of 

sentencing, the prosecutor said, we are recommending, 

the defendant has pled guilty in Norfolk County, we are 

recommending that this sentence be served concurrently. 

 And it was clear there had been coordination between 

the two prosecutor offices to make this a package, if 

you will. And I think that would reflect either a 

consolidation for sentencing or a common scheme or plan 

with respect to the underlying conduct. And again, 

going back to 1B1.3's definition for common scheme or 

plan, would help courts make that assessment. 

 I think that one thing that the courts need 

in making the assessment on related cases is more 

flexibility, more discretion, if you will, rather than 

the type of bright line rule that says, if there's a 

piece of paper that says they're consolidated, that's 

consolidated. If there's no piece of paper, that's 

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not. I think that creates disparity. 

 CHAIR HINOJOSA: Do either one of you want to 

say anything? 

 MR. WROBLEWSKI: Yes, I just want to comment 

on a couple of things. I think we're all products of 

our experience. I mean, there's no doubt about that. 

And I think in each of our experience we can find 

individual cases where perhaps the bright line rule 

seems like well, maybe that's not quite right. But I 

don't think we can, in trying to devise criminal 

history rules, rely on that. I think because, as I 

think your question suggests, Judge Hinojosa, I think 

as my sister and my cousin's testimony have suggested, 

there are tremendous complexities in the system. And 

yes, Massachusetts has one set of rules, and North 

Carolina has another set of rules, and Vermont has 

another set of rules, and we have to create a workable 

system that works with all of those rules. So I think 

we have to be driven by that reality. 

 And in addition, in response to some of the 

suggestions that Ms. Conrad made about, for example, 

increasing the threshold from 30 days to 60 days or 

excluding all kinds of other minor offenses, again, it 

may strike Ms. Conrad as true that a resisting arrest 

has nothing to do with recidivism. It may strike me 

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that that's wrong, that it may have something to do 

with recidivism. I think again, we have to be driven 

by the research. And the research is clear that the 

offenses that trigger one criminal history point are 

indicative of increased recidivism risk. That's the 

reality. 

 And if the Commission is going to seriously 

consider changing those thresholds to exclude more, I 

think the Commission ought to be confident that doing 

so is going to better serve the purposes of sentencing 

and increase the ability of the criminal history score 

to better identify those who have a higher risk of 

recidivism. And I suggest, that information is not 

available and there needs, at the very least, to be a 

whole lot more research and discussion about this. 

 CHAIR HINOJOSA: Vice Chair Steer? 

 COMMISSIONER STEER: I guess Mr. Wroblewski 

kind of hit upon a concern that I have. But let me try 

to ask the question this way. 

 Many of the states, in their criminal history 

score, give minor offenses lesser weight, the half 

point. Why shouldn't we consider going to a system 

that basically assigns say half a point to every prior 

sentence, unless we can see that it is not predictive 

of recidivism? And that way, we're being more, I 

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think, faithful to the goals and objectives of the 

criminal history score, but at the same time, it would 

be less likely that an individual's minor sentence 

would have deleterious consequences. 

 But speaking of the consequences, I really 

don't understand why the eligibility for the safety 

valve should drive what we do with respect to criminal 

history. I understand that we should be aware of the 

consequences, but Congress drew the line where it drew 

the line. And if there's a problem with the cliff 

effect of that, then it seems to me that the proper 

procedure is to ask Congress to address that, not for 

the Commission to go behind Congress and attempt to 

change the criminal history rules in order to make more 

defendants eligible for a safety valve than there 

already are. 

 You know, when the safety valve was designed, 

the Commission was asked to furnish data predicting its 

affect and we did so. And we predicted that somewhere 

in the mid-20 percent of the offenders would qualify 

for the safety valve. In actual fact, today, those who 

get at least a two level reduction, is now in the mid30s. So it's already far broader than what we told 

Congress would be the case, based on a criminal history 

score that was then in place. 

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 And you are urging the Commission to 

basically, it seems to me, have a backdoor way of 

broadening the eligibility for the safety valve. 

That's more of a comment, I guess than a question. 

 Let me return to my original thought. And 

you know, what about the idea of giving them less 

weight, but counting everything that's predictive? 

 MS. CONRAD: Well, I think the first question 

is what's predicted? Is operating on a suspended 

license predictive? 

 COMMISSIONER STEER: It may not be. I have 

some sympathy for the driving offenses. 

 MS. CONRAD: And -- 

 CHAIR HINOJOSA: I hope that's not a 

confession. 

 MS. CONRAD: But you know, in an area where 

someone has to drive in order to maintain a job and 

maintain their financial obligations, it would be 

pretty easy for those half points to add up pretty 

quickly. And again, that gets me back to the safety 

valve point and I would like to address that comment. 

 Congress said, I believe, that it was 

available to anyone who had one criminal history point 

or less. Congress did not specify what offenses should 

result in what points or specify under what 

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circumstances an offense should be considered a 

criminal justice sentence for the purposes of adding 

the two levels that quickly elevate someone's criminal 

history score. 

 But the definition of how those points are 

counted and when those points are counted is squarely 

in the Commission's court. And I don't think that 

anything that Congress said dictates how those points 

should be calculated. 

 This is not, and if I gave that impression I 

want to correct it right now, this is not an effort to 

just make the safety valve available to more people. 

This is an effort to make sure that those people who 

are truly deserving of the safety valve are eligible 

for it. And to distinguish between the defendant who 

receives probation, let's say, or a time served 

sentence on a serious, even violent offense, and has 

one criminal history point, is distinguished from the 

defendant who simply couldn't pay his parking tickets 

and is driving on a suspended license while he's trying 

to meet his or her financial obligation. 

 So the question is not, and of course it 

would be helpful to have data, not just on what 

criminal history score is predictive of recidivism, but 

what types of offenses are predictive of recidivism. 

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But I think too, fail to distinguish between the least 

serious offenses that are practically, you know, an 

occupational hazard of someone who is struggling to 

make ends meet financially and meet their support or 

their financial obligation. 

 And someone who has been convicted of violent 

conduct, I think, is not really implementing frankly, 

the congressional intent in making safety valve 

available in the first place. I mean, certainly, I 

don't think Congress intended that someone who had 

multiple prior convictions for drug dealing should be 

eligible for safety valve. And that would be reflected 

in the criminal history score. But that is not to say 

that someone who had a couple of convictions or even 

diversionary dispositions for driving on a suspended 

license or driving while uninsured, should not be 

eligible for safety valve. Those are two very distinct 

offenders and I submit they should be treated 

differently. 

 CHAIR HINOJOSA: Vice Chair Sessions? 

 JUDGE SESSIONS: Well, I'd like to ask 

Jonathan a question. And first of all, I just want to 

say that I appreciate the fact that you recognize there 

are rules in Vermont and we are a state. 

 MR. WROBLEWSKI: I'll be careful when I go. 

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 JUDGE SESSIONS: Absolutely. I think the 

point about what kind of offense is significant. But 

if I could ask you just to step back from the 

statistics and the research into the guidelines in 

general. We're in a post-Booker era. We have 

statistics which indicate clearly that the most 

frequently used ground for departure are 

overrepresentation arguments. 

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 And let's face it, I mean I'm from a state 

that analyses suspended licenses, driving with 

suspended licenses and the most common ground for 

departure are departures based upon overrepresentation 

from these minor offenses. And so what essentially 

happens is somebody's charged with these minor 

offenses, they get a downward departure of one or two 

criminal history levels. 

 Now that, in the broader perspective, 

increases the frequency of departures, and to some 

extent, could be used in an environment like Washington 

D.C., in general, to suggest that judges are not 

following the guidelines. And to what extent would in 

fact our purposes here, and that is to advance the 

cause of a guideline system, be hurt by not eliminating 

some of the sources of downward departures? 

 MR. WROBLEWSKI: I have a couple of responses 

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to that. First is just my perspective of the numbers. 

 I don't have a photographic memory of the sourcebook, 

but if my memory serves me right, there are somewhere 

less than 1500 downward departures for criminal 

history. And remember, criminal history is calculated 

in every single case. So it's in 70,000 cases. 

 So yes, there are a significant number of 

downward departures based on criminal history, as there 

are upward departures for criminal history. And I 

think the Commission should review application issues. 

 I think it should resolve circuit splits relating to 

criminal history. 

 So I don't want to give you the impression 

that we're saying don't touch criminal history, it's 

perfect exactly the way it is, but at the same time, I 

think in doing so, it should be driven by the purposes 

of sentencing. I think that's what this Commission 

should be driven by and that's the gist of the 

testimony that I'm giving. 

 And I think that if there are ways to address 

those case where there are downward departures in a way 

that is consistent with the purposes of sentencing, you 

know, by all means, the Commission should do that. I'm 

just saying that based on what was published for public 

comment, based on the Commission's recidivism studies 

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to date, based on the testimony that I've heard today, 

it's my view that we're not there yet. We're not 

ready. I think there's more to do. 

 JUDGE SESSIONS: Don't you think, though, 

that the frequency of departure is, in fact, a 

statement from the practitioners in the field about 

criminal history? And in fact, as is reliable as 

statistics may be, isn't it a whole lot better for the 

Commission to be listening to people in the field, 

hearing what they say, as Ms. Ervin testified, and then 

responding? Because that, I mean that's the best 

source of information, it seems to me, more so than 

statistics. Do you disagree? 

 MR. WROBLEWSKI: I think the Commission 

should respond. That's why we're here. We're to 

provide input and that's why Ms. Conrad and Ms. Ervin 

are here to provide input, and yes, we think the 

Commission should respond. Yes. 

 CHAIR HINOJOSA: And I guess your point is, 

we need to see where these departures are, whether it 

is driving while license suspended or the recentcy one 

and two points that Ms. Ervin mentioned, or where are 

these departures coming from to better understand what 

the practitioners are telling us with regards to 

criminal history. I think that's -- 

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 MR. WROBLEWSKI: Yes, and the other way as 

well. Because again, the most frequent grounds for 

upward departures is that that criminal history under 

represents the defendant's culpability. So I think the 

reviews should continue and where appropriate, changes 

should be made. 

 CHAIR HINOJOSA: I guess we have time for one 

last question. 

 COMMISSIONER HOROWITZ: I'm going to just ask 

the panel on the comment the idea Commissioner Steer 

put forward about cutting through all of this and just 

counting, giving half a point to all sentences, all 

non-felony sentences. Any thoughts on that? 

 MS. ERVIN: From a practical application, 

that would be much simpler. And it would also address 

some of the disparity that we have talked about during 

our POAG meetings. There is, you know, routine 

sentences of 30 days or one year probation, as opposed 

to all the other districts that may have nothing for 

those. 

 The application, from a personal perspective, 

that would be a much easier way to do that. 

 MS. CONRAD: I think I already said what I 

have to say about that, but I think one additional 

problem is then if you add the two points from being 

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under a criminal justice sentence, you're right back to 

the same problem. So then the person has two and a 

half points for a driving on a suspended license. I 

mean, you know, that would certainly not be our 

preference if it were addressed that way. But I think 

if it were addressed that way, some consideration would 

have to be made to take away those provisions. 

 And you know, one point I wanted to make 

about that, again, is because it keeps going back to 

the safety valve, even a study of the departures is not 

going to capture those cases where someone is 

ineligible for safety valve by virtue of one of these 

prior offenses. Because by definition, when the 

minimum mandatory kicks in, there's not going to be a 

departure. So even that type of study would not 

capture all that information. 

 CHAIR HINOJOSA: I think the departure is 

still there, it just doesn't qualify you for the safety 

valve. I mean, it puts you in a different range, as 

far as the potential sentence, but there are departures 

on criminal history, even though you're not qualified 

for safety valve. It just puts you in a different 

range. 

 MS. CONRAD: It depends on whether or not 

guideline range is above the minimum mandatory or not. 

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 The guideline range could be below the minimum 

mandatory without safety valve, or above or squarely in 

the middle. And if it's either squarely in the middle 

or above, excuse me, either squarely in the middle or 

below, you're not going to capture the departure 

because there can't be a departure. 

 CHAIR HINOJOSA: Well there can be, it just 

won't have an effect. 

 MS. CONRAD: No, right. I understand. 

 CHAIR HINOJOSA: I mean, nothing that to 

discuss. 

 MR. WROBLEWSKI: I assume that you mean half 

a point for all misdemeanor offenses that receive a 

sentence of less than 60 days. And you know, we'd be 

open to that. Again, I hate to sound like a broken 

record, but it depends whether that change is going to 

make the guidelines more effective or less. It makes 

it simpler, which is one of the goals. We want a 

workable system. And we want also a system that 

identifies the people with the greatest risk of 

recidivism. And so I think more needs to be, more 

needs to be found out about that, what the impact is. 

 CHAIR HINOJOSA: Thank you all very much. 

It's been very helpful. 

 The next panel is going to be addressing 

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proposed amendments for the 2007 cycle. And we've got 

Mr. John Richter, who is a U.S. Attorney for the 

Western District of Oklahoma and who is Chairman of the 

Attorney General's Advisory Subcommittee on Sentencing. 

 In his time with the Department of Justice, he has 

served as Acting Assistant Attorney General for the 

Criminal Division. He has also been a former Ex 

Officio Commissioner of the U.S. Sentencing Commission 

and he began his legal career as a law clerk for a 

judge that did the hard work, a U.S. District Judge, 

Hon. Owen Forester with the Northern District of 

Georgia. 

 We've got Mr. Jon Sands, a fellow dog lover 

like myself, who is the Federal Public Defender for the 

District of Arizona. He is a prolific writer and 

probably because he was Editor-in-Chief of his law 

review at his law school. He clerked also for a judge, 

Hon. Mary Schroeder, who is the U.S. Court of Appeals 

for the Ninth Circuit and he worked briefly as an 

associate at a law firm. He has been an Assistant 

Federal Public Defender in 1987 and a consistent 

contributor to the work of this commission with his 

comments. 

 Ms. Amy Baron-Evans is a National Sentencing 

Resources Counselor to the Federal Public and Community 

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Defenders, where she represents the defenders' interest 

before the U.S. Sentencing Commission and develops 

sentencing policy and provides training and sentencing 

advocacy for the defenders across the country. She is 

a former co-chair if the NACDL Federal Sentencing 

Guidelines Committee and a former co-chair of the 

Practitioners Advisory Group for the U.S. Sentencing 

Commission. 

 Mr. David Debold is a present co-chair of the 

Sentencing Commission's Practitioners Advisory Group 

and he has worked in the Washington, D.C. office of 

Gibson, Dunn and Crutcher. He joined that firm in 

2003. He practices in the litigation department and is 

a member of the firm's appellate and constitutional 

law, securities litigation, and business crimes and 

investigations practice groups. He also served as a 

law clerk to a judge, having clerked for Hon. Cornelia 

Kennedy, with the U.S. Court of Appeals for the Sixth 

Circuit. 

 And Mr. Richter, I believe that you have 

other individuals here who could help you in case the 

questioning got very tough. You've got, I believe, Mr. 

Almanza, as well as some other individuals with the 

Justice Department, including Joe Koehler and -- 

 MR. RICHTER: John Morton. 

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 CHAIR HINOJOSA: -- you have some other -- 

 MR. RICHTER: Right. 

 CHAIR HINOJOSA: -- background help here. 

We'll start with you, sir. 

 MR. RICHTER: Right. Well, good morning, 

Chairman Hinojosa and members of the Commission. Thank 

you for allowing me the opportunity to come before you 

and testify. It's certainly a pleasure to see all of 

you again. I sort of enjoyed, I have enjoyed all my 

experiences with the Commission, which is why I was 

willing to be convinced to come to Washington again and 

appear today. 

 CHAIR HINOJOSA: Anything to get out of 

Oklahoma, I guess. 

 MR. RICHTER: And on that point, I did want 

to compliment particularly the Chairman, of Oklahoma 

Sooner Crimson and Cream in the latest guidelines. 

 CHAIR HINOJOSA: That was Harvard Crimson and 

Cream. 

 MR. RICHTER: But I will be addressing a few 

of the proposed issues in my remarks this morning. 

Obviously, there are a great deal more issues than time 

for comment. As you noted, like any smart United 

States Attorney, I've brought a number of experienced 

prosecutors who have got my back. And obviously, if 

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there are questions that I'm unable to answer 

satisfactorily, I hope you'll indulge me and let me 

call on some of them. 

 I certainly want to express on behalf of the 

Department, our thanks to the Commission. In 

particular, I echo Jonathan's comments in the earlier 

panel in thanking the staff. I know from my personal 

experience on the Commission, as well as in more recent 

work both at Roundtables on Criminal History and 

Simplification as well as in making use of the data 

that is collected regularly by the staff. They do 

tremendous work, significant work, hard work, and they 

also, I think, do a very good job of promoting informal 

and open dialogue amongst all the interested parties in 

the criminal justice system. And for that, they are 

due a great deal of thanks and recognition. 

 We certainly are at a unique time in the 

sentencing guidelines, in their history. And while we 

have suggested some possible legislative responses that 

might change the current paradigm, it's clear that we 

are in a time when we're waiting for the outcomes of 

Rita and Claiborne in order to determine where things 

are ultimately going to head when it comes to 

sentencing at the federal level. And in the meantime, 

of course, all of the data that is being collected is 

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very important for us to consider and inform our 

discussions. 

 In recognition of the priorities set by the 

Commission in this cycle, which is really focusing on 

larger systemic questions, as well as then responding 

to some issues that flow out of congressional action. 

We have limited all of our requests in this cycle 

particularly to respond to those congressional things 

and then really the things, pursue the things that we 

believe are in most dire need of change at present. 

And I'd like to highlight a few of those this morning. 

 First, on the topic of immigration. We have 

proposed significant changes to Section 2L1.2, which is 

the illegal reentry guideline. And we believe, in 

contrast to a lot of the other guidelines and the other 

topics that we're talking about, that this is in need 

of dire change. At present, the courts, probation 

offices, defense attorneys and prosecutors are 

expending vast amounts of time, time that we believe is 

unnecessary, parsing over words and statutory 

construction of state and local laws without a real 

benefit to the ultimate outcome in the sentencing of 

those cases. 

 In fiscal year 2006 alone, the courts handled 

over 17,000 immigration cases. That was virtually a 

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quarter of the federal docket. And we submit that the 

proposal that we are making here to revise 2L1.2 would 

allow us to have fair and predictable and appropriate 

sentences still for those sentences, but allow us to do 

it more efficiently and thereby allow us to more fully 

utilize our resources that have been given to us by 

Congress to enforce our immigration laws. 

 The simple reality is that 2L1.2 as currently 

drafted provides a significant barrier to our being 

able to do more in the field. We have proposed a 

number of options as embodied in Option Six and then 

the latest in Option Seven, and I want to emphasize 

that we are not favoring these options as a means to 

increase overall sentences in this for illegal reentry. 

 Rather, we favor it as a means to achieve fair 

sentences more efficiently, which will, thereby allow 

us to prosecute more cases, allow the courts to handle 

cases more effectively, and presumably free up time 

also for probation offices and for defense counsel. 

 We originally have offered the potential 

triggers in Option Six as examples only and we 

recognize that there is a contingent of dialogue as to 

what would be appropriate in order to achieve our goals 

of increased simplicity in this area and essentially 

net neutrality. 

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 We believe our Option Seven comes the closest 

at this point in terms of that net neutrality and what 

I mean, I mean in terms of the total number of 

defendants who would receive the particular adjustments 

to their base offense level. 

 So, at present our concern about 2L1.2 stems 

from the fact that we believe that we've got a lot of 

litigation that is unnecessary as a result of the 

categorical approach that is required by the Court's 

Taylor and Shepard decisions. And that litigation in 

these kinds of cases as the judges on this court 

recognize first hand, certainly places a significant 

strain on the courts, the on the probation offices, on 

the prosecution and on the defense. And it falls 

disproportionately on those offices who are least in 

the position to handle endless litigation in this 

context. We hope that this option is one that is, by 

making it simpler, will make in fact the system 

stronger and allow these cases to be moved more 

effectively. The reality is that in addition, the 

court decisions that arise in this context are replete 

with some counter-intuitive, if not capricious results. 

 And I know that that's been detailed in prior 

testimony here. But it is something that certainly 

should concern us all in a criminal justice system. 

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 As proposed Option Seven would essentially 

eliminate the categorical approach and in doing so 

would mean that we would be looking at length of 

sentence as the proxy, instead of the type of offense. 

 This driving it based on that factor, certainly we 

must acknowledge there is no perfect proxy, but the 

reality is that the state sentencing regimes are not 

entirely uniform, but then again, how states label 

offenses is also not entirely uniform. And we believe 

that the length of sentence, as shown by the recidivism 

and criminal history study of this commission provides 

a far more objective and readily determined basis for 

increased defense level under 2L1.2, than the current 

categorical approach. 

 Let me also, so in answer to the question 

that I think is out there, which is should the 

Commission act now, as opposed to wait? We in the 

Department believe the answer is yes, you should. We 

need the relief now. The system needs the relief now 

and certainly, as the media has reported, there is a 

significant chance that nothing will happen on 

immigration legislation in this year and we will remain 

in the same position at the end of this cycle as we 

were at the end of last year. 

 Secondly, we believe that the proposals that 

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are there are consistent with a lot of the thinking 

that's gone on in Congress to date in terms of revising 

sentencing schemes in this area. And we would submit, 

therefore, that a delay in action would only prolong 

the unnecessary expenditure of resources across the 

board in a time when courts, defense counsel, federal 

public defenders, and prosecutors certainly face 

resource challenges. 

 Let me also then turn to sex offenses 

briefly. With regard to the sex offense, obviously, 

there's a lot proposed. The only thing I want to cover 

this morning is the issue of the failure to register 

that stems from the Adam Walsh Act. 

