SPEAKERS CONTENTS INSERTS
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FAIRNESS IN SENTENCING ACT OF 2002
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
MAY 14, 2002
Page 2 PREV PAGE TOP OF DOCSerial No. 98
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman
HENRY J. HYDE, Illinois
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
LINDSEY O. GRAHAM, South Carolina
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL E. ISSA, California
Page 3 PREV PAGE TOP OF DOCMELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel
Subcommittee on Crime, Terrorism, and Homeland Security
Page 4 PREV PAGE TOP OF DOCLAMAR SMITH, Texas, Chairman
MARK GREEN, Wisconsin
HOWARD COBLE, North Carolina
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
RIC KELLER, Florida
ROBERT C. SCOTT, Virginia
SHEILA JACKSON LEE, Texas
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ADAM B. SCHIFF, California
JAY APPERSON, Chief Counsel
SEAN MCLAUGHLIN, Counsel
ELIZABETH SOKUL, Counsel
KATY CROOKS, Counsel
BOBBY VASSAR, Minority Counsel
C O N T E N T S
MAY 14, 2002
Page 5 PREV PAGE TOP OF DOCOPENING STATEMENT
The Honorable Lamar Smith, a Representative in Congress From the State of Texas, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security
The Honorable Robert C. Scott, a Representative in Congress From the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security
Mr. Charles Tetzlaff, General Counsel, United States Sentencing Commission
Mr. John Roth, Asset Forfeiture and Money Laundering Section, Criminal Division, U.S. Department of Justice
Honorable James M. Rosenbaum, Chief Judge, United States District Court, Minneapolis, MN
William G. Otis, Esq., Adjunct Professor of Law, George Mason University School of Law, Arlington, VA
Page 6 PREV PAGE TOP OF DOCPrepared Statement
Material Submitted for the Hearing Record
Selected Provisions of the United States Sentencing Commission Guidelines Manual, November 1, 2001
CHAPTER ONE, Part BGeneral Application Principles
§1B1.3 Relevant Conduct
§1B1.4 Information to Be Used in Imposing Sentence (Selecting a Point Within the Guideline Range or Departing from the Guidelines)
CHAPTER TWO, Part DOffenses Involving Drugs
§2D1.1 Unlawful Manufacturing, Importing, Exporting, or Trafficking (including Possession with Intent to Commit These Offenses); Attempt or Conspiracy
CHAPTER THREE, Part BRole in the Offense
§3B1.1 Aggravating Role
§3B1.2 Mitigating Role
CHAPTER FOUR, Part ACriminal History
§4A1.1 Criminal History Category
§4A1.3 Adequacy of Criminal History Category
Page 7 PREV PAGE TOP OF DOC CHAPTER FIVE, Part ADetermining the Sentence
Sentencing Table (in months of imprisonment)
CHAPTER FIVE, Part CImprisonment
§5C1.2 Limitation on Applicability of Statutory Minimum Sentences in Certain Cases
CHAPTER FIVE, Part KDepartures
§5K1.1 Substantial Assistance to Authorities (Policy Statement)
§5K1.2 Refusal to Assist (Policy Statement)
§5K2.0 Grounds for Departure (Policy Statement)
United States Sentencing Commission, Amendments to the Sentencing Guideliens, Policy Statements and Commentary, Amendment 4, May 1, 2002
Letter from National Association of Assistant United States Attorneys
News Release, American Civil Liberties Union
Coalition Letter, Families Against Mandatory Minimums
H.R. 4689 Prevents the Punishment from Fitting the Crime, Families Against Mandatory Minimums Foundation (FAMM) (May 14, 2002) (with attachments concerning Michael Baker and Tammi Bloom)
FAIRNESS IN SENTENCING ACT OF 2002
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TUESDAY, MAY 14, 2002
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
The Subcommittee met, pursuant to call, at 4:08 p.m., in Room 2141, Rayburn House Office Building, Hon. Lamar Smith [Chairman of the Subcommittee] presiding.
Mr. SMITH. The Subcommittee on Crime, Terrorism, and Homeland Security will come to order.
I'm going to recognize myself and other Members in just a minute for an opening statement.
And I do want to sayI guess, Mr. Roth, to youthat I hope our visual display here doesn't impede your delivery or your statement. I can't see your name, your sign, but we can still know who you are. And next time maybe we'll put this on the end. But it's too heavy to move right now, and I'm afraid we'll just have to talk over it, if that's all right.
Let me recognize myself for an opening statement.
Page 9 PREV PAGE TOP OF DOC Today, the Subcommittee on Crime, Terrorism, and Homeland Security will examine H.R. 4689, the Fairness in Sentencing Act of 2002. This legislation disapproves of an amendment to the Sentencing Guidelines submitted by the United States Sentencing Commission to Congress on May 1st, 2002. Such amendments take effect on November 1, if they are 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 the same as a half a kilo in a drug trafficking case, then you won't like this legislation.
H.R. 4689 disapproves of sections of amendment 4 that create a drug quantity cap for those persons convicted of trafficking in large quantities of drugs, if those persons also qualified 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 would have their sentence reduced to the same level as someone who is convicted of trafficking a half a kilogram of cocaine.
On the table before us is a display of what those amounts look like when they are seized from drug traffickers. You can see what is represented are 150 kilos and one-half kilo of cocaine. These representations of cocaine contain no controlled substances or other harmful or dangerous materials. The purpose is to show Members what these quantities actually look like, because sometimes just talking about numbers really doesn't give you a feel for the quantities involved.
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The proposed amendment is 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 form the centerpiece of the guidelines in drug sentencing. It is common sense that the greater the drug quantity involved, the greater the harm to our Nation.
The Commission's reason for amendment, accompanying amendment 4, states that this amendment will only apply to 6 percent of all drug trafficking offenders. This would still, however, result in a less culpable defendant, one who moved fewer drugs, unfairly receiving a disproportionate 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 of prosecution of others involved in the offense, and for those who are without a criminal record who are not a major player.
This is not the first time Congress has had to take action to disapprove of an attempt by the Sentencing Commission to reduce the penalties for drug-related crimes. In 1995, Congress disapproved of an amendment to equalize the penalties for crack and powder cocaine. That amendment also would have created gross sentencing disparities, just as the amendment before us does today.
It is the clear intent of Congress that there be an orderly gradation of sentences, based primarily upon the objective criterion of drug quantity. The proposed amendment to cap drug quantity is inconsistent with that congressional attempt and also, in my opinion, with the basic notions of fairness.
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That concludes my opening statement.
And the gentleman from Virginia, Mr. Scott, is recognized for his.
Mr. SCOTT. Thank you, Mr. Chairman.
And I appreciate the opportunity to hear testimony on the Fairness in Sentencing Act of 2000. Whether the bill reflects the principle of fairness is obviously in the eye of the beholder.
The primary rationale for the Commission's proposed amendment is to limit the level of unfairness in sentencing of certain low-level offenders.
The amendment would apply only to those who qualified for mitigation based on the fact that they played a minimal role, which is very hard to show in the crime under prosecution. Most of those who qualify for this consideration get little benefit from the transaction and may not even know the quantity or value of the drugs in the transaction. If it is a conspiracy case, the offender may notmay only be involved with a small amount of the total transaction but receive responsibility for the whole amount.
Mr. Chairman, I'm aware of a number of cases where those who qualified for the mitigating role reduction in a drug transaction end up being sentenced to not just a little but a lot more than those who plan, execute, and profit from the transaction. It seems to me that if you have a minimal role in a 150-kilo operation, that ought not get sentenced a lot more than a person who is actually operating the entireas the kingpina much lower amount.
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I have several cases that I would like to make part of the record that will illustrate that.
The amount of disparity will be limited. Just as treating like offenders differently brings about disparities in sentencing, treating unlike offenders the same also brings about disparities.
And we're not talking about opening the prison gates as a result of this amendment. With an 8-to-10-year guideline, the continuing impact of any statutory minimum sentence, and other potential enhancementssuch as obstruction of justice, which is routinely applied if a defendant testifies and is convictedoffenders who qualify for a mitigating role will still be punished more severely than common sense dictates.
The Sentencing Commission indicates that the guidelines' amendment would only affect 6 percent of the drug cases and result in an average reduction of about 1 month in a sentence the offender would already get, and those sentences are in the 10-year range.
Mr. Chairman, I really feel that this bill has a lot to do about very little in the total scheme of drug sentencing in this country. If this bill had anything to do with the notion of fairness to drug offenders, we 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 minimums and other drug sentencing limitations, which even the Chief Justice of the Supreme Court has complained about, and about which the Judicial Conference of the United States has protested to Congress twelve times over the past few years, including references to mandatory minimums violating common sense.
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I look forward to the testimony by witnesses. And I want to especially thank Judge Rosenbaum, who traveled a great distance and endured considerable inconvenience to be with us today.
Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Scott, for your opening statement.
Are there other Members who wish to make an opening statement? If not, I'll introduce the witnesses.
They are Mr. Charles Tetzlaff, general counsel, United States Sentencing Commission, Washington, DC; Mr. John Roth, section chief, U.S. Department of Justice; the Honorable James M. Rosenbaum, chief justice, United States District Court, Minneapolis, MN; and Mr. William G. Otis, former assistant U.S. attorney for the Eastern District of Virginia, from Arlington, VA.
We welcome you all and look forward to your testimony.
And, Mr. Tetzlaff, we'll begin with you.
STATEMENT OF CHARLES TETZLAFF, GENERAL COUNSEL, UNITED STATES SENTENCING COMMISSION
Page 14 PREV PAGE TOP OF DOC Mr. TETZLAFF. Thank you, Mr. Chairman. Chairman Smith, Ranking Member Scott, Members of the Subcommittee, I am Charles Tetzlaff and for the past one and a half years have been general counsel to the Sentencing Commission. Prior to that, I was U.S. Attorney in the District of Vermont for approximately 8 years.
At the outset, let me just say that the commissioners, and particularly Chair Murphy, have asked me to express their sincere regrets for not being able to attend this hearing today. The commissioners had a long-standing commitment to meet with the Criminal Law Committee of the Judicial Conference of the United States in St Louis this week and, therefore, are unable to be in Washington, D.C.
