[Federal Register Volume 68, Number 126 (Tuesday, July 1, 2003)]
[Notices]
[Pages 39173-39175]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-16577]


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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of issues for comment on PROTECT Act and request for 
comment.

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SUMMARY: The Commission requests comment regarding how it might best 
implement the directive in section 401(m) of the Prosecutorial Remedies 
and Other Tools to end the Exploitation of Children Today Act of 2003, 
Public Law 108-21 (the ``PROTECT Act''). Specifically, the directive 
instructs the Commission to reform the existing permissible grounds of 
downward departures. The Commission welcomes any comments and 
suggestions for how the Commission might restructure or otherwise amend 
the guidelines to accomplish this directive.

DATES: Public comment should be received on or before August 1, 2003.

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ADDRESSES: Send comments to: United States Sentencing Commission, One 
Columbus Circle, NE., Suite 2-500, South Lobby, Washington, DC 20002-
8002, Attention: Public Affairs-Public Comment.

FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs 
Officer, Telephone: (202) 502-4590.

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is 
an independent agency in the judicial branch of the United States 
Government. The Commission promulgates sentencing guidelines and policy 
statements for federal sentencing courts pursuant to 28 U.S.C. 994(a) 
and sometimes pursuant to other specific statutory authority. The 
Commission also periodically reviews and revises previously promulgated 
guidelines pursuant to 28 U.S.C. 994(o) and submits guideline 
amendments to the Congress not later than the first day of May each 
year pursuant to 28 U.S.C. 994(p).
    Rule 4.4 of the Commission's Rules of Practice and Procedure 
provides that, with respect to proposed amendments and issues for 
comment, the Commission shall, ``to the extent practicable, provide a 
minimum period of public comment of at least 60 calendar days prior to 
final Commission action.'' Because section 401(m) of the PROTECT Act 
requires the Commission to promulgate amendments implementing the 
directive regarding downward departures from the sentencing guidelines 
not later than 180 days after the date of enactment of the PROTECT Act 
(i.e., not later than October 27, 2003), it is not practicable to 
provide a comment period of at least 60 days on the following issues 
for comment. Accordingly, the Commission voted at its public meeting on 
June 24, 2003, to provide a comment period until August 1, 2003, in 
order to allow the Commission sufficient time to develop guideline 
amendments that implement the directive in section 401(m) of the 
PROTECT Act.

    Authority: 28 U.S.C. 994(a), (o); section 401 of the PROTECT 
Act, Pub. L. 108-21; and USSC Rules of Practice and Procedure 4.4.

Diana E. Murphy,
Chair.

Issues for Comment

    Section 401(m) of the Prosecutorial Remedies and Other Tools to end 
the Exploitation of Children Today Act of 2003, Public Law 108-21 (the 
``PROTECT Act''), directs the Commission as follows:

    (m) REFORM OF EXISTING PERMISSIBLE GROUNDS OF DOWNWARD 
DEPARTURES.--Not later than 180 days after the enactment of this 
Act, the United States Sentencing Commission shall--
    (1) Review the grounds of downward departure that are authorized 
by the sentencing guidelines, policy statements, and official 
commentary of the Sentencing Commission; and
    (2) Promulgate, pursuant to section 994 of title 28, United 
States Code--
    (A) Appropriate amendments to the sentencing guidelines, policy 
statements, and official commentary to ensure that the incidence of 
downward departures are substantially reduced;
    (B) A policy statement authorizing a downward departure of not 
more than 4 levels if the Government files a motion for such 
departure pursuant to an early disposition program authorized by the 
Attorney General and the United States Attorney; and
    (C) Any other conforming amendments to the sentencing 
guidelines, policy statements, and official commentary of the 
Sentencing Commission necessitated by this Act, including a revision 
of paragraph 4(b) of part A of chapter 1 and a revision of section 
5K2.0.