 In the federal system, we know that sex 

offenders are required to be notified that they must 

register. And this is happening not only while they 

are incarcerated, but the Adam Walsh Act certainly 

requires federal sex offenders to register now as a 

mandatory condition of probation, supervised release, 

and parole. So federal sex offenders certainly become 

aware of their registration obligations. With respect 

to non-federal sex offenders, almost all of the states 

at this point should be informing sex offenders 

concerning their registration obligations, as it is, 

and were doing so under prior law, the Jacob Wetterling 

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Act, sex offender act. And so it's important to 

recognize that we're not writing on a blank slate 

completely here. 

 It's also important to recognize that 

liability for failure to register under 2250(c), 18 

U.S.C. 2250(c) is only going to occur in cases where a 

person knowingly fails to register. And I can tell you 

first hand, as we are beginning to grapple with these 

cases in the Western District of Oklahoma, that is a 

real issue and one that, therefore, makes us look 

carefully at the cases that we bring to delve into and 

determine our ability to prove those elements. 

 So we understand that essentially that part 

of the law requires a violation and can only be put, 

and will only be brought in circumstances where truly 

the government has the ability to prove beyond a 

reasonable doubt that the defendant violated a known 

registration obligation. And that's important to 

recognize as we consider what we're dealing with here. 

 I do want to also inform the Commission that 

we will, as a Department, be providing guidance to the 

states shortly regarding their, what states should be 

doing in order to notify sex offenders concerning the 

registration requirements and any which are new or 

different from what the individual states are doing. 

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But again, that's a bit far from the sentencing issues. 

 With regard to the specific proposal to 

create a new guideline in 2A3.5, the one point that we 

want to make explicitly clear, which is we believe that 

the current proposal, which would limit the specific 

offense characteristic to only an offense against -- to 

only sex offenses against a minor, needs to be reworked 

to include any offense against a minor. It's important 

to recognize that the congressional directive does not 

limit it to just sex offenses committed against a minor 

while a defendant was in an unregistered status, but 

uses just the term offenses, more generally. 

 And it's important to also recognize the 

context in which this comes up. Congress was concerned 

about sex offenders who are not registered. Why? 

Because we want to know where they are and we want to 

be able to account for them, and we therefore want to 

use that as a means to better protect our children and 

protect society from those who Congress has determined 

pose a significant risk. 

 While certainly the sex offense committed 

while a person is unregistered would be the most 

serious set of circumstances, there is a whole group of 

conduct that moves along a continuum towards the actual 

commission of a sex offense that should concern us. 

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And so we want to look at things like and be able, and 

believe the guidelines and congressional directive 

require the consideration of nonsexual assaults, 

kidnapping, drug distribution, and other offenses that 

may be indicia of an unregistered sex offender say 

attempting to groom an individual, a child, before ever 

reaching the point of actually committing another sex 

offense. 

 We also believe that the guideline in this 

area needs to be drafted in a manner that fully 

reflects the ten year statutory range provided. For 

example, if you were dealing with the sort of middle 

range criminal history category three, but a person who 

was required to register for a tier III offense, so 

therefore it was the most serious sex offense on the 

conviction, and who committed an offense against a 

minor while unregistered, we believe that is a 

significant, that person is deserving of significant 

punishment and should face a guideline range 

encompassing the 420 months prior to acceptance of 

responsibility. And so we make recommendations, 

therefore, to get, for that guideline to do that. 

 We also want to recognize that the special 

offense characteristics will take into account an 

offender who commits a sex offense that is not against 

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a minor while unregistered and our proposal covers 

that. 

 With regard to the voluntary attempt to 

correct a failure to register, the current proposal 

before the commission has two options and we favor one 

and oppose the other quite strongly. We start from the 

proposition that, simply put, unregistered sex 

offenders who commit offenses are precisely the reason 

why this law was passed and why we have registration 

requirements. And that it would be extraordinarily 

unjust to provide these offenders who victimize others 

again a reduction in sentence merely based on the fact 

that they attempted, unsuccessfully, to do something 

when they've done something far worse, committed 

additional criminal offenses. 

 And so we would recommend, therefore, the 

Option One, which takes into account and would not 

provide a windfall to defendants who have really done 

the worst of the worst, but can show that at some point 

they voluntarily attempted to correct their failure to 

register. And so what that would essentially yield is 

that under our suggestion, an aggravated offender such 

as the one whose registration was for a tier III 

offense and who committed an offense against a minor 

while unregistered would face a guideline sentence 

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encompassing the maximum statutory penalty, assuming a 

criminal history category of three. 

 At the other extreme, a criminal history 

category three offender whose registration was for a 

tier I offense, and who did not commit a qualifying 

offense, and who voluntarily attempted to correct his 

failure to register, would be at a level eight or 

facing 6 to 12 months or a level 10, 10 to 16 months. 

 And in the middle, then someone who was 

criminal history category three, an offender who did 

not commit a qualifying offense while unregistered, and 

whose registration was for a tier II, would then be at 

a level 14 before acceptance for 21 to 27 months. 

 What we believe is that this structure 

creates a sentencing scheme where aggravated offenders 

face serious and severe punishment, but also taking 

into account the less aggravated circumstances and 

mitigating circumstances in the appropriate cases. And 

certainly, in those circumstances where an offender has 

voluntarily attempted to correct their failure to 

register and also has remained law abiding during the 

period. 

 I also want to turn briefly to the proposed 

new guideline section 2A3.6. This is the aggravated 

offenses relating to registration as a sex offender. 

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We believe that this proposed guideline is very 

appropriate for section 2260(a) and as that section, 

statutory section, requires a ten year consecutive 

additional penalty to the underlying offense. However, 

we believe, as currently drafted, 2260(a) is not 

appropriate for section 2250(c) because that is drafted 

differently and creates a statutory scheme of not just 

merely a ten year consecutive sentence, but rather a 

broad range of between 50 and 30 years. And that, in 

essence, therefore, we believe the current proposal 

does not take into account the congressional 

determination to set a minimum and maximum term for 

section 2250 offenses. 

 We would suggest that in order to account for 

the significantly dissimilar penalties, that we 

preserve the current draft for purposes of section 

2260(a) and then create a framework for section 2250(c) 

offenses that would appropriately provide for 

sentences, other than the minimum mandatory term of 

five years, but also would account for the range that 

goes up to 30. 

 Let me turn now briefly also then to the one 

area in the drug context and that is with regard to the 

new offense passed by Congress in 21 U.S.C. Section 

860(a) as part of the Combat Meth Act, which was within 

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reauthorization of the U.S.A. PATRIOT Act. It provides 

a mandatory consecutive term of imprisonment of not 

more than 20 years for the manufacture, distribution, 

or possession with intent to distribute of 

methamphetamine on premises where a child resides or is 

present. There are several options here. We strongly 

support Option Two, which would provide a six level 

increase with a floor of 29 for a manufacturing offense 

and a three level increase with a floor of 15 in 

distribution cases where a minor is present or resides. 

 We believe that this option provides a tiered 

and measured response which properly punishes, at a 

significant level, offenders who manufacture 

methamphetamine in the presence of minors, while also 

then recognizing a lesser offense level for defendants 

who distribute methamphetamine on the premises. 

 As recognized by Congress in passing that 

statute, and as I can attest to firsthand, given the 

experience of Oklahoma with methamphetamine, the 

manufacturer of methamphetamine, particularly in the 

home where a child is present involves, inherently, an 

awful risk to a child. Children are not only exposed 

to toxic chemicals, these become essentially 

environmental cleanup sites, ultimately, but they're 

also left in a situation in which not only these 

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persons who are manufacturing, they are not only left 

with their parents who are manufacturing and often 

times using the methamphetamine, but all kinds of other 

individuals and strangers whose behavior, who come 

there for the drugs, and whose behavior, in and of 

itself, is corrosive to those children. The simple 

fact is that children in proximity to methamphetamine 

has an awful result for children, and in particularly 

the manufacturing aspect of it provides, inherently, a 

significant risk. 

 We believe that Option One, as presently 

proposed, which only would provide a two level increase 

in inadequate, in that it would fail to reflect the 

severity of the actual offense and, therefore, we would 

ask that if the Commission were to go in that direction 

in adopting an Option One, that we would request that 

the six level enhancement with a 30 floor be applicable 

also to distribution and the possession with intent to 

distribute and manufacture cases. This would yield, in 

our minds, meaningful sentences in this context. 

 Obviously, there are a lot of other issues 

that are being commented on today. We will be 

submitting a letter, as is customary, covering each of 

these topics and we certainly have welcomed the 

opportunity to meet with the staff in the run-up to 

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this and continue our informal discussions about the 

proper and appropriate guidelines that should govern 

the new statutes as well as changes that we're 

proposing. 

 So with that, I'll conclude my remarks this 

morning. Let me say again how much I appreciate the 

chance to appear before you and how much I appreciate 

your hard work and consideration of the Department's 

proposals. We certainly stand ready to continue to 

work with you in any way that we can. Thank you. 

 CHAIR HINOJOSA: Thank you, Mr. Richter. Mr. 

Sands? 

 MR. SANDS: Thank you, as always, for having 

the defense community here to comment and to discuss 

with you on the guidelines. 

 With me is Amy Baron-Evans, who will begin 

with the Adam Walsh and miscellaneous amendments. 

David Debold, who will be taking drugs and others, Anne 

Blanchard, later, will touch on crack. And I am going 

to address, briefly, immigration. 

 All three of us here, though, to follow up on 

the other panel, serve as our brother's keeper. And we 

will try to address certain aspects. And as always, we 

appreciate our work with the Commission staff. 

 2L1.2, which is the illegal reentry after 

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departure has bedeviled the Commission and 

practitioners for some time. It has become 

complicated, unwieldy and unfair. And this is a 

result, I believe, of its history in which the 16 level 

cliff was done without any analysis and without any 

real understanding of the impact it would have. It is, 

as we have said in the past, a Cassandra-like, the 

steepest cliff in the guidelines. And its unfairness 

has shadowed the history of thus amendment. 

 With this reentry guideline, we also have the 

facts of the fast track. This was something that was 

not mentioned by Mr. Richter, but close to 75 percent 

of the cases that are begin dealt with, reentries, are 

fast-tracked. And the process in this way is signaling 

to the Commission and to the community at large, that 

the sentences are too high. 

 You would not have such an extensive fasttrack program, cutting sentences in half, unless the 

Department of Justice recognized that the sentences, 

without that fast track, are too steep. The Department 

of Justice is interested in fair sentences and we 

believe that the fast track is an indication that the 

Department recognizes the unfairness of the situation. 

 In the past years, and last year, there were 

various options. Options One through Six have left us 

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under-whelmed and we have responded with some 

criticisms of them. Option Seven, which comes out this 

year, is different. It is of interest. In that 

Option, the Commission is taking a bold step, a new 

step, toward looking at sentences imposed. We would 

argue it should be a sentence served, but that is a 

debate for another hearing. 

 With the sentence that is imposed by the 

state judge or federal judge, the Commission is 

recognizing that the court can be trusted, that judge 

is looking at the offense in front of her and is giving 

an appropriate sentence. It also gives the Commission 

a way of validating or understanding the plus 16. If 

you look at the plus 16 as 4 to 5 years, then maybe 

that should stand as a marker for what the previous or 

prior sentence should be. 

 With that said, we do have concerns with 

Option Seven. One is that some of the adjustments, a 

sentence of 12 months or more may capture or net too 

many. In many, if not most jurisdictions, we would 

argue that 12 months is a reflective sentence. It is a 

sentence that is just given for a variety of reasons. 

It may sound right. The person might have been unable 

to make a bond or bail, especially if you are dealing 

with indigent defendants, it may be a time served. So 

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it's one of those sentences that we think, if you're 

going to use it as a marker, it should be 13 months or 

more. This has the virtue of being consistent with 

Chapter 4 and with other measures that the Commission 

uses. 

 We are also concerned that the Commission, in 

Option Seven, is taking a step, but still looking over 

its shoulder with a categorical approach. In the 

Option Seven that the Commission has sent out, it has 

listed offenses, murder, sexual offense, which carries 

with it the categorical problems that Mr. Richter and 

the practitioners here have recognized. Once again, 

you'd be going back to look at the elements. Not all 

offenses are the same across the states. The 

Commission is to be commended for looking ahead to the 

sentence imposed and we would urge you to go all the 

way with that. 

 Our Option Eight comes forth and tries to 

deal with that by dispensing with the categorical 

approach in every offense except for terrorism and 

national security, which we then define according to 

the guidelines. Don't mix. Follow your convictions 

and follow the data. 

 Speaking of data, we are somewhat in the 

blind in that the Commission is still running the stats 

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on how Option Seven would affect the defendants. We 

have been working with the Commission staff. We have 

had some gleanings where it's going, but unless we know 

what the facts are and who it affects, we are in the 

blind and the Commission is in the blind. It is 

critical, and we all agree with this, that the options 

should punish the most culpable, that it should punish 

the ones that the Commission feels are the worst and 

not haphazardly bring in others. 

 We, with Option Seven, have conducted a 

survey of five districts, one in which the baseball 

team hasn't won a world series in 98 years, Tennessee, 

Massachusetts, several on the border including Texas, 

Southern and Western, and Arizona, and we're getting a 

mixed bag of results. There are some defendants who 

have seen a dramatic decrease from 51 months down to 

24. But 25 to 39 percent of the lower level of 

defendants are seeing a sharp increase. So you are 

going from 6, 12 months or even less to all of a sudden 

24 or around there. And this is because of some of the 

three sentences of 90 days or more. 

 So that is a real concern and that data needs 

to be parsed and to be examined. It's more important 

to get it right than to get it done fast. And this is 

a subject that we need to work with your staff and with 

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the Department on how does this affect? If the top 

just go down a little bit, but the bottom go up 

substantially, it may just even out as a four percent 

or a two percent, but you're affecting a far broader 

range and this is of concern. 

 In terms of documents, I testified last 

month. I will just reiterate that documents should not 

be equated with people, that documents are just not the 

same as an alien being smuggled in and the Commission 

should not go one-to-one ratio. 

 And finally, I must raise the case but dare 

not speak its name, which is Booker. The guidelines 

seems to be avoiding mentioning it or dealing with the 

advisory nature of the guidelines now. We would urge 

the Commission in its next guidelines, which I hope 

will be Yale Blue to deal with the advisory nature of 

the guidelines and to embrace 

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 CHAIR HINOJOSA: Ms. Baron-Evans? Thank you, 

Mr. Sands. 

 MS. BARON-EVANS: Thank you, Judge. 

Commissioners, thank you for having us there today. 

I'm going to talk about the Adam Walsh Act and also say 

a couple of words about demonstrations at national 

cemeteries and internet gambling, if I have, if I can 

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get to it. 

 We have provided you with a letter in which 

we propose alternatives to what the Commission has 

published. We believe a number of the proposed 

amendments go beyond what Congress required and, in 

some ways, are contrary to what Congress said, with a 

result that is unwarranted severity and unwarranted 

complexity. This is a long and messy statute and we've 

explained that in detail and I'll try to hit the 

highlights here. 

 I do want to spend some time on the failure 

to register guideline because that has been most 

vexing. And we've proposed an alternative, two 

alternatives to the one that was published in January. 

 I do want to say that it's especially 

important to avoid unwarranted severity in the sex 

offense area. The guidelines already 

disproportionately impact Native Americans in this 

area. Several of the mandatory minimums in the Adam 

Walsh Act are just going to make things worse. 

2241(c), 2250(c), 2260(a), you might look at these and, 

especially if you're a very law enforcement minded 

person, think that's great, lock them up forever. But 

remember, these are mostly Native Americans who are 

going to be impacted by these very severe mandatory 

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minimums and who are already prosecuted in federal 

court with the higher sentences, more than people of 

other races. 

 There's no evidence that sex offense 

sentences are too low. If anything, they're too high. 

 And so we believe that the Commission should take a 

very sparing approach and not go further than Congress 

required. 

 Back to the failure to register guideline, 

the first question which we discussed also in February 

is how to implement directives one and two which tell 

the Commission to consider whether the defendant 

committed another sex offense or offense against a 

minor in connection with or during the period for which 

the person failed to register. The version published 

in January used an approach that would apply steep 

increases based on unconvicted offense, in quotation 

marks, we think that is an incorrect reading of the 

congressional language. As we've mentioned before and 

as we've and laid out in writing in our letter, 

Congress used the word committed and it used the word 

offense in the other criminal statutes, 2250(c) and 

2260(a), where it's clearly referring to an offense of 

conviction. And in the Sex Offender Registration and 

Notification Act, it's talking about offenses of which 

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the defendant is convicted. The only rule of 

construction I know for when the same terms appear in 

the same statute is that they have the same meaning. 

 Besides that, though, you know, that's a 

formal analysis, as a matter of common sense, and I'm 

not aware of any time Congress has enacted a statute 

that says people should be punished based on an offense 

of which they were not convicted. You know, if someone 

can show me something like that, I'd be very interested 

to see it but I don't think Congress thinks in those 

terms. I haven't seen any evidence of it. 

 And if you just look at these directives and 

think what were they really thinking, especially in 

view of sort of the policy reasons behind this statute. 

 They're thinking of an instance where somebody is 

convicted of a -- or arrested for a sex offense and the 

authorities go, aha, he was also required to register 

and he failed to do so. This is just the guy that we 

want to punish more. It's usually a guy, sometimes a 

woman I suppose. So -- 

 CHAIR HINOJOSA: The data doesn't show that. 

 MS. BARON-EVANS: I would think not. 

 So we believe that, as a matter of common 

sense, what Congress had in mind was the situation 

where this person is going to be prosecuted at the same 

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time for the new sex offenses for the failure to 

register offense. We've proposed two options. One is 

Option One and the language that we've proposed is "If 

before sentencing the defendant is convicted of an 

offense that occurred during the failure to register 

status." And then we describe what types of offenses 

those would be. Under that option, the person could be 

convicted of, simultaneously in the same prosecution in 

federal court, in some other federal jurisdiction, if 

there was a venue problem, which there are venue 

problems in these cases because of the interstate 

travel issue, or in state court before the conviction 

in federal court for failure to register. 

 Our second option would implement the 

directives merely through the aggravated form of the 

offense. And that would allow or invite an upward 

departure if the crime of violence was also a sex 

offense as defined in the SORNA. We think this makes 

too, since most sex offenses will be crimes of 

violence. It's a reasonable interpretation of the 

statute. 

 We also think that the convicted -- there are 

a lot of practical difficulties. We've been talking 

about complexity and all these problems in the area of 

immigration. I think this would be even more complex 

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if you tried to use an offense, an un-convicted offense 

approach under these SOCs that add points for unconvicted offenses. The SORNA defines sex offenses as 

certain offenses under the law of any jurisdiction. 

States, tribes, foreign law, you name it. So what we 

would really have to have is not a category. There's 

not one definition. The judges would have to be trying 

to figure out what the elements of these offenses are. 

 And believe me, this is -- there's all manner of 

different, you know this too, probably, from your own, 

the judges from your cases, all manner of different 

definitions, for different sex offenses in different 

states. 

 North Carolina actually makes it a crime to 

have bad thoughts about a child. Not in the presence 

of the child. The child doesn't have to know about it. 

 And there are all kinds of different definitions for 

statutory rape, different age cut offs, etcetera. I 

don't know what elements are for tribal offenses or 

foreign offenses, but judges would be, and probation 

officers, would be in the position of trying to figure 

that out. That seems like a mess. A convicted 

offense approach removes that problem. 

 If you used an un-convicted offense approach 

and also retain this definition of minor which is 

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contrary to Congress's definition, it would allow 

circumvention of narrower definitions of minor, that 

is, the definition of a minor as an actual minor, that 

are required for conviction. 

 For example, you can't be convicted of an 

offense that involved an FBI agent posing as a minor or 

a minor that an FBI agent made up and told the 

defendant about by computer or phone, unless that 

offense exists as an attempt. So, for example, in the 

federal system, there's no such thing as attempt to sex 

traffic under 1591. There's just no such thing. So 

you will never see the fake minor situations in those 

cases. But, under the proposed guideline, at least the 

one that was published in January, a person could 

receive an SOC for attempted sex trafficking, even 

though there's no such offense. 

 There would be similar problems with 

definitions of child pornography which, of course, 

require a real minor for conviction, but under the 

guideline as written, that definition could be 

circumvented and SOC applied. 

 In general, like all of the un-convicted 

offenses in the guidelines an un-convicted approach 

here would create unwarranted disparity. A prosecutor 

could succeed in doubling or tripling the sentence by 

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proposing information in the pre-sentence report. 

Might be reliable, might not be reliable. It would all 

depend. 

 We had a very interesting case recently in 

Massachusetts, United States versus Quinn. And the 

reason it's interesting is because it sort of exposed 

something that happens all the time, but it exposed the 

problem because it happened in the same case. Two 

probation officers prepared two different pre-sentence 

reports for two defendants who were the only 

codefendants in the case. It was a drug case. It 

wasn't a large conspiracy. It was just the two of them 

and they were equals. And the one PSR figured out the 

sentence was 151 to 188 months and the other one said 

37 to 46 months. 

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 And Judge O'Toole, who is not a particular 

foe of the guidelines, as you might think some in 

Massachusetts are, but he said, and I think he's right, 

that he called this a structural problem within the 

guidelines relevant conduct rules because relevant 

conduct is applied or not, depending on how 

aggressively it is pursued. And he said that the 

scandal of the anomaly in this case is that it directly 

subverts the goal of avoiding unwarranted disparity. 

 It's a structural problem not only because 

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different probation officers and prosecutors and judges 

might pursue relevant conduct differently, but because 

it might be found, the same evidence could be credited 

or not by different courts. So that's another reason 

that we think that you should not use an un-convicted 

offense approach here. 

 The commission should also use Congress's 

definitions. In our proposal, Option One, we propose 

that you define minor just as Congress defined it in 

the SORNA, which is an individual who has not attained 

the age of 18. You could define an individual other 

than a minor as an individual who has attained the age 

of 18 or an FBI agent posing as a minor or a minor made 

up by an FBI agent. 

