[House Report 107-769]
[From the U.S. Government Publishing Office]



107th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     107-769

======================================================================



 
                   FAIRNESS IN SENTENCING ACT OF 2002

                                _______
                                

October 31, 2002.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 4689]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 4689) to disapprove certain sentencing guideline 
amendments, having considered the same, reports favorably 
thereon without amendment and recommends that the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     4
Background and Need for the Legislation..........................     4
Sentencing Calculation for Drug Trafficking......................     5
    ``Base Offense Level''.......................................     5
    ``Adjusted Offense Level''...................................     5
    ``Criminal History Category''................................     5
    ``Sentencing Range''.........................................     6
Amendment 4......................................................     6
Hearings.........................................................     7
    Testimony of John Roth, U.S. Department of Justice...........     7
    Testimony of William G. Otis, Esq., George Mason University 
      Law School.................................................     8
    Testimony of Charles Tetzlaff, United States Sentencing 
      Commission.................................................     9
    Testimony of the Honorable James M. Rosenbaum................     9
   I. GJudge Rosenbaum's Prepared Statement Suggested that Defendants 
      are Convicted on Legally Insufficient Evidence.................11
  II. GJudge Rosenbaum's Testimony Inaccurately Suggested a Reference 
      to an Actual Case in Support of the Amendment..................12
 III. GJudge Rosenbaum's Inaccurate Representations Regarding the 
      Sentences in Cases Before Him and Other Federal District Courts 
      Cannot be Used to Justify Support of the Amendment.............13
            1. GJudge Rosenbaum Inaccurately Represented the 
                Sentence of ``VHD''..............................    13
            2. GJudge Rosenbaum Inaccurately Represented the 
                Sentence of ``JAP''..............................    14
            3. GJudge Rosenbaum Misstated the Circumstances 
                Surrounding the Sentencing of ``FDD''............    14
            4. GThe Record Regarding ``MGA'' Does not Justify the 
                Amendment Because She Received a Sentence of Only 
                Six Months Under Existing Guidelines.............    16
            5. GThe Proposed Amendment Would be Irrelevant to 
                ``AC'' Who Received a Downward Departure Under 
                Existing Guidelines..............................    16
            6. GThe Proposed Amendment Would Have No Effect on 
                ``ST'' Who Received a Downward Departure Under 
                Existing Guidelines..............................    16
            7. G``ERR'' Was Denied A Lower Sentence Through the 
                Exercise of the Sentencing Judge's Discretion, 
                Not the Operation of the Guidelines..............    17
            8. G``HAG'' Received a Downward Departure for 
                Substantial Assistance and Was Sentenced to Only 
                24 Months........................................    17
            9. GJudge Rosenbaum's Testimony Regarding Alleged 
                Sentencing Anomalies Fails to Provide any Support 
                for the Proposed Amendment.......................    19
  IV. GJudge Rosenbaum's Testimony Regarding the Attributable Drug 
      Amounts was Inaccurate and Does not Justify the Proposed 
      Amendment......................................................19
   V. GJudge Rosenbaum's Inaccurate Testimony that Major and Minor 
      Participants Receive the Same Sentence Does Not Justify the 
      Proposed Amendment.............................................24
  VI. GAssurances of Categorical Enhancements for Criminal History were 
      not Reflected in Judge Rosenbaum's Own Sentencing of ``EPR''...27
 VII. GJudge Rosenbaum's Record of Hostility to the Guidelines 
      Undermines the Persuasive Value of his Testimony...............28
VIII. GJudge Rosenbaum's Testimony Should be Disregarded as Support for 
      the Proposed Amendment.........................................29
  IX. GJudge Rosenbaum may Have Unlawfully Closed a Sentencing 
      Proceeding that Would Provide Further Evidence of the Operation 
      of the Guidelines..............................................30
Committee Consideration..........................................    32
Vote of the Committee............................................    32
Committee Oversight Findings.....................................    32
Performance Goals and Objectives.................................    32
New Budget Authority and Tax Expenditures........................    32
Congressional Budget Office Cost Estimate........................    32
Constitutional Authority Statement...............................    35
Section-by-Section Analysis and Discussion.......................    35
Markup Transcript................................................    35
    Supporting Materials
        LETTERS:
            Letter from Hon. Lamar Smith, to Hon. James M. 
              Rosenbaum (May 22, 2002)...........................    49
            Letter from Hon. James M. Rosenbaum, to Hon. Lamar 
              Smith (June 6, 2002)...............................    52
            Letter from Hon. Lamar Smith, to Hon. James M. 
              Rosenbaum (July 19, 2002)..........................   109
            Letter from Hon. James M. Rosenbaum, to Hon. Lamar 
              Smith (Aug. 9, 2002)...............................   112
            Letter from Hon. Lamar Smith, to Hon. James M. 
              Rosenbaum (Aug. 9, 2002)...........................   124
            Letter from Hon. James M. Rosenbaum, to Hon. Lamar 
              Smith (Aug. 30, 2002)..............................   126
        JUDGMENT AND COMMITMENT ORDERS:
            U.S. v. Vimalam Hamilton Delaney, 99-CR-51 (010) 
              (JMR) (D. Minn. Aug. 24, 2000).....................    54
            U.S. v. Joel Arellano Plateado, 00-CR-327(10)(JMR) 
              (D. Minn. Apr. 4, 2001)............................    58
            U.S. v. Eliseo Rodrigo Romo, CR 3-95-52 (D. Minn. 
              Nov. 20, 1995).....................................    62
            U.S. v. Reut Bustos-Hernandez, 01-210(2)(DSD/JMM) (D. 
              Minn. Jan. 28, 2002)...............................    66
            U.S. v. Fernando Dwayne Davis, 4:95CR00103-001 (D. 
              Minn. Jan. 14, 1997)...............................    71
            U.S. v. Maria Guadalupe Avalos, 98-137(12)(DSD/AJB) 
              (D. Minn. May 24, 1999)............................    83
            U.S. v. Stephen Tiarks, 98-137(11)(DSD/AJB) (D. Minn. 
              June 2, 1999)......................................    90
            U.S. v. Alecia Colmenares, 99-351(10)(ADM/AJB) (D. 
              Minn. Sept. 5, 2000)...............................    99
            U.S. v. Heather Ann Genz, 99-351(9)(ADM/AJB) (D. 
              Minn. Sept. 7, 2000)...............................   104
            U.S. v. Miguel Angel Larios-Verduzco, 01-CR-228(JMR) 
              (D. Minn. June 13, 2002)...........................   115
            U.S. v. Eduardo Pelayo-Ruelas, 01-CR-228(01)(JMR/FLN) 
              (D. Minn. Aug. 2, 2002)............................   119
            U.S. v. Alfredo Prieto, 98-137(4)(DSD/AJB) (D. Minn. 
              July 2, 1999)......................................   265
            U.S. v. Juan Villanueva Monroy, 98-137(3)(DSD/AJB) 
              (D. Minn. June 15, 1999)...........................   281
            U.S. v. Arturo Bahena, 98-137(6)(DSD/AJB) (D. Minn. 
              May 26, 1999)......................................   293
            U.S. v. Jesus Ibarra-Torres, 99-351(2) (D. Minn. 
              Sept. 29, 2000)....................................   301
        INDICTMENTS:
            U.S. v. Hernan Espino, et al, Cr. No. 98-137 (DSD/
              AJB) (D. Minn. Aug. 5, 1998) (Second Superseding 
              Indictment)........................................   156
            U.S. v. Jaime Rosas Mancilla, et al, 99-351 (ADM/AJB) 
              (D. Minn. Feb. 8, 2000) (Superseding Indictment)...   161
        TRANSCRIPTS:
            U.S. v. Eliseo Rodrigo Romo, Cr. No. 3-95-52 (D. 
              Minn. Nov. 17, 1995) (Sentencing Hearing)..........   167
            U.S. v. Eduardo Pelayo-Ruelas, Cr. No. 01-228(JMR/
              FLN) (D. Minn. Aug. 2, 2002) (Sentencing Hearing)..   191
        SELECTED PROVISIONS OF THE UNITED STATES SENTENCING 
          COMMISSION GUIDELINES MANUAL, NOVEMBER 1, 2001:
            CHAPTER ONE, Part B--General Application Principles
              1B1.3 GRelevant Conduct............................   204
              1B1.4 GInformation to Be Used in Imposing Sentence 
                (Selecting a Point Within the Guideline Range or 
                Departing from the Guidelines)...................   214
            CHAPTER TWO, Part D--Offenses Involving Drugs
              Sec. 2D1.1 GUnlawful Manufacturing, Importing, 
                Exporting, or Trafficking (Including Possession 
                with Intent to Commit These Offenses); Attempt or 
                Conspiracy.......................................   216
            CHAPTER THREE, Part B--Role in the Offense
              Sec. 3B1.1 GAggravating Role.......................   225
              Sec. 3B1.2 GMitigating Role........................   226
            CHAPTER FOUR, Part A--Criminal History
              Sec. 4A1.1 GCriminal History Category..............   229
              Sec. 4A1.3 GAdequacy of Criminal History Category..   234
            CHAPTER FIVE, Part A--Sentencing Table (in months of 
              imprisonment)......................................   237
              Part C--Imprisonment
              Sec. 5C1.2 GLimitation on Applicability of 
                Statutory Minimum Sentences in Certain Cases.....   239
              Part K--Departures
              Sec. 5K1.1 GSubstantial Assistance to Authorities 
                (Policy Statement)...............................   242
              Sec. 5K1.2 GRefusal to Assist (Policy Statement)...   243
              Sec. 5K2.0 GGrounds for Departure (Policy 
                Statement).......................................   243
        MISCELLANEOUS MATERIAL:
            Letter from Hon. William W. Wilkins, Chair, Comm. on 
              Crim. Law of the Judicial Conference of the U.S., 
              to Hon. Diana E. Murphy, Chair, U.S. Sentencing 
              Comm'n (May 22, 2002)..............................    41
            U.S. v. Smith, 113 F. Supp. 2d 879 (E.D. Va. 1999)...   128
            Criminal Docket for Case #01-CR-228-ALL (D. Minn. 
              Aug. 14, 2001).....................................   246
            Proceedings before United States Judge James M. 
              Rosenbaum, SENTENCING, United States v. Miguel 
              Angel Larios, Crim. No. 01-228, (D. Minn. June 13, 
              2002) (Minutes)....................................   260
            Facsimile from the Chambers of Judge Rosenbaum, Chief 
              Judge, U.S. Dist. Court for the Dist. of Minn, to 
              the Subcommittee on Crime, Terrorism, and Homeland 
              Sec. (containing redacted portions of the 
              transcript of the sentencing hearing in United 
              States v. Miguel Angel Larios-Verduzco, 01-Cr-228 
              (JMR) (D. Minn. June 13, 2002) (portions of pages 6 
              and 7))............................................   261
Minority Views...................................................   307

                          Purpose and Summary

    H.R. 4689, the ``Fairness in Sentencing Act of 2002,'' 
would disapprove an amendment to the Sentencing Guidelines 
submitted by the United States Sentencing Commission to 
Congress on May 1, 2002. The Sentencing Commission's proposed 
amendment creates a drug quantity ``cap'' for those persons 
convicted of trafficking in large quantities of drugs if those 
persons also qualify for a mitigating role adjustment under the 
existing guidelines. For example, the sentence of a person 
convicted of trafficking 150 kilograms or more of cocaine who 
also qualifies for a mitigating role adjustment would be 
reduced to the same level as another person convicted of 
trafficking only a \1/2\ kilogram of cocaine who also qualifies 
for a mitigating role adjustment. The \1/2\ kilogram trafficker 
would receive no benefit under the ``cap.'' This would result 
in the less culpable defendant (one who moved less drugs) 
unfairly receiving a disproportionately longer sentence than 
the more culpable defendant (one who moved more drugs). This 
amendment to the Sentencing Guidelines will take effect on 
November 1, 2002, if it is not disapproved by Act of Congress.

                Background and Need for the Legislation

    The Sentencing Reform Act of 1984 (Title II of the 
Comprehensive Crime Control Act of 1984) provided for the 
development of guidelines to further the basic purposes of 
criminal punishment: deterrence, incapacitation, just 
punishment, and rehabilitation. The guidelines created a system 
of determinate sentencing: by eliminating parole and greatly 
restricting good time, it ensured that defendants would serve 
nearly all the sentence that the court imposed. The 
responsibility for shaping these determinate sentences was 
delegated to the United States Sentencing Commission. The 
Commission is an independent body within the judicial branch, 
with authority to promulgate sentencing guidelines and policy 
statements, consistent with the governing statutes. The 
Commission's enabling legislation, codified at 28 U.S.C. 
Sec. Sec. 991-998, includes a number of congressional 
directives as to the content of the guidelines. It includes the 
parallel goals of providing ``certainty and fairness'' in 
sentencing, while avoiding ``unwarranted sentencing 
disparities.'' \1\
---------------------------------------------------------------------------
    \1\ 28 U.S.C. Sec. 991(b)(1)(B) (2002); see also 28 U.S.C. 
Sec. 994(f) (2002).
---------------------------------------------------------------------------
    Under the Guidelines the court determines a sentencing 
range based upon numerous factors, including the nature and 
seriousness of the offense, the defendant's role in the offense 
(whether major or minor), whether the defendant accepted 
responsibility, obstructed justice, used a weapon in connection 
with the offense, and the extent of the defendant's past 
criminal record. Once the guideline range is calculated by the 
court using these factors, the court must generally impose a 
sentence which is within that range, although the court may in 
appropriate circumstances depart either below or above the 
calculated range when necessary.

              Sentencing Calculation for Drug Trafficking

                         ``BASE OFFENSE LEVEL''

    Calculating the sentencing range for drug trafficking 
crimes begins by looking to the objective factor of the amount 
of drugs involved to arrive at a starting ``base offense 
level.'' The guidelines provide for an orderly gradation of 
levels, from level 6 (the lowest level) to level 38 (the 
highest level). These levels are set forth in a table contained 
within the Guideline Manual. The greater the amount of drugs 
involved, the greater the defendant's ``base offense level'' 
will be. When two or more persons are involved together in a 
drug trafficking crime, the amount of drugs attributable to 
each defendant is often different, depending upon whether or 
not the individual defendant was aware of the total drug amount 
or whether that amount was foreseeable to that defendant. 
Amounts of drugs stemming from the criminal conduct of one 
defendant which are neither known nor foreseeable to the co-
defendant are not included in calculating the co-defendants 
``base offense level,'' or his ultimate sentence.

                       ``ADJUSTED OFFENSE LEVEL''

    The ``base offense level'' is, however, only the beginning 
of the calculation. The ``base offense level'' for each 
defendant is increased or decreased depending upon other 
individual factors. In a drug conspiracy some members of the 
conspiracy may be more culpable than others. For example, those 
who planned the drug enterprise and directed others in it are 
considered more culpable than those who played only a minor 
role in the conspiracy. The offense level of the more culpable 
members is increased to reflect that fact, while the offense 
level of less culpable members is decreased. Similarly, the 
offense level of those who accept responsibility for their 
crimes is decreased further. The offense level of those who 
provide substantial assistance in the prosecution of others is 
decreased further still, while the offense level for those who 
have obstructed justice during the court proceeding or used a 
weapon during the crime is increased. The court uses these 
adjustment factors to determine a defendant's ``adjusted 
offense level.''

                     ``CRIMINAL HISTORY CATEGORY''

    The Guidelines also take into account whether a defendant 
has a prior criminal record. Defendants with criminal records 
are placed in a higher ``criminal history category,'' ranging 
from the lowest category 1 through the highest category 6. A 
defendant with a more extensive and egregious history of past 
crimes is assigned a higher criminal history category.

                          ``SENTENCING RANGE''

    The court matches the ``adjusted offense level'' with the 
``criminal history category'' (using a Table in the Guideline 
Manual) to determine the ``sentencing range.'' The court is 
ordinarily required to impose a sentence which falls within 
that ``sentencing range.'' However, the court has unlimited and 
unreviewable authority to decide exactly where within that 
range to sentence an individual defendant. The top of the range 
is about 25 percent higher than the bottom of the range, giving 
the sentencing judge significant discretion in meting out 
sentences appropriate to individual defendants beyond that 
already achieved by the application of the Guideline 
adjustments noted above. Further, the court may, in appropriate 
cases, depart either above or below the sentencing range to 
arrive at an appropriate sentence for an individual.