The commissioners recognize that Congress has ultimate authority over Federal sentencing policy and welcome congressional oversight hearings such as this. Congressional oversight of the Commission's work is important, appropriate, and an essential component of the policymaking process established by the Sentencing Reform Act of 1984.
As you know, the Sentencing Reform Act requires the Commission to submit for congressional review all amendments to the Sentencing Guidelines by May 1st of any given year. We believe this year the Commission passed a package of amendments that reflects the Nation's new priorities, provides important sentencing tools to Federal law enforcement, and promotes fair and effective sentencing policy.
While the focus of today's hearing relates to but one of the numerous guideline amendments the Commission sent to Congress two weeks ago, before I address the specifics of that amendment, I want to put it in context, particularly in light of the Department of Justice's suggestion in its written testimony that the Commission's amendment relating to a mitigating role cap is the latest in a series of amendments to reduce Federal drug trafficking sentences.
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You may not be surprised to hear that the Commission hears exactly the opposite suggestion from others in the criminal justice community; that is that the Commission does nothing but increase penalties, especially those related to drug trafficking.
The truth is, the Commission strives to follow the dictates of Congress when it established the Commission, that it establish polices and practices to carry out the statutory purposes of sentencing, considering such things as seriousness of the offense, respect for law and just punishment, protection of the public, avoiding disparity, individualizing sentences, and overall certainty and fairness.
The Commission has a statutory mandate to periodically review and revise guidelines in consultation with the various entities in the criminal justice system and to recommend modifications when appropriate.
During this latest amendment cycle, much of the Commission's attention and efforts were devoted to terrorism. Both Congress and the Commission reacted swiftly to the events occurring on 9/11. The USA PATRIOT Act was enacted into law on October 26, 2001, and in less than six months, working closely with the Department of Justice, the Commission passed a comprehensive package of amendments to the guidelines implementing the PATRIOT Act.
Although I will not list all of the many provisions contained in that amendment, among the most significant are appropriately severe penalties for offenses committed against mass transportation systems and interstate gas or hazardous liquid pipelines, increased sentences for threats that substantially disrupt governmental or business operations or result in costly cleanup measures, expanded guideline coverage for bioterrorism offenses, and a new guideline for providing material support to foreign terrorist organizations.
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Four of the other amendments submitted on May 1st were triggered by requests from the Department of Justice, and the Commission reviewed, particularly, guideline issues. These are more fully described in my written testimony, which I would request be appended to the record. But suffice it to say, whether that issue was a new amendment to address issues relating to the destruction of this Nation's cultural heritage resources or adjusting the three time repeat or career offender guideline, in no event could penalties be said to be reduced. This is equally true of Commission amendments in the areas of public corruption, official victims, and sex trafficking.
Indeed, as a result of its work on the cultural heritage amendment, as an example, the Commission has sent a letter to Congress, recommending that the statutory maximum sentences in two statutes, the Archaeological Resources Protection Act and the Native American Graves Protection and Repatriation Act, be increased to more appropriately provide for the harms involved.
This year, the Commission also placed on its agenda the difficult issue of cocaine sentencing policy, in part because Federal cocaine sentencing policy continues to be criticized by many and in part because the Commission sensed a renewed interest by some Members of Congress in exploring possible changes to the penalty structure. After carefully considering all of the information availableincluding a review of the literature, an empirical review of the year 2000 data, State sentencing policies, public comment, and public testimonythe Commission firmly and unanimously concluded that the current penalty structure can be significantly improved to achieve more effectively the various congressional objectives.
Page 17 PREV PAGE TOP OF DOC Having reached that subsequent conclusion, the Commission faced the difficult threshold decision of determining how to proceed. The Commission seriously considered promulgating an amendment to the guidelines and submitting it for congressional review on May 1st, along with the other guideline amendments I have described. However, after consulting with a number of Members of Congress and their staff, and considering persuasive and helpful letters from Chairman Smith and several Members of the Subcommittee, as well as Ranking Member Conyers, the Commission unanimously agreed that at this time they can best facilitate congressional consideration of the proposed statutory and guideline changes by first submitting recommendations to Congress and then working with Congress to implement appropriate modifications to the penalty structure. The Commission expects to have those recommendations ready for Congress in the coming days.
Two of these amendmentsI'm sorry. In addition to its work on cocaine sentencing policy, the Commission promulgateda four-part amendment to the drug offense guidelines. Two of these amendments increased guideline penalties, one having to do with the use of crack houses and facilities for rave concerts, and the other making an adjustment upwards in the type and weight of ecstasy pills.
The final part of this four-part drug amendment, the primary subject of today's hearing, modifies the primary drug trafficking guideline section 2D1.1 to provide a maximum base offense level of 30, which corresponds to 97 to 121 months imprisonmentthat is, 8 to 10 yearsfor a first-time offense if the defendant receives a mitigating role adjustment under section 3B1.2.
Under this section, the guidelines provide a two- to four-level of reduction if the court makes a finding of fact that the defendant played a part in committing the offense that makes him substantially less culpable than the average participant.
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In the drug context, mitigating role defendants typically perform relatively low-level trafficking functions, wield little authority in the drug trafficking organization, and have little or no control over the quantity of drugs attributable to their conduct. Many mitigating role offenders are couriers and mules whose highest trafficking function is transporting drugs at the direction of and for the profit of others. Other mitigating role defendants essentially work as manual laborers, loading or unloading drugs into storage or onto some mode of transportation. Gofers and lookouts also often qualify for mitigating role reductions, as well as individuals whose sole involvement in the drug offense is providing space or structure to further the offense. These defendants often have no knowledge of the full scope of the drug trafficking activity.
The guideline system, like the mandatory minimum penalties, recognizes that drug quantity as a measure of harm is a principal factor in determining the appropriate sentence for a drug offender. The Commission believes that other factors must also be taken into account in determining an appropriate sentence.
For the overwhelming majority of drug offenders, the drug quantity serves as a reasonable initial proxy, both for the harm caused by the offense and the trafficking function performed by the offender. In other words, offenders who perform higher trafficking functionssuch as organizers, manufacturers, supervisors, and managerstend to be held accountable under the guidelines for the largest quantities of drugs and defenders who perform lesser functions tend to be held accountable for smaller quantities. Thus, for the overwhelming majority of offenses, there does not appear to be any tension between the assignment of the offender's offense level based on drug quantity and the role of the offender.
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The Commission has observed some anomalous results, however, for a limited number of offenders who perform trafficking functions widely considered to be low-level. These offenders, because of the unique nature of their function, are held accountable for exceptionally large drug quantities, which runs counter to their usual relationship between drug quantity and defendant culpability. As a result, these low-level offenders receive quantity-based penalties that exceed their culpability.
For example, as part of its study, the cocaine penalties forthe Commission conducted an intensive study of Federal cocaine cases sentenced in fiscal year 2000 and learned that powder cocaine offenders classified as renters, loaders, lookouts, enablers, and users on average were held accountable for greater drug quantities than powder cocaine offenders classified as managers and supervisors or wholesalers. And couriers and mules were held accountable for almost as much powder cocaine as managers and supervisors and more than wholesalers.
In cases involving offenders such as these, there is a tension between using relatively large drug quantity as a proxy for the harm caused and the relatively low individual culpability of the defendant.
For some time, judges, practitioners, and others have expressed concern that we have not struck the right balance between these two competing concerns. They argue that as the initial determinant of offense seriousnessi.e., before other aggravated and mitigating sentence guideline adjustments are appliedquantity-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 format.
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Indeed, as early as 1992, then-Chairman William W. Wilkins, Jr., who is the current chairman of the Criminal Law Committee of the Judicial Conference
Mr. SMITH. Mr. Tetzlaff, I have to ask you if you could bring your comments to a conclusion. We're under the 5-minute rule, and you're over 7 minutes, so we'll need to conclude.
Mr. TETZLAFF. Very well, Chairman.
Mr. SMITH. Thank you.
Mr. TETZLAFF. I would just say parenthetically that, the Criminal Law Committee, I'm advised that, at its meeting yesterday in St. Louis, unanimously supported the Commission's mitigating role cap, as well as the other amendments submitted May 1st.
The other thing I want to stress is that the modest limitation that we believe has been applied, the Commission nevertheless ensures that the guideline penalties remain consistent with the mandatory minimum penalties even for the mitigating role defendants.
In conclusion, the Commission hopes that the information presented today, both orally and in my written testimony, will assist the Subcommittee's assessment of its work this amendment cycle and its review of the guideline amendments currently pending before Congress.
This Commission has strived to be responsive to the will of Congress and hopes to continue building upon its good working relationship with the Subcommittee.
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Thank you very much.
[The prepared statement of Mr. Tetzlaff follows:]
PREPARED STATEMENT OF CHARLES TETZLAFF
Chairman Smith, Ranking Member Scott, members of the Subcommittee, I am Charles Tetzlaff and for the past one and one-half years I have served as the general counsel to the United States Sentencing Commission (the ''Commission''). Prior to holding my current position, I had the privilege of serving almost eight years as the United States Attorney in Vermont.
The Commissioners, and in particular Chair Murphy, have asked me to express at the outset of my testimony their sincere regrets for not being able to attend this hearing today. The Commissioners have a long standing commitment to meet with the Criminal Law Committee of the Judicial Conference of the United States in St. Louis this week and therefore are unable to be in Washington, D.C.
The Commissioners recognize that Congress has ultimate authority over federal sentencing policy and welcome congressional oversight hearings such as this. Congressional oversight of the Commission's work is important, appropriate, and an essential component of the policy making process established by the Sentencing Reform Act of 1984.
