UNITED STATES of America, Plaintiff,
v.
Paul Bradley VanLEER, Defendant.

No. 2:03-CR-00137 PGC.

July 3, 2003.
As Amended July 17, 2003.

OPINION AND ORDER GRANTING MOTION FOR DOWNWARD DEPARTURE

PAUL G. CASSELL, District Judge.

This criminal case is before the court on defendant Paul Bradley
VanLeer's motion for a downward departure. VanLeer has pled guilty to
possession of a firearm by a convicted felon. He agrees with the
government that the applicable sentencing guidelines produce a
sentencing range of 30 to 37 months. VanLeer argues, however, that the
court should depart downward from this range under U.S.S.G. 5K2.11,
which allows a departure where the crime did not "threaten the harm or
evil" ordinarily covered by the statute at issue. VanLeer observes that
his crime involved merely taking a firearm to a pawn shop to sell it.

The court agrees with VanLeer that a downward departure is appropriate
on this basis. In reaching that conclusion; however, the court has
found it necessary to review the effects of a newly passed federal
statute involving downward departures--the so-called "Feeney
Amendment." In some quarters, the view has been expressed that the
Feeney Amendment "essentially eliminates judges' discretion to depart
below the Guidelines in all cases." [FN1] This opinion explains the
court's conclusion that the Feeney Amendment does not have such
far-reaching effects and why a downward departure is appropriate here.

FACTUAL BACKGROUND

This case involves a somewhat unusual fact pattern that resulted in a
felon- in-possession charge when a felon was dispossessing himself of a
firearm. The court finds the facts to be as follows. VanLeer has a
history of non-violent criminal offenses, all apparently stemming from
his use of illegal drugs. On September 10, 2002, VanLeer was released
from prison after serving time connected with a forgery charge. Several
weeks after his release, he met a friend who was in possession of a
shotgun that VanLeer had purchased and owned before acquiring a felony
conviction. As VanLeer was destitute and needed money for rent, he took
the firearm--a Ted Williams 12 gauge shotgun--to a local pawn shop and
sold it. During this transaction on October 1, 2002, VanLeer gave his
correct name, address, and an inked fingerprint to verify his identity
as owner of the firearm to the pawn shop clerk.

On November 5, 2002, an investigator from the Salt Lake City