                              Amendment 4

    On May 1, 2002, pursuant to 28 U.S.C. Sec. 944(p), the 
Sentencing Commission submitted to Congress ten amendments to 
the sentencing guidelines. These amendments will take effect on 
November 1, 2002, if they are not disapproved by an Act of 
Congress.
    Amendment 4 is an amendment to section 2D1.1(a)(3) of the 
guidelines which sets the ``base offense level'' for offenses 
involving the unlawful manufacturing, importing, exporting, or 
trafficking of drugs. This amendment would create a drug 
quantity ``cap'' at base offense level 30 for those persons 
convicted of trafficking in large quantities of drugs if those 
persons also qualify for a mitigating role adjustment under the 
existing guidelines. The current maximum base offense level a 
defendant could receive under section 2D1.1(a)(3) is level 38. 
Persons trafficking in small quantities of drugs receive no 
benefit from the level 30 ``cap,'' even when they, too, played 
only a minor or minimal role in the offense.
    Amendment 4 also adds an application note to the Commentary 
to section 3B1.2 of the guidelines, which provides for a 
further decrease to the ``base offense level'' for a large-
quantity trafficker who is a minimal or minor participant in 
the criminal activity. This new application note would require 
the court to decrease the base offense level another two (2) to 
four (4) levels whenever the court has applied section 
2D1.1(a)(3) and ``capped'' the base offense level at level 30. 
This means that the ``base offense level'' for large quantity 
traffickers would always be reduced to at least level 28 and 
could be reduced as low as level 26 whenever section 
2D1.1(a)(3) is applied. As an example, this amendment would 
treat traffickers who are responsible for trafficking in 150 
kilograms or more of cocaine the same as traffickers who are 
responsible for trafficking only \1/2\ kilogram of cocaine. 
This represents a significant departure from the current 
orderly gradation structure which assures that those 
trafficking in higher drug amounts receive higher ``base 
offense levels.''
    Amendment 4 would accordingly result in disproportionate 
punishment contrary to past congressional directives, and would 
simply be unfair. Small-time drug defendants--those who perform 
minor roles and traffic in small amounts of drugs receive no 
benefit under Amendment 4. The small-timer will thus receive a 
disproportionately higher sentence than those trafficking in 
more drugs.
    The Sentencing Commission, in its ``Reason for Amendment,'' 
states that the current guidelines overstate the culpability of 
certain drug offenders ``who perform relatively low level 
trafficking functions, have little authority in the drug 
trafficking organization, and have a lower degree of individual 
culpability.'' However, such persons already receive an 
individual downward adjustment to reflect these facts. Had the 
Commission believed that the current ``mitigating role'' 
adjustment was insufficient to reflect relative culpability, 
those provisions could have appropriately been amended to 
address the issue for all defendants with a mitigating role in 
an equitable manner without creating a unfair disparity in 
sentencing.
    Amendment 4 will be nothing short of 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 forms 
the centerpiece of the guidelines in drug sentencing. The 
greater the drug quantity involved in the trafficking 
operation, the greater the harm to our Nation. The intent of 
Congress has been clear that there be an orderly gradation of 
sentences in drug trafficking cases based primarily upon the 
objective criterion of drug quantity. The proposed amendment to 
``cap'' drug quantity is inconsistent with that congressional 
intent and also with basic notions of fairness. The 
``mitigating role'' participant in a given case whose lower 
base offense level does not trigger the ``cap'' (because he 
moved less drugs) will receive a disproportionately higher 
sentence than the ``mitigating role'' participant in another 
case whose level does trigger the ``cap'' (because he moved 
more drugs).

                                Hearings

    On May 14, 2002, the Subcommittee on Crime, Terrorism, and 
Homeland Security held a legislative hearing on H.R. 4689. 
Testimony was received from four witnesses. The witnesses were: 
John Roth, Chief, Asset Forfeiture and Money Laundering 
Section, Criminal Division, U.S. Department of Justice; William 
G. Otis, Adjunct Professor of Law, George Mason University Law 
School; Charles Tetzlaff, General Counsel, United States 
Sentencing Commission; and the Honorable James M. Rosenbaum, 
Chief Judge, United States District Court for the District of 
Minnesota.

      TESTIMONY OF JOHN ROTH, UNITED STATES DEPARTMENT OF JUSTICE

    The Administration's strong support of H.R. 4689 is aptly 
reflected in the testimony of John Roth, Chief, Asset 
Forfeiture and Money Laundering Section, Criminal Division, 
U.S. Department of Justice. Mr. Roth testified that the 
Commission's Amendment 4 would result in ``a sentencing scheme 
that fails to reflect the seriousness of the conduct, will 
produce wildly disparate sentences between cases or even in the 
same case, and will ignore the modern reality of drug 
trafficking crimes in the United States today.'' \2\ Mr. Roth 
succinctly noted that ``[t]he net effect of the Sentencing 
Commission guideline change is to allow individuals with a 
minor but necessary role in large drug organizations to escape 
the consequences of their actions.'' \3\
---------------------------------------------------------------------------
    \2\ The Fairness in Sentencing Act of 2002: Hearing on H.R. 4689 
Before the Subcomm. on Crime, Terrorism, and Homeland Sec., House Comm. 
on the Judiciary, 107th Cong. 15 (2002) [hereinafter ``H.R. 4689 
Hearing''] (prepared statement of John Roth, Section Chief, Asset 
Forfeiture and Money Laundering Section, Criminal Division, U.S. 
Department of Justice [hereinafter ``Prepared Statement of John 
Roth'']).
    \3\ Id. at 15 (emphasis added).
---------------------------------------------------------------------------
    Additionally, he testified that ``[t]he guideline change is 
going to make it more difficult for prosecutors to attack large 
organizations,'' and ``to convince less culpable members of a 
conspiracy to aid the government or provide evidence in 
assistance to the government.'' \4\ Mr. Roth pointed to his own 
previous prosecutorial experience in gaining the cooperation of 
low-level participants in catching and prosecuting higher-ups, 
including one such driver of a 200 kilogram cocaine shipment. 
According to Mr. Roth:
---------------------------------------------------------------------------
    \4\ Id. at 13 (testimony of John Roth, Section Chief, Asset 
Forfeiture and Money Laundering Section, Criminal Division, U.S. 
Department of Justice [hereinafter ``Testimony of John Roth'']).

        ``[t]he 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 loose that ability to 
        convince these minor players to testify and to 
        cooperate and to provide evidence we loose the ability 
        to go after the kingpins. And to me that's the single 
        most significant problem with the commission's 
        actions.'' \5\
---------------------------------------------------------------------------
    \5\ Id.

    Significantly, the Department of Justice outlined examples 
that show this amendment is only the latest in an ongoing 
effort by the Commission to reduce the severity of Federal drug 
---------------------------------------------------------------------------
sentences:

        In 1992, the Commission changed the definition of 
        ``relevant conduct'' for jointly undertaken activity, 
        which had the effect of lowering drug conspiracy 
        sentences. In 1994, the Commission reduced the highest 
        offense level for trafficking offenses from 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 guidelines by 
        extending that two level reduction to less serious drug 
        crimes (i.e., less than 500 grams of cocaine).\6\
---------------------------------------------------------------------------
    \6\ Id. at 16 (Prepared Statement of John Roth).
---------------------------------------------------------------------------

                   TESTIMONY OF WILLIAM G. OTIS, ESQ.
                   GEORGE MASON UNIVERSITY LAW SCHOOL

    William G. Otis, former Federal prosecutor and Adjunct 
Professor of Law at George Mason University Law School, 
testified in support of H.R. 4689. Mr. Otis testified that the 
amendment was not needed in as much as the existing guidelines 
provide ample authority for sentencing judges to arrive at 
reduced sentences for low-level offenders. He further noted 
that under the existing guidelines, defendants already: are 
sentenced only for amount of drugs that they actually know 
about or are reasonably foreseeable to them; are sentenced to 
the bottom of their guideline range; receive reductions for 
accepting responsibility; receive reductions for their minor or 
minimal role in the offense; and may qualify for downward 
departures below the range, significantly including departures 
for assisting in the prosecution of others involved.\7\ Mr. 
Otis concluded that ``[b]ecause the amendment is excessive, 
ill-conceived and inconsistent with the Guidelines' central 
purpose of ensuring fairness while protecting the public, it 
should be rejected.'' \8\
---------------------------------------------------------------------------
    \7\ Id. at 26 (prepared statement of William G. Otis, Adjunct 
Professor of Law, George Mason Univ. [hereinafter ``Prepared Statement 
of William G. Otis'']).
    \8\ Id. at 25.
---------------------------------------------------------------------------

                     TESTIMONY OF CHARLES TETZLAFF,
                  UNITED STATES SENTENCING COMMISSION

    Charles Tetzlaff, General Counsel to the Sentencing 
Commission, testified in opposition to H.R. 4689 and in support 
of the Commission's amendment. Among the reasons for its 
adoption, he explained, was a statistical study by the 
Commission concerning powder cocaine sentences during a single 
year. According to Mr. Tetzlaff:

        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.\9\
---------------------------------------------------------------------------
    \9\ Id. at 11 (prepared statement of Charles Tetzlaff, General 
Counsel to the Sentencing Commission [hereinafter ``Prepared Statement 
of Charles Tetzlaff'']) (emphasis added). It is important to note that 
this ``study'' shows little more than the ability to manipulate 
statistics and, more importantly, it tells us nothing about actual 
cases. In the study, ``renters, loaders, lookouts, etc,'' were thrown 
together into a statistical pool (regardless of the size of the drug 
operation in which they were involved) where the drug amounts were 
averaged and then compared against the similarly averaged drug amounts 
for all ``supervisors and managers'' (regardless of the size of the 
operation in which they were involved). A comparison of such broadly 
assessed averages is irrelevant when comparing relative attributable 
drug amounts within individual conspiracies. Even if it was relevant, 
it does not explain why the Commission chose to apply the drug cap to 
all drugs, rather than limit its application to powder cocaine where 
the supposed ``anomaly'' was found to exist.
---------------------------------------------------------------------------

             TESTIMONY OF THE HONORABLE JAMES M. ROSENBAUM

    Invited at the request of the Minority, the Honorable James 
M. Rosenbaum, Chief Judge of the United States District Court 
for the District of Minnesota, appeared before the Subcommittee 
at the May 14, 2002, hearing and testified in opposition to 
H.R. 4689. Judge Rosenbaum submitted a prepared statement as 
part of his testimony.\10\ As reflected in his statement, Judge 
Rosenbaum testified that the U.S. Sentencing Commission's drug 
level cap amendment was needed because it would help alleviate 
inequities resulting from the application of the current 
guideline sentencing structure. In advancing his position, 
Judge Rosenbaum testified that defendants convicted of drug 
offenses ``frequently have no idea what they are carrying or 
receiving;'' \11\ that ``under the present guidelines, it is 
the quantity of drugs in the whole scheme that drives the 
sentence;'' \12\ and that 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.'' \13\
---------------------------------------------------------------------------
    \10\ H.R. 4689 Hearing at 19-22 (prepared statement of Hon. James 
M. Rosenbaum, Chief Judge, U.S. Dist. Court for the Dist. of Minn. 
[hereinafter ``Prepared Statement of Judge Rosenbaum'']).
    \11\ Id. at 19-20.
    \12\ Id. at 20.
    \13\ Id. at 22.
---------------------------------------------------------------------------
    To further his argument, Judge Rosenbaum offered ``examples 
of the effects of this change, if adopted . . .'' and provided 
``examples . . . pulled from recent cases in the District of 
Minnesota.'' \14\ He proceeded to discuss several cases, each 
of which he identified only by defendant initials, setting out 
guideline ranges under the existing guidelines, sentence terms, 
and other information with respect to each.\15\ He also set out 
his calculation as to what the sentencing range for each would 
be if the Sentencing Commission's Amendment 4 were to become 
law, to suggest that the lower sentence resulting from the 
Amendment would be a more just sentence in each case.\16\
---------------------------------------------------------------------------
    \14\ Id. at 20.
    \15\ Id. at 20-22 (Prepared Statement of Judge Rosenbaum).
    \16\ Id.
---------------------------------------------------------------------------
    Following the hearing, the Subcommittee submitted 
additional written questions to Judge Rosenbaum on May 22, 
2002, in order to ascertain, among other things, the actual 
cases to which Judge Rosenbaum referred during his 
testimony.\17\ After receiving the May 22, 2002 letter, Judge 
Rosenbaum contacted Subcommittee Chairman Lamar Smith by 
telephone and asked that the Chairman agree to permit the Judge 
to limit his response to ``publicly available information.'' 
The Chairman agreed that the Judge's initial response could be 
so limited. Thereafter, Judge Rosenbaum responded to the 
Subcommittee's May 22, 2002 letter on June 6, 2002.\18\ Along 
with his response, Judge Rosenbaum conveyed copies of nine 
Judgment and Commitment Orders,\19\ which reveal some, but by 
no means all, of the information sought by the Subcommittee.
---------------------------------------------------------------------------
    \17\ Letter from Hon. Lamar Smith, Chairman, Subcomm. on Crime, 
Terrorism, and Homeland Sec., to Hon. James M. Rosenbaum, Chief Judge, 
U.S. Dist. Court for the Dist. of Minn. (May 22, 2002).
    \18\ Letter from Hon. James M. Rosenbaum, Chief Judge, U.S. 
District Court for the Dist. of Minn., to Hon. Lamar Smith, Chairman, 
Subcomm. on Crime, Terrorism, and Homeland Sec. (June 6, 2002).
    \19\ U.S. v.Vimalam Hamilton Delany, No. 99-CR-51 (010) (JMR) (D. 
Minn. Aug. 24, 2000) (Judgment and Commitment Order); U.S. v. Joel 
Arellano Plateado, No. 00-CR-327(10)(JMR) (D. Minn. Apr. 4, 2001) 
(Judgment and Commitment Order); U.S. v. Eliseo Rodrigo Romo, No. CR 3-
95-52 (D. Minn. Nov. 20, 1995) (Judgment and Commitment Order); U.S. v. 
Reut Bustos-Hernandez, No. 01-210(2)(DSD/JMM) (D. Minn. Jan. 28, 2002) 
(Judgment and Commitment Order); U.S. v. Fernando Dwayne Davis, No. 
4:95CR00103-001 (D. Minn. Jan. 14, 1997) (Judgment and Commitment 
Order); U.S. v. Maria Guadalupe Avalos, No. 98-137(12)(DSD/AJB) (D. 
Minn. May 24, 1999) (Judgment and Commitment Order); U.S. v. Stephen 
Tiarks, No. 98-137(11)(DSD/AJB) (D. Minn. June 2, 1999) (Judgment and 
Commitment Order); U.S. v. Alecia Colmenares, No. 99-351(10)(ADM/AJB) 
(D. Minn. Sept. 5, 2000) (Judgment and Commitment Order); U.S. v. 
Heather Ann Genz, No. 99-351(9)(ADM/AJB) (D. Minn. Sept. 7, 2000) 
(Judgment and Commitment Order).
---------------------------------------------------------------------------
    Both in his June 6, 2002 response, and thereafter, Judge 
Rosenbaum declined, however, to answer certain questions posed 
to him by the Subcommittee relevant to his testimony, even for 
the cases over which he personally presided,\20\ despite his 
acknowledgment that ``trials, guilty pleas, and sentencing 
proceedings are generally public.'' \21\ As a significant 
example, the Judgment and Commitment Order in United States v. 
Joel Arellano Plateado reflects only that Judge Rosenbaum 
granted a downward departure in that case ``for the reasons set 
forth at the hearing.'' \22\ When the Subcommittee requested 
Judge Rosenbaum inform it of his reasons, he declined to do 
so.\23\
---------------------------------------------------------------------------
    \20\ See letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum 
(May 22, 2002); letter from Hon. James M. Rosenbaum, to Hon. Lamar 
Smith (June 6, 2002); letter from Hon. Lamar Smith, Chairman, Subcomm. 
on Crime, Terrorism, and Homeland Sec., to Hon. James M. Rosenbaum, 
Chief Judge, U.S. Dist. Court for the Dist. of Minn. (July 19, 2002); 
letter from Hon. James M. Rosenbaum, Chief Judge, U.S. Dist. Court for 
the Dist. of Minn., to Hon. Lamar Smith, Chairman, Subcomm. on Crime, 
Terrorism, and Homeland Sec. (Aug. 9, 2002); letter from Hon. Lamar 
Smith, Chairman, Subcomm. on Crime, Terrorism, and Homeland Sec., to 
Hon. James M. Rosenbaum, Chief Judge, U.S. Dist. Court for the Dist. of 
Minn. (Aug. 9, 2002); letter from Hon. James M. Rosenbaum, Chief Judge, 
U.S. Dist. Court for the Dist. of Minn., to Hon. Lamar Smith, Chairman, 
Subcomm. on Crime, Terrorism, and Homeland Sec. (Aug. 30, 2002).
    \21\ Letter from Hon. James M. Rosenbaum, to Hon. Lamar Smith at 2 
(Aug. 9, 2002).
    \22\ U.S. v. Joel Arellano Plateado, No. 00-CR-327(10)(JMR) (D. 
Minn. Apr. 4, 2001) (Judgment and Commitment Order at 4).
    \23\ See letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum 
at 3 (July 19, 2002); letter from Hon. James M. Rosenbaum, to Hon. 
Lamar Smith at 2 (Aug. 9, 2002).
---------------------------------------------------------------------------
    Further, in response to subsequent requests from the 
Subcommittee,\24\ Judge Rosenbaum provided additional Judgment 
and Commitment Orders which also reflect that he granted 
downward departures in two other cases ``for the reasons set 
forth at the hearing[s].'' \25\ Rather than provide the 
Subcommittee with his reasons in any of these cases, Judge 
Rosenbaum suggested that the Subcommittee seek to order 
transcripts of the sentencing proceedings and provided the name 
and telephone number of his court reporter.\26\ He also wrote, 
``I am--and remain--happy to provide the Subcommittee such 
assistance as I am able to provide.'' \27\ The Subcommittee 
thereafter sought to obtain the transcripts of certain relevant 
proceedings.\28\
---------------------------------------------------------------------------
    \24\ See letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum 
at 3 (July 19, 2002).
    \25\ U.S. v. Miguel Angel Larios-Verduzco, No. 01-CR-228(JMR) (D. 
Minn. June 13, 2002) (Judgment and Commitment Order at 4); U.S. v. 
Eduardo Pelayo-Ruelas, No. 01-CR-228(01)(JMR/FLN) (D. Minn. Aug. 2, 
2002) (Judgment and Commitment Order at 5).
    \26\ See letter from Hon. James M. Rosenbaum, to Hon. Lamar Smith 
at 2 (Aug. 9, 2002).
    \27\ Letter from Hon. James M. Rosenbaum, to Hon. Lamar Smith at 2 
(Aug. 9, 2002).
    \28\ The court-reporter was exceedingly professional and helpful 
concerning this request. It nevertheless resulted in both delay in 
receiving the information, an obligation of public funds and 
expenditures of court and Subcommittee staff time to obtain information 
that Judge Rosenbaum possessed, but would not reveal.
---------------------------------------------------------------------------

 I. JUDGE ROSENBAUM'S PREPARED STATEMENT SUGGESTED THAT DEFENDANTS ARE 
               CONVICTED ON LEGALLY INSUFFICIENT EVIDENCE

    At the May 14, 2002 hearing, Judge Rosenbaum testified 
against the bill and advocated strongly that the Sentencing 
Commission's amendment to cap the base offense level for those 
trafficking in large quantities of drugs was very much needed 
to bring equity to the Federal sentencing system. In describing 
those persons who would be affected by Amendment 4, he 
testified:

        they are the women whose boyfriends tell them, ``A 
        package will be coming by mail or from a package 
        delivery service in the next 2 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.\29\
---------------------------------------------------------------------------
    \29\ H.R. 4689 Hearing at 19-20 (Prepared Statement of Judge 
Rosenbaum) (emphasis added). Judge Rosenbaum also testified concerning 
an individual whom he identified as ``EPR,'' telling the Subcommittee 
that ``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.'' Id. at 21 (emphasis added).

