82–581

107TH CONGRESS REPORT " HOUSE OF REPRESENTATIVES ! 2d Session 107–769

FAIRNESS IN SENTENCING ACT OF 2002

OCTOBER 31, 2002.—Committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. SENSENBRENNER, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 4689] 

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 4689) to disapprove certain sentencing guideline amendments, having considered the same, reports favorably thereon without amendment and recommends that the bill do pass.

CONTENTS 

Page 

Purpose and Summary ............................................................................................ 4

Background and Need for the Legislation ............................................................. 4

Sentencing Calculation for Drug Trafficking ........................................................ 5

‘‘Base Offense Level’’ ........................................................................................ 5

‘‘Adjusted Offense Level’’ ................................................................................. 5

‘‘Criminal History Category’’ ........................................................................... 5

‘‘Sentencing Range’’ .......................................................................................... 6

Amendment 4 ........................................................................................................... 6

Hearings ................................................................................................................... 7

Testimony of John Roth, U.S. Department of Justice ................................... 7

Testimony of William G. Otis, Esq., George Mason University Law 

School ............................................................................................................. 8

Testimony of Charles Tetzlaff, United States Sentencing Commission ....... 9

Testimony of the Honorable James M. Rosenbaum ...................................... 9

I. Judge Rosenbaum’s Prepared Statement Suggested that Defendants 

are Convicted on Legally Insufficient Evidence ....................................... 11

II. Judge Rosenbaum’s Testimony Inaccurately Suggested a Reference 

to an Actual Case in Support of the Amendment .................................... 12

2

III. Judge Rosenbaum’s Inaccurate Representations Regarding the Sentences in Cases Before Him and Other Federal District Courts Cannot 

be Used to Justify Support of the Amendment ........................................ 13

1. Judge Rosenbaum Inaccurately Represented the Sentence of 

‘‘VHD’’ ............................................................................................. 13

2. Judge Rosenbaum Inaccurately Represented the Sentence of 

‘‘JAP’’ .............................................................................................. 14

3. Judge Rosenbaum Misstated the Circumstances Surrounding 

the Sentencing of ‘‘FDD’’ ............................................................... 14

4. The Record Regarding ‘‘MGA’’ Does not Justify the Amendment Because She Received a Sentence of Only Six Months 

Under Existing Guidelines ........................................................... 16

5. The Proposed Amendment Would be Irrelevant to ‘‘AC’’ Who 

Received a Downward Departure Under Existing Guidelines .. 16

6. The Proposed Amendment Would Have No Effect on ‘‘ST’’

Who Received a Downward Departure Under Existing Guidelines ................................................................................................ 16

7. ‘‘ERR’’ Was Denied A Lower Sentence Through the Exercise 

of the Sentencing Judge’s Discretion, Not the Operation of 

the Guidelines ............................................................................... 17

8. ‘‘HAG’’ Received a Downward Departure for Substantial Assistance and Was Sentenced to Only 24 Months ........................ 17

9. Judge Rosenbaum’s Testimony Regarding Alleged Sentencing 

Anomalies Fails to Provide any Support for the Proposed 

Amendment ................................................................................... 19

IV. Judge Rosenbaum’s Testimony Regarding the Attributable Drug 

Amounts was Inaccurate and Does not Justify the Proposed Amendment ............................................................................................................. 19

V. Judge Rosenbaum’s Inaccurate Testimony that Major and Minor Participants Receive the Same Sentence Does Not Justify the Proposed 

Amendment ................................................................................................. 24

VI. Assurances of Categorical Enhancements for Criminal History were 

not Reflected in Judge Rosenbaum’s Own Sentencing of ‘‘EPR’’ ............. 27

VII. Judge Rosenbaum’s Record of Hostility to the Guidelines Undermines 

the Persuasive Value of his Testimony ..................................................... 28

VIII. Judge Rosenbaum’s Testimony Should be Disregarded as Support for 

the Proposed Amendment .......................................................................... 29

IX. Judge Rosenbaum may Have Unlawfully Closed a Sentencing Proceeding that Would Provide Further Evidence of the Operation of 

the Guidelines ............................................................................................. 30

Committee Consideration ........................................................................................ 32

Vote of the Committee ............................................................................................. 32

Committee Oversight Findings ............................................................................... 32

Performance Goals and Objectives ......................................................................... 32

New Budget Authority and Tax Expenditures ...................................................... 32

Congressional Budget Office Cost Estimate .......................................................... 32

Constitutional Authority Statement ...................................................................... 35

Section-by-Section Analysis and Discussion .......................................................... 35

Markup Transcript .................................................................................................. 35

Supporting Materials 

LETTERS: 

Letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum 

(May 22, 2002) ................................................................................ 49

Letter from Hon. James M. Rosenbaum, to Hon. Lamar Smith 

(June 6, 2002) ................................................................................. 52

Letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum 

(July 19, 2002) ................................................................................ 109

Letter from Hon. James M. Rosenbaum, to Hon. Lamar Smith 

(Aug. 9, 2002) .................................................................................. 112

Letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum 

(Aug. 9, 2002) .................................................................................. 124

Letter from Hon. James M. Rosenbaum, to Hon. Lamar Smith 

(Aug. 30, 2002) ................................................................................ 126

JUDGMENT AND COMMITMENT ORDERS: 

U.S. v. Vimalam Hamilton Delaney, 99–CR–51 (010) (JMR) (D. 

Minn. Aug. 24, 2000) ...................................................................... 54

U.S. v. Joel Arellano Plateado, 00–CR–327(10)(JMR) (D. Minn. 

Apr. 4, 2001) .................................................................................... 58

3

U.S. v. Eliseo Rodrigo Romo, CR 3–95–52 (D. Minn. Nov. 20, 

1995) ................................................................................................ 62

U.S. v. Reut Bustos-Hernandez, 01–210(2)(DSD/JMM) (D. Minn. 

Jan. 28, 2002) .................................................................................. 66

U.S. v. Fernando Dwayne Davis, 4:95CR00103–001 (D. Minn. 

Jan. 14, 1997) .................................................................................. 71

U.S. v. Maria Guadalupe Avalos, 98–137(12)(DSD/AJB) (D. 

Minn. May 24, 1999) ...................................................................... 83

U.S. v. Stephen Tiarks, 98–137(11)(DSD/AJB) (D. Minn. June 

2, 1999) ............................................................................................ 90

U.S. v. Alecia Colmenares, 99–351(10)(ADM/AJB) (D. Minn. Sept. 

5, 2000) ............................................................................................ 99

U.S. v. Heather Ann Genz, 99–351(9)(ADM/AJB) (D. Minn. Sept. 

7, 2000) ............................................................................................ 104

U.S. v. Miguel Angel Larios-Verduzco, 01–CR–228(JMR) (D. 

Minn. June 13, 2002) ..................................................................... 115

U.S. v. Eduardo Pelayo-Ruelas, 01–CR–228(01)(JMR/FLN) (D. 

Minn. Aug. 2, 2002) ........................................................................ 119

U.S. v. Alfredo Prieto, 98–137(4)(DSD/AJB) (D. Minn. July 2, 

1999) ................................................................................................ 265

U.S. v. Juan Villanueva Monroy, 98–137(3)(DSD/AJB) (D. Minn. 

June 15, 1999) ................................................................................. 281

U.S. v. Arturo Bahena, 98–137(6)(DSD/AJB) (D. Minn. May 26, 

1999) ................................................................................................ 293

U.S. v. Jesus Ibarra-Torres, 99–351(2) (D. Minn. Sept. 29, 2000) . 301

INDICTMENTS: 

U.S. v. Hernan Espino, et al, Cr. No. 98–137 (DSD/AJB) (D. 

Minn. Aug. 5, 1998) (Second Superseding Indictment) ............... 156

U.S. v. Jaime Rosas Mancilla, et al, 99–351 (ADM/AJB) (D. 

Minn. Feb. 8, 2000) (Superseding Indictment) ............................. 161

TRANSCRIPTS: 

U.S. v. Eliseo Rodrigo Romo, Cr. No. 3–95–52 (D. Minn. Nov. 

17, 1995) (Sentencing Hearing) ..................................................... 167

U.S. v. Eduardo Pelayo-Ruelas, Cr. No. 01–228(JMR/FLN) (D. 

Minn. Aug. 2, 2002) (Sentencing Hearing) ................................... 191

SELECTED PROVISIONS OF THE UNITED STATES SENTENCING COMMISSION GUIDELINES MANUAL, NOVEMBER 

1, 2001: 

CHAPTER ONE, Part B—General Application Principles 

1B1.3 Relevant Conduct ................................................................ 204

1B1.4 Information to Be Used in Imposing Sentence (Selecting 

a Point Within the Guideline Range or Departing from 

the Guidelines) .................................................................... 214

CHAPTER TWO, Part D—Offenses Involving Drugs 

§ 2D1.1 Unlawful Manufacturing, Importing, Exporting, or 

Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy ................. 216

CHAPTER THREE, Part B—Role in the Offense 

§ 3B1.1 Aggravating Role .............................................................. 225

§ 3B1.2 Mitigating Role ................................................................. 226

CHAPTER FOUR, Part A—Criminal History 

§ 4A1.1 Criminal History Category .............................................. 229

§ 4A1.3 Adequacy of Criminal History Category ......................... 234

CHAPTER FIVE, Part A—Sentencing Table (in months of imprisonment) ..................................................................................... 237

Part C—Imprisonment 

§ 5C1.2 Limitation on Applicability of Statutory Minimum 

Sentences in Certain Cases ............................................. 239

Part K—Departures 

§ 5K1.1 Substantial Assistance to Authorities (Policy Statement) ................................................................................. 242

§ 5K1.2 Refusal to Assist (Policy Statement) ............................... 243

§ 5K2.0 Grounds for Departure (Policy Statement) .................... 243

MISCELLANEOUS MATERIAL: 

Letter from Hon. William W. Wilkins, Chair, Comm. on Crim. 

Law of the Judicial Conference of the U.S., to Hon. Diana 

E. Murphy, Chair, U.S. Sentencing Comm’n (May 22, 2002) ..... 41

U.S. v. Smith, 113 F. Supp. 2d 879 (E.D. Va. 1999) ....................... 128

4

1 28 U.S.C. § 991(b)(1)(B) (2002); see also 28 U.S.C. § 994(f) (2002). 

Criminal Docket for Case #01–CR–228–ALL (D. Minn. Aug. 14, 

2001) ................................................................................................ 246

Proceedings before United States Judge James M. Rosenbaum, 

SENTENCING, United States v. Miguel Angel Larios, Crim. 

No. 01–228, (D. Minn. June 13, 2002) (Minutes) ......................... 260

Facsimile from the Chambers of Judge Rosenbaum, Chief Judge, 

U.S. Dist. Court for the Dist. of Minn, to the Subcommittee 

on Crime, Terrorism, and Homeland Sec. (containing redacted 

portions of the transcript of the sentencing hearing in United 

States v. Miguel Angel Larios-Verduzco, 01–Cr–228 (JMR) (D. 

Minn. June 13, 2002) (portions of pages 6 and 7)) ...................... 261

Minority Views ......................................................................................................... 307

PURPOSE AND SUMMARY

H.R. 4689, the ‘‘Fairness in Sentencing Act of 2002,’’ would disapprove an amendment to the Sentencing Guidelines submitted by 

the United States Sentencing Commission to Congress on May 1, 

2002. The Sentencing Commission’s proposed amendment creates a 

drug quantity ‘‘cap’’ for those persons convicted of trafficking in 

large quantities of drugs if those persons also qualify for a mitigating role adjustment under the existing guidelines. For example, 

the sentence of a person convicted of trafficking 150 kilograms or 

more of cocaine who also qualifies for a mitigating role adjustment 

would be reduced to the same level as another person convicted of 

trafficking only a 1⁄2 kilogram of cocaine who also qualifies for a 

mitigating role adjustment. The 1⁄2 kilogram trafficker would receive no benefit under the ‘‘cap.’’ This would result in the less culpable defendant (one who moved less drugs) unfairly receiving a 

disproportionately longer sentence than the more culpable defendant (one who moved more drugs). This amendment to the Sentencing Guidelines will take effect on November 1, 2002, if it is not 

disapproved by Act of Congress. 

BACKGROUND AND NEED FOR THE LEGISLATION

The Sentencing Reform Act of 1984 (Title II of the Comprehensive Crime Control Act of 1984) provided for the development of 

guidelines to further the basic purposes of criminal punishment: 

deterrence, incapacitation, just punishment, and rehabilitation. The 

guidelines created a system of determinate sentencing: by eliminating parole and greatly restricting good time, it ensured that defendants would serve nearly all the sentence that the court imposed. The responsibility for shaping these determinate sentences 

was delegated to the United States Sentencing Commission. The 

Commission is an independent body within the judicial branch, 

with authority to promulgate sentencing guidelines and policy 

statements, consistent with the governing statutes. The Commission’s enabling legislation, codified at 28 U.S.C. §§ 991–998, includes a number of congressional directives as to the content of the 

guidelines. It includes the parallel goals of providing ‘‘certainty 

and fairness’’ in sentencing, while avoiding ‘‘unwarranted sentencing disparities.’’ 1

Under the Guidelines the court determines a sentencing range 

based upon numerous factors, including the nature and seriousness 

of the offense, the defendant’s role in the offense (whether major 

or minor), whether the defendant accepted responsibility, obVerDate Dec 13 2002 08:19 Feb 03, 2003 Jkt 010199 PO 00000 Frm 00004 Fmt 6659 Sfmt 6601 E:\XXTEMP\HR769.107 HR769
5

structed justice, used a weapon in connection with the offense, and 

the extent of the defendant’s past criminal record. Once the guideline range is calculated by the court using these factors, the court 

must generally impose a sentence which is within that range, although the court may in appropriate circumstances depart either 

below or above the calculated range when necessary. 

SENTENCING CALCULATION FOR DRUG TRAFFICKING

‘‘BASE OFFENSE LEVEL’’

Calculating the sentencing range for drug trafficking crimes begins by looking to the objective factor of the amount of drugs involved to arrive at a starting ‘‘base offense level.’’ The guidelines 

provide for an orderly gradation of levels, from level 6 (the lowest 

level) to level 38 (the highest level). These levels are set forth in 

a table contained within the Guideline Manual. The greater the 

amount of drugs involved, the greater the defendant’s ‘‘base offense 

level’’ will be. When two or more persons are involved together in 

a drug trafficking crime, the amount of drugs attributable to each 

defendant is often different, depending upon whether or not the individual defendant was aware of the total drug amount or whether 

that amount was foreseeable to that defendant. Amounts of drugs 

stemming from the criminal conduct of one defendant which are 

neither known nor foreseeable to the co-defendant are not included 

in calculating the co-defendants ‘‘base offense level,’’ or his ultimate 

sentence. 

‘‘ADJUSTED OFFENSE LEVEL’’

The ‘‘base offense level’’ is, however, only the beginning of the 

calculation. The ‘‘base offense level’’ for each defendant is increased 

or decreased depending upon other individual factors. In a drug 

conspiracy some members of the conspiracy may be more culpable 

than others. For example, those who planned the drug enterprise 

and directed others in it are considered more culpable than those 

who played only a minor role in the conspiracy. The offense level 

of the more culpable members is increased to reflect that fact, 

while the offense level of less culpable members is decreased. Similarly, the offense level of those who accept responsibility for their 

crimes is decreased further. The offense level of those who provide 

substantial assistance in the prosecution of others is decreased further still, while the offense level for those who have obstructed justice during the court proceeding or used a weapon during the crime 

is increased. The court uses these adjustment factors to determine 

a defendant’s ‘‘adjusted offense level.’’

‘‘CRIMINAL HISTORY CATEGORY’’

The Guidelines also take into account whether a defendant has 

a prior criminal record. Defendants with criminal records are 

placed in a higher ‘‘criminal history category,’’ ranging from the 

lowest category 1 through the highest category 6. A defendant with 

a more extensive and egregious history of past crimes is assigned 

a higher criminal history category. 

6

‘‘SENTENCING RANGE’’

The court matches the ‘‘adjusted offense level’’ with the ‘‘criminal 

history category’’ (using a Table in the Guideline Manual) to determine the ‘‘sentencing range.’’ The court is ordinarily required to impose a sentence which falls within that ‘‘sentencing range.’’ However, the court has unlimited and unreviewable authority to decide 

exactly where within that range to sentence an individual defendant. The top of the range is about 25 percent higher than the bottom of the range, giving the sentencing judge significant discretion 

in meting out sentences appropriate to individual defendants beyond that already achieved by the application of the Guideline adjustments noted above. Further, the court may, in appropriate 

cases, depart either above or below the sentencing range to arrive 

at an appropriate sentence for an individual. 

AMENDMENT 4

On May 1, 2002, pursuant to 28 U.S.C. § 944(p), the Sentencing 

Commission submitted to Congress ten amendments to the sentencing guidelines. These amendments will take effect on November 1, 2002, if they are not disapproved by an Act of Congress. 

Amendment 4 is an amendment to section 2D1.1(a)(3) of the 

guidelines which sets the ‘‘base offense level’’ for offenses involving 

the unlawful manufacturing, importing, exporting, or trafficking of 

drugs. This amendment would create a drug quantity ‘‘cap’’ at base 

offense level 30 for those persons convicted of trafficking in large 

quantities of drugs if those persons also qualify for a mitigating 

role adjustment under the existing guidelines. The current maximum base offense level a defendant could receive under section 

2D1.1(a)(3) is level 38. Persons trafficking in small quantities of 

drugs receive no benefit from the level 30 ‘‘cap,’’ even when they, 

too, played only a minor or minimal role in the offense. 

