 You're watching FJTN, the Federal Judicial Television Network. I think all of us recognize that the act is significant and the issues that the Commission faces are significant. It goes without saying at this point that both the Department and key members of Congress have been very concerned for some time about the increasing number of non-substantial assistance downward departures. What the Protect Act is doing is saying judges can exercise a discretion, but we want to know why we want the Commission to justify these reasons. It didn't change the fundamental or guiding principles of the guideline. Hello and welcome to Sentencing and Guidelines 2003 Amendments. This is the eighth program in a series for Sentencing and Guidelines that the U.S. Sentencing Commission does in collaboration with the Federal Judicial Center. I'm Krista Rubin, Senior Education and Sentencing Practice Specialist for the U.S. Sentencing Commission. Today we're going to focus on the 2003 Amendments. As you already know, it's been a very busy year as far as amendments are concerned. It started in January of this year. The Commission responded to directives contained in the Sarbanes-Oxley legislation and the Campaign Finance Reform Act legislation. Then as the year progressed, the President signed the Protect Act and we got three new sets of amendments as a result of that Protect Act legislation. And then finally, on November the 1st of this year, our regular cycle amendments took effect. And we're going to be talking about all of those things today. But before we get into the meat of the program, I'd like to talk a little bit about some housekeeping items and also describe the format of the program to you. As far as housekeeping items are concerned, I'd like to remind you that this program does not have push-to-talk capability and we also will not be accepting facts and questions of any kind. The other thing I want to point out to you is that the DCN site provides some links to the U.S. Sentencing Commission's website where you can find materials regarding these 2003 Amendments, including our Federal Sentencing Guidelines Manual for this year. Also, this broadcast has been approved for CLE credits in certain jurisdictions, so please be sure to check the DCN site if you need further information regarding CLE credits. As for the format of the program, we're going to start our discussion today with our General Counsel for the U.S. Sentencing Commission, Charles Tetzloff. He's going to be talking to Rachel Pierce, Education and Sentencing Practice Specialist with the U.S. Sentencing Commission. So since we have a lot to cover today, we're going to jump right into our panel discussion and I'm going to turn it over to Rachel. Thank you, Krista, and thank you, Charlie, for joining us today. Pleasure. Why don't we just go ahead and get started by talking generally about the Protect Act? Can you tell us basically what it is and how did the legislation come about? The Protect Act was an amendment to another piece of legislation, the Amber Alert legislation, which was passed by Congress in the spring of this year. Representative Feeney made an amendment to the Amber Alert legislation, which is referred to now as the Protect Act, and that was a multifaceted amendment which covered a number of issues. First, I suppose primarily it dealt with child sex offenses and child pornography in the sense that it increased the penalties for a number of those offenses. It both raised the statutory maximum penalties and added or increased some of the mandatory minimum penalties which were applicable to child sex offenses. Secondly, the Protect Act dealt with an area that Congress had been concerned with for a period of time which was non-substantial assistance departures. I think Congress was concerned both with respect to the number of departures and the increasing rate of those non-substantial assistance downward departures. One of the things the Protect Act did was to actually make changes in the sentencing guidelines with respect to those downward departures as they related to child sex offenses. With respect to other downward departures, it directed the sentencing commission to review downward departures and to make amendments with an eye towards ensuring that the frequency of downward departures was reduced. And the Congress gave the commission 180 days to accomplish that review and make those amendments. In addition, it froze the commission from making further downward departures for a two-year period. In other words, the commission was prohibited from establishing any new downward departures until May 1, 2005. In the area of appeals, the law prior to the Protect Act had been determined by the Coon case. And basically that standard was a due deference standard that the appeal court would give to the trial court. And it was an abuse of discretion standard. The Protect Act changed that and basically established a de novo review standard. And I'm generalizing a little bit because there are some specifics that would have to be distinguished. Another thing they did in the area of appeals was to require that if a case or a sentencing is appealed and then it is remanded to the trial court, that the trial court on resendencing could not establish a new departure that had not been addressed at the time of the first sentencing and approved in the course of the appeal. The Protect Act made some other direct amendments to the guidelines. For instance, in the area of acceptance of responsibility, it made a direct change in the guidelines to require for the third point for acceptance that can only be made by way of a government motion. And it can only be based on the making of a timely guilty plea on the part of the defendant. The Congress also established or actually directed the sentencing commission to come up with a downward departure up to four levels for an early disposition program, what was commonly referred to as fast track. That's a provision that existed primarily in the southwest border states to provide, because of their heavy caseloads, particularly in the area of immigration, to give a benefit to defendants who made early pleas or perhaps waived certain appeal rights or waived deportation hearings. And last but not least, the Protect Act made provisions for improved data collection. And basically it provides that each chief judge in each district is required within 30 days of the date of a judgment to provide a report of sentencing to the commission, including documents underlying that sentencing, such as the charging document, the indictment or information, a plea agreement if any, the judgment and conviction statement of reasons, and the pre-sentence report. And any other documents that the commission might require, an example of that would be if there was a revision to the sentencing under a Rule 35B proceeding. That's in a general overview of what the Protect Act did. Now, can you tell us when did the Protect Act go into effect and did all of the Protect Act go into effect at one time or did portions of it, was it staggered or give us a timeline if you would? Well, generally the Protect Act went into effect on April 30th of this year. There were some other key dates. For example, some of the amendments that the Protect Act made directly to the guidelines were effective when the Protect Act became effective, which was that April 30th date. There were other dates, however, an example would be in the kidnapping area. And there were direct amendments made to the guidelines increasing the penalties for kidnapping, but that did not take effect until 30 days from April 30th or May 30th. And then finally, the other significant date is October 27th, which was the date that the guideline amendments that the Sentencing Commission made in furtherance of the directive to review the downward departures that has been implemented and is now in effect as of October 27th. Okay. Let's talk a little bit further about this directive that you mentioned to review departures. The Protect Act gave the Commission 180 days to look at departures in general. Can you tell us some of the things that the Commission did during that 180 days in order to respond to that directive? Well, the Commission did a lot in the sense that under