 And then, in our proposal, which is a 

compromise, we propose an eight-level enhancement for a 

sex offense against a real minor and a six-level 

enhancement for a sex offense against an individual 

other than a minor or for kidnapping or false 

imprisonment of a minor, but not if committed by a 

parent or guardian. I'm not sure if that was 

purposeful in the proposed amendment, but the SORNA 

excludes kidnapping and false imprisonment if committed 

by a parent or guardian and I'm not, the guidelines 

didn't seem to recognize that. 

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 In response to issue for comment number two, 

the Commission should not interpret directive Two as 

meaning any nonsexual offense against a minor. In 

context, Congress surely meant a specified offense 

against a minor, which is a specific list of offenses 

at 42 U.S.C. 16919(7). It surely did not mean things 

like drug trafficking against a minor, although I don't 

think there's actually any such thing, but I don't 

think that it's at all a reasonable reading of 

directive two to say that it applies to just any old 

offense against a minor. 

 We don't think that the Commission should use 

a 28 or 24 level floor or that it should raise the 

increases to make sure that a lot of people get up to 

the stat max. There's -- this is, you know, a failure 

to register offense with the statutory maximum of ten 

years. There are lots of offenses with statutory 

maximum of ten years that are punished quite leniently, 

a whole list of them, including a new one, unauthorized 

release of fingerprint information, which would be 

subject to four to ten months. 

 The stat max is not a good barometer, I don't 

think, of offense seriousness or relative seriousness 

and the Commission has generally not followed that 

because anybody would notice that the statutory 

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maximums really are not, don't really measure, are not 

a good indicator of offense seriousness. 

 The eight-level increase alone triples the 

sentence. The government has many tools, if it wants 

to get a higher sentence in an individual case. It can 

charge a substantive offense. If there's federal 

jurisdiction, it can charge 2250(c) to get a five year 

mandatory minimum, consecutive minimum. It can charge 

2260(a). It can ask for an upward variance. The 

Courts have gone sky high in some sex cases. I know 

the government likes to complain that judges have gone 

below the guidelines in sex cases, but they've gone sky 

high in sex cases, too. 

 I want to point out that although our 

recommendation includes the six and eight level 

increases, that's in the context of a guideline that 

also includes decreases for, according to the 

congressional directives. One, for a two level 

decrease, if the sentence served for the prior 

conviction was 13 months or less, which is based on 

directive four which tells the Commission to look at 

the seriousness of the prior, the offense that gave 

rise to the duty to register a two level increase, also 

under directive three if the defendant has had a clean 

record for ten years, there is a definition of this in 

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the SORNA, it's based on research showing that sex 

offenders, contrary to popular myth, do not re-offend 

at the same rate as regular offenders. And that 

treatment is actually quite effective. And so this 

clean record requirement would include completion of 

treatment. 

 I want to talk about a departure. I think 

that we, it's very -- well, I'll come back to the 

failure or the voluntary attempt to correct the failure 

to register. That's directive four. No, it's 

directive three. The purpose of this is obviously to 

encourage and reward registration. It recognizes that 

a defendant who tries to register is less culpable. 

 We've provided two cases to the staff which I hope 

you've seen in which defendants were turned away from 

the registry. One, in which the woman was told she 

wasn't required to register. Her probation officer 

insists she is. What will come of it, we don't know. 

It doesn't look like she really is. But, you know, 

there's this issue and it could turn into a case. 

 In the other case, this is a supervision 

violation, the guy is charged with failure to register. 

 He is a Native American and lives in a shelter in a 

city out west or a town out west. He went into 

register, after he was released from prison and they 

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told him, well, we only do this on Tuesdays and you 

need an advance appointment. And so he left and made 

an appointment to come back next Tuesday and was 

arrested in the interim for failure to register. 

 Now, put that together with people who live 

on a reservation, maybe 50, hundreds of miles away, who 

have no transportation or telephones, and they have to 

make an advance appointment in Tuesdays. This is a 

problem. So there are many scenarios in which a 

person can attempt to correct a failure to register and 

be thwarted through no fault of their own. 

 We also proposed a downward departure of the 

defendant did not comply or attempt to comply with the 

requirement to register because of circumstances to 

which he did not intentionally contribute. This would 

cover situations that do not meet the affirmative 

defense, because remember, the affirmative defense 

requires uncontrollable circumstances that cease to 

exist and did not voluntarily attempt to correct the 

failure to register because of similar ongoing 

circumstances. 

 We've given you letters from state public 

defenders who have represented people in state court 

for years that describe a host of situations that would 

stand in the way of a person being able to register, 

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including mental health problems, inability to read, 

improper notice, and things of that nature. 

 Mr. Richter talked to you about the fact that 

when a person is released from BOP or sentenced right 

now, they're given notice, and they are given a form to 

sign, and they are registered. And that a lot of the 

states are doing this now. Well the deadline for the 

states to do this is not until July of 2008. 

 Congress recognized that for people who 

commit new sex offenses, notice and actually getting 

them registered by an appropriate official is really 

important. They devoted a whole section of the statute 

to that. 

 Now, we think, unwisely, Congress gave the 

Attorney General the authority to decide whether this 

law is retroactive. But, at the same time, Congress 

said, in addition to making that decision, you have to 

publish rules that take care of getting people notified 

and registered who do have old convictions. On 

February 28th, we see that the AG published an interim 

ruling in which they say that the law is retroactive, 

but we're not going to publish rules at this time 

telling anyone how they might get notice or get 

registered. 

 Keep in mind, people who got notice when 

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being released from BOP now or at their sentencing now, 

they're not the ones being prosecuted. The people 

being prosecuted are the people with old offenses. 

Now, people who have old offenses may not be required 

to register in their states. In fact, a lot of people 

are not required to register in their states because 

the offense which might be one of the types that SORNA 

requires registration for, is not a type that the state 

requires registration for. Or, they've already sort 

of, the registration period under state law has run, or 

the person has been removed from the duty to register 

all together by a state that has one of those risk 

assessment systems, which the federal system doesn't 

have. 

 We've given the staff a case in which the 

defendant was not required to register in the state of 

conviction, in any state that he moved to. He didn't 

believe that he was required to register. And he is 

being prosecuted under SORNA. 

 We've just learned of a new case in which the 

defendant was convicted in 1984 in a state which had no 

sex offender registry at the time. They did not -- 

when they finally did get a registry, it was not 

retroactive. He's never been notified of a duty to 

register under any law and he's being prosecuted. 

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 So, the people being prosecuted are the ones 

who have not received notice and who have not been 

registered in compliance with the rules or with the 

statute that applies to everybody else. The 

affirmative defense does not take care of this. And I 

would also note that sometimes affirmative defenses 

don't work and the sentencing guidelines take account 

of those through a variety of means like the victim 

conduct departure, the lesser harms departure, coercion 

and duress, diminished capacity. 

 I'm going to, I think I'm way over time, 

aren't I? No? Yes? Okay. 

 CHAIR HINOJOSA: If you want to give us some 

time for questions, you might want to -- 

 MS. BARON-EVANS: All right. I want to just 

say one thing, on the mandatory minimums. There are 

four new mandatory minimums that the staff has proposed 

putting into the guidelines. There are a lot of sort 

of more detailed things in our letter that I think 

should be addressed, but the most important thing is 

that the mandatory -- we recommend, just like the 

judicial conference, that the Commission not try to 

continue to incorporate mandatory minimums into the 

guidelines. 

 You asked in an issue for comment which of 

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four proposals would we vote for or would we recommend. 

 And we say let 5G1.1(b) operate. There's a mechanism 

in the guidelines for mandatory minimums and it should 

be allowed to operate. 

 The guidelines that had been published and we 

did a lot of work reviewing cases that had been decided 

under these various statutes. Each of the guidelines 

for the mandatory minimums that have been published in 

January, end up at a level above the mandatory minimum 

in the standard case. We're not talking about an 

aggravated case, we're talking about a normal case, 

just by operation of SOCs that are inherent in these 

offenses. That shouldn't be. So we have proposed 

lower offense levels, if the Commission decides not to 

just let 5G1.1(b) operate. 

 We also urge the Commission to update the 

mandatory minimum report. This would be really helpful 

to the public and to Congress at this time. And one 

thing that occurs to me in that is how can the 

Commission compare mandatory minimums to good 

sentencing policy if mandatory minimums are 

incorporated in the guidelines for no reason except 

that they happen to be a mandatory minimum? So we 

recommend that the Commission stick with what it thinks 

is an appropriate sentence in the guidelines. And if 

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the mandatory minimum applies, it will trump through 

5G1.1(b). 

 Thank you. 

 CHAIR HINOJOSA: Thank you, Ms. Baron-Evans. 

 Mr. Debold? 

 MR. DEBOLD: Thank you Judge Hinojosa, 

members of the Commission. On behalf of my fellow cochair, Todd Bussert and the other members of the 

Practitioners Advisory Group, it's always a pleasure to 

be able to offer our input to the Commission on 

proposed amendments. 

 My testimony today will be limited to five of 

the categories that we addressed I our two letters that 

we sent to the Commission earlier this month. Those 

categories are transportation, intellectual property, 

the PATRIOT Act, drugs, and the Telephone Records and 

Privacy Protection Act. 

 Before I begin with the first of these 

topics, I did want to make a general observation to 

sort of put my comments in some context. There's a 

common thread that runs through our recommendations and 

that is, that the Commission should keep in mind the 

need to simplify or at least to avoid making more 

complicated the guidelines in its amendment process. 

 As Mr. Sands mentioned a few minutes ago, 

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1 although the guidelines manual does not mention the 

affect of the Booker decision on the guidelines, we 

have suggested that the Commission put some reference 

to it in the manual, especially, if we are 

practitioners who are less experienced with the federal 

system so they can understand how the guidelines fit 

into the greater scheme of things. 

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 But putting that point aside, after Booker, 

it's clear that the guidelines are advisory. They are 

one factor among several that the Court must take into 

consideration. And by constantly adding more and more 

factors for the court to consider and to assign a 

number to in the guideline application process, the 

Commission, over the years, has sometimes given a false 

sense of precision with the guidelines, especially with 

respect to how various factors might interrelate with 

one another in a way that the Commission may never have 

foreseen or intended. 

 So, with this in mind, we are proposing, as a 

general matter, that the guidelines manual become 

simpler and a number of our comments on the proposed 

amendments have that particular goal in mind. We think 

that this will better promote the dual and 

complimentary goals of treating like cases alike and 

avoiding the like treatment of cases that are not 

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alike. 

 Let me start with the transportation 

amendments. The Commission has asked for a comment on 

the appropriateness of a sentence enhancement for 

anybody was convicted either under 18 U.S.C. Sections 

659 or 2311. And this was something that was suggested 

by Congress in a directive to the Commission. 

 The Commission has proposed two possible ways 

in which this suggestion could be carried out, if in 

fact it is appropriate. One of them is to make any 

conviction under either of these statutes eligible for 

or grounds for the enhancement under 2B1.1(b)(4), which 

applies now to defendants who are in the business of 

receiving and selling stolen property. The other 

proposed place for putting this enhancement is 

2B1.1(b)(11), which currently is reserved for offenses 

that involved an organized scheme to steal vehicles or 

vehicle parts. 

 In short, the statutes that are proposed, 

that are mentioned here, especially Section 659, but 

also 2311 and the other statutes that are included in 

the Commission's request for comment, those are 2312 

and 2313, are very broad statutes that reach conduct 

far beyond what the current enhancements are meant to 

apply to. 659 basically covers any theft from an 

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interstate shipment or any receipt or sale of such 

stolen property. There's nothing special about that 

offense that really distinguishes it from other types 

of theft offenses that would warrant giving it its own 

special two-level enhancement simply because the 

prosecutor has chosen that particular statute in order 

to pursue the defendant and charge him for federal 

criminal conduct. 

 The Commission has also asked a request for 

comment number one under the transportation guidelines 

whether section 2Q1.2, which deals with certain 

environmental offenses, is an adequate guideline in 

terms of penalties for a new offense of 49 U.S.C. 

Section 5124, which applies to the release of a 

hazardous material that causes bodily injury or death. 

 We submit that there is no need to enhance 

the penalties under 2Q2.1(sic). A conviction under 

that statute for somebody who engages in repetitive 

discharges would be eligible for a sentence, under the 

guidelines alone, of up to 71 months. Now a judge 

already has the authority, under the application notes, 

to depart upward, and obviously, has the Booker

authority to vary from the guidelines. But the 

guidelines themselves specifically encourage an upward 

departure, if death or serious bodily injury results. 

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 We are unaware of data showing that there are 

a significant number of case where this factor in fact 

is present. And in lines with the idea of trying to 

keep the guidelines simple, we think that extraordinary 

and unusual circumstances were a higher penalty might 

be warranted are exactly the types of situations where 

the court should vary from the guidelines, rather than 

trying to build something into the guideline system 

itself. 

 The final request for comment on 

transportation guidelines that I want to address is 

bribery that affects port security. This is request 

for comment number three. 

 We agree with the suggestion that this 

guideline, that the guideline applicable to this new 

offense should be 2C1.1, the general bribery guideline. 

 An enhancement in that guideline that would 

account for an intent to commit an act of terrorism, we 

think, would be the preferable approach to the other 

suggestion of making a cross reference to other 

guidelines. It would better ensure that the guidelines 

enhancement is based on conduct for which the defendant 

has been convicted and we also suggest that the 

commission give clear guidance that in that situation, 

3A1.4, which is a chapter three enhancement for 

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offenses that are intended to promote terrorism, should 

not apply because it would simply be taking the same 

offense characteristic into account a second time. 

 The second topic I want to cover is 

intellectual property. The Commission is repromulgating an emergency amendment and proposing 

possible changes to that guideline that were not in the 

emergency amendment and these go specifically to socalled anti-circumvention devices, which deal with, 

among other things, devices that allow somebody to 

access software that is otherwise digitally locked. 

 We believe that of the three options the 

second option is the simplest to apply and the one that 

should be adopted. It asks the court to determine the 

retail value of the infringing item, in order to 

determine the infringement amount. 

 The first option has simplicity to it, 

because it does call for a minimum offense level of 12, 

but we do not, at this point, see the data that 

indicate the extent to which these offenses are 

occurring, or the nature of the offenses in order to 

determine whether or not that type of offense level is 

appropriate. This seems like a good example of where 

when you have a new statute, that the judges should 

have the authority to determine what the appropriate, 

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whether the current guideline provision which provides 

a different base offense level is appropriate, provide 

the feedback to the Commission and then, if the 

Commission sees that the guideline is not adequately 

covering the conduct, then the Commission can make the 

change. 

 Option number three has within it an 

alternative measure of infringement amount which looks 

to the price a person legitimately using the device 

would have paid. The defenders, in their letter which 

we agree with, point out that there are a number of 

ways in which this will greatly complicate the process 

of determining the amount of loss. It's very hard to 

determine the surrounding circumstances that would have 

existed in a hypothetical situation in which a person 

who is an end user of the software would have 

legitimately acquired it. And so we discourage the 

Commission from taking that approach. 

 As for the issues for comment under that 

guideline, we believe that there should be a mention in 

the application notes, as the Commission asks about, 

that a downward departure may be appropriate in 

circumstances where the infringement amount, especially 

depending on how the Commission deals with the proposal 

I just mentioned, where the infringement amount 

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overstates the seriousness of the offense. 

 And we also support the deletion of what is 

basically a per se rule, that every time somebody is 

sentenced under this guideline and commits a particular 

form of the offense, that the special skill enhancement 

should apply. We think that the court should be 

applying that enhancement based on the facts and 

circumstances of the case and as your own comments 

note, or request for comments note, there has been a 

feedback from the field that special skill enhancements 

are not appropriate in every case under this guideline. 

 Next the terrorism or PATRIOT Act provisions. 

 One of the provisions that the Commission has asked 

for comment on deals with the new narco-terrorism 

statute, which basically prohibits a person from 

engaging in conduct that is outlawed under section 

841(a) of the drug statute, distribution or possession 

with intent to distribute for example, when knowing or 

intending directly or even indirectly that anything of 

pecuniary value would be provided to someone who has 

engaged in terrorist activity in the past. It covers 

broader conduct than that, but I wanted to emphasize 

that aspect of it. 

 We propose that the Commission, if it's going 

to make any change in this area, go with the second 

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option, which is to create a new offense guideline 

specific to this offense. That is consistent with the 

approach the Commission has taken on, for example, sale 

of drugs within 1,000 feet of a school, which has its 

own statutory provision, and ensures that the defendant 

is being sentenced for conduct of which the defendant 

was convicted. 

 We do not believe that there should be a 

categorical disqualification from eligibility for 

either the safety valve or for a lower sentence as a 

minor mitigating offender. There obviously can be 

circumstances as I just described the statute where 

somebody is acting with the knowledge that somebody who 

has committed a terrorist act sometime in the distant 

past, will be receiving some sort of pecuniary value 

indirectly from the drug offense. And we believe that 

because of the broad, very broad nature of the statute, 

that that should not categorically disqualify somebody 

from eligibility for those provisions. 

 On the border, tunnels, and passages 

provision in the request for comment number two, the 

only point I would like to make there is that the 

proposed four-level enhancement on top of any other 

offense level that applies to somebody who is convicted 

under section 554(c), that's using a tunnel to engage 

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in some other offense, such as unlawfully smuggling an 

alien into the United States, the four-level 

enhancement, we believe, could result in very severe 

sentences, disproportionate to the additional conduct 

of using a tunnel, rather than some other means for 

bringing an alien into the U.S., especially considering 

that the immigration offense levels can get very high, 

based on other specific offense characteristics. We 

believe that enhancement would be disproportionately 

high. 

 The Commission has also asked for comment, 

comment number one, on whether the punishment for 

smuggling offenses is adequate. And it notes that 

Congress has increased the statutory maximum for 

Section 545 and 549 of Title 18. I want to use this as 

sort of a general point, which is that sometimes 

Congress will raise a statutory maximum for reasons 

other than its indication that it believes that the 

offenses are more serious than had previously been 

thought to be the case. And this very well may be one 

of those situations. 

 There may be smuggling violations that will 

occur or that have been occurring in the past, that in 

the unusual and extraordinary circumstances, warrant a 

sentence that is higher than currently available under 

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the statute. 

 Without some data showing that judges have 

needed to exceed the current guidelines or have seen an 

inadequacy in the current guidelines and without any 

specific guidance from congress that it believes that 

the current offenses and the current punishments for 

those offenses are inadequate, we don't believe that 

that should be seen as an invitation to cause a general 

increase in the offense levels for people who commit 

those offenses. 

 The next topic I want to address is the drug 

guidelines. The smuggling methamphetamine into the 

U.S. using the facilitated entry program, we generally 

take the position there that the enhancement that the 

Commission has proposed, a two-level enhancement, is 

sufficient to take into account this factor, especially 

considering the fact that people who already import 

methamphetamine into the U.S. receive a two-level 

increase for that drug alone. 

 I'm going to skip again to the 860(a), 21 

U.S.C. 860(a), which is the consecutive sentence for 

manufacturing or distributing or possessing with intent 

methamphetamine on premises where children are present 

or reside. The Commission is already aware that it has 

within the guidelines 2D1.1(b)(8)(c), which is a sixCourt Reporting Transcription 

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level enhancement or a floor of level 30 for person s 

who manufacture methamphetamine in a manner that 

creates a substantial risk of harm to a minor or an 

incompetent. The question is, what should the 

commission do in light of the new statutory provision 

that provides for a consecutive sentence for that 

conduct and additional conduct? 

 We recommend Option number one which the 

Commission has proposed. It's a two-level enhancement 

where the person is convicted under 860(a) but the 

provision already in the guidelines is not met because 

it has not imposed a risk, a substantial risk of harm 

to a minor or incompetent. 

 We think the other proposals to do not focus 

on in the real harm that is being addressed here, which 

is the risk that comes with manufacturing or imminent 

manufacturing of methamphetamine on premises where a 

minor is present. And we especially feel that it would 

be inappropriate to have this enhancement for someone 

who possesses with intent to distribute methamphetamine 

on premises where a child is present. There's no 

reason to believe that that imposes any great risk that 

possession with intent to distribute other types of 

drugs, again, after the manufacturing process has been 

completed. 

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 It would also be disproportionate under 

Option number two the punishments that the Commission 

already has for possession of drugs in a school zone, a 

two-level enhancement, using or possessing a firearm in 

connection with a drug trafficking offense, also a twolevel enhancement, or distributing drugs in a juvenile 

detention facility, again, a two-level enhancement. 

 Moving to section 841(g), this is the 

provision that was added by the Adam Walsh Act which 

criminalizes use of the internet to distribute a socalled date rape drug to any person knowing or with 

reasonable cause to believe that the drug would be used 

in the commission of criminal sexual conduct or that 

the person is not an authorized purchaser of the drug. 

 We have three observations, general observations about 

this provision. 

 First, to the extent that the statute applies 

to the distribution to someone who is unauthorized 

purchaser, it's hard to see why there should be an 

extra enhancement for that factor. Anybody who commits 

a violation of Section 841 is, by definition, 

distributing drugs to an unauthorized purchaser and it 

seems like that is already taken into account by the 

guidelines. 

 The real focus ought to be on whether the 

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person knows or intends for that drug to be used to 

commit criminal sexual conduct. It's also worth 

nothing that the commission already has a two-level 

enhancement where a drug is distributed through mass 

marketing by means over the internet. That's 

2D1.1(b)(5). 

 Finally, although Section 841(g) increases 

the statutory maximum for ketamine in this limited 

circumstances, where it is distributed under the 

circumstances I just described, we do not believe that 

warrants an across the board increase in the offense 

levels for ketamine, basically removing the cap of 

offense level 20 from the table and going further up 

the drug quantity table with additional enhancements. 

 In our letter, we have a specific proposal 

for how to deal with this new statute, which would 

allow a one- level enhancement if the defendant had a 

reasonable cause to believe the drug would be used to 

commit criminal sexual conduct and a two-level 

enhancement if the defendant knew of it. This 

distinguishes the degrees of culpability, with an aim 

for greater consistency in the guidelines. 