Amendment 4 also adds an application note to the Commentary 

to section 3B1.2 of the guidelines, which provides for a further decrease to the ‘‘base offense level’’ for a large-quantity trafficker who 

is a minimal or minor participant in the criminal activity. This new 

application note would require the court to decrease the base offense level another two (2) to four (4) levels whenever the court has 

applied section 2D1.1(a)(3) and ‘‘capped’’ the base offense level at 

level 30. This means that the ‘‘base offense level’’ for large quantity 

traffickers would always be reduced to at least level 28 and could 

be reduced as low as level 26 whenever section 2D1.1(a)(3) is applied. As an example, this amendment would treat traffickers who 

are responsible for trafficking in 150 kilograms or more of cocaine 

the same as traffickers who are responsible for trafficking only 1⁄2

kilogram of cocaine. This represents a significant departure from 

the current orderly gradation structure which assures that those 

trafficking in higher drug amounts receive higher ‘‘base offense levels.’’

Amendment 4 would accordingly result in disproportionate punishment contrary to past congressional directives, and would simply be unfair. Small-time drug defendants—those who perform 

minor roles and traffic in small amounts of drugs receive no benefit 

under Amendment 4. The small-timer will thus receive a disproportionately higher sentence than those trafficking in more drugs. 

7

2The Fairness in Sentencing Act of 2002: Hearing on H.R. 4689 Before the Subcomm. on 

Crime, Terrorism, and Homeland Sec., House Comm. on the Judiciary, 107th Cong. 15 (2002) 

[hereinafter ‘‘H.R. 4689 Hearing’’] (prepared statement of John Roth, Section Chief, Asset Forfeiture and Money Laundering Section, Criminal Division, U.S. Department of Justice [hereinafter ‘‘Prepared Statement of John Roth’’]). 

The Sentencing Commission, in its ‘‘Reason for Amendment,’’ states that the current guidelines overstate the culpability of certain drug offenders ‘‘who perform relatively low level trafficking 

functions, have little authority in the drug trafficking organization, 

and have a lower degree of individual culpability.’’ However, such 

persons already receive an individual downward adjustment to reflect these facts. Had the Commission believed that the current 

‘‘mitigating role’’ adjustment was insufficient to reflect relative culpability, those provisions could have appropriately been amended 

to address the issue for all defendants with a mitigating role in an 

equitable manner without creating a unfair disparity in sentencing. 

Amendment 4 will be nothing short of a windfall for large drug 

traffickers. It gives drug dealers the incentive to move more drugs, 

rather than less, and is contrary to the consistent and long-standing congressional intent that drug quantity forms the centerpiece 

of the guidelines in drug sentencing. The greater the drug quantity 

involved in the trafficking operation, the greater the harm to our 

Nation. The intent of Congress has been clear that there be an orderly gradation of sentences in drug trafficking cases based primarily upon the objective criterion of drug quantity. The proposed amendment to ‘‘cap’’ drug quantity is inconsistent with that 

congressional intent and also with basic notions of fairness. The 

‘‘mitigating role’’ participant in a given case whose lower base offense level does not trigger the ‘‘cap’’ (because he moved less drugs) 

will receive a disproportionately higher sentence than the ‘‘mitigating role’’ participant in another case whose level does trigger the ‘‘cap’’ (because he moved more drugs). 

HEARINGS

On May 14, 2002, the Subcommittee on Crime, Terrorism, and 

Homeland Security held a legislative hearing on H.R. 4689. Testimony was received from four witnesses. The witnesses were: John 

Roth, Chief, Asset Forfeiture and Money Laundering Section, 

Criminal Division, U.S. Department of Justice; William G. Otis, 

Adjunct Professor of Law, George Mason University Law School; 

Charles Tetzlaff, General Counsel, United States Sentencing Commission; and the Honorable James M. Rosenbaum, Chief Judge, 

United States District Court for the District of Minnesota. 

TESTIMONY OF JOHN ROTH, UNITED STATES DEPARTMENT OF JUSTICE

The Administration’s strong support of H.R. 4689 is aptly reflected in the testimony of John Roth, Chief, Asset Forfeiture and 

Money Laundering Section, Criminal Division, U.S. Department of 

Justice. Mr. Roth testified that the Commission’s Amendment 4 

would result in ‘‘a sentencing scheme that fails to reflect the seriousness of the conduct, will produce wildly disparate sentences between cases or even in the same case, and will ignore the modern 

reality of drug trafficking crimes in the United States today.’’ 2 Mr. 

Roth succinctly noted that ‘‘[t]he net effect of the Sentencing Commission guideline change is to allow individuals with a minor but 

8

3 Id. at 15 (emphasis added). 4 Id. at 13 (testimony of John Roth, Section Chief, Asset Forfeiture and Money Laundering 

Section, Criminal Division, U.S. Department of Justice [hereinafter ‘‘Testimony of John Roth’’]). 5 Id.

6 Id. at 16 (Prepared Statement of John Roth). 

necessary role in large drug organizations to escape the consequences of their actions.’’ 3

Additionally, he testified that ‘‘[t]he guideline change is going to 

make it more difficult for prosecutors to attack large organizations,’’ and ‘‘to convince less culpable members of a conspiracy to 

aid the government or provide evidence in assistance to the government.’’ 4 Mr. Roth pointed to his own previous prosecutorial experience in gaining the cooperation of low-level participants in catching 

and prosecuting higher-ups, including one such driver of a 200 kilogram cocaine shipment. According to Mr. Roth: 

‘‘[t]he only reason that he’d cooperate with us is because he realized that notwithstanding his perhaps minor role in the entire organization, he still faced a significant sentence. If we 

loose that ability to convince these minor players to testify and 

to cooperate and to provide evidence we loose the ability to go 

after the kingpins. And to me that’s the single most significant 

problem with the commission’s actions.’’ 5

Significantly, the Department of Justice outlined examples that 

show this amendment is only the latest in an ongoing effort by the 

Commission to reduce the severity of Federal drug sentences:

In 1992, the Commission changed the definition of ‘‘relevant 

conduct’’ for jointly undertaken activity, which had the effect 

of lowering drug conspiracy sentences. In 1994, the Commission reduced the highest offense level for trafficking offenses 

from level 42, for drug crimes involving, for example, a quantity in excess of 1,500 kilograms of cocaine, to a level 38, thereby punishing offenses involving 150 kilograms of cocaine in the 

same manner as those involving 1,500 kilograms of cocaine. In 

1995, the Commission instituted the ‘‘safety valve’’ reduction 

which, in addition to allowing a defendant to be sentenced 

without regard to a statutory mandatory minimum, allowed in 

certain serious drug cases a further two level reduction in the 

offense level. This carefully crafted safety valve amendment resulted in a proportionate decrease in sentence for a significant 

group of defendants whose reduced culpability justified lower 

penalties. Just last year, the Commission once again reduced 

the drug sentencing guidelines by extending that two level reduction to less serious drug crimes (i.e., less than 500 grams 

of cocaine).6

TESTIMONY OF WILLIAM G. OTIS, ESQ.

GEORGE MASON UNIVERSITY LAW SCHOOL

William G. Otis, former Federal prosecutor and Adjunct Professor of Law at George Mason University Law School, testified in 

support of H.R. 4689. Mr. Otis testified that the amendment was 

not needed in as much as the existing guidelines provide ample authority for sentencing judges to arrive at reduced sentences for lowlevel offenders. He further noted that under the existing guidelines, 

defendants already: are sentenced only for amount of drugs that 

9

7 Id. at 26 (prepared statement of William G. Otis, Adjunct Professor of Law, George Mason 

Univ. [hereinafter ‘‘Prepared Statement of William G. Otis’’]). 8 Id. at 25. 9 Id. at 11 (prepared statement of Charles Tetzlaff, General Counsel to the Sentencing Commission [hereinafter ‘‘Prepared Statement of Charles Tetzlaff’’]) (emphasis added). It is important to note that this ‘‘study’’ shows little more than the ability to manipulate statistics and, 

more importantly, it tells us nothing about actual cases. In the study, ‘‘renters, loaders, lookouts, 

etc,’’ were thrown together into a statistical pool (regardless of the size of the drug operation 

in which they were involved) where the drug amounts were averaged and then compared 

against the similarly averaged drug amounts for all ‘‘supervisors and managers’’ (regardless 

of the size of the operation in which they were involved). A comparison of such broadly assessed 

averages is irrelevant when comparing relative attributable drug amounts within individual conspiracies. Even if it was relevant, it does not explain why the Commission chose to apply the 

drug cap to all drugs, rather than limit its application to powder cocaine where the supposed 

‘‘anomaly’’ was found to exist. 10 H.R. 4689 Hearing at 19–22 (prepared statement of Hon. James M. Rosenbaum, Chief 

Judge, U.S. Dist. Court for the Dist. of Minn. [hereinafter ‘‘Prepared Statement of Judge Rosenbaum’’]). 

they actually know about or are reasonably foreseeable to them; 

are sentenced to the bottom of their guideline range; receive reductions for accepting responsibility; receive reductions for their minor 

or minimal role in the offense; and may qualify for downward departures below the range, significantly including departures for assisting in the prosecution of others involved.7 Mr. Otis concluded 

that ‘‘[b]ecause the amendment is excessive, ill-conceived and inconsistent with the Guidelines’ central purpose of ensuring fairness 

while protecting the public, it should be rejected.’’ 8

TESTIMONY OF CHARLES TETZLAFF,

UNITED STATES SENTENCING COMMISSION

Charles Tetzlaff, General Counsel to the Sentencing Commission, 

testified in opposition to H.R. 4689 and in support of the Commission’s amendment. Among the reasons for its adoption, he explained, was a statistical study by the Commission concerning powder cocaine sentences during a single year. According to Mr. 

Tetzlaff:

powder cocaine offenders classified as ‘‘renters, loaders, lookouts, enablers, users and others’’ on average were held accountable for greater drug quantities (7,320 grams) than powder cocaine offenders classified as managers and supervisors 

(5,000 grams) or wholesalers (2,500 grams). And couriers and 

mules were held accountable for almost as much powder cocaine (4,900 grams) as managers and supervisors, and more 

than wholesalers.9

TESTIMONY OF THE HONORABLE JAMES M. ROSENBAUM

Invited at the request of the Minority, the Honorable James M. 

Rosenbaum, Chief Judge of the United States District Court for the 

District of Minnesota, appeared before the Subcommittee at the 

May 14, 2002, hearing and testified in opposition to H.R. 4689. 

Judge Rosenbaum submitted a prepared statement as part of his 

testimony.10 As reflected in his statement, Judge Rosenbaum testified that the U.S. Sentencing Commission’s drug level cap amendment was needed because it would help alleviate inequities resulting from the application of the current guideline sentencing structure. In advancing his position, Judge Rosenbaum testified that defendants convicted of drug offenses ‘‘frequently have no idea what 

10

11 Id. at 19–20. 12 Id. at 20. 13 Id. at 22. 14 Id. at 20. 15 Id. at 20–22 (Prepared Statement of Judge Rosenbaum). 16 Id. 17Letter from Hon. Lamar Smith, Chairman, Subcomm. on Crime, Terrorism, and Homeland 

Sec., to Hon. James M. Rosenbaum, Chief Judge, U.S. Dist. Court for the Dist. of Minn. (May 

22, 2002). 18Letter from Hon. James M. Rosenbaum, Chief Judge, U.S. District Court for the Dist. of 

Minn., to Hon. Lamar Smith, Chairman, Subcomm. on Crime, Terrorism, and Homeland Sec. 

(June 6, 2002). 19 U.S. v.Vimalam Hamilton Delany, No. 99–CR–51 (010) (JMR) (D. Minn. Aug. 24, 2000) 

(Judgment and Commitment Order); U.S. v. Joel Arellano Plateado, No. 00–CR–327(10)(JMR) 

(D. Minn. Apr. 4, 2001) (Judgment and Commitment Order); U.S. v. Eliseo Rodrigo Romo, No. 

CR 3–95–52 (D. Minn. Nov. 20, 1995) (Judgment and Commitment Order); U.S. v. Reut BustosHernandez, No. 01–210(2)(DSD/JMM) (D. Minn. Jan. 28, 2002) (Judgment and Commitment 

Order); U.S. v. Fernando Dwayne Davis, No. 4:95CR00103–001 (D. Minn. Jan. 14, 1997) (Judgment and Commitment Order); U.S. v. Maria Guadalupe Avalos, No. 98–137(12)(DSD/AJB) (D. 

Minn. May 24, 1999) (Judgment and Commitment Order); U.S. v. Stephen Tiarks, No. 98– 137(11)(DSD/AJB) (D. Minn. June 2, 1999) (Judgment and Commitment Order); U.S. v. Alecia 

Colmenares, No. 99–351(10)(ADM/AJB) (D. Minn. Sept. 5, 2000) (Judgment and Commitment 

Order); U.S. v. Heather Ann Genz, No. 99–351(9)(ADM/AJB) (D. Minn. Sept. 7, 2000) (Judgment 

and Commitment Order). 20See letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum (May 22, 2002); letter 

from Hon. James M. Rosenbaum, to Hon. Lamar Smith (June 6, 2002); letter from Hon. Lamar 

they are carrying or receiving;’’ 11 that ‘‘under the present guidelines, it is the quantity of drugs in the whole scheme that drives 

the sentence;’’ 12 and that the ‘‘present sentencing system sentences 

minor and minimal participants who do a day’s work, in an admittedly evil enterprise, the same way it sentences the planner and 

enterprise-operator who set the evil plan in motion and who figures 

to take its profits.’’ 13

To further his argument, Judge Rosenbaum offered ‘‘examples of 

the effects of this change, if adopted...’’ and provided ‘‘examples 

. . . pulled from recent cases in the District of Minnesota.’’ 14 He 

proceeded to discuss several cases, each of which he identified only 

by defendant initials, setting out guideline ranges under the existing guidelines, sentence terms, and other information with respect 

to each.15 He also set out his calculation as to what the sentencing 

range for each would be if the Sentencing Commission’s Amendment 4 were to become law, to suggest that the lower sentence resulting from the Amendment would be a more just sentence in each 

case.16

Following the hearing, the Subcommittee submitted additional 

written questions to Judge Rosenbaum on May 22, 2002, in order 

to ascertain, among other things, the actual cases to which Judge 

Rosenbaum referred during his testimony.17 After receiving the 

May 22, 2002 letter, Judge Rosenbaum contacted Subcommittee 

Chairman Lamar Smith by telephone and asked that the Chairman 

agree to permit the Judge to limit his response to ‘‘publicly available information.’’ The Chairman agreed that the Judge’s initial response could be so limited. Thereafter, Judge Rosenbaum responded to the Subcommittee’s May 22, 2002 letter on June 6, 

2002.18 Along with his response, Judge Rosenbaum conveyed copies 

of nine Judgment and Commitment Orders,19 which reveal some, 

but by no means all, of the information sought by the Subcommittee. 

Both in his June 6, 2002 response, and thereafter, Judge Rosenbaum declined, however, to answer certain questions posed to him 

by the Subcommittee relevant to his testimony, even for the cases 

over which he personally presided,20 despite his acknowledgment 

11

Smith, Chairman, Subcomm. on Crime, Terrorism, and Homeland Sec., to Hon. James M. Rosenbaum, Chief Judge, U.S. Dist. Court for the Dist. of Minn. (July 19, 2002); letter from Hon. 

James M. Rosenbaum, Chief Judge, U.S. Dist. Court for the Dist. of Minn., to Hon. Lamar 

Smith, Chairman, Subcomm. on Crime, Terrorism, and Homeland Sec. (Aug. 9, 2002); letter 

from Hon. Lamar Smith, Chairman, Subcomm. on Crime, Terrorism, and Homeland Sec., to 

Hon. James M. Rosenbaum, Chief Judge, U.S. Dist. Court for the Dist. of Minn. (Aug. 9, 2002); 

letter from Hon. James M. Rosenbaum, Chief Judge, U.S. Dist. Court for the Dist. of Minn., 

to Hon. Lamar Smith, Chairman, Subcomm. on Crime, Terrorism, and Homeland Sec. (Aug. 30, 

2002). 21Letter from Hon. James M. Rosenbaum, to Hon. Lamar Smith at 2 (Aug. 9, 2002). 22 U.S. v. Joel Arellano Plateado, No. 00–CR–327(10)(JMR) (D. Minn. Apr. 4, 2001) (Judgment 

and Commitment Order at 4). 23See letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum at 3 (July 19, 2002); letter 

from Hon. James M. Rosenbaum, to Hon. Lamar Smith at 2 (Aug. 9, 2002). 24See letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum at 3 (July 19, 2002). 25 U.S. v. Miguel Angel Larios-Verduzco, No. 01–CR–228(JMR) (D. Minn. June 13, 2002) 

(Judgment and Commitment Order at 4); U.S. v. Eduardo Pelayo-Ruelas, No. 01–CR–

228(01)(JMR/FLN) (D. Minn. Aug. 2, 2002) (Judgment and Commitment Order at 5). 26See letter from Hon. James M. Rosenbaum, to Hon. Lamar Smith at 2 (Aug. 9, 2002). 27Letter from Hon. James M. Rosenbaum, to Hon. Lamar Smith at 2 (Aug. 9, 2002). 28The court-reporter was exceedingly professional and helpful concerning this request. It nevertheless resulted in both delay in receiving the information, an obligation of public funds and 

expenditures of court and Subcommittee staff time to obtain information that Judge Rosenbaum 

possessed, but would not reveal. 

that ‘‘trials, guilty pleas, and sentencing proceedings are generally 

public.’’ 21 As a significant example, the Judgment and Commitment Order in United States v. Joel Arellano Plateado reflects only 

that Judge Rosenbaum granted a downward departure in that case 

‘‘for the reasons set forth at the hearing.’’ 22 When the Subcommittee requested Judge Rosenbaum inform it of his reasons, he 

declined to do so.23

Further, in response to subsequent requests from the Subcommittee,24 Judge Rosenbaum provided additional Judgment and 

Commitment Orders which also reflect that he granted downward 

departures in two other cases ‘‘for the reasons set forth at the 

hearing[s].’’ 25 Rather than provide the Subcommittee with his reasons in any of these cases, Judge Rosenbaum suggested that the 

Subcommittee seek to order transcripts of the sentencing proceedings and provided the name and telephone number of his court 

reporter.26 He also wrote, ‘‘I am—and remain—happy to provide 

the Subcommittee such assistance as I am able to provide.’’ 27 The 

Subcommittee thereafter sought to obtain the transcripts of certain 

relevant proceedings.28

I. JUDGE ROSENBAUM’S PREPARED STATEMENT SUGGESTED THAT

DEFENDANTS ARE CONVICTED ON LEGALLY INSUFFICIENT EVIDENCE

At the May 14, 2002 hearing, Judge Rosenbaum testified against 

the bill and advocated strongly that the Sentencing Commission’s 

amendment to cap the base offense level for those trafficking in 

large quantities of drugs was very much needed to bring equity to 

the Federal sentencing system. In describing those persons who 

would be affected by Amendment 4, he testified:

they are the women whose boyfriends tell them, ‘‘A package 

will be coming by mail or from a package delivery service in 

the next 2 weeks. Keep it for me, and I’ll give you $200, or 

maybe I’ll buy you food for the kids.’’ Or they are drug couriers 

who either swallow, wear, or drive drugs from one place to another. And they frequently have no idea what they are 

12

29 H.R. 4689 Hearing at 19–20 (Prepared Statement of Judge Rosenbaum) (emphasis added). 

Judge Rosenbaum also testified concerning an individual whom he identified as ‘‘EPR,’’ telling 

the Subcommittee that ‘‘EPR was friends with a drug courier, and was asked to travel with him 

as a second driver. According to the courier, the defendant was not aware of the drugs 

in the car. His sentence is pending before me.’’ Id. at 21 (emphasis added). 30Fed. R. Crim. P. 29 (Motion for Judgment of Acquittal). Rule 29 states: ‘‘[t]he court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of 

one or more offenses charged in the indictment or information after the evidence on either side 

is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.’’ Id. (emphasis added). 