its normal amendment cycle, the Commission does such things as seeks public comment on proposed amendments. Many times they will hold public hearings. And of course, the staff and the Commission have numerous working sessions together to hammer out amendments. And they followed the same course for this emergency amendment having to do with departures. But it was, of course, on a telescope frame, a time frame. But they nevertheless did seek input from the public, particularly the various segments of the criminal justice community, being the judiciary, the probation officers, defense and prosecution. In addition, it held at least two public hearings, and I think you saw that on the opening segment, where you had judges and defense lawyers and prosecutors all testifying to the Commission. And then finally, there was some intensive staff work and working sessions with the Commission to meet the deadline that Congress had set. I believe that there's been quite a comprehensive report that the departures working group, if you will, has presented to Congress. Could you tell us a little bit about that? Yes, that was included. That was not part of the directive from Congress, but it was something that the Commission felt was appropriate. One of the things that is relevant in that report is that one of the reasons Congress was concerned with downward departures was that they were relying on an 18% departure rate. And in the review that the Commission did, which included a number of reviews of individual cases, and the result of that was it was determined that a number of these departures that were included in the 18% were really initiated by the government, and the biggest example was in the area of the early disposition program or fast track. And if you took those cases out of the mix, you would end up with a little over 10% downward departure rate. And again, when I say downward departure, I mean non-substantial assistance downward departures. So I think that's one of the interesting things that can be pulled out of the report, but I commend that report to our viewers as being quite enlightening. So at the end of this 180 days and the public hearing and all of the work that the Commission did regarding looking into departures, the Commission promulgated some new amendments to change departures in general. Can you tell us a little bit of detail about what is contained in the October 27th amendments? Yeah, I don't know how much detail you want, but the Commission did in their review of downward departures conclude that some of them were inappropriate and indeed ended up prohibiting a number of departures in a number of areas. An example would be, for instance, a downward departure for acceptance of responsibility is prohibited. I think on the theory that there is already a provision made for that, so that would be inappropriate. And there are a number of other downward departures that the Commission has now prohibited. In addition, the Commission, I would say, restricted or perhaps tightened a number of departures in a number of other areas. Criminal history is an example. I think if our viewers in what you and Krista are going to review later in more detail, you will see that in the area of criminal history there are restrictions and a tightening of that departure. And similar examples can be given in the area of family ties and diminished capacity. The other thing the Commission did in their emergency amendments is to establish an early disposition program in accordance with the directive that Congress gave it, so that now there is a provision for a downward departure in accordance or in furtherance of an early disposition program which has been approved by the U.S. Attorney and the Attorney General of up to four levels. And lastly, I think there is a general overview that the Commission intends downward departures to be what I think they have described as rare and exceptional. That's right. And you are right. Krista and I will go over some of that in greater detail later in the broadcast. Now, you also mentioned at the beginning of our discussion that the Protect Act changed some things regarding data collection and reporting requirements. Can you tell us what the Commission may be doing in an effort to make these requirements a little bit easier on the courts? Yes. I indicated what the Chief Judges are now required to do and when those documents come into the Commission, there is a provision whereby should either the Judiciary Committees of either the House of the Senate request copies of those documents, the Commission is obligated to provide those. But I think the Commission was very sensitive to any additional requirements being imposed on the Judiciary from the perspective of the resources that that takes and the time that that takes away from that which the Judges do on a day-to-day basis. So what has happened is the Commission has met with the Criminal Law Committee of the Judicial Conference and they are in the process of revising some of the forms, particularly the JNC and the Statement of Reasons. One of the things Congress required was for the sentencing judge to state with specificity any reason he or she has with respect to the giving of a downward departure. And the hope is that in the revising of these forms we'll be able to set out some blocks that the sentencing judge can check and hopefully save some of his or her time just by checking the block which will represent a particular reason for a particular sentence. Well we have talked about a lot of changes as a result of the Protect Act and inevitably when we have changes such as this there are always questions about ex post facto. Can you comment on any possible ex post facto issues that may arise as a result of the Protect Act? That's a difficult question. The Office of General Counsel certainly tries not to give legal advice and take positions on particular issues. What I can say is that I think it is a reasonable position to take is that ex post facto issues may well be presented arising out of the Protect Act. I think that it will be incumbent on the prosecutors and the defense counsel to raise and identify these issues and of course on the judiciary to resolve them and they may have to work their way through the appellate system before those get worked out. But I think it would be very difficult for us to identify each and every issue that may be subject to ex post facto consideration and those that will not. I think that's going to have to be done in a case by case basis. As there have been a number of amendments in response to the Protect Act the commission has done a lot of work in this area. Is the commission finished with the work or are they still looking at the Protect Act? What does the future look like in regards to that? They certainly are not finished. The commission has made very clear first of all a little bit of their frustration in the very short time frame they were given by Congress to accomplish what Congress asked the commission to do. However they did their job and but secondly the commission made very clear that they are not through on reviewing and analyzing the issue of downward departures. Probably a good example of that is in the area of early disposition program. I think they will continue to look at that particular issue and there are a number of other downward departure areas whether it be criminal history or aberrant behavior that I'm sure the commission will continue to examine. And I might add would be receptive to any views of the field on any of those issues because as we go forward the commission is always receptive to how things are working in the field and they want to hear from the field if there are problems. That's right, that's right. Well is there anything in closing with our discussion that is that you'd like to add or any other points that you'd like to make? I think the only thing I would underscore is to encourage the judges who are stating as the statute says with specificity their reasons for a particular sentence and particularly their reasons for a departure. It will be extremely helpful to the commission to receive as detailed and succinct a description of the reasons for a particular departure but perhaps equally or more importantly it will be helpful