A recent post, Can the Sentencing Commission Expand the Guidelines' Reach Through Commentary? "Yes" Says the Sixth Circuit At Least for Now, discussed the Court's conclusion that the Sentencing Commission had unconstitutionally expanded the meaning of "controlled substance offense" under § 4B1.2 of the guidelines by adding in commentary that the term also embraced "offenses of aiding and abetting, conspiring, and attempting to commit such offenses." U.S.S.G. § 4B1.2 cmt. n. 1. This was a problem, because "a comment that increases the range of conduct that the Guidelines cover has clearly taken things a step beyond interpretation." Nevertheless, the Court concluded it was bound by a prior decision and could do nothing.
There appear to be (at least) two other frequently-used Guidelines sections where the Sentencing Commission has similarly increased the range of conduct that the Guidelines cover. U.S.S.G. § 2B1.1(b)(1) provides for enhancements based on the amount of "loss" involved in fraud cases, healthcare fraud cases being one example. The commentary expands that range of conduct that "loss" is supposed to cover by asserting that "loss" includes not just "actual loss" but also "intended loss." U.S.S.G. § 2B1.1 cmt. n. 3(A).
Another example can be found in U.S.S.G. 2K2.1(b)(4)(A) which provides a two-level enhancement if any involved firearm "was stolen." Commentary note 8(b) provides that the enhancement applies "regardless of whether the defendant knew or had reason to believe that the firearm was stolen[.]" This increases the range of conduct that the Guidelines cover. The Sentencing Commission’s abolition of a mens rea requirement distinguishes the enhancement from the federal statute, 18 U.S.C. § 922(j), that prohibits possession of a stolen firearm and also has an explicit mens rea requirement. As such, it is contrary to the statutory directive in 28 U.S.C. § 994(a) that the guidelines be “consistent with all pertinent provisions of any Federal statute.” Furthermore, the strict liability of the enhancement departs from the historical requirement for mens rea as a basis for culpability. See United States v. Handy, 570 F.Supp.2d 437, 474-78 (E.D.N.Y. 2008)(discussing and collecting authorities).
There surely are other instances and we will make further posts consistently.
Robert L. Abell
www.RobertAbellLaw.com