    That a sitting Federal Judge would suggest, as he did in 
his prepared statement, that persons can be, and are convicted 
on no more evidence than receiving a package at the request of 
a boyfriend is remarkable. If true, it raises serious concerns 
that judges are knowingly permitting such convictions despite 
the extraordinary power entrusted to them by Congress to 
prevent convictions based on insufficient evidence.\30\ If not 
true, the falsity of that suggestion, cloaked in the majesty of 
a Federal judicial officer, can only serve to erode respect for 
the rule of law in the public's mind and in the mind of those 
who stand accused of crimes.
---------------------------------------------------------------------------
    \30\ Fed. R. Crim. P. 29 (Motion for Judgment of Acquittal). Rule 
29 states: ``[t]he court on motion of a defendant or of its own motion 
shall order the entry of judgment of acquittal of one or more offenses 
charged in the indictment or information after the evidence on either 
side is closed if the evidence is insufficient to sustain a conviction 
of such offense or offenses.'' Id. (emphasis added).
---------------------------------------------------------------------------
    Accordingly, Chairman Smith pressed Judge Rosenbaum on this 
very point:

        Mr. SMITH . . . Judge Rosenbaum . . . In all of 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. . . .

        My question is this, going back to one of the examples 
        that you gave--I think it was the example of the 
        girlfriend, you said, [who was] 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 . . .\31\
---------------------------------------------------------------------------
    \31\ H.R. 4689 Hearing at 28 (question from Chairman Smith).

The Judge then acknowledged that the suggestion in his prepared 
statement was not correct and that persons convicted did know 
---------------------------------------------------------------------------
that they were carrying or receiving illegal drugs:

        Judge ROSENBAUM. . . . They were all convicted of 
        crimes that they committed. They knew what they were 
        doing . . . they understood what they were doing.\32\
---------------------------------------------------------------------------
    \32\ Id. at 28 (testimony of Hon. James M. Rosenbaum, Chief Judge, 
U.S. Dist. Court of the Dist. of Minn. [hereinafter Testimony of Judge 
Rosenbaum]). Further, Judge Rosenbaum thereafter was unable to identify 
any case in which he declined to grant a motion for judgment of 
acquittal under Rule 29, Federal Rules of Criminal Procedure, where the 
facts were as he described in his written statement: that is, where the 
only evidence adduced at trial was of the woman defendant's boyfriend 
[who] told her `` [a] package will be coming by mail or from a package 
delivery service in the next 2 weeks. Keep it for me, and I'll give you 
$200, or maybe I'll buy you food for the kids.'' Id. at 19. See letter 
from Hon. Lamar Smith, to Hon. James M. Rosenbaum at 3 (May 22, 2002) 
(question 11); letter from Hon. James M. Rosenbaum, to Hon. Lamar Smith 
(June 6, 2002).
---------------------------------------------------------------------------

 II. JUDGE ROSENBAUM'S TESTIMONY INACCURATELY SUGGESTED A REFERENCE TO 
               AN ACTUAL CASE IN SUPPORT OF THE AMENDMENT

    In continuing his response to the Chairman's question at 
the May 14, 2002 hearing, Judge Rosenbaum added:

        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.\33\
---------------------------------------------------------------------------
    \33\ H.R. 4689 Hearing at 28 (Testimony of Judge Rosenbaum) 
(emphasis added).

This certainly gave every indication that he was speaking of an 
actual defendant, with an actual boyfriend, and that Judge 
Rosenbaum had personal knowledge about the nature of their 
relationship. Yet, in his June 6, 2002 response to the 
Subcommittee's follow-up questions seeking identification of 
this case,\34\ the Judge revealed that:
---------------------------------------------------------------------------
    \34\ See letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum 
at 3 (May 22, 2002) (question 11).

        that statement concerns no particular case. The 
        statement distills conversations I have had over 
        several years with inmates--particularly women--in 
        Federal Correctional Institutions I have visited. The 
        statement was offered to illustrate the situation in 
        which minor or minimal participants frequently find 
        themselves.\35\
---------------------------------------------------------------------------
    \35\ Letter from Hon. James M. Rosenbaum, to Hon. Lamar Smith at 2 
(June 6, 2002) (emphasis added).
---------------------------------------------------------------------------

    III. JUDGE ROSENBAUM'S INACCURATE REPRESENTATIONS REGARDING THE 
SENTENCES IN CASES BEFORE HIM AND OTHER FEDERAL DISTRICT COURTS CANNOT 
              BE USED TO JUSTIFY SUPPORT OF THE AMENDMENT

1. Judge Rosenbaum Inaccurately represented the Sentence of ``VHD''
    The case of ``VHD'' (Vimalam Hamilton Delaney) cannot 
support the Amendment because Judge Rosenbaum misrepresented 
the sentence that ``VHD'' received under the existing 
guidelines. Judge Rosenbaum testified:

        Now, let me tell you about VHD . . . Under the present 
        Guidelines she was rated at a level 27, and subject to 
        a sentence of 87-108 months, or 7-9 years. Under the 
        proposed amendment, she would have had a base offense 
        level of 25 and faced 57-71 months, or between 5-6 
        years.\36\
---------------------------------------------------------------------------
    \36\ H.R. 4689 Hearing at 20 (Prepared Statement of Judge 
Rosenbaum).

Judge Rosenbaum did not to disclose that in this case he had 
actually departed below the guideline range (as he is permitted 
to do in the appropriate case under the existing guidelines) 
and sentenced ``VHD'' to 36 months.\37\ This sentence is well 
below the minimum of the guideline range under either the 
current guidelines or the amendment proposed by the Commission. 
Yet, Judge Rosenbaum did not disclose to the Subcommittee this 
essential fact and gave every indication that he was required 
to sentence this poor woman to an inordinately long term 
because of the harshness of the current guidelines--guidelines 
so harsh they need to be amended to provide relief lest 
injustice occur.
---------------------------------------------------------------------------
    \37\ U.S. v. Vimalam Hamilton Delany, No. 99-CR-51 (010) (JMR) (D. 
Minn. Aug. 24, 2000) (Judgment and Commitment Order at 2, 4).
---------------------------------------------------------------------------
    In fact, no amendment is needed at all. The current 
guidelines provide for departures and sentences below the range 
when appropriate,\38\ as William G. Otis made clear in his 
testimony to the Subcommittee:
---------------------------------------------------------------------------
    \38\ See Sentencing Guidelines Sec. 5K2.0. Section 3553(b) of 18 
U.S.C. states that ``[t]he court shall impose a sentence of the kind, 
and within the range . . . unless the court finds that there exists an 
aggravating or mitigating circumstance of a kind, or to a degree not 
adequately taken into consideration by the Sentencing Commission.'' Id.

        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 he 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.\39\
---------------------------------------------------------------------------
    \39\ H.R. 4689 Hearing at 23 (testimony of William G. Otis, Adjunct 
Professor of Law, George Mason Univ. [hereinafter ``Testimony of 
William G. Otis'']).

---------------------------------------------------------------------------
He further testified:

        With so many avenues of mitigation already built into 
        the system, there is no occasion for an amendment . . 
        .\40\
---------------------------------------------------------------------------
    \40\ Id. at 23 (Testimony of William G. Otis).
---------------------------------------------------------------------------
2. Judge Rosenbaum Inaccurately Represented the Sentence of ``JAP''
    Judge Rosenbaum also misstated the sentence imposed on 
``JAP,'' (Joel Arellano Plateado) which cannot be used to 
justify the Amendment. Judge Rosenbaum testified that:

        Twenty-one year old JAP . . . was characterized as a 
        level 34 offender, resulting in a range of 57-71 
        months, or 5-6 years, after reductions for role, 
        acceptance, and safety valve. Under the change [of the 
        Commission's amendment], he would have had a range of 
        37-46 months, or 3-4 years.\41\
---------------------------------------------------------------------------
    \41\ Id. at 21 (Prepared Statement of Judge Rosenbaum).

    Judge Rosenbaum did not tell the Subcommittee that in this 
case he had also departed downward for ``JAP'' under the 
existing guidelines to impose a sentence of 36 months, which 
represents a sentence below the bottom of the guideline range 
under either the existing or amended guidelines.\42\
---------------------------------------------------------------------------
    \42\ U.S. v. Joel Arellano Plateado, No. 00-CR-327(10)(JMR) (D. 
Minn. Apr. 4, 2001) (Judgment and Commitment Order at 2 , 4).
---------------------------------------------------------------------------
3. Judge Rosenbaum Misstated the Circumstances Surrounding the 
        Sentencing of ``FDD''
    Judge Rosenbaum misstated the circumstances surrounding the 
sentencing of ``FDD'' (Fernando Dwayne Davis), which cannot be 
used to justify the Amendment. Judge Rosenbaum testified that:

        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.\43\
---------------------------------------------------------------------------
    \43\ H.R. 4689 Hearing at 21 (Prepared Statement of Judge 
Rosenbaum).

    To describe ``FDD'' merely as, ``one of the drivers in the 
course of the drug distribution chain,'' understates the 
seriousness of the defendant's criminal conduct and the extent 
of his involvement as a full and ongoing participant in the 
conspiracy as set forth in the sentencing judge's written 
findings attached to the Judgement and Commitment Order: \44\
---------------------------------------------------------------------------
    \44\ U.S. v. Fernando Dwayne Davis, No. 4:95CR00103-001 (D. Minn. 
Jan. 14, 1997) (Judgment and Commitment Order).

        [T]he defendant was present at Patsy Kalfayan's 
        apartment in the early morning on November 1, 1995 when 
        Gerald Jarret made him and the other co-defendants 
        remove their clothing when some cocaine base was 
        misplaced. The defendant was also present when Carlos 
        Cleveland found the missing cocaine base in the hood of 
        his coat in Detroit at the home of a person known only 
        as Tony.\45\
---------------------------------------------------------------------------
    \45\ Id. (Judgment and Commitment Order, Findings of Fact at 3).

        The defendant drove the other members of the conspiracy 
        to Minneapolis, met Steven Howard, who was transporting 
        weapons for the defendants, at the Minneapolis bus 
        station, and registered for a room at the Red Roof 
        Inn.\46\
---------------------------------------------------------------------------
    \46\ Id. at 4. In addition, Davis was present, along with all other 
co-defendants (except one) on November 3, 1995 at the Red Roof Inn and 
was observed by law enforcement surveillance. Government's Memorandum 
in Response to Defendants' Position with Respect to Sentencing, page 3, 
U.S. v. Fernando Dwayne Davis, et al, 4:95CR000103-001. This was the 
day that the search warrant was executed at that location where crack 
cocaine, drug paraphernalia and incriminating documentary evidence was 
seized. Id.

The Judgment and Commitment Order further reflects the fact 
that the sentencing judge attributed drug amounts to this 
defendant based upon his knowledge and involvement in aspects 
of the conspiracy beyond that of ``one of the drivers.'' \47\
---------------------------------------------------------------------------
    \47\ U.S. v. Fernando Dwayne Davis, No. 4:95CR00103-001 (D. Minn. 
Jan. 14, 1997) (Judgment and Commitment Order, Findings of Fact at 3).
---------------------------------------------------------------------------
    In addition to minimizing ``FDD's'' involvement, Judge 
Rosenbaum did not to tell the Subcommittee that the pre-
sentence report listed factors which the probation officer who 
prepared the report believed ``may warrant an upward 
departure.'' \48\ While the Subcommittee discovered this only 
upon review of the Judgment and Commitment Order, Judge 
Rosenbaum told Chairman Smith, he based his testimony ``on case 
summaries contained in Pre-Sentence Reports (PSRs).'' \49\
---------------------------------------------------------------------------
    \48\ Id. at 1 (emphasis added). ``Part E of the PSR, paragraphs 
123-27, presents a brief summary of factors the probation officer 
believes may warrant a departure.'' Id.
    \49\ Letter from Hon. James M. Rosenbaum, to Hon. Lamar Smith at 1 
(June 6, 2002).
---------------------------------------------------------------------------
    Despite his prior review of the pre-sentence report 
containing this information, Judge Rosenbaum similarly did not 
tell the Subcommittee that ``FDD'' had also been convicted of 
aiding and abetting the use of a firearm in connection with his 
drug trafficking offense,\50\ and that ``FDD'' ``participated 
in the beating of [cooperating witness] Tonya Washington.'' 
\51\ While failing to disclose these facts, Judge Rosenbaum 
reassuringly testified ``it would seem 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.'' 
\52\
---------------------------------------------------------------------------
    \50\ U.S. v. Fernando Dwayne Davis, No. 4:95CR00103-001 (D. Minn. 
Jan. 14, 1997) (Judgment and Commitment Order, at 1, 2).
    \51\ Id. at 4.
    \52\ H.R. 4689 Hearing at 20 (Prepared Statement of Judge 
Rosenbaum).
---------------------------------------------------------------------------
4. The Record Regarding ``MGA'' Does Not Justify the Amendment Because 
        She Received a Sentence of Only Six Months Under Existing 
        Guidelines
    Judge Rosenbaum attempted to support his claim that the 
Amendment is necessary because of the case of ``MGA'' (Mari 
Guadalupe Avalos). Judge Rosenbaum testified:

        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 57-71 months, or 5 to 
        7 years, after reductions for role, acceptance, and 
        safety valve. Under the proposed change, her range 
        would instead be 37-46 months, or 3-4 years.\53\
---------------------------------------------------------------------------
    \53\ Id. at 21.

    Yet, Judge Rosenbaum did not tell the Subcommittee that the 
``proposed change,'' which he suggested at every step was so 
badly needed to prevent injustice, would be irrelevant to 
``MGA's'' actual sentence of only 6 months. He did not tell the 
Subcommittee that ``MGA'' had in fact received a downward 
departure upon motion of the government for her substantial 
assistance to the United States in the prosecution of others 
under the existing guidelines and received a sentence of only 
``6 months with work-release privileges or accommodations to 
attend school . . .'' \54\ This sentence is well below the 
guideline range under either the existing or amended 
guidelines.
---------------------------------------------------------------------------
    \54\ U.S. v. Maria Guadalupe Avalos, No. 98-137(12)(DSD/AJB) (D. 
Minn. May 24, 1999) (Judgment and Commitment Order at 2, 7).
---------------------------------------------------------------------------
5. The Proposed Amendment Would be Irrelevant to ``AC'' Who Received a 
        Downward Departure Under Existing Guidelines.
    Similarly, Judge Rosenbaum did not tell the Subcommittee 
that the proposed amendment to the guidelines would also be 
irrelevant to ``AC,'' (Alecia Colmenares) who it turns out also 
received a downward departure from her sentencing range under 
the existing guidelines and was sentenced to only 24 
months.\55\ Instead he suggested at the hearing that the 
amendment was needed because:
---------------------------------------------------------------------------
    \55\ U.S. v. Alecia Colmenares, No. 99-351(10)(ADM/AJB) (D. Minn. 
Sept. 5, 2000) (Judgment and Commitment Order at 2, 5).

        [``AC's''] base offense level was 36 before reductions 
        for role (as a minimal participant), safety valve, and 
        acceptance, resulting in a guideline range of 70-87 
        months or 6-7 years. Under the new guideline, her range 
        would instead be 37-46 months, or 3-4 years.'' \56\
---------------------------------------------------------------------------
    \56\ H.R. 4689 Hearing at 21 (Prepared Statement of Judge 
Rosenbaum).
---------------------------------------------------------------------------
6. The Proposed Amendment Would Have No Effect on ``ST'' Who Received a 
        Downward Departure Under Existing Guidelines
    Judge Rosenbaum did not tell the Subcommittee that the 
proposed amendment would also be irrelevant to ``ST'' (Stephen 
Tiarks) who in fact received a downward departure from his 
sentencing range under the existing guidelines. The Judgment 
and Commitment Order reveals that he received a sentence of 
only 42 months.\57\ But at the hearing, Judge Rosenbaum used 
``ST'' as an example of why the Commission's amendment was 
needed, stating:
---------------------------------------------------------------------------
    \57\ U.S. v. Stephen Tiarks, No. 98-137(11)(DSD/AJB) (D. Minn. June 
2, 1999) (Judgment and Commitment Order at 2).

        his base offense level was 38, which resulted in a 
        guideline range of 108-135 months, or 8-11 years, after 
        reductions for role, acceptance, and safety valve. With 
        the change in the guidelines, his range would instead 
        be 46-57 months, or between 4-5 years.'' \58\
---------------------------------------------------------------------------
    \58\ H.R. 4689 Hearing at 21 (Prepared Statement of Judge 
Rosenbaum).
---------------------------------------------------------------------------
7. ``ERR'' Was Denied A Lower Sentence Through the Exercise of the 
        Sentencing Judge's Discretion, Not the Operation of the 
        Guidelines
    Judge Rosenbaum sought to justify the amendment through 
reference to ``ERR'' (Eliseo Rodrigo Romo) whom he described as 
having:

        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 of I . . . .\59\
---------------------------------------------------------------------------
    \59\ Id.

    Judge Rosenbaum did not inform the Subcommittee that, 
although the sentencing judge in that case had discretion under 
the existing guidelines to reduce ``ERR's'' sentence under the 
so-called ``safety valve'' provision \60\ (an existing 
provision permitting further sentence reduction for ``low-
level'' defendants), he specifically declined to do so and 
stated on the record:
---------------------------------------------------------------------------
    \60\ The so-called ``Safety Valve'' provision allows the court to 
sentence a qualifying defendant without regard to otherwise applicable 
mandatory minimum sentences and to further reduce the guideline range. 
It is available only to persons who, among other things, are found not 
to be subject to aggravating role enhancements. See 18 U.S.C. 
Sec. 3553(f) (2002); see also Sentencing Guidelines Sec. 5C1.2, 
Limitation on Applicability of Statutory Minimum Sentences in Certain 
Cases, and Sec. 2D1.1(b)(6)(providing for 2 level reduction under 
guideline calculation).