to the judiciary to make clear what the reason for a particular departure is and particularly if there is a let's say the reason is a government motion or a government plea agreement that should be made clear and then it will help us to have as accurate data as we can. Well again, thank you for joining us today. We truly appreciate your comments and your insight. It's been a real pleasure. Thank you. For the remainder of the program I will be joining Krista at the podium and we will talk more specifically about some of the issues that Charlie and I have already discussed as well as some of the other 2003 amendments. But before that we're going to take a five minute break and we'll see you back in five minutes. And welcome back. Thanks for joining us. As you can see Rachel has joined me here at the podium and we're going to spend the rest of today's broadcast talking specifically about the amendment changes over the past year. It was a great discussion that you had with Charlie which gave us a good introduction to the Protect Act and we're going to start off our afternoon actually by talking about all the Protect Act amendments. First the April 30th amendments, the kidnapping amendment on May the 30th, the departures amendments on October the 27th and then we're going to move into our regular cycle amendments and talk about those that took effect on November the first of this year. So that's a lot of information. And so we're going to start out with the Protect Act and as we learned from the discussion earlier the main focus of the Protect Act deals with sanctioning for child sex crimes and offenses against children. So the majority of the amendments we're going to be speaking about in regards to the Protect Act do discuss or do deal with these child sex crimes. However there was a few amendments as Charlie mentioned when he was talking to you in the discussion that don't necessarily deal with child sex crime offenses. And the first one we're going to talk about regarding the April 30th amendments is one of those and it deals with guideline 3E1.1 which is the guideline for acceptance of responsibility. And what the Protect Act did was directly amend this guideline 3E1.1 and provided that the additional one level reduction is available only upon motion of the government. Prior to this amendment taking effect on April the 30th this one level reduction was based on timely notification of a guilty plea and complete and truthful information. However, in fact of April 30th of this year complete and truthful information is no longer a basis for receiving this additional one level reduction under 3E1.1. Now I want to remind you that in order to get this additional one level reduction the defendant must have an offense level of 16 or greater. And of course the defendant must qualify for the two level reduction under 3E1.1A. So that's our introduction to the Protect Act and the amendments there. But we're going to move on and start talking about the changes in the areas of child sex crimes and kidnapping against minors. And there was changes to both the statute and the guidelines. That's right. We're going to start off Krista with the changes in the statute relative to sex crime offenses. And then Krista will move on with what sort of changes you're going to see in the guidelines. As far as statutory penalties are concerned the first thing you're going to see is that a number of maximum penalties are going to be increased for certain types of child sex crime offenses. Crimes such as pornography, traveling, interstate with intent to engage in sexual activity with a minor, those types of offenses. You'll also see some minimum penalties that have been added for certain offenses. For example, kidnapping of a minor now carries a 20-year mandatory minimum penalty. There are additional changes regarding supervised release. The courts are now able to keep a sex offender on supervised release for any term of life, any term of years, excuse me, or life if the court so chooses. Additionally, there's no statute of limitations for child abduction or sex crimes. And no pre-trial release for charges of child rape or child abduction. Finally, in reference to the statute, there is a provision for what is basically known as two-strikes you're out. And this provides for mandatory life imprisonment for sex offenders in which the instant offense is a sex offense against a minor and the defendant has one prior similar offense. So very important statutory changes that you need to be aware of. Christa, why don't you get us started with the changes to the guidelines that we'll see as a result of the protect act? Absolutely. Again, there were some direct amendments made to the sentencing guidelines as a result of the protect act. And specifically on April 30th, Congress amended the guideline 2G 2.2 that deals with the trafficking and receipt of child pornography. And what Congress did in this instance was they added a specific offense characteristic based on the number of images involved in these types of offenses. As you can see from the slide, there's a potential of up to a five-level increase under guideline 2G 2.2 for offenses that would involve 600 or more images. Additionally, Congress directly amended guideline 2G 2.4, which is the guideline that deals with possession of child pornography. The specific offense characteristic for the number of images that we just saw added to 2G 2.2 has also been added to 2G 2.4. Additionally, another specific offense characteristic was added if the pornography involved in the offense involved any sadistic, masochistic or violent conduct. So Congress has added that specific offense characteristic. That four-level increase is already included in guideline 2G 2.2. So Congress simply added that to the possession guideline at 2G 2.4. Now, one thing that I do want to mention about the images specific offense characteristic is that there currently is no definition of image. So there may be some situations where the courts are going to be deciding on what constitutes an image. For example, if I take a photograph of a room full of 10 people, some people may ask if that is one image or if that represents 10 separate images because there are 10 individuals in the picture. Additionally, when you have offenses that involve AVI files or video, some people have asked whether each individual section of the AVI file, each individual clip, if that constitutes an image in and of itself. Also, there may be some issues dealing with computer generated images, morphed pictures, and whether they constitute images as well. So hopefully we'll hear some more about that as the time goes on. One other guideline change I do want to mention before I turn it back over to Rachel is a change that Congress made to guideline 4B 1.5. And this guideline deals with repeat and dangerous sex offenders against minors. This guideline operates very much like a career fender guideline in that it's a criminal history override. This guideline has been changed to say that a pattern of activity includes two separate occasions of prohibited sexual conduct with only one minor. Now prior to this change, this guideline required two separate occasions of prohibited sexual conduct involving two different minors. But Congress changed that directly and now it only involves one minor. So anyone who has abused a child more than once potentially could be subject to this enhancement under 4B 1.5B. Now I'm going to talk briefly about child sex crimes and downward departures. As we've seen from our discussion thus far, the Protect Act focused primarily on child sexual crimes, crimes against children involving sexual exploitation and that sort of things. Also focused very heavily on downward departures and specifically in the area of child sex crimes. You're going to see changes to the statute and to the guideline manual as well. So the downward departures are only available in cases of substantial assistance where the defendant is cooperating with the government and providing substantial assistance or other limited mitigating circumstances that you are going to find only in Chapter 5 Part K of the guideline manual. You're going to be focusing only in this portion of the guideline manual for permissible circumstances