As you know, the Sentencing Reform Act of 1984 requires the Commission to submit for congressional review all amendments to the sentencing guidelines by May 1 of any given year. We believe this year the Commission passed a package of amendments that reflects the nation's new priorities, provides important sentencing tools to federal law enforcement, and promotes fair and effective sentencing policy. Today, I would like to highlight some of the Commission's most important achievements of the amendment cycle that ended just two weeks ago on May 1, 2002 and describe some of the specific guideline amendments currently under congressional review:
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Last year the Commission promulgated a guideline amendment that significantly increased the penalties for offenses involving nuclear, chemical, and biological weapons. The tragic events of September 11, 2001, prompted the Commission, like most government agencies, to alter its plans and make terrorism offenses its top priority once again this year. Congress should be commended for responding so quickly to the threat of terrorism by passing the USA PATRIOT Act. I believe the Commission also should be commended for its quick response. The USA PATRIOT Act was enacted into law on October 26, 2001, and in less than six months, working closely with the Department of Justice, the Commission passed a comprehensive package of amendments to the guidelines implementing the Act.
Although I will not list all of the many provisions contained in the amendment, among the most significant are appropriately severe penalties for offenses committed against mass transportation systems and interstate gas or hazardous liquid pipelines, increased sentences for threats that substantially disrupt governmental or business operations or result in costly cleanup measures, expanded guideline coverage for bioterrorism offenses, and a new guideline for providing material support to foreign terrorist organizations. The amendment ensures that attempts and conspiracies to commit terrorism offenses are punished as if the offense had been successfully completed and provides an encouraged upward departure in the guidelines' terrorism enhancement for appropriate cases. The amendment also authorizes lifetime supervision of an offender convicted of a federal crime of terrorism if that crime resulted in substantial risk of death or serious bodily injury.
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In response to concerns raised by the Department of Justice (particularly by the United States Attorney in Utah), the Department of Interior, many Native American tribes, and other interested groups, the Commission created a new guideline covering crimes committed against our cultural heritage resources. In light of September 11, the Commission concluded that the existing sentencing guidelines inadequately protected important national treasures such as national monuments and memorials, landmarks, parks, archaeological, historic and other cultural resources specifically designated by Congress for preservation. In addition to punishing for any pecuniary harm caused by an offense, the new guideline, §2B1.5 (Theft of, Damage to, Destruction of, Cultural Heritage Resources), includes five separate sentencing enhancements to account for aggravating conduct that often occurs in connection with these crimes, such as brandishing or using a dangerous weapon or disturbing human remains or sacred objects.
The Commission is concerned, however, that some of the most serious offenders will escape the full impact of this new guideline because several relevant offenses have statutory maximum penalties that in the Commission's view are too low. For example, the criminal provisions of the Archaeological Resources Protection Act of 1979 (16 U.S.C. §470ee) (''ARPA'') carry only a one or two year statutory maximum penalty for a first offense, depending on whether the value of the article exceeds $500. Similarly, the criminal provisions of the Native American Graves Protection and Repatriation Act (18 U.S.C. §1170) (''AGPRA'') carry only a one year statutory maximum penalty, regardless of value. The Commission recently sent a letter to the House Judiciary Committee recommending that Congress increase the statutory maximum penalties for those offenses in order to allow the new guideline to have its full effect. The Commission hopes that the Subcommittee will support that recommendation.
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In April 2000, the Commission promulgated a guideline amendment in response to statutory changes made to 18 U.S.C. §924(c) (relating to possession, brandishing, or use of a firearm during a crime of violence or drug trafficking offense). Legislation the previous year modified the existing five year penalty to provide a new tiered statutory mandatory minimum penalty structure for possessing, brandishing, or discharging a firearm with statutory maximum penalties of life imprisonment.(see footnote 1)
The Commission responded by incorporating the mandatory minimum penalties into the firearms guideline, §2K2.4 (Use of Firearm, Armor-Piercing Ammunition, or Explosive During or in Relation to Certain Crimes), and amending the career offender guideline. Pursuant to the mandate to the Commission in section 994(h) of Title 28, United States Code, the career offender guideline is designed to ensure that certain three-time repeat or ''career'' offenders receive a sentence of imprisonment ''at or near the maximum term authorized.'' At the time, the Commission responded to the legislation by specifying that a conviction under 18 U.S.C. §924(c) and 929(a) can qualify as a ''prior crime of violence or prior controlled substance offense'' for purposes of that guideline, but deferred the much more complicated issue of whether convictions under those provisions can qualify as instant offenses for purposes of triggering the career offender guideline.
The Commission revisited the issue this year and concluded that to be fully in compliance with 28 U.S.C. §994(h), and to be responsive to a specific request from the Department of Justice, section 924(c) and 929(a) offenses should qualify as instant offenses for purposes of triggering the career offender guideline. Because of the interaction of the guidelines and the statutory scheme, by necessity the amendment is somewhat complex, but the Commission is confident that it meets the congressional intent behind the career offender provision to sentence these offenders at or near the statutory maximum penalty.
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In response to another request from the Department of Justice, the Commission amended the guidelines to ensure that offenses involving public corruption of foreign officials are penalized as severely as domestic public corruption offenses. This amendment also complies with the mandate of a multilateral treaty entered into by the United States, the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. In part, this Convention requires signatory countries to impose comparable sentences in both domestic and foreign bribery cases.
In response to a request from the Federal Bureau of Prisons (''BOP''), the Commission expanded application of the official victim guideline enhancement, §3A1.2. This enhancement provides a three level increase (an approximate 37 percent increase) for offenses in which the victim is a law enforcement officer or corrections officer. BOP advised the Commission that the federal prisons use a variety of employees, contractors, and volunteers to supervise inmates, and not just corrections officers. The Commission responded by amending the guideline to cover an assault of any prison official authorized to act on behalf of the prison, effectively overruling United States v. Walker, 202 F.3d 181 (3d Cir. 1999) (holding a prison food service employee not a ''corrections officer'' and therefore official victim enhancement not applicable).
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The Commission also promulgated an amendment that ensures severe sentences for commercial sex acts such as the production of child pornography or prostitution, specifically targeting offenders who use fraud to entrap victims. The amendment makes several specific changes to §2G1.1 (Promoting Prostitution or Prohibited Sexual Conduct) to address more adequately the new offense at 18 U.S.C. §1591 created by the Victims of Trafficking and Violence Protection Act of 2000.
This year the Commission also placed on its agenda the difficult issue of cocaine sentencing policy, in part because federal cocaine sentencing policy continues to be criticized by many, and in part because the Commission sensed a renewed interest by some members of Congress in exploring possible changes to the penalty structure. In the course of its work this year, the Commission (i) reviewed the findings from recent literature on specific issues such as the addictiveness of cocaine and the consequences of prenatal cocaine exposure; (ii) conducted an extensive empirical study of federal cocaine offenders sentenced in fiscal year 2000 and compared those results with the findings in the Commission's 1995 special report to Congress on federal cocaine sentencing policy;(see footnote 2) (iii) surveyed state sentencing policies; (iv) considered public comment on the appropriateness of current federal cocaine sentencing policy; and (v) heard testimony at three separate public hearings from the medical and scientific communities, federal and local law enforcement officials, including the Department of Justice, criminal justice practitioners, academics, and civil rights organizations.
Page 27 PREV PAGE TOP OF DOC After carefully considering all of the information available, the Commission firmly and unanimously concluded that the current penalty structure can be significantly improved to achieve more effectively the various congressional objectives outlined in the Sentencing Reform Act of 1984, the Anti-Drug Abuse Act of 1986 (which established the current mandatory penalties for most major drugs of abuse),(see footnote 3) and the 1995 legislation(see footnote 4) disapproving the prior Commission's guideline amendment addressing cocaine sentencing.(see footnote 5)
Having reached that substantive conclusion, the Commission faced the difficult threshold decision of determining how best to proceed. The Commission seriously considered promulgating an amendment to the guidelines and submitting it for congressional review on May 1 along with the other guideline amendments I have described. After consulting with a number of members of Congress and their staff and considering persuasive and helpful letters from Chairman Smith, and several members of the Subcommittee as well as Ranking Member Conyers, the Commission unanimously agreed that at this time they can best facilitate congressional consideration of the proposed statutory and guideline changes by first submitting recommendations to Congress, and then working with Congress to implement appropriate modifications to the penalty structure. The Commission expects to have those recommendations ready for Congress in the coming days.
In addition to its work on cocaine sentencing policy, the Commission promulgated a four part amendment to the drug offense guidelines that was submitted for congressional review on May 1, 2002. The first part of the amendment significantly increases penalties for certain offenders convicted under 21 U.S.C. §856 (Establishment of Manufacturing Operations). That statute originally was enacted to target defendants who maintain, manage, or control so-called ''crack houses,'' but more recently has been applied to defendants who facilitate drug use at commercial dance clubs frequently called raves. This amendment increases that maximum base offense guideline sentencing range from 2127 months to 6378 months for a first-time offender who had no participation in the underlying controlled substance offense other than allowing use of the premises.
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The Commission determined that the existing maximum base offense level did not adequately reflect the culpability of offenders who knowingly and intentionally facilitate and profit, at least indirectly, from the trafficking of illegal drugs, even though they may not participate directly in the underlying controlled substance offense. The Commission believes that this penalty increase will prove to be an important tool for federal law enforcement and was promulgated in direct response to a specific request from the Department of Justice.
The second part complements the Commission's guideline amendment effective November 1, 2001, that significantly increased penalties for ecstasy trafficking in response to a generally expressed congressional directive. The Commission received information from the Drug Enforcement Administration suggesting that certain commentary to the drug trafficking guideline no longer accurately reflected the type and weight of ecstasy pills typically trafficked and consumed. Because this inaccuracy could result in underpunishment in some cases, the Commission modified the commentary to reflect that ecstasy usually is trafficked and used as MDMA in pills weighing approximately 250 milligrams.
The third part of the amendment clarified that the two level reduction provided in the primary drug trafficking guideline for defendants who meet the ''safety valve'' criteria set forth at 18 U.S.C. §3553(f)(1)(5) and reproduced in §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases) applies regardless of whether the defendant is convicted under a statute that carries a mandatory minimum term of imprisonment.