    The Commission requests comment regarding how it might best 
implement the directive described above and generally welcomes any 
comments and suggestions for how the Commission might restructure or 
otherwise amend the guidelines to accomplish this directive.
    In addition, the Commission specifically requests comment on the 
following:
    (1) How should subsection (a) of section 5K2.0 (Grounds for 
Departure) and/or the commentary to section 5K2.0 (and/or Part A of 
Chapter One) be revised?
    Section 3553(b) of title 18, United States Code, and section 
5K2.0(a) authorize the sentencing court to depart downward in cases in 
which there exists a mitigating factor not adequately taken into 
consideration by the Commission in formulating the guidelines. Should 
the Commission provide additional and/or more restrictive guidance on 
such mitigating factors, particularly those described in other 
provisions of Chapter Five, Part K, that may warrant a downward 
departure?
    Section 5K2.0(a) also states that ``the court may depart from the 
guidelines, even though the reason for departure is taken into 
consideration in determining the guideline range (e.g., a specific 
offense characteristic or other adjustment), if the court determines 
that, in light of unusual circumstances, the weight attached to that 
factor under the guidelines is [inadequate or] excessive.'' Are there 
factors in Chapter Two (Offense Conduct), Chapter Three (Adjustments), 
or Chapter Four (Criminal History) to which the Commission has attached 
excessive weight, and if so, should the Commission change the weight 
attached to those factors, thereby reducing the likelihood that a 
departure is warranted in a particular case?
    Commentary to section 5K2.0 also states in part that ``[t]he 
Commission does not foreclose the possibility of an extraordinary case 
that, because of a combination of [offender] characteristics or [not 
ordinarily relevant] circumstances, differs significantly from the 
``heartland'' cases covered by the guidelines in a way that is 
important to the statutory purposes of sentencing, even though none of 
the characteristics or circumstances individually distinguishes the 
case. However, the Commission believes that such cases will be 
extremely rare.'' Should this commentary be revised, and, if so, how?
    (2) How, if at all, should Chapter Five, Part H be revised?
    Should the Commission provide additional and/or more restrictive 
guidance on the offender characteristics described in provisions of 
Chapter Five, Part H, that may warrant a downward departure?
    Should, for example, the Commission provide additional guidance 
regarding the circumstances under which an offender characteristic that 
is ordinarily not relevant in sentencing may become relevant?
    (3) How, if at all, should guideline provisions governing downward 
departures for criminal history be revised? Commission data 
preliminarily indicate that the over-representation of the defendant's 
criminal history is a frequent basis for downward departure.
    Section 4A1.3 (Adequacy of Criminal History Category) states in 
part that ``[t]here may be cases where the court concludes that a 
defendant's criminal history category significantly over-represents the 
seriousness of a defendant's criminal history or the likelihood that 
the defendant will commit further crimes. An example might include the 
case of a defendant with two minor misdemeanor convictions close to ten 
years prior to the instant offense and no other evidence of prior 
criminal behavior in the intervening period. The court may conclude 
that the defendant's criminal history was significantly less serious 
than that of most defendants in the same criminal history category 
(Category II), and therefore consider a downward departure from the 
guidelines.''

[[Page 39175]]

    Should the Commission provided additional and/or more restrictive 
guidance in section 4A1.3 regarding the circumstances under which the 
court may depart for the over-representation of the defendant's 
criminal history?
    (4) Should the Commission provide additional and/or more 
restrictive guidance for any downward departure authorized in Chapter 
Two (Offense Conduct) for specific offenses?
    (5) Should the Commission provide for a downward adjustment (or, in 
the case of criminal history, a reduction in criminal history points) 
in lieu of a downward departure for any factor or downward departure 
basis, or for a combination of factors and/or downward departures 
bases, described in paragraphs (1) through (4) above, or for any other 
mitigating factors the Commission should more fully take into account 
in the guidelines? If so, how should such a downward adjustment or 
reduction be structured, and what should be the extent of the downward 
adjustment or reduction? (Note that section 401(j)(2) of the PROTECT 
Act prohibits the Commission from adding any new grounds of downward 
departure to Part K of Chapter Five on or before May 1, 2005.)
    (6) Should any of the downward departure bases described in 
paragraphs (1) through (4) above be prohibited as a basis for downward 
departure?
    Are there other specific suggestions that the Commission might 
consider to respond to the directive?
    Finally, section 401(m)(2) directs the Commission to promulgate a 
policy statement authorizing a downward departure of not more than 4 
levels if the Government files a motion for such departure pursuant to 
an early disposition program authorized by the Attorney General and the 
United States Attorney. How should the Commission structure this 
downward departure?

[FR Doc. 03-16577 Filed 6-30-03; 8:45 am]
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