31 H.R. 4689 Hearing at 28 (question from Chairman Smith). 32 Id. at 28 (testimony of Hon. James M. Rosenbaum, Chief Judge, U.S. Dist. Court of the 

Dist. of Minn. [hereinafter Testimony of Judge Rosenbaum]). Further, Judge Rosenbaum thereafter was unable to identify any case in which he declined to grant a motion for judgment of 

acquittal under Rule 29, Federal Rules of Criminal Procedure, where the facts were as he described in his written statement: that is, where the only evidence adduced at trial was of the 

woman defendant’s boyfriend [who] told her ‘‘[a] package will be coming by mail or from a package delivery service in the next 2 weeks. Keep it for me, and I’ll give you $200, or maybe I’ll 

buy you food for the kids.’’ Id. at 19. See letter from Hon. Lamar Smith, to Hon. James M. 

Rosenbaum at 3 (May 22, 2002) (question 11); letter from Hon. James M. Rosenbaum, to Hon. 

Lamar Smith (June 6, 2002). 

carrying or receiving, and if they have an idea of what, they 

usually don’t know how much.29

That a sitting Federal Judge would suggest, as he did in his prepared statement, that persons can be, and are convicted on no more 

evidence than receiving a package at the request of a boyfriend is 

remarkable. If true, it raises serious concerns that judges are 

knowingly permitting such convictions despite the extraordinary 

power entrusted to them by Congress to prevent convictions based 

on insufficient evidence.30 If not true, the falsity of that suggestion, 

cloaked in the majesty of a Federal judicial officer, can only serve 

to erode respect for the rule of law in the public’s mind and in the 

mind of those who stand accused of crimes. 

Accordingly, Chairman Smith pressed Judge Rosenbaum on this 

very point:

Mr. SMITH . . . Judge Rosenbaum . . . In all of the examples 

that you gave, it’s my understanding that the individuals involved were actually convicted of knowing they were trafficking 

in drugs or were convicted of knowingly being engaged in conspiring to traffic in drugs....

My question is this, going back to one of the examples that you 

gave—I think it was the example of the girlfriend, you said, [who was] given $200, just deliver this package or receive this 

package or whatever. If that’s all there was to it, I don’t think 

she would have been convicted...31

The Judge then acknowledged that the suggestion in his prepared 

statement was not correct and that persons convicted did know

that they were carrying or receiving illegal drugs:

Judge ROSENBAUM. . . . They were all convicted of crimes 

that they committed. They knew what they were doing . . . 

they understood what they were doing.32

II. JUDGE ROSENBAUM’S TESTIMONY INACCURATELY SUGGESTED A

REFERENCE TO AN ACTUAL CASE IN SUPPORT OF THE AMENDMENT

In continuing his response to the Chairman’s question at the 

May 14, 2002 hearing, Judge Rosenbaum added:

The young woman received a box at her home. It was not for 

her to open that box. I can assure you, knowing what I 

13

33 H.R. 4689 Hearing at 28 (Testimony of Judge Rosenbaum) (emphasis added). 34See letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum at 3 (May 22, 2002) (question 11). 35Letter from Hon. James M. Rosenbaum, to Hon. Lamar Smith at 2 (June 6, 2002) (emphasis 

added). 36 H.R. 4689 Hearing at 20 (Prepared Statement of Judge Rosenbaum). 37 U.S. v. Vimalam Hamilton Delany, No. 99–CR–51 (010) (JMR) (D. Minn. Aug. 24, 2000) 

(Judgment and Commitment Order at 2, 4). 

know of her relationship with her boyfriend, she would 

never have done so. But she knew the box contained drugs, 

because she knew that’s what her boyfriend did.33

This certainly gave every indication that he was speaking of an actual defendant, with an actual boyfriend, and that Judge Rosenbaum had personal knowledge about the nature of their relationship. Yet, in his June 6, 2002 response to the Subcommittee’s follow-up questions seeking identification of this case,34 the Judge revealed that: 

that statement concerns no particular case. The statement distills conversations I have had over several years with 

inmates—particularly women—in Federal Correctional Institutions I have visited. The statement was offered to illustrate the 

situation in which minor or minimal participants frequently 

find themselves.35

III. JUDGE ROSENBAUM’S INACCURATE REPRESENTATIONS REGARDING

THE SENTENCES IN CASES BEFORE HIM AND OTHER FEDERAL DISTRICT COURTS CANNOT BE USED TO JUSTIFY SUPPORT OF THE

AMENDMENT

1. Judge Rosenbaum Inaccurately represented the Sentence of 

‘‘VHD’’

The case of ‘‘VHD’’ (Vimalam Hamilton Delaney) cannot support 

the Amendment because Judge Rosenbaum misrepresented the 

sentence that ‘‘VHD’’ received under the existing guidelines. Judge 

Rosenbaum testified:

Now, let me tell you about VHD . . . Under the present Guidelines she was rated at a level 27, and subject to a sentence of 

87–108 months, or 7–9 years. Under the proposed amendment, 

she would have had a base offense level of 25 and faced 57–

71 months, or between 5–6 years.36

Judge Rosenbaum did not to disclose that in this case he had actually departed below the guideline range (as he is permitted to 

do in the appropriate case under the existing guidelines) and sentenced ‘‘VHD’’ to 36 months.37 This sentence is well below the 

minimum of the guideline range under either the current guidelines or the amendment proposed by the Commission. Yet, 

Judge Rosenbaum did not disclose to the Subcommittee this essential fact and gave every indication that he was required to sentence 

this poor woman to an inordinately long term because of the harshness of the current guidelines—guidelines so harsh they need to be 

amended to provide relief lest injustice occur. 

In fact, no amendment is needed at all. The current guidelines 

provide for departures and sentences below the range when approVerDate Dec 13 2002 08:19 Feb 03, 2003 Jkt 010199 PO 00000 Frm 00013 Fmt 6659 Sfmt 6601 E:\XXTEMP\HR769.107 HR769
14

38See Sentencing Guidelines § 5K2.0. Section 3553(b) of 18 U.S.C. states that ‘‘[t]he court shall 

impose a sentence of the kind, and within the range . . . unless the court finds that there exists 

an aggravating or mitigating circumstance of a kind, or to a degree not adequately taken into 

consideration by the Sentencing Commission.’’ Id. 39 H.R. 4689 Hearing at 23 (testimony of William G. Otis, Adjunct Professor of Law, George 

Mason Univ. [hereinafter ‘‘Testimony of William G. Otis’’]). 40 Id. at 23 (Testimony of William G. Otis). 41 Id. at 21 (Prepared Statement of Judge Rosenbaum). 42 U.S. v. Joel Arellano Plateado, No. 00–CR–327(10)(JMR) (D. Minn. Apr. 4, 2001) (Judgment 

and Commitment Order at 2 , 4). 43 H.R. 4689 Hearing at 21 (Prepared Statement of Judge Rosenbaum).

priate,38 as William G. Otis made clear in his testimony to the Subcommittee: 

Fifth, if the defendant is exceptional for any reason the Sentencing Commission did not adequately consider, he already 

qualifies for a downward departure with or without he government’s acquiescence. As we speak, downward departures from 

the guidelines on this basis, combined with Government-sponsored departures, are given in an astonishing 43 percent of all 

drug trafficking cases.39

He further testified:

With so many avenues of mitigation already built into the system, there is no occasion for an amendment...40

2. Judge Rosenbaum Inaccurately Represented the Sentence of ‘‘JAP’’

Judge Rosenbaum also misstated the sentence imposed on ‘‘JAP,’’ (Joel Arellano Plateado) which cannot be used to justify the 

Amendment. Judge Rosenbaum testified that:

Twenty-one year old JAP . . . was characterized as a level 34 

offender, resulting in a range of 57–71 months, or 5–6 years, 

after reductions for role, acceptance, and safety valve. Under 

the change [of the Commission’s amendment], he would have 

had a range of 37–46 months, or 3–4 years.41

Judge Rosenbaum did not tell the Subcommittee that in this case 

he had also departed downward for ‘‘JAP’’ under the existing

guidelines to impose a sentence of 36 months, which represents a 

sentence below the bottom of the guideline range under either the 

existing or amended guidelines.42

3. Judge Rosenbaum Misstated the Circumstances Surrounding the 

Sentencing of ‘‘FDD’’

Judge Rosenbaum misstated the circumstances surrounding the 

sentencing of ‘‘FDD’’ (Fernando Dwayne Davis), which cannot be 

used to justify the Amendment. Judge Rosenbaum testified that:

FDD was one of the drivers in the course of a drug distribution 

chain and had no criminal history. (His defense counsel maintained that his participation in the offense constituted shortterm, aberrant behavior in his otherwise law-abiding lifestyle.) 

Therefore the presentence investigation considered him a 

minor participant in the drug trafficking conspiracy.43

To describe ‘‘FDD’’ merely as, ‘‘one of the drivers in the course 

of the drug distribution chain,’’ understates the seriousness of the 

defendant’s criminal conduct and the extent of his involvement as 

15

44 U.S. v. Fernando Dwayne Davis, No. 4:95CR00103–001 (D. Minn. Jan. 14, 1997) (Judgment 

and Commitment Order). 45 Id. (Judgment and Commitment Order, Findings of Fact at 3). 46 Id. at 4. In addition, Davis was present, along with all other co-defendants (except one) on 

November 3, 1995 at the Red Roof Inn and was observed by law enforcement surveillance. Government’s Memorandum in Response to Defendants’ Position with Respect to Sentencing, page 

3, U.S. v. Fernando Dwayne Davis, et al, 4:95CR000103–001. This was the day that the search 

warrant was executed at that location where crack cocaine, drug paraphernalia and incriminating documentary evidence was seized. Id. 47 U.S. v. Fernando Dwayne Davis, No. 4:95CR00103–001 (D. Minn. Jan. 14, 1997) (Judgment 

and Commitment Order, Findings of Fact at 3). 48 Id. at 1 (emphasis added). ‘‘Part E of the PSR, paragraphs 123–27, presents a brief summary of factors the probation officer believes may warrant a departure.’’ Id. 49Letter from Hon. James M. Rosenbaum, to Hon. Lamar Smith at 1 (June 6, 2002). 50 U.S. v. Fernando Dwayne Davis, No. 4:95CR00103–001 (D. Minn. Jan. 14, 1997) (Judgment 

and Commitment Order, at 1, 2). 51 Id. at 4. 52 H.R. 4689 Hearing at 20 (Prepared Statement of Judge Rosenbaum). 

a full and ongoing participant in the conspiracy as set forth in the 

sentencing judge’s written findings attached to the Judgement and 

Commitment Order: 44

[T]he defendant was present at Patsy Kalfayan’s apartment in 

the early morning on November 1, 1995 when Gerald Jarret 

made him and the other co-defendants remove their clothing 

when some cocaine base was misplaced. The defendant was 

also present when Carlos Cleveland found the missing cocaine 

base in the hood of his coat in Detroit at the home of a person 

known only as Tony.45

The defendant drove the other members of the conspiracy to 

Minneapolis, met Steven Howard, who was transporting weapons for the defendants, at the Minneapolis bus station, and 

registered for a room at the Red Roof Inn.46

The Judgment and Commitment Order further reflects the fact 

that the sentencing judge attributed drug amounts to this defendant based upon his knowledge and involvement in aspects of the 

conspiracy beyond that of ‘‘one of the drivers.’’ 47

In addition to minimizing ‘‘FDD’s’’ involvement, Judge Rosenbaum did not to tell the Subcommittee that the pre-sentence report 

listed factors which the probation officer who prepared the report 

believed ‘‘may warrant an upward departure.’’ 48 While the Subcommittee discovered this only upon review of the Judgment and 

Commitment Order, Judge Rosenbaum told Chairman Smith, he 

based his testimony ‘‘on case summaries contained in Pre-Sentence 

Reports (PSRs).’’ 49

Despite his prior review of the pre-sentence report containing 

this information, Judge Rosenbaum similarly did not tell the Subcommittee that ‘‘FDD’’ had also been convicted of aiding and abetting the use of a firearm in connection with his drug trafficking offense,50 and that ‘‘FDD’’ ‘‘participated in the beating of [cooperating 

witness] Tonya Washington.’’ 51 While failing to disclose these facts, 

Judge Rosenbaum reassuringly testified ‘‘it would seem improbable 

that a person who uses a weapon or who injures another would 

even be considered for minor or minimal status in the first 

place.’’ 52

16

53 Id. at 21. 54 U.S. v. Maria Guadalupe Avalos, No. 98–137(12)(DSD/AJB) (D. Minn. May 24, 1999) (Judgment and Commitment Order at 2, 7). 55 U.S. v. Alecia Colmenares, No. 99–351(10)(ADM/AJB) (D. Minn. Sept. 5, 2000) (Judgment 

and Commitment Order at 2, 5). 56 H.R. 4689 Hearing at 21 (Prepared Statement of Judge Rosenbaum). 

4. The Record Regarding ‘‘MGA’’ Does Not Justify the Amendment 

Because She Received a Sentence of Only Six Months Under Existing Guidelines 

Judge Rosenbaum attempted to support his claim that the 

Amendment is necessary because of the case of ‘‘MGA’’ (Mari Guadalupe Avalos). Judge Rosenbaum testified:

MGA accepted $2,000 for accepting a package. This was the extent of her involvement in the conspiracy at issue. This made 

her a minimal participant entitled to a 4-point reduction. With 

no prior criminal convictions and a starting offense level of 34 

based on drug quantity, her guideline range was 57–71 

months, or 5 to 7 years, after reductions for role, acceptance, 

and safety valve. Under the proposed change, her range would 

instead be 37–46 months, or 3–4 years.53

Yet, Judge Rosenbaum did not tell the Subcommittee that the 

‘‘proposed change,’’ which he suggested at every step was so badly 

needed to prevent injustice, would be irrelevant to ‘‘MGA’s’’ actual 

sentence of only 6 months. He did not tell the Subcommittee that 

‘‘MGA’’ had in fact received a downward departure upon motion 

of the government for her substantial assistance to the United 

States in the prosecution of others under the existing guidelines 

and received a sentence of only ‘‘6 months with work-release 

privileges or accommodations to attend school...’’ 54 This 

sentence is well below the guideline range under either the existing 

or amended guidelines. 

5. The Proposed Amendment Would be Irrelevant to ‘‘AC’’ Who Received a Downward Departure Under Existing Guidelines. 

Similarly, Judge Rosenbaum did not tell the Subcommittee that 

the proposed amendment to the guidelines would also be irrelevant 

to ‘‘AC,’’ (Alecia Colmenares) who it turns out also received a 

downward departure from her sentencing range under the existing guidelines and was sentenced to only 24 months.55 Instead he 

suggested at the hearing that the amendment was needed because: 

[‘‘AC’s’’] base offense level was 36 before reductions for role (as 

a minimal participant), safety valve, and acceptance, resulting 

in a guideline range of 70–87 months or 6–7 years. Under the 

new guideline, her range would instead be 37–46 months, or 3–

4 years.’’ 56

6. The Proposed Amendment Would Have No Effect on ‘‘ST’’ Who 

Received a Downward Departure Under Existing Guidelines 

Judge Rosenbaum did not tell the Subcommittee that the proposed amendment would also be irrelevant to ‘‘ST’’ (Stephen 

Tiarks) who in fact received a downward departure from his 

sentencing range under the existing guidelines. The Judgment 

and Commitment Order reveals that he received a sentence of only 

17

57 U.S. v. Stephen Tiarks, No. 98–137(11)(DSD/AJB) (D. Minn. June 2, 1999) (Judgment and 

Commitment Order at 2). 58 H.R. 4689 Hearing at 21 (Prepared Statement of Judge Rosenbaum). 59 Id. 60The so-called ‘‘Safety Valve’’ provision allows the court to sentence a qualifying defendant 

without regard to otherwise applicable mandatory minimum sentences and to further reduce the 

guideline range. It is available only to persons who, among other things, are found not to be 

subject to aggravating role enhancements. See 18 U.S.C. § 3553(f) (2002); see also Sentencing 

Guidelines § 5C1.2, Limitation on Applicability of Statutory Minimum Sentences in Certain 

Cases, and § 2D1.1(b)(6)(providing for 2 level reduction under guideline calculation). 61 U.S. v. Eliseo Rodrigo Romo, Crim. No. 3–95–52, (D. Minn. Nov. 17, 1995) (Transcript of 

Sentencing Proceeding at 19–20). 

