[Federal Register Volume 60, Number 50 (Wednesday, March 15, 1995)]
[Notices]
[Pages 14054-14055]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6330]



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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice and request for public comment regarding proposed 
amendments to sentencing guidelines, policy statements, and commentary.

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SUMMARY: The Commission is considering promulgating amendments to the 
sentencing guidelines, policy statements, and commentary. A synopsis of 
issues to be addressed is set forth below. The Commission may report 
amendments to the Congress on or before May 1, 1995. Comment is sought 
on all proposals, alternative proposals, and any other aspect of the 
sentencing guidelines, policy statements, and commentary relating to 
the issues below.

DATES: Public comment should be received by the Commission no later 
than April 10, 1995, to be considered by the Commission in the 
promulgation of amendments due to the Congress by May 1, 1995.

ADDRESSES: Public comment should be sent to: United States Sentencing 
Commission, One Columbus Circle, NE., Suite 2-500, South Lobby, 
Washington, DC 20002-8002, Attention: Public Information.

FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Information 
Specialist, Telephone: (202) 273-4590.

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is 
an independent agency in the judicial branch of the United States 
Government. The Commission is empowered under 28 U.S.C. 994(a) to 
promulgate sentencing guidelines and policy statements for federal 
sentencing courts. The statute further directs the Commission to review 
and revise periodically guidelines previously promulgated and 
authorizes it to submit guideline amendments to the Congress no later 
than the first day of May each year. See 28 U.S.C. 994 (o), (p).
    Ordinarily, the Administrative Procedure Act rulemaking 
requirements are inapplicable to judicial agencies; however, 28 U.S.C. 
994(x) makes the Administrative Procedure Act rule- making provisions 
of 5 U.S.C. 553 applicable to the promulgation of sentencing guidelines 
by the Commission.
    Section 1B1.10 of the United States Sentencing Commission 
Guidelines Manual sets forth the Commission's policy statement 
regarding retroactivity of amended guideline ranges. Comment is 
requested as to whether any of the proposed amendments should be made 
retroactive under this policy statement.
    With the exception of proposed amendment and issue for comment 4, 
the issues below are derived specifically from the Commission's Special 
Report to Congress: Cocaine and Federal Sentencing Policy, submitted to 
Congress on February 28, 1995. In addition to requesting comment on 
these issues, the Commission invites suggestions for specific amendment 
language. Publication of an issue for comment reflects only the 
Commission's determination that the issue is worthy of public comment 
by interested groups and individuals. Publication should not be 
regarded as an indication that the Commission or any individual 
Commissioner has formed a view on the merits of the issue.

    Authority. 28 U.S.C. 994 (a), (o), (p), (x).
Richard P. Conaboy,
Chairman.

1. Issue for Comment

    On February 28, 1995, the Commission issued a special report to 
Congress on cocaine and federal sentencing policy. The report 
recommended that changes be made to the current cocaine sentencing 
guidelines, including changes to the 100-to-1 quantity ratio between 
powder cocaine and crack cocaine used in determining sentences. The 
report indicated that the Commission will investigate the feasibility 
of creating new guideline enhancements and amending current 
enhancements to address more fully and fairly the harms associated with 
cocaine offenses generally and, specifically, the added harms 
associated with crack cocaine offenses. Based on these new 
enhancements, the Commission intends to make appropriate adjustments in 
the guideline quantity ratio.
    The Commission requests comment regarding implementation of the 
recommendations in the report. Specifically, the Commission requests 
comment on the appropriateness of adding specific offense 
characteristics to Sec. 2D1.1 to enhance sentences for violence and 
other harms associated with some crack and powder cocaine offenses as 
well as some other drug offenses. In addition, the Commission seeks 
comment on the usefulness of adding or amending commentary and policy 
statements regarding possible departures to take account of the 
increased harms associated with some cocaine offenses. For example, how 
should the social harm associated with ``crack houses'' or other 
establishments where drugs are sold and consumed be taken into account? 
The Commission previously has requested commentary on what quantity 
ratio should be substituted for the current 100-to-1 ratio.
    In addition, the Commission seeks comment on the timing and scope 
of guideline amendments for cocaine offenses. For example, if the 
Commission proceeds with guideline amendments for cocaine offenses in 
this amendment cycle, should the amendments apply to drug offenses 
generally or only to cocaine offenses? If new enhancements (e.g., for 
use of a firearm and victim injury) are made generally applicable to 
drug offenses, are other changes in the drug guidelines necessary 
(e.g., in the relative emphasis on drug quantity)? Should any of these 
changes be made retroactive to cases previously sentenced, and if so, 
how might this process best be accomplished?
    A number of amendment proposals and issues for comment relating to 
drug sentencing policy were set forth in the Federal Register of 
January 9, 1995. See 60 FR 2430. Additional issues for comment raised 
by the Special Report on Cocaine Sentencing are set forth below.

2. Issue for Comment

    In light of the Commission's report to Congress on cocaine and 
federal sentencing policy and its recommendations regarding sentences 
for those convicted of simple possession of crack cocaine, the 
Commission requests comment on whether and how it should amend 
Sec. 2D2.1 for offenses involving the simple possession of crack 
cocaine.