The final part of this drug amendment, the primary subject of today's hearing, modifies the primary drug trafficking guideline, §2D1.1, to provide a maximum base offense level of 30 (which corresponds to 97 to 121 months imprisonmentor eight to ten yearsfor a first-time offense) if the defendant receives a mitigating role adjustment under §3B1.2 (Mitigating Role). Under §3B1.2, the guidelines provide a two to four level reduction if the court makes a finding of fact that the defendant played ''a part in committing the offense that makes him substantially less culpable than the average participant.''(see footnote 6)
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In the drug context, mitigating role defendants typically perform relatively low level trafficking functions, wield little authority in the drug trafficking organization, and often have no control over the quantity of drugs attributable to their conduct. Many mitigating role offenders are couriers and mules whose highest trafficking function is transporting drugs at the direction of and for the profit of others. Other mitigating role defendants essentially work as manual laborers, loading or unloading drugs into storage or onto some mode of transportation. Gophers and lookouts also often qualify for mitigating role reductions, as well as individuals whose sole involvement in the drug offense is providing space or structures to further the offense. These defendants often have no knowledge of the full scope of the drug trafficking activity.
The guidelines system (like the mandatory minimum penalties) recognizes that drug quantityas a measure of harmis a principle factor in determining the appropriate sentence for a drug offender. But the Commission believes that other factors must also be taken into account in determining an appropriate sentence. For the overwhelming majority of drug offenders, the drug quantity serves as a reasonable initial proxy both for the harm caused by the offense and the trafficking function performed by the offender. In other words, offenders who perform higher trafficking functions, such as organizers, manufacturers, supervisors, and managers, tend to be held accountable under the guidelines for the largest quantities of drugs, and offenders who perform lesser functions tend to be held accountable for smaller quantities. Thus, for the overwhelming majority of offenses, there does not appear to be any tension between the assignment of the offender's offense level based on drug quantity and the role of the offender.
Page 30 PREV PAGE TOP OF DOC The Commission has observed some anomalous results, however, for a limited number of offenders who perform trafficking functions widely considered to be low level. These offenders, because of the unique nature of their function, are held accountable for exceptionally large drug quantities, which runs counter to the usual relationship between drug quantity and defendant culpability. As a result, these low level offenders receive quantity-based penalties that exceed their culpability.
For example, as part of its study of cocaine penalties the Commission conducted an intensive study of federal cocaine cases sentenced in fiscal year 2000 and learned that 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.
In cases involving offenders such as these, there is a tension between using relatively large drug quantity as a proxy for the harm caused and the relatively low individual culpability of the defendant. For some time judges, practitioners, and others have expressed concern that we have not struck the right balance between these two competing concerns. They argue that as the initial determinant of offense seriousness (i.e., before other aggravating and mitigating sentencing guideline adjustments are applied), quantity-based penalties in excess of ten years imprisonment are inappropriately and unnecessarily long to achieve the purposes of sentencing as set forth in the Sentencing Reform Act of 1984.
As early as 1992, then Chairman William H. Wilkins, Jr., who is the current chairman of the Criminal Law Committee of the Judicial Conference of the United States (''CLC''), moved to adopt an amendment to the guidelines that would have limited the impact of drug quantity for certain mitigating role defendants. The amendment failed 3 to 2, primarily because the two commissioners who voted against it wanted to decrease further the impact of drug quantity on the penalties for these offenders. This year the Commission received public comment from a number of sourcesincluding the CLC of the Federal Judicial Conference, the Commission's standing advisory committee, the Practioners' Advisory Group, and the American Bar Associationagain urging us to adopt some version of a ''mitigating role cap.''
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After carefully considering all of the comments received, including Chairman Smith's letter, the Commission unanimously, and I stress unanimously, concluded that for this category of least culpable offenders, a base offense sentencing guideline range of 97 to 121 months is sufficient to meet the purposes of sentencing and strikes an appropriate balance between basing penalties on the quantity of drugs and the role of the offender.
Furthermore, the Commission believes that this is a modest limitation on the impact of drug quantity on sentences. The Commission ensured that the guideline penalties remain consistent with the mandatory minimum penalties even for mitigating role defendants. With this amendment, a mitigating role defendant who is found responsible for a drug quantity sufficient to trigger a ten year mandatory minimum penalty still will receive a base offense level that corresponds to the ten year mandatory minimum penalty. Other aggravating adjustments in the trafficking guideline (e.g., the weapon enhancement at §2D1.1(b)(1)) and general aggravating adjustments in Chapter Three of the guidelines still can operate to increase the defendant's offense level above level 30. The defendant's criminal history score also can further increase the defendant's sentence. Finally, although the Commission intends for this amendment to have a meaningful benefit for those defendants for which it applies, the Commission estimates that this ''mitigating role cap'' will apply in only six percent of cases sentenced under the primary drug trafficking guideline, resulting in a slight reduction of one month in average sentences from 72 to 71 monthsor 1.4 percentfor all offenders sentenced under the guideline.
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The Commission hopes that the information presented today assists the Subcommittee's assessment of its work this amendment cycle and its review of the guideline amendments currently pending before Congress. In the few short years since this Commission was appointed on November 15, 1999, they have increased penalties significantly for offenses such as electronic copyright infringement, identity theft, cell phone cloning, sexual offenses against children, human trafficking, college scholarship fraud, terrorism, money laundering, fraud and theft, methamphetamine and amphetamine manufacturing, ecstasy trafficking, stalking and domestic violence, GHB offenses, firearms offenses, offenses involving nuclear, chemical and biological weapons, and many others. This Commission has strived to be responsive to the will of Congress and hopes to continue building upon its good working relationship with the Subcommittee.
Mr. SMITH. Thank you, Mr. Tetzlaff.
STATEMENT OF JOHN ROTH, ASSET FORFEITURE AND MONEY LAUNDERING SECTION, CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE
Mr. ROTH. Thank you, Chairman Smith, Ranking Member Scott, and Members of the Subcommittee.
My name is John Roth. I come to you as a career Department of Justice prosecutor. I prosecuted drug crimes as an assistant U.S. attorney in two different districts, in the Eastern District of Michigan in Detroit and the Southern District of Florida in Miami, before I came to Washington, where I was the chief of the Narcotic and Dangerous Drug Section for 2 1/2 years, and now in my present position as the chief of the Asset Forfeiture and Money Laundering Section. It's truly a privilege to be here, and I do thank you for the opportunity.
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We oppose the Sentencing Commission's changes with regard to section 2D1.1. We do so because we think that they'll result in a sentencing scheme that fails to reflect the seriousness of the conduct involved, will produce wildly disparate sentences between cases or even in the same case, and will ignore the modern reality of drug trafficking as it's practiced in the United States today.
Large-scale drug trafficking organizations, and these are the type that the Department of Justice strives to target and to prosecute, are able to function only as a result of the individuals who contribute to their success. A large-scale trafficking organization is necessarily complex and dependent on dozens of individuals, each with his or her own role.
Each member of a conspiracythose who supply the drugs, who smuggle the drugs, who pilot the boats, fly the planes, the financiers, the chemical suppliers, the transportation specialists, the enforcers who provide the muscle, those who provide organizational and logistical support, those who facilitate the communication, and those who launder the moneyeach one of them contributes to the success of a complex organization in his or her own way.
The kingpins and the managers involve these people out of necessity. They are necessary to an effective, functioning criminal organization. Without the support of these individuals, these conspiracies simply could not happen.
The net effect of the Sentencing Commission's guideline change is to allow individuals with a minor but necessary role in large drug organizations to escape the consequences of their actions. Under the Commission's plan, for example, an individual who is a minor but not a minimal participant in a scheme to import, say, 100 kilograms of cocaineand that's got a domestic wholesale value of something along the lines of $2 million, a retail value far in excess of that, and enough for hundreds of thousands of usersassuming that he has accepted responsibility for his actions and qualified for the safety valve, will be sentenced only to about 4 years. A minimal participant would receive a little over 3 years. And under the Commission's guidelines as proposed, it didn't matter whether it was a case involving 100 kilos or 150 kilos or five kilos or a 1,000 kilos; the sentence would be the same regardless, assuming they met these criteria.
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Under the Commission's scheme, mitigation is double counted. First, there is reduction to a level 30 cap and, then a second reduction is taken for role in the offense, either a two-level or a four-level reduction. We think this goes too far. Drug trafficking is a serious crime. And the harm to society as a result of drug trafficking is significant and should be punished appropriately.
Currently, the systemwe recognize that those who are less culpable should be punished less severely, and the current system does that. Minor participants receive a two-level reduction from a standard sentence, and a minimal participant receives a four-level reduction. These benefits right now are considerable.
In the 100 kilogram case that I talked about, this translates into a reduction of about 2 or 3 years for a minor participant, and a minimal participant would have a 10-year sentence reduced to between 6 and 7 years.
The guideline change is going to make it more difficult for prosecutors to attack large organizations. Dismantling criminal organizations typically requires the cooperation and testimony of somebody on the inside of the organization. This is especially true with sophisticated and well-insulated criminal organizations. The Commission's guideline change is going to make it more difficult to convince less culpable members of a conspiracy to aid the Government or provide evidence in assistance to the Government.
And I'd like to illustrate this with a real life example that I had when I was in Miami. I was working with the DEA and the FBI on a multi-ton Colombian cocaine transportation ring. We had information that one of the members was going to transport a tour bus with about 200 kilograms of cocaine secreted inside it. It was going to go from Los Angeles to New York.
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We were able to develop evidence of where the bus was. We were able to stop it, search it, and confront the driver with the evidence of the 200 kilos. We were able to convince the driver to continue on that journey to New York, because we didn't know who it was that he was going to deliver the cocaine to in New York.
And the 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 lose that ability to convince these minor players to testify and to cooperate and to provide evidence, we lose the ability to go after the kingpins. And to me, that is the single most significant problem with the Commission's actions.
Moreover, the Commission's change submitted to Congress would create disparities in sentences. One factor, the defendant's role in the offense, will be responsible for an enormous sentencing reduction. Unfortunately, this is one of the most subjective factors within the guidelines. A judge is going to have to be forced to determine in each case whether an individual is a minor participant. And that's vaguely defined in the guidelines as someone who is, quote, ''less culpable than most other participants but whose role could not be described as minimal,'' end quote.
