[Federal Register Volume 73, Number 18 (Monday, January 28, 2008)]
[Notices]
[Pages 4939-4940]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-1426]


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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of proposed amendments to the Sentencing Commission's 
Rules of Practice and Procedure. Request for public comment.

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SUMMARY: This notice sets forth proposed amendments to the Commission's 
Rules of Practice and Procedure and a related issue for comment. The 
Commission invites public comment on these proposed amendments.

DATES: Public comment should be received by the Commission not later 
than March 28, 2008.

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

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

SUPPLEMENTARY INFORMATION: Section 995(a)(1) of title 28, United States 
Code, authorizes the Commission to establish general policies and 
promulgate rules and regulations as necessary for the Commission to 
carry out the purposes of the Sentencing Reform Act of 1984. The 
Commission originally adopted the Rules of Practice and Procedure in 
July 1997 and now proposes to make amendments to these rules as they 
pertain to retroactivity consideration. In accordance with Rule 1.2 of 
its Rules of Practice and Procedure, the Commission hereby invites the 
public to provide comment on the proposed amendments.

    Authority: 28 U.S.C. 995(a)(1); USSC Rules of Practice and 
Procedure 1.2.

Ricardo H. Hinojosa,
Chair.
    1. Synopsis of Proposed Amendment: This proposed amendment modifies 
the Commission's Rules of Practice and Procedure pertaining to 
retroactivity consideration. Currently, Rule 4.1 (Promulgation of 
Amendments) provides that ``in those cases in which the Commission 
considers an amendment for retroactive application to previously 
sentenced, imprisoned

[[Page 4940]]

defendants, it shall decide whether to make the amendment retroactive 
at the same meeting at which it decides to promulgate the amendment.''. 
Deciding whether to make an amendment retroactive at the same meeting 
at which the amendment is promulgated, however, often is impracticable. 
A complete retroactivity analysis typically cannot be prepared until 
the Commission has decided to promulgate a specific amendment option, 
which may not occur until the meeting at which the amendment is 
promulgated. Similarly, the public often cannot provide fully informed 
comment on possible retroactivity until the Commission has narrowed its 
consideration of a proposed amendment to a specific option, again a 
decision which may not occur until the meeting at which the amendment 
is promulgated. As a result, the proposed amendment deletes the 
requirement in Rule 4.1 that the retroactivity decision be made at the 
same meeting as promulgation of an amendment.
    The proposed amendment also amends Rule 4.1 to more clearly set 
forth the Commission's statutory requirement to consider retroactivity 
under 28 U.S.C. 994(u).
    The proposed amendment also modifies the process by which the 
Commission instructs staff to prepare a retroactivity impact analysis. 
Currently, Rule 2.2 (Voting Rules for Action by the Commission) 
provides that ``[t]he decision to instruct staff to prepare a 
retroactivity impact analysis for a proposed amendment shall require 
the affirmative vote of at least three members at a public meeting.'' 
The proposed amendment would delete this requirement by amending Rule 
4.1 to provide that ``[p]rior to final action on the retroactive 
application of an amendment, staff shall prepare and the Commission 
shall review a retroactivity impact analysis of the amendment''. The 
proposed amendment therefore, deletes the procedural requirement that 
the Commission instruct staff to prepare a retroactivity analysis and 
instead requires that such an analysis be prepared prior to final 
action on retroactivity.

Finally, one issue for comment follows the proposed amendment.

    Part II of the Rules of Practice and Procedure is amended in Rule 
2.2 is amended in the third paragraph by striking the last sentence.
    Part IV of the Rules of Practice and Procedure is amended in Rule 
4.1 in the second paragraph by striking the last two sentences and 
inserting the following:
    ``The Commission shall, however, consider whether to give 
retroactive application to an amendment that reduces the term of 
imprisonment recommended in the guidelines applicable to a particular 
offense or category of offenses. See 28 U.S.C. 994(u). Prior to final 
action on the retroactive application of an amendment, staff shall 
prepare and the Commission shall review a retroactivity impact analysis 
of the amendment.''.

Issue for Comment

    Should the Commission amend the Commission's Rules of Practice and 
Procedure to provide a specified time frame governing final action with 
respect to retroactive application of an amendment pursuant to 28 
U.S.C. 994(u), and, if so, what should the time frame be? For example, 
should the rules provide a time frame that begins at the date of 
promulgation or the effective date of the amendment? Should the time 
frame specify a certain period of days by which final action should be 
taken, or should the time frame be more general in nature?

[FR Doc. E8-1426 Filed 1-25-08; 8:45 am]
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