42 months.57 But at the hearing, Judge Rosenbaum used ‘‘ST’’ as 

an example of why the Commission’s amendment was needed, stating: 

his base offense level was 38, which resulted in a guideline 

range of 108–135 months, or 8–11 years, after reductions for 

role, acceptance, and safety valve. With the change in the 

guidelines, his range would instead be 46–57 months, or between 4–5 years.’’ 58

7. ‘‘ERR’’ Was Denied A Lower Sentence Through the Exercise of the 

Sentencing Judge’s Discretion, Not the Operation of the Guidelines 

Judge Rosenbaum sought to justify the amendment through reference to ‘‘ERR’’ (Eliseo Rodrigo Romo) whom he described as having:

acted as a courier/collections agent in a drug trafficking conspiracy. It did not appear that he had any discretionary power 

in the decision-making process or leadership in the conspiracy, 

like DLL he had a criminal history category of I....59

Judge Rosenbaum did not inform the Subcommittee that, although the sentencing judge in that case had discretion under the 

existing guidelines to reduce ‘‘ERR’s’’ sentence under the so-called 

‘‘safety valve’’ provision 60 (an existing provision permitting further 

sentence reduction for ‘‘low-level’’ defendants), he specifically declined to do so and stated on the record: 

Long periods of incarceration, are not things that this Court 

likes to impose on people. . . . Mr. Romo, your conduct in this 

case, your conduct involved in this drug business, your conduct 

involving other matters that are outside of this case but are 

contained within the presentence investigation report is purely 

reprehensible conduct. It is the kind of conduct that a civil society cannot stand. And it is the kind of conduct that is 

wrong.61

8. ‘‘HAG’’ Received a Downward Departure For Substantial Assistance and Was Sentenced to Only 24 Months. 

Judge Rosenbaum’s testimony ignored the downward departure 

received by ‘‘HAG’’ for substantial assistance. Judge Rosenbaum 

testified that:

She had a criminal history category II, because of 2 prior convictions for theft and careless driving. Without a change in the 

guidelines, her base offense level was 36. The presentence investigation concluded she was entitled to a reduction for minor 

18

62 H.R. 4689 Hearing at 20 (Prepared Statement of Judge Rosenbaum). 63 U.S. v. Heather Ann Genz, No. 99–351(9)(ADM/AJB) (D. Minn. Sept. 7, 2000) (Judgment 

and Commitment Order at 2, 5). 64 Id. at 5. 65Letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum (Aug. 9, 2002). 66Letter from Hon. James M. Rosenbaum, to Hon. Lamar Smith at 1 (Aug. 30, 2002). 67 Id. (emphasis added). Judge Rosenbaum also stated, ‘‘Until your letter, I had not reviewed 

the sentencing transcript (which had not been prepared, since the sentence was—apparently— not appealed).’’ Id. 68 Id. 69 H.R. 4689 Hearing at 20 (Prepared Statement of Judge Rosenbaum). 70 Id. (emphasis added). 

participant. Her guideline range was 121–151 months, or 10–

13 years, after reductions for role and acceptance. With the 

proposed guideline change, her range would instead be 63–78 

months, or between 5–7 years.62

Judge Rosenbaum did not tell the Subcommittee that under the existing guidelines, ‘‘HAG’’ (Heather Ann Genz) in fact received a 

sentence of only 24 months, the sentencing judge having granted 

a downward departure for Genz’s substantial assistance to the 

United States in the prosecution of others pursuant to Guideline 

§ 5K1.1.63

Because the Judgment and Commitment Order received by the 

Subcommittee in the case of Heather Ann Genz reflected a criminal 

history category I and a guideline range of 87–108 months,64 which 

was inconsistent with Judge Rosenbaum’s testimony, the Subcommittee wrote to Judge Rosenbaum to confirm that his testimony concerning ‘‘HAG’’ in fact referred to Heather Ann Genz.65 In 

response, Judge Rosenbaum acknowledged that ‘‘[a]s you correctly 

perceived, ‘HAG’ pertains to the case of Heather Ann Genz.’’ 66 He 

then informed the Subcommittee that his statement and testimony 

before the Subcommittee concerning ‘‘HAG’’ ‘‘did not refer to the 

actual sentence imposed by Judge Montgomery.’’ 67 Judge 

Rosenbaum also told the Subcommittee: 

My written statement submitted to the Subcommittee as part 

of my testimony (in the portion relating to HAG) stated, ‘‘the 

presentence investigation concluded...’’ These words are in 

the statement, because the testimony relating to HAG was 

based on her presentence investigation.68

This appears to suggest that his prepared statement attributed 

all of the information concerning ‘‘HAG’s’’ guideline calculation to 

the presentence investigation. It in fact did not. The only attribution to the presentence investigation contained in his prepared 

statement was with respect to the reduction for minor participant—‘‘[t]he presentence investigation concluded she was entitled 

to a reduction for minor participant.’’ 69

Both before and after this sentence, Judge Rosenbaum stated, 

without any reference to the source of the information, that: ‘‘HAG’’

‘‘had a criminal history category II, because of 2 prior convictions 

for theft and careless driving;’’ ‘‘her base offense level was 36;’’ and 

‘‘[h]er guideline range was 121—151 months, or 10—13 years, after 

reductions for role and acceptance.’’ 70 Further, this information 

was submitted after Judge Rosenbaum informed the Subcommittee 

at the beginning of his statement: ‘‘[l]et me give you a few examples of the effects of this change if adopted,’’ and that this was 

19

71 Id. (emphasis added). After the Subcommittee first requested information concerning the actual cases (see letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum (May 22, 2002)), 

Judge Rosenbaum informed the Subcommittee that ‘‘these examples were based on case summaries contained in Pre-sentence Reports (PSR’s)’’ and asked ‘‘[b]ecause the factual information 

in my testimony was taken from the confidential PSRs, however, I ask that you do not publicly 

cross reference my testimony with the Judgment and Commitment Orders...’’ Letter from 

Hon. James M. Rosenbaum, to Hon. Lamar Smith at 1 (June 6, 2002). 72 Indeed, as Judge Rosenbaum acknowledged, it is the sentencing Judge who makes the determinations concerning all of these sentencing issues. See letter from Hon. James M. Rosenbaum, to Hon. Lamar Smith, at 2 (Aug. 30, 2002) (‘‘the confusion, of course, lies in the fact that 

the sentencing judge made her own calculations and the adjustments she felt were appropriate 

at the actual sentencing. (These are reflected in the Judgment and Commitment Orders, which 

I have supplied pursuant to your previous request.)’’). 73 Although even a cursory review of the Judgment and Commitment Order would reveal this 

information. 74This is Judge Rosenbaum’s term. See letter from Hon. James M. Rosenbaum, to Hon. Lamar 

Smith, at 1 (Aug. 30, 2002). 75See H.R. 4689 Hearing at 22 (Prepared Statement of Judge Rosenbaum). 

one of the ‘‘examples which are all pulled from recent cases in the 

District of Minnesota.’’ 71

It is, of course, difficult to understand why Judge Rosenbaum referenced presentence investigative calculations by probation officers 

contained in confidential records, rather than actual calculations 

determined by sentencing judges contained in public records, or 

why he believed that such information (particularly when it conflicted with actual sentences) was relevant.72 While it may be possible to attribute the inaccurate information to his failure to inquire as to the actual sentence with respect to cases assigned to 

other judges,73 the same cannot be said with respect to his own 

cases. With respect to his own cases, one can assume he was fully 

aware of the actual guideline determinations as well as the actual 

sentence imposed. 

Regardless of sentencing judge, in the examples cited by Judge 

Rosenbaum where the ‘‘presumptive sentence’’ 74 conflicted with the 

actual sentence, the ‘‘presumptive sentence’’ was greater than the 

undisclosed actual sentence. Many were considerably greater. This 

could fairly be said to at least have the effect of making it falsely 

appear as though, these low-level defendants really were getting 

sentenced under the existing guidelines ‘‘the same way it sentences 

the planners and enterprise-operator,’’ 75 when in fact they were 

not. 

9. Judge Rosenbaum’s Testimony Regarding Alleged Sentencing 

Anomalies Fails to Provide Any Support for the Proposed 

Amendment 

The Committee concludes that the cases cited by Judge Rosenbaum for which the Subcommittee has obtained substantial 

records, do not provide support for the proposed amendment. Rather, the records establish that sentencing judges are able to impose 

lower sentences for minor role defendants under the myriad provisions of the existing guidelines. 

IV. JUDGE ROSENBAUM’S TESTIMONY REGARDING THE ATTRIBUTABLE

DRUG AMOUNTS WAS INACCURATE AND DOES NOT JUSTIFY THE PROPOSED AMENDMENT

Judge Rosenbaum’s testimony regarding the quantity of drugs 

attributable to each defendant in a multiple defendant offense suggests that the same quantity of drugs is attributable to every participant in the scheme. This is simply inaccurate—a defendant’s 

20

76 Id. at 20 (Prepared Statement of Judge Rosenbaum) (emphasis added). See also id. at 19 

(‘‘the Sentencing Commission’s proposal reorients the sentencing inquiry, for bit players, away 

from the quantity of drugs in the entire crime and instead toward the perpetrator.’’) (emphasis added); id. at 19–20 (‘‘under the present Guidelines, the sentencing decision is driven by 

the quantity of drugs in the overall deal. And it does not at all reflect the minor or minimal 

participant’s reality.’’) (emphasis added). 77 Id. at 30 (emphasis added). But see Judge Rosenbaum’s answer to another question by Mr. 

Scott, concerning the application of mandatory minimum sentences on kingpins and mules. H.R. 

4689 Hearing at 30 (‘‘Let me be fair, Mr. Otis was also correct. It is addressed to the sound 

discretion of the court.’’). It is not at all clear what Judge Rosenbaum is attempting to say here 

in as much as mandatory minimums are not subject to the court’s discretion, whereas sentencing guideline factors often are. 78Sentencing Guideline § 1B1.3 (a)(1)(A) (‘‘all acts and omissions committed, aided, abetted, 

counseled, commanded, induced, procured, or willfully caused by the defendant.’’). 79Sentencing Guideline § 1B1.3, Application Note 2(ii). 80 H.R. 4689 Hearing at 22 (Prepared Statement of Judge Rosenbaum). 

sentence depends on the defendant’s personal involvement with an 

amount of drugs and the foreseeability of any additional amounts 

involved in the offense. Not only is this true as a general matter, 

it is true in specific examples that Judge Rosenbaum cited. Judge 

Rosenbaum testified:

And remember, under the present guideline, it is the quantity 

of drugs in the whole scheme that drives the sentence. The 

judge only looks at the defendant, after all the scheme’s 

drugs have been accounted for. This means drugs which 

were gotten or distributed by other people are included

before the defendant’s role is considered.76

Judge Rosenbaum further responded to questions from Mr. Scott as 

follows:

Mr. SCOTT. The way I understand they add this up, if you 

were transporting the half [kilogram], and your buddy is transporting 150 [kilograms], the conspiracy has got 150. 

Judge ROSENBAUM. You’ve got 150 and a half. 

Mr. SCOTT. And does that mean that the one who knew he 

was carrying a half gets sentenced in the 150-and-a-half conspiracy? 

Judge ROSENBAUM. Worse than that, the person who is financing it is the one who make the profits, regardless of which 

one is transporting it. 

Mr. SCOTT. So everybody gets sentenced the same? 

Judge ROSENBAUM. Yes, sir.77

However, the current guidelines provide that a defendant is only 

charged with the amount of drugs with which he was directly 

involved 78 and any additional amount of drugs distributed by others that was reasonably foreseeable and within the scope of 

the criminal activity which he jointly undertook with such 

others.79 The example given by Mr. Scott and embraced by Judge 

Rosenbaum would only result in attribution of the larger drug 

amounts to the half-kilo defendant if the court determined from the 

evidence that the larger amount was both reasonably foreseeable by that defendant and was within the scope of joint 

criminal activity with the person trafficking the 150 kilograms. 

Judge Rosenbaum, who elsewhere informed the Subcommittee that 

he deals with criminal drug cases ‘‘every day,’’ 80 had an obligation 

21

81 Judge Rosenbaum made only a passing reference to ‘‘forseeability,’’ and thereafter agreed 

that ‘‘everybody gets sentenced the same.’’ See H.R. 4689 Hearing at 30 (Testimony of Judge 

Rosenbaum). 82Sentencing Guidelines § 1B1.3, Application Note 2 (ii) (emphasis added). This is an extraordinary benefit to defendants convicted of drug trafficking conspiracies, for it is a radical departure from traditional conspiracy law. As a general rule, one who joins an existing conspiracy 

is guilty of conspiracy and adopts the prior acts of the other conspirators. U.S. v. Green, 600 

F.2d 154 (8th Cir. 1979); U.S. v. Lemm, 680 F.2d 1193, 1204 (8th Cir. 1982), cert. denied, 459 

U.S. 1110 (1983). ‘‘[A] person who knowingly, voluntarily and intentionally joins an existing conspiracy is responsible for all of the conduct of the conspirators from the beginning of the conspiracy.’’ Modern Fed. Jury Instructions—Criminal § 5 (MB), Manual of Model Criminal Jury Instructions for the Dist. Courts of the Eighth Circuit at § 5.06I (2002) (Conspiracy: co-conspirator 

Acts and Statements). ‘‘[U]nder the law each member is an agent or partner of every other member and each member is bound by or responsible for the acts of every other member done to 

further their scheme.’’ Id. at § 506D (Conspiracy: Overt Act—explained). 83See letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum at 1 (May 22, 2002) (question 4, 5); letter from Hon. James M. Rosenbaum, to Hon. Lamar Smith (June 6, 2002); letter 

from Hon. Lamar Smith, to Hon. James M. Rosenbaum, (July 19, 2002); letter from Hon. James 

M. Rosenbaum, to Hon. Lamar Smith (Aug. 9, 2002); letter from Hon. Lamar Smith, to Hon. 

James M. Rosenbaum (Aug. 9, 2002); letter from Hon. James M. Rosenbaum, to Hon. Lamar 

Smith (Aug. 30, 2002). 84Letter from Hon. James M. Rosenbaum, to Hon. Lamar Smith at 2 (Aug. 9, 2002). Of 

course, even transcripts of sentencing hearings often do not reveal this information where the 

judge will often simply state on the record that the court adopts paragraphs of the presentence 

report. This is particularly so when the matter is not contested by the parties. For example, 

in U.S. v. Eliseo Rodrigo Romo, the court merely acknowledges on the record receipt of the 

presentence report, adopts it and recites his finding of a Total Offense Level. U.S. v. Eliseo 

Rodrigo Romo, No. 3–95–52 (D. Minn. Nov. 17, 1995) (Transcript of Criminal Sentencing Proceedings at 2). 85See letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum at 1 (May 22, 2002) (question 3); letter from Hon. James M. Rosenbaum, to Hon. Lamar Smith (June 6, 2002); letter from 

Hon. Lamar Smith, to Hon. James M. Rosenbaum at 3 (July 19, 2002); letter from Hon. James 

M. Rosenbaum, to Hon. Lamar Smith (Aug. 9, 2002). 

to provide this information in response to Mr. Scott’s question and 

elsewhere, but chose not to.81

Significantly, the current Guidelines additionally provide that:

A defendant’s relevant conduct does not include conduct of 

members of a conspiracy prior to the defendant joining the conspiracy, even if the defendant knows of that conduct. (e.g., in the case of a defendant who joins an ongoing drug distribution conspiracy knowing that it had been selling two kilograms of cocaine per week, the cocaine sold prior to the defendant joining the conspiracy is not included as relevant conduct 

in determining the defendant’s offense level).82

With respect to this issue, it is significant that Judge Rosenbaum 

has repeatedly declined to provide the Subcommittee with information concerning the amount and type of drugs for which he determined each defendant was directly involved under Guideline 

§ 1B1.3(a)(1)(A), and the amount and type of any additional drugs 

for which he determined the defendant was responsible as a result 

of the application of Guideline § 1B1.3 for jointly undertaken criminal activity.83 Instead, he suggested that we seek to obtain the 

transcripts of the sentencing proceedings in order to find out.84

Similarly, Judge Rosenbaum has repeatedly declined to identify 

other individuals who were charged as codefendants in jointly undertaken criminal activity with each defendant referenced by Judge 

Rosenbaum in his testimony.85 Such information would have revealed whether more culpable co-defendants or co-conspirators 

were appropriately sentenced based on attribution of greater drug 

quantities than that attributed to minor or minimal participant defendants referenced in Judge Rosenbaum’s testimony. However, the 

Subcommittee’s efforts to identify co-defendants by other investigative means lead to the receipt of additional documents containing 

22

86See H.R. 4689 Hearing at 21 (Prepared Statement of Judge Rosenbaum). 87 U.S. v. Herman Espino, et al, Cr. No. 98–137 (DSD/AJB) (D. Minn. Aug. 5, 1998) (Second 

Superseding Indictment). 88 In response to the Subcommittee’s May 22, 2002 inquiry, Judge Rosenbaum provided the 

Subcommittee with copies of the Judgment and Commitment Orders for each of these defendants on June 6, 2002. The Orders reflect the same case number. 89See H.R. 4689 Hearing at 21 (Prepared Statement of Judge Rosenbaum). 90Sentencing Guidelines § 2D1.1 (a)(3) and (c) Drug Quantity Table (1); see also U.S. v. Stephen Tiarks, No. 98–137(11)(DSD/AJB) (D. Minn. June 2, 1999) (Judgment and Commitment 

Order, Application of Guidelines to Facts at 1) (‘‘Defendant is responsible for the 16 kilograms 

of methamphetamine he attempted to bring into Minnesota.’’). 91Sentencing Guidelines § 2D1.1 (a)(3) and (c) Drug Quantity Table (3). 92See letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum at 1 (May 22, 2002) (question 3); letter from Hon. James M. Rosenbaum, to Hon. Lamar Smith (June 6, 2002); letter from 

Hon. Lamar Smith, to Hon. James M. Rosenbaum at 3 (July 19, 2002); letter from Hon. James 

M. Rosenbaum, to Hon. Lamar Smith (Aug. 9, 2002). 93See H.R. 4689 Hearing at 20 (Prepared Statement of Judge Rosenbaum). 94See id. at 19. 95 U.S. v. Alfred Prieto, No. 98–137(4) (DSD/AJB) (D. Minn. July 2, 1998) (Judgment and Commitment Order, Findings of Fact at 6). 96 U.S. v. Juan Villanueva Monroy, No. 98–137(3)(DSD/AJB) (D. Minn. June 15, 1999) (Judgment and Commitment Order, Findings of Fact at 2). 97Whom Judge Rosenbaum declined to identify. See letter from Hon. Lamar Smith, to Hon. 