        Long periods of incarceration, are not things that this 
        Court likes to impose on people. . . . Mr. Romo, your 
        conduct in this case, your conduct involved in this 
        drug business, your conduct involving other matters 
        that are outside of this case but are contained within 
        the presentence investigation report is purely 
        reprehensible conduct. It is the kind of conduct that a 
        civil society cannot stand. And it is the kind of 
        conduct that is wrong.\61\
---------------------------------------------------------------------------
    \61\ U.S. v. Eliseo Rodrigo Romo, Crim. No. 3-95-52, (D. Minn. Nov. 
17, 1995) (Transcript of Sentencing Proceeding at 19-20).
---------------------------------------------------------------------------
8. ``HAG'' Received a Downward Departure For Substantial Assistance and 
        Was Sentenced to Only 24 Months.
    Judge Rosenbaum's testimony ignored the downward departure 
received by ``HAG'' for substantial assistance. Judge Rosenbaum 
testified that:

        She had a criminal history category II, because of 2 
        prior convictions for theft and careless driving. 
        Without a change in the guidelines, her base offense 
        level was 36. The presentence investigation concluded 
        she was entitled to a reduction for minor participant. 
        Her guideline range was 121-151 months, or 10-13 years, 
        after reductions for role and acceptance. With the 
        proposed guideline change, her range would instead be 
        63-78 months, or between 5-7 years.\62\
---------------------------------------------------------------------------
    \62\ H.R. 4689 Hearing at 20 (Prepared Statement of Judge 
Rosenbaum).

Judge Rosenbaum did not tell the Subcommittee that under the 
existing guidelines, ``HAG'' (Heather Ann Genz) in fact 
received a sentence of only 24 months, the sentencing judge 
having granted a downward departure for Genz's substantial 
assistance to the United States in the prosecution of others 
pursuant to Guideline Sec. 5K1.1.\63\
---------------------------------------------------------------------------
    \63\ U.S. v. Heather Ann Genz, No. 99-351(9)(ADM/AJB) (D. Minn. 
Sept. 7, 2000) (Judgment and Commitment Order at 2, 5).
---------------------------------------------------------------------------
    Because the Judgment and Commitment Order received by the 
Subcommittee in the case of Heather Ann Genz reflected a 
criminal history category I and a guideline range of 87-108 
months,\64\ which was inconsistent with Judge Rosenbaum's 
testimony, the Subcommittee wrote to Judge Rosenbaum to confirm 
that his testimony concerning ``HAG'' in fact referred to 
Heather Ann Genz.\65\ In response, Judge Rosenbaum acknowledged 
that ``[a]s you correctly perceived, `HAG' pertains to the case 
of Heather Ann Genz.'' \66\ He then informed the Subcommittee 
that his statement and testimony before the Subcommittee 
concerning ``HAG'' ``did not refer to the actual sentence 
imposed by Judge Montgomery.'' \67\ Judge Rosenbaum also told 
the Subcommittee:
---------------------------------------------------------------------------
    \64\ Id. at 5.
    \65\ Letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum (Aug. 
9, 2002).
    \66\ Letter from Hon. James M. Rosenbaum, to Hon. Lamar Smith at 1 
(Aug. 30, 2002).
    \67\ Id. (emphasis added). Judge Rosenbaum also stated, ``Until 
your letter, I had not reviewed the sentencing transcript (which had 
not been prepared, since the sentence was--apparently--not appealed).'' 
Id.

        My written statement submitted to the Subcommittee as 
        part of my testimony (in the portion relating to HAG) 
        stated, ``the presentence investigation concluded . . 
        .'' These words are in the statement, because the 
        testimony relating to HAG was based on her presentence 
        investigation.\68\
---------------------------------------------------------------------------
    \68\ Id.

    This appears to suggest that his prepared statement 
attributed all of the information concerning ``HAG's'' 
guideline calculation to the presentence investigation. It in 
fact did not. The only attribution to the presentence 
investigation contained in his prepared statement was with 
respect to the reduction for minor participant--``[t]he 
presentence investigation concluded she was entitled to a 
reduction for minor participant.'' \69\
---------------------------------------------------------------------------
    \69\ H.R. 4689 Hearing at 20 (Prepared Statement of Judge 
Rosenbaum).
---------------------------------------------------------------------------
    Both before and after this sentence, Judge Rosenbaum 
stated, without any reference to the source of the information, 
that: ``HAG'' ``had a criminal history category II, because of 
2 prior convictions for theft and careless driving;'' ``her 
base offense level was 36;'' and ``[h]er guideline range was 
121--151 months, or 10--13 years, after reductions for role and 
acceptance.'' \70\ Further, this information was submitted 
after Judge Rosenbaum informed the Subcommittee at the 
beginning of his statement: ``[l]et me give you a few examples 
of the effects of this change if adopted,'' and that this was 
one of the ``examples which are all pulled from recent cases in 
the District of Minnesota.'' \71\
---------------------------------------------------------------------------
    \70\ Id. (emphasis added).
    \71\ Id. (emphasis added). After the Subcommittee first requested 
information concerning the actual cases (see letter from Hon. Lamar 
Smith, to Hon. James M. Rosenbaum (May 22, 2002)), Judge Rosenbaum 
informed the Subcommittee that ``these examples were based on case 
summaries contained in Pre-sentence Reports (PSR's)'' and asked 
``[b]ecause the factual information in my testimony was taken from the 
confidential PSRs, however, I ask that you do not publicly cross 
reference my testimony with the Judgment and Commitment Orders . . .'' 
Letter from Hon. James M. Rosenbaum, to Hon. Lamar Smith at 1 (June 6, 
2002).
---------------------------------------------------------------------------
    It is, of course, difficult to understand why Judge 
Rosenbaum referenced presentence investigative calculations by 
probation officers contained in confidential records, rather 
than actual calculations determined by sentencing judges 
contained in public records, or why he believed that such 
information (particularly when it conflicted with actual 
sentences) was relevant.\72\ While it may be possible to 
attribute the inaccurate information to his failure to inquire 
as to the actual sentence with respect to cases assigned to 
other judges,\73\ the same cannot be said with respect to his 
own cases. With respect to his own cases, one can assume he was 
fully aware of the actual guideline determinations as well as 
the actual sentence imposed.
---------------------------------------------------------------------------
    \72\ Indeed, as Judge Rosenbaum acknowledged, it is the sentencing 
Judge who makes the determinations concerning all of these sentencing 
issues. See letter from Hon. James M. Rosenbaum, to Hon. Lamar Smith, 
at 2 (Aug. 30, 2002) (``the confusion, of course, lies in the fact that 
the sentencing judge made her own calculations and the adjustments she 
felt were appropriate at the actual sentencing. (These are reflected in 
the Judgment and Commitment Orders, which I have supplied pursuant to 
your previous request.)'').
    \73\ Although even a cursory review of the Judgment and Commitment 
Order would reveal this information.
---------------------------------------------------------------------------
    Regardless of sentencing judge, in the examples cited by 
Judge Rosenbaum where the ``presumptive sentence'' \74\ 
conflicted with the actual sentence, the ``presumptive 
sentence'' was greater than the undisclosed actual sentence. 
Many were considerably greater. This could fairly be said to at 
least have the effect of making it falsely appear as though, 
these low-level defendants really were getting sentenced under 
the existing guidelines ``the same way it sentences the 
planners and enterprise-operator,'' \75\ when in fact they were 
not.
---------------------------------------------------------------------------
    \74\ This is Judge Rosenbaum's term. See letter from Hon. James M. 
Rosenbaum, to Hon. Lamar Smith, at 1 (Aug. 30, 2002).
    \75\ See H.R. 4689 Hearing at 22 (Prepared Statement of Judge 
Rosenbaum).
---------------------------------------------------------------------------
9. Judge Rosenbaum's Testimony Regarding Alleged Sentencing Anomalies 
        Fails to Provide Any Support for the Proposed Amendment
    The Committee concludes that the cases cited by Judge 
Rosenbaum for which the Subcommittee has obtained substantial 
records, do not provide support for the proposed amendment. 
Rather, the records establish that sentencing judges are able 
to impose lower sentences for minor role defendants under the 
myriad provisions of the existing guidelines.

IV. JUDGE ROSENBAUM'S TESTIMONY REGARDING THE ATTRIBUTABLE DRUG AMOUNTS 
       WAS INACCURATE AND DOES NOT JUSTIFY THE PROPOSED AMENDMENT

    Judge Rosenbaum's testimony regarding the quantity of drugs 
attributable to each defendant in a multiple defendant offense 
suggests that the same quantity of drugs is attributable to 
every participant in the scheme. This is simply inaccurate--a 
defendant's sentence depends on the defendant's personal 
involvement with an amount of drugs and the foreseeability of 
any additional amounts involved in the offense. Not only is 
this true as a general matter, it is true in specific examples 
that Judge Rosenbaum cited. Judge Rosenbaum testified:

        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.\76\
---------------------------------------------------------------------------
    \76\ Id. at 20 (Prepared Statement of Judge Rosenbaum) (emphasis 
added). See also id. at 19 (``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.'') (emphasis added); id. at 19-20 (``under the present 
Guidelines, the sentencing decision is driven by the quantity of drugs 
in the overall deal. And it does not at all reflect the minor or 
minimal participant's reality.'') (emphasis added).

Judge Rosenbaum further responded to questions from Mr. Scott 
---------------------------------------------------------------------------
as follows:

          Mr. Scott. The way I understand they add this up, if 
        you were transporting the half [kilogram], and your 
        buddy is transporting 150 [kilograms], 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 make the profits, 
        regardless of which one is transporting it.
          Mr. Scott. So everybody gets sentenced the same?
        Judge Rosenbaum. Yes, sir.\77\
---------------------------------------------------------------------------
    \77\ Id. at 30 (emphasis added). But see Judge Rosenbaum's answer 
to another question by Mr. Scott, concerning the application of 
mandatory minimum sentences on kingpins and mules. H.R. 4689 Hearing at 
30 (``Let me be fair, Mr. Otis was also correct. It is addressed to the 
sound discretion of the court.''). It is not at all clear what Judge 
Rosenbaum is attempting to say here in as much as mandatory minimums 
are not subject to the court's discretion, whereas sentencing guideline 
factors often are.

    However, the current guidelines provide that a defendant is 
only charged with the amount of drugs with which he was 
directly involved \78\ and any additional amount of drugs 
distributed by others that was reasonably foreseeable and 
within the scope of the criminal activity which he jointly 
undertook with such others.\79\ The example given by Mr. Scott 
and embraced by Judge Rosenbaum would only result in 
attribution of the larger drug amounts to the half-kilo 
defendant if the court determined from the evidence that the 
larger amount was both reasonably foreseeable by that defendant 
and was within the scope of joint criminal activity with the 
person trafficking the 150 kilograms. Judge Rosenbaum, who 
elsewhere informed the Subcommittee that he deals with criminal 
drug cases ``every day,'' \80\ had an obligation to provide 
this information in response to Mr. Scott's question and 
elsewhere, but chose not to.\81\
---------------------------------------------------------------------------
    \78\ Sentencing Guideline Sec. 1B1.3 (a)(1)(A) (``all acts and 
omissions committed, aided, abetted, counseled, commanded, induced, 
procured, or willfully caused by the defendant.'').
    \79\ Sentencing Guideline Sec. 1B1.3, Application Note 2(ii).
    \80\ H.R. 4689 Hearing at 22 (Prepared Statement of Judge 
Rosenbaum).
    \81\ Judge Rosenbaum made only a passing reference to 
``forseeability,'' and thereafter agreed that ``everybody gets 
sentenced the same.'' See H.R. 4689 Hearing at 30 (Testimony of Judge 
Rosenbaum).

    Significantly, the current Guidelines additionally provide 
---------------------------------------------------------------------------
that:

        A defendant's relevant conduct does not include conduct 
        of members of a conspiracy prior to the defendant 
        joining the conspiracy, even if the defendant knows of 
        that conduct. (e.g., in the case of a defendant who 
        joins an ongoing drug distribution conspiracy knowing 
        that it had been selling two kilograms of cocaine per 
        week, the cocaine sold prior to the defendant joining 
        the conspiracy is not included as relevant conduct in 
        determining the defendant's offense level).\82\
---------------------------------------------------------------------------
    \82\ Sentencing Guidelines Sec. 1B1.3, Application Note 2 (ii) 
(emphasis added). This is an extraordinary benefit to defendants 
convicted of drug trafficking conspiracies, for it is a radical 
departure from traditional conspiracy law. As a general rule, one who 
joins an existing conspiracy is guilty of conspiracy and adopts the 
prior acts of the other conspirators. U.S. v. Green, 600 F.2d 154 (8th 
Cir. 1979); U.S. v. Lemm, 680 F.2d 1193, 1204 (8th Cir. 1982), cert. 
denied, 459 U.S. 1110 (1983). ``[A] person who knowingly, voluntarily 
and intentionally joins an existing conspiracy is responsible for all 
of the conduct of the conspirators from the beginning of the 
conspiracy.'' Modern Fed. Jury Instructions--Criminal Sec. 5 (MB), 
Manual of Model Criminal Jury Instructions for the Dist. Courts of the 
Eighth Circuit at Sec. 5.06I (2002) (Conspiracy: co-conspirator Acts 
and Statements). ``[U]nder the law each member is an agent or partner 
of every other member and each member is bound by or responsible for 
the acts of every other member done to further their scheme.'' Id. at 
Sec. 506D (Conspiracy: Overt Act--explained).