for downward departures in child sex crime cases. Any of those circumstances that are listed only again as I said in Chapter 5 Part K that are not adequately taken into consideration by the guidelines and that should result in a different sentence are going to be the circumstances that the court can look at. Reiterating that any other mitigating circumstance found elsewhere in the guideline cannot be used as a basis for downward departure in a child sex crime case. Those of you who are familiar with departures and departure lingo in general, you may be aware that there are other departure grounds in Chapter 2 commentary for example in application notes in the background commentary sometimes. Adequacy of criminal history in Chapter 4 is another reason for downward departure. These are off limits now to the courts for purposes of downwardly departing in child sex crime cases. So it's important to keep in mind that we're really focusing on Chapter 5 Part K. But there are some other interesting things that have kind of happened in Chapter 5 Part K. We have a new permissible circumstance for departure. Why don't you tell us a little bit about that Kristen? Absolutely. What Congress did in this instance basically was to remove or take some language from Chapter 5 Part H which is the language dealing with departures in the area of specific offender characteristics and they move those into a new guideline at 5K 2.22. And this new guideline provides that in instances where a court would potentially downward depart in a child sex crime case, age which is at 5H 1.1 and extraordinary physical impairment at 5H 1.4 are permissible grounds for downward departures in child sex crime cases. What is not permitted as grounds for downward departure which is contained in this new guideline is drug, alcohol, or gambling dependence or abuse. So the Congress has made those specific changes at guideline 5K 2.22, this new policy statement found in Chapter 5 Part K. Additionally, Congress has limited the circumstances available in Chapter 5 Part K for downward departures in child sex crime offenses. There are two instances that cannot be used and are not permissible for downward departures in child sex crimes and those are aberrant behavior found at 5K 2.20 and also diminished capacity which is at 5K 2.13. So just to emphasize, those are not going to be able to be used for downward departures in child sex crime cases. Congress also gave the Commission a directive regarding downward departures in general and this was something that Charlie mentioned earlier in the broadcast today and that is that the Commission is not able to add any additional grounds for downward departures to Chapter 5 Part K on or before May 1st of 2005. So we will not be adding any additional factors or circumstances in that section for another couple of years. That's right. You know, we've talked about the April 30th amendments. We've covered the statutory changes. We've talked about the changes to trafficking and receipt of child pornography, possession of child pornography, the changes in the departure language and the guidelines manual and that pretty much wraps up the April 30th changes. Why don't you tell us about the May 30th changes? Okay, well effective May 30th there was really only one amendment or one set of amendments that went into effect and that was in relation to kidnapping. As we've stated already, the Protect Act was very focused on child sex crimes and crimes against children. So as a response to that, there were some changes made to the kidnapping guideline. The first thing you're going to see at the kidnapping guideline at 2A4.1 is the base offense level increase from 24 to 32 and in this of course is to reflect the increase in the statutory penalty that I mentioned earlier and now that kidnapping has a mandatory minimum of 20 years. For those kidnap minors. For kidnapping minors, right. So in addition to this, what you're going to see is some changes for the specific offense characteristics. We have a deletion of the one level reduction for releasing a victim before 24 hours had elapsed and an increase, a sixth level increase, formerly a three level increase, if the victim was sexually exploited. Again, dovetailing with the concerns raised by the Protect Act regarding the exploitation of sexual exploitation of children. So we've covered the April 30th amendments. We covered the one May 30th amendment. Let's go on to talk a little bit about the October 27th amendments and then of course we'll move to the November 1st. But let's get started. Why don't you get us started with the October 27th, Krista? Sure. And then we heard a lot about these October 27th amendments in your discussion with Charlie. We heard about the 180 day period of review and these changes that we're going to go through now reflect all the work of the commission during that 180 day period. And these are the changes that the commission made to the guidelines in order to respond to the directive to substantially reduce the instances of non-substantial assistance downward departures. So the first thing that the commission did was they went into Chapter 5, Part K and elsewhere in the guidelines manual that deals with departures and they tried to tighten up the language in order to emphasize that departures should be rare and exceptional, as Charlie said this morning. But one thing you need to become familiar with are some new terms that you'll see in the guidelines manual. You know, in the past, before this amendment was passed on October the 27th, when we talked about departures we would be talking about factors for departures, extraordinary factors for departures, things that were forbidden in the area of departures and also departures for combination of factors. However, now in the guidelines manual you are going to be seeing these new terms. Instead of factors you will see circumstances. Exceptional is a new term that you will see very often in 5K 2.0. Prohibited is the term that's going to be used now, as well as multiple circumstances instead of combination of factors. So we're all going to have to get a little bit more familiar with this language change in the manual. And again, this is just to emphasize and tighten up the language in order to comply with the directive from Congress that there needs to be a substantial reduction in the use of non-substantial assistance downward departures. Also regarding the departures in 5K 2.0 with the exception of commission identified departure circumstances, all departures must be both rare and exceptional. So you can see just how serious the commission was in responding to Congress's directive to us to reduce those downward departures. So now we're talking about circumstances that can possibly be used, but they must be rare and exceptional. The commission went one step farther. They didn't just tighten up the language regarding departures. They did some other things also. You're absolutely right. And Charlie did touch on this in our discussion in that there were certain circumstances that the commission did outright prohibit as reasons for downward departure. And these really came from the study of looking at the different cases, when the departure team was looking at the different cases and the reasons that the courts were departing, and making an assessment at that point that certain circumstances that the courts were using for departure were no longer going to be acceptable. For example, acceptance of responsibility or aggravating or mitigating role. Sometimes characterized as super acceptance of responsibility or super aggravating or super mitigating role. The commission has decided that these are no longer permissible reasons for departure. A plea of guilty or a plea agreement in and of itself is no longer a permissible circumstance for departure. One of the things that we learned at the commission in looking at departures is that one of the biggest reasons for departure was pursuant to a plea agreement. And really no other reason to elaborate on that was given in a number of these cases. And so pursuant to a plea agreement the commission didn't feel was an adequate reason for departure and therefore required that a plea agreement in and of itself or a plea of guilty would not be