 It also is worth noting that if somebody 

violates the statute, there is already a 3A1.1(b) 

enhancement, when the person is found to have used the 

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controlled substance to facilitate commission of a 

sexual offense and so it is more consistent with 

current provision. And as I mentioned before, there is 

already a two-level enhancement for use of the 

internet. 

 The final provision I want to address is the 

Telephone Records and Privacy Protection Act. We agree 

with the Commissions suggestion that the applicable 

guideline be 2H3.1, which is basically a trespass 

guideline. 2B1.1, the other proposal, does not fit as 

well with the harm that is caused by obtaining 

somebody's telephone records, which is, basically, an 

invasion of their privacy. The 2H3.1 takes that into 

account by having a higher base offense level to 

account for that non-pecuniary harm. 

 In the aggravated form, where there's an 

intent to commit or further the commission of another 

crime we believe, as we stated in our letter, that the 

Commission should require a conviction under 

subsections (d) or (e), especially because the court is 

required to impose an additional period of imprisonment 

when those circumstances are present, especially under 

subsection (e). 

 Finally on the same topic, we note in our 

letter that we were shown by the Commission staff a 

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proposal by the President's Task Force on Identity 

Theft to possibly expand the definition of victim in 

the fraud and theft guideline. We know that the 

Commission has not sought public comment on this and so 

we think it would be premature for the Commission to 

consider such a proposal. But we also note that this 

would greatly expand the definition of victims to 

include those who are as much as inconvenienced by the 

commission of a crime and could have untold 

consequences on the definition of victim, as the courts 

interpret the Crime Victims' Rights Act, which provides 

a number of substantive and procedural rights for crime 

victims and we believe it would be a good idea for the 

Commission to seek specific comment on this proposal, 

before going any further with that proposal. 

 Again, on behalf of the Practitioners 

Advisory Group, we are grateful for the opportunity to 

provide our input and I am available for questions. 

 CHAIR HINOJOSA: Thank you, Mr. Debold and 

we'll have time for, I guess, a limited number of 

questions. And I'm going to start with mine on 

immigration. 

 Whether it's immigration or any subject, I 

guess we all can agree that Congress is 

constitutionally empowered to make the decisions as to 

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what is a crime and what is not under federal law, as 

well as determine what the maximum punishments are. 

And the immigration guidelines, for those of us who 

have worked in the system for a long time, for example, 

with regards to the statutes themselves, we saw the 

maximum go from 2 years to 15 years to 20 years. And 

we presently have a statutory system of 2 years, and 

then 10 years if you have been deported or removed, 

etcetera, etcetera after having committed a felony, 20 

years if it's after an aggravated felony. And as 

simple as Option Seven may seem, my question is, does 

that fit within the statutory scheme? 

 For example, just about every day, I hear 

from the defenders in the courtroom that aggravated 

felony needs to be alleged in the indictment, felony 

needs to be alleged in the indictment, which would, 

therefore, not do away with the categorical approach 

with regards to what the maximum are going to be 

because we still have to determine, under the law, as 

to whether you committed an aggravated felony or 

whether you committed a felony. And so we're not 

totally doing away with the -- we can't change the 

statute unless we're congress. And so we still have to 

make that determination with regards to what qualifies 

someone for a statutory maximum or the ten year 

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maximum, as opposed to the regular two year one. 

 And so the question is, does Option Seven, is 

it connected to the statute enough from the standpoint 

that we may have somebody who committed a felony, as 

opposed to somebody under the statute who committed an 

aggravated felony, be subjected to a much higher 

guideline range? And is that complying with the 

statutory scheme that Congress has decided as to how 

someone should be punished based on what they committed 

before they were deported or removed? 

 You know, is that pine, is that 

something that everybody would be comfortable with, 

knowing what the statutory scheme is and certainly with 

the defenders' situation that you argue every day in 

the courtroom that Almendarez-Torres is no longer the 

law and that it should be in the indictment which 

would, therefore, still require the court to do the 

categorical approach with regards to the aggravated 

felony? 

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 And you know, the aggravated felony within 

the statute is easy to determine except for the crime 

of violence one. I'm not talking about the guideline 

definition of aggravated felony, I'm talking about the 

statutory definition. 

 And so does anybody have any pause or any 

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comments with regards to how we still have a statute 

that we're dealing with in the courtroom, as opposed to 

just the guidelines or whatever 3553(a) factors as a 

whole we're considering? 

 Ms. Baron-Evans can answer it, if she wants 

to. 

 MS. BARON-EVANS: I'll pass. 

 MR. SANDS: It's connected because what 

you're doing is, you're looking at the punishment that 

the former court has given for purposes of the 

punishment now. In terms of felony or aggravated 

felony, that has repercussions both in the immigration 

context and in the statutory max. A court can still 

decide, given the situation, that a defendant should 

have a variance or a sentence that is higher. 

 But in terms of punishment, the court is 

looking, in this situation, as to what the prior was in 

the past and framing it with plus 16 or the plus 12 and 

so forth. 

 CHAIR HINOJOSA: Well, I know that's what the 

court's doing, but does that comply with what the 

statute is suggesting? I'm not talking about the 

guidelines plus 16s or plus 12s or plus 8. I mean, we 

know what the statutory scheme is and we know what 

Congress intended. 

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 So is that something that the guidelines 

should try to take into account other than just 

sentence imposed regardless of whether it was a felony 

or an aggravated felony or a misdemeanor in some 

situations with regards to where you have a two and a 

half year max? 

 MR. SANDS: Sometimes we have to call it the 

way we see it and Congress didn't know what it was 

doing in immigration. I mean, it's been a problem for 

a number of years. They have grafted things on. It’s 

not consistent. It's one of those statutes that has 

grown and so far, aggravated felony is encompassing 

prior convictions which are arguably less serious than 

felonies. So, the Commission should look at what the 

punishment should be for basically trespassing. 

 CHAIR HINOJOSA: Let me see if Mr. Richter 

can take a stab at this. Are you going to endorse the 

statement he made about Congress? No one on the 

Commission has endorsed it, but -- 

 MR. RICHTER: Well, I think the circumstances 

that have changed since we originally, the guidelines 

were originally promulgated in this area is the Shepard

and 

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made the administration in this area more challenging 

than was originally envisioned. 

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 And since -- first of all, we would say that 

the Commission is not required, statutorily, to use the 

conviction of an aggravated felony per se, use those 

words, in order to fashion an enhancement. And so, and 

of course as I outlined, the burden is significant. 

 But unlike the guideline, the term aggravated 

felony in 1326(b)(2) actually doesn't affect sentences 

because almost all 2L1.2 offenders fall within the ten 

year sentence in subsection (b)(1) for non-aggravated 

felonies. 

 And so I think under, practically speaking, 

it's not a real issue at this time. I would say 

prospectively that, to the extent that prior 

congressional action is indicative of future 

congressional action and I say that, there's no 

guarantee there. But certainly Senate Bill 2611 

recognized that problem and would have eliminated the 

aggravated felony provision from the statute. 

 So, we believe that that, that the Commission 

can go forward under Option Seven as is proposed. If 

you concluded otherwise, what we would suggest is that 

one of the possibilities then to consider is that you 

keep a present eight level increase for aggravated 

felony conviction by adding to subsection (d) of Option 

Six. But we can get into all those kind of details in 

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our work with the staff. 

 But I think the long and the short of it is 

is that practically speaking, that while we recognize 

that here is difference in the congressional language 

of the statute, as it plays out in these cases, it does 

not make a difference. 

 MR. SANDS: Mr. Richter is much more politic 

than I, but the Commission should not do policy to 

avoid a Supreme Court case of Shepard. It should do it 

for what's right, which is punish the more culpable and 

give courts guided discretion. 

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 CHAIR HINOJOSA: Based on the congressionally 

passed statute? 

 MR. SANDS: Yes, by all means. 

 CHAIR HINOJOSA: Vice Chair Steer? 

 COMMISSIONER STEER: Question on the 

immigration, illegal entry, reentry proposal. 

 I have long been troubled by the theory or 

the purpose of this guideline or the lack of it. It 

seems to me that these offenders have already been 

punished for the previous offense or offenses for which 

they were deported. So when they reenter we must be, I 

would think, trying to figure out which among them are 

the greater threat to society for re-offending, not 

just trying to whack them again because the committed 

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the prior offense, but our scheme in this guideline. 

 And I like, overall, the direction that we're 

going in in Option Seven and eight does that. I mean, 

it basically says that the person who has had the more 

serious offense measured by the sentence is the one who 

is going to be in prison the longer. 

 The one thing it doesn't have, if it's about 

dangerousness, that it seems to me that it should have, 

is a way of differentiating between the person who is 

caught at the border coming back and the person who is 

caught sometime later while within, often after having 

been picked up for having committed another offense. 

 So shouldn't there be some enhancement in this 

guideline for committing another offense after you 

cross the border and come back that's not in there now? 

 MR. SANDS: To use your words, you're 

whacking them again, because you're going to get the -- 

 COMMISSIONER STEER: But this time, you're 

whacking them for an offense committed. No, no, no, 

they may not have been convicted for it yet. I know 

that raises all the -- 

 MR. SANDS: So we punish them? 

 COMMISSIONER STEER: But I would -- yes. I 

mean, we do that tin other guidelines, why not do it 

here? 

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 MR. SANDS: Because it's wrong. I mean, we 

have argued against residuum conduct, but unless they 

have been convicted, I don't think courts should start 

saying, well, you were picked up and you may have been 

doing drugs and you may have been doing this, and they 

would have served that sentence state-wide. 

 If you start doing the border situation, then 

you're going to get into the disparity. What is the 

border? What is the functional equivalent of the 

border? Should you start drawing the line at Phoenix 

or at Albuquerque or Los Vegas? It becomes more 

difficult. A lot of them -- I think danger lays that 

way. 

 CHAIR HINOJOSA: Judge Castillo has a 

question then I have a very brief follow-up to the 

issue of the amount to time served. And I guess this 

is directed at defenders. 

 I often in the courtroom the argument when 

someone has received a higher sentence for a very 

similar or the same type of offense for somebody who 

got a much lower sentence, this person has already paid 

the price with regards to the commission of this 

offense and now you're going ahead and adding the same 

amount as you would for the someone who would maybe on 

the same day you're sentencing somebody who committed 

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the exact same offense, but because of the whole 50 

jurisdictions that we have with the different states, 

received a much lower sentence for the same offense. 

Is that something you all have thought about or have 

considered, since you all make that argument in the 

courtroom? 

 MR. SANDS: We are trying to use the marker 

of, we would like to use the marker of sentence served. 

 Because we think that's better than sentence imposed. 

 It is a national system. It is an imperfect system. 

We believe the way this is going with Option Seven and 

Eight that the sentence imposed is better than the 

categorical approach now. And we can work with staff 

to deal with this. 

 MR. RICHTER: If I might? I think you know, 

first of all, the things that Jonathan Wroblewski 

indicated about criminal history and its predictorism 

on recidivism are important to recognize. Undoubtedly, 

there are circumstances. And the colleagues to my left 

are certainly going to indicate and come up with the 

circumstances in which some how the sentence seemed, 

for the underlying offense, seemed too wrong. 

 I would posit that there are also 

circumstances where the contrary is the case. And I 

can speak firsthand during my tenure as a state 

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prosecutor of many occasions where someone who was 

potentially deportable in any illegal status was given 

a far shorter sentence, under the assumption that they 

were going to be deported, rather than actually being 

treated as they might be treated if they were full 

citizens. 

 We can't unpack each and every one of these 

cases. What we have to do is look at reasonable 

predictors. And we would submit to you that the 

criminal history scheme that we've come up with under 

the guidelines is a very reasonable predictor and so, 

therefore, while certainly I would expect those able, 

creative arguments to be made in course, as you hear, I 

think at some level we have to recognize that those 

arguments exist in every single case, in potentially 

every single case in both directions. 

 The other side of it is to keep in mind that 

we still, of course, do have an upward departure for 

over representing criminal history that's available to 

be considered and to serve as that relief in the 

circumstances where it's inappropriate. 

 CHAIR HINOJOSA: Vice Chair Castillo? 

 JUDGE CASTILLO: Well, I hope we can overcome 

the Chair's statutory concerns because I think Options 

Seven and Eight are steps in the right direction and I 

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appreciate the Department of Justice taking the 

laboring the federal defenders' commenting so quickly 

on Option Eight. 

 I'm wondering, Mr. Richter, if you have any 

quick reaction to Option Eight, as it was amended off 

of your Option Seven? 

 MR. RICHTER: Again, we have looked at that 

option and, as I really understand the differences, 

it's tweaking it in order to essentially gain what we 

believe to be net neutrality in terms of the total 

number of defendants. 

 What we are looking for, again, we are not 

looking for a change in this guideline that makes it 

more severe against, in the illegal reentry context. 

We are not looking for one that makes it more lenient 

either. What we are looking for is a guideline that is 

easier for all parties to administer. And so, as I 

understand the difference between the two options, it's 

essentially being data driven in an attempt to find 

appropriate calibrations or triggers that would 

maintain that neutrality. 

 So, you know, we favor one that will achieve 

that end and my understanding is it's still in ongoing 

discussions as to whether, which ones of these, or 

whether some further tweaking of option is eight is 

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necessary to get that, get as close to that end. 

 CHAIR HINOJOSA: One follow-up on another 

issue. You're not going to be here, I don't think, 

this afternoon. We're going to hear about crack 

cocaine. Is there anything else you want to say, other 

than what you've submitted in writing on that issue? 

 MR. RICHTER: Not at this time, Judge. 

 CHAIR HINOJOSA: Okay. Vice Chair Sessions. 

 JUDGE SESSIONS: The distinction relates also 

to the categorical approach. You basically included 

sexual abuse, child sexual abuse, pornography, murder, 

obviously. And I think Mr. Sands was suggesting that 

that may create the same kind of issues that cause 

problems now. 

 MR. RICHTER: I think it's important to 

recognize that of the 8600 or so cases that really 

dealt with this particular guideline in the past fiscal 

year, the vast majority of them would have dealt with, 

used a categorical approach. 

 Under this new guideline as proposed, in the 

overwhelming circumstances, we wouldn't have to use 

categorical. And the ones that we put in there, are 

fallback situations, essentially to deal with the most 

serious offenses where in fact you have a situation 

truly in which for some reason the statute itself, or I 

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mean, the sentence itself somehow is woefully 

underrepresented. So that we see as sort of a fallback 

mechanism, but a fallback mechanism that would not be 

used in any great volume and so, therefore, we believe 

really the length of sentence would drive the 

overwhelming of the cases. 

 JUDGE SESSIONS: But don't you think the 

child sexual abuse may very result in litigation, 

trying to figure out how various state convictions, 

state statutes apply under that definition? 

 MR. RICHTER: If in fact that's the, if the 

prosecutor believed that it was necessary to make use 

of the criminal, of the sexual abuse categorical 

language in the guideline. The point I'm trying to 

make is that, under ordinary circumstances, if the 

individual had a prior conviction and the length of 

sentence was there, and assuming that it was serious, 

that sexual abuse conviction would have received a 

lengthy sentence anyway and likely would be much easier 

to administer. 

 And we've got to recognize the world in which 

we're operating, which is, in a very high volume 

circumstances in which the great institutional 

incentive is going to be to move with the length of 

sentence markers, rather than any categorical markers 

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because of the very intensive documentation that has to 

be garnered in order to do that. And so it would be 

the more extraordinary case where for some reason 

required it. But we see that and we have very 

carefully, therefore, limited it and gotten away from 

terms of crime of violence or drug trafficking that are 

some of the harder terms to define. 

 I think the short answer is, we don't really 

want the perfect to be the enemy of the good here. 

 MS. BARON-EVANS: Could I just -- 

 JUDGE SESSIONS: Can I quote you on that one? 

 That's a good quote. Can I get you -- 

 MR. RICHTER: I didn't make it up, Judge. 

 JUDGE SESSIONS: I didn't think so. 

 CHAIR HINOJOSA: We have one time for your 

last comment here. 

 MS. BARON-EVANS: I just want to say, which 

is probably obvious anyway, that the way that the 

Department defined the offense of child sexual abuse 

would include statutory rape. I mean, basically, 

consensual sex between teenagers, even if it got no 

time. 

 So our proposal would be to reserve the 16 

levels for offenses that received at least 48 months. 

And that would sort of, you know, more accurately 

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separate serious from non-serious offenses of any kind. 

 I mean, murder is not going to be really murder unless 

it got over 48 months. Forcible rape, same thing. 

 CHAIR HINOJOSA: Thank you all very much. 

 (Whereupon the hearing went off the record at 

11:54 a.m. and went back on the record at 11:55 a.m.) 

 CHAIR HINOJOSA: In front of us we have Judge 

 Reggie B. Walton of the United States Judicial 

Conference. Judge Walton also has great experience 

having previously served as an Associate Judge of the 

Superior Court of the District of Columbia from 1981 to 

1989 and then 1991 to 2001. In between 1989 and 1991, 

Judge Walton served as the Associate Director of the 

Office National Control Policy in the Executive Office 

of the President and as President George H. W. Bush's 

Senior White House Advisor for Crime. 

 Judge Walton, we certainly appreciate your 

time from your busy schedule to be here with us, to 

share your thoughts on behalf of yourself and the 

Criminal Law Committee and the Judicial Conference. 

 JUDGE WALTON: Good morning to all. Mr. 

Chairman, members of the Commission, it is a pleasure 

to have the opportunity to appear before you again to 

present the comments on behalf of the Criminal Law 

Committee. 

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 I'm here to speak about one topic that I know 

is under consideration by the Commission and that is, 

the question of how the Commission should deal with the 

Adam Walsh Legislation and that aspect of the 

legislation that has created new mandatory minimums or 

increased existing mandatory minimums. My comments 

will be brief, so I'll leave time for questions, if you 

have any, and they're basically three-fold. 

 We, as a committee, did consider the four 

options that we know are on the table by the Commission 

and we received comments, I believe, from all of the 

committee members. And the uniform position is that 

the first three options are not favored by the 

committee and that we do, however, favor the fourth 

option with a minor alteration. 

 As you know, there has been an historical 

opposition on the part of the Judicial Conference to 

mandatory minimum sentences for a host of different 

reasons. And that is one of the reasons why we have a 

concern with the first three options that are on the 

table for the Commission. 

 We also believe that the mandatory minimum 

should not act as a mechanical reason to increase the 

base offense level, just because of the existence of 

the mandatory minimum. That's not to say, obviously, 

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that the Commission should not take into account what 

congress has decided in reference to mandatory 

minimums. That's, I think, an obligation that you must 

do. 

 However, having been involved, when I worked 

in the Executive Branch, with the development of 

legislation, as I'm sure all of you well know, there 

are a lot of reasons why legislation takes place and 

comes into being. And why it ends up being ultimately 

what it is that ultimately may not have anything to do, 

as it relates to the sentencing arena, with the issue 

of what is fair and just, as it relates to sentencing. 

 There may be a host of political factors that come 

into play that will dictate how congress responds and 

takes action in reference to what a mandatory minimum 

should be. 

 And because of those interplays or things 

that come into play that impact on what congress does, 

we think that the Commission should make its own 

independent decision as to what an appropriate 

guideline sentence should be. You were created because 

of the expertise that you bring to the issue of 

sentencing and we would believe that it would be 

appropriate for you to make an independent assessment 

as to what you think an appropriate guideline sentence 

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should be, irrespective of what congress has said 

regarding the mandatory minimums. 

 Obviously, with mandatory minimums in place, 

the guideline process has taken that into account. And 

if there is a mandatory minimum, then the guidelines 

obviously provide that the mandatory minimum would 

trump whatever guideline exists and that mandatory 

minimum would have to be imposed. 

 The final reason why we have favor for the 

fourth option with a modification is that, as you know, 

there are many circumstances where judges need not 

impose the mandatory minimum. For example, even in 

this arena or this area of criminal offenses, there 

inevitably will be individuals who will provide 

cooperation to the government. And as a result of 

that, the government will make a recommendation to the 

sentencing judge for a reduced sentence, based upon the 

defendant having provided substantial cooperation. If 

judges know that the Commission has assessed this 

arena, it has made an informed decision as to what the 

guideline sentence should be, that will be very helpful 

to a judge like me, who frequently has to make the 

tough call as to what an appropriate sentence should be 

when the mandatory minimum need not be imposed, because 

of substantial cooperation. 

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 I know judges struggle with, especially in my 

district where there is no set percentage reduction 

that's given to someone who has provided substantial 

assistance, and it basically is an individual decision 

that the judge has to make with recommendations, 

obviously made by the prosecution and the defense as to 

what an appropriate sentence is. And if we knew that 

the Commission had made an assessment as to what the 

sentencing guidelines should be irrespective of what 

the mandatory minimums are, that would be very helpful, 

I think, in our assessment as to what an appropriate 

sentence or a fair and just sentence should be, when 

we're not required to impose the mandatory minimum 

sentence. 

 So I believe that this issue, as all issues 

as it relates to sentencing, goes to the fundamental 

aspect of the criminal justice system and that is, what 

is fair and just. And I think that, at bottom, the 

Commission should make its own informed, intelligent 

decision as to what you think an appropriate guideline 

sentence is respective of what Congress has decided as 

to what the mandatory minimum should be, taking into 

account, obviously, what Congress has said in that 

respect. 

 The alternation that we would recommend in 

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reference to the fourth option is that we think, 

because Congress has made the decision to increase and 

provide new mandatory minimums in this area of law, 

that it is obviously appropriate for the Commission to 

reevaluate the existing guidelines and base offense 

levels that you've set and to make a determination, 

taking into account what Congress has said, in deciding 

whether those base offense level should remain as they 

are, or whether they should be increased, based upon 

your assessment as to the seriousness of the conduct 

that an individual has been charged with. 

