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January 12, 2013

Report on the US Sentencing Commission's first public meeting of 2013

USSCExperienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here) attended yesterday's meeting of the US Sentencing Commission and authored this lengthy guest-post on what he saw:

In its first public meeting of the year, the U.S. Sentencing Commission yesterday voted to publish for comment a series of proposed amendments somewhat heavy on intellectual property issues, and also announced updates on some highly anticipated reports.


In response to recent legislation, the Commission published for comment proposed amendments regarding counterfeit “pre-retail” medical products, counterfeit military goods, and counterfeit drugs,. These types of offenses are currently referenced to USSG 2B1.1(Fraud) in the case of the medical products, 2B5.3 (Criminal Infringement of Copyright or Trademark) in the case of the military goods, and 2N2.1 (Tampering with Consumer Products) in the case of drugs. While these offenses rarely are prosecuted, apparently there have been some high-profile cases that Congress believes warrants new legislation. The Commission’s proposed amendments propose new specific offense characteristic that would increase the offense level 2 to 4 levels.

In response to a Congressional directive in the Foreign and Economic Espionage Penalty Enhancement Act, the Commission also is seeking comment (as opposed to proposing amendments at this juncture) on matters involving the theft of trade secrets and economic espionage by foreign entities.  Such offenses, while certainly high profile, also are rarely prosecuted.


The Commission published a proposed amendment in response to the recent Supreme Court case Setser v. United States, which held that a federal court has the discretion to order that a sentence run consecutive or concurrent to an anticipated, but not yet imposed, term of imprisonment.  Courts of course have had the discretion to impose consecutive or concurrent terms of imprisonment to previously imposed sentences that have not yet been discharged.   Setser clarified that this discretion also applies to anticipated sentences.  Accordingly, the Commission is proposed to amend USSG 5G1.3 to apply to apply to Setser situations.

In response to a circuit split, the Commission also published proposed amendments to the tax guidelines at 2T1.1 that would allow (or disallow) a sentencing court to credit a defendant for any credits, deductions or exemptions that the defendant could have claimed at the time the tax offense was committed.

Also in response to a circuit split regarding whether courts have maintain discretion to grant the additional one-level reduction for acceptance of responsibility made on government, the Commission is proposing to adopt the position of the Fifth Circuit that the additional reduction “is the district court’s — not the government’s — even though the court may only do so on the government’s motion.”  United States v. Williamson, 598 F.3d 227, 230 (5th Cir. 2010).  The Seventh Circuit currently goes the other way, holding that upon government motion, a sentencing court must award the additional level reduction. See United States v. Mount, 675 F.3d 1052 (7th Cir. 2012).


Finally, the Commission also announced updates on two highly anticipated reports. The Commission plans to publish a report on the impact of Booker on Federal Sentencing within approximately a month.   A report on Child Pornography sentencing is set to be published shortly after that in late February/early March (which was originally due out by the end of last year).   Rumor has it that the Child Pornography report will be defendant-friendly (and in light of the massive amount of criticism regarding 2G2.2, how could it be otherwise?).

The Commission of course still is looking at issues involving mandatory minimums as well as sentencing for economic crimes (with how loss operates being a central issue). Similarly, expect to see possible proposed amendments or requests for comment on definitions of crimes of violence, aggravated and violent felonies, and drug trafficking offenses, as well as a possible report (or update of prior work) regarding recidivism. Of note in the priorities issued late last year is the “possible development of recommendations for using information obtained from such study to reduce costs of incarceration and overcapacity of prisons.”  As prison overcapacity and costs of incarceration have been hot topics of late, the Commission hopefully will be addressing these specific issues shortly and in substance as a follow-up to Judge Saris’s letter last summer to the Senate Judiciary Committee.

January 12, 2013 at 02:47 PM | Permalink


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White House Lawyer to Join Savannah Law School Faculty

Savannah Law School (SLS), a branch of the ABA-accredited Atlanta’s John Marshall Law School (AJMLS), today announced that Andrew McCanse Wright, outgoing Associate Counsel to the President at the White House, will join the SLS faculty beginning in the 2013-2014 academic year.

For the past two years, Wright has served in the Office of White House Counsel with a focus on congressional oversight and national security matters. Wright came to the Obama administration after four years on the investigative staff of the Committee on Oversight and Government Reform in the U.S. House of Representatives. He also served as an attorney for Vice President Al Gore in the Clinton White House.

Wright spent six years in private practice as a litigator at Skadden, Arps, Slate, Meagher & Flom LLP in Washington, D.C. and Jackson Kelly PLLC in Morgantown, West Virginia. While in Morgantown, he taught courses in presidential powers and federal criminal law at West Virginia University College of Law.

As Associate Professor at SLS, Wright will teach required courses in criminal law and criminal procedure, as well as upper-level courses focused on his research interests in separation of powers, criminal theory, and national security law. He earned a J.D. from the University of Virginia School of Law and a Bachelor’s from Washington and Lee University.
“Andy Wright brings a unique breadth of legal experience to Savannah Law School,” says Richardson Lynn, Dean and Professor of Law for SLS. “Our students will benefit from Professor Wright’s work on high profile matters as an attorney in two White Houses, two Congresses, and two major law firms. SLS continues to build a talented faculty that will expose our students to a variety of backgrounds and perspectives.”

“I am honored to join the Savannah Law School faculty,” Wright added. “I have long been enchanted by Savannah, the place. My faculty colleagues have been doing a fantastic job establishing the law school and launching the inaugural class of students. I look forward to joining their ranks.”

Prospective students can learn more about Savannah Law School, including information about admissions, financial aid, career development, the faculty, and the open house schedule, at www.savannahlawschool.org.

Posted by: Guest | Jan 15, 2013 10:50:27 AM

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