There is great confusion over what that single phrase means, yet that single factor is going to have an enormous impact on someone's sentence. For individuals trafficking in excess of 150 kilograms of cocaine, or at the top of the guideline range, that can result in a 12-level reduction. It's perhaps the biggest single reduction that you can have in the Sentencing Guidelines.
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Even in the same case, a few seemingly small factsthe difference in the amount of money being paid or a slight difference in the degree of knowledge about the participation of others, for examplewill have a great and disproportionate impact on the sentences of the defendants within the conspiracy.
A defendant's role in the conspiracy is going to become the single most important fact, even more important than drug quantity. It will depart from the quantity-based system Congress established when it wrote the Controlled Substances Act and will differ from the way we sentence every other type of crime, whether it's fraud, theft, or violent crime.
That concludes my remarks, Mr. Chairman. On behalf of the men and women who prosecute serious narcotics cases for the United States, I thank you for the opportunity.
[The prepared statement of Mr. Roth follows:]
PREPARED STATEMENT OF JOHN ROTH
Chairman Smith, Ranking Member Scott, and Members of the Subcommittee, my name is John Roth. I am a career Department of Justice prosecutor, and serve as the Chief of the Asset Forfeiture and Money Laundering Section. I prosecuted drug crimes as an Assistant United States Attorney in Detroit, Michigan and Miami, Florida for almost 13 years before coming to Washington, first as the Chief of the Narcotic and Dangerous Drug Section in the Criminal Division for two and a half years and now in my current position. I have prosecuted and supervised the prosecution of hundreds of drug cases in the course of my career. I appreciate the invitation to speak with you today, and to offer the committee some insight into the effects on the investigation and prosecution of federal drug cases of Sentencing Guideline amendments recently submitted to Congress.
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At your request, we have reviewed the Sentencing Commission's revisions to section 2D1.1 of the Sentencing Guidelines. If Congress permits these amendments go into effect, they would cap the Sentencing Guideline base offense level at 30 for any defendant who also is found to have a mitigating role in an offense. This level 30 cap means that a qualifying defendant whose offense involved a tremendous quantity of drugsfor example, 150 or more kilograms of cocaine, which produces a base offense level of 38 under the Guidelineswould be treated in the same manner as one whose offense involved a significantly smaller quantity3.5 to 5 kilograms of that drug, which produces a base offense level of 30. The level 30 cap also means that from the standpoint of drug quantity the worst defendantsthose involved in the largest conspiracies distributing the largest quantities of drugswould receive the biggest break.
We oppose the Sentencing Commission's changes. We do so because they will result in a sentencing scheme that fails to reflect the seriousness of the conduct, will produce wildly disparate sentences between cases or even within the same case, and will ignore the modern reality of drug trafficking crimes in the United States today.
Large scale drug trafficking organizationsthe type that the Department strives to target and prosecuteare able to function only as a result of the individuals who contribute to their success. A large scale trafficking organization is necessarily complex and dependent on dozens of individuals, each with his or her own role. Each member of the conspiracythose who supply the drugs, those who smuggle the drugs, those who pilot the boats and fly the planes, the financiers, the chemical suppliers, the transportation specialists, those who provide the muscle to protect the operation, those who provide organizational and logistical support, those who facilitate the communication and those who launder the moneyeach contributes to the success of the organization in his or her own way. The kingpins and the managers involve these people because they are necessary to an effectively functioning criminal organization. Without the support of these individuals, these conspiracies would fail.
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The net effect of the Sentencing Commission's Guideline change is to allow individuals with a minor but necessary role in large drug organizations to escape the consequences of their actions. Under the Commission's plan, for example, an individual who is a minor, but not a minimal, participant in a scheme to import 100 kilograms of cocainewith a domestic wholesale value of two million dollars, a retail value far in excess of that, and enough for hundreds of thousands of userswho accepted responsibility for his actions and who qualifies for a safety valve reduction, would be sentenced to a range between 46 and 57 monthsaround four years. A minimal participant would receive a sentence in the range of 37 to 46 monthsa little over three years. An even more serious defendantone whose offense involved 150 kilograms or more of cocainewould receive a sentence reduction to these same levels. In the absence of the amendment, a minor participant in the 150 kilogram offense (who accepted responsibility and who qualifies for the safety valve reduction) would have been sentenced to 108 to 135 months of imprisonment, and a minimal participant to 87 to 108 months. In the view of the Department of Justice, a reduction of the magnitude provided in the amendmentmore than 50 percentresults in sentences that do not sufficiently reflect the seriousness of such criminal conduct; nor do the resulting sentences sufficiently deter those who would willingly contribute to the success of drug organizations. Drug trafficking is a serious crime. The harm to society as the result of drug trafficking is significant, and it deserves to be punished appropriately.
We recognize that those who are less culpable should be punished less severely, and the current guideline system adequately provides for this. Minor participants receive a two level reduction from the standard sentence, and minimal participants receive a four level reduction. These benefits are considerable. In the 100 kilogram cocaine case I spoke of earlier, this translates into a reduction of about two to three years on a ten year sentence. A minimal participant would have a ten year sentence reduced to between six and seven years. Under the Commission's scheme, a mitigating role is ''double counted:'' first, with a reduction to the level 30 cap for drug quantity, and then with an additional reduction of two or four levels for the mitigating role in the offense. This goes too far.
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As prosecutors, we focus on attacking entire organizations. It is insufficient just to take out the leaders, and it is insufficient just to take out the soldiers. We must root out the entire organization in order to dismantle it. Dismantling criminal organizations typically requires the cooperation and testimony of an insider. This is especially true with criminally sophisticated and well insulated organizations. The Commission's guideline changes would make it more difficult to convince less culpable members of the organization to provide evidence. Let me illustrate this with a real life example. In Miami I was working with the DEA and FBI, investigating a multi-ton Colombian cocaine transportation ring. We had information that one of the members was to drive a tour bus loaded with 200 kilograms of cocaine from Los Angeles to New York. We were able to stop and search the bus and confront the driver. We were able to convince the driver to continue on this journey and deliver the bus to the New York end of the operation, thereby exposing a part of the group we were not aware of. The driver understood that notwithstanding his minor but critical role, he faced a significant penalty if he decided not to cooperate. Every experienced agent and prosecutor could give you a dozen similar examples. The ability to move up the hierarchy of the organization and identify its facilitators is critical to our success, and the Commission's actions would make our job more difficult.
Moreover, the Commission's change submitted to Congress would create disparities in sentences. One factor, the defendant's role in the offense, will be responsible for an enormous sentencing reduction, yet this is one of the most subjective factors in the Guidelines. A judge will be forced to determine in each case whether an individual is a minor participant, which is vaguely defined as someone who ''is less culpable than most other participants, but whose role could not be described as minimal.'' There is great confusion over what that phrase means, yet that single factor will can have an enormous impact on an individual's sentence. For individuals trafficking in excess of 150 kilograms of cocaine, who are at the top end of the guideline range, it can result in an adjustment of 12 levels, which takes them from a 188235 month range to a 5163 month range (after taking into account the safety valve reduction). It is perhaps the single biggest adjustment in the entire guidelines manual, a bigger difference than if a person were trafficking 149 kilograms of cocaine (level 36) instead of just 500 grams (level 26a 10-level difference).
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A finding of whether a defendant was a minor participant often turns on only a few facts and, because of the necessarily vague definition, will vary from judge-to-judge. As a result, we predict there will be great disparity between judges. In the everyday practice of law, similarly situated defendants will receive vastly disparate sentences. Such disparity is inevitable in any system in which general guidelines are applied to a set of facts, but the degree of disparity will be magnified under the Commission's proposal.
Even in the same case, a few seemingly small factsthe difference in the amount of money being paid, or a slight difference in the degree of knowledge about the participation of others, for examplewill have a great and disproportionate impact on the sentences of defendants within the same conspiracy. A defendant's ''role'' in the conspiracy will become the single most important fact in sentencingeven more important than the quantity of drugs involved. It will depart from the quantity-based system Congress established when it enacted the Controlled Substances Act, and it will differ from the way we sentence every other type of crime, whether it is fraud, theft, or violent crime.
Finally, Mr. Chairman, I note that the Commission's action is the latest in a series of amendments to reduce the severity of federal drug trafficking sentences. In 1992, the Commission changed the definition of ''relevant conduct'' for jointly undertaken activity, which had the net effect of lowering drug conspiracy sentences. In 1994, the Commission reduced the highest offense level for trafficking offenses from a 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 guideline by extending that two level reduction to less serious drug crimes (i.e., less than 500 grams of cocaine).
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On behalf of the men and women who investigate and prosecute federal drug crimes, it is truly a privilege to be here, and I would like to thank the Subcommittee for the opportunity to share my views. Mr. Chairman, that completes my prepared remarks. I would be happy to answer any questions that you may have at this time.
Mr. SMITH. Thank you, Mr. Roth, for your testimony.
STATEMENT OF THE HONONORABLE JAMES M. ROSENBAUM, CHIEF JUDGE, UNITED STATES DISTRICT COURT, MINNEAPOLIS, MN
Judge ROSENBAUM. Chairman Smith, Ranking Member Scott, Members of the Committee, it is a pleasure and may I say it's an honor for me to be present before you.
I would like to suggest, Mr. Chairman, with all respect, that the proposal contains a serious confusion. It confuses office boys and assembly-line workers with chairmen of the board, and that ought not to be perpetuated.
Let me give you a little bit about my own background. I began as a trial attorney and worked as a municipal prosecutor for many years. In 1981, I was appointed United States attorney for the District of Minnesota, where I carried my own caseload. I served under Rudy Giuliani, who headed the criminal division; William French Smith; and under Edward Meese, attorney general while I served. In 1985, President Reagan honored me by placing me on the United States district court.
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After 17 years, I tell you as I am sitting here, sir, I am no bleeding heart. But I also want to tell you that my comments do not necessarily reflect those of the Judicial Conference, although I sit on the Judicial Conference of the United States.