 With that, if the Commission has any 

questions, I'd be glad to try and entertain them. 

 CHAIR HINOJOSA: I guess everybody's afraid 

of Your Judgeship. 

 JUDGE WALTON: I don't think so. 

 COMMISSIONER FRIEDRICH: I have one question. 

 CHAIR HINOJOSA: Commissioner Friedrich. 

 COMMISSIONER FRIEDRICH: I share your 

concerns about the tension between the mandatory 

minimums promulgated by Congress and the Sentencing 

Reform Act. And if I was looking at this issue in the 

first instance, some 20 years ago, I would view it 

somewhat differently, but the difficulty I have with 

the recommendation of the Conference is, don't we need 

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to consider the 20 years of practice of the Commission 

and Congress's acquiescence? So far as I'm aware, 

there hasn't been an occasion where the Commission has 

not pegged, in some way, the guidelines to the 

mandatory minimums in the drug context, the base 

offense levels are above mandatory minimum. Recently 

in the Protect Act, the Commission went below. In 

other context, they're within in the range. 

 Do we not need some sort of clear direction 

from Congress saying, although we've enacted these 

mandatory minimums, we're not implicitly telling the 

Commission to bump up, if that is what required of the 

guidelines? Just given that past practice? 

 JUDGE WALTON: Yes, I think obviously, 

consistency in approach is important, but I don't think 

it should necessarily trump what is right. And if the 

decision made years ago as to how this issue should be 

addressed was not the correct decision, I don't think 

that that mistake should be repeated. 

 I, as I say, appreciate the need to have 

consistency, but maybe this would be a first good start 

in reassessing whether that prior approach is 

appropriate. 

 As I say, it seems to me it is extremely 

important for us judges that we have some appreciation 

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from a body like yourself as to what a reasonable 

sentence is, if we are authorized by the circumstances 

to go below what the mandatory minimum sentence is. 

And if you have intelligently made an assessment as to 

what the appropriate guideline sentence should be, 

respective of what the mandatory minimum provides for, 

I think it would be very helpful to us and would bring 

uniformity, at least to some degree, to the sentencing 

scheme when judges are permitted to go below the 

mandatory minimum. Because as you know, I think 

statistic will show that by and large, judges do, even 

post-Booker, try and impose a sentence within the 

guideline absent circumstances that would otherwise 

justify some sentence outside of the guideline. 

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 So I think that if you took this approach, it 

would help to provide greater uniformity and give 

guidance to judges as to what a reasonable and fair 

sentence is. 

 COMMISSIONER FRIEDRICH: And if we did take 

this approach, would the Conference, I assume support 

reconsidering whether that approach should be applied 

in other context? 

 JUDGE WALTON: I don't think I have 

permission to speak on behalf of the Conference in 

reference to that, but I would assume that that would 

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in fact be the position that the Conference would take. 

 CHAIR HINOJOSA: Vice Chair Steer? 

 COMMISSIONER STEER: Well, of course, the 

approach that you advise is essentially, in part, the 

Commission has provided guidance, for example, in the 

drug trafficking area of what the judge should do if 

freed from a mandatory minimum in a safety valve case. 

 He can apply the mitigators that are available for 

acceptance of responsibility, mitigating role, 

mitigating role cap, the safety valve reduction, in the 

guideline and so forth. So, it provides a downward 

structures, does it not? 

 But it starts, basically, with a sentence, if 

there are no aggravating or mitigating factors in the 

case, then the sentence is basically commensurate with 

the mandatory minimum. So, that structure is there. 

Is it not? 

 JUDGE WALTON: In the area of the safety 

valve guideline, yes. I would say, yes, there is 

guidance that would assist judges. 

 But in the area of substantial cooperation, 

there isn't that same structure. And in my experience 

and knowledge, judges tend to be all over the map when 

substantial assistance comes into play. And again, I 

think there needs to be or should be some level of 

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uniformity throughout the country as to what judges are 

doing when that factor is in play. 

 COMMISSIONER STEER: Well I agree with you 

very much on that point. Unfortunately, I think you 

need to speak to your judicial colleagues on the 

Commission and convince them that they need to provide 

a structure for guiding substantial assistance below 

guideline sentences. 

 JUDGE WALTON: Well, I don't -- 

 CHAIR HINOJOSA: Speaking on behalf of the 

Judges on the Commission, I will say that this 

particular issue in my work on the Commission has 

surprised me more than a lot of other issues, with 

regards to the view of some judges because by the very 

nature of, or maybe you disagree Judge, by the very 

nature of the fact that the government has filed a 

motion for cooperation and assistance departure, which 

is statutorily allowed and also within the guideline 

system, even under the Advisory Guideline system, that 

case has been totally set aside from every other case 

with regards to that particular individual being 

entitled to a disparity of a sentence. 

 But it depends on that particular case with 

regards to the level of cooperation, the kind of 

cooperation, the danger the person placed themselves 

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into, which would be very difficult because it's not 

the general type of case for someone to be able to say, 

this is what you do with regards to this particular 

case. I mean, that's why, at that point, and maybe 

those of us who have done sentencing without a 

guideline system, then realize this is where you would 

be without a guideline system, but you have to assess 

the level of cooperation and the type of cooperation. 

Not everyone does the same to merit the filing of the 

motion. 

 And so, therefore, there's a lot of 

independent judgment that has to be done with regards 

to that case, as opposed to just one set of guidelines 

that tells you, not knowing what kind of cooperation 

everybody has done or the level of danger they placed 

themselves into. And so I guess that's why sometimes 

when you hear that, you sort of wonder well, how can 

you do that without knowing each individual case. 

 JUDGE WALTON: I mean, I totally agree with 

everything that you've indicated. I had a sentencing 

this morning. And it was a tough sentencing for me 

because the government was recommending something, 

because of the level of cooperation this individual had 

provided, which I was very troubled about because I 

thought it was fairly lenient, what was being 

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recommended, in light of this individual's prior 

history. But he had provided cooperation that not only 

had placed him in danger, when he is deported back to 

his home country, he'll still be in danger because many 

of the individuals who he implicated, have been 

deported back to that same country. His life, while 

he's been detained for the period of time he's been in 

custody, has been a hell hole because it was known that 

he was providing cooperation. 

 So obviously, there are so many factors, as 

you say that come into play, when you're talking about 

the substantial cooperation issue, that I think it 

would be very difficult to pose guidelines that would 

provide the type of fairness that we're talking about. 

 But if we did have what I'm talking about regarding 

this fourth option, it would at least give us some 

appreciation of what is a fair and just sentence in a 

given situation. 

 CHAIR HINOJOSA: Does anybody else have any 

other questions? 

 Judge, again, we thank you. You have come 

and contributed again on behalf of the Criminal Law 

Committee. We very much appreciate your time and 

certainly enjoy the working relationship that we have 

with the Criminal Law Committee and have had for many 

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many years. And the advice that you give us as well as 

the advice that we get from judges every day through 

their sentencing information that's sent to us is 

extremely helpful, obviously. 

 JUDGE WALTON: And I assume you've received -

- 

 CHAIR HINOJOSA: Yes, sir. 

 JUDGE WALTON: -- the written comments? 

 CHAIR HINOJOSA: Yes. 

 JUDGE WALTON: Thank you -- 

 CHAIR HINOJOSA: Thank you. 

 JUDGE WALTON: -- for having me. 

 (Whereupon, the foregoing hearing recessed 

for lunch at 12:07 p.m.) 

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A F T E R N O O N S E S S I O N

(1:45 p.m.) 

 CHAIR HINOJOSA: Again, we thank you. And 

each of one you of you has contributed so much through 

the years to the Commission's work and we certainly 

appreciate everything that you do with regards to the 

Commissions' work. 

 We've got Ms. Deborah Small, who is the 

Executive Director of Break The Chains, an organization 

that seeks to build a national movement within 

communities of color against punitive drug policies. 

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Before assuming her position with Break The Chains, Ms. 

Small was Director of Public Policy for the Drug Policy 

Alliance, where she spoke regularly to the public and 

elected officials. And she has previously served as 

Legislative Director of the New York Civil Liberties 

Union. 

 Ms. Anne Blanchard is a Sentencing Resource 

Counsel to the Federal Public and Community Defenders. 

 In that capacity, she and Ms. Baron-Evans, whom you 

heard from before, support the Federal Defender 

Guideline Committee and their advocacy before the U.S. 

Sentencing Commission, provide training in sentencing 

advocacy for both defenders and criminal justice act 

attorneys. And Ms. Blanchard has been a long-standing 

member of Federal Defenders Guidelines Committee, as 

well as the Sentencing Commission's Practitioner's 

Advisory Group. 

 Ms. Mary Price is Vice President and General 

Counsel of Families Against Mandatory Minimums, where 

she directs the FAMM Litigation Project and works on 

federal sentencing reform on capital hill and before 

the United States Sentencing Commission. She is a 

member of the American Bar Association's Corrections 

and Sentencing Committee and serves on the 

Practitioners Advisory Group to the Commission itself. 

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 Stephen Saltzburg is, of course, the Wallace 

and Beverley Woodbury University Professor at the 

George Washington University Law School. In 1988 and 

'89, he served as Deputy Assistant Attorney General in 

the 

Criminal Division of the Department of Justice and in 

1989 and 1990, actually was the Ex Officio 

representative on the U.S. Sentencing Commission. At 

that time, I guess the Commission did everything 

exactly right. And he serves as a member of the ABA 

House of Delegates for the Criminal Justice Section and 

is Chair-Elect of the Criminal Justice Section of the 

ABA. 

 And Mr. Eric Sterling, who I have been 

assured is on his way down, has been President of the 

Criminal Justice Policy Foundation, a nonprofit 

educational organization. He was counsel to the U.S. 

House of Representatives Committee on the judiciary 

from 1979 until 1989 and he serves as liaison for the 

Standing Committee on Substance Abuse of the American 

Bar Association and was Co-chair of Drug Policy 

Committee of the National Association of Criminal 

Defense Lawyers. And we will be glad to hear from his 

also, just as soon as he gets here. 

 We'll start with your, Mr. Saltzburg, Dr. 

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Saltzburg. 

 DR. SALTZBURG: Thank you Chairman Hinojosa, 

members of the Commission. I only have five minutes 

and I don't intend to repeat what we've said for the 

American Bar Association in the written statement. I 

think we've given you, rather carefully, on the 

position that we urge the Commission to take, but there 

are just three points that I would like to make. And 

these are the three that seem to me to be the most 

important. 

 First, and I say this wit some reluctance, 

knowing that you've spent the morning dealing with 

other issues. This is not, the issue of extraordinary 

and compelling release for some prisoners, is not the 

only thing on your plate, I realize that. But I plead 

guilty, along with you, to being part of a Commission 

that has basically never done what Congress asked the 

Commission to do. And that is, namely, to describe 

what should be considered extraordinary and compelling 

situations and to provide examples. 

 Basically the Commission has been AWOL on 

this for its entire history, including when I was the 

Ex Officio member. And it's a glaring omission. And 

one of the few times the Commission has ever allowed 

itself to sort of just throw up its hands and do 

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nothing. And I think this is an omission that needs to 

be fixed. 

 Last year, the Commission took a step at it, 

but step was a to basically say, if the Bureau of 

Prisons makes a motion, then that satisfies the 

section. It didn't provide any standards. It didn't 

provide guidance. And it didn't provide examples. All 

of those things Congress anticipated in 1984 and all of 

those things remain important today. That's my first 

point. 

 My second point is that with all due respect 

to Ben Campbell, whom I like a lot and does a great job 

for the Department here on the Commission, I don't 

agree with the position that the Department took in 

it's July letter to you of last year, which basically 

established two points above all, I think. There were 

others. 

 Number one, that for you to provide standards 

would be a sort of reinstate parole. Well, nobody here 

is asking you to reinstate parole. That's another 

debate that one could have, but it's not what Congress 

provided in 1984 when it continued preexisting law with 

respect to extraordinary and compelling circumstances 

of release. The ABA has given you a draft. We're not 

saying it's perfect, but it's a draft, of what a 

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standard, a set of standards might look like. And it's 

a far cry from letting lots of people go or providing 

for parole as a routine matter. 

 The other thing is, the Department has said 

that if you were to do anything, other than to ratify 

whatever the Bureau of Prisons does, that would be a 

dead letter. Well, there's no reason to believe that, 

given that Congress is sitting out there and at least 

making noise about oversight of the Department of 

Justice in ways that it hasn't undertaken for a long 

time. 

 If Congress chooses to engage in the kind of 

oversight some of think that it should, one of the 

issues Congress might look at is, a period in which 

Bureau of Prisons has basically narrowed the 

circumstances in which it will make motions. And 

narrowed in ways that seem inconsistent with the 

legislative history, at least, of the Sentencing Reform 

Act of 1984. 

 And therefore, if this Commission were to set 

standards, and the Bureau of Prisons were to adhere to 

its very limited policy of making motions, it's not 

necessarily a dead letter. It may very well be that 

the other branch of government, that is the 

Legislature, may actually get into the act and decide 

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to the change the statute, require the Commission to do 

something more, or in fact, require the Bureau of 

Prisons to adopt different policies. We have to see 

what will happen. 

 And finally the third point. The third point 

is that sometimes, amidst all of the statutory 

citations, all of the guideline references that we have 

in these materials. And I mean, you see a lot more of 

this than I do, sometimes I think that we lose sight of 

the fact that these are human beings that we're putting 

in prison. These are human beings who are being 

sentenced. And as Justice Kennedy said when he spoke 

to the American Bar Association in August of 2003, he 

said lawyers and judges are sometimes quick to forget 

something that this group and this Commission probably 

needs to remember most of all, and that is, when the 

gavel comes down and the judge pronounces sentence, 

that's not the end of the matter. 

 The end of the matter is that most of these 

people will come out of prison at some point. Most of 

these prisoners will go on with their lives. Many of 

these prisoners have families. So we're dealing with 

flesh and blood issues and when we talk about 

compelling and extraordinary circumstances, we talk 

about the situations that cry out for human beings to 

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look at what they're doing to other human beings. 

 And the American Bar Association believes and 

I firmly support this, that for more than 20 years, the 

Commission has done nothing with respect to the 

statutory or mandate, excuse me, that Congress imposed 

with respect to compelling and extraordinary 

circumstances. And it's high time, we think, that the 

Commission, despite its workload and the very important 

other issues that it's dealing with, just fill this gap 

and set standards, provide examples. And then let's 

see what happens with the Bureau of Prisons, whether 

they make motions and let's see what happens in the 

political arena, if they do not. 

 Thank you. 

 CHAIR HINOJOSA: Thank you Dr. Saltzburg. 

Ms. Price? 

 MS. PRICE: Thank you. I'm here actually 

speaking on behalf of not only Families Against 

Mandatory Minimums on this issue, but also the 

Practitioners Advisory Group and I did see if I could 

extend my time to ten minutes, but was unsuccessful. 

But I'll try and put it into five, at the minimum. 

 FAMM and the Practitioners Advisory Group 

really welcome the Commission's continued interest in 

this area. We've long championed the reading of the 

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Compassionate Release Statute, consistent with 

congressional intent that it be used not only for 

debilitating mental and medical health circumstances, 

but also for other, non-medical reasons. 

 Our concern was motivated by, among other 

things, the many stories certainly that we've heard at 

FAMM and I expect members of the Practitioner's Group 

as well, from prisoners and from family members and 

others about compelling circumstances that arose after 

sentencing that could not be accounted for by the 

judge, despite the nature of them. 

 So we, at FAMM, began to assist prisoners in 

their petitions were stunned to learn how seldom the 

director of the Bureau of Prisons brought the motions 

to sentencing court for sentence reductions. 18 U.S.C. 

3582(c)(1)(A) talks about extraordinary and compelling 

reasons, but in practice, the Director moves for a 

reduction in a mere handful of cases. And those are 

only for terminal illness or debilitating 

circumstances. 

 FAMM and the Practitioners Group certainly 

agree with the Department that prisoners who are 

terminally ill or debilitated by illness, merit 

consideration for early release. However, there are 

other cases of extraordinary and compelling 

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circumstances that merit consideration as well, 

including but not limited to cases where the defendant 

has experienced an extraordinary and compelling change 

in family circumstances, such as the death of the only 

other caretaker of minor children, leaving the children 

without care or where the defendant has provided 

significant assistance to any government entity that 

couldn't adequately be taken into account. 

 FAMM and PAG endorse the approach taken by 

the American Bar Association in its recommendations and 

draft policy. 

 We urge the Commission to take a generous 

view of the authority in 3582 and we do so because we 

believe that Congress intended that early release 

authority be broad, to include medical and non-medical 

cases. And we know that there are three clues that 

Congress has sent us about this. 

 The first, the Bureau's existing authority to 

seek early release dates from the 1976 Parole 

Commission and Reorganization Act. It permitted early 

release at any time upon motion by the Bureau. The 

Bureau of prisons then issued regulations in 1980 to 

effectuate 4205(g). Those rules provided that early 

release motions under the statute were to be brought 

"in particularly meritorious or unusual circumstances 

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which could not reasonably have been foreseen by the 

court at the time of sentencing, including if there is 

an extraordinary change in an inmate's personal or 

family situation or if an inmate becomes seriously 

ill." 

 The second clue is, when Congress in the 

Sentencing Reform Act eliminated parole and established 

determinative sentencing, it kept intact the court's 

ability, it's existing authority to reduce sentences 

for a range of reasons. This conclusion is supported 

by the legislative history, demonstrating that Congress 

embraced a broad view. For example, the Senate 

Judiciary Committee's report says, it is intended that 

the courts be able to address " the unusual case in 

which the defendant's circumstances are so changed, 

that it would be inequitable to continue confinement." 

 And among those reasons were included cases of severe 

illness or cases where there were other extraordinary 

and compelling circumstances that would justify the 

release. 

 Had Congress wanted to limit the new law on 

prisoner's access to sentence reductions, it could have 

done so. It could have stated conditions in the 

Sentencing Reform Act and the statute or indicated it 

elsewhere in the legislative history and it didn't do 

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that. 

 The third clue is found in another part of 

the sentencing reform act and that's actually in 994t, 

the mandate that Professor Saltzburg was talking about. 

 994t is what we're talking about here today. The only 

limitation that the Sentencing Reform Act made to 

existing authority was to instruct you that 

rehabilitation alone would not constitute sufficiently 

extraordinary and compelling circumstances. 

 We think unwarranted restrictions on the 

early release mechanism will subvert congressional 

intent that courts be able to entertain early release 

motions for a variety of circumstances, provided they 

are extraordinary and compelling and reflect more than 

rehabilitation alone. And we're not the only people 

who believe this. The Department of Justice has long 

endorsed, at least on paper, a broad view of the 

sentence reduction motion, and certainly in its public 

regulations. 

 The Bureau of Prisons recognized that 

Congress intended to take a robust approach to the 

discretion given in the Sentencing Reform Act and it 

did so by spending, ten years after the Act, by 

operating under the same set of regulations that it 

published in 1980 to bring early release motions, i.e., 

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whether there was an extraordinary and compelling 

circumstance not only affecting the prisoner's health, 

but also the prisoner's family and personal 

circumstances. 

 Second, the Bureau published new regulations 

in 1994 to include provisions applicable to inmates who 

were sentenced under the new law. The Bureau affirmed 

the existing policy in important respects and even 

added specific provisions talking about the two tracks 

that one would follow, if one was seeking compassionate 

release for medical versus non-medical circumstances. 

 Third, the Bureau of Prisons did not publish 

the 1994 Rule for Notice and Comment under the APA, 

because, it said, the revised rule imposes no 

additional burdens or restrictions on inmates, the 

Bureau finds good cause for exempting the provisions of 

the APA. The standards to evaluate the early release 

remain the same. Put another way, if the Bureau 

intended to eliminate extraordinary changes to a 

personal or family situation, this would represent a 

new restriction and thus, trigger the APA's notice and 

comment period. So those regulations remain on the 

books today. 

 I want to say one thing about the 

Department's letter. The Department of Justice warns 

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the Commission that to take a broad view of the early 

release authority would be akin to subverting 

congressional intent to establish determinative 

sentencing through the elimination of parole. But that 

will hardly, crafting a new policy statement that we 

think effectuates Congress's intent will hardly subvert 

the goals of the Sentencing Reform Act. In fact, we 

think it's the other way around. If we don't follow 

Congress's lead, that would be as subversion of the 

intent. 

 I think I'll stop there. 

 CHAIR HINOJOSA: Thanks Ms. Price. 

 MS. PRICE: Thank you. 

 CHAIR HINOJOSA: Ms. Blanchard? 

 MS. BLANCHARD: Thank you, Your Honor. I 

think we were going to, if we could, go out of order. 

 CHAIR HINOJOSA: Mr. Sterling or Ms. Small? 

Who wants to go next? 

 MR. STERLING: Judge, I'm happy to go. My 

name is Eric Sterling. I'm the President of the 

Criminal Justice Policy Foundation. 

 CHAIR HINOJOSA: I introduced you. 

 MR. STERLING: Great, then I will say no 

more. 

 CHAIR HINOJOSA: If you don't mind, we went 

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ahead and started. But we knew you were in the 

building, so I went ahead and did all the intros. 

 MR. STERLING: Thank you very much. 

 CHAIR HINOJOSA: And we do appreciate your 

being here, as well as everyone. 

 MR. STERLING: Thank you very much. I do not 

want to duplicate the many comments that you are 

receiving in response to your Federal Register request. 

 You will -- I'm sure you have received many. You're 

going to be receiving from criminologists, and law 

professors, a letter signed by several hundred 

professors from around the country expressing their 

concern and their encouragement to the Commission to 

make changes in the crack cocaine and powder cocaine 

area. 

