Wednesday, January 19, 2011

Proposed Guidelines Amendments and Requests for Comment

As Professor Berman highlighted last week, the Sentencing Commission has published for public comment a raft of proposed amendments to the Guidelines.  A few of these proposals could be quite significant for those of us in border districts, as well as anyone who represents alien defendants (which is pretty much everyone these days).  There are also some requests for comment on matters perennial (mitigating role for drug mules) and emerging (cross-border gun smuggling).  I'll highlight a few of the bigger ones.

Supervised Release
The Guidelines currently recommend that a court include a term of supervised release whenever a defendant is sentenced to more than one year's imprisonment (and, of course, whenever required by statute). Turns out that, according to a recent Commission study, "supervised release is imposed in almost every case, including in more than 99 percent of cases where the guidelines require imposition of a term of supervised release but there is no statutory requirement to do so."  What's more, "[s]upervised release is imposed in more than 91 percent of cases in which the defendant is a non-citizen[,]" and non-citizens account for nearly half of all federal offenders.

The Commission wants to know whether this is a good idea.  (Although it puts it more bureaucratically: "The Commission is considering whether revisions to the supervised release guidelines would help courts and probation offices focus limited supervision resources on offenders who need supervision.")  To that end, it is floating a few ideas: raising or even eliminating the threshold term of imprisonment that would trigger a recommended term of supervised release, reducing the recommended terms of supervised release, and even doing away with the recommendation entirely unless an applicable statute requires a term of supervised release in the case.  Along with these changes, courts would be encouraged to take a defendant's criminal history into account when making the supervised release determination, recognizing (in accord with that study) that the less serious a defendant's criminal history, the more likely it is that he will successfully complete supervision.

Perhaps the most significant proposed change to the supervised release guidelines is to recommend against imposing a term of supervised release on an alien defendant who is likely to be deported and unlikely to be allowed to return to the United States legally.  The proposal recognizes that a term of supervised release is absurd unnecessary in such cases, because the prospect of an illegal reentry charge provides adequate deterrance to an alien's possible unlawful return.

More proposed amendments and requests for comment after the jump . . .

Illegal Reentry and Old Priors
Defense counsel have complained for years that prior convictions too old to receive criminal history points can nevertheless trigger an enhancement under §2L1.2.  The Commission has finally proposed doing something about it.

The proposed amendment does not go as far as, for example, §2K2.1 and provide that a conviction cannot be used for enhancement purposes unless it also receives criminal history points.  Instead,
[t]his proposed amendment would amend §2L1.2 to provide a limitation on the use of convictions under subsections (b)(1)(A) and (B). Specifically, such a conviction would receive the 16- or 12-level enhancement, as applicable, if the conviction receives criminal history points under Chapter Four (Criminal History and Criminal Livelihood), and 8 levels if it does not. Conforming changes to the Commentary are also made.
The 8-level aggravated -elony and 4-level any-other-felony and mutliple-misdemeanor enhancements would continue to apply in full, even if the predicate conviction does not receive criminal history points.
Guns and Ammo
Bad news for straw purchasers and cross-border gun smugglers.
The proposed changes to §2M5.2—the arms exportation guideline—are a mixed bag. On the one hand, it proposes limiting the scope of the lower base offense level of 14 by reducing the threshold number of firearms from 10 to somewhere between 2 and 5, and by adding a requirement that the arms be possessed solely for personal use. On the other hand, it opens up ammo-only smugglers to the lower base offense level, setting a 200- to 500-round limit, along with a personal use requirement. There would also be factors for a court to consider in making the personal use determination, similar to those relevant to the "lawful sporting purposes" adjusment under §2K2.1.
The Commission also seeks comment on straw-purchaser and cross-border gun smuggling issues.  As for straw purchasers, should there be higher base offenes levels under §2K2.1?  Enhancements?  And what about firearms crossing the border?  Should that be a factor under §2K2.1?  If so, how?  Higher base offense levels, enhancements, an upward departure provision, a cross-reference to §2M5.2?  Some combination of these?  And speaking of §2M5.2, any aggravating or mitigating factors that the guideline needs to take into account?  Perhaps an enhancement if the guns or ammo were possessed, etc. in connection with another felony offense, a la §2K2.1(b)(6)?  The possibilities abound.
Mitigating Role and Mules
If your response to this heading is, "Mitigating role?  What's that?", then you may be heartened.
The Commission has received public comment stating that there are differences from district to district with regard to the application of §3B1.2 in drug trafficking cases. In addition, the Commission has observed that, in drug trafficking cases, there are differences from district to district both on the rates of application of §3B1.2 and the relative rates of application of the 4-, 3-, and 2-level adjustments.
There's nothing proposed at this time, just a request for comments on whether the Commission needs to provide more guidance in this area, as well as with regard to the aggravating role guideline.

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