I will also tell you that I have spoken with Judge Sim Lake, who heads the Sentencing Committee of the Judicial Conference's Committee on Criminal Law, which I now understand unanimously supported these proposals. Judge Lake sits in Texas, and shares the same views which I'm expressing, and was also appointed by President Reagan.
Let me focus on why I think the proposal is not appropriate. It orients, and I think it ought to, the inquiry for very low-level, for minimal or bit players, away from the entire conspiracy crime and focuses only on the perpetrator.
There are four reasons why I believe this is proper. It reflects properly who the minimal and minor participants actually are. Second, it measures fairly the real part that they play. Third, these are people who derive minimal profits. They do not derive profits from the proceeds of the enterprise; they're pieceworkers. Fourth, the net effect is extraordinarily small.
Let me focus then with you on the first of these. Who are these people? They are inevitably minnows. As Mr. Roth just pointed out, the goal of the Department of Justice, and appropriately so, is to find the sharks, to find the major players. But when you cast a wide net, you pick up minimal or bit part players. These are the people that they pick up on the wire taps. These are the people that, when they sweep in, are in the room. These are the people who may be blocks away simply doing visual monitoring. Or they may be people that they pick up at the border who have swallowed or are carrying drugs. Frequently, they are drivers or couriers. These are the women whose boyfriends tell them, ''This week you're going to get a FedEx package, and give it to me when it arrives. Your house is where we're mailing it. If you do that, I'll give you some money for the kids, and I'll give you $150 bucks for food.''
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That's who we're talking about. We're not talking about kingpins. For prosecutors, these are the throwaways. These are the minimal cases.
I also want to tell you, with all respect to Mr. Roth, that these sentencing changes do not change the mandatory minimums. His truck driver would not be affected byor his tour bus driver is simply not to be affected by this program. The mandatory minimums will remain in effect.
Let's also talk about their role, the second factor. Their role in the offense, these people do not set up the deal.
I have never seen a minor or minimal role player who knew where the drugs came from or, most of the time, where they were going. Other than by personal relationships, they do not know what is going on in the deal other than they're doing their piecework job. They do a task and then they go on to something else, most of the time their regular life.
They do not, number three, proceed in the proceeds. They do not have a share in the distribution. When the deal is done with the 500 or 150 kilos, they still get their $500 or their $1,000. Nothing else comes to them. Many of them are addicted and take their pay, frankly, in users' quantities. That's all there is. But instead, they're being sentenced as though they were running the entire enterprise.
Fourth, let's take a took at the effect. And the effect, I will tell you, is small. You can take a look at the material, which I think has copiously been supplied by Mr. Tetzlaff and the Commission, but basically the proposed category sentencing does not end the inquiry.
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And to suggest that that puts a cap looks, I think, the wrong way. Points added for firearms, obstruction, violence, or injury would all be added on the top. And again, the mandatory minimums are not going away.
So let me then focus just if I can on a couple of sentences.
Mr. Chairman, Members of the Committee, this is what I do for a living. I face criminals, bad people who need to be sentenced. I've been doing it for 17 years, and let me tell you what I'm looking at.
Here's a young man who is 19 years old. He was hired to drive a car from Seattle to Minnesota. He didn't know and doesn't know, I believe as I'm sitting here, until he was convicted, what he was carrying, how much he was carrying, or where it was in the vehicle. It made no difference to him whether he was carrying one kilo, or five, or 20, hidden in the car. And if he would have looked and found where it was, and the people who were his controllers would have found that out, he would have been facing possible death himself.
But he drove the vehicle. He got picked up. Hidden in the bumper were 15 kilos of methamphetamine. Minnesota does not need methamphetamine, and he rightfully should go to jail.
But I will tell you, he is right now facing the same 121 to 239 months that he would otherwise have gotten from someone else. He is also bound by the mandatory, statutory minimum of 10 years. There's really no difference for him.
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A young woman named VMD, for our purposes, she made phone calls under the directions of her boyfriend. He gave her instructions and told her what to do. Her apartment was used by him to process and store cocaine. Everything she did was his, none of it was hers, and he gave her money for her kids and bought her Christmas presents. She has presently been found to be a minor participant. And under the guidelines, she was rated at a 27 and faced approximately 7 to 9 years.
Mr. SMITH. Judge Rosenbaum, we're over 7 minutes. Could you conclude your testimony?
Judge ROSENBAUM. I will conclude in one more second.
Mr. SMITH. Okay.
Judge ROSENBAUM. I appreciate very much your courtesy, and I urge you to seriously think about these matters as I know you will. And I thank you so much for the opportunity to be heard.
[The prepared statement of Mr. Rosenbaum follows:]
PREPARED STATEMENT OF JAMES M. ROSENBAUM
Dear Mr. Chairman and Members of the Committee:
Page 46 PREV PAGE TOP OF DOC As a small and probably improper preface to my testimony, please permit me to say that my grandfather was an immigrant tailor who came to this great nation and settled in Minnesota, almost 90 years ago. His son and my father served in the U.S. Army, and sold building products in Minneapolis. They are both gone now, but if they could see their son and grandson testifying today, they would know that miracles actually come to pass.
It is a great honor to testify before this distinguished committee. I have come to speak in favor of the United States Sentencing Commission's proposed guideline amendment to set a minimal or minor participant's base offense level at 30 points.
Please let me tell you a bit about my own background. I have practiced trial law since 1969. Beginning in 1972, I was a municipal prosecutor for St. Louis Park, Minnesota. I also did some criminal defense work. In 1981, I was appointed United States Attorney for the District of Minnesota, by President Ronald Reagan. As U.S. Attorney, I prosecuted my own caseload as well as supervised the office. In 1985, almost 17 years ago, President Reagan appointed me to the federal bench. I am no bleeding heart. I also should tell you that even though I am a member of the Judicial Conference of the United States, the views I express are mine and do not necessarily represent adopted Conference policy.
Mr. Chairman, I have spoken to Judge Sim Lake, the distinguished jurist who Chairs the Sentencing Guideline Subcommittee of the Judicial Conference's Committee on Criminal Law. Judge Lake, as you know, is also a Reagan appointee, and sits in Houston, Texas. Judge Lake's, and his Subcommittee's, comments favoring this change are already a part of this Committee's records, I believe. But it is fair to say this distinguished Texas jurist shares the views I express. They are also shared by a substantial number of other sitting federal judges who have previously served as United States Attorneys.
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With this background, I would like to focus on the proposed modification: 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. I believe this is proper.
Let me provide four reasons why this is so. First, the change better reflects who these minor and minimal participants are; second, it more properly measures the real part these defendants play in the overall drug trafficking schemes; third, these defendants derive relatively minimal proceeds from the crime; and, fourth, the effect of the change, if adopted, is slightly lower sentences for less-culpable defendants.
First, who are these ''minimal'' or ''minor'' participants? The answer is, they are almost inevitably minnows. Prosecutors always cast their nets at sharks, but in catching them, they often also get a few small fry used by the sharks. Minor or minimal participants, in my experience, are frequently lookouts, couriers, or those who allow their homes to be used to store, receive, or distribute drugs. These defendants virtually always come to the attention of investigators by way of wiretaps of the real targets of the investigation, their arrests at the scene while performing laboring jobs as part of the deal, or acting as couriers for people they seldom actually know.
They are the women whose boyfriends tell them, ''A package will be coming by mail or from a package delivery service in the next two 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 carrying or receiving, and if they have an idea of what, they usually don't know how much.
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For prosecutors these are peripheral cases. Prosecutors want to get the source and the distributor. Minimal or minor participants are simply conduits. But under the present Guidelines, the sentencing decision is driven by the quantity of drugs in the overall deal. And this does not at all reflect the minor or minimal participant's reality. They never set the drug quantity. If they did, they wouldn't be minor or minimal participants.
Second, let's look at their roles. A minor or minimal participant doesn't set up the deal. I have never seen such a defendant who knew where the drugs were ultimately from or where they ultimately went. They usually don't know, except by instruction, or maybe personal relationship, the people for whom they are carrying or receiving the drugs. And their involvement is episodic. That means they do a task, for a set fee and for a set period of time. Then they are off, living their lives. The major players never discuss the whole deal with them, nor do they involve minimal or minor players in any aspect of the planning.
Third, as to proceeds, I have never seen a minor or minimal participant who gets a cut of the profits. Minimal and minor participants do piece work. What they get is a fixed fee: ''Drive this car from Los Angeles to Minneapolis for $500.'' ''Let us use your garage or loading dock; we'll give you either a quantity of drug, or forgive you what you owe, or you'll get X-number of dollars.'' Or, as I suggested before, ''I'll buy you some food, and here's $100 for clothes for the kids.'' It's not a pretty world.
Fourth, and finally, let's look at the effect. As an initial matter, the Commission's statistics indicate we are talking about somewhere around 6% of all drug trafficking offenders. Furthermore, the proposed category 30 does not end the sentencing inquiry; it begins it. Judges will still add points for firearms, obstruction, violence or injury (although it seems 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). And, of course, the Guidelines' categorical 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.
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Let me give you a few examples of the effects of this change, if adopted. 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. The following examples are all pulled from recent cases in the District of Minnesota.
Let's consider JMC, who has been charged with a drug offense. According to the complaint, he carried a cooler containing drugs from a pickup truck, into a hotel. He has no prior record, but faces a 10-year mandatory minimum, because of the weight of the drugs in the cooler. If convicted, he could be sentenced to 121293 months, or 1023 years, depending on his role in the offense and drug quantity. With the proposed amendment, he would likely be at level 2628 instead, and face a guideline sentence of 6397 months. Regardless of that, however, he still faces the 10-year mandatory minimum.
MLV is facing sentencing before me. I will actually impose this sentence in the next few weeks. He is 19 years old and has no prior convictions. He has been convicted of driving 15 pounds of methamphetamine from Washington state to Minnesota. He didn't know where the drugs were hidden, the kind of drugs they were, or the quantity. He got $500 for riding with a friend. They knew they were ferrying a ''load car.'' But that's all they knew. He is presently facing the same 121293 months I just described for JMC. Under the proposal, he could face 6397 months, or between 5 and 8 years. And again he is still bound by the 10-year mandatory minimum. Again, there is virtually no difference.