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 What I wanted to address for you is 

essentially three things. One, I encourage you to have 

the political courage to confront the Congress over 

this issue. The drug issue is an area in which there 

has been a great deal of hyperbole and emotion. And it 

is important that people speak honestly and effectively 

about it. This Commission has been on the receiving 

end of a certain amount of abuse from the Congress in 

your 1995 recommendations. And I encourage you to 

nevertheless have the fortitude to go back into this 

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battle, taking the approach that, I think, you believe 

is right and that so much of the public thinks ought to 

be done. 

 With respect to these particular questions, 

the question of violence. It has troubled everyone 

about the question of crack cocaine. One of the things 

that we tend to do is of course, is to diminish the 

question of the powder cocaine violence that is racking 

Mexico and Colombia. There is nothing about the crack 

cocaine trade that is any more violent than the powder 

cocaine trade. Indeed, many many more people have lost 

their lives in Colombia and Mexico in law enforcement 

and in the government, dealing with the problem of the 

powder cocaine trade. 

 That brings me to the important point which 

is that the federal role in this area is the powder 

cocaine trade. Crack cocaine is made very close to the 

bottom of the retail market. And I would suggest that 

there should be no federal crack cocaine cases 

whatsoever. A crack cocaine case is an indication that 

it is a retail level case, not a high level case, and 

not an appropriate federal case. Perhaps in the 1950s 

or 1960s, before there were tens of thousands of 

narcotics officers at state and local law enforcement 

trained by what was then the federal bureau of 

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narcotics, it might have made sense for their to be a 

federal role at the retail level. But today, every 

state and local law enforcement agency of any size has 

specialized narcotics units and tens of thousands of 

officers are trained at state and local level. 

 The punishment capacity at the state and 

local level far exceeds the federal level. And so that 

if the federal cases are devoted at the retail level, 

those are not being done to stop the production and the 

supply of cocaine that keeps neighborhood crack houses 

in business that are so plaguing our cities. When the 

federal government doesn't do its job, then state and 

local law enforcement area carrying the burden. And 

when they complain and they say we want support, the 

support is not another DA agent by their side, the 

support is doing an effective job in the unique federal 

role of going after the international and national 

level traffic. 

 It is also, of course, said that crack 

cocaine has led to tremendous community 

disorganization. The problem, I think, with that 

analysis is that if you are looking to justify the 

current disproportionate punishments for crack cocaine 

and you look and say where is crack cocaine found? You 

find it in communities where there already is a long 

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history of social dysfunction and where there are many 

other independent variables leading to that. It is not 

simply crack cocaine that is the problem with the 

disorder in many American cities. 

 Elijah Anderson, an anthropologist and 

sociologist at the University of Pennsylvania, in his 

7 book Code of the Street, Decency, Violence and the 

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Moral Life of the Inner City in 1999 looks back a 

century to the work of W. E. B. DuBois, who in his 

seminal work identified what he described as the 

submerged tent. Those who were largely characterized 

by irresponsibility, drinking, violence robbery, 

thievery and alienation. If we substituted cocaine use 

for drinking, we'd be describing a similar kind of 

problems that exists today. 

 Dr. Anderson identifies the profound economic 

changes that have taken place in American cities. 

There has been a key factor to only identify the 

particular drug that's involved is to find the result 

that you're looking for and not to look at the whole 

problem. 

 So my conclusion would be that the Commission 

should recommend the veto of federal crack cases, that 

we do away entirely with a separate type of crack 

cocaine penalty and that the triggers ought to be 

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raised to a metric ton for powder cocaine for the ten 

year offense and to a 100 to 150 kilos for the five 

year offense, in order to provide the proper guidance. 

 Congress had the right idea in 1986. That 

was focus on high level traffickers. They got the 

arithmetic wrong. It's time to correct the math. 

 CHAIR HINOJOSA: Thank you Mr. Sterling. 

 MR. STERLING: Thank you Mr. Chairman. 

 CHAIR HINOJOSA: Ms. Small? 

 MS. SMALL: Thank you very much. I'm very 

happy to be here this afternoon. Our organization, 

Break the Chains, focuses specifically on the impact of 

drug policies on communities of color. And I don't 

think that there's any other federal statute that has 

as disparate an impact on communities of color as the 

crack powder sentencing disparity. 

 Like my fellow panelists, I have no desire to 

repeat many of the important and great comments that 

have been made over the years around these issues. So 

I want to just focus on three main things that I know 

are both important to the Commission and will probably 

be important to Congress, too. 

 One is the issue that Eric just talked about, 

which is the issue of violence. But I want to talk 

about it from a slightly different place. So much of 

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the rhetoric and the comments, quite frankly, that have 

been made by law enforcement at these different hearing 

have focused on the importance of maintaining the 

statute because of what they claim to be the violence 

associated with the crack trade. And yet all of the 

recent studies and research have shown a significant 

diminution of violence specifically related to crack 

cocaine dealing. 

 I know that all of you have gotten testimony 

from the various treatment providers about the fact 

that there is nothing pharmacologically about crack 

that induces more violence that powder cocaine. And so 

that part to me has been well settled. 

 But the issue about the relationship between 

violence and what's happening in the community, I think 

we know a lot more about than we did in '86. And I was 

particularly struck by some of the testimony that was 

given by the criminologists in November who talked 

about the fact that young people, particularly AfricanAmerican men in inner city communities have turned away 

from dealing crack, have turned away from using crack. 

 In part, because of the violence, in part because of 

the way in which the drug has been stigmatized. 

 I think it's particularly perverse that at a 

time that you have people in the community turning away 

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from this drug and becoming involved with it less, that 

the penalties are still harsher than they are for other 

drugs and that we're not actually responding to what we 

see happening in the community. 

 The other thing that I think is really 

important is that he way in which these statutes have 

actually operated in communities has caused more harm 

than good. Because as a result of constantly taking 

away more mature people who may have been involved in 

drug markets and locking them up for long period of 

time, you're actually increasing the number of young 

people who are coming into drug markets and getting 

involved in them. And that, in and of itself, will 

make any activity more violent because of the 

propensity of young people to not have as much control 

over their behavior. 

 So at the same time that you're seeing the 

overall level of violence involved in the drug trade 

and particularly in the crack trade go down, the degree 

that it's still there, is directly related to the 

statutes that we have in place that actually encourage 

people to go out and recruit young people to engage in 

the drug trade. And recent studies have shown that the 

young men who actually end up dealing crack, are the 

people who come from the most distressed families, who 

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have the most amount of social deficit. So we're 

actually reinforcing a negative affect in communities 

and pushing people in directions that they definitely 

should not be going. 

 The other thing that I think that we have to 

talk about is the overall impact of what these 

sentences and this high incarceration rate is having to 

the very communities that politicians say that they're 

trying to protect with these laws. There have been 

many studies that have shown that having a high 

incarceration rate as you see in places like Baltimore, 

Washington, D.C., New York City, Los Angeles, as a 

result of the application of these laws has resulted in 

a criminogenic affect. When you have 20, 30, 40 

percent of the men in a community cycling in and out of 

prison on a regular basis, that in and of itself has a 

destabilizing effect that in fact is worse than the 

destabilization that comes as a result of having active 

drug markets in that community. 

 And so I think it's really important that if 

the justification for maintaining this is that we're 

protecting communities, that you actually need to look 

to see what's happening in that community and if what 

people assert is happening is in fact true. And I 

would argue and I think that many of the studies would 

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show that the affect of these laws in communities of 

color, particularly inner-city African American 

communities, is that they cause more harm than good. 

 The final point that I want to make has to do 

with the issue of fundamental fairness. There have 

been lots of testimony about the disparate impact of 

these laws on African American defendants and the fact 

that they are more likely subject to the federal 

penalties than are similarly situated white crack 

users. But the thing I think that is different between 

2002 and now is that we have seen the increase and 

advent of another drug that everyone agrees is as 

dangerous and as addictive as crack cocaine, which is 

methamphetamine, which has taken hold in many cities 

around the country, particularly small cities and rural 

areas. And yet the Congress, in its wisdom, has not 

chosen to respond to the increasing amount of 

methamphetamine abuse with the same type of jerconium 

(ph.) measures that it responded to crack. And I would 

say, in part, that that's because of a greater amount 

of understanding about the fact that we can't actually 

incarcerate our way out of these problems and that in 

fact, it works much better to provide treatment for 

people instead of incarceration. But I think that in 

light of that fact, and in light of the fact that it's 

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pretty much understood by both law enforcement, 

treatment, and public officials in all of these 

communities, that we're not talking about a drug that's 

significantly different in terms of its pharmacological 

impact, the way in which people use it, the rate at 

which they become addicted, and the affect of their 

addiction. For us to continue to maintain a totally 

different way of dealing with crack cocaine versus the 

way that we deal with methamphetamine, for me, is like 

the criminal justice equivalent of the decision to 

withhold treatment from syphilis infected black farmers 

when a cure was available and being provided to others. 

 We are providing to these rural communities 

the type of proactive positive policies that should be 

provided for inner-city communities of color. So I 

would urge this Commission to reinforce the 

recommendation that it made 1995 to recommend that the 

possession offense be repealed for simple possession of 

crack cocaine, that the penalties be made equal to the 

current penalties for powder cocaine and that we really 

begin looking at the way in which we're dealing with 

these issues overall. 

 And I would say that one other difference 

between the last few times you brought your 

recommendations and now is that there is different 

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leadership in the Congress. The head of the House 

Judiciary Committee, John Conyers, has been a long time 

advocate for the repeal of mandatory minimums in 

general and the crack-powder sentencing disparity in 

particular. I think he would welcome a recommendation 

from this Commission that would address at least part 

of those concerns that he has. 

 So I would urge you to give the same 

recommendation that you had in '95 and I think that you 

might end up seeing a very different result than the 

one that you saw then. 

 Thank you. 

 CHAIR HINOJOSA: Thank you, Ms. Small. Ms. 

Blanchard? 

 MS. BLANCHARD: Thank you, Judge. 

 Several years ago, Commissioner Castillo 

stood in front of a seminar of federal practitioners 

and said, with firmness and with resolve, that this 

commission will be judged, and should be judged, by how 

they deal with the disparity of crack cocaine, how they 

deal with this issue. It is unjust. It has been found 

to be unjust. It has no place in our sentencing 

scheme. It undermines the perception of justice and 

it's a black mark on our system. And that the 

Commission stands ready to do its part. 

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 I recall, quite vividly, when he said this 

and I also recall when he said it and if you'll allow 

me to regress, I was eight months pregnant at the time 

and in the winter of 2002. And my son, Tommy, will 

turn six next month. 

 The good news is that this Commission is 

still after it, is still standing and putting this 

issue in play, has not let it slip to the background, 

has put it out there as your priority, had the hearing, 

is probably going to issue another report of some sort, 

I would imagine, summarizing the testimony, and is 

continuing to pursue this, looking for opportunities, 

looking for windows. And we know that. 

 You know, the not so good news, we all know, 

is that in the last six years, there's been hundreds 

and hundreds, perhaps hundreds of those hundreds of 

unjust sentences, of sentences that we all agree are 

too long because they're based on the hundred to one 

ratio which we all agree has not basis. No matter what 

ratio you would pick instead, the science and the 

policy and the Sentencing Commission's position based 

on that, based on the evidence, is that it's unjust. 

 So we turn now to taking action. And there 

may, hopefully, be another window of opportunity. And 

we all know that the inaction in terms of results is 

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not because this Commission has been inactive. You 

know, we know that there is more going on in this 

matter than just the Commission's will. We understand 

that. And yet, we've got to turn to solutions because 

we would hope, as you all would hope, that the day is 

coming very soon that there will be a solution. 

 So, we turn and we look to solutions. One of 

the proposals out there, which was proposed by the 

Commission in your 2002 report, was set forth in some 

detail and the defenders would submit that that is 

misguided, wrongheaded and takes us in the wrong 

direction. 

 You will recall that that solution, that fix 

to the crack problem, while it brought down the 

disparity, the ratio, I think in that report it was 1 

to 20, but in any event, it corrected the ratio to the 

ratio that at that point there was consensus on. But 

what it also did is that it added, at least a half a 

dozen specific offense characteristics to 2D1.1, which 

would apply to every single drug offender, not just 

crack offenders, and can't help but have the affect of 

raising drug sentences. 

 And let's put that in perspective. You all 

know that since 1986, since the guidelines came into 

effect, sentences, overall, have doubled. Since that 

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time, drug sentences, in particular, have more than 

doubled. Now, people say mandatory minimums, what are 

you going to do? Well, your own studies where you can 

slice and dice and separate things out in a way that 

some of us don't quite understand, but we appreciate 

that they can do that, the finding is is that 25 

percent of this increase in drug sentences, this more 

than doubling of drug sentences, 25 percent is because 

of a guideline increase not having to do with the 

mandatory minimum. Put another way, it has to do with 

the fact that the guidelines call for a sentence higher 

than the mandatory minimum. So that's 25 percent of 

this more than doubling is from that affect. 

 So the guidelines have an affect greater than 

just the mandatory minimum, which of course, is what 

your research shows. So, that being said, I don't 

think there is any, from any corner of this debate, 

there is anyone that thinks drug sentences are just too 

low and we just need to get serious about our drug 

sentences. I just don't think that that's the 

perception out there. So we would implore you not to, 

in the name of correcting one injustice that has stood 

for over a decade, to create another, which is to raise 

drug sentences that do not need to be raised. 

 And we would agree that Commissioner Castillo 

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was right that this Commission will be judged by how it 

deals with this crack cocaine disparity. And that, the 

ending of that story has yet to be written. But you 

know, we, like the Commission, believe that it is one 

of those priorities that will not go away until it is 

resolved successfully. 

 Again though, we would ask you to fix what is 

broken and not do any harm to anything else, to just 

fix the ratio. And I think you. 

 CHAIR HINOJOSA: Thank you, Ms. Blanchard. 

 Is there a question? Vice Chair Steer. 

 COMMISSIONER STEER: I'd like to ask 

Professor, Dr. Saltzburg and Ms. Price about the 

extraordinary and compelling circumstances issue, which 

we often call compassionate release for shorthand. And 

I might preface that by saying that I find myself in a 

somewhat curious situation with respect to this issue 

for, shortly after coming on the Commission, I, for a 

number of years, urged the Commission to put the issue 

on its agenda because, given my past position, I was 

well aware of not having met this statutory charge and 

felt then and feel now that we need to address it. 

 But now, I am concerned that if we proceed as 

you two have recommended, that we may create an even 

bigger mess for the courts and that we will, I think, 

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likely have a whole slew of challenges from inmates who 

would seek to come under, to benefit from the 

Commission's expanded policy statement, if it goes 

along, just say hypothetically that we adopted the ABA 

proposal as is, even though the Bureau might not have 

made such a motion. And I just wonder if that is 

really a good thing. And I would offer this 

alternative way of proceeding for your comments. 

 It seems to me that there is enough interest 

on the part of good folks like you and the Commission 

that we ought to go back to Congress with some sort of 

a short report and lay out for the Congress the need 

for some clarification of this statutory charge and the 

way that they set it up in the Sentencing Reform Act, 

without perhaps thoroughly thinking through the way it 

is designed to work. Maybe it shouldn't be the Bureau 

of Prisons that is left to make the motion. Maybe 

there should be some other mechanism and maybe the 

Commission should go forward and outline the 

circumstances, but we need to have some clarification 

of the statute along those lines. 

 You know, Congress, itself, has created a 

relief mechanism for the worst of the worst, the three 

strikes and you're out. And they have created this, 

you know, less than a clear way to proceed with respect 

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to the other offenders. And it seems to me that there 

is an inconsistency and irrationality there that needs 

to be addressed. 

 So the bottom line is, why shouldn't we put 

this back in the hands of Congress, together go to 

Congress and see if we can get this clarified and then 

proceed, rather than create a mess in the courts or try 

to politically pressure the Department of Justice into 

broadening their policy? 

 DR. SALTZBURG: You want to go first? 

 MS. PRICE: Well, I think the courts are 

probably competent to deal with what I think probably 

won't be a -- maybe I'm not understanding your 

question, but Congress committed this task to the 

Commission knowing that what it was doing was making 

the provision of sentence reduction available on motion 

by the Bureau of Prisons. 

 COMMISSIONER STEEL: What I'm asking, don't 

you think it's highly likely that if the Commission 

were to do what you and Professor Saltzburg are urging 

and then adopt something like the ABA policy, that you 

would have -- if the Department of Justice stands pat, 

makes no change in their policy, makes no motions, you 

would have a whole slew of inmates out there who are 

going to try to benefit from that policy by going to 

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court on their own initiative and challenging the 

Department's policies? 

 DR. SALTZBURG: Commissioner Steer, I'd like 

to answer that, if I could. Before I do, I just want to 

say one thing, I think this is probably true for both 

of us, the fact that we're addressing one statute today 

doesn't mean that we don't share, as we do, I think, 

everything that's been said about the crack cocaine 

issue. And as you know, I testified in November for 

the ABA on that. And we mentioned in my testimony 

today that we don't back away from anything, it's just 

that this other issue is one that's been neglected. 

 The Department of Justice suggested in its 

July letter that there would be litigation, that 

prisoners, if in fact you did what the American Bar 

Association has recommended, there would be litigation. 

 I think they're right about that. And I think you 

were right, Commissioner Steer. If I were looking at 

what normally happens, if you draft standards and you 

provide examples and the Bureau of Prisons does not 

make motions, people who feel as though they fit those 

examples will in fact sue. And they will claim that 

the Bureau of Prisons has failed to carry out its 

mandate and there will be litigation about that. Now, 

that's my belief and it's based on the fact that people 

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have a reason, actually, to want to bring these 

actions. They feel as though the Bureau of Prisons has 

narrowed, as Mary said, narrowed over time, the 

standards without actually really putting this out for 

comment and in a way that allows a full and fair 

discussion of it. 

 My belief is that if that happens and there 

are suits that Congress will in fact get into the act. 

 It will look and decide, either by saying we're going 

to do nothing and let the courts work this out or, more 

likely, I think Congress will take another look at what 

actually ought to happen here. 

 I don't -- I can't say that the proposal that 

you make wouldn't work just as well, say as the 

American Bar Association proposal, but the concern I 

have, the concern I have is there is a statute out 

there. You've written about it. You're on the record. 

 You've been great on this issue. And the Commission, 

for a long time, just has neglected the issue. It's 

true, Congress hasn't spoken to it in 23 years. And 

you can say, let's give Congress another chance, but 

the problem is getting Congress's attention. 

 I think it's easier to get their attention if 

there's a standard out there and people are beginning 

to say Bureau of Prisons is not meeting the standard. 

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It actually would provide the Department of Justice an 

opportunity, if you had a standard, to take a position. 

 It might change its mind about the way in which this 

ought to work. 

 I mean, right now, they've adopted a policy, 

but you're unheard of on the issue. You have not been 

heard. If you actually have policy and we had a 

discussion with the Department, they might not make all 

the motions that one would like, but they might decide 

that some greater number of motions were in order. If 

not, and they wanted to adhere to the current policy, 

I'm pretty sure that that's more likely to get 

Congress's attention as a problem than it is to run up 

and say to Congress, hey, for 23 years we haven't done 

anything, now we're thinking of doing something, why 

don't you do it? I don't think they're as likely in 

that circumstance. 

 But we all know from the crack cocaine 

discussion that predicting what Congress will do or not 

is an uncertain business. And I don't claim to be able 

to prognosticate and say if you do what the American 

Bar Association recommends and Ms. Price recommends, 

that it will all work out, that Congress will then step 

in and Congress will fix it. I think it's just more 

likely that things will work out if you do it that way 

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than if we go to Congress and basically when Congress 

looks they say, well what's happened in 23 years? And 

the answer is nothing. And Congress will say, why 

should we do anything? 

 MS. PRICE: Can I just add one thing? I'm 

sorry. 

 DR. SALTZBURG: Sure. 

 MS. PRICE: I'd be dismayed if we tied 

ourselves in knots trying to figure out whether or not 

Congress would respond to what might be a load of 

litigation. I think the courts are competent to deal 

with it. And one of the ways that you can put Congress 

on notice that you are now responding to the directive 

of 994t, is by sending the proposal forward. I mean, 

Congress then gets a look at it. Congress gets to 

decide whether or not to approve or to let stand a 

proposed policy statement. 

 So, you know, I think now is the time to move 

forward. If in fact it turns out that this is just too 

much for the courts to bear, then yes, there might be 

some adjustment to be made, but you know, we don't know 

that, at this point. 

 CHAIR HINOJOSA: Dr. Saltsburg, I know you 

mentioned that this was a proposal and that you could 

understand if there might be some changes to the ABA 

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proposal. With regards to two of the suggestions, 

don't you think that there's a possibility that present 

law takes care of two of those? 

 The first one is, someone who provides 

extensive cooperation and assistance. We have rule 35 

of the Federal Rules of Criminal Procedure. There is a 

one year time limit, but there are ways beyond the one 

year time limit, not the Bureau of Prisons, actually, 

just the government, the U.S. Attorney's Office, can go 

ahead and file a motion to reduce the sentence. 

 The other one that comes to mind with regards 

to the proposals is the one with regards to the change 

in the law. And there is present statutory directives 

to the Commission that any time, for example, a 

guideline is changed, which usually happens when there 

is a change with regards to the punishment level, that 

the Commission makes the determination as to whether we 

should be retroactive or not. And if it's retroactive, 

then the defendant can go ahead and file a motion 

before the Court. 

 So there's two ways already taking care of 

with regards to -- and so I guess you meant for us to 

look at these and then decide. 

 DR. SALTZBURG: Yes, if I could just briefly 

address them both. I think you're right. I'm not sure 

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exactly what Rule 35(b) fails to cover. I mean the 

people working with me believe that there are gaps. 

That there are people who provide cooperation and can't 

benefit from a 35(b) motion and what I could do, if the 

Commission were getting into this, ask them to give you 

examples. Because 35(b) does cover a lot of this. I 

think you're right about that. 