a permissible reason for departure. Another reason that some courts were departing is if the defendant paid his restitution either in full or early as those of you who deal with a lot of these defendants know a lot of these defendants are not capable of paying restitution. So some courts were departing on the basis of defendants paying their restitution often and early sometimes you hear them say. The commission has decided that this is no longer an acceptable circumstance for downward departure and of course any other circumstance that is specifically prohibited. An example of another specifically prohibited circumstance you'll find at chapter 5 part H specifically 5H 1.4. Now Christy you mentioned earlier that gambling addiction was specifically prohibited for defendants involved in child sex crimes and the commission really felt that a gambling addiction is really never a good reason for departure and so it's been added as a new prohibited circumstance. I've talked about prohibited circumstances and there are other areas that the commission really just sort of went into the guideline manual and tightened up the language a little bit and one of the areas that you'll find this is adequacy of criminal history at 4A 1.3. The language here now is going to prohibit a departure below a criminal history category of one. In looking at these cases we were seeing that what some courts were doing was departing below criminal history category of one really by just taking offense levels off of the defendant's offense level calculation because there's really no way to depart below an offense category or a criminal history category of one. Also in criminal history downward departures, we've restricted downward departures for career fender to only one criminal history category. Some courts were departing two levels down to a criminal history category of four. The majority of the courts however were only departing one level and so keeping that in mind the commission felt like that really only a departure of one level down to a criminal history category of five would be appropriate for a defendant who qualifies as a career offender. In addition, some prohibitions on downwardly departing for armed career criminal. The courts can not at all depart if a defendant qualifies as an armed career criminal and additionally cannot depart if the defendant is a repeat and dangerous sex offender as characterized by 4B 1.5. Again dovetailing with the concerns that are raised in the Protect Act. Yeah, so following with that theme, Rachel you've talked about some prohibitions that are at 5K 2.0. You mentioned the restrictions on the adequacy of criminal history category departure and there are other restrictions and stricter standards let's say in a number of departure circumstances that are found in Chapter 5. So let's take a look at this slide which talks about the guidelines or policy statements that are requiring that have further requirements and or restrictions for downward departures. The first guideline we're going to talk about is Family Ties and Responsibilities which is found at 5H 1.6 and what the commission has done in this instance is provide some additional language in the guideline itself as well as language in the application notes following the guideline to give the court some guidance as to what should be considered in an instance where perhaps potentially a downward departure based on Family Ties and Responsibilities could be granted by the court. There's specific instruction to the court to look at the impact of the defendant's imprisonment upon the financial, if there's a financial burden on the family. The guideline requires that to look at the involvement of the defendant if anybody in this family was involved in the offense. So there's some good language in 5H 1.6 that's really going to guide the courts. Victim conduct at 5K 2.10 also has some additional language that tightens up the use of this particular provision of the guidelines for a downward departure and that is that the courts are going to look at how the victim's conduct impacted on the defendant's commission of the offense, what impact it had and the departure should be proportionate to that. Similarly with coercion and duress at 5K 2.12 how much the coercion really pushed the defendant to get involved in the offense. There's again this sort of proportionality or looking at how the coercion and duress involved the defendant in committing a particular offense. So that's an area the court may look to for a downward departure. And finally diminished capacity at 5K 2.13 there's some more language in that guideline as well that deals with specifically how much the diminished capacity affected the involvement of the defendant in the offense. So you see some sort of proportionality arguments as far as victims' conduct, coercion and duress or diminished capacity and how that impacted on the defendant's involvement in the incident offense. So there's some strict, there's some more strict standards there found in those particular provisions. Another area of downward departures that has been revised as a result of these October 27th amendments is in the area of aberrant behavior which is found at guideline 5K 2.20. Requirements and prohibitions have been expanded under this provision. For example, serious drug trafficking offense, if a defendant is convicted of a serious drug trafficking offense, they're prohibited from receiving a downward departure under this particular provision at 5K 2.20 and this includes mandatory minimum cases even if the safety valve applies. Additionally, there's also a limitation on the past criminal behavior of a particular defendant and what the commission has done in this instance is to say that if a defendant has more than one criminal history point or otherwise has a serious prior incident of criminal behavior in his or her past that they are precluded from receiving a downward departure under this section of aberrant behavior. And the commission has defined that in the guideline and the application notes. So take a look at 5K 2.20 for further information regarding aberrant behavior. Also, we've often heard about departures for based on a combination of factors prior to our amendment change of October the 27th. Now as I mentioned a little bit earlier, these departures actually involve multiple circumstances and the commission has provided some guidance at guideline 5K 2.0 regarding these particular offenses. When we take a look at 5K 2.0 C a case where no single characteristic is sufficient to provide the basis for a departure but where there are multiple circumstances that taken together make the case exceptional it's possible that the courts may look to 5K 2.0 and do a departure based on multiple circumstances. But in addition 5K 2.0 also says that in a departure for multiple circumstances each circumstance must be present to a substantial degree and that each so that standing alone each circumstance must be present to a substantial degree and additionally each circumstance must be identified in the guidelines as a permissible ground for a departure. So that is to say that if that circumstance is not listed in our guidelines manual that circumstance cannot be included for a downward departure based on multiple circumstances. They can be commission identified circumstances only and they must be present to a substantial degree alone and then taken as a whole make the case exceptional. So there's some changes there at 5K 2.0. One thing I do want to mention about guideline 5K 2.0 is that you really need to get yourselves familiar with all of the language that's in that guideline now. This guideline really functions as an overview of how departures work under the guideline system at this point. And so it's going to be really important for you to get familiar with all the provisions at 5K 2.0 and learn about the different circumstances the rare and exceptional qualitative and quantitative qualifiers for departures. So I just want to suggest to everyone to take a good look at 5K 2.0 which will give you some guidance as to these new October 27th amendments. That's absolutely right. You've got to become real familiar. The courts are going to have to become familiar with the terminology and what