Sentencing Guidelines for United States Courts

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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