James M. Rosenbaum at 1 (May 22, 2002) (question 3); letter from Hon. James M. Rosenbaum, 

to Hon. Lamar Smith (June 6, 2002); letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum at 3 (July 19, 2002); letter from Hon. James M. Rosenbaum, to Hon. Lamar Smith (Aug. 

9, 2002). 

this information. These documents clearly establish that Judge 

Rosenbaum’s testimony (that coconspirators are all held accountable for the same drug quantity) was unquestionably false. 

Two individuals about whom Judge Rosenbaum testified, ‘‘ST’’

(Stephan Tiarks) and ‘‘MGA’’ (Maria Guadalupe Avalos),86 were in 

fact co-defendants charged in the same conspiracy.87 Judge Rosenbaum failed to inform the Subcommittee of this fact.88 Had he done 

so, it would have been apparent to the Subcommittee, even at the 

hearing on May 14, 2002 that his suggestion that defendants are 

sentenced based on all of the drugs in an offense was patently 

false. This is so because he testified that ‘‘ST’’ received a base offense level of 38 for drug quantity, while ‘‘MGA’’ had received a 

base offense level of 34.89 Base offense level 38 is assigned to a defendant when 15 kilograms of Methamphetamine or more are attributable to that defendant.90 Base Offense level 34 is assigned to 

a defendant when a quantity of methamphetamine between 1.5 

kilograms and 5 kilograms is attributable to that defendant.91

Subsequent investigation concerning this case reveals even further the extent of Judge Rosenbaum’s attempts to mislead the Subcommittee. The Subcommittee obtained the Judgment and Commitment Orders for additional co-defendants whom Judge Rosenbaum 

declined to identify.92 From these records, it is clear that neither

‘‘ST’’ nor ‘‘MGA’’ were sentenced for ‘‘the quantity of drugs in the 

whole scheme,’’ 93 or ‘‘the entire crime.’’ 94 More culpable co-defendants in that methamphetamine conspiracy were determined by 

the sentencing judge to be liable for drug amounts of 34.4 kilograms (Alfredo Prieto) 95 and 55 kilograms (Juan Villanueva 

Monroy).96

Analysis of the case involving ‘‘HAG’’ (Heather Ann Genz) and 

‘‘AC’’ (Alecia Colmenares) similarly reveals that, contrary to Judge 

Rosenbaum’s assertion, co-defendants are not sentenced based on 

all drugs in the offense. Through its followup investigation, the 

Subcommittee confirmed that these two individuals were in fact codefendants along with others,97 charged in a methamphetamine 

23

98 U.S. v. Jaime Rosas Mancilla, et al., Cr. No. 99–351 (ADM/AJB) (D. Minn. Feb. 8, 2000) 

(Superseding Indictment). 99 H.R. 4689 Hearing at 20, 21 (Prepared Statement of Judge Rosenbaum (‘‘HAG’’) and (‘‘AC’’)). 100Sentencing Guidelines § 2D1.1 (a)(3) and (c) Drug Quantity Table (2). 101 U.S. v. Jesus Ibarra-Torres, Cr. No. 99–351(2) (D. Minn. Oct. 2, 2000) ( Judgment and 

Commitment Order). 102Sentencing Guidelines § 2D.1.1 (a)(3) and (c) Drug Quantity Table (1). 103 U.S. v. McCarthy, et al., 97 F. 3d 1562 (8th Cir. 1996). 104 Id. at 1574 (Judge Rosenbaum held Ness ‘‘accountable at sentencing only for the relevant 

conduct of distributing 220 pounds of marijuana in Minnesota, even though the jury had 

found him guilty of the larger conspiracy charged in Count I of the Indictment.’’) (emphasis 

added). 105 U.S. v. Brown, et al., 148 F. 3d 1003 (8th Cir. 1998). 106 Id. at 1006. 107 Id. at 1009. 108 Id. at 1008 (citation omitted).

distribution conspiracy.98 While not indicating that they were codefendants, Judge Rosenbaum nevertheless testified that ‘‘HAG’’

and ‘‘AC’’ had each received a base offense level of 36 based on 

drug quantity 99 (at least 5 kilograms but less than 15 kilograms 

of methamphetamine).100 The Judgment and Commitment Order of 

their co-defendant Jesus Ibarra-Torres 101 reveals that IbarraTorres was held accountable for far greater drug quantities than either ‘‘HAG’’ or ‘‘AC’’—(that is 55 pounds or 25 kilograms of methamphetamine) which would mandate a base offense level of 38.102

It is not just other judges who make individual determinations 

with respect to each defendant concerning attributable drug 

amounts in conformity with the current guideline directives rather 

than blindly sentencing all conspirators based on total quantity involved in the offense. Judge Rosenbaum does that as well. In 

United States v. McCarthy, et al,103 the evidence at trial established that the overall conspiracy imported and attempted to distribute in excess of 5,000 pounds of marijuana. However, in sentencing co-conspirator Michael Ness, Judge Rosenbaum ‘‘did not 

hold Ness accountable for the entire amount chargeable to the conspiracy. Rather, he attributed to Ness 220 pounds of marijuana, 

which is the actual amount that [Judge Rosenbaum] determined 

Ness obtained from [a co-conspirator] and distributed.’’ 104

Judge Rosenbaum made similar individual determinations concerning attributable drug amounts for co-defendants in United 

States v. Brown, et al.105 In that case ‘‘Hewitt was held accountable 

for all drugs proved to have been distributed during the conspiracy,’’ 106 while his co-defendant, Brown was held accountable 

for a lesser quantity of drugs.107 In upholding Judge Rosenbaum’s 

individual drug attribution calculations on appeal, the Court of Appeals for the Eighth Circuit properly noted: 

Before a quantity of drugs may be attributed to a particular 

defendant, the sentencing court is required to find by a preponderance of the evidence that the transaction of activity involving those drugs was in furtherance of the conspiracy and either 

known to the defendant or reasonably foreseeable to him.108

The record clearly illustrates Judge Rosenbaum’s past practice of 

sentencing co-defendants according to different attributable drug 

amounts. Despite this practice, and the Eighth Circuit’s affirmation 

of the same, Judge Rosenbaum suggested otherwise to the Subcommittee. 

24

109 H.R. 4689 Hearing at 22 (Prepared Statement of Judge Rosenbaum (emphasis added)); see 

also id. at 18 (Testimony of Judge Rosenbaum) (‘‘[minor or minimal role players] are being sentenced as though they are running the entire enterprise.’’). 110See Sentencing Guideline § 3B1.1 Aggravating Role. 111See Sentencing Guideline § 3B1.2. Mitigating Role. As William G. Otis testified, ‘‘[a]s a lawyer who dealt with dozens if not hundreds of these sentencings, I can tell you that these mitigating role adjustments are granted giving the defendant the benefit of every doubt—even if 

the doubt has to be cobbled together with a certain degree of creativity.’’ H.R. 4689 Hearing

at 23 (Testimony of William G. Otis). 112 As discussed in ‘‘Judge Rosenbaum’s Testimony Regarding the Attributable Drug 

Amounts . . .,’’ supra, a ‘‘planner and enterprise operator’’ will usually have a higher base offense level than the minor participant even before any upward and downward adjustments are 

made for role in the offense. This is so because a ‘‘planner and operator,’’ unlike a minor participant, is generally directly involved with a greater quantity of drugs and greater quantities still 

are more reasonably foreseeable by him. This further assures, they are not sentenced ‘‘in the 

same way.’’ 113 H.R. 4689 Hearing at 21 (Prepared Statement of Judge Rosenbaum). 114 U.S. v. Alfred Prieto, No. 98–137(4)(DSD/AJB) (D. Minn. July 2, 1998) (Judgment and 

Commitment Order, Findings of Fact at 6); U.S. v. Juan Villanueva Monroy, No. 98– 137(3)(DSD/AJB) (D. Minn. June 15, 1999) (Judgment and Commitment Order, Findings of Fact 

at 2); U.S. v. Arturo Bahena, No. 98–137(6)(DSD/AJB) (D. Minn. May 26, 1999) (Judgment and 

Commitment Order, Findings of Fact at 3). 

V. JUDGE ROSENBAUM’S INACCURATE TESTIMONY THAT MAJOR AND

MINOR PARTICIPANTS RECEIVE THE SAME SENTENCE DOES NOT JUS- TIFY THE PROPOSED AMENDMENT

Judge Rosenbaum’s testimony that major and minor participants 

receive the same sentence does not provide any support for the proposed amendment. Judge Rosenbaum testified at the May 14, 2002 

hearing that:

The present sentencing system sentences minor and minimal participants who do a day’s work, in an admittedly evil 

enterprise, the same way it sentences planner and enterprise-operator [sic] who set the evil plan in motion and who 

figures to [sic] to take its profits.109

Of course, it does no such thing. After determining the base offense level (based on amount of drugs), the current guidelines 

structure provides that ‘‘planners and enterprise operators’’ receive 

an additional upward adjustment,110 while minor and minimal 

participants receive a downward adjustment 111 from their base 

offense level.112 This assures that minor and minimal participants 

are not sentenced ‘‘in the same way’’ as enterprise operators. 

Once again, the facts from the very cases cited by Judge Rosenbaum prove this point and do not support his testimony. Concerning this issue, it is also important to remember that Judge 

Rosenbaum did not to inform the Subcommittee of the material 

facts and thereafter declined to identify co-defendants which would 

have led to the discovery of these facts. Judge Rosenbaum provided 

testimony concerning ‘‘ST’’ (Stephan Tiarks) and ‘‘MGA’’ (Maria 

Guadalupe Avalos),113 and outlined some of the many downward 

adjustments each received (mitigating role, and ‘‘safety valve’’), 

yet failed to inform the Subcommittee that more culpable co-defendants received corresponding upward adjustments to reflect 

their greater culpability. 

‘‘ST’s’’ and ‘‘MGA’s’’ co-defendants Alfredo Prieto, Arturo Bahena, 

and Juan Villanueva Monroy, (in addition to starting out with 

higher base offense levels for drug amounts), each received an additional four point increase to reflect their respective degree of culpability—that of organizer and leader under Guideline § 3B1.1(a).114

This, along with a two-point increase for firearms in the case of 

25

115 U.S. v. Arturo Bahena, No. 98–137(6)(DSD/AJB) (D. Minn. May 26, 1999) (Judgment and 

Commitment Order at 2, 7). 116 U.S. v. Alfred Prieto, No. 98–137(4)(DSD/AJB) (D. Minn. July 2, 1998) (Judgment and 

Commitment Order at 2, 7). U.S. v. Juan Villanueva Monroy, No. 98–137(3)(DSD/AJB) (D. 

Minn. June 15, 1999) (Judgment and Commitment Order at 2, 7). 117 H.R. 4689 Hearing at 20–21 (Prepared Statement of Judge Rosenbaum). 118 U.S. v. Jesus Ibarra-Torres, Cr. No. 99–351(2) (D. Minn. Oct. 2, 2000) ( Judgment and 

Commitment Order). 119 U.S. v. Jesus Ibarra-Torres, Cr. No. 99–351(2) (D. Minn. Oct. 2, 2000) ( Judgment and 

Commitment Order at 2) (even after a downward departure from the calculated guideline range 

of 235–293 months). 120 U.S. v. Heather Ann Genz, No. 99–351(9)(ADM/AJB) (D. Minn. Sept. 7, 2000) (Judgment 

and Commitment Order at 2); U.S. v. Alecia Colmenares, No. 99–351(10)(ADM/AJB) (D. Minn. 

Sept. 5, 2000) (Judgment and Commitment Order at 2). 121 H.R. 4689 Hearing at 22 (Prepared Statement of Judge Rosenbaum). 122See letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum at 2 (May 22, 2002) 

(question 9); see also letter from Hon. James M. Rosenbaum, to Hon. Lamar Smith (June 6, 

2002); letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum, (July 19, 2002); letter from 

Hon. James M. Rosenbaum, to Hon. Lamar Smith (Aug. 9, 2002); letter from Hon. Lamar Smith, 

to Hon. James M. Rosenbaum (Aug. 9, 2002); letter from Hon. James M. Rosenbaum, to Hon. 

Lamar Smith (Aug. 30, 2002). 123See letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum at 2 (May 22, 2002) 

(question 9); see also letter from Hon. James M. Rosenbaum, to Hon. Lamar Smith (June 6, 

2002); letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum, (July 19, 2002); letter from 

Hon. James M. Rosenbaum, to Hon. Lamar Smith (Aug. 9, 2002); letter from Hon. Lamar Smith, 

to Hon. James M. Rosenbaum (Aug. 9, 2002); letter from Hon. James M. Rosenbaum, to Hon. 

Lamar Smith (Aug. 30, 2002). 

Prieto and Monroy, resulted in their receiving significantly higher 

guideline ranges and significantly higher sentences. Co-defendant 

Arturo Bahena received a guideline range of 262–327 months, and 

a sentence of 320 months.115 Co-defendants Prieto and Monroy 

each received guideline calculations and sentences of life compared 

to 42 months for ‘‘ST’’ and 6 months for ‘‘MGA.’’.116 These facts reveal Judge Rosenbaum’s testimony (that the current guidelines 

structure mandates that low-level defendants be sentenced ‘‘the 

same way’’ as high-level defendants) to be utterly false. 

The facts in yet another case involving two defendants cited by 

Judge Rosenbaum similarly proves the falsity of his testimony. He 

testified concerning the methamphetamine conspiracy case involving ‘‘HAG’’ (Heather Ann Genz) and ‘‘AC’’ (Alecia Colmenares). 

Judge Rosenbaum revealed that each received lower guideline 

ranges due to mitigating role reductions,117 but failed to inform the 

Subcommittee that a more culpable co-defendant in that case, 

Jesus Ibarra-Torres, not only received a higher starting base offense level for drug quantity starting out, but also received an additional increase in his guideline range to reflect his greater role 

in the offense—that of supervisor and manager—under Guideline 

§ 3B1.1(b).118 This co-defendant received a sentence of 188 

months 119 compared to the 24 months received by ‘‘HAG’’ and 

‘‘AC.’’ 120 Yet Judge Rosenbaum suggested that such co-defendants 

are sentenced ‘‘in the same way.’’ 121

In his response to the Subcommittee’s follow-up questions, Judge 

Rosenbaum was unable to identify any multiple defendant case in 

which he sentenced a ‘‘planner and enterprise-operator who set the 

[drug trafficking] plan in motion and who figures to take its profits’’ ‘‘the same way,’’ as the minor or minimal participant who ‘‘did 

a days work.’’ 122 He was similarly unable to identify any case in 

which he failed to impose an aggravating role upward adjustment 

for co-defendants who were organizers, leaders, managers, or supervisors of the criminal activity under Guideline § 3B1.1.123

In addition, under the current guideline structure, (and contrary 

to Judge Rosenbaum’s testimony) even after making adjustments 

26

124See Sentencing Guideline § 1B1.4 (‘‘In determining the sentence to impose within the guideline range, or whether a departure from the guidelines is warranted, the court may consider, 

without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law. See 18 U.S.C. § 3661.’’); see also, e.g., U.S. v. Woodrum, 959 F.2d 100 (8th Cir. 1992) (unless the sentence is in violation of law, a sentence 

within a properly calculated range is not reviewable). 125The Guideline range varies by roughly 25% from top to bottom. H.R. 4689 Hearing at 26 

(Prepared Statement of William G. Otis). 126 H.R. Hearing at 21 (Prepared Statement of Judge Rosenbaum). 127 U.S. v. Arturo Bahena, No. 98–137(6)(DSD/AJB) (D. Minn. May 26, 1999) (Judgment and 

Commitment Order at 2, 7). 128See letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum at 2 (May 22, 2002) 

(question 10); see also letter from Hon. James M. Rosenbaum, to Hon. Lamar Smith (June 6, 

2002); letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum, (July 19, 2002); letter from 

Hon. James M. Rosenbaum, to Hon. Lamar Smith (Aug. 9, 2002); letter from Hon. Lamar Smith, 

to Hon. James M. Rosenbaum (Aug. 9, 2002); letter from Hon. James M. Rosenbaum, to Hon. 

Lamar Smith (Aug. 30, 2002). 129 ‘‘[T]he judge is permitted to sentence anywhere within a range that varies by roughly 25% 

from top to bottom. In almost three-quarters of drug trafficking cases, defendants ALREADY 

receive sentences at the very bottom of their range.’’ H.R. 4689 Hearing at 26 (Prepared Statement of William G. Otis) (emphasis in original). 130 In one instance, U.S. v. Eliseo Rodrigo Romo, No. Cr. 3–95–52, the sentencing court imposed 120 months because of the application of the statutory mandatory minimum. Even there, 

however, the court imposed no more than the minimum required by statute, even though the 

range permitted a higher sentence up to 135 months. See U.S. v. Eliseo Rodrigo Romo, Cr. 3– 95–52 (D. Minn. Nov. 20, 1995) (Judgment and Commitment Order at 2, 4). 