    With respect to this issue, it is significant that Judge 
Rosenbaum has repeatedly declined to provide the Subcommittee 
with information concerning the amount and type of drugs for 
which he determined each defendant was directly involved under 
Guideline Sec. 1B1.3(a)(1)(A), and the amount and type of any 
additional drugs for which he determined the defendant was 
responsible as a result of the application of Guideline 
Sec. 1B1.3 for jointly undertaken criminal activity.\83\ 
Instead, he suggested that we seek to obtain the transcripts of 
the sentencing proceedings in order to find out.\84\
---------------------------------------------------------------------------
    \83\ See letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum 
at 1 (May 22, 2002) (question 4, 5); letter from Hon. James M. 
Rosenbaum, to Hon. Lamar Smith (June 6, 2002); letter from Hon. Lamar 
Smith, to Hon. James M. Rosenbaum, (July 19, 2002); letter from Hon. 
James M. Rosenbaum, to Hon. Lamar Smith (Aug. 9, 2002); letter from 
Hon. Lamar Smith, to Hon. James M. Rosenbaum (Aug. 9, 2002); letter 
from Hon. James M. Rosenbaum, to Hon. Lamar Smith (Aug. 30, 2002).
    \84\ Letter from Hon. James M. Rosenbaum, to Hon. Lamar Smith at 2 
(Aug. 9, 2002). Of course, even transcripts of sentencing hearings 
often do not reveal this information where the judge will often simply 
state on the record that the court adopts paragraphs of the presentence 
report. This is particularly so when the matter is not contested by the 
parties. For example, in U.S. v. Eliseo Rodrigo Romo, the court merely 
acknowledges on the record receipt of the presentence report, adopts it 
and recites his finding of a Total Offense Level. U.S. v. Eliseo 
Rodrigo Romo, No. 3-95-52 (D. Minn. Nov. 17, 1995) (Transcript of 
Criminal Sentencing Proceedings at 2).
---------------------------------------------------------------------------
    Similarly, Judge Rosenbaum has repeatedly declined to 
identify other individuals who were charged as codefendants in 
jointly undertaken criminal activity with each defendant 
referenced by Judge Rosenbaum in his testimony.\85\ Such 
information would have revealed whether more culpable co-
defendants or co-conspirators were appropriately sentenced 
based on attribution of greater drug quantities than that 
attributed to minor or minimal participant defendants 
referenced in Judge Rosenbaum's testimony. However, the 
Subcommittee's efforts to identify co-defendants by other 
investigative means lead to the receipt of additional documents 
containing this information. These documents clearly establish 
that Judge Rosenbaum's testimony (that coconspirators are all 
held accountable for the same drug quantity) was unquestionably 
false.
---------------------------------------------------------------------------
    \85\ See letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum 
at 1 (May 22, 2002) (question 3); letter from Hon. James M. Rosenbaum, 
to Hon. Lamar Smith (June 6, 2002); letter from Hon. Lamar Smith, to 
Hon. James M. Rosenbaum at 3 (July 19, 2002); letter from Hon. James M. 
Rosenbaum, to Hon. Lamar Smith (Aug. 9, 2002).
---------------------------------------------------------------------------
    Two individuals about whom Judge Rosenbaum testified, 
``ST'' (Stephan Tiarks) and ``MGA'' (Maria Guadalupe 
Avalos),\86\ were in fact co-defendants charged in the same 
conspiracy.\87\ Judge Rosenbaum failed to inform the 
Subcommittee of this fact.\88\ Had he done so, it would have 
been apparent to the Subcommittee, even at the hearing on May 
14, 2002 that his suggestion that defendants are sentenced 
based on all of the drugs in an offense was patently false. 
This is so because he testified that ``ST'' received a base 
offense level of 38 for drug quantity, while ``MGA'' had 
received a base offense level of 34.\89\ Base offense level 38 
is assigned to a defendant when 15 kilograms of Methamphetamine 
or more are attributable to that defendant.\90\ Base Offense 
level 34 is assigned to a defendant when a quantity of 
methamphetamine between 1.5 kilograms and 5 kilograms is 
attributable to that defendant.\91\
---------------------------------------------------------------------------
    \86\ See H.R. 4689 Hearing at 21 (Prepared Statement of Judge 
Rosenbaum).
    \87\ U.S. v. Herman Espino, et al, Cr. No. 98-137 (DSD/AJB) (D. 
Minn. Aug. 5, 1998) (Second Superseding Indictment).
    \88\ In response to the Subcommittee's May 22, 2002 inquiry, Judge 
Rosenbaum provided the Subcommittee with copies of the Judgment and 
Commitment Orders for each of these defendants on June 6, 2002. The 
Orders reflect the same case number.
    \89\ See H.R. 4689 Hearing at 21 (Prepared Statement of Judge 
Rosenbaum).
    \90\ Sentencing Guidelines Sec. 2D1.1 (a)(3) and (c) Drug Quantity 
Table (1); see also U.S. v. Stephen Tiarks, No. 98-137(11)(DSD/AJB) (D. 
Minn. June 2, 1999) (Judgment and Commitment Order, Application of 
Guidelines to Facts at 1) (``Defendant is responsible for the 16 
kilograms of methamphetamine he attempted to bring into Minnesota.'').
    \91\ Sentencing Guidelines Sec. 2D1.1 (a)(3) and (c) Drug Quantity 
Table (3).
---------------------------------------------------------------------------
    Subsequent investigation concerning this case reveals even 
further the extent of Judge Rosenbaum's attempts to mislead the 
Subcommittee. The Subcommittee obtained the Judgment and 
Commitment Orders for additional co-defendants whom Judge 
Rosenbaum declined to identify.\92\ From these records, it is 
clear that neither ``ST'' nor ``MGA'' were sentenced for ``the 
quantity of drugs in the whole scheme,'' \93\ or ``the entire 
crime.'' \94\ More culpable co-defendants in that 
methamphetamine conspiracy were determined by the sentencing 
judge to be liable for drug amounts of 34.4 kilograms (Alfredo 
Prieto) \95\ and 55 kilograms (Juan Villanueva Monroy).\96\
---------------------------------------------------------------------------
    \92\ See letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum 
at 1 (May 22, 2002) (question 3); letter from Hon. James M. Rosenbaum, 
to Hon. Lamar Smith (June 6, 2002); letter from Hon. Lamar Smith, to 
Hon. James M. Rosenbaum at 3 (July 19, 2002); letter from Hon. James M. 
Rosenbaum, to Hon. Lamar Smith (Aug. 9, 2002).
    \93\ See H.R. 4689 Hearing at 20 (Prepared Statement of Judge 
Rosenbaum).
    \94\ See id. at 19.
    \95\ U.S. v. Alfred Prieto, No. 98-137(4) (DSD/AJB) (D. Minn. July 
2, 1998) (Judgment and Commitment Order, Findings of Fact at 6).
    \96\ U.S. v. Juan Villanueva Monroy, No. 98-137(3)(DSD/AJB) (D. 
Minn. June 15, 1999) (Judgment and Commitment Order, Findings of Fact 
at 2).
---------------------------------------------------------------------------
    Analysis of the case involving ``HAG'' (Heather Ann Genz) 
and ``AC'' (Alecia Colmenares) similarly reveals that, contrary 
to Judge Rosenbaum's assertion, co-defendants are not sentenced 
based on all drugs in the offense. Through its followup 
investigation, the Subcommittee confirmed that these two 
individuals were in fact co-defendants along with others,\97\ 
charged in a methamphetamine distribution conspiracy.\98\ While 
not indicating that they were co-defendants, Judge Rosenbaum 
nevertheless testified that ``HAG'' and ``AC'' had each 
received a base offense level of 36 based on drug quantity \99\ 
(at least 5 kilograms but less than 15 kilograms of 
methamphetamine).\100\ The Judgment and Commitment Order of 
their co-defendant Jesus Ibarra-Torres \101\ reveals that 
Ibarra-Torres was held accountable for far greater drug 
quantities than either ``HAG'' or ``AC''--(that is 55 pounds or 
25 kilograms of methamphetamine) which would mandate a base 
offense level of 38.\102\
---------------------------------------------------------------------------
    \97\ Whom Judge Rosenbaum declined to identify. See letter from 
Hon. Lamar Smith, to Hon. James M. Rosenbaum at 1 (May 22, 2002) 
(question 3); letter from Hon. James M. Rosenbaum, to Hon. Lamar Smith 
(June 6, 2002); letter from Hon. Lamar Smith, to Hon. James M. 
Rosenbaum at 3 (July 19, 2002); letter from Hon. James M. Rosenbaum, to 
Hon. Lamar Smith (Aug. 9, 2002).
    \98\ U.S. v. Jaime Rosas Mancilla, et al., Cr. No. 99-351 (ADM/AJB) 
(D. Minn. Feb. 8, 2000) (Superseding Indictment).
    \99\ H.R. 4689 Hearing at 20, 21 (Prepared Statement of Judge 
Rosenbaum (``HAG'') and (``AC'')).
    \100\ Sentencing Guidelines Sec. 2D1.1 (a)(3) and (c) Drug Quantity 
Table (2).
    \101\ U.S. v. Jesus Ibarra-Torres, Cr. No. 99-351(2) (D. Minn. Oct. 
2, 2000) ( Judgment and Commitment Order).
    \102\ Sentencing Guidelines Sec. 2D.1.1 (a)(3) and (c) Drug 
Quantity Table (1).
---------------------------------------------------------------------------
    It is not just other judges who make individual 
determinations with respect to each defendant concerning 
attributable drug amounts in conformity with the current 
guideline directives rather than blindly sentencing all 
conspirators based on total quantity involved in the offense. 
Judge Rosenbaum does that as well. In United States v. 
McCarthy, et al,\103\ the evidence at trial established that 
the overall conspiracy imported and attempted to distribute in 
excess of 5,000 pounds of marijuana. However, in sentencing co-
conspirator Michael Ness, Judge Rosenbaum ``did not hold Ness 
accountable for the entire amount chargeable to the conspiracy. 
Rather, he attributed to Ness 220 pounds of marijuana, which is 
the actual amount that [Judge Rosenbaum] determined Ness 
obtained from [a co-conspirator] and distributed.'' \104\
---------------------------------------------------------------------------
    \103\ U.S. v. McCarthy, et al., 97 F. 3d 1562 (8th Cir. 1996).
    \104\ Id. at 1574 (Judge Rosenbaum held Ness ``accountable at 
sentencing only for the relevant conduct of distributing 220 pounds of 
marijuana in Minnesota, even though the jury had found him guilty of 
the larger conspiracy charged in Count I of the Indictment.'') 
(emphasis added).
---------------------------------------------------------------------------
    Judge Rosenbaum made similar individual determinations 
concerning attributable drug amounts for co-defendants in 
United States v. Brown, et al.\105\ In that case ``Hewitt was 
held accountable for all drugs proved to have been distributed 
during the conspiracy,'' \106\ while his co-defendant, Brown 
was held accountable for a lesser quantity of drugs.\107\ In 
upholding Judge Rosenbaum's individual drug attribution 
calculations on appeal, the Court of Appeals for the Eighth 
Circuit properly noted:
---------------------------------------------------------------------------
    \105\ U.S. v. Brown, et al., 148 F. 3d 1003 (8th Cir. 1998).
    \106\ Id. at 1006.
    \107\ Id. at 1009.

        Before a quantity of drugs may be attributed to a 
        particular defendant, the sentencing court is required 
        to find by a preponderance of the evidence that the 
        transaction of activity involving those drugs was in 
        furtherance of the conspiracy and either known to the 
        defendant or reasonably foreseeable to him.\108\
---------------------------------------------------------------------------
    \108\ Id. at 1008 (citation omitted).

    The record clearly illustrates Judge Rosenbaum's past 
practice of sentencing co-defendants according to different 
attributable drug amounts. Despite this practice, and the 
Eighth Circuit's affirmation of the same, Judge Rosenbaum 
suggested otherwise to the Subcommittee.

    V. JUDGE ROSENBAUM'S INACCURATE TESTIMONY THAT MAJOR AND MINOR 
 PARTICIPANTS RECEIVE THE SAME SENTENCE DOES NOT JUSTIFY THE PROPOSED 
                               AMENDMENT

    Judge Rosenbaum's testimony that major and minor 
participants receive the same sentence does not provide any 
support for the proposed amendment. Judge Rosenbaum testified 
at the May 14, 2002 hearing that:

        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 
        planner and enterprise-operator [sic] who set the evil 
        plan in motion and who figures to [sic] to take its 
        profits.\109\
---------------------------------------------------------------------------
    \109\ H.R. 4689 Hearing at 22 (Prepared Statement of Judge 
Rosenbaum (emphasis added)); see also id. at 18 (Testimony of Judge 
Rosenbaum) (``[minor or minimal role players] are being sentenced as 
though they are running the entire enterprise.'').

    Of course, it does no such thing. After determining the 
base offense level (based on amount of drugs), the current 
guidelines structure provides that ``planners and enterprise 
operators'' receive an additional upward adjustment,\110\ while 
minor and minimal participants receive a downward adjustment 
\111\ from their base offense level.\112\ This assures that 
minor and minimal participants are not sentenced ``in the same 
way'' as enterprise operators.
---------------------------------------------------------------------------
    \110\ See Sentencing Guideline Sec. 3B1.1 Aggravating Role.
    \111\ See Sentencing Guideline Sec. 3B1.2. Mitigating Role. As 
William G. Otis testified, ``[a]s 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.'' H.R. 4689 Hearing at 23 (Testimony of William 
G. Otis).
    \112\ As discussed in ``Judge Rosenbaum's Testimony Regarding the 
Attributable Drug Amounts . . .,'' supra, a ``planner and enterprise 
operator'' will usually have a higher base offense level than the minor 
participant even before any upward and downward adjustments are made 
for role in the offense. This is so because a ``planner and operator,'' 
unlike a minor participant, is generally directly involved with a 
greater quantity of drugs and greater quantities still are more 
reasonably foreseeable by him. This further assures, they are not 
sentenced ``in the same way.''
---------------------------------------------------------------------------
    Once again, the facts from the very cases cited by Judge 
Rosenbaum prove this point and do not support his testimony. 
Concerning this issue, it is also important to remember that 
Judge Rosenbaum did not to inform the Subcommittee of the 
material facts and thereafter declined to identify co-
defendants which would have led to the discovery of these 
facts. Judge Rosenbaum provided testimony concerning ``ST'' 
(Stephan Tiarks) and ``MGA'' (Maria Guadalupe Avalos),\113\ and 
outlined some of the many downward adjustments each received 
(mitigating role, and ``safety valve''), yet failed to inform 
the Subcommittee that more culpable co-defendants received 
corresponding upward adjustments to reflect their greater 
culpability.
---------------------------------------------------------------------------
    \113\ H.R. 4689 Hearing at 21 (Prepared Statement of Judge 
Rosenbaum).
---------------------------------------------------------------------------
    ``ST's'' and ``MGA's'' co-defendants Alfredo Prieto, Arturo 
Bahena, and Juan Villanueva Monroy, (in addition to starting 
out with higher base offense levels for drug amounts), each 
received an additional four point increase to reflect their 
respective degree of culpability--that of organizer and leader 
under Guideline Sec. 3B1.1(a).\114\ This, along with a two-
point increase for firearms in the case of Prieto and Monroy, 
resulted in their receiving significantly higher guideline 
ranges and significantly higher sentences. Co-defendant Arturo 
Bahena received a guideline range of 262-327 months, and a 
sentence of 320 months.\115\ Co-defendants Prieto and Monroy 
each received guideline calculations and sentences of life 
compared to 42 months for ``ST'' and 6 months for 
``MGA.''.\116\ These facts reveal Judge Rosenbaum's testimony 
(that the current guidelines structure mandates that low-level 
defendants be sentenced ``the same way'' as high-level 
defendants) to be utterly false.
---------------------------------------------------------------------------
    \114\ U.S. v. Alfred Prieto, No. 98-137(4)(DSD/AJB) (D. Minn. July 
2, 1998) (Judgment and Commitment Order, Findings of Fact at 6); U.S. 
v. Juan Villanueva Monroy, No. 98-137(3)(DSD/AJB) (D. Minn. June 15, 
1999) (Judgment and Commitment Order, Findings of Fact at 2); U.S. v. 
Arturo Bahena, No. 98-137(6)(DSD/AJB) (D. Minn. May 26, 1999) (Judgment 
and Commitment Order, Findings of Fact at 3).
    \115\ U.S. v. Arturo Bahena, No. 98-137(6)(DSD/AJB) (D. Minn. May 
26, 1999) (Judgment and Commitment Order at 2, 7).
    \116\ U.S. v. Alfred Prieto, No. 98-137(4)(DSD/AJB) (D. Minn. July 
2, 1998) (Judgment and Commitment Order at 2, 7). U.S. v. Juan 
Villanueva Monroy, No. 98-137(3)(DSD/AJB) (D. Minn. June 15, 1999) 
(Judgment and Commitment Order at 2, 7).
---------------------------------------------------------------------------
    The facts in yet another case involving two defendants 
cited by Judge Rosenbaum similarly proves the falsity of his 
testimony. He testified concerning the methamphetamine 
conspiracy case involving ``HAG'' (Heather Ann Genz) and ``AC'' 
(Alecia Colmenares). Judge Rosenbaum revealed that each 
received lower guideline ranges due to mitigating role 
reductions,\117\ but failed to inform the Subcommittee that a 
more culpable co-defendant in that case, Jesus Ibarra-Torres, 
not only received a higher starting base offense level for drug 
quantity starting out, but also received an additional increase 
in his guideline range to reflect his greater role in the 
offense--that of supervisor and manager--under Guideline 
Sec. 3B1.1(b).\118\ This co-defendant received a sentence of 
188 months \119\ compared to the 24 months received by ``HAG'' 
and ``AC.'' \120\ Yet Judge Rosenbaum suggested that such co-
defendants are sentenced ``in the same way.'' \121\
---------------------------------------------------------------------------
    \117\ H.R. 4689 Hearing at 20-21 (Prepared Statement of Judge 
Rosenbaum).
    \118\ U.S. v. Jesus Ibarra-Torres, Cr. No. 99-351(2) (D. Minn. Oct. 
2, 2000) ( Judgment and Commitment Order).
    \119\ U.S. v. Jesus Ibarra-Torres, Cr. No. 99-351(2) (D. Minn. Oct. 
2, 2000) ( Judgment and Commitment Order at 2) (even after a downward 
departure from the calculated guideline range of 235-293 months).
    \120\ U.S. v. Heather Ann Genz, No. 99-351(9)(ADM/AJB) (D. Minn. 
Sept. 7, 2000) (Judgment and Commitment Order at 2); U.S. v. Alecia 
Colmenares, No. 99-351(10)(ADM/AJB) (D. Minn. Sept. 5, 2000) (Judgment 
and Commitment Order at 2).
    \121\ H.R. 4689 Hearing at 22 (Prepared Statement of Judge 
Rosenbaum).
---------------------------------------------------------------------------
    In his response to the Subcommittee's follow-up questions, 
Judge Rosenbaum was unable to identify any multiple defendant 
case in which he sentenced a ``planner and enterprise-operator 
who set the [drug trafficking] plan in motion and who figures 
to take its profits'' ``the same way,'' as the minor or minimal 
participant who ``did a days work.'' \122\ He was similarly 
unable to identify any case in which he failed to impose an 
aggravating role upward adjustment for co-defendants who were 
organizers, leaders, managers, or supervisors of the criminal 
activity under Guideline Sec. 3B1.1.\123\
---------------------------------------------------------------------------
    \122\ See letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum 
at 2 (May 22, 2002) (question 9); see also letter from Hon. James M. 
Rosenbaum, to Hon. Lamar Smith (June 6, 2002); letter from Hon. Lamar 
Smith, to Hon. James M. Rosenbaum, (July 19, 2002); letter from Hon. 
James M. Rosenbaum, to Hon. Lamar Smith (Aug. 9, 2002); letter from 
Hon. Lamar Smith, to Hon. James M. Rosenbaum (Aug. 9, 2002); letter 
from Hon. James M. Rosenbaum, to Hon. Lamar Smith (Aug. 30, 2002).
    \123\ See letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum 
at 2 (May 22, 2002) (question 9); see also letter from Hon. James M. 
Rosenbaum, to Hon. Lamar Smith (June 6, 2002); letter from Hon. Lamar 
Smith, to Hon. James M. Rosenbaum, (July 19, 2002); letter from Hon. 
James M. Rosenbaum, to Hon. Lamar Smith (Aug. 9, 2002); letter from 
Hon. Lamar Smith, to Hon. James M. Rosenbaum (Aug. 9, 2002); letter 
from Hon. James M. Rosenbaum, to Hon. Lamar Smith (Aug. 30, 2002).
---------------------------------------------------------------------------
    In addition, under the current guideline structure, (and 
contrary to Judge Rosenbaum's testimony) even after making 
adjustments for role in the offense, the sentencing judge has 
full and unreviewable authority \124\ to sentence minor and 
minimal participants to the low-end of their guideline range, 
while sentencing enterprise operators to the high-end of their 
guideline range.\125\ This further assures that they are not 
sentenced ``in the same way.''
---------------------------------------------------------------------------
    \124\ See Sentencing Guideline Sec. 1B1.4 (``In determining the 
sentence to impose within the guideline range, or whether a departure 
from the guidelines is warranted, the court may consider, without 
limitation, any information concerning the background, character and 
conduct of the defendant, unless otherwise prohibited by law. See 18 
U.S.C. Sec. 3661.''); see also, e.g., U.S. v. Woodrum, 959 F.2d 100 
(8th Cir. 1992) (unless the sentence is in violation of law, a sentence 
within a properly calculated range is not reviewable).
    \125\ The Guideline range varies by roughly 25% from top to bottom. 
H.R. 4689 Hearing at 26 (Prepared Statement of William G. Otis).
---------------------------------------------------------------------------
    Here too, the undisclosed facts of the cases cited by Judge 
Rosenbaum prove this point. In the case involving ``ST'' and 
``MGA,'' \126\ the more culpable co-defendant, Arturo Bahena, 
was sentenced to 320 months which was at the high-end of his 
guideline range of 262-327 months, while ``ST'' and ``MGA'' 
each received downward departures below their guideline 
range.\127\
---------------------------------------------------------------------------
    \126\ H.R. Hearing at 21 (Prepared Statement of Judge Rosenbaum).
    \127\ U.S. v. Arturo Bahena, No. 98-137(6)(DSD/AJB) (D. Minn. May 
26, 1999) (Judgment and Commitment Order at 2, 7).
---------------------------------------------------------------------------
    In his response to the Subcommittee's follow-up questions, 
Judge Rosenbaum was unable to identify any multiple defendant 
case in which he failed to sentence the ``planner and 
enterprise-operator who set the [drug trafficking] plan in 
motion and who figures to take its profits'' at the high-end of 
that defendant's guideline range and/or in which he failed to 
sentence the ``minor or minimal participants who did a day's 
work'' at the low-end of that defendant's range, in order to 
assure that they were not sentenced ``in the same way.'' \128\
---------------------------------------------------------------------------
    \128\ See letter from Hon. Lamar Smith, to Hon. James M. Rosenbaum 
at 2 (May 22, 2002) (question 10); see also letter from Hon. James M. 
Rosenbaum, to Hon. Lamar Smith (June 6, 2002); letter from Hon. Lamar 
Smith, to Hon. James M. Rosenbaum, (July 19, 2002); letter from Hon. 
James M. Rosenbaum, to Hon. Lamar Smith (Aug. 9, 2002); letter from 
Hon. Lamar Smith, to Hon. James M. Rosenbaum (Aug. 9, 2002); letter 
from Hon. James M. Rosenbaum, to Hon. Lamar Smith (Aug. 30, 2002).
---------------------------------------------------------------------------
    Indeed, the Judgment and Commitment Orders for every 
sentenced defendant about whom Judge Rosenbaum testified 
reflect that the court sentenced the minor or minimal 
participant to the very bottom of the guideline range,\129\ or 
departed to achieve an even lower sentence.\130\
---------------------------------------------------------------------------
    \129\ ``[T]he judge is permitted to sentence anywhere within a 
range that varies by roughly 25% from top to bottom. In almost three-
quarters of drug trafficking cases, defendants ALREADY receive 
sentences at the very bottom of their range.'' H.R. 4689 Hearing at 26 
(Prepared Statement of William G. Otis) (emphasis in original).
    \130\ In one instance, U.S. v. Eliseo Rodrigo Romo, No. Cr. 3-95-
52, the sentencing court imposed 120 months because of the application 
of the statutory mandatory minimum. Even there, however, the court 
imposed no more than the minimum required by statute, even though the 
range permitted a higher sentence up to 135 months. See U.S. v. Eliseo 
Rodrigo Romo, Cr. 3-95-52 (D. Minn. Nov. 20, 1995) (Judgment and 
Commitment Order at 2, 4).
---------------------------------------------------------------------------
    Further, the current guideline structure authorizes the 
sentencing court to depart downward (in the case of minor or 
minimal participants) and upward (in the case enterprise 
operators) when a defendant falls outside of the ``heartland'' 
of typical offenders for a reason which the Sentencing 
Commission did not adequately consider.\131\ As William G. Otis 
testified:
---------------------------------------------------------------------------
    \131\ Sentencing Guidelines Sec. 5K2.0 (``The United States Supreme 
Court has determined that, in reviewing a district court's decision to 
depart from the guidelines, appellate courts are to apply an abuse of 
discretion standard, because the decision to depart embodies the 
traditional exercise of discretion by the sentencing court.'').

