Sentencing Partners (July) 2013 - Part I

Posted by Chris Morales on Wed, Aug 21, 2013 @ 11:05 AM

Justice Department Submits Annual Report to Sentencing Commission

On July 11, 2013, the Justice Department submitted its annual report to the Sentencing Commission "commenting on the operation of the sentencing guidelines, suggesting changes to the guidelines that appear to be warranted, and otherwise assessing the Commission's work.

The report begins by setting out a brief summary of federal sentencing and laments prison overcrowding that the current sentencing scheme has brought about. It summarizes sentencing changes that have been adopted by various states that focus on redirecting scarce resources from incarceration to efforts to reduce recidivism. These programs, referred to in the report as "Justice Reinvestment," commonly include two elements we believe are needed at the federal level; redirected funding and incentives to reduce re-offending, and adjustments to sentencing for non-violent drug offenders."

The report then discusses unwarranted disparities in sentencing, reiterating the Department's concern that "federal sentencing practice has trended away from guideline sentencing." and that these trends "involve the continuing erosion of the guidelines and increasing unwarranted disparities in sentencing within courthouses and across the country." As a remedy, the report recommends that the Commission should, among other things, consider "a simpler guideline system and structural guidelines." This would include reducing the number of "aggravating and mitigating factors embodies in rules for litigators to fight over." (emphasis in original)

The report recommends that any reforms made by the Commission should focus on "changes to statutory and guideline drug penalties [severe penalties on serious and repeat drug traffickers, while providing alternatives to or reduced sentences for non-violent, less serious offender]; improving reentry programming and providing greater incentives to offenders to participate in these programs; and simplifying and reforming the guidelines to better meet all the goals of the Sentencing Reform Act. The report also recommends changes to the statutory minimum penalties for drug crimes and changes to the safety valve exception.

The report then addresses recommendations for specific offenses, beginning with immigration, the term "crime of violence" and the use of the "categorical approach." The report calls on the Commission "to simplify the determination within the guidelines manual and to advise Congress on how to do the same in federal statutes."

Regarding "Child Exploitation Crimes" the report calls for amendments to §2G2.2, including adding several enhancements (which seems contrary to the "simplification" position take earlier). These recommended new enhancements would: 1) account for offenders who communicate or associate with others concerning the sexual abuse or explotation of a minor; 2) increase penalties for offenders who encourage the production of new child pornography images or who lead or administer organizations centered on child pornography and child sexual abuse; 3) account for offenders who engage in repeated and long term child pornography trafficking and collecting, or who use multiple methods of obtaining or sharing images; and 4) account for the sophistication of the offender's behavior, particularly with respect to measures take to avoid detection, such as using encryption or anonymization.

The report also recommends amending existing §2G2.2 enhancements by: 1) modifying §2G2.2 (b) (5) so that it applies even if there is only one prior instance of the sexual abuse or sexual exploitation of a minor, and so that it provides for increasing penalties incases where the defendant has a more extensive history of exploiting or abusing minors; 2) revising the image quantity table in §2G2.2(b) (7) to increase the numeric thresholds so as to better distinguish between occasional and habitual collectors of child pornography; 3) continuing to account for images of sadistic or masochistic conduct and images of prepubescent children, but also inversely correlate punishment severity with the age of the victim depicted; and 4) eliminating the enhancement for the use of a computer in §2G2.2 (b) (6).

Finally, the report rejected the Commission's "conclusions that child pornography offenders present a low risk of recidivism and that existing research shows that treatment is effective at preventing recidivism. With respect to statutory sentences, while we agree that consideration should be given to aligning sentences for possession and receipt of child pornography, we do not support the elimination or dramatic reduction of any existing mandatory minimum penalties."

Among other recommendation, the report urges the Commission to: 1) amend the definition of "controlled substance offense" under §4B1.2 to include "offers to sell" illegal drugs, similar to the 2008 amendment clarifying the term "drug trafficking offense", 2) amend §§4A1.1 and 4A1.2 to include two criminal history points where the instant offense is committed while under a term of probation of exactly one year for misdemeanor convictions listed in §4A1.2 (c); 3) amen dthe commentary in §2T1.1 to recognize that an upward departure may be warranted where the tax loss substantially understates the seriousness of the offense; 4) consider providing higher guideline penalties for offense under 18 U.S.C. §§922 (a)(1)(A) and 922(d), involving firearms trafficking; 5)examine whether the enhancement under §2K2.1 (b) (1) (number of firearms involved in the offense) should be amended to increase the penalty for purchases knowingly or intentionally made on behalf of other persons; and (6)eliminate the reduction in §2K2.1 (b)(2) for the unlawful possession of a firearm or ammunition when that possession was for sporting purposes or collection.

The full report is available at:

Published By Joaquin & Duncan, L.L.C.;
A Law Firm of Federal Sentencing Attorneys 

Website for more information:

We would like to thank our friends Joaquin & Duncan, L.L.C for sharing this information with us. 

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Tags: prison, child pornography, justice, victim, offendors, Child Abuse