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Implications of the Booker/Fanfan Deci- Sions for the Federal Sentencing Guide- Lines IMPLICATIONS OF THE BOOKER/FANFAN DECI- SIONS FOR THE FEDERAL SENTENCING GUIDE- LINES HEARING BEFORE THE SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED NINTH CONGRESS FIRST SESSION FEBRUARY 10, 2005 Serial No. 109–1 Printed for the use of the Committee on the Judiciary ( Available via the World Wide Web: http://www.house.gov/judiciary U.S. GOVERNMENT PRINTING OFFICE 98–624 PDF WASHINGTON : 2005 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001 VerDate 0ct 09 2002 13:45 Apr 04, 2005 Jkt 000000 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 G:\WORK\CRIME\021005\98624.000 HJUD1 PsN: DOUGA COMMITTEE ON THE JUDICIARY F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman HENRY J. HYDE, Illinois JOHN CONYERS, JR., Michigan HOWARD COBLE, North Carolina HOWARD L. BERMAN, California LAMAR SMITH, Texas RICK BOUCHER, Virginia ELTON GALLEGLY, California JERROLD NADLER, New York BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina DANIEL E. LUNGREN, California ZOE LOFGREN, California WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas CHRIS CANNON, Utah MAXINE WATERS, California SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida MARK GREEN, Wisconsin ANTHONY D. WEINER, New York RIC KELLER, Florida ADAM B. SCHIFF, California DARRELL ISSA, California LINDA T. SA´ NCHEZ, California JEFF FLAKE, Arizona ADAM SMITH, Washington MIKE PENCE, Indiana CHRIS VAN HOLLEN, Maryland J. RANDY FORBES, Virginia STEVE KING, Iowa TOM FEENEY, Florida TRENT FRANKS, Arizona LOUIE GOHMERT, Texas PHILIP G. KIKO, Chief of Staff-General Counsel PERRY H. APELBAUM, Minority Chief Counsel SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY HOWARD COBLE, North Carolina, Chairman DANIEL E. LUNGREN, California ROBERT C. SCOTT, Virginia MARK GREEN, Wisconsin SHEILA JACKSON LEE, Texas TOM FEENEY, Florida MAXINE WATERS, California STEVE CHABOT, Ohio MARTIN T. MEEHAN, Massachusetts RIC KELLER, Florida WILLIAM D. DELAHUNT, Massachusetts JEFF FLAKE, Arizona ANTHONY D. WEINER, New York MIKE PENCE, Indiana J. RANDY FORBES, Virginia LOUIE GOHMERT, Texas JAY APPERSON, Chief Counsel ELIZABETH SOKUL, Counsel KATY CROOKS, Counsel JASON CERVENAK, Full Committee Counsel MICHAEL VOLKOV, Counsel BOBBY VASSAR, Minority Counsel (II) VerDate 0ct 09 2002 13:45 Apr 04, 2005 Jkt 000000 PO 00000 Frm 00002 Fmt 5904 Sfmt 0486 G:\WORK\CRIME\021005\98624.000 HJUD1 PsN: DOUGA C O N T E N T S FEBRUARY 10, 2005 OPENING STATEMENT Page The Honorable Howard Coble, a Representative in Congress from the State of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security ............................................................................................... 1 The Honorable Robert C. Scott, a Representative in Congress from the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security ....................................................................................... 3 The Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary ......... 4 WITNESSES The Honorable Christopher A. Wray, Assistant Attorney General, Criminal Division, United States Department of Justice Oral Testimony ..................................................................................................... 6 Prepared Statement ............................................................................................. 8 The Honorable Ricardo H. Hinojosa, Chairman, United States Sentencing Commission Oral Testimony ..................................................................................................... 14 Prepared Statement ............................................................................................. 17 Mr. Daniel P. Collins, Partner, Munger, Tolles, and Olson LLP Oral Testimony ..................................................................................................... 24 Prepared Statement ............................................................................................. 25 Mr. Frank O. Bowman, III, M. Dale Palmer Professor of Law, Indiana Univer- sity School of Law Oral Testimony ..................................................................................................... 28 Prepared Statement ............................................................................................. 31 APPENDIX MATERIAL SUBMITTED FOR THE HEARING RECORD Prepared Statement of the Honorable Howard Coble, a Representative in Congress from the State of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security ................................................... 