        If the defendant falls outside of the ``heartland'' of 
        typical offenders for a 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 on this basis, combined with government-
        sponsored departures, are given in an astonishing 43% 
        of all drug trafficking cases.\132\
---------------------------------------------------------------------------
    \132\ H.R. 4689 Hearing at 26-27 (Prepared Statement of William G. 
Otis).

    As noted above, the Judgment and Commitment Orders provided 
to the Subcommittee in response to its inquiries reveal the 
extensive use of downward departures (by Judge Rosenbaum and 
others) to assure that minor participants are not sentenced 
``in the same way'' as those more culpable.
    In sum, Judge Rosenbaum's testimony regarding the 
similarity in sentencing of major and minor participants does 
not support implementation of the proposed amendment. The full 
record in cases on which that testimony relies reflects 
individual determinations in sentencing between major and minor 
participants. Accordingly, these cases demonstrate that the 
proposed amendment is not needed to accomplish the alleged 
purpose of the proposed amendment--to ensure that minor 
participants do not receive the same sentences as major 
participants.

 VI. ASSURANCES OF CATEGORICAL ENHANCEMENTS FOR CRIMINAL HISTORY WERE 
      NOT REFLECTED IN JUDGE ROSENBAUM'S OWN SENTENCING OF ``EPR''

    Judge Rosenbaum sought to assure the Subcommittee that more 
blameworthy defendants would not necessarily receive reduced 
sentences as a result of the application of Amendment 4. At the 
May 14, 2002 hearing, Judge Rosenbaum testified:

        And, of course, the Guidelines' categorical \133\ 
        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.\134\
---------------------------------------------------------------------------
    \133\ Webster's II New Riverside University Dictionary defines 
categorical as: ``utterly without exception of qualification: 
ABSOLUTE.'' Webster's II New Riverside University Dictionary 238 
(1984).
    \134\ H.R. 4689 Hearing at 20 (Prepared Statement of Judge 
Rosenbaum) (footnote added) (emphasis added).

    Yet this is not true.
    After this representation to the Subcommittee and after 
testifying concerning ``EPR'' (Eduardo Pelayo-Ruelas)--``his 
sentence is pending before me,'' \135\ Judge Rosenbaum returned 
to Minnesota and disregarded the criminal history of ``EPR.'' 
On August 2, 2002, Judge Rosenbaum proceeded to ``find it 
appropriate to adjust [the] criminal history'' for ``EPR,'', 
departing downward from criminal history category III to I in 
order to arrive at a new (lower) guideline range.\136\ He did 
this despite the record reflecting that ``EPR'' had, among 
other things, committed the instant offense while on probation 
from another crime,\137\ for which the guidelines expressly 
direct points be included in the criminal history 
calculation.\138\
---------------------------------------------------------------------------
    \135\ Id. at 21. Judge Rosenbaum testified that ``EPRs'' 
``guideline range is 151-293 months.'' It was however 151-188. See U.S. 
v. Eduardo, Pelayo-Ruelas, No. 01-CF-228(10) (D. Minn. Aug. 2, 2002) 
(Judgment and Commitment Order at 5); see also Sentencing Table 
(Offense Level 32, Criminal History Category III); see also U.S. v. 
Eduardo Pelayo-Ruelas, Crim. No. 01-228(JMR/FLN) (D. Minn. Aug. 2, 
2002) (Transcript of Sentencing Hearing). The Committee believes this 
discrepancy to be merely a typographical error.
    \136\ U.S. v. Eduardo Pelayo-Ruelas, Crim. No. 01-228(JMR/FLN) (D. 
Minn. Aug. 2, 2002) (Transcript of Sentencing Hearing at 6).
    \137\ Id. at 6.
    \138\ Sentencing Guidelines Sec. 4A1.1(d) (``Add 2 points if the 
defendant committed the instant offense while under any criminal 
justice sentence, including probation, parole, supervised release, 
imprisonment, work release, or escape status.'').
---------------------------------------------------------------------------
    While the guidelines permit the sentencing court to depart 
downward when it concludes that ``a defendant's criminal 
history category significantly over-represents the seriousness 
of a defendant's criminal history,'' \139\ it is not at all 
clear that Judge Rosenbaum's wholesale recalculation from 
category III to I (rather than II) was appropriate under the 
circumstances.\140\ Regardless, he exercised discretion to 
depart downward on this ground shortly after suggesting to the 
Subcommittee that such discretion did not exist under the 
guidelines. Judge Rosenbaum's knowledge of his ability to 
exercise that discretion in appropriate cases, notwithstanding 
his testimony, vividly demonstrates that ``the Guidelines 
already provide ample authority for more nuanced and targeted 
mitigation in a case where it is truly warranted.'' \141\
---------------------------------------------------------------------------
    \139\ Sentencing Guidelines Sec. 4A1.3. Adequacy of Criminal 
History Category (Policy Statement).
    \140\ For example, in the case of upward departures when a court 
finds the criminal history category significantly under-represents the 
seriousness of a defendant's criminal history, the Guidelines suggest 
``the court should structure the departure by moving incrementally down 
the sentencing table to the next higher offense level . . .'' 
Sentencing Guidelines Sec. 4A1.3. Adequacy of Criminal History Category 
(Policy Statement).
    \141\ H.R. 4689 Hearing at 27 (Prepared Statement William G. Otis).
---------------------------------------------------------------------------

VII. JUDGE ROSENBAUM'S RECORD OF HOSTILITY TO THE GUIDELINES UNDERMINES 
                 THE PERSUASIVE VALUE OF HIS TESTIMONY

    Judge Rosenbaum's testimony before the Subcommittee on the 
application of the guidelines is illuminated by his record on 
the bench concerning the application of the guidelines. In the 
aforementioned case of United States v. Eduardo Pelayo-
Ruelas,\142\ after Judge Rosenbaum reduced the defendant's 
criminal history category to arrive at lower sentencing range, 
he then sua sponte \143\ granted an additional departure below 
the already reduced guideline range of 121-151 months. In 
sentencing the defendant to 120 months, Judge Rosenbaum stated:
---------------------------------------------------------------------------
    \142\ U.S. v. Eduardo Pelayo-Ruelas, No. 01-228 (JMR/FLN) (D. Minn. 
Aug. 2, 2002).
    \143\ Even the defense counsel had asked Judge Rosenbaum to impose 
a sentence only at the very bottom of the guideline range--121 months. 
See U.S. v. Eduardo Pelayo-Ruelas, No. 01-228 (JMR/FLN) (D. Minn. Aug. 
2, 2002) (Transcript of Sentencing Hearing at 6).

        I just sentenced you to 1 month less than the 
        Guidelines. The Guidelines were calculated by a 
        computer which apparently was not satisfied with the 
        fact that 10 years is 120 months. And so we have a 
        ridiculous extra month which I have taken off. Now that 
        represents an illegal departure, and if the United 
        States wants to appeal, I presume that they will have a 
        right to take that appeal. My guess is that they will 
        decline, but if they do, and you need a lawyer to 
        defend you, one will be appointed at no cost.\144\
---------------------------------------------------------------------------
    \144\ U.S. v. Eduardo Pelayo-Rueles, Cr. No. 01-228(JMR/FLN) (D. 
Minn. Aug. 2, 2002) (Transcript of Sentencing Hearing at 10) (emphasis 
added). There can be no better example of the need for statutory 
mandatory minimum sentences, for while Judge Rosenbaum was quite 
willing to violate the guidelines, he apparently felt constrained to 
violate the statutory command that the sentence be not less than 120 
months. See 21 U.S.C. Sec. 841(b)(1)(A)(vii) (2002).

    Significantly, this case is one in which Judge Rosenbaum 
declined to inform the Subcommittee as to the reason for his 
departure, suggesting instead that the Subcommittee order the 
transcript of the proceeding and necessarily obligate public 
funds, and expend time and effort to obtain the information, 
which Judge Rosenbaum readily possessed, but would not 
disclose.
    This is not an isolated instance. In United States v. 
Heilman,\145\ the United States Court of Appeals for the Eighth 
Circuit reversed another of Judge Rosenbaum's unlawful 
departures. In that case, Judge Rosenbaum summarily excluded a 
prior conviction from the defendant's criminal history 
category, lowered the guideline range to 57-71 months, and 
thereafter granted an additional departure below the already 
reduced guideline range to impose a sentence of only 48 months. 
In doing so Judge Rosenbaum stated:
---------------------------------------------------------------------------
    \145\ U.S. v. Heilman, 235 F. 3d 1146 (8th Cir. 2001).

        It represents a downward departure because 57 months is 
        the bottom range of the guidelines, it's kind of 
        calculated because they had a computer that worked out 
        all of these things and it seems to me that 4 years is 
        a reasonable number, and 60 months is too long, and I 
        can parse this out as I want. But it seems to me we're 
        about at a 4-year level and might as well leave it at 
        that level.\146\
---------------------------------------------------------------------------
    \146\ Id. at 1147 (emphasis added).

    At the May 14, 2002 hearing, Judge Rosenbaum concluded his 
---------------------------------------------------------------------------
testimony by appealing to the Subcommittee as follows:

        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.\147\
---------------------------------------------------------------------------
    \147\ H.R. 4689 Hearing at 22 (Prepared Statement of Judge 
Rosenbaum).

    The ``job for which [Judge Rosenbaum] was chosen and 
designated by the Constitution to perform'' requires him to 
follow the law as written, and prohibits him from imposing his 
own views of what the law ought to be.

VIII. JUDGE ROSENBAUM'S TESTIMONY SHOULD BE DISREGARDED AS SUPPORT FOR 
                         THE PROPOSED AMENDMENT

    For the purpose of consideration of the legislation, it is 
sufficient to conclude, as we must, that Judge Rosenbaum's 
testimony was inaccurate. His characterization of the existing 
guidelines and their application are not supported by the facts 
and cannot be relied upon by Congress in consideration of this, 
or any other legislation.
    The true facts, gathered by the Subcommittee and set forth 
herein, both with respect to the existing guidelines and their 
application, and with respect to each of the specific cases he 
referenced, support, not Judge Rosenbaum's position, but that 
of William G. Otis who testified that the amendment is 
``unnecessary, because the Guidelines already provide ample 
authority for more nuanced and targeted mitigation in a case 
where it is truly warranted.'' \148\
---------------------------------------------------------------------------
    \148\ H.R. 4689 Hearing at 26 (Prepared Statement of William G. 
Otis); see also H.R. 4689 Hearing at 22 (Testimony of William G. Otis).
---------------------------------------------------------------------------

IX. JUDGE ROSENBAUM MAY HAVE UNLAWFULLY CLOSED A SENTENCING PROCEEDING 
 THAT WOULD PROVIDE FURTHER EVIDENCE OF THE OPERATION OF THE GUIDELINES

    As previously noted, Judge Rosenbaum has declined to 
provide the Subcommittee with the reasons for his departures, 
suggesting instead that we order the transcripts of the 
proceedings. Because he declined, and because the judgment and 
commitment order in the case of United States v. Miguel Angel 
Larios-Verduzco \149\ reflects a downward departure ``for the 
reasons stated at the hearing,'' \150\ the Subcommittee ordered 
the transcript of the sentencing hearing in that case. Only 
after ordering the transcript was the Subcommittee informed by 
the court-reporter that the sentencing hearing in that case had 
been sealed. The Subcommittee then contacted Judge Rosenbaum's 
chambers and requested a copy of the sealing order. The Judge's 
law clerk informed the Subcommittee that there was no sealing 
order in that case and that Judge Rosenbaum had sealed the 
proceeding from the bench. Judge Rosenbaum, however, authorized 
his law clerk to provide the Subcommittee with redacted 
portions of three pages of the sentencing hearing 
transcript.\151\
---------------------------------------------------------------------------
    \149\ U.S. v. Miguel Angel Larios-Verduzco, 01-Cr-228 (02) (JMR/
FLN) (D. Minn. June 13, 2002).
    \150\ Id. (Judgment and Commitment Order at 4).
    \151\ See facsimile from the Chambers of Judge Rosenbaum, Chief 
Judge, U.S. Dist. Court for the Dist. of Minn, to the Subcommittee on 
Crime, Terrorism, and Homeland Sec. (containing redacted portions of 
the transcript of the sentencing hearing in United States v. Miguel 
Angel Larios-Verduzco, 01-Cr-228 (JMR) (D. Minn. June 13, 2002) 
(portions of pages 6 and 7)).
---------------------------------------------------------------------------
    The portions of the hearing contained in the pages 
provided, however, reflect a proceeding that can best be 
described as peculiar. It appears to reflect sua sponte action 
by Judge Rosenbaum, clearing the courtroom, ordering the 
proceeding sealed \152\, closing the record, and then leaving 
the bench. The portions provided to the Subcommittee 
significantly do not reflect the reason for Judge Rosenbaum 
having granted a downward departure in that case, or any other 
information reflecting the defendant's sentence.
---------------------------------------------------------------------------
    \152\ Id. at 6 (``this transcript is a secret transcript, it is 
sealed. Okay?'').
---------------------------------------------------------------------------
    Judge Rosenbaum's action in conducting the proceeding in 
secret appears to be in conflict with 18 U.S.C. Sec. 3553(b) 
that requires that:

        The court, at the time of sentencing, shall state in 
        open court the reasons for its imposition of the 
        particular sentence, and, if the sentence

        *  *  *

        (2) . . . is outside the range described in section 
        (a)(4), the specific reason for the imposition of a 
        sentence different from that described.\153\
---------------------------------------------------------------------------
    \153\ 18 U.S.C. Sec. 3553(b) (2002) (emphasis added).