circumstances are permissible and which ones have now been prohibited for the courts to use. And the buzzword as Charlie left us with at the end of his discussion is going to be specificity. And the courts have to be specific in providing their reasons for departure. The Protect Act requires that the courts give specific reasons for departure in the written judgment and commitment order. General mitigating circumstances which is the reason that we found a lot without anything else will not be a sufficient reason for departure anymore. And so I don't think we can reiterate enough specificity. The buzzword is specificity. We have to be specific. The courts have to be specific with their reasons for departure. Now the last thing I want to touch on before we actually move into the November 1st, 2003 amendments is this fast track departure. Charlie also talked a bit about this in our discussion earlier today. We'll look at the early disposition departure or the fast track departure as it's commonly called. The new departure provision is found at 5K 3.1. And this applies only for a program that is authorized by the attorney general and the U.S. attorney in the particular district that is promulgating this early disposition program. It requires a motion from the government and it allows the court to depart but not more than four levels in an early disposition program case. Now we were seeing these as Charlie talked about earlier I think in a lot of immigration cases and some districts have been doing this for a number of years and what the commission has done in response to the Protect Act is really just memorialized what a lot of circuits have already been doing and placed some restrictions on it in that we can only depart four levels. The requirement that the motion come from the government I think was something that has been the courts have been doing. And this particular amendment at 5K 3.1, this new policy statement addresses the other directive that was given to the commission for the October 27th amendments. So not only was the commission charged with substantially limiting the number of downward departures but at the same time memorializing these early disposition programs which as Charlie mentioned is probably one of the highest or the most frequently used reason for downward departure as we saw in our departure report. So you can see the commission has complied with both of those directives there. Okay so now we've talked about, we're keeping a running list we've talked about the April 30th amendments as a result of the Protect Act we talked about the kidnapping amendment on May the 30th also as a result of the Protect Act and we finished up our discussion of the Protect Act by talking about the amendments effective on October the 27th. Well now we're going to be moving into our regular cycle amendments the amendments that as you know go into effect every year on November the 1st and the cycle that the commission follows as far as the amendments go is to submit the proposed amendments on May 1st to the Congress and absent any action from Congress these amendments take effect on November the 1st every year. Sometimes however there are instances where Congress will give us particular directives with emergency amendment authority and in those particular cases the commission makes amendments during different times of the year and I sort of mentioned this in our opening that really our amendments began this year on January the 25th we first saw amendments to the sentencing guidelines as a result of the Sarbanes-Oxley Act and the Campaign Finance Reform Act and both of these contained emergency authority before the commission and so amendments took effect on January the 25th. Now whenever we have emergency authority to make amendments the commission needs to repromulgate these amendments to make them permanent and what that means is we send these amendments back to Congress during our regular amendment cycle we send them on May the 1st and they are then absent any action from Congress they take effect on November the 1st and so some of the amendments that we deal with under emergency authority sometimes are modified in the interim. One of those amendments one of the amendments that we did in January meaning the Sarbanes-Oxley Act amendments they've been modified in their repromulgation the Campaign Reform Amendment there's a new guideline at 2C1.8 that remains the same from the emergency amendment that you all saw on January the 25th but we're going to start now by talking about the Sarbanes-Oxley amendment and the majority of the amendment happens in guideline 2B1.1 there's a base offense level of 7 now as an alternative to a base offense level of 6 if the defendant is convicted of an offense with a statutory maximum of 20 years or higher this base offense level is only available to defendants who get to guideline 2B1.1 by going through 1B1.2 1B1.2 is a general provision found in Chapter 1 that basically tells the courts how to apply or how to find the sentencing guideline so if they're going directly to 2B1.1 from your offensive conviction or from Appendix A potentially a base offense level of 7 would apply if the statutory maximum is 20 years or greater this would not apply this alternative base offense level would not apply in an instance where a defendant is cross-referenced from another guideline for example if someone is a felon in possession and for some reason cross-referenced over to 2B1.1 when you're replying the guideline 2B1.1 in that instance the alternative base offense level of 7 would not be applied in addition there are some specific offense characteristics that were added as a result of the Sarbanes-Oxley Act one of those deals with the endangering the solvency and security of a large number of victims that was added on January the 25th already existing in this guideline 2B1.1 was a victims table where the courts could increase the specific the offense level based on the specific offense characteristic for the number of victims involved in an offense what the commission has done now is to say that if both of these specific offense characteristics are applicable the total amount of levels that can be added would be 8 levels so there's a cap of 8 when both of these specific offense characteristics are applicable in a particular case additionally a specific offense characteristic covering securities law was added in January but the scope has been expanded to now include violation of commodities law and also to include registered brokers and dealers so there's some new language under that application note corresponding to that specific offense characteristic and new language in the specific offense characteristic as well that you'll need to be familiar with finally the last thing I want to mention about the Sarbanes-Oxley amendments is a change to the perjury guideline at 2J1.3 the base offense level under this guideline has been increased from 12 to 14 in January the obstruction of justice guideline at 2J1.2 there was an increase in the base offense level there it went from a 12 to a 14 the commission now in their regular amendment cycle effective on November the 1st has changed the perjury guideline the base offense level now looks exactly like the base offense level in the obstruction of justice guideline so that takes care of the Sarbanes-Oxley amendments and as I've been saying this has been legislatively driven and the commission continues to respond to congressional legislation in some amendments dealing with terrorism as you know Congress has been very concerned as we all have been with terrorist activities in our country and so Congress has been passing some legislation not limited to the Patriot Act that changed some things under the guidelines or called the commission to change some things under the guidelines regarding these issues so taking a look at the terrorism amendments then money laundering and terrorism guidelines 2S1.1 and 2S1.3 have been amended to remove an increase for terrorism because we already have an increase for terrorism in the chapter 3 adjustments under the guidelines 2X3.1 is a guideline where a defendant who harbors a fugitive would be sentenced under the under the guidelines manual the commission has decided that