Page 50 PREV PAGE TOP OF DOC Now, let me tell you about VHD. This young woman made phone calls under the direction of her boyfriend, each according to his instruction. She allowed her apartment to be used to store and process cocaine. None of her activities were independent, and she got no percentage of the deals. She was found to be a minor participant. Under the present Guidelines she was rated at a level 27, and subject to a sentence of 87108 months, or 79 years. Under the proposed amendment, she would have had a base level of 25 and faced 5771 months, or between 56 years.
HAG is a young woman who was recruited and directed by the organizer and main distributer of a St. Paul, Minnesota, drug ring. She suffers from clinical depression and is chemically dependent. She purchased cellular phones for the primary organizers and assisted with the storage and distribution of drugs. She had a criminal history category II, because of 2 prior convictions for theft and careless driving. Without the change in guidelines, her base offense level was 36. The presentence investigation concluded she was entitled to a reduction for minor participant. Her guideline range was 121151 months, or 1013 years, after reductions for role and acceptance. With the proposed guideline change, her range would instead be 6378 months, or between 57 years.
Like many of these defendants, ST accepted drug packages and once acted as a courier for a large quantity of controlled substances, by driving a truck from California to Minnesota. This drug- and gambling-addicted individual received small quantities of drugs and money for his assistance in the drug conspiracy. He said he wanted to break away from the primary drug dealers in the ring, but was roped in by the money and drugs, and heard stories about how they hurt or killed people who owed them money. His base offense level was 38, which resulted in a guideline range of 108135 months, or 911 years, after reductions for role, acceptance, and the safety valve. With the change in the guidelines, his range would instead be 4657 months, or between 45 years.
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At the request of her cousin, 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 5771 months, or 5 to 7 years, after reductions for role, acceptance, and safety valve. Under the proposed change, her range would instead be 3746 months, or 34 years.
DLLan individual with no prior criminal convictionsalso faces sentencing before me. He transported drugs from California to Minnesota for his cousin. He knew he was transporting drugs, but not the type or quantity. He was paid $3,500 to $5,000 per trip. Under the current guidelines, his base offense level is 36, reduced to 29 after reductions for safety valve, role, and acceptance, resulting in a range of 87108 months, or between 79 years. With the change in the guidelines, his total sentence would be 4657 months, or between 45 years.
AC had no criminal history and once acted as a courier in the drug conspiracy charged. She was recruited to drive a large shipment of drugs to Minnesota. Her base offense level was 36 before reductions for role (as a minimal participant), safety valve, and acceptance, resulting in a guideline range of 7087 months, or 67 years. Under the new guideline, her range would instead be 3746 months, or 34 years.
ERR 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 I, and his base offense level was 36. Under the new guideline, it would start at 30. After reductions for acceptance and role, his new guideline sentence would be 5771 months, or between 5 and 6 years.
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Twenty-one-year-old JAP traveled from Minneapolis to Los Angeles to visit friends and attend a party. At the party, he arranged to bring Methamphetamine back to Minneapolis. He was arrested at the airport carrying multiple packets of methamphetamine taped to his body under his clothing. This methamphetamine weighed approximately 1.71 kilograms. In exchange for agreeing to act as a mule for a single smuggling transaction, the defendant was categorized as a level 34 offender, resulting in a range of 5771 months, or 56 years, after reductions for role, acceptance, and safety valve. Under the change, he would have had a range of 3746 months, or 34 years.
RCK entered the United States from Amsterdam. An examination of his luggage reveled two pairs of footwear that appeared heavier than normal; further examination revealed 1.55 KG of heroin. He awaits sentencing before me. Under the current guidelines, his range is 7087 months, or 67 years, after reductions for acceptance and safety valve. With the change, he would still face 57-71 months, or 56 years.
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. His guideline range is 151293 months, or 1324 years. With the change, it would be 78121 months, or 710 years, but he would still face the 10-year mandatory minimum.
RBH had no priors and once transported drugs for his co-defendant who arranged the drug deal, driving a vehicle containing 1+ KG of methamphetamine from his co-defendant's residence to a hotel. His range was 7087 months, or 67 years, and he was sentenced to 70 months. He wasn't subject to the mandatory minimum because of the safety valve. Under the amendment, his range would instead be 4657 months, or 45 years.
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Like many of these individuals, 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 short-term, aberrant behavior in his otherwise law-abiding lifestyle.) Therefore, the presentence investigation considered him a minor participant in the drug trafficking conspiracy. Under the current guidelines, his base offense level was 34. Under the change, it would be 30, and after reduction for role, his sentence would be 7897 months, or between 7 and 8 years.
Members of the Committee, you have a most serious responsibility. I know you will consider this issue carefully. Let me offer you this last thought. There is certainly a quantity of evil afoot in the land, but there are still common people who make very stupid decisions. 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.
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.
Thank you for this opportunity to share my experience and views.
Mr. SMITH. Thank you, Judge Rosenbaum.
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STATEMENT OF WILLIAM G. OTIS, ESQ., ADJUNCT PROFESSOR OF LAW, GEORGE MASON UNIVERSITY SCHOOL OF LAW, ARLINGTON, VA
Mr. OTIS. Thank you very much, Mr. Chairman, Ranking Member Scott. It's a pleasure to appear at this
Mr. SMITH. Is the mike on?
Mr. OTIS. Did you hear that? Okay.
It's a pleasure to appear at this hearing and to appear at any hearing at which the little red light is in front of the judge and not just in front of me. [Laughter.]
I also appreciate the opportunity to talk with you about the proposed drug trafficking amendment to the guidelines that would reduce or cap sentencing for participants who qualify for a mitigating role adjustment. Because the amendment is excessive, ill-conceived, and inconsistent with the guideline's central purpose of ensuring fairness while protecting the public, it should be rejected.
The amendment before you would change the guideline establishing the base offense level for those who manufacture, import, and traffic in illegal drugs. For participants deemed minor or minimal, it would cap sentencing at level 30, no matter how many dozens or hundreds of kilograms were headed for the streets. In addition, it would add an application note effectively requiring a further decrease from two to four levels. This means that the base offense level would always be reduced to 28 at most and in some cases to 26, yielding a sentence in the lowest criminal history category of between 5 and 6 1/2 years.
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By contrast, the current maximum base offense level is 38. In the same criminal history category, and likewise adjusted four levels downward for minimal participation, that yields a sentence of roughly 14 years. The sentencing reduction this amendment would reduce is, in other words, enormous. Such a remarkable scaling back of drug sentences is unnecessary as well as excessive because the guidelines already provide ample authority for more nuanced and targeted mitigation in a case where it is truly warranted.
First, we should remember that as things stand now, a defendant can be sentenced only for the amount of drugs he actually knew about or that was reasonably foreseeable to him. This is not a gotcha system we have. Defendants are liable only for what they knew or had ample reason to know they were getting into.
Second, the judge is permitted to sentence anywhere within a range that varies by 25 percent from top to bottom. In almost three-quarters of drug trafficking cases, defendants already receive sentences at the very bottom point of their range.
Third, the judge may grant another major benefit by finding that the defendant has accepted responsibility for his crime, a finding most likely to be made, and in practice quite frequently is made, for those whose culpability was relatively minor to begin with.
Fourth, the judge has effectively unreviewable authority to reduce the sentence yet further by finding that the defendant was a minor or a minimal player.
As 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.
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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 the 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.
Finally, and to be more specific, in many such cases the defendant himself holds the key to a massive mitigation of his sentence if he is willing to assist the authorities in the investigation or prosecution of others involved. The Commission's proposed amendment, however, decreases sentences to the point that the incentive for a low-level player to help catch the bigger fish is all but decimated, particularly in light of the risks to which a cooperating defendant is exposed.
In other words, the amendment is likely to produce the twin evils of less information being furnished to investigators and fewer substantial assistance motions for those who most deserve them. With so many avenues of mitigation already built into the system, there is no occasion for an amendment that, for high quantity offenses, will brew an unappetizing beverage you might call ''legalization light.'' Defendants who involve themselves with the largest amounts of drugs will guzzle down the benefits of a free ride for exactly the excessthat excess that makes their crimes so dangerous.
Quantity has always been the driving force of the sentencing system not because the system is oblivious but precisely because it understands that quantity is the best measure of social harm.
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Today's table full of drugs is tomorrow's inventory at 100 middle schools. And just as bad, big-time dealers' recruitment of subordinates will become that much easier as word spreads in the drug world, as it will, that sentences for underlings have been eviscerated.
Be clear this is not an amendment that will reduce drugs or drug use. It will only reduce the penalties for these things, and thus create a perverse system of incentives that stands on its head the guidelines' central purpose of protecting the public.
Instead of asking the public to bear the risks to effective drug enforcement that this one-size-fits-all step toward leniency will create, perhaps it's time to ask the drug dealer to bear the risks of his own criminal choices and to do what the other 99 percent of the population has to do: Go out and get an honest job.
If he is unwilling to do even that, it's not up to the Sentencing Commission to generate more opportunities for leniency than the many the system already gives him.
[The prepared statement of Mr. Otis follows:]
PREPARED STATEMENT OF WILLIAM G. OTIS
Mr. SMITH. Thank you, Mr. Otis.
Page 58 PREV PAGE TOP OF DOC Judge Rosenbaum, let me address my first question to you, and tell me if what I'm saying is not the case.
In all 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. They're not necessarily the innocents that we might sometimes think they are, even though they are minor players. And in all but one instance of those cases that you gave, I think they were trafficking in between 50 and 150 kilos when they were convicted.
My question is this, going back to one of the examples that you gaveI think it was the example of the girlfriend, you said, 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 under any prosecution discretion that I'm aware of today. And as I say, in all these instances, the prosecutors were required to prove beyond a reasonable doubt that they knowingly were engaged in drug trafficking.
So I guess my question to you is that, the examples that you gave, these are individuals who knew what they were doing, were convicted of knowingly trafficking in drugs, and were not just innocent bystanders. Would you disagree with that statement?