131Sentencing Guidelines § 5K2.0 (‘‘The United States Supreme Court has determined that, 

in reviewing a district court’s decision to depart from the guidelines, appellate courts are to 

apply an abuse of discretion standard, because the decision to depart embodies the traditional 

exercise of discretion by the sentencing court.’’).

for role in the offense, the sentencing judge has full and 

unreviewable authority 124 to sentence minor and minimal participants to the low-end of their guideline range, while sentencing enterprise operators to the high-end of their guideline range.125 This 

further assures that they are not sentenced ‘‘in the same way.’’ Here too, the undisclosed facts of the cases cited by Judge Rosenbaum prove this point. In the case involving ‘‘ST’’ and ‘‘MGA,’’ 126

the more culpable co-defendant, Arturo Bahena, was sentenced to 

320 months which was at the high-end of his guideline range of 

262–327 months, while ‘‘ST’’ and ‘‘MGA’’ each received downward 

departures below their guideline range.127

In his response to the Subcommittee’s follow-up questions, Judge 

Rosenbaum was unable to identify any multiple defendant case in 

which he failed to sentence the ‘‘planner and enterprise-operator 

who set the [drug trafficking] plan in motion and who figures to 

take its profits’’ at the high-end of that defendant’s guideline range 

and/or in which he failed to sentence the ‘‘minor or minimal participants who did a day’s work’’ at the low-end of that defendant’s 

range, in order to assure that they were not sentenced ‘‘in the same 

way.’’ 128

Indeed, the Judgment and Commitment Orders for every sentenced defendant about whom Judge Rosenbaum testified reflect 

that the court sentenced the minor or minimal participant to the 

very bottom of the guideline range,129 or departed to achieve an 

even lower sentence.130

Further, the current guideline structure authorizes the sentencing court to depart downward (in the case of minor or minimal 

participants) and upward (in the case enterprise operators) when 

a defendant falls outside of the ‘‘heartland’’ of typical offenders for 

a reason which the Sentencing Commission did not adequately consider.131 As William G. Otis testified: 

If the defendant falls outside of the ‘‘heartland’’ of typical offenders for a reason the Sentencing Commission did not adeVerDate Dec 13 2002 08:19 Feb 03, 2003 Jkt 010199 PO 00000 Frm 00026 Fmt 6659 Sfmt 6601 E:\XXTEMP\HR769.107 HR769
27

132 H.R. 4689 Hearing at 26–27 (Prepared Statement of William G. Otis). 133Webster’s II New Riverside University Dictionary defines categorical as: ‘‘utterly without 

exception of qualification: ABSOLUTE.’’ Webster’s II New Riverside University Dictionary 238 

(1984). 134 H.R. 4689 Hearing at 20 (Prepared Statement of Judge Rosenbaum) (footnote added) (emphasis added). 135 Id. at 21. Judge Rosenbaum testified that ‘‘EPRs’’ ‘‘guideline range is 151–293 months.’’ It was however 151–188. See U.S. v. Eduardo, Pelayo-Ruelas, No. 01–CF–228(10) (D. Minn. Aug. 

2, 2002) (Judgment and Commitment Order at 5); see also Sentencing Table (Offense Level 32, 

Criminal History Category III); see also U.S. v. Eduardo Pelayo-Ruelas, Crim. No. 01–228(JMR/

FLN) (D. Minn. Aug. 2, 2002) (Transcript of Sentencing Hearing). The Committee believes this 

discrepancy to be merely a typographical error. 136 U.S. v. Eduardo Pelayo-Ruelas, Crim. No. 01–228(JMR/FLN) (D. Minn. Aug. 2, 2002) 

(Transcript of Sentencing Hearing at 6). 

quately consider, he already qualifies for a downward departure with or without the government’s acquiescence. As we 

speak, downward departures on this basis, combined with government-sponsored departures, are given in an astonishing 

43% of all drug trafficking cases.132

As noted above, the Judgment and Commitment Orders provided 

to the Subcommittee in response to its inquiries reveal the extensive use of downward departures (by Judge Rosenbaum and others) 

to assure that minor participants are not sentenced ‘‘in the same 

way’’ as those more culpable. 

In sum, Judge Rosenbaum’s testimony regarding the similarity 

in sentencing of major and minor participants does not support implementation of the proposed amendment. The full record in cases 

on which that testimony relies reflects individual determinations in 

sentencing between major and minor participants. Accordingly, 

these cases demonstrate that the proposed amendment is not needed to accomplish the alleged purpose of the proposed amendment—

to ensure that minor participants do not receive the same sentences as major participants. 

VI. ASSURANCES OF CATEGORICAL ENHANCEMENTS FOR CRIMINAL HISTORY WERE NOT REFLECTED IN JUDGE ROSENBAUM’S OWN SENTENCING OF ‘‘EPR’’

Judge Rosenbaum sought to assure the Subcommittee that more 

blameworthy defendants would not necessarily receive reduced sentences as a result of the application of Amendment 4. At the May 

14, 2002 hearing, Judge Rosenbaum testified:

And, of course, the Guidelines’ categorical 133 enhancement 

for criminal history is unaffected. This means that if the person has a record, his penalty is enhanced, under any circumstances. And the worse the record, the greater the enhancement.134

Yet this is not true. 

After this representation to the Subcommittee and after testifying concerning ‘‘EPR’’ (Eduardo Pelayo-Ruelas)—‘‘his sentence is 

pending before me,’’ 135 Judge Rosenbaum returned to Minnesota 

and disregarded the criminal history of ‘‘EPR.’’ On August 2, 2002, 

Judge Rosenbaum proceeded to ‘‘find it appropriate to adjust [the] 

criminal history’’ for ‘‘EPR,’’, departing downward from criminal 

history category III to I in order to arrive at a new (lower) guideline range.136 He did this despite the record reflecting that ‘‘EPR’’

had, among other things, committed the instant offense while on 

28

137 Id. at 6. 138Sentencing Guidelines § 4A1.1(d) (‘‘Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, 

imprisonment, work release, or escape status.’’). 139Sentencing Guidelines § 4A1.3. Adequacy of Criminal History Category (Policy Statement). 140For example, in the case of upward departures when a court finds the criminal history category significantly under-represents the seriousness of a defendant’s criminal history, the Guidelines suggest ‘‘the court should structure the departure by moving incrementally down the sentencing table to the next higher offense level...’’ Sentencing Guidelines § 4A1.3. Adequacy of 

Criminal History Category (Policy Statement). 141 H.R. 4689 Hearing at 27 (Prepared Statement William G. Otis). 142 U.S. v. Eduardo Pelayo-Ruelas, No. 01–228 (JMR/FLN) (D. Minn. Aug. 2, 2002). 143 Even the defense counsel had asked Judge Rosenbaum to impose a sentence only at the 

very bottom of the guideline range—121 months. See U.S. v. Eduardo Pelayo-Ruelas, No. 01– 228 (JMR/FLN) (D. Minn. Aug. 2, 2002) (Transcript of Sentencing Hearing at 6). 144 U.S. v. Eduardo Pelayo-Rueles, Cr. No. 01–228(JMR/FLN) (D. Minn. Aug. 2, 2002) (Transcript of Sentencing Hearing at 10) (emphasis added). There can be no better example of the 

need for statutory mandatory minimum sentences, for while Judge Rosenbaum was quite willing 

to violate the guidelines, he apparently felt constrained to violate the statutory command that 

the sentence be not less than 120 months. See 21 U.S.C. § 841(b)(1)(A)(vii) (2002).

probation from another crime,137 for which the guidelines expressly 

direct points be included in the criminal history calculation.138

While the guidelines permit the sentencing court to depart downward when it concludes that ‘‘a defendant’s criminal history category significantly over-represents the seriousness of a defendant’s 

criminal history,’’ 139 it is not at all clear that Judge Rosenbaum’s 

wholesale recalculation from category III to I (rather than II) was 

appropriate under the circumstances.140 Regardless, he exercised 

discretion to depart downward on this ground shortly after suggesting to the Subcommittee that such discretion did not exist 

under the guidelines. Judge Rosenbaum’s knowledge of his ability 

to exercise that discretion in appropriate cases, notwithstanding 

his testimony, vividly demonstrates that ‘‘the Guidelines already 

provide ample authority for more nuanced and targeted mitigation 

in a case where it is truly warranted.’’ 141

VII. JUDGE ROSENBAUM’S RECORD OF HOSTILITY TO THE GUIDELINES

UNDERMINES THE PERSUASIVE VALUE OF HIS TESTIMONY

Judge Rosenbaum’s testimony before the Subcommittee on the 

application of the guidelines is illuminated by his record on the 

bench concerning the application of the guidelines. In the aforementioned case of United States v. Eduardo Pelayo-Ruelas,142 after 

Judge Rosenbaum reduced the defendant’s criminal history category to arrive at lower sentencing range, he then sua sponte 143

granted an additional departure below the already reduced 

guideline range of 121–151 months. In sentencing the defendant 

to 120 months, Judge Rosenbaum stated: 

I just sentenced you to 1 month less than the Guidelines. The 

Guidelines were calculated by a computer which apparently 

was not satisfied with the fact that 10 years is 120 months. 

And so we have a ridiculous extra month which I have taken 

off. Now that represents an illegal departure, and if the 

United States wants to appeal, I presume that they will have 

a right to take that appeal. My guess is that they will decline, 

but if they do, and you need a lawyer to defend you, one will 

be appointed at no cost.144

Significantly, this case is one in which Judge Rosenbaum declined to inform the Subcommittee as to the reason for his departure, suggesting instead that the Subcommittee order the tranVerDate Dec 13 2002 08:19 Feb 03, 2003 Jkt 010199 PO 00000 Frm 00028 Fmt 6659 Sfmt 6601 E:\XXTEMP\HR769.107 HR769
29

145 U.S. v. Heilman, 235 F. 3d 1146 (8th Cir. 2001). 146 Id. at 1147 (emphasis added). 147 H.R. 4689 Hearing at 22 (Prepared Statement of Judge Rosenbaum). 148 H.R. 4689 Hearing at 26 (Prepared Statement of William G. Otis); see also H.R. 4689 Hearing at 22 (Testimony of William G. Otis). 

script of the proceeding and necessarily obligate public funds, and 

expend time and effort to obtain the information, which Judge 

Rosenbaum readily possessed, but would not disclose. 

This is not an isolated instance. In United States v. Heilman,145

the United States Court of Appeals for the Eighth Circuit reversed 

another of Judge Rosenbaum’s unlawful departures. In that case, 

Judge Rosenbaum summarily excluded a prior conviction from the 

defendant’s criminal history category, lowered the guideline range 

to 57–71 months, and thereafter granted an additional departure below the already reduced guideline range to impose a 

sentence of only 48 months. In doing so Judge Rosenbaum stated: 

It represents a downward departure because 57 months is the 

bottom range of the guidelines, it’s kind of calculated because 

they had a computer that worked out all of these things and 

it seems to me that 4 years is a reasonable number, and 60 

months is too long, and I can parse this out as I want. But 

it seems to me we’re about at a 4-year level and might as well 

leave it at that level.146

At the May 14, 2002 hearing, Judge Rosenbaum concluded his 

testimony by appealing to the Subcommittee as follows:

Please consider giving the judiciary the chance to do the job 

for which it was chosen and designated by the Constitution to perform. We work with this system, and those who 

operate in it every day of our lives. Please give us the tools to 

make it more fair and just.147

The ‘‘job for which [Judge Rosenbaum] was chosen and designated by the Constitution to perform’’ requires him to follow the 

law as written, and prohibits him from imposing his own views of 

what the law ought to be. 

VIII. JUDGE ROSENBAUM’S TESTIMONY SHOULD BE DISREGARDED AS

SUPPORT FOR THE PROPOSED AMENDMENT

For the purpose of consideration of the legislation, it is sufficient 

to conclude, as we must, that Judge Rosenbaum’s testimony was 

inaccurate. His characterization of the existing guidelines and their 

application are not supported by the facts and cannot be relied 

upon by Congress in consideration of this, or any other legislation.

The true facts, gathered by the Subcommittee and set forth 

herein, both with respect to the existing guidelines and their application, and with respect to each of the specific cases he referenced, 

support, not Judge Rosenbaum’s position, but that of William G. 

Otis who testified that the amendment is ‘‘unnecessary, because 

the Guidelines already provide ample authority for more nuanced 

and targeted mitigation in a case where it is truly warranted.’’ 148

30

149 U.S. v. Miguel Angel Larios-Verduzco, 01–Cr–228 (02) (JMR/FLN) (D. Minn. June 13, 

2002). 150 Id. (Judgment and Commitment Order at 4). 151See facsimile from the Chambers of Judge Rosenbaum, Chief Judge, U.S. Dist. Court for 

the Dist. of Minn, to the Subcommittee on Crime, Terrorism, and Homeland Sec. (containing 

redacted portions of the transcript of the sentencing hearing in United States v. Miguel Angel 

Larios-Verduzco, 01–Cr–228 (JMR) (D. Minn. June 13, 2002) (portions of pages 6 and 7)). 152 Id. at 6 (‘‘this transcript is a secret transcript, it is sealed. Okay?’’). 153 18 U.S.C. § 3553(b) (2002) (emphasis added).

IX. JUDGE ROSENBAUM MAY HAVE UNLAWFULLY CLOSED A SENTENCING PROCEEDING THAT WOULD PROVIDE FURTHER EVIDENCE

OF THE OPERATION OF THE GUIDELINES

As previously noted, Judge Rosenbaum has declined to provide 

the Subcommittee with the reasons for his departures, suggesting 

instead that we order the transcripts of the proceedings. Because 

he declined, and because the judgment and commitment order in 

the case of United States v. Miguel Angel Larios-Verduzco 149 reflects a downward departure ‘‘for the reasons stated at the hearing,’’ 150 the Subcommittee ordered the transcript of the sentencing 

hearing in that case. Only after ordering the transcript was the 

Subcommittee informed by the court-reporter that the sentencing 

hearing in that case had been sealed. The Subcommittee then contacted Judge Rosenbaum’s chambers and requested a copy of the 

sealing order. The Judge’s law clerk informed the Subcommittee 

that there was no sealing order in that case and that Judge Rosenbaum had sealed the proceeding from the bench. Judge Rosenbaum, however, authorized his law clerk to provide the Subcommittee with redacted portions of three pages of the sentencing 

hearing transcript.151

The portions of the hearing contained in the pages provided, 

however, reflect a proceeding that can best be described as peculiar. It appears to reflect sua sponte action by Judge Rosenbaum, 

clearing the courtroom, ordering the proceeding sealed 152, closing 

the record, and then leaving the bench. The portions provided to 

the Subcommittee significantly do not reflect the reason for Judge 

Rosenbaum having granted a downward departure in that case, or 

any other information reflecting the defendant’s sentence. 

Judge Rosenbaum’s action in conducting the proceeding in secret 

appears to be in conflict with 18 U.S.C. § 3553(b) that requires 

that:

The court, at the time of sentencing, shall state in open 

court the reasons for its imposition of the particular 

sentence, and, if the sentence

***

(2) . . . is outside the range described in section (a)(4), the 

specific reason for the imposition of a sentence different 

from that described.153

There are certainly mechanisms available to a court in appropriate circumstances, consistent with Federal law and judicial practice, to conduct certain proceedings or portions of proceedings in 

camera or have matters placed under seal. Protecting the safety of 

a cooperating defendant by not publicly disclosing the details of his 

31

154That can be accomplished, and usually is, by providing the sentencing judge with an in 

camera submission detailing the cooperation and assistance. It does not require closing the entire proceeding, nor does it justify failure to adhere to the command of 18 U.S.C. § 3553(b). See

Rule 32(c)(4) Fed. R. Crim. P. (‘‘The court’s summary of information under (c)(3)(A) [‘information 

that if disclosed might result in harm, physical or otherwise, to the defendant or other persons’] 

may be in camera’’). Rule 32(c)(4) further permits ‘‘[u]pon joint motion by the defendant and 

by the attorney for the Government, the court may hear in camera the statements [of counsel, 

the defendant and the victim].’’ Significantly, Rule 32 does not authorize the court to exclude 

from the public record the reasons for the imposition of a particular sentence. 155See In re Search Warrant, 855 F.2d 569, 573 (8th Cir. 1988) (citing, In re Washington Post 

Co., 807 F.2d at 389, 389 (4th Cir. 1989) for the proposition that many circuits include additional court proceedings in the right of public access). 156 In re Search Warrant, 855 F.2d at 574 (quoting In re New York Times Co., 828 F. 2d 110, 

116 (2nd Cir. 1987), cert. denied, 485 U.S. 977 (1988) (quoting Press-Enterprise II v. Superior 

Court, 478 U.S. 1, 13–14 (1986))). 157 Id. at 573 (citing Press-Enterprise II v. Superior Court, 478 U.S. 1, 13–14 (1986)). 158 Id. at 757 (emphasis added). 159 Id. at 575 (citing U.S. v. Criden, 675 F. 2d 550, 559 (3d Cir. 1986)) (emphasis added). 160See Criminal Docket for Case #01–CR–228–ALL (D. Minn. Aug. 14, 2001). 161 Id. at 13. 162Proceedings before United States Judge James M. Rosenbaum, SENTENCING, United 

States v. Miguel Angel Larios, Crim. No. 01–228, (D. Minn. June 13, 2002) (Minutes). 

cooperation is a prime and common example,154 which can be 

achieved consistent with 18 U.S.C. § 3553(b). 

Judge Rosenbaum has offered no justification for his action. In 

addition to Congress’ right to this information in the exercise of its 

oversight responsibilities, plea and sentencing hearings are subject 

to First Amendment right of public access.155 In appropriate cases, 

‘‘Proceedings may be closed and, by analogy, documents may be 

sealed if ‘specific, on the record findings are made demonstrating 

that ‘‘closure is essential to preserve higher values and is narrowly 

tailored to [a compelling government] interest.’’ ’ ’’ 156 If the district 

court decides to close a proceeding or seal certain documents, it 

must explain why closure or sealing was necessary and why 

less restrictive alternatives were not appropriate.157 Judge Rosenbaum has failed to do so. 