if someone is harboring a terrorist they should be treated differently than someone who is harboring a fugitive anyone harboring a fugitive has a maximum offense level of 20 a cap of 20 under 2X3.1 that caps removed for any defendant who is convicted of harboring terrorists 2M6.1 has been amended dealing with biological agents and toxins and a new 2Q1.4 has been added to deal with issues involving water system tampering and threatening to do those types of behavior so we do have some changes in our guidelines that directly deal with terrorism another example of a legislative directive would be in the area of cybercrime this would be for violations of 18 USC section 1030 the corresponding guideline would be 2B1.1 and these are really known as your typical hacker cases when somebody is trying to hack into a computer system and causing all kinds of mayhem what you will see at the guideline is increases for the guideline sentence if the offense involved a protected computer system such as a computer system at the FBI or the CIA that the defendant is trying to hack into if the offense involved intent to obtain personal information for example if a defendant is trying to break into someone's email system or email account or personnel information or something along those lines or if the offense involved a substantial disruption of a critical infrastructure now what you will find in the application notes is some guidance as to what the commission considers situations in which these types of offenses create a substantial disruption to a critical infrastructure so that's an example of a legislative directive now the commission is not only bound by legislative directives when making amendments to the guidelines the commission can also turn to what they call their own initiative and change a guideline based on any reason they see fit generally it's because of concerns that are raised from the field questions that those in the field have about how the application of a certain guideline works and a good example of this would be the immigration guideline specifically at 2L1.2 the illegal reentry guideline there have been a number of changes that have been made over the last couple of years in respect to this guideline and we've gone in and added some things this amendment cycle for 2003 we've added a definition of alien smuggling a definition of child pornography and a definition of human trafficking and these definitions basically refer you back to the statute we've clarified the crime of violence definition in 2001 the commission changed the guideline at 2L1.2 to provide for graduated sanctioning depending on the prior conviction that the defendant has those of you who are familiar with the illegal reentry guideline you know that a defendant would have gotten 16 level increase for a prior aggravated felony without any consideration as to what type of aggravated felony that prior conviction might have been so in 2001 the commission decided that they would provide a tiered approach or graduated sanctioning depending on the type of prior conviction and there are prior convictions such as crime of violence, drug trafficking offenses, human trafficking offenses, certain types of offenses that have been carved out for purposes of increase at the legal reentry guideline now what was happening is that there were problems with the crime of violence definition and courts were having issues in determining which sort of sentences or prior sentences or convictions were crimes of violence the issue was that the crime of violence definition was written as a two pronged definition and it was written in a way that the prior conviction had to have the element use or attempted use of physical force against the person of another or it had to be one of the specific offenses that was enumerated in the application note and the confusion came in where some courts were confused as to do they have to have both prongs in order to meet the definition of crime of violence or is one prong sufficient so what the commission has done for this amendment cycle has clarified by really rewording and sort of reworking that crime of violence definition that only one prong is needed it either has to be one of those offenses that is specifically enumerated or the element of the offense has to have use attempted use or threatened use of physical force against the person of another additionally the guideline prohibits the use of juvenile adjudications there was some discussion over whether or not juvenile adjudications could be used to enhance the defendant's sentence at 201.2 another issue that we found out that came up a lot was what to do with revocation time as I mentioned the courts were looking at different types of prior convictions drug trafficking offenses, crime of violence now for the drug trafficking offenses there was a requirement that the court look additionally at what sort of sentence was imposed if the sentence imposed was under 13 months a certain increase was given if the sentence imposed was over 13 months a different increase was given and so the question of course arose what do I do with revocation time what if the defendant gets a certain sentence that puts him under a certain category but has that sentence revoked do I add that time on to the revocation does that change add that revocation time on to the original sentence and does that then change what sort of increase the defendant is going to get so the commission clarified that prior revocation time is to be added to the original term of imprisonment the same way it's treated for purposes of criminal history in determining drug trafficking offense and sentence imposed the commission also clarified that in looking at the length of the prior sentence specifically in indeterminate sentence the courts need to look at what the stated maximum is so for example if the prior sentence is a sentence of one to five years the courts would be looking at the five-year sentence that was imposed moving on to body armor this is an amendment to chapter three chapter three adjustment that is for all types of offenses but specifically in this case for a defendant who's been convicted of a drug trafficking crime or a crime of violence if that offense involves the use of body armor the defendant will be subject to an increase of two if the defendant used the body armor then that defendant is subject to an increase of four it's important to note the difference here between offense and defendant increases offense of course is the offense of conviction and all relevant conducts so that a defendant might be held accountable for someone else's behavior as part of an jointly undertaking criminal activity the defendant-based enhancement of course is based on what exactly the defendant was responsible for so a two or four level increase based on what the offense involved versus what the defendant did and another point I want to make about the use of body armor here is that it requires the active use of body armor not mere possession and use means active use such as employment or just using the body armor to barter in drug situations or that type of thing great and the drug trafficking offense is defined at the statute is that right? drug trafficking and crime of violence both defined at the statute well moving away from chapter three and our new 3B1.5 we're again going to dive into chapter five for some amendment changes this amendment which took effect on November the first of this year is an amendment to guideline 5G1.3 and as most of you know guideline 5G1.3 deals with situations where a defendant is serving an undischarged term of imprisonment and what the court should do with that undischarged term of imprisonment meaning that should the instant federal offense run concurrently, consecutively or partially concurrently to that undischarged term 5G1.3A provides that in certain situations a consecutive sentence should be given for example if the defendant committed the instant federal offense while serving a term of imprisonment that was not amended however 5G1.3B was amended 5G1.3B is the section of this guideline that talks about sentencing a defendant concurrently meaning for the undischarged term of imprisonment that he or she is already serving the instant