3. Issue for Comment

    The Commission invites comment as to whether the enhancements for 
drug offenses involving underage or pregnant individuals, which are now 
included in [[Page 14055]] Sec. 2D1.2, should instead be made specific 
offense characteristics under Sec. 2D1.1.
    Inclusion in Sec. 2D1.1 would make these enhancements applicable to 
all drug defendants whose relevant conduct involved juveniles or 
pregnant individuals, regardless of whether the defendant was convicted 
of the particular statutes now indexed to Sec. 2D1.2 (21 U.S.C. 859, 
860, and 861). The circuits appear to be split regarding whether 
conviction under one of these statutes is a prerequisite for 
application of the Sec. 2D1.2 enhancements. (Compare United States v. 
Oppedahl, 998 F.2d 584 (8th Cir. 1993), with United States v. Locklear, 
24 F.3d 641 (4th Cir. 1994), cert. denied, 115 S. Ct. 278, 457 (1994).)

4. Synopsis of Proposed Amendment

    This amendment inserts additional background commentary explaining 
the Commission's rationale and authority for Sec. 4B1.1 (Career 
Offender). The amendment responds to a decision by the United States 
Court of Appeals for the District of Columbia Circuit in United States 
v. Price, 990 F.2d 1367 (D.C. Cir. 1993). In Price, the court 
invalidated application of the career offender guideline to a defendant 
convicted of a drug conspiracy because 28 U.S.C. 994(h), which the 
Commission cites as the mandating authority for the career offender 
guideline, does not expressly refer to inchoate offenses. The court 
indicated that it did not foreclose Commission authority to include 
conspiracy offenses under the career offender guideline by drawing upon 
its broader guideline promulgation authority in 28 U.S.C. 994(a). See 
also United States v. Mendoza-Figueroa, 28 F.3d 766 (8th Cir. 1994), 
vacated (Sept. 2, 1994); United States v. Bellazerius, 24 F.3d 698 (5th 
Cir.) cert. denied, 115 S. Ct. 375 (1994). Other circuits have rejected 
the Price analysis and upheld the Commission's definition of 
``controlled substance offense.'' The Ninth Circuit considered the 
legislative history to section 994(h) and determined that the Senate 
Report clearly indicated that section 994(h) was not the sole enabling 
statute for the career offender guidelines. United States v. Heim, 15 
F.3d 830 (9th Cir.) cert. denied, 115 S. Ct. 445 (1994). See also 
United States v. Hightower, 25 F.3d 182 (3d Cir.), cert. denied, 115 S. 
Ct. 370 (1994). United States v. Damerville, 27 F.3d 254 (7th Cir), 
cert. denied, 115 S. Ct. 55 (1994).

Proposed Amendment

    Application Note 1 of the Commentary to Sec. 4B1.2 is repromulgated 
without change.
    The Commentary to Sec. 4B1.1 captioned ``Background'' is amended to 
read as follows:

Background

    28 U.S.C. 994(h) mandates that the Commission assure that certain 
``career'' offenders receive a sentence of imprisonment ``at or near 
the maximum term authorized.'' Section 4B1.1 implements this directive, 
with the definition of a career offender tracking in large part the 
criteria set forth in 28 U.S.C. 994(h). However, in accord with its 
general guideline promulgation authority under 28 U.S.C. 994(a)-(f) and 
its amendment authority under 28 U.S.C. 994(o) and (p), the Commission 
has modified this definition in several respects to focus more 
precisely on the class of recidivist offenders for whom a lengthy term 
of imprisonment is appropriate and avoid ``unwarranted sentencing 
disparities among defendants with similar records who have been found 
guilty of similar criminal conduct * * * .'' 28 U.S.C. 991(b)(1)(B). 
The Commission's refinement of this definition over time is consistent 
with Congress's choice of a directive to the Commission rather than a 
mandatory minimum sentencing statute (``The [Senate Judiciary] 
Committee believes that such a directive to the Commission will be more 
effective; the guidelines development process can assure consistent and 
rational implementation for the Committee's view that substantial 
prison terms should be imposed on repeat violent offenders and repeat 
drug traffickers.'' S. Rep. No. 225, 98th Cong., 1st Sess. 175 (1983)).
    The legislative history of this provision suggests that the phrase 
``maximum term authorized'' should be construed as the maximum term 
authorized by statute. See S. Rep. No. 225, 98th Cong., 1st Sess. 175 
(1983), 128 Cong. Rec. 26,511-12 (1982) (text of ``Career Criminals'' 
amendment by Senator Kennedy), id. at 26,515 (brief summary of 
amendment), id. at 26,517-18 (statement of Senator Kennedy).''.

Additional Issue for Comment

    The Commission invites comment on whether, as an alternative to, or 
in addition to, the proposed amendment to Sec. 4B1.1, Chapter I, Part A 
of the Guidelines Manual should be amended to state that in its 
promulgation of specific guidelines, the Commission intends in all 
cases to rely on its general authority under 28 U.S.C. 994(a) as well 
as any other more specific grant of statutory authority.

[FR Doc. 95-6330 Filed 3-14-95; 8:45 am]
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