    There are certainly mechanisms available to a court in 
appropriate circumstances, consistent with Federal law and 
judicial practice, to conduct certain proceedings or portions 
of proceedings in camera or have matters placed under seal. 
Protecting the safety of a cooperating defendant by not 
publicly disclosing the details of his cooperation is a prime 
and common example,\154\ which can be achieved consistent with 
18 U.S.C. Sec. 3553(b).
---------------------------------------------------------------------------
    \154\ That can be accomplished, and usually is, by providing the 
sentencing judge with an in camera submission detailing the cooperation 
and assistance. It does not require closing the entire proceeding, nor 
does it justify failure to adhere to the command of 18 U.S.C. 
Sec. 3553(b). See Rule 32(c)(4) Fed. R. Crim. P. (``The court's summary 
of information under (c)(3)(A) [`information that if disclosed might 
result in harm, physical or otherwise, to the defendant or other 
persons'] may be in camera''). Rule 32(c)(4) further permits ``[u]pon 
joint motion by the defendant and by the attorney for the Government, 
the court may hear in camera the statements [of counsel, the defendant 
and the victim].'' Significantly, Rule 32 does not authorize the court 
to exclude from the public record the reasons for the imposition of a 
particular sentence.
---------------------------------------------------------------------------
    Judge Rosenbaum has offered no justification for his 
action. In addition to Congress' right to this information in 
the exercise of its oversight responsibilities, plea and 
sentencing hearings are subject to First Amendment right of 
public access.\155\ In appropriate cases, ``Proceedings may be 
closed and, by analogy, documents may be sealed if `specific, 
on the record findings are made demonstrating that ``closure is 
essential to preserve higher values and is narrowly tailored to 
[a compelling government] interest.'' ' '' \156\ If the 
district court decides to close a proceeding or seal certain 
documents, it must explain why closure or sealing was necessary 
and why less restrictive alternatives were not 
appropriate.\157\ Judge Rosenbaum has failed to do so.
---------------------------------------------------------------------------
    \155\ See In re Search Warrant, 855 F.2d 569, 573 (8th Cir. 1988) 
(citing, In re Washington Post Co., 807 F.2d at 389, 389 (4th Cir. 
1989) for the proposition that many circuits include additional court 
proceedings in the right of public access).
    \156\ In re Search Warrant, 855 F.2d at 574 (quoting In re New York 
Times Co., 828 F. 2d 110, 116 (2nd Cir. 1987), cert. denied, 485 U.S. 
977 (1988) (quoting Press-Enterprise II v. Superior Court, 478 U.S. 1, 
13-14 (1986))).
    \157\ Id. at 573 (citing Press-Enterprise II v. Superior Court, 478 
U.S. 1, 13-14 (1986)).
---------------------------------------------------------------------------
    Moreover, the Eighth Circuit mandates that ``the fact that 
a closure or sealing order has been entered must itself be 
noted on the court's docket, absent extraordinary 
circumstances.'' \158\ ``The case dockets maintained by the 
clerk of the district court are public records.'' \159\ The 
Subcommittee obtained a copy of the docketing sheet for this 
case from the district court clerk.\160\ The docket contains no 
notation or any indication of any matter being sealed with 
respect to this defendant's sentencing. Instead the docket 
sheet reflects only the following entry for June 13, 2002:
---------------------------------------------------------------------------
    \158\ Id. at 757 (emphasis added).
    \159\ Id. at 575 (citing U.S. v. Criden, 675 F. 2d 550, 559 (3d 
Cir. 1986)) (emphasis added).
    \160\ See Criminal Docket for Case #01-CR-228-ALL (D. Minn. Aug. 
14, 2001).

        6/13/02 77 MINUTES: before Chief Judge James M. 
        Rosenbaum SENTENCING Miguel Angel Larios (2) to counts 
        1 & 2. Custody of BOP 120 months on counts 1 & 2 to be 
        served concurrently; 5 years supervised release; 
        $200.00 spec assmt. Deft remanded to custody of USM. 
        Court Reporter: Dawn Hansen. 1 pg (lg) [Entry date 07/
        30/02] \161\
---------------------------------------------------------------------------
    \161\ Id. at 13.

The Subcommittee in turn, obtained a copy of the one page 
``minutes'' referenced in the docket sheet entry for June 13, 
2002. Nothing therein contains any indication of any matter 
having been placed under seal.\162\
---------------------------------------------------------------------------
    \162\ Proceedings before United States Judge James M. Rosenbaum, 
SENTENCING, United States v. Miguel Angel Larios, Crim. No. 01-228, (D. 
Minn. June 13, 2002) (Minutes).
---------------------------------------------------------------------------
    The circumstantial record suggests that this case may be 
one in which Judge Rosenbaum granted yet another unlawful 
departure below the guideline range,\163\ which he sought to 
conceal from the public and from the Subcommittee by unlawfully 
sealing the transcript. The Subcommittee's inquiry into this 
matter is ongoing.
---------------------------------------------------------------------------
    \163\ As in ``EPR,'' the Judgment and Commitment Order in Angel-
Larios-Verduzco reflects a sentence of 120 months which is below the 
guideline range of 121-151 months. U.S. v. Miguel Angel Larios-
Verduzco, 01-Cr-228 (02) (JMR/FLN) (D. Minn. June 13, 2002) (Judgment 
and Commitment Order at 2).
---------------------------------------------------------------------------

                        Committee Consideration

    On May 14, 2002, the Subcommittee on Crime, Terrorism, and 
Homeland Security met in open session and ordered favorably 
reported the bill H.R. 4689, by a voice vote, a quorum being 
present. On September 10, 2001, the Committee met in open 
session and ordered favorably reported the bill H.R. 4689 by a 
voice vote, a quorum being present.

                         Vote of the Committee

    There were no recorded votes on H.R. 4689.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of Rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of Rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

                    Performance Goals and Objectives

    H.R. 4689 does not authorize funding. Therefore, clause 
3(c) of Rule XIII of the Rules of the House of Representatives 
is inapplicable.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of House Rule XIII is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of Rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 4689, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                Washington, DC, September 26, 2002.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 4689, the Fairness 
in Sentencing Act of 2002.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Lanette J. 
Walker, who can be reached at 226-2860.
            Sincerely,
                                  Dan L. Crippen, Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.R. 4689--Fairness in Sentencing Act of 2002.

                                SUMMARY

    The U.S. Sentencing Commission has proposed a number of 
amendments to Federal sentencing guidelines. Those amendments 
will take effect on November 1, 2002, if the Congress does not 
act on them prior to that date. H.R. 4689 would disapprove one 
part of an amendment, which would limit the length of prison 
sentences that certain defendants will receive if they are 
found to be a minor participant in a drug trafficking case.
    By disapproving this amendment, H.R. 4689 would result in 
longer prison sentences for certain defendants. Assuming 
appropriation of the necessary amounts, CBO estimates that 
enacting this legislation would result in costs of about $20 
million over the 2003-2007 period to incarcerate such 
individuals in the Federal prison system for longer periods 
than they would likely serve under the amended guidelines. 
Enacting H.R. 4689 would not affect direct spending or 
receipts; therefore, pay-as-you-go procedures would not apply 
to the bill.
    H.R. 4689 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would impose no costs on State, local, or tribal 
governments.

                ESTIMATED COST TO THE FEDERAL GOVERNMENT

    The estimated budgetary impact of H.R. 4689 is shown in the 
following table. The cost of this legislation falls within 
budget function 750 (administration of justice).

                                     By Fiscal Year, in Millions of Dollars
----------------------------------------------------------------------------------------------------------------
                                                              2002     2003     2004     2005     2006     2007
----------------------------------------------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATION
Federal Prison System Spending Under Current Law
  Estimated Authorization Level \1\                           3,809    3,965    4,100    4,238    4,378    4,526
  Estimated Outlays                                           3,768    3,946    4,084    4,221    4,361    4,508

Proposed Changes
  Estimated Authorization Level                                   0        *        1        3        7        8
  Estimated Outlays                                               0        *        1        3        7        8

Federal Prison System Spending Under H.R. 4689
  Estimated Authorization Level                               3,809    3,965    4,101    4,241    4,385    4,534
  Estimated Outlays                                           3,768    3,946    4,085    4,224    4,368    4,516
----------------------------------------------------------------------------------------------------------------
NOTE: * = Less than $500,000.

1. The 2002 level is the amount appropriated for that year for salaries and expenses of the Federal Prison
  System. The 2003-2007 levels represent CBO's baseline estimate for this account (that is, the 2002 level
  adjusted for anticipated inflation).

                           BASIS OF ESTIMATE

    The U.S. Sentencing Commission has assigned each Federal 
crime a base level, numbered from 1 to 43, which corresponds to 
a certain recommended length of imprisonment, with higher 
numbers reflecting longer prison terms. If the amendments to 
the sentencing guidelines proposed by the commission go into 
effect on November 1, 2002, level 30 will be the highest level 
that could be assigned to certain defendants' sentences that 
are based on the quantity of drugs involved in drug trafficking 
cases. These defendants would qualify for a lower recommended 
sentence if found to be a minor participant in the crime. 
(Additional adjustments could be made from this base level to 
increase or decrease an individual's sentence.)
    According to the commission, roughly 1,300 prisoners a year 
would receive shorter prison sentences under the amended 
guidelines. Sentences for such prisoners generally range from 
less than 1 year to more than 10 years. CBO expects that the 
average sentence would be reduced by about 1.6 years from 5.8 
years to 4.2 years under the amended guidelines. Based on 
information from the Bureau of Prisons (BOP), CBO estimates 
that the cost to incarcerate a prisoner for an additional year 
is about $7,000 (at 2003 prices). Assuming that the number of 
convictions and length of sentences would remain at 2001 
levels, CBO estimates that enacting the legislation--and thus 
disapproving the amended guideline--would increase costs to BOP 
by about $20 million over the next 5 years to incarcerate 
prisoners for lengthier sentences than they would receive under 
the amended guidelines. The full budgetary effects of this bill 
would not be realized until 10 to 15 years after enactment. At 
that time, the cost to the prison system would reach over $20 
million annually for an additional 2,100 prisoners. These added 
costs would be subject to the availability of appropriated 
funds.

                     PAY-AS-YOU-GO CONSIDERATIONS:

    None.

              INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT

    H.R. 4689 contains no intergovernmental or private-sector 
mandates as defined in UMRA and would impose no cost on State, 
local, or tribal governments.

                         ESTIMATE PREPARED BY:

Federal Costs: Lanette J. Walker (226-2860)
Impact on State, Local, and Tribal Governments: Angela Seitz 
    (225-3220)
Impact on the Private Sector: Paige Piper/Bach (226-2940)

                         ESTIMATE APPROVED BY:

Robert A. Sunshine
Assistant Director for Budget Analysis

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of Rule XII-I of the Rules of 
the House of Representatives, the Committee finds the authority 
for this legislation in Article I, section 8 of the 
Constitution.

               Section-by-Section Analysis and Discussion

Section 1. Short Title
    This Act may be cited as the ``Fairness in Sentencing Act 
of 2002''
Section 2. Disapproval of amendments relating to providing a maximum 
        base offense level under Sec. 2D1.1(a)(3) if the defendant 
        receives a mitigating role adjustment under Sec. 3B1.2.
    This section disapproves Amendment number 4 of the 
``Amendment to the Sentencing Guidelines, Policy Statements, 
and Official Commentary,'' submitted by the United States 
Sentencing Commission to Congress on May 1, 2002, to the extent 
it amends Sec. 2D1.1(a)(3) of the sentencing guidelines and to 
the extent it amends the Commentary to Sec. 3B1.2 captioned 
``Application Notes.''
    The provisions of Amendment 4 that are disapproved state 
that ``Section 2D1.1(a)(3) is amended by striking `below.' and 
inserting `, except that if the defendant receives an 
adjustment under Sec. 3B1.2 (Mitigating Role), the base offense 
level under this subsection shall be not more than level 
30.'.''
    Also, the language of Amendment 4 that amends the 
Commentary to Sec. 3B1.2 captioned ``Application Notes'' is 
disapproved to the extent it adds the following:

        ``6. Application of Role Adjustment in Certain Drug 
        Cases.--In a case in which the court applied Sec. 2D1.1 
        and the defendant's base offense level under that 
        guideline was reduced by operation of the maximum base 
        offense level in Sec. 2D1.1(a)(3), the court also shall 
        apply the appropriate adjustment under this 
        guideline.''

                           Markup Transcript



                            BUSINESS MEETING

                      THURSDAY, SEPTEMBER 5, 2002

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:03 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
    Chairman Sensenbrenner. The Committee will be in order. The 
Chair notes the presence of a working quorum.

           *       *       *       *       *       *       *

    Pursuant to notice, the Chair calls up H.R. 4689, the 
``Fairness in Sentencing Act of 2002.'' The Chair recognizes 
the gentleman from Texas, Mr. Smith, for a motion.
    Mr. Smith. Mr. Chairman, the Subcommittee on Crime, 
Terrorism, and Homeland Security reports favorably the bill 
H.R. 4689 and moves its favorable recommendation to the full 
House.
    Chairman Sensenbrenner. Without objection, H.R. 4689 will 
be considered as read and open for amendment at any point.
    [The bill, H.R. 4689, follows:]
    
    
    Chairman Sensenbrenner. The Chair recognizes the gentleman 
from Texas to strike the last word.
    Mr. Smith. Thank you, Mr. Chairman.
    Mr. Chairman, H.R. 4689, the ``Fairness in Sentencing Act 
of 2002,'' disapproves of an amendment to the sentencing 
guidelines submitted by the United States Sentencing Commission 
to Congress on May 1st, 2002. The amendment will take effect on 
November 1st if it is 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 of cocaine the same as half a kilo in 
a drug trafficking case, then you won't like this legislation.
    H.R. 4689 disapproves of sections of the Commission's 
amendment 4 that creates a drug quantity cap for those persons 
convicted of trafficking in large quantities of drugs if those 
persons also qualify 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 could have their sentence reduced to the same 
level as someone who was convicted of trafficking one-half 
kilogram of cocaine.
    The proposed amendment by the Sentencing Commission is a 
windfall for large drug traffickers. It gives drug dealers the 
incentive to move more drugs rather than less, because no 
matter how many drugs they traffic, they will only be subject 
to the penalties for the trafficking of small quantities of 
drugs.
    It also is contrary to the consistent and long-standing 
congressional intent that drug sentences be in proportion to 
drug quantity.
    Mr. Chairman, it is common sense that the greater the drug 
quantity involved, the greater the harm to individuals. The 
Commission's reason for accompanying amendment 4 states that 
this amendment will only apply to 6 percent of all drug 
trafficking offenders. The problem is that these are the 
largest traffickers bringing drugs into our country.
    The amendment would result in the less culpable defendant, 
the one who moved a lesser amount of drugs, receiving a 
disproportionally harsher 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 or prosecution of others involved in the offense, 
and for those who are without a criminal record and who were 
not a major player. The last thing we should do is reward 
people who traffic in more drugs.
    Mr. Chairman, this amendment will result in sentencing that 
fails to reflect the seriousness of the conduct and will 
produce wildly disparate sentences between cases or even within 
the same case. And for these reasons, Mr. Chairman, I hope my 
colleagues will support this legislation.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott.
    Mr. Scott. Thank you, Mr. Chairman. I appreciate the 
opportunity to speak on the Fairness in Sentencing Act of 2002. 
I think this bill clearly reflects the principle that fairness 
is in the eye of the beholder.
    The Sentencing Commission amendment the bill would overturn 
is designed to accord a measure of fairness to minimal role 
offenders who receive as much and sometimes more time than 
those who plan, control, and profit from the criminal 
enterprise.
    So if the Commission's amendment provides fairness to 
minimal role offenders, the question is, to whom is the bill 
seeking to provide fairness?
    The bill would overturn the U.S. Sentencing Commission's 
studied and reasoned findings that fairness required that they 
limit the extent to which drug quantity could affect the 
sentence of an offender who qualifies for a minimal role 
sentencing adjustment. The Commission conducted extensive 
public hearings through which it received a broad spectrum of 
input. Virtually all of the input it received supported its 
proposed minimal role adjustment amendment, including the 
criminal law section of the United States Judicial Conference. 
I have a copy of a letter sent by the section to the 
Commission, stating its support, and I'd like unanimous consent 
that that letter be made part of the record.
    [The material referred to follows:]

    
    