federal offense should run concurrently if certain criteria are met prior to our amendment effective on November the first all that 5G1.3B said was that if the offense was fully taken into account if the undischarged term was fully taken into account in the calculation for the instant offense the commission has gone in and clarified what fully taken into account means there were some circuit conflicts that needed some resolution and so this is the new language that you'll see at 5G1.3B an adjustment for imprisonment already served is given if the undischarged term is relevant conduct to the instant offense and if it results in an increase in the offense level for the instant offense so you will see that now under this guideline not only will a concurrent sentence be given but as was in the past credit or an adjustment for the sentence will be given if the undischarged term of imprisonment meets those criteria moving on to section 5G1.3C this provision of this guideline gives the court some discretion as to whether to make a sentence concurrent or consecutive to an undischarged term if they don't otherwise meet 5G1.3A or 5G1.3B there was an issue in particular with sentences imposed upon revocation and so what the commission did was say that at 5G1.3C that this applies to revocation sentences and the commission recommends that the sentences run consecutively but the court of course retains discretion in this instance so you will see that change at 5G1.3C another change at 5G1.3C tells us that an adjustment for imprisonment that's already been served cannot be given for an undischarged sentence covered under 5G1.3C so what this is telling us is that the only time you can have the sentence adjusted for a time already served on an undischarged term is only if it qualifies under 5G1.3B meaning that it's relevant conduct to the instant offense and it has resulted in an increase in the offense level for the instant offense so no adjustment can be given under 5G1.3C those are the changes to 5G1.3 I do want to mention a departure provision this departure provision 5K2.23 provides for a downward departure where 5G1.3B would have applied if the term of imprisonment was undischarged at the time of the sentencing for the instant offense so 5K2.23 is dealing with discharge terms of imprisonment so a downward departure could potentially apply at 5K2.23 for a discharge term if it was relevant conduct and otherwise would have met the criteria at 5G1.3B now you're probably going to ask me why the commission added this departure language to Chapter 5 Part K when the Protect Act specifically said that we could not add any departure language to Chapter 5 Part K on or before May 1st, 2005 so why did the commission add this to Chapter 5 Part K? well the answer is that originally this language was contained in an application note, it was contained in application note 7 of guideline 5G1.3 the commission moved it into the departure part of the guidelines manual Chapter 5 Part K and voted to do so prior to the enactment of the Protect Act so that's why we have that new departure language at 5K2.23 well then also really it's not really new departure language if it was simply moved from the application note to Chapter 5 Part K so it's not in violation then just needed to clarify that the last thing I want to talk about in reference to the 2003 amendments is the Voluntary Manslaughter and then quickly miscellaneous amendments as Charlie mentioned earlier we always accept comments from the field we're very receptive to what various groups have to say what those that are in the field practicing on a daily basis know about the cases and what they have to say about them and the concerns they have and the changes regarding in Voluntary Manslaughter are specifically responses to concerns that were raised by the field in that the sentences for these types of offenses are simply too low so as a response to that the commission increased base offense levels from a 10 to a 12 if the offense involved criminally negligent behavior and from a 14 to an 18 if the conduct was reckless if the offense involved conduct that was reckless the concern that came from the field was that defendants who are being sentenced for in Voluntary Manslaughter let's say at the state level are receiving sentences that are much higher than those similarly situated defendants at the federal level and so of course the concern is that that's not equitable that's not fair and in response to that the commission raised the base offense levels the commission is continuing to look at these offense levels and may again raise them in the future so that's to keep that in mind as well moving on to miscellaneous amendments there are a number of miscellaneous amendments this amendment cycle as there are every amendment cycle however there's only three that I want to touch on that we think are important to focus on right now and the first one is an amendment to 1B1.1 this is the guideline that talks about general application instructions when you're working through the guideline manual and we've amended this guideline to emphasize that application instructions are applied and the order presented in the guideline in other words you start at the beginning of the book and work your way through to the end you can't pick and choose start out of chapter 3 and then go back to chapter 2 you've got to start out of chapter 1 and work your way in order through to the end we've also clarified that application is cumulative meaning that if you're doing your chapter 2 calculations and you're applying specific offense characteristics you add them all, if they apply they apply you add them all together as they apply even if it appears that you may be applying them on the basis of the same conduct the general rule to remember here is that it's not double counting unless we say it is double counting and there are instances in which we will tell you if you have applied for example a specific offense characteristic at chapter 2 you may get to a chapter 3 adjustment and you're told in the commentary there if you've applied the specific offense characteristic in your chapter 2 calculations do not apply it for chapter 3 so that's important to keep in mind there secondly, red phosphorus has been added to the guideline at 2D1.11 2D1.11 is the guideline relating to chemicals those of you who are familiar with methamphetamine cases know very well that red phosphorus is used in the production of methamphetamine because of the growing number of methamphetamine cases that the courts are seeing we felt it was necessary to add red phosphorus into the guideline at 2D1.11 to accommodate courts that are seeing cases involving red phosphorus not only in large quantities but also in the production of methamphetamine and lastly the computer enhancement at 2G2.2B5 trafficking in child pornography has been amended to include receipt and distribution as part of this specific offense characteristic and again these guidelines are going to continue to change not only as a result of the Protect Act but because of the nature of these types of offenses specifically when you talk about defendants commuting these types of offenses with computers and other technology that comes about I think these guidelines, it's safe to say these guidelines will evolve quite a bit in the next few years absolutely well that was a lot of information but we talked about all of the amendments we talked about all the Protect Act amendments and October the 27th we also went through the majority of the regular cycle amendments that took effect on November the 1st of this year as always we encourage you to take a look at our website at www.ussc.gov or give us a call on the helpline at 202-502-4545 if you have any questions regarding these amendments or any other topics you would like to talk to us about there's some great information on our website and we of course are always available on the helpline to help you with any issues that may arise as a result of these amendments we want to thank you very much for joining us today don't forget your evaluation forms please fax those into us we'd like to hear from you so that we can plan our future broadcasts otherwise thank you very much for joining us and have a great day