Judge ROSENBAUM. It's a wonderful question and well-framed, Mr. Smith, Representative Smith, Chairman. May I touch a couple of pieces?
Mr. SMITH. Sure.
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Judge ROSENBAUM. First of all, none of them were skipping Sunday school, okay? They were all convicted of crimes that they committed. They knew what they were doing. They were, except for the 19-year-old, most of them over 21, and they understood what they were doing.
I don't think I had 150 kilos in any of the cases, but I just don't have the numbers
Mr. SMITH. I think they were allexcept for one, I think they would havegoing by the Sentencing Guidelines, I think they would have involved 50 to 150 kilos.
Judge ROSENBAUM. That may be, but on the sentencing guideline factors, because a lot of them have kickers in them for cocaine or for other chemicals that are upgraded and score.
They all did the crime that they did. In each caseand the reason I'm responding, that I raised my concernsthese were people who were not involved in the decision of the quantities that they were dealing with, and in almost every case they didn't know the quantities that they were dealing with.
If somebody says I will let you use my garage to store stuff, they don't know what's stored in it. They don't select the quantity that's stored there.
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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 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.
Mr. SMITH. Okay, thank you, Judge.
Mr. Otis, let me ask you, it seems to me that if you're knowingly convicted of trafficking or conspiring to traffic, you probably know that there's a difference betweenwhat do we have?a half a kilo here and 150 kilos, whether you're driving it, whether you've got it on your back, whether you've got it in your car, whether you're delivering it in one form or the other. What kind of a message are we sending to the individual, say, who's been convicted of a half a kilo, who's sharing a jail cell with someone convicted of 150 kilos, and they had the same sentence? What kind of message is being delivered there to the person that was trafficking in a half a kilo?
Mr. OTIS. I think the message is clear. There are a couple of messages, both of which are unfortunate. One is that you'reone is that we are going to have, in effect, just what I was saying in my testimony, legalization light.
The excess just disappears. It disappears for sentencing purposes. There is no additional penalty. That's what happens when you have a cap; it means it goes away.
The other message we're sending, a message to defendants, is that: Well, why not? Why not affiliate yourself with a big enterprise?
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The message we're sending to the big fish drug dealers is to recruit more people, because word will be out on the street that it doesn't make any difference how much you're involved with, you're just going to get sentenced for that.
Mr. SMITH. Okay, thank you, Mr. Otis.
Mr. Roth, let me go back to you. You mentioned in your testimony that, as I think we all know, the current sentencing guideline system already provides for a lesser punishment for minor players, minor participants. Given that we already have those reductions in the current system, why do we need the proposal by the Sentencing Commission?
Mr. ROTH. You're exactly correct. I mean, currently individuals, if they are qualified for the safety valveand by the way, according to our research, in those cases of level 32 or above, which is really what we're talking about here, the very large cases, about 61 percent of the individuals would qualify for the safety valve, so there would be no mandatory minimum. But in any event, you'd get a two-level reduction for the safety valve; you would get a three-level reduction for acceptance of responsibility, assuming you did sell; and you would get either a two- or four-level acceptance of responsibility for role.
So already you're talking about a significant reductionfor a minimal participant, for example, if my math is correct, that's a nine-level reduction.
Mr. SMITH. Mr. Roth, one more question before my time is up. You say in your testimony that the proposed amendment would depart from the quantity-based system Congress established when it enacted the Control Substances Act, and it will differ from the way we sentence every other type of crime, whether it is fraud, theft, or violent crime. What did you mean by that?
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Mr. ROTH. Well, for example, if you have a fraud case, the first thing that you do, because it's a quantity-based system, you would look at the fraud table and understand how much the victim lost or how much the defendant was responsible for stealing. And there would be a table just like there is on a drug table, and from that you would do the calculations, just like in thecurrently in the drug context.
Mr. SMITH. Okay, thank you, Mr. Roth.
The gentleman from Virginia, Mr. Scott, is recognized for his questions.
Mr. SCOTT. Thank you, Mr. Chairman.
Mr. Rosenbaum, regardless of whether you get the pluses or the minuses, if someone's caught up in this, does the mandatory minimum apply?
Judge ROSENBAUM. Mandatory minimums absolutely apply, and that's the reason, ultimately, if there's larger quantities or you're dealing at this moment in crack cocaine also, you kick right into the mandatory minimums under any circumstance.
Mr. SCOTT. Is proof of the amount required? If you know you've got some drugs and then they weight it, did you have to know it was 150 as opposed to 10 or whatever they had stored in yourif you knew they were storing some drugs, you didn't know how much, do you have toyou get caught with 150, but you only though it was 10.
Page 63 PREV PAGE TOP OF DOC Judge ROSENBAUM. Basically, as I understand it right now, it is quantity driven, and they look at what they call real offense conduct. They consider all of it that's reasonably foreseeable.
Mr. SCOTT. Well
Judge ROSENBAUM. I guess if you have a garage, a great deal of material is reasonably foreseeable.
Mr. SCOTT. The way I understand they add these up, if you were transporting the half, and your buddy is transporting 150, 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 makes the profits, regardless of which one is transporting it.
Mr. SCOTT. So everybody gets sentenced the same?
Judge ROSENBAUM. Yes, sir.
Mr. SCOTT. Can the prosecutor challenge the mitigating role of designation?
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Judge ROSENBAUM. Only when they're breathing oxygen. [Laughter.]
Mr. SCOTT. And so even if there is a mitigating role reduction, the kingpin and the mule are going to be getting the samesubject to the same mandatory minimum?
Judge ROSENBAUM. Let me be fair, Mr. Otis was also correct. It is addressed to the sound discretion of the court. But I think you get a picture of the fact that the judges actually understand that this discretion matters when 6 percent of criminal defendants, basically maybe two a year, in my case, wouldand I do criminal cases and drug cases every day. Maybe one, maybe two a year are getting the minor or minimal roles. But that is because, basically, we do take a look at what people are really doing. These are the small ones; these are unusual.
Mr. SCOTT. And in real life, we're tryingI suppose the point of all this is to reduce supply. Is there any meaningful reduction in supply by taking somebody off the street corner who is aor a mule, and giving them 1, 5, 10 or 20 years? Is there any meaningful reduction in supply based on the differential number of years they may get?
Judge ROSENBAUM. Congressman Scott, I am never and am not now in favor of anything like legalization. But you know, and so does everyone else here, that the quantity is up, the purity is up, and the prices are down. Whatever we're doing, that's the net result. And I'll leave it to the economists to tell you what the deterrent effect is.
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Mr. SCOTT. Well, not only deterrent effect, but I mean the effect. I mean, if you take somebodyeliminate one mule, is not the mule going to be replaced the next day in that operation?
Judge ROSENBAUM. They are fungible.
Mr. SCOTT. Now, if you get a kingpin, you might be doing something. We're talking about minimal roles.
In just an overall scheme of things, one of the things that the Sentencing Commissionthat's just Commission. One of the things that the Sentencing Commission is supposed to do is to add some rationality to sentencing, so things of reasonably similar culpability get reasonably similar sentences.
What kind of crimes get you 10 years to serve?
Mr. TETZLAFF. Well, first of all, the most serious, Representative Scott, obviously are those that require a mandatory minimum. I think the Commission is
Mr. SCOTT. Outside of drugs, what do you have to go to get 10 years to serve? Murder? What do you get for murder?
Mr. TETZLAFF. Well, you can getyes, 30 or life, and sometimes
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Mr. SCOTT. You can get life. I mean, what forfor just one run of thewhat's the mandatory minimum for murder?
Mr. TETZLAFF. I don't know as there is any mandatory minimum for
Mr. SCOTT. You shoot somebody in a bar, what are you going to probably serve?
Mr. TETZLAFF [continuing]. Other than if you said it's either life or a death sentence.
Mr. SCOTT. What's the mandatory minimum?
Mr. TETZLAFF. For?
Mr. SCOTT. Murder.
Mr. TETZLAFF. Murder? I would say life.
Mr. SCOTT. Mandatory minimum?
Mr. TETZLAFF. In other words
Page 67 PREV PAGE TOP OF DOC Mr. SCOTT. Is there a mandatory minimum for lifefor murder?
Mr. TETZLAFF. I'm shown here that for second degree, murder it is 135 to 168 months, under the guidelines. But, of course, certain types of
Mr. SCOTT. That's about what we're talking about. The same kind of range we're talking about, that a mule gets about the same as somebody who will shoot somebody in a bar.
Mr. TETZLAFF. Yes.
Mr. SCOTT. Anything involved in Enron, with all the fraud involved in that, is anybody likely to serve as much as 10 years, after all the shooting is over? With the multimillion dollars, billions of dollars worth of fraud that went on in there, anybody likely to serve the 10 years that a mule might have to serve?
Mr. TETZLAFF. Probably not.
Mr. SCOTT. Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Scott. Are there any other Members who have questions for our witnesses?
And if not, thank you all for being present. Thank you for your testimony. And thank you for your suggestions as well. We appreciate them all.
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We're going to move to a markup of this bill. You're welcome to remain in the audience, if you'd like to, or leave. We'll give you a couple of minutes to decide.
Thank you all again.
And the Subcommittee is adjourned.
[Whereupon, at 5:04 p.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
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(Footnote 1 return)
See the Act to Throttle the Criminal Use of Guns, Pub. L. 105386 (1999)
(Footnote 2 return)
USSC, 1995 Special Report to Congress: Cocaine and Federal Sentencing Policy (as directed by section 2800006 of Public Law 103322) (Feb. 1995).
(Footnote 3 return)
See Pub. L. 99570, 100 Stat. 3207 (1986).
(Footnote 4 return)
See Pub. L. 10438, 109 Stat. 334 (1995).
(Footnote 5 return)
That amendment, among other things, would have equalized the quantity-based sentencing guideline penalties for crack cocaine offenses with the sentencing guideline penalties for powder cocaine offenses.
(Footnote 6 return)
USSG §3B1.2 (Mitigating Role), comment. (n. 3).