[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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