 And I think there's a little bit of, as I was 

going through our own policy recommendation, I had the 

same question in my mind, if I'm hearing you right, 

which is, if there's a determination that a change in 

the law should not be made retroactive. That seems to 

me a judgment that things should be left as they are 

for those who have already been sentenced. To use that 

as a factor, it causes me a little concern, too. I 

mean, it seems to me that it's like you're having it 

both ways. 

 And I think, as I said, this is a graph not 

meant to be chiseled in granite and not meant to be 

something that the American Bar Association will sort 

of fight about. It was meant to sort of say to the 

Commission, we know a lot of people come to you and 

say, do something. And then you say, what should we 

do? And it's all very general. We wanted to put some 

meat on the bones. 

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 CHAIR HINOJOSA: Vice Chair Sessions? 

 JUDGE SESSIONS: I would like to ask a couple 

of questions on the crack. And I'd like to respond, at 

least a little bit to what Ms. Blanchard said to what 

we did in 2002. 

 The fact is, the Commission has been 

consistently suggesting that the disparity is different 

but there's a second part to the whole debate. And to 

say essentially that we had numerous factors which 

increased penalties in 2002, is just a little 

simplistic. The argument that has been made, I think 

fairly strongly and consistently, is that the 

sentencing policies should be focused less on drug 

quantity and more on those things which are most 

significant. 

 So, quite frankly, I took a strong position 

in regard to those particular factors so that you take 

out of crack cocaine policy the violence, which isn't 

necessarily associated with crack cocaine, and then you 

turn it into an enhancement. And then ultimately, 

perhaps sentencing policy in the United States would be 

less dependent upon drug quantity and more upon the 

social consequences of the behavior. 

 Now you may debate whether or not the 

penalties are too high, but as to the policy which led 

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to our recommendations in 2002, that was in part to 

reduce the penalties in crack cocaine, but also change 

the whole focus of drug sentencing, at least in part, 

from drug quantity to those social consequences of the 

behavior. Now, that's my speech. Now, do I 

have a question to follow that up? I guess, how do you 

respond to that? I mean, Ms. Blanchard has criticized 

us before and I have responded before. And I guess I'm 

interested to find out, you know, both of your 

reactions to that. 

 MS. BLANCHARD: Well we, as you know, the 

defenders, have been urging for quite some time that 

the drug guidelines are too quantity driven. We are 

all for targeting the punishment to the specific 

behavior that you're trying to punish and not just 

grabbing quantity because it's an easy measure, it's an 

easy objective measure and you can just use quantity. 

The cap was about and minor role was about that, tying 

it in. 

 Our objection to the 2002 proposals for the 

crack fix is that it included the increases for the 

targeted behavior, but it was not accompanied by a 

concomitant reduction in any of the quantity 

enhancement. In other words, it didn't reduce the 

table to then make up for the person who is going to 

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get whammed for the gun. The gun, people who commit 

violence should get greater time. The problem was, you 

had quantity, which we don't want to just be what 

governs a sentence. That was going to stay the same. 

But then on top of it, we were going to add the 

targeted behavior. 

 So we don't have a problem with the approach 

of targeting behavior and trying to capture more 

specifically the individuals and not paint with a broad 

brush stroke of quantity. I think the problem was that 

the overall affect of the proposal, even though the 

policy may have made good sense, the overall affect was 

just going to be to take what we had and add more on 

top and the affect had to be, you add six special 

offense characteristics and it has to go up. So that 

was the objection. 

 JUDGE SESSIONS: And at the same time, -- 

 MS. BLANCHARD: And I'm sorry to be so 

critical. 

 JUDGE SESSIONS: -- in regards to the crack 

cocaine, we're going down fairly dramatically. Do you 

have a response to that? 

 MS. SMALL: Yes, I do. And I just want to 

say, it kind of dovetails on a statement that Ms. 

Blanchard made earlier on that I want to amplify and 

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also something that Eric Sterling said. And I think it 

has to do with what's the appropriate prevue for 

federal action on drugs versus state action on drugs. 

Because just looking at the issue of behavior for 

enhancements, whether you're talking about guns, 

whether you're talking about sales to children, or 

involving children, or gang related activity is only 

going to get you so far because most of that, as it 

relates to crack, is happening on the bottom level of 

the market. And from where I sit and from where we 

sit, that's really behavior that's more appropriate to 

be dealt with on a state and local level by state and 

local police, who can actually gauge whether or not 

they're talking about people whose activity is 

primarily street level or if they're actually connected 

to larger drug organizations. 

 It seems to me that if, that the best thing 

that we could do is get the feds out of the business of 

policing basic street level narcotics activity and have 

their focus be primarily on interrupting and disrupting 

major trafficking organizations. Now, if it turns out 

that in the course of doing those kinds of 

investigation they find that there are people who were 

involved with large numbers of weapons or other things, 

then that would be an appropriate basis for 

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enhancement. 

 But if you're just adding enhancement on to 

the federal policing of what's basically street level 

drug activity, then you're still going to basically be 

picking up the people who are on the very bottom level. 

 Because it's the people on the bottom level who are 

required to carry guns, to enforce their positions. 

It’s not the middle men, it's not the higher men who 

were actually doing that. It's the people on the 

bottom who were the muscle and if what we're trying to 

do is get away from having our focus be primarily on 

the lower level people, then that's not a strategy 

that's really going to get you there. 

 CHAIR HINOJOSA: Vice Chair Castillo, sir. 

 JUDGE CASTILLO: Let me just say, I agree 

with everything my brother, Commissioner Sessions has 

said about our 2002 report. Having looked at it again, 

I still believe it was right then and I believe it's 

right now. The problem is, how we make any incremental 

progress since then. Because we have, at least I can 

say, I have been as frustrated as anyone else over the 

five year period. 

 Do you believe we're making progress with 

regard to this crack versus powder disparity debate? 

Do you believe we're even making progress today where, 

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for the first time, I think, the Department of Justice 

in writing says it may well very well may be 

appropriate to address the ratio, but they're saying 

over the next few months, versus having the Commission, 

apparently, vote on this next month. 

 So, do you believe we're making progress or 

is it the position of each of your organizations that 

this Commission should force the issue by voting on a 

proposal next month? That's what I'd like to know. 

 MS. BLANCHARD: Well, I too, am heartened by 

the, you know, and surprised to read the testimony of 

the Department and that there's clearly room in there 

for discussion and they're already having those 

discussions. 

 I don't know how you measure progress. I 

know there's tons of good faith. I know there's lots 

of good work. I don't, I just don't know how you would 

measure progress. I'm glad it's -- what I've said 

before, I'm glad you're pushing it on the priority 

list. 

 We, you know, in a perfect world, what the 

defenders would love is if you could do what you could 

do to reduce that 25 percent where the guidelines bump 

you over the mandatory minimums. When you, when the 

Commission long ago increased sentences according to 

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the guidelines more than the Congress even required 

from the strictest reading of what the Congress 

required, which we don't read that way and we don't 

find a foundation to read that way. But you know, 

putting that aside, there's still 25 percent, which is 

a lot of time, you know, when you look at it and 

especially over time. 

 CHAIR HINOJOSA: I suspect you're referring 

to the 15 year report. Right? Since, on the year that 

was based on, we've had the mitigating roles, the 

safety valve has taken a lot more affect. So I don't 

know that that's the appropriate number to be using 

with regards to the increase in penalties as to what 

this Commission has done with regards to the drug 

penalties. Because actually safety valve was extended 

past the statutory amount. The mitigating role cap has 

come into effect and the cap itself on the amount of 

drugs. 

 And so I know that that may have been in the 

15 year report, but it stops at a certain point, 

perhaps before. And so it probably would be good to go 

ahead and update that information and see if that 

really is still true. 

 MS. BLANCHARD: Well, two things. I'm with 

my brother, Jonathan, that you know, I'd love to see 

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the numbers, because you know, the numbers are very 

telling. 

 But secondarily, we all know that where you 

pegged the offense levels was, and there's a fancier 

way to describe this, but was basically one higher than 

what it needed to be to be at the mandatory minimum. 

In other words, when you finally get the range, you 

don't necessarily get the mandatory minimum, you get 

slightly higher than that. And we cannot find -- 

 CHAIR HINOJOSA: I don’t' think we disagree 

with that issue. The only point is, you know, then you 

get acceptance and the safety valve and all that. And 

so I think it would be interesting to measure that with 

the mandatory minimum itself. And so, you know, there 

is a lot of discussion about do you go to that range, 

or do you go one lower to still cover the mandatory 

minimum? 

 MS. BLANCHARD: Right. The last thing I 

would say, and this opens a hornet's nest, but way we 

could measure progress and we all know that there's 

been a dramatic increase in the number of departures, 

or variances, or statutory sentences, however you want 

to measure it, sentences below the guideline range, 

properly calculated guideline range, for the crack 

cocaine disparity, by judges across the land, going 

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down to the mandatory minimum, but basically coming 

lower than the guideline sentence, finding that the 

Commission's setting of the guidelines for whatever 

reason, isn't what they want to follow, they're just 

going to come down to the mandatory minimum. 

 By the Commission choosing not to promulgate 

anything about Booker any guidance or anything, I think 

that doesn't -- that I don't think promotes progress in 

the sense that after 

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9 Booker in an advisory system. 

10 CHAIR HINOJOSA: Do you believe that judges 

don't read Booker and don't understand that we're in an 

advisory system? 

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 MS. BLANCHARD: Oh, no, no, no. I believe I 

think they -- 

 CHAIR HINOJOSA: Well, I think they have 

shown that they understand what Booker says. I mean, 

what -- I don't understand what this -- you know, the 

law is there. The judges know the law. The 

practitioners know the law. And so this is the 

Sentencing Commission. 

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 MS. BLANCHARD: Yes, but the government walks 

in and says, Congress says 100 to 1. You can't do 

anything about it. Circuits have said that, as you all 

know. And the Commission knows better, just with 

respect to the guidelines. Not the five and the ten. 

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Not the mandatory minimums themselves. But the 

Commission made a choice about where to peg the 

guidelines with respect to those. And it is the 

guidelines that are now advisory. 

 And so I don't know which judge it was that 

wrote that there isn't some exception, you know, Booker

exception to crack. You know, that should be applied 

the same way everything else should be applied. Yes, 

there is a Congressional directive, but there are for 

many, many, many laws. But it seems like with crack 

powder, judges are a lot more, many judges are a lot 

more fearful of going that way. 

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Claiborne, the issue came up. Judge Ginsburg asked, 

are judges allowed to do this. And there was some back 

and forth about that, not that any of us think that the 

case is going to rise or fall on that. 

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 But yes, I think judges read the case, but I 

think that there is a bit of a vacuum which could be 

helpful. And I would, and I think the defenders would 

think, could be progress in this area, if there were 

some guidance by the Commission about using Booker, 

like you're one, two, three step process, I think one 

of those steps could be using 

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24 Booker. 

25 CHAIR HINOJOSA: Ms. Small? 

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 MS. SMALL: I want to make -- well, first 

off, I want to just say you know, I haven't testified 

here before and I'm a bit of a grassroots advocate. 

So, if my comments are very blunt, I apologize in 

advance. I haven't quite gotten the D.C. finesse yet. 

 CHAIR HINOJOSA: Well, you've prepared us. 

 MS. SMALL: Well and I say that because I 

think that there are a couple of really salient points 

related to the question that you asked. And that is 

this. 

 First of all, when Congress first passed -- 

to me these laws are a clear example of where Congress 

is out of touch, both politically, judicially, 

etcetera, with the rest of the country, for the most 

part. I think it's important to note that even though 

Congress passed these mandatory minimums and this 

crack-powder disparity in '86, that the majority of the 

states did not follow suit. That the majority of the 

problems that take place around drugs, take place on a 

state and local level and yet only 11 states out of the 

50 chose to model their laws after the federal law, 

which tells me something. It should tell you something 

about whether or not people thought that this would be 

an efficacious way of going forward, number one. 

 Number two, in the recent years, you've seen 

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a real effort on a state and local level to change 

this. The fact that Connecticut got substantial report 

in both houses of its legislature to change its 

disparity law and it was only as a result of a threat 

of a governor's veto that they reached a compromise 

that didn't eliminate it completely, tells you 

something about the politics around this. 

 I think that one of the reasons that you got 

the statement you got from the Justice Department is 

because they're trying to play down the clock. It 

would be a lot easier for them to allow time to go by 

without a strong position coming from this Commission, 

without being confronted with it in the ways that they 

have before. 

 I think the fact that this Commission has 

held onto this issue, has repeatedly issued reports 

talking about the fact that these laws not only don't 

make sense, but that they actually cause more harm than 

good, has helped move the public debate about this. 

 The fact that there have been recent surveys and 

polls that have shown that the majority of Americans do 

not believe that mandatory minimums work and that you 

should actually give people the opportunity to have 

treatment before you lock them up for a long period of 

time tells me that on this particular issue, the 

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Congress is behind the people. I think the Congress 

knows that they're behind the people. I think that for 

lots of different reasons, they would rather see this 

get delayed than have to acknowledge that a major 

mistake was made. However, I think that it's your job, 

as well as it's our job to continue pressing forward 

and demanding that they act in a way that's just, in a 

way that's consistent with the facts and a way that's 

actually consistent with the will of the majority of 

the American people. 

 And the final thing that I want to say is 

that if you look in the overall public debate about 

drugs, you see a totally different climate and a 

totally different way of approaching this than you did 

even ten years ago. The number of programs that are 

focusing on addiction as a real problem, not just in 

inner-city communities, but for "regular middle 

American soccer mom communities" is telling you 

something about the way in which we perceive this 

problem. 

 There are enough Americans who have had an 

experience with people with drug and alcohol addiction 

that they realize that locking people up is not the way 

to address it. So I think we're on the cusp of a major 

shift in terms of the way that we approach drug policy 

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in this country. And quite frankly, I think that, 

given the recent history, that Congress will have to be 

brought kicking and screaming along. But I really do 

believe that we are in the midst of this change and to 

the degree that this Commission is going to be judged 

by the way it approaches this problem, I would like to 

see you all being the leaders who are helping to lead 

the way for Congress as opposed to cajoling them or 

hoping that they'll come along if you give them the 

right kinds of incentives. 

 And again, I apologize for the fact that my 

remarks may not be as judicious as they should be, but 

I think they're a statement that are fairly accurate. 

 CHAIR HINOJOSA: Your remarks certainly did 

not live up to their billing of insulting. 

 MR. STERLING: Your analysis about the 

importance of focusing on social consequences of 

behavior are correct. And it's very important. It 

would strike me that the criteria that I would suggest 

would be for a federal high level drug trafficking 

would be assassination of government officials in other 

countries as an aggravating factor, as witness 

intimidation, as bribery of central bankers, bribery of 

banks, corruption of military units, corruption of law 

enforcement agencies that, rather than focusing on 

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questions like use of children in the offense at the 

retail level, that we focus on the on the kinds of 

activity that the highest level of traffickers use to 

consolidate their power and make them much more 

dangerous and give the impunity to carry forward. 

 I think that with respect to Judge Castillo's 

question about where we are along a scale of progress, 

the Commission's work has been extremely important in 

advancing the progress, in advancing the discussion. 

The Commission's reports to the nation and to the 

Congress have been just invaluable resources for 

advocates, for journalists, for scholars to look at the 

issue and to understand it. So we are making, I think, 

a great deal of progress. 

 The question might be asked in some senses, 

where does political cover lie? Who can create 

political cover for who? The Commission has the 

potential, it seems to me, and I may be wrong on this, 

to create more political cover for the Congress, if it 

acts, that one of the ideas behind the creation of the 

Commission, you know, almost 25 years ago, was that 

this, the setting of sentences was a politically tricky 

maneuver. And that if we take it out of the political 

debates of the Congress, the potential for partisan 

attack and individual ambition and put it either in the 

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judicial conference or in the Commission, then it will 

be, in some way, insulated from that political realm. 

 And so the question then is, can that role of 

political cover be one that in the current climate both 

serves the needs of justice and serves the needs of 

coming up with the kinds of sentences that the judges 

across the country on the federal bench would like to 

see and would feel honored to be imposing? 

 CHAIR HINOJOSA: Is there any other question? 

 Ms. Blanchard. 

 MS. BLANCHARD: I forgot to say that we also 

think that -- 

 CHAIR HINOJOSA: You never forget anything. 

 MS. BLANCHARD: Oh, that's true, except this. 

 We think that the issue covered by Mr. Saltzburg and 

Ms. Price is also very important but we obviously 

divided this up, have submitted written testimony, but 

wanted to just join them. 

 CHAIR HINOJOSA: Does anybody need to do any 

other cover with regards to stating what else you may 

have wanted to include here? If not, thank you all 

very much. 

 This is the time we were supposed to finish 

with the last panel, so we'll take about a three minute 

break before we start with the next panel. 

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 (Whereupon the hearing went off the record at 

2:58 p.m. and went back on the record at 3:02 p.m.) 

 CHAIR HINOJOSA: The next panel has been 

titled as industry representatives. Nobody has labeled 

them as captains of industry, however. 

 The first one is Mr. Shawn Driscoll, who is 

here today on behalf of the American Trucking 

Association. He began his career with Swift 

Transportation Company Incorporated in 2004 and holds 

the position of Assistant Director of Security. Mr. 

Driscoll actually had served in law enforcement prior 

to that for 24 years and retired from the Montana 

Highway Patrol Department and, obviously, has a lot of 

experience. 

 Mr. Peter J. Pantuso is President and Chief 

Executive Officer of the American Bus Association, 

North America's largest motor coach tour and travel 

association representing more than 65 percent of all 

private buses on the highways, as well as private 

travel related businesses. Mr. Pantuso serves on the 

U.S. Chamber of Commerce's Committee of 100 leading 

association executives, the Policy Committee of the 

American Society of Association Executives, and the 

Board of the Museum of Bus Transportation. 

 Mr. Frederic Hirsch, Frederic Rick Hirsch, 

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joined the Entertainment Software Association in April 

2000 as Senior Vice President, Intellectual Property 

Enforcement to direct ESA's global enforcement efforts 

against the piracy of member company game software 

products. Mr. Hirsch has spent much of his 

professional career prior to this working for the 

Motion Picture Association and in a number of different 

capacities, most recently as senior vice president and 

director of the NPA's worldwide anti-piracy program. 

 So they all bring a lot of expertise to the 

subject that they will be talking about. And we will 

start with Mr. Driscoll. 

 MR. DRISCOLL: Mr. Chairman, members of the 

Commission, thank you for inviting me to testify on 

behalf of the American Trucking Association on the 

subject of the amendments to the Federal Sentencing 

Guidelines for convictions under 18 U.S.C. Section 659, 

or what I will refer to as cargo theft. 

 As mentioned, I am the Assistant Director of 

Security for Swift Transportation, the largest 

truckload carrier in the United States with 18,000 

trucks. Prior to coming to Swift, I was a State 

Trooper with the Montana Highway Patrol where I rose to 

the rank of chief, before I left that agency. 

 I have previously submitted my written 

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testimony for inclusion into the record. I understand 

that you are considering several amendments relating to 

transportation but I will focus my testimony today on 

the proposal related to cargo theft. 

 The USA PATRIOT Act Improvement and 

Reauthorization Act of 2005 directs the Commission to 

review the Federal Sentencing Guidelines to determine 

whether sentencing enhancement is appropriate for a 

cargo theft offense. I'm here to tell you that it is 

and to, hopefully, explain why. 

 Trucks carry almost 70 percent of all 

domestic freight tonnage. The vast majority of 

manufacturers and retailers rely on trucks as their 

primary mode of transporting their goods, including 

essentials like food and clothing to the consumer. 

Cargo theft is an important issue to my company and to 

my colleagues in the trucking industry. While the 

numbers are imprecise, the FBI estimates the direct 

cost of cargo theft is between 15 and 30 billon 

dollars. It is a problem whose cost ripple throughout. 

 So, why am I here today on behalf of the 

trucking industry? We want to deter cargo theft. At 

Swift, we do a lot to deter cargo theft, including 

criminal background checks on our employees, facility 

securement, etcetera. Unfortunately, our efforts are 

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not 100 percent effective. Therefore, we need the 

assistance of federal resources to combat this crime. 

 We believe that providing sentencing 

guideline enhancements for convicted cargo thieves will 

have a multiplier affect on reducing this crime. I 

don't claim to be a criminologist, but the deterrent 

affect of enhanced sentences for cargo thieves seems 

obvious. Law enforcement, according to the 

Seaport Commission, believes that some former drug 

traffickers have switched to cargo theft for two 

reasons. One, because of high profit potential and 

probably the most important, because criminal sentences 

are much lower than those for drug offenses. I think 

that it is widely agreed that mandatory minimums and 

enhanced sentencing have deterred some drug trafficking 

and we believe it will do the same for cargo theft. 

 Before sentencing comes in to play, we need a 

conviction. We need cooperation between motor 

carriers, law enforcement and prosecutors. When we 

experience a theft, it is sometimes difficult for us to 

get law enforcement to act. Coming from a long career 

in law enforcement, I don't mean to criticize those in 

law enforcement. I understand why law enforcement is 

reluctant to pursue cargo theft cases. They believe 

prosecutors rarely prosecute these cases and that's 

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probably true. Prosecutors say that penalties 

associated with cargo theft do not justify the 

diversion of scarce resources. Enhanced sentencing for 

cargo theft will address these concerns. 

 I'd like to take a second to share one of our 

recent thefts that we had at Swift. We had a theft of 

clothing valued at approximately $150,000. Our own 

investigators identified a particular storefront that 

was selling the clothing. Since the theft occurred in 

one jurisdiction, the offloading occurred in another 

jurisdiction, the resale was yet in a third location, 

it took a week for a search warrant to be obtained and 

by then, all the clothing items had been sold. We did 

not get anything back. To date, nobody has been 

charged. 

 If federal law enforcement authorities had 

incentive to pursue these cases, enhanced sentencing 

being such an incentive, then that would most likely 

warrant -- we would have been able to obtain a search 

warrant more likely in a quicker manner. And I can 

illustrate many points when this has occurred in the 

past. 