    The Commission's amendment would apply only to those who 
qualify for mitigation based on the fact that they played a 
minimal role in the offense, which is very hard to show. 
Typically, we are talking about mules or other such limited 
role offenders. Clearly, a drug kingpin or other major player 
in a drug transaction would not qualify for a minimal role 
adjustment.
    Most of those qualifying for such consideration get little 
benefit from the transaction and generally have no knowledge of 
the quantity or the value of the drugs in the transaction. Such 
an offender is only involved in a small way in the transaction, 
but they receive responsibility for the whole transaction.
    If there is an unlimited amount of enhancements based on 
the quantity of drugs involved, the quantity enhancement can 
virtually make insignificant any consideration for a minimal 
role.
    For example, the Commission has documented cases in which 
offenders who perform less culpable functions--such as the 
courier mule, the renter, the loader, et cetera--receive 
sentences in excess of those who are managers or leaders of the 
transaction. In addition, Judge Rosenbaum, the chief judge of 
the U.S. District Court of Minnesota, testified at a hearing on 
the bill before the Subcommittee. And he detailed several cases 
coming before his court where he had no choice under the 
existing guidelines except to sentence minimal role offenders 
to as much time as more culpable offenders, based solely on the 
impact of the drug quantity enhancements. He believed these 
sentences to be inappropriately severe for such offenders, and 
he supported the Commission's guideline adjustment.
    Indeed, Mr. Chairman, I'm also aware of cases where those 
who qualify for mitigating role reduction in drug transactions 
end up being sentenced to not just a little but a lot more than 
those who plan, execute, and profit from the transaction. I 
submitted two such cases to the record of the Subcommittee, and 
I was directly involved in assisting one such offender, Kemba 
Smith, a constituent of mine, in obtaining commutation of a 24-
and-a-half year sentence in a drug case in which her role was 
minimal if not negligible.
    The Commission's amendment was designed to reduce such 
unfairness and disparity in sentencing of co-defendants with 
unequal culpability in a crime. Just as treating like offenders 
differently brings about disparities in sentencing, treating 
unlike offenders the same also brings about disparities.
    The Commission's amendment would limit the impact of drug 
quantity enhancements to a maximum of 10 years. But we're not 
talking about opening the prison gates as a result of the 
amendment. While the maximum enhancements for quantity for a 
minimal role offender would be 10 years, the minimum would be 8 
years. In addition, all other applicable sentencing would 
apply, such as any mandatory minimum sentences and any 
enhancements such as an obstruction of justice enhancement that 
is routinely applied if the defendant testifies and is 
convicted.
    So as we consider what the Commission's amendment is 
designed to do, let's be clear on what the amendment would not 
do. The Commission's amendment would not set a 10-year 
sentencing cap for cases in which a convicted drug trafficker 
played a minimal or minor role in a drug conspiracy. Whether 
the amendment would allow no more than 10 years of the imposed 
sentence to be based on the quantity of drugs involved in the 
offense, for those offenders whom the courts have to have the 
least culpability--the actual sentence imposed could be higher 
than 10 years because of other important factors, such as 
obstruction of justice----
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Scott. Mr. Chairman, could I have an additional minute 
and a half?
    Chairman Sensenbrenner. Without objection.
    Mr. Scott. Thank you.
    Such as obstruction of justice, weapons involvement, 
criminal history, drug sales in a protected location or to 
protected individuals.
    And contrary to the suggestion of proponents of this 
legislation, the Commission's amendment would not provide a 
windfall to large-scale drug traffickers or disincentives to 
law enforcement officials to stamp out drug operations. Rather, 
the amendment better implements the apparent intent of Congress 
in its establishment of mandatory minimum penalties for serious 
traffickers--that is, the managers of retail traffic--the 10-
year mandatory penalties, and 10-year mandatory minimums for 
major traffickers--that is, the manufacturers and heads of 
organizations.
    The amendment allows the sentencing guidelines to reflect 
and expand on this congressional intent by establishing various 
penalties for specified quantities of drugs. And the amendment 
assures that in a limited number of cases in which there is a 
tension between a relatively large drug quantity and relatively 
low individual culpability of the offender, the drug quantity 
will not disproportionately increase an offender's sentence in 
comparison to a more serious----
    Chairman Sensenbrenner. The gentleman's time has once again 
expired.
    Mr. Scott. Mr. Chairman, could I have an additional 30 
seconds?
    Chairman Sensenbrenner. Without objection.
    Mr. Scott. Thank you.
    Mr. Chairman, I really feel this bill has a lot to do about 
very little in the total scheme of drug sentencing in the 
country. If this bill had anything to do with fairness of drug 
offenders, it 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 
minimum and other drug sentencing limitations.
    I would ask that my colleagues defeat the bill and allow 
the Sentencing Commission to do the work it was established to 
do in setting appropriate, proportionate sentences for 
offenders across the entire spectrum of criminal offenses and 
penalties.
    Mr. Chairman, I thank you, and I thank you for your 
indulgence.
    Chairman Sensenbrenner. Without objection, all Members may 
insert opening statements in the record at this point.
    Chairman Sensenbrenner. Are there amendments?
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Michigan, Mr. 
Conyers.
    Mr. Conyers. Mr. Chairman, I rise only for a minute to 
strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Conyers. I'd like to ask our distinguished colleague 
from Texas, Mr. Smith, whether or not he feels that couriers in 
drug incidents, mules, gofers, and lookouts should be punished 
in the same way--in drug trafficking--the same as 
manufacturers, organizers of the crime, supervisors, and high-
level offenders.
    Mr. Smith. Would the gentleman yield?
    Mr. Conyers. I think I will.
    Mr. Smith. The answer to the gentleman's question is that 
of course those are factors that should be considered. But as I 
pointed out in my remarks, those are factors that can be 
considered at the discretion of the judge, and we should 
continue to leave that discretion in the judge's hands, not 
allow a rule to be approved that would allow 150 kilos to be 
treated the same way as a half a kilo.
    If there are extenuating circumstances, let's leave it up 
to the discretion of the judge. I'll yield back.
    Mr. Conyers. I'm so happy to hear the gentleman say that, 
because then it means that he doesn't understand that what he 
is doing is taking away that discretion of the judges, which is 
precisely what the Sentencing Commission was providing.
    So if the gentleman and his staffer would consult--himself, 
his staffer, another prominent criminal trial attorney--we may 
be in agreement, because if you do agree with my premise, then 
this is the wrong bill. There's been a tremendous mistake in 
your shop, because what you're doing takes away the judicial 
discretion.
    So if during the course of this matter, if my colleague 
from Texas will consider the direction of his remarks, and may 
want to consider--his support of the bill would be very 
helpful.
    The other point I wanted to make, Mr. Chairman, was merely 
that the Sentencing Commission was created to remove politics 
from sentencing. Unfortunately, what has happened is that all 
the things that I don't agree with about the Sentencing 
Commission get approved and the few good things that they do 
always get disapproved. So we're back in the same fix.
    So my enthusiasm about the Sentencing Commission has 
diminished over the years.
    Now, the second question I have to my colleague from Texas 
is, have you ever heard of the Kemba Smith case?
    Mr. Smith. If the gentleman will yield, I don't know that I 
am familiar with it. I've heard the name, but I'll be happy to 
have you describe it.
    Mr. Conyers. Well, thank you. This was the case in which a 
mother of two children was sentenced to 20 years in prison 
because she inadvertently acted as a courier in one instance in 
which her husband was trafficking drugs.
    What you are doing--now do you remember the case? Okay. 
Well, anyway, it received a presidential pardon and 
considerable attention.
    She served 7 years and would have been there for the whole 
20, had not the executive branch intervened. Would you have, 
just taking this case on the bare, simple description, would 
you have wanted a person with no criminal record and otherwise 
outstanding sentence--not a user, no violence--do you think 
that this could have been a case in which the Sentencing 
Commission granting discretion to the judge could have allowed 
the judge to exert his discretion? I yield to the gentleman.
    Mr. Smith. I thank the gentleman for raising the case, 
because I think it proves the exact point that I want to make. 
The reason that the individual received the sentence she did is 
because she refused to cooperate with law enforcement 
officials. Had she done so, the judge told her that the 
sentence would be reduced. She refused to do so, and that's why 
she received the sentence that she did.
    Chairman Sensenbrenner. The gentleman's time has expired.
    Are there amendments?
    For what purpose does the gentleman from New York----
    Mr. Nadler. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Nadler. Thank you, Mr. Chairman. One comment and then I 
want to ask Mr. Smith a question.
    He commented that this woman we were talking about a moment 
ago received a very long sentence because she refused to 
cooperate with prosecutors. Commonly, we know that lower level 
people receive long sentences because they have no information 
with which to strike a deal with prosecutors, and lower level 
people get heavier sentences than higher level people who have 
information. And that's what the Sentencing Commission was 
trying to get at.
    It is unfair to sentence someone who would have been 
cooperative but had nothing to bargain with to a longer 
sentence than someone who is much more culpable, was a higher 
level person in the organization, but gets a lower sentence 
because they have information to trade. They have something to 
bargain with.
    Now, we all know that goes on, and we all know that the guy 
who really gets stuck is the lower level person who has no 
information to trade. And that is patently unfair, and it's 
what the Sentencing Commission was trying to get at. And I 
don't understand why we're trying to remove this discretion.
    Now, I'd like to ask if Mr. Smith will yield for a 
question, and the question I want to ask Mr. Smith is, he 
stated that the problem with this sentencing guideline proposal 
is that although it affects only 6 percent of the people, 
they're the higher level people. But is Mr. Smith aware of the 
fact that you're not eligible under the terms of this proposal 
for this treatment, for this more lenient treatment, unless you 
qualify as mitigable, in other words, you're not a higher level 
person?
    Mr. Smith. If the gentleman from New York will yield, let 
me say at the outset, I think we can debate for a long time 
about what the gentleman might mean by low-level offender. In 
any case, the point to make again is that judges already have 
the discretion to reduce the sentence for a number of reasons. 
Among them are mitigating role reductions for defendants who 
take responsibility for their actions, for defendants who 
cooperate with law enforcement officials, and for those who 
don't have a criminal record. All those are already factors 
that can be considered by a judge today.
    So there are plenty of ways in which or reasons for which 
the sentence can be reduced.
    Mr. Nadler. If the gentleman will yield again, but that's 
not true. They have discretion to consider those factors, but 
that discretion is overcome by the quantity in absolute terms, 
so they don't have that discretion. What this proposal would do 
would be to enable some of that discretion to apply despite the 
quantity. Is that not the case?
    Mr. Smith. I'm not sure I understood the gentleman's 
question. But I disagree. We have a fundamental disagreement. 
You say that those various mitigations are not allowed today. 
I'll be happy to----
    Mr. Nadler. They're not--excuse me----
    Mr. Smith.--provide the statute to you that says that they 
can be considered----
    Mr. Nadler. Reclaiming my time----
    Mr. Smith.--by a Federal judge.
    Mr. Nadler.--they're not allowed--or, they are overcome by 
the quantity measurement in many cases. And this would simply 
allow those mitigation matters to apply, as----
    Mr. Smith. Let me respond. They're not overcome, but you do 
have to look at the quantity. The whole point of passing this 
legislation is to send the, I think, legitimate signal that you 
shouldn't deal with 150 kilos of cocaine, for example, the same 
way you deal with someone who has been trading in a half a 
kilo.
    Like I say, it's very clear. If you think they should be in 
some instances equated, then you should vote against this. If 
you think that there is, as there always has been in American 
jurisprudence----
    Mr. Nadler. Reclaiming my time, we're not dealing with a 
big guy with a ton. We're dealing with a mule who carries a 
gram in a one-ton transaction. And under the current law, the 
judge has no discretion, except to consider the entire amount, 
the ton, not the gram he was carrying. With the sentencing 
guideline proposal, it would be more intelligent and you could 
actually consider what he was carrying as opposed to the entire 
size of the transaction, of which he may have no knowledge or 
control.
    I yield back.

           *       *       *       *       *       *       *

    The Committee met, pursuant to notice, at 10:00 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
    Chairman Sensenbrenner. The Committee will be in order, and 
a working quorum is present.
    Are we going to have any minority Members today?
    The first bill on the agenda is H.R. 4689. When we last 
met, the Chairman of the Subcommittee on Crime, Terrorism, and 
Homeland Security moved favorable recommendation of this bill 
to the full House. Pursuant to the order of the Committee, the 
bill has been considered as read and open for amendment at any 
point.
    Chairman Sensenbrenner. Are there amendments? Are there 
amendments? If not, the previous question is ordered on the 
motion to report the bill favorably.
    The Chair will now entertain a motion to reconsider 
ordering the previous question. The question is, shall ordering 
the previous question be reconsidered?
    The gentleman from Texas?
    Mr. Smith. I'll move to lay the motion on the table, Mr. 
Chairman.
    Chairman Sensenbrenner. The gentleman from Texas moves to 
lay the motion to reconsider on the table.
    Those in favor will say aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it, and the 
motion to reconsider ordering the previous question is laid on 
the table.
    Mr. Smith. Mr. Chairman, I have a unanimous consent 
request, real quickly.
    Chairman Sensenbrenner. The gentleman from Texas.
    Mr. Smith. Mr. Chairman, I ask unanimous consent to place 
in the record follow-up letters between the Subcommittee and 
Judge Rosenbaum, letters dated May 22, June 6, July 1, July 19, 
and August 9, with attachments, and published opinion from the 
Eastern District of Virginia, United States v. Kemba Smith, 113 
F.Supp.2d 879.
    Chairman Sensenbrenner. Without objection, the material 
referred to by the gentleman from Texas will be included in the 
record.
    [The information follows:]
    [Due to privacy concerns, the Committee has redacted 
private information including the defendant's Social Security 
number, USM number, date of birth, and address.]


    [Intervening business.]
    The Chair notes the presence of a reporting quorum. The 
Committee now will return to the pending unfinished business 
upon which the previous question was ordered on H.R. 4689. The 
question is on the motion----
    Mr. Scott. Mr. Chairman, parliamentary inquiry. Could you 
state the title of the bill, please?
    Chairman Sensenbrenner. H.R. 4689, the ``Fairness in 
Sentencing Act of 2002.''
    The question is on the motion to report favorably bill H.R. 
4689.
    Those in favor will say aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it, and the 
motion to report the bill favorably is agreed to.
    Without objection, the chair is authorized to move to go to 
conference pursuant to House rules. Without objection, the 
staff is directed to make any technical and conforming changes. 
And all Members will be given 2 days, as provided by the rules, 
in which to submit additional, dissenting, supplemental, or 
minority views.



                            Dissenting Views

    These views dissent from the Committee Report on H.R. 4689, 
the ``Fairness in Sentencing Act of 2002.'' H.R. 4689 is 
legislation that disapproves of amendment 4 of the ``Amendments 
to the Sentencing Guidelines, Policy Statements, and Official 
Commentary,'' submitted by the United States Sentencing 
Commission to Congress on May 1, 2002. If enacted, the bill 
would prevent individuals who perform low-level drug 
trafficking functions from qualifying for a mitigating role 
adjustment under the United States Sentencing Guidelines 
(``Sentencing Guidelines'').

                         BACKGROUND AND SUMMARY

    Pursuant to the responsibilities outlined in the Sentencing 
Reform Act of 1984, on May 1, 2002, the United States 
Sentencing Commission (``Commission'') transmitted to Congress 
its proposed amendments to the Sentencing Guidelines. Amendment 
4, of the proposed amendments, seeks to modify Sec. 2D1.1(a)(3) 
\1\ of the guidelines to provide a maximum base offense level 
of 30 (which corresponds to 97 to 121 months imprisonment for a 
first-time offense) if the defendant receives and adjustment 
under Sec. 3B1.2.\2\ The Sentencing Commission chose to provide 
a maximum base offense level in order to limit the sentencing 
impact of drug quantity for offenders who perform relatively 
low-level trafficking functions, have little authority in the 
drug trafficking organization, and have a lower degree of 
individual culpability (e.g. ``mules'' or ``couriers'' whose 
most serious trafficking function is transporting drugs). Other 
aggravating adjustments in the trafficking guideline (e.g. the 
weapon enhancement at Sec. 2D1.1(b)(1)) would continue to apply 
and enable the base level to be increased above 30, if 
necessary.
---------------------------------------------------------------------------
    \1\ Sec. 2D1.1(a)(3) instructs a judge to use the Drug Quantity 
Table to determine the appropriate offense level for drug offenders.
    \2\ Sec. 3B1.2 provides a two to four level reduction, if the court 
makes a finding of fact that the defendant played a part in the 
committing the offense that makes him substantially less culpable than 
the average participant.
---------------------------------------------------------------------------
    The manner in which the current sentencing guidelines are 
applied justify the need for the amendment. Under the current 
guidelines, the quantity of drugs involved in committing an 
offense is used as a proxy for determining the appropriate 
sentence for an individual offender. Under most instances, this 
system ensures that offenders who perform higher trafficking 
functions, such as organizers, manufacturers, supervisors, and 
managers are imprisoned for longer periods of time. However, in 
several other instances, the system leads to anomalus results. 
Particularly, in the cases of low-level offenders who perform 
minor trafficking functions as a part of a larger criminal 
enterprise.
    H.R. 4689 chooses to ignore these abnormalities. The bill 
prevents low-level, first-offense drug offenders from receiving 
a mitigating role adjustment under the sentencing guidelines. 
The bill, specifically, seeks to overturn the U.S. Sentencing 
Commission's studied and reasoned finding that true 
``fairness'' mandates that low-level offenders receive less 
time than those who actually plan, control and profit from the 
criminal enterprise.

                                CONCERNS

1. H.R. 4689 promotes an overly broad sentencing scheme which prevents 
        low-level offenders from being sentenced according to their 
        actual level of culpability.
    Prior to promulgating amendment 4, the Sentencing 
Commission conducted an intensive study of Federal cocaine 
cases sentenced in FY 2000 and found that powder cocaine 
offenders classified as ``renters, loaders, lookout, 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). The study went on to find that 
couriers and mules were held accountable for almost as much 
powder cocaine (4,950 grams) as managers and supervisors, and, 
often times, more than wholesalers.
    Because the quantity of drugs involved in a criminal 
enterprise are used as a proxy for determining the appropriate 
sentence, the Commission's finding clearly prove that offenders 
who commit low-level trafficking functions on average are 
receiving longer sentences than high-level offenders. The 
Commission's amendment seeks to address this abnormality by 
offering a mitigating adjustment. Unfortunately, H.R. 4689 
favors a broader sentencing scheme which ignores an 
individual's true culpability.
2. H.R. 4689 contradicts the advice and wisdom of judges, legal 
        scholars and criminal law experts.
    For some time, judges, practitioners and others have 
expressed concern that the guidelines do not strike the 
appropriate balance in regard to the sentencing of high- and 
low-level offenders. They have argued that as the initial 
determinant of an offense's seriousness (ie. before other 
aggravating and mitigating sentencing guideline adjustments are 
applied), quantity-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 Reform Act of 1984. These beliefs were also 
reflected as far back as 1992, when then-Chairman William H. 
Wilkins, who is the current chairman of the Criminal Law 
Committee of the Judicial Conference of the United States, 
moved to adopt an amendment to the guidelines that would have 
limited the impact of drug quantity for certain mitigating role 
defendants.\3\
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    \3\ The amendment failed 3 to 2, but only because the two 
commissioners who voted against it wanted to decrease further the 
impact of drug quantity on the penalties for those offenders. Testimony 
of Charles Tetzlaff, General Counsel of the United States Sentencing 
Commission, before the House Subcommittee on Crime, Terrorism, and 
Homeland Security on May 14, 2002.
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    Finally, these sentiments were echoed in testimony 
delivered before the House Subcommittee on Crime, Terrorism, 
and Homeland Security. As part of his testimony before the 
Subcommittee, James M. Rosenbaum, Chief Judge of the U.S. 
District Court of Minnesota, discussed several cases coming 
before his court where he had no choice under the existing 
guidelines and was forced to sentence minimal role offenders to 
as much time as more culpable offenders. He concluded his 
testimony by stating that such sentences were ``improper'' in 
his opinion and offered his support for the Commission's 
guideline amendment.\4\
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    \4\ Testimony of Judge James M. Rosenbaum, Chief Judge of the US 
District Court in Minnesota, before the House Subcommittee on Crime, 
Terrorism, and Homeland Security on May, 14, 2002.
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                               CONCLUSION

    The Commission's amendment is designed to reduce unfairness 
and disparity in the sentencing of codefendants with unequal 
culpability in a crime. Drug kingpins or other major players in 
a criminal enterprise would not qualify for a minimal role 
adjustment. Most of those individuals qualifying for this 
consideration receive very little, if any, profit from the 
criminal enterprise and generally have no knowledge of the 
quantity or value of the drugs transacted by the enterprise.
    In our opinion, it is not fair to treat couriers, mules, 
gophers and lookouts who have no knowledge of the full scope of 
the drug trafficking activity the same as high-level offenders. 
We agree with the more reasoned approach being advanced by the 
Sentencing Commission, the U.S. Judicial Conference and many 
leading scholars.

                                   John Conyers, Jr.
                                   Barney Frank.
                                   Robert C. Scott.
                                   Melvin L. Watt.

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