[Federal Register Volume 65, Number 27 (Wednesday, February 9, 2000)]
[Notices]
[Pages 6434-6436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-2984]


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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY:  United States Sentencing Commission.

ACTION:  Notice of finalized policy development agenda.

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

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

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

I. Legislative Directives

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

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

II. Other High Priority Crime Legislation

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

III. Circuit Conflicts

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

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

IV. Technical and Conforming Amendments

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

Miscellaneous

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

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

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