Moreover, the Eighth Circuit mandates that ‘‘the fact that a closure or sealing order has been entered must itself be noted on 

the court’s docket, absent extraordinary circumstances.’’ 158 ‘‘The 

case dockets maintained by the clerk of the district court are public records.’’ 159 The Subcommittee obtained a copy of the docketing sheet for this case from the district court clerk.160 The docket 

contains no notation or any indication of any matter being sealed 

with respect to this defendant’s sentencing. Instead the docket 

sheet reflects only the following entry for June 13, 2002: 

6/13/02 77 MINUTES: before Chief Judge James M. Rosenbaum SENTENCING Miguel Angel Larios (2) to counts 1 & 2. 

Custody of BOP 120 months on counts 1 & 2 to be served concurrently; 5 years supervised release; $200.00 spec assmt. Deft 

remanded to custody of USM. Court Reporter: Dawn Hansen. 

1 pg (lg) [Entry date 07/30/02] 161

The Subcommittee in turn, obtained a copy of the one page ‘‘minutes’’ referenced in the docket sheet entry for June 13, 2002. Nothing therein contains any indication of any matter having been 

placed under seal.162

The circumstantial record suggests that this case may be one in 

which Judge Rosenbaum granted yet another unlawful departure 

32

163 As in ‘‘EPR,’’ the Judgment and Commitment Order in Angel-Larios-Verduzco reflects a 

sentence of 120 months which is below the guideline range of 121–151 months. U.S. v. Miguel 

Angel Larios-Verduzco, 01–Cr–228 (02) (JMR/FLN) (D. Minn. June 13, 2002) (Judgment and 

Commitment Order at 2). 

below the guideline range,163 which he sought to conceal from the 

public and from the Subcommittee by unlawfully sealing the transcript. The Subcommittee’s inquiry into this matter is ongoing. 

COMMITTEE CONSIDERATION

On May 14, 2002, the Subcommittee on Crime, Terrorism, and 

Homeland Security met in open session and ordered favorably reported the bill H.R. 4689, by a voice vote, a quorum being present. 

On September 10, 2001, the Committee met in open session and ordered favorably reported the bill H.R. 4689 by a voice vote, a 

quorum being present. 

VOTE OF THE COMMITTEE

There were no recorded votes on H.R. 4689. 

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of Rule XIII of the Rules of the 

House of Representatives, the Committee reports that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of Rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

PERFORMANCE GOALS AND OBJECTIVES

H.R. 4689 does not authorize funding. Therefore, clause 3(c) of 

Rule XIII of the Rules of the House of Representatives is inapplicable. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of House Rule XIII is inapplicable because this legislation does not provide new budgetary authority or increased tax 

expenditures. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of Rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the bill, H.R. 4689, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974:

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, September 26, 2002. 

Hon. F. JAMES SENSENBRENNER, Jr., Chairman, 

Committee on the Judiciary, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 4689, the Fairness in 

Sentencing Act of 2002. 

33

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Lanette J. Walker, who 

can be reached at 226–2860. 

Sincerely, 

DAN L. CRIPPEN, Director.

Enclosure

cc: Honorable John Conyers, Jr. 

Ranking Member 

H.R. 4689—Fairness in Sentencing Act of 2002. 

SUMMARY

The U.S. Sentencing Commission has proposed a number of 

amendments to Federal sentencing guidelines. Those amendments 

will take effect on November 1, 2002, if the Congress does not act 

on them prior to that date. H.R. 4689 would disapprove one part 

of an amendment, which would limit the length of prison sentences 

that certain defendants will receive if they are found to be a minor 

participant in a drug trafficking case. 

By disapproving this amendment, H.R. 4689 would result in 

longer prison sentences for certain defendants. Assuming appropriation of the necessary amounts, CBO estimates that enacting 

this legislation would result in costs of about $20 million over the 

2003–2007 period to incarcerate such individuals in the Federal 

prison system for longer periods than they would likely serve under 

the amended guidelines. Enacting H.R. 4689 would not affect direct 

spending or receipts; therefore, pay-as-you-go procedures would not 

apply to the bill. 

H.R. 4689 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA) 

and would impose no costs on State, local, or tribal governments. 

ESTIMATED COST TO THE FEDERAL GOVERNMENT

The estimated budgetary impact of H.R. 4689 is shown in the following table. The cost of this legislation falls within budget function 750 (administration of justice).

By Fiscal Year, in Millions of Dollars 

2002 2003 2004 2005 2006 2007

SPENDING SUBJECT TO APPROPRIATION

Federal Prison System Spending Under Current Law 

Estimated Authorization Level 1 3,809 3,965 4,100 4,238 4,378 4,526

Estimated Outlays 3,768 3,946 4,084 4,221 4,361 4,508

Proposed Changes 

Estimated Authorization Level 0 * 1 3 7 8

Estimated Outlays 0 * 1 3 7 8

Federal Prison System Spending Under H.R. 4689

Estimated Authorization Level 3,809 3,965 4,101 4,241 4,385 4,534

Estimated Outlays 3,768 3,946 4,085 4,224 4,368 4,516

NOTE: * = Less than $500,000.

1. The 2002 level is the amount appropriated for that year for salaries and expenses of the Federal Prison System. The 

2003–2007 levels represent CBO’s baseline estimate for this account (that is, the 2002 level adjusted for anticipated inflation). 

34

BASIS OF ESTIMATE

The U.S. Sentencing Commission has assigned each Federal 

crime a base level, numbered from 1 to 43, which corresponds to 

a certain recommended length of imprisonment, with higher numbers reflecting longer prison terms. If the amendments to the sentencing guidelines proposed by the commission go into effect on November 1, 2002, level 30 will be the highest level that could be assigned to certain defendants’ sentences that are based on the quantity of drugs involved in drug trafficking cases. These defendants 

would qualify for a lower recommended sentence if found to be a 

minor participant in the crime. (Additional adjustments could be 

made from this base level to increase or decrease an individual’s 

sentence.) 

According to the commission, roughly 1,300 prisoners a year 

would receive shorter prison sentences under the amended guidelines. Sentences for such prisoners generally range from less than 

1 year to more than 10 years. CBO expects that the average sentence would be reduced by about 1.6 years from 5.8 years to 4.2 

years under the amended guidelines. Based on information from 

the Bureau of Prisons (BOP), CBO estimates that the cost to incarcerate a prisoner for an additional year is about $7,000 (at 2003 

prices). Assuming that the number of convictions and length of sentences would remain at 2001 levels, CBO estimates that enacting 

the legislation—and thus disapproving the amended guideline—

would increase costs to BOP by about $20 million over the next 5 

years to incarcerate prisoners for lengthier sentences than they 

would receive under the amended guidelines. The full budgetary effects of this bill would not be realized until 10 to 15 years after enactment. At that time, the cost to the prison system would reach 

over $20 million annually for an additional 2,100 prisoners. These 

added costs would be subject to the availability of appropriated 

funds. 

PAY-AS-YOU-GO CONSIDERATIONS: 

None. 

INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT

H.R. 4689 contains no intergovernmental or private-sector mandates as defined in UMRA and would impose no cost on State, 

local, or tribal governments. 

ESTIMATE PREPARED BY: 

Federal Costs: Lanette J. Walker (226–2860) 

Impact on State, Local, and Tribal Governments: Angela Seitz 

(225–3220) 

Impact on the Private Sector: Paige Piper/Bach (226–2940) 

ESTIMATE APPROVED BY: 

Robert A. Sunshine 

Assistant Director for Budget Analysis 

35

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of Rule XII-I of the Rules of the House 

of Representatives, the Committee finds the authority for this legislation in Article I, section 8 of the Constitution. 

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

Section 1. Short Title 

This Act may be cited as the ‘‘Fairness in Sentencing Act of 

2002’’

Section 2. Disapproval of amendments relating to providing a maximum base offense level under § 2D1.1(a)(3) if the defendant receives a mitigating role adjustment under § 3B1.2. 

This section disapproves Amendment number 4 of the ‘‘Amendment to the Sentencing Guidelines, Policy Statements, and Official 

Commentary,’’ submitted by the United States Sentencing Commission to Congress on May 1, 2002, to the extent it amends 

§ 2D1.1(a)(3) of the sentencing guidelines and to the extent it 

amends the Commentary to § 3B1.2 captioned ‘‘Application Notes.’’

The provisions of Amendment 4 that are disapproved state that 

‘‘Section 2D1.1(a)(3) is amended by striking ‘below.’ and inserting 

‘, except that if the defendant receives an adjustment under § 3B1.2 

(Mitigating Role), the base offense level under this subsection shall 

be not more than level 30.’.’’

Also, the language of Amendment 4 that amends the Commentary to § 3B1.2 captioned ‘‘Application Notes’’ is disapproved to 

the extent it adds the following:

‘‘6. Application of Role Adjustment in Certain Drug Cases.—In 

a case in which the court applied § 2D1.1 and the defendant’s 

base offense level under that guideline was reduced by operation of the maximum base offense level in § 2D1.1(a)(3), the 

court also shall apply the appropriate adjustment under this 

guideline.’’

MARKUP TRANSCRIPT

BUSINESS MEETING 

THURSDAY, SEPTEMBER 5, 2002

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:03 a.m., in Room 

2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr. [Chairman of the Committee] presiding. 

Chairman SENSENBRENNER. The Committee will be in order. The 

Chair notes the presence of a working quorum. 

* * * * * * *

Pursuant to notice, the Chair calls up H.R. 4689, the ‘‘Fairness 

in Sentencing Act of 2002.’’ The Chair recognizes the gentleman 

from Texas, Mr. Smith, for a motion. 

36

Mr. SMITH. Mr. Chairman, the Subcommittee on Crime, Terrorism, and Homeland Security reports favorably the bill H.R. 4689 

and moves its favorable recommendation to the full House. 

Chairman SENSENBRENNER. Without objection, H.R. 4689 will be 

considered as read and open for amendment at any point. 

[The bill, H.R. 4689, follows:]

37


4689_1.eps
38


4689_2.eps
39

Chairman SENSENBRENNER. The Chair recognizes the gentleman 

from Texas to strike the last word. 

Mr. SMITH. Thank you, Mr. Chairman. 

Mr. Chairman, H.R. 4689, the ‘‘Fairness in Sentencing Act of 

2002,’’ disapproves of an amendment to the sentencing guidelines 

submitted by the United States Sentencing Commission to Congress on May 1st, 2002. The amendment will take effect on November 1st if it is not disapproved by Congress. 

H.R. 4689 is a straightforward piece of legislation. If you feel 

criminal penalties should relate to the amount of drugs involved in 

trafficking, you will like this legislation. If you favor treating 150 

kilos of cocaine the same as half a kilo in a drug trafficking case, 

then you won’t like this legislation. 

H.R. 4689 disapproves of sections of the Commission’s amendment 4 that creates a drug quantity cap for those persons convicted 

of trafficking in large quantities of drugs if those persons also qualify for a mitigating role adjustment under the existing guidelines. 

For example, a person convicted of trafficking 150 kilograms or 

more of cocaine who qualifies for the mitigating role adjustment 

could have their sentence reduced to the same level as someone 

who was convicted of trafficking one-half kilogram of cocaine. 

The proposed amendment by the Sentencing Commission is a 

windfall for large drug traffickers. It gives drug dealers the incentive to move more drugs rather than less, because no matter how 

many drugs they traffic, they will only be subject to the penalties 

for the trafficking of small quantities of drugs. 

It also is contrary to the consistent and long-standing congressional intent that drug sentences be in proportion to drug quantity. 

Mr. Chairman, it is common sense that the greater the drug 

quantity involved, the greater the harm to individuals. The Commission’s reason for accompanying amendment 4 states that this 

amendment will only apply to 6 percent of all drug trafficking offenders. The problem is that these are the largest traffickers bringing drugs into our country. 

The amendment would result in the less culpable defendant, the 

one who moved a lesser amount of drugs, receiving a 

disproportionally harsher sentence compared to the more culpable 

defendant, one who moved more drugs. 

Furthermore, the guidelines already offer opportunities for 

judges to reduce a defendant’s sentence when circumstances warrant it. Besides the mitigating role reduction, there are also reductions for defendants who take responsibility for their crimes, who 

assist law enforcement agencies in the investigation or prosecution 

of others involved in the offense, and for those who are without a 

criminal record and who were not a major player. The last thing 

we should do is reward people who traffic in more drugs. 

Mr. Chairman, this amendment will result in sentencing that 

fails to reflect the seriousness of the conduct and will produce wildly disparate sentences between cases or even within the same case. 

And for these reasons, Mr. Chairman, I hope my colleagues will 

support this legislation. 

Chairman SENSENBRENNER. The gentleman from Virginia, Mr. 

Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. I appreciate the opportunity to speak on the Fairness in Sentencing Act of 2002. I think 

40

this bill clearly reflects the principle that fairness is in the eye of 

the beholder. 

The Sentencing Commission amendment the bill would overturn 

is designed to accord a measure of fairness to minimal role offenders who receive as much and sometimes more time than those who 

plan, control, and profit from the criminal enterprise. 

So if the Commission’s amendment provides fairness to minimal 

role offenders, the question is, to whom is the bill seeking to provide fairness? 

The bill would overturn the U.S. Sentencing Commission’s studied and reasoned findings that fairness required that they limit the 

extent to which drug quantity could affect the sentence of an offender who qualifies for a minimal role sentencing adjustment. The 

Commission conducted extensive public hearings through which it 

received a broad spectrum of input. Virtually all of the input it received supported its proposed minimal role adjustment amendment, including the criminal law section of the United States Judicial Conference. I have a copy of a letter sent by the section to the 

Commission, stating its support, and I’d like unanimous consent 

that that letter be made part of the record. 

[The material referred to follows:]

41


CCL1.eps
42


CCL2.eps
43

The Commission’s amendment would apply only to those who 

qualify for mitigation based on the fact that they played a minimal 

role in the offense, which is very hard to show. Typically, we are 

talking about mules or other such limited role offenders. Clearly, 

a drug kingpin or other major player in a drug transaction would 

not qualify for a minimal role adjustment. 

Most of those qualifying for such consideration get little benefit 

from the transaction and generally have no knowledge of the quantity or the value of the drugs in the transaction. Such an offender 

is only involved in a small way in the transaction, but they receive 

responsibility for the whole transaction. 

If there is an unlimited amount of enhancements based on the 

quantity of drugs involved, the quantity enhancement can virtually 

make insignificant any consideration for a minimal role. 

For example, the Commission has documented cases in which offenders who perform less culpable functions—such as the courier 

mule, the renter, the loader, et cetera—receive sentences in excess 

of those who are managers or leaders of the transaction. In addition, Judge Rosenbaum, the chief judge of the U.S. District Court 

of Minnesota, testified at a hearing on the bill before the Subcommittee. And he detailed several cases coming before his court 

where he had no choice under the existing guidelines except to sentence minimal role offenders to as much time as more culpable offenders, based solely on the impact of the drug quantity enhancements. He believed these sentences to be inappropriately severe for 

such offenders, and he supported the Commission’s guideline adjustment. 

Indeed, Mr. Chairman, I’m also aware of cases where those who 

qualify for mitigating role reduction in drug transactions end up 

being sentenced to not just a little but a lot more than those who 

plan, execute, and profit from the transaction. I submitted two such 

cases to the record of the Subcommittee, and I was directly involved in assisting one such offender, Kemba Smith, a constituent 

of mine, in obtaining commutation of a 24-and-a-half year sentence 

in a drug case in which her role was minimal if not negligible. 

The Commission’s amendment was designed to reduce such unfairness and disparity in sentencing of co-defendants with unequal 

culpability in a crime. Just as treating like offenders differently 

brings about disparities in sentencing, treating unlike offenders the 

same also brings about disparities. 

The Commission’s amendment would limit the impact of drug 

quantity enhancements to a maximum of 10 years. But we’re not 

talking about opening the prison gates as a result of the amendment. While the maximum enhancements for quantity for a minimal role offender would be 10 years, the minimum would be 8 

years. In addition, all other applicable sentencing would apply, 

such as any mandatory minimum sentences and any enhancements 

such as an obstruction of justice enhancement that is routinely applied if the defendant testifies and is convicted. 

So as we consider what the Commission’s amendment is designed 

to do, let’s be clear on what the amendment would not do. The 

Commission’s amendment would not set a 10-year sentencing cap 

for cases in which a convicted drug trafficker played a minimal or 

minor role in a drug conspiracy. Whether the amendment would 

allow no more than 10 years of the imposed sentence to be based 

44

on the quantity of drugs involved in the offense, for those offenders 

whom the courts have to have the least culpability—the actual sentence imposed could be higher than 10 years because of other important factors, such as obstruction of justice—— Chairman SENSENBRENNER. The gentleman’s time has expired. 

Mr. SCOTT. Mr. Chairman, could I have an additional minute and 

a half? 

Chairman SENSENBRENNER. Without objection. 

Mr. SCOTT. Thank you. 

Such as obstruction of justice, weapons involvement, criminal 

history, drug sales in a protected location or to protected individuals. 

And contrary to the suggestion of proponents of this legislation, 

the Commission’s amendment would not provide a windfall to 

large-scale drug traffickers or disincentives to law enforcement officials to stamp out drug operations. Rather, the amendment better 

implements the apparent intent of Congress in its establishment of 

mandatory minimum penalties for serious traffickers—that is, the 

managers of retail traffic—the 10-year mandatory penalties, and 

10-year mandatory minimums for major traffickers—that is, the 

manufacturers and heads of organizations. 

The amendment allows the sentencing guidelines to reflect and 

expand on this congressional intent by establishing various penalties for specified quantities of drugs. And the amendment assures 

that in a limited number of cases in which there is a tension between a relatively large drug quantity and relatively low individual 

culpability of the offender, the drug quantity will not disproportionately increase an offender’s sentence in comparison to a more serious——

Chairman SENSENBRENNER. The gentleman’s time has once again 

expired. 