59 Prepared Statement of the Honorable Robert C. Scott, a Representative in Congress from the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security ................................................... 59 Prepared Statement of the Honorable Sheila Jackson Lee, a Representative in Congress from the State of Texas .................................................................. 60 Prepared Statement of the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary ................................................................................................... 61 Prepared Statement of the Honorable Adam B. Schiff, a Representative in Congress from the State of California ................................................................ 62 Material submitted for the record by Rep. Scott ................................................... 63 Letter from the Association of Corporate Counsel (formerly the American Corporate Counsel Association), the Business Civil Liberties, Inc., the Busi- ness Roundtable, the National Association of Manufacturers, and the U.S. Chamber of Commerce ......................................................................................... 101 (III) VerDate 0ct 09 2002 13:45 Apr 04, 2005 Jkt 000000 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 G:\WORK\CRIME\021005\98624.000 HJUD1 PsN: DOUGA IV Page Letter from Keith Darcy, Acting Executive Director, Ethics Officer Association (EOA) ..................................................................................................................... 104 Letter from Robert Evans, Director, Governmental Affairs Office, the Amer- ican Bar Association (ABA), dated February 9, 2005 ....................................... 112 Letter from Robert Evans, Director, Governmental Affairs Office, the Amer- ican Bar Association (ABA), dated February 17, 2005 ..................................... 115 Letter from Edwin Meese, III, and Philip Heymann, Co-Chairs, Sentencing Initiatives, The Constitution Project .................................................................. 131 Prepared Statement of Lawrence Piersol, President, the Federal Judges Asso- ciation, and Chief Judge of the District of South Dakota ................................. 140 Letter from Kent Scheidegger, Legal Director and General Counsel, Criminal Justice Legal Foundation .................................................................................... 141 Letter from Robert L. Wilkins, and Karl A. Racine, Partners, Veneable LLP ... 145 VerDate 0ct 09 2002 13:45 Apr 04, 2005 Jkt 000000 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 G:\WORK\CRIME\021005\98624.000 HJUD1 PsN: DOUGA IMPLICATIONS OF THE BOOKER/FANFAN DE- CISIONS FOR THE FEDERAL SENTENCING GUIDELINES THURSDAY, FEBRUARY 10, 2005 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY COMMITTEE ON THE JUDICIARY, Washington, DC. The Subcommittee met, pursuant to notice, at 10 a.m., in Room 2141, Rayburn House Office Building, Hon. Howard Coble (Chair of the Subcommittee) presiding. Mr. COBLE. Good morning, ladies and gentlemen. Welcome to the Judiciary hearing room. Let me think aloud for a moment or two. This sentencing guide- lines is very significantly important, as all of you know. We will have the border security bill, which came from this Committee, on the floor for debate around 11:30. I am hoping we can finish exam- ining you witnesses by that time. I hate to inconvenience you all. If, however, we come to 11:30 and additional examination may be done, we may have to have you fellows go get a bite to eat and just keep your eye on the TV monitor. I am thinking, however, that if luck is with us, we can probably finish this on or about the time when we have to suspend. I want to welcome everyone to this very important oversight hearing before the Subcommittee on Crime, Terrorism, and Home- land Security to examine the implication of two recent Supreme Court decisions in United States v. Booker and United States v. Fanfan to the Federal sentencing guidelines. The Supreme Court’s rulings eliminated two critical provisions of the Federal sentencing guidelines. First, the Court ruled the sen- tencing guidelines were no longer mandatory but are advisory. Sec- ond, the Court eliminated the de novo appellate review standard for downward departures which was passed by Congress as part of the PROTECT Act in the 108th Congress and replaced it
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