 More and more frequently, these are not one 

time strikes that are committed upon us. The Seaport 

Commission noted that law enforcement believes that the 

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majority of cargo theft today is committed by organized 

criminal groups and that some of the proceeds from 

cargo theft are being diverted to fund other organized 

crime activities. Enhanced sentencing for cargo theft 

crimes would help in the broader fight against foreign 

and domestic organized criminal groups by cutting off 

profits that are currently obtainable with little risk. 

 For these reasons, ATA supports the 

Commission's proposed Option Two. ATA finds this 

option preferable to option one in terms of 

consistently generating a more robust sentence or 

penalty, which is our objective. 

 Mr. Chairman and members of the Commission, 

thank you for the opportunity to testify before you on 

this issue that impacts companies like mine and 

ultimately you, as the consumer of the goods and 

products we carry. The work this Commission is 

undertaking today is a significant positive step at the 

federal level towards defeating cargo theft. Thank 

you. 

 CHAIR HINOJOSA: Thank you, Mr. Driscoll. 

Mr. Pantuso, sir. 

 MR. PANTUSO: Thank you, Mr. Chairman, and 

thank you to the Commission for giving us, The 

Association, the opportunity to testify concerning the 

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proposed amendments to the Federal Sentencing 

Guidelines. 

 You will hear two themes throughout my 

testimony. First of all, a bus is a bus. And second 

of all, that the passengers are the same passengers as 

those on other modes, and deserve the same level of 

protection. 

 The American Bus Association, the other ABA, 

is the primary trade association representing the 

private, over the road bus industry. We've got 

approximately 3800 members engaged in all manners of 

transportation, travel and tourism. And as you pointed 

out, our members represent about 65 percent of all the 

coaches on the road and more than 1000 bus and tour 

companies. 

 As an industry, the private bus industry 

transports approximately 650 million people each and 

every year. A total that compares favorably to 

commercial airlines. Moreover, ABA links some 3,000 

cities and communities throughout the U.S. as well as 

bus terminals, airports, seaports, and rail stations, 

as well their passengers. 

 Given the reach of the industry and their 650 

million passengers, it is clear that security is our 

top priority. Since the attacks of 9/11 and the 

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enactment of the PATRIOT Act, the private bus industry 

has been heavily engaged in securing our passengers, 

our facilities and our terminals. Our interest in 

security is more than just academic. The plain fact is 

that buses and passengers have been targets around the 

world and a highjacked bus could be used as a vehicleborn improvised explosive device with, certainly, 

devastating impact. 

 Since 9/11 ABA's motor coach operators have 

endured numerous incidents in which persons have 

attempted to or have highjacked motor coaches while the 

coaches were in operation carrying passengers. One of 

the most horrifying was the takeover of a Greyhound bus 

one month after 9/11 by an individual in Tennessee. 

That incident resulted in the motor coach driver having 

his throat slit. 

 Congress shared our concern with bus security 

when it passed the PATRIOT Act. Section 1993 of Title 

18 of the U.S. Code subsection (a) prescribes, whoever 

willfully wrecks, derails, sets fire to, disables mass 

transportation vehicles or ferry or interferes with, 

disables or incapacitates any dispatcher, driver, 

captain, or person while they are employed in 

dispatching, or operating, or maintaining a mass 

vehicle or ferry with intent to endanger and reckless 

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disregard, shall be fined and/or imprisoned. 

 To determine which transportation operations 

are included within Section 1993, Congress added that 

the PATRIOT Act definition of mass transportation shall 

include the school bus, charter bus, and sightseeing 

transportation, because these were specifically 

excluded from the definition which was transportation 

by a conveyance that provides regular and continuing 

general or special transportation service. 

 In 2005, the USA PATRIOT Improvement 

Reauthorization Act replaced the term public 

transportation with mass transportation. Thus, on its 

face, the definition of mass transportation, as the 

Sentencing Commission points out, is much broader than 

that of public transportation for the purpose of 

applying sentencing guidelines to criminal interference 

with transportation operations. 

 ABA, and its members are in favor of the 

broadest application of those sentencing guidelines to 

transportation operations, regardless of the type of 

bus service that's in play or that the passenger is on. 

 Therefore, responding directly to the 

question raised in paragraph four of page 35 of the 

draft guidelines, ABA believes that the guidelines 

should be used as a definition of mass transportation 

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and that the guidelines should make clear that mass 

transportation includes all bus service. If the 

Commission used the term public transportation rather 

than mass transportation, that action would have the 

effect of excluding most bus service. 

 Thus, since inner-city bus service is not 

specifically excluding from mass transportation's 

definition, Congress clearly meant to include these 

operations within the sphere of the sentencing 

guidelines. Obviously, Congress's intent was to cover 

all transportation operations for the public because a 

motor coach in inner-city scheduled service is 

identical to a motor coach engaged in charter 

operations, there's no logic to exclude separate types 

of bus service operations in the sentencing guidelines. 

 To hold that view, would require that 

Congress believed that for 55 people on a charter bus 

coming from D.C. to New York City should be protected, 

while those unprotected would be on a Greyhound bus 

with 55 passengers traveling between New York and D.C. 

 ABA's members believe that the term mass 

transportation in all sentencing guidelines, again, 

should apply to all bus transportation operations. 

 Finally, we urge the Commission to recognize 

the importance of a federal focus on inner-city bus 

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incidents. Two of the three highjacking incidents that 

we know about more recently, the criminals were 

prosecuted under local law. And the third, the 

Greyhound incident in Tennessee, the assailant died in 

the bus wreck. But in the other cases, a county 

prosecutor without any help, cooperation, or 

coordination from federal law enforcement, took the 

case to trial, pled down the charges and got a 

conviction. So one might describe that as a successful 

prosecution. 

 However, what's at issue is the focus of 

federal law authorities on what is a federal crime 

involving specific modes of transportation. We think 

it's unfair to assume that a similar highjacking or an 

incident on an airline or a ferry or another commercial 

vehicle would be viewed as anything other than a 

federal crime and would be prosecuted by federal 

authorities. In that case, more attention would be 

paid to the crime, to its consequences, certainly to 

the passengers. The focus would be placed on, would be 

focused on the crime as a terrorist act. 

 With increased attention by the media and the 

public, attention could deter additional acts of that 

type. With additional focus by federal law enforcement 

officials, then we could better determine whether a 

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specific act fits into a crime pattern as a terrorist 

activity. More attention strengthens the idea that the 

transportation system is really one system, that 

protection of the public should not be determined based 

on the type of commercial vehicle the public was on, 

but all passengers deserve the same level of protection 

by the federal system. 

 The ABA would be happy to work this 

Commission. We're happy to work with Congress in 

future in making any adjustments to the PATRIOT Act and 

we look forward to answering any questions you might 

have. Thank you. 

 CHAIR HINOJOSA: Thank you, Mr. Pantuso. 

 Mr. Hirsch, sir? 

 MR. HIRSCH: Yes. Thank you, Mr. Chairman, 

and thank you other members of the Commission for the 

opportunity to comment on Amendment Five, which is the 

Intellectual Property Repromulgation. 

 The repromulgation amendment, the purpose of 

repromulgation is to address the adequacy of the 

guideline's definition of infringement amount to cover 

situations in where the item in which the defendant 

trafficked was not an infringing item, but rather was 

intended to facilitate infringement. This is a very 

timely opportunity to for the Commission to look at 

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this issue and to recommend the enhancements contained 

in the amendment. And I'll lay a bit of foundation for 

you as to our members' interest in this issue. 

 The Entertainment Software Association is the 

trade association representing the companies that 

publish interactive games on computers, on video game 

consoles, on handheld devices, and on the internet. 

Our members accounted for about 90 percent of the 

entertainment software sold in the United States last 

year. Our members invest a lot of money and time, 

millions of dollars and teams of people working on 

developing and creating video games. And sometimes 

working on one video game over two or threes. The 

video game industry is, to a large extent, and 

certainly at the developer level, is constituted of 

small to medium sized enterprises of sometimes as few 

as 20 people working for years on developing their 

games. 

 And unfortunately, all this work and all this 

effort has a very short commercial window in the video 

game marketplace. Most video games have very few 

months to make back their investment. And on average, 

a video game will generate 75 percent of the revenues 

of its lifetime in the first two months after release. 

 So that video game window in the video game 

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marketplace is very short. 

 Due to the nature of game content, which is 

digital and therefore subject to abuse and copying, the 

game industry has invested heavily in technological 

protection measures to prevent infringement. Some are 

disk based and others are based in the device. And one 

of the more common ones is the one used in various 

console systems, which is an authentication system that 

is designed to prevent the playback of unauthorized 

disks or infringing disks on their systems. 

 Members have taken advantage of these 

systems. With new game console systems, new 

authentication systems are put in place. And Congress, 

in 1998, in enacting the DMCA, The Digital Millennium 

Copyright Act, recognized the importance of rewarding 

the investment in technological protection measures 

that were aimed at, in effect, preventing infringement. 

 Unfortunately, despite the DMCA and the 

sanctions that it provides, the game industry has 

suffered from continuous hacks and cracks of its 

authentication systems. And some of the more popular 

game consoles have been hacked very shortly. 

 Many of you, I'm sure, have read about or 

hopefully maybe even played the new Wii game console 

that was launched last November. And sure enough, 

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within three to four months after its release and 

launch, that system was hacked. So now we are seeing 

pirated versions of Wii games, which is the system 

launched by Nintendo in November. We are seeing copies 

of those circulating in markets all over the world, 

including the United States. 

 We looked at each of these circumventions as 

a challenge. Certainly, from the standpoint of our 

Association, our industry. These systems are hacked in 

the form of circumvention devices. The people who 

crack these systems develop these semiconductor chips. 

 These are called modification chips and they come in 

all shapes and forms and generally, these work by 

people both in the United States and around the world, 

taking these chips and installing them inside the game 

consoles, cracking open the device, putting them in. 

And what they do is they effectively bypass the 

authentication system so that users of these chipped 

consoles can now play pirated games. 

 So our members have a great interest in this 

area because again, one of their big defenses against 

copyright infringement of these authentication systems 

are circumvented by these modification chips. 

 Prosecutors are experienced in working with 

federal prosecutors in prosecuting DMCA is that they 

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generally prefer to prosecute on the basis of 

infringement as opposed to a DMCA violation. Very 

often, the defendants who are found to be engaged in 

trafficking circumvention devices, are installing these 

devices in consoles, are also involved in other kinds 

of infringing activity. And invariably, prosecutors 

tend to focus more on the copyright infringement 

violation than the DMCA violation. The problem is is 

that what we are now starting to see is the pirate 

market has gotten wise to this and we are seeing a lot 

of businesses that exclusively modify consoles without 

engage in other infringing activity. Because their 

sense is is that this kind of activity is not going to 

be prosecuted or enforced. 

 So the Commission's examination of this issue 

is extremely timely because we are starting to see this 

trend and we think the enhancement proposed in the 

amendment could really help. 

 In looking over the three options that the 

Commission has put forth, we think that Option One 

works best for us. Option One provides for a two or 

more level enhancement to a minimum of 12 for anyone 

convicted in trafficking in devices used to circumvent 

a technological measure. We think that this is the 

simplest and most straightforward approach. It 

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recognizes, in fact, that each of the mod chips fosters 

a multitude of infringing activity because each mod 

chip induces the owner of the chipped console to go out 

and buy dozens of pirated games, as opposed to 

legitimate games. So actually each of these mod chips 

account for dozens of infringing acts. 

 We think that there is one modification that 

we would suggest for Option One in that it covers only 

Section 1201(b) violations of the DMCA, which is the 

provision that governs circumvention devices that 

circumvent copy controls. We think, because mod chips 

really work to modify the access and are really 

considered to be, the authentication systems on 

consoles are considered to be access controls, we think 

that we would like to see Option One expanded to cover 

violations of 1201(a)(2) or, frankly, all Section 1201 

violations. 

 Option Two looks at the value of the 

circumvention device. The problem is is that most of 

these mod chips retail on the street at maybe $20 or 

$30, installed maybe $40. We think that that 

understates the significance of the offense because 

again, as I said before, each of these chips can result 

and foster hundreds of thousands -- well, hundreds of 

dollars, maybe even thousands in purchases of pirated 

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game software. 

 Option Three tries to address that issue, to 

some extent, by making it, by looking at infringement 

amount as the greater of the value of either the 

circumvention devices that the defendant was found to 

be trafficking in, or the number of circumvention 

devices multiplied by the price that a person 

legitimately using the device to access or make use of 

a copyrighted work would have paid. This really 

requires the judge to speculate and make an assessment 

as to the number of legitimate games that someone who 

has a chipped console would have purchased, but for the 

mod chip, if the mod chip hadn't existed. So, we think 

this is an extremely complex calculation and highly 

speculative. And we think a lot of judges are just 

going to end up understating the infringement amount as 

a result. 

 So we endorse the Commission's approach with 

Option One and urge them to expand that to cover 

violation of the access control provision in 1201(a)(2) 

in addition to 1201(b). 

 The Commission also asked for a comment on 

two other issues which I will offer up here. The first 

is whether it should provide a downward departure 

provision for cases in which the infringement amount 

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overstates the seriousness of the offense. Our 

experience is that that rarely, if ever, happens. And 

we believe that in most situations, if not all, judges 

already factored this into their determination of 

sentence. 

 The other issue on which the Commission 

sought comment was the application note four, which 

provides for an adjustment to be made under Section 

3B1.3 in any case in which the defendant de-encrypted 

or otherwise circumvented a technological security 

measure to gain initial access to an infringed item. 

 We think, we see this note as applying, 

particularly in view of the note coming out of the or 

following on the enactment of the net act, we see this 

note applying to circumventions that apply to hackers 

or crackers who do the initial crack of the copy 

protection on games and put out unprotected versions, 

unprotected via technological protection measure, on 

the internet. And as a result, we see that encryption 

or de-encryption or circumvention requiring a high 

level of technical skills, a very sophisticated process 

to crack TPMs and, as a result, we would recommend that 

no change be made. 

 The people who engage in these kinds of 

cracks are responsible for much of the pirate game 

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product circulating not only on the internet, but in 

hard disk form in markets around the world. And we 

think that the application note four works very 

effectively to address this by describing this as an 

offense involving a special skill. 

 Thanks very much. 

 CHAIR HINOJOSA: Thank you, Mr. Hirsch. Any 

questions? Vice Chair Steer. 

 COMMISSIONER STEER: I have a question for 

Mr. Driscoll regarding the cargo theft issue. This 

morning the Commission heard testimony finding fault 

with both Option one and Option Two. I think the 

thrust of the criticism was that 18 U.S.C. Section 659 

is a very broad statute that might, in some situations 

conceivably used to prosecute very small scale thefts 

of cargo that were sort of one time occurrences or 

whatever. I don't remember the words there were used 

to describe it. 

 But I'm wondering, as someone who has been 

interested in Option Two in particular, what you would 

think about a modification of Option Two that basically 

widen the enhancement to an organized cargo theft 

defense, similarly to the way that the enhancement now 

applies to the organized scheme to steal vehicles or 

vehicle parts. From what I know from attending your 

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cargo theft conference in San Antonio several years 

ago, you all would have no trouble helping law 

enforcement prove an organized cargo theft scheme in 

nearly all of the cases that you were concerned about. 

 But I'd be interested in your reaction to that kind of 

a modification. 

 MR. DRISCOLL: I guess I would say that, I 

mean, clearly most of our thefts on the truckload 

carrier side is that there is some element of organized 

crime involved, depending on the level of 

sophistication. There are clearly groups that are 

actively involved in it. But really, almost, many of 

the thefts, I guess I would say, would have some level 

of sophistication or organization to them and so would 

very well meet that criteria. 

 I guess what I'd probably have to do is go 

back and meet with the ATA folks and we could provide 

you with some additional information directly to you on 

that. 

 COMMISSIONER STEER: Okay, thank you. 

 CHAIR HINOJOSA: Commissioner Campbell. 

 COMMISSIONER CAMPBELL: My question is for 

Mr. Hirsch. I'm interested, to some degree, in some of 

the things that you and the members of your 

organization have seen with regard to software piracy 

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or game piracy. The focus of your testimony was on 

chips. Is that right? 

 MR. HIRSCH: That's correct. 

 COMMISSIONER CAMPBELL: What is the typical, 

you know, can you give us a sense of how these chips 

are made, whether they are done sort of on an 

individual basis, how they're made available to others 

out there? You may some reference to these chips, for 

example, when discussing the amount of the infringement 

amount in Option Two and Option Three would understate 

the value of the infringement. 

 MR. HIRSCH: Right. 

 COMMISSIONER CAMPBELL: I'd like you to 

elaborate on that a little bit. 

 MR. HIRSCH: Sure. These chips, generally, 

are after the initial hack or crack of the system, 

where somebody has gone into a console and reverse 

engineered it and figured out how the authentication 

system works, they will then work on the design of a 

chip that is designed to bypass that authentication 

system, so that system, the game console, will play 

pirate games, as opposed to legitimate games. 

 Legitimate games have a code on it that 

effectively works as a handshake with a console system 

to make sure that -- the device will check to see that 

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this is a legitimate game and has the code it needs 

and, therefore, it will play. Normally, an infringing 

game that you would put in a device that hasn't been 

chipped, wouldn’t see that signal, wouldn't have that 

handshake and therefore, would not allow the game to 

play. These chips, in effect, bypass that 

authentication system so that it will allow the device 

to play, but is a pirate version of the game. 

 They are generally manufactured in Southeast 

Asia. We see these coming in a lot through Canada, 

Canada has no equivalent to the DMCA's prohibitions on 

circumvention devices, and very frequently marketed 

through internet sites. But very frequently, in what 

we're seeing is that there are a lot of retail 

establishments in the United States that are offering 

to install modification devices or sell you a console 

with it already mounted. We're seeing quite a lot on 

eBay, where in fact they will modify the system which 

allows it to play pirated games and will even load a 

bunch of pirated games into the hard disk of your 

console. 

 So we see it in all shapes and forms. Now, 

each one of these devices effectively unlocks the key 

for a console and in that way, and allows that console 

to play pirated games. We don't know how many pirated 

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games the owner of that chipped console then goes out 

and buys, but the guess is that over the lifetime of 

the game console, it could be anywhere from 30 to 50 to 

even more games. So, the $20 or $30 investment 

somebody makes in a mod chip can "save them" hundreds, 

if not thousands of dollars of purchases of legitimate 

games down the road. 

 COMMISSIONER CAMPBELL: So the mod chip is 

actually a physical device that -- 

 MR. HIRSCH: It is, in fact. I'd be happy to 

pass these around so that you can see them. 

 COMMISSIONER CAMPBELL: This is different 

than other types of anti-circumvention devices where 

for pieces of software or things like that might be 

available on the internet. Is that right? 

 MR. HIRSCH: Yes. 

 CHAIR HINOJOSA: Are these for us to keep? 

 MR. HIRSCH: Excuse me? No, I'll need those 

back, thank you. 

 CHAIR HINOJOSA: Can you elaborate on which 

game system they apply to? 

 MR. HIRSCH: No, there are other systems out 

there. There are things that we call soft mods, which 

are in effect software approaches to bypassing these 

systems. They're not quite as common as physical 

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chips, but they do exist and they are more often 

pervade and exchange through downloads over the 

internet. But it's a bit more involved in terms of a 

process and a procedure to install that onto your 

counsel. 

 COMMISSIONER CAMPBELL: And I understand -- 

 MR. HIRSCH: The -- 

 COMMISSIONER CAMPBELL: I'm sorry. Go ahead. 

 MR. HIRSCH: So chipping is the more 

predominant. Chipping a machine is the more 

predominant form of circumvention. 

 COMMISSIONER CAMPBELL: And that's, the focus 

of what you're here, what you've been talking about, is 

really on games and game consoles. 

 MR. HIRSCH: That's correct. 

 COMMISSIONER CAMPBELL: This type of 

activity, I take it, can apply to other types of 

protected or copyrighted items, like DVDs and software 

and basically, anything else that's protected? 

 MR. HIRSCH: Right. All of those, all the 

different forms of digital media are going to have 

different kinds of protection measures that they use to 

protect them. Mod chips and the authentication systems 

that are used on consoles are specific to the game 

industry. 

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 COMMISSIONER CAMPBELL: Okay, thanks. 

 CHAIR HINOJOSA: Commissioner Horowitz? 

 COMMISSIONER HOROWITZ: Just briefly to 

follow up on that. 

 Do the individuals trafficking, at least in 

your experience so far, the individuals trafficking in 

the anti-circumvention devices, are they selling the 

devices and then others are doing the altering and, if 

they're reselling systems, whether its game systems or 

other systems, or is it the person that is trafficking 

in anti-circumvention devices, doing their own work on 

these systems and then retailing them out themselves? 

 MR. HIRSCH: It's a little bit of both. I 

mean, we've seen certainly people who will buy 

wholesale from internet sites, usually based up in 

Canada, and then set up a business installing these 

chips into consoles in their garage to people who are 

actively out there serving as wholesalers distributing 

to other people who are engaged in retail operations. 

 CHAIR HINOJOSA: Does anybody have any other 

questions? If not, we thank you very much. I will say 

that your perspective has been extremely helpful and we 

appreciate the time that you have taken to be with us 

this afternoon and agreeing to be the last panel. 

 (Whereupon, at 3:36 p.m., the foregoing 

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public hearing was adjourned.) 

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CERTIFICATE 

This is to certify that the attached 

proceeding before 

UNITED STATES SENTENCING COMMISSION 

PLACE: Washington, D.C. 

DATE: March 20, 2007 

was held according to the record, and that this is the 

original, complete, true and accurate transcript which 

has been compared to the recording accomplished at the 

hearing. 

 

 ______________________________ 

 

Andrew Vogel, Court Reporter 

 

______________________________ 

 

Kimberly J. Zogby, Transcriber 

FREE STATE REPORTING, INC. 

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