Mr. SCOTT. Mr. Chairman, could I have an additional 30 seconds? 

Chairman SENSENBRENNER. Without objection. 

Mr. SCOTT. Thank you. 

Mr. Chairman, I really feel this bill has a lot to do about very 

little in the total scheme of drug sentencing in the country. If this 

bill had anything to do with fairness of drug offenders, it would be 

directing the Sentencing Commission to address the multitude of 

unfairness that unfolds before the Federal courts today as a result 

of politically based mandatory minimum and other drug sentencing 

limitations. 

I would ask that my colleagues defeat the bill and allow the Sentencing Commission to do the work it was established to do in setting appropriate, proportionate sentences for offenders across the 

entire spectrum of criminal offenses and penalties. 

Mr. Chairman, I thank you, and I thank you for your indulgence. 

Chairman SENSENBRENNER. Without objection, all Members may 

insert opening statements in the record at this point. 

Chairman SENSENBRENNER. Are there amendments? 

Mr. NADLER. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from Michigan, Mr. 

Conyers. 

Mr. CONYERS. Mr. Chairman, I rise only for a minute to strike 

the last word. 

45

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. CONYERS. I’d like to ask our distinguished colleague from 

Texas, Mr. Smith, whether or not he feels that couriers in drug incidents, mules, gofers, and lookouts should be punished in the 

same way—in drug trafficking—the same as manufacturers, organizers of the crime, supervisors, and high-level offenders. 

Mr. SMITH. Would the gentleman yield? 

Mr. CONYERS. I think I will. 

Mr. SMITH. The answer to the gentleman’s question is that of 

course those are factors that should be considered. But as I pointed 

out in my remarks, those are factors that can be considered at the 

discretion of the judge, and we should continue to leave that discretion in the judge’s hands, not allow a rule to be approved that 

would allow 150 kilos to be treated the same way as a half a kilo. 

If there are extenuating circumstances, let’s leave it up to the 

discretion of the judge. I’ll yield back. 

Mr. CONYERS. I’m so happy to hear the gentleman say that, because then it means that he doesn’t understand that what he is 

doing is taking away that discretion of the judges, which is precisely what the Sentencing Commission was providing. 

So if the gentleman and his staffer would consult—himself, his 

staffer, another prominent criminal trial attorney—we may be in 

agreement, because if you do agree with my premise, then this is 

the wrong bill. There’s been a tremendous mistake in your shop, 

because what you’re doing takes away the judicial discretion. 

So if during the course of this matter, if my colleague from Texas 

will consider the direction of his remarks, and may want to consider—his support of the bill would be very helpful. 

The other point I wanted to make, Mr. Chairman, was merely 

that the Sentencing Commission was created to remove politics 

from sentencing. Unfortunately, what has happened is that all the 

things that I don’t agree with about the Sentencing Commission 

get approved and the few good things that they do always get disapproved. So we’re back in the same fix. 

So my enthusiasm about the Sentencing Commission has diminished over the years. 

Now, the second question I have to my colleague from Texas is, 

have you ever heard of the Kemba Smith case? 

Mr. SMITH. If the gentleman will yield, I don’t know that I am 

familiar with it. I’ve heard the name, but I’ll be happy to have you 

describe it. 

Mr. CONYERS. Well, thank you. This was the case in which a 

mother of two children was sentenced to 20 years in prison because 

she inadvertently acted as a courier in one instance in which her 

husband was trafficking drugs. 

What you are doing—now do you remember the case? Okay. 

Well, anyway, it received a presidential pardon and considerable 

attention. 

She served 7 years and would have been there for the whole 20, 

had not the executive branch intervened. Would you have, just taking this case on the bare, simple description, would you have wanted a person with no criminal record and otherwise outstanding sentence—not a user, no violence—do you think that this could have 

been a case in which the Sentencing Commission granting discreVerDate Dec 13 2002 08:19 Feb 03, 2003 Jkt 010199 PO 00000 Frm 00045 Fmt 6659 Sfmt 6601 E:\XXTEMP\HR769.107 HR769
46

tion to the judge could have allowed the judge to exert his discretion? I yield to the gentleman. 

Mr. SMITH. I thank the gentleman for raising the case, because 

I think it proves the exact point that I want to make. The reason 

that the individual received the sentence she did is because she refused to cooperate with law enforcement officials. Had she done so, 

the judge told her that the sentence would be reduced. She refused 

to do so, and that’s why she received the sentence that she did. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

Are there amendments? 

For what purpose does the gentleman from New York—— Mr. NADLER. Mr. Chairman, I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. NADLER. Thank you, Mr. Chairman. One comment and then 

I want to ask Mr. Smith a question. 

He commented that this woman we were talking about a moment 

ago received a very long sentence because she refused to cooperate 

with prosecutors. Commonly, we know that lower level people receive long sentences because they have no information with which 

to strike a deal with prosecutors, and lower level people get heavier 

sentences than higher level people who have information. And 

that’s what the Sentencing Commission was trying to get at. 

It is unfair to sentence someone who would have been cooperative but had nothing to bargain with to a longer sentence than 

someone who is much more culpable, was a higher level person in 

the organization, but gets a lower sentence because they have information to trade. They have something to bargain with. 

Now, we all know that goes on, and we all know that the guy 

who really gets stuck is the lower level person who has no information to trade. And that is patently unfair, and it’s what the Sentencing Commission was trying to get at. And I don’t understand 

why we’re trying to remove this discretion. 

Now, I’d like to ask if Mr. Smith will yield for a question, and 

the question I want to ask Mr. Smith is, he stated that the problem 

with this sentencing guideline proposal is that although it affects 

only 6 percent of the people, they’re the higher level people. But 

is Mr. Smith aware of the fact that you’re not eligible under the 

terms of this proposal for this treatment, for this more lenient 

treatment, unless you qualify as mitigable, in other words, you’re 

not a higher level person? 

Mr. SMITH. If the gentleman from New York will yield, let me 

say at the outset, I think we can debate for a long time about what 

the gentleman might mean by low-level offender. In any case, the 

point to make again is that judges already have the discretion to 

reduce the sentence for a number of reasons. Among them are mitigating role reductions for defendants who take responsibility for 

their actions, for defendants who cooperate with law enforcement 

officials, and for those who don’t have a criminal record. All those 

are already factors that can be considered by a judge today. 

So there are plenty of ways in which or reasons for which the 

sentence can be reduced. 

Mr. NADLER. If the gentleman will yield again, but that’s not 

true. They have discretion to consider those factors, but that discretion is overcome by the quantity in absolute terms, so they don’t 

47

have that discretion. What this proposal would do would be to enable some of that discretion to apply despite the quantity. Is that 

not the case? 

Mr. SMITH. I’m not sure I understood the gentleman’s question. 

But I disagree. We have a fundamental disagreement. You say that 

those various mitigations are not allowed today. I’ll be happy 

to——

Mr. NADLER. They’re not—excuse me——

Mr. SMITH.—provide the statute to you that says that they can 

be considered——

Mr. NADLER. Reclaiming my time——

Mr. SMITH.—by a Federal judge. 

Mr. NADLER.—they’re not allowed—or, they are overcome by the 

quantity measurement in many cases. And this would simply allow 

those mitigation matters to apply, as——

Mr. SMITH. Let me respond. They’re not overcome, but you do 

have to look at the quantity. The whole point of passing this legislation is to send the, I think, legitimate signal that you shouldn’t 

deal with 150 kilos of cocaine, for example, the same way you deal 

with someone who has been trading in a half a kilo. 

Like I say, it’s very clear. If you think they should be in some 

instances equated, then you should vote against this. If you think 

that there is, as there always has been in American jurisprudence—— Mr. NADLER. Reclaiming my time, we’re not dealing with a big 

guy with a ton. We’re dealing with a mule who carries a gram in 

a one-ton transaction. And under the current law, the judge has no 

discretion, except to consider the entire amount, the ton, not the 

gram he was carrying. With the sentencing guideline proposal, it 

would be more intelligent and you could actually consider what he 

was carrying as opposed to the entire size of the transaction, of 

which he may have no knowledge or control. 

I yield back. 

* * * * * * *

The Committee met, pursuant to notice, at 10:00 a.m., in Room 

2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr. [Chairman of the Committee] presiding. 

Chairman SENSENBRENNER. The Committee will be in order, and 

a working quorum is present. 

Are we going to have any minority Members today? 

The first bill on the agenda is H.R. 4689. When we last met, the 

Chairman of the Subcommittee on Crime, Terrorism, and Homeland Security moved favorable recommendation of this bill to the 

full House. Pursuant to the order of the Committee, the bill has 

been considered as read and open for amendment at any point. 

Chairman SENSENBRENNER. Are there amendments? Are there 

amendments? If not, the previous question is ordered on the motion 

to report the bill favorably. 

The Chair will now entertain a motion to reconsider ordering the 

previous question. The question is, shall ordering the previous 

question be reconsidered? 

The gentleman from Texas? 

Mr. SMITH. I’ll move to lay the motion on the table, Mr. Chairman. 

48

Chairman SENSENBRENNER. The gentleman from Texas moves to 

lay the motion to reconsider on the table. 

Those in favor will say aye. 

Opposed, no. 

The ayes appear to have it. The ayes have it, and the motion to 

reconsider ordering the previous question is laid on the table. 

Mr. SMITH. Mr. Chairman, I have a unanimous consent request, 

real quickly. 

Chairman SENSENBRENNER. The gentleman from Texas. 

Mr. SMITH. Mr. Chairman, I ask unanimous consent to place in 

the record follow-up letters between the Subcommittee and Judge 

Rosenbaum, letters dated May 22, June 6, July 1, July 19, and August 9, with attachments, and published opinion from the Eastern 

District of Virginia, United States v. Kemba Smith, 113 F.Supp.2d 

879. 

Chairman SENSENBRENNER. Without objection, the material referred to by the gentleman from Texas will be included in the 

record. 

[The information follows:] 

[Due to privacy concerns, the Committee has redacted private information including the defendant’s Social Security number, USM 

number, date of birth, and address.]

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[Intervening business.] 

The Chair notes the presence of a reporting quorum. The Committee now will return to the pending unfinished business upon 

which the previous question was ordered on H.R. 4689. The question is on the motion——

Mr. SCOTT. Mr. Chairman, parliamentary inquiry. Could you 

state the title of the bill, please? 

Chairman SENSENBRENNER. H.R. 4689, the ‘‘Fairness in Sentencing Act of 2002.’’

The question is on the motion to report favorably bill H.R. 4689. 

Those in favor will say aye. 

Opposed, no. 

The ayes appear to have it. The ayes have it, and the motion to 

report the bill favorably is agreed to. 

Without objection, the chair is authorized to move to go to conference pursuant to House rules. Without objection, the staff is directed to make any technical and conforming changes. And all 

Members will be given 2 days, as provided by the rules, in which 

to submit additional, dissenting, supplemental, or minority views.

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1 § 2D1.1(a)(3) instructs a judge to use the Drug Quantity Table to determine the appropriate 

offense level for drug offenders. 2 § 3B1.2 provides a two to four level reduction, if the court makes a finding of fact that the 

defendant played a part in the committing the offense that makes him substantially less culpable than the average participant. 

DISSENTING VIEWS

These views dissent from the Committee Report on H.R. 4689, 

the ‘‘Fairness in Sentencing Act of 2002.’’ H.R. 4689 is legislation 

that disapproves of amendment 4 of the ‘‘Amendments to the Sentencing Guidelines, Policy Statements, and Official Commentary,’’

submitted by the United States Sentencing Commission to Congress on May 1, 2002. If enacted, the bill would prevent individuals 

who perform low-level drug trafficking functions from qualifying for 

a mitigating role adjustment under the United States Sentencing 

Guidelines (‘‘Sentencing Guidelines’’). 

BACKGROUND AND SUMMARY

Pursuant to the responsibilities outlined in the Sentencing Reform Act of 1984, on May 1, 2002, the United States Sentencing 

Commission (‘‘Commission’’) transmitted to Congress its proposed 

amendments to the Sentencing Guidelines. Amendment 4, of the 

proposed amendments, seeks to modify § 2D1.1(a)(3) 1 of the guidelines to provide a maximum base offense level of 30 (which corresponds to 97 to 121 months imprisonment for a first-time offense) 

if the defendant receives and adjustment under § 3B1.2.2 The Sentencing Commission chose to provide a maximum base offense level 

in order to limit the sentencing impact of drug quantity for offenders who perform relatively low-level trafficking functions, have little authority in the drug trafficking organization, and have a lower 

degree of individual culpability (e.g. ‘‘mules’’ or ‘‘couriers’’ whose 

most serious trafficking function is transporting drugs). Other aggravating adjustments in the trafficking guideline (e.g. the weapon 

enhancement at § 2D1.1(b)(1)) would continue to apply and enable 

the base level to be increased above 30, if necessary. 

The manner in which the current sentencing guidelines are applied justify the need for the amendment. Under the current guidelines, the quantity of drugs involved in committing an offense is 

used as a proxy for determining the appropriate sentence for an individual offender. Under most instances, this system ensures that 

offenders who perform higher trafficking functions, such as organizers, manufacturers, supervisors, and managers are imprisoned 

for longer periods of time. However, in several other instances, the 

system leads to anomalus results. Particularly, in the cases of lowlevel offenders who perform minor trafficking functions as a part 

of a larger criminal enterprise. 

H.R. 4689 chooses to ignore these abnormalities. The bill prevents low-level, first-offense drug offenders from receiving a mitiVerDate Dec 13 2002 08:19 Feb 03, 2003 Jkt 010199 PO 00000 Frm 00307 Fmt 6601 Sfmt 6601 E:\XXTEMP\HR769.107 HR769
308

3The amendment failed 3 to 2, but only because the two commissioners who voted against 

it wanted to decrease further the impact of drug quantity on the penalties for those offenders. 

Testimony of Charles Tetzlaff, General Counsel of the United States Sentencing Commission, 

before the House Subcommittee on Crime, Terrorism, and Homeland Security on May 14, 2002. 

gating role adjustment under the sentencing guidelines. The bill, 

specifically, seeks to overturn the U.S. Sentencing Commission’s 

studied and reasoned finding that true ‘‘fairness’’ mandates that 

low-level offenders receive less time than those who actually plan, 

control and profit from the criminal enterprise. 

CONCERNS

1. H.R. 4689 promotes an overly broad sentencing scheme which 

prevents low-level offenders from being sentenced according to 

their actual level of culpability. 

Prior to promulgating amendment 4, the Sentencing Commission 

conducted an intensive study of Federal cocaine cases sentenced in 

FY 2000 and found that powder cocaine offenders classified as 

‘‘renters, loaders, lookout, users, and others’’ on average were held 

accountable for greater drug quantities (7,320 grams) than powder 

cocaine offenders classified as managers and supervisors (5,000 

grams) or wholesalers (2,500 grams). The study went on to find 

that couriers and mules were held accountable for almost as much 

powder cocaine (4,950 grams) as managers and supervisors, and, 

often times, more than wholesalers. 

Because the quantity of drugs involved in a criminal enterprise 

are used as a proxy for determining the appropriate sentence, the 

Commission’s finding clearly prove that offenders who commit lowlevel trafficking functions on average are receiving longer sentences 

than high-level offenders. The Commission’s amendment seeks to 

address this abnormality by offering a mitigating adjustment. Unfortunately, H.R. 4689 favors a broader sentencing scheme which 

ignores an individual’s true culpability. 

2. H.R. 4689 contradicts the advice and wisdom of judges, legal 

scholars and criminal law experts. 

For some time, judges, practitioners and others have expressed 

concern that the guidelines do not strike the appropriate balance 

in regard to the sentencing of high- and low-level offenders. They 

have argued that as the initial determinant of an offense’s seriousness (ie. before other aggravating and mitigating sentencing guideline adjustments are applied), quantity-based penalties in excess of 

10 years imprisonment are inappropriately and unnecessarily long 

to achieve the purposes of sentencing as set forth in the Sentencing 

Reform Act of 1984. These beliefs were also reflected as far back 

as 1992, when then-Chairman William H. Wilkins, who is the current chairman of the Criminal Law Committee of the Judicial Conference of the United States, moved to adopt an amendment to the 

guidelines that would have limited the impact of drug quantity for 

certain mitigating role defendants.3

Finally, these sentiments were echoed in testimony delivered before the House Subcommittee on Crime, Terrorism, and Homeland 

Security. As part of his testimony before the Subcommittee, James 

M. Rosenbaum, Chief Judge of the U.S. District Court of MinVerDate Dec 13 2002 08:19 Feb 03, 2003 Jkt 010199 PO 00000 Frm 00308 Fmt 6601 Sfmt 6601 E:\XXTEMP\HR769.107 HR769
309

4Testimony of Judge James M. Rosenbaum, Chief Judge of the US District Court in Minnesota, before the House Subcommittee on Crime, Terrorism, and Homeland Security on May, 

14, 2002. 

nesota, discussed several cases coming before his court where he 

had no choice under the existing guidelines and was forced to sentence minimal role offenders to as much time as more culpable offenders. He concluded his testimony by stating that such sentences 

were ‘‘improper’’ in his opinion and offered his support for the Commission’s guideline amendment.4

CONCLUSION

The Commission’s amendment is designed to reduce unfairness 

and disparity in the sentencing of codefendants with unequal culpability in a crime. Drug kingpins or other major players in a 

criminal enterprise would not qualify for a minimal role adjustment. Most of those individuals qualifying for this consideration receive very little, if any, profit from the criminal enterprise and generally have no knowledge of the quantity or value of the drugs 

transacted by the enterprise. 

In our opinion, it is not fair to treat couriers, mules, gophers and 

lookouts who have no knowledge of the full scope of the drug trafficking activity the same as high-level offenders. We agree with the 

more reasoned approach being advanced by the Sentencing Commission, the U.S. Judicial Conference and many leading scholars.

JOHN CONYERS, JR. 

BARNEY FRANK. 

ROBERT C. SCOTT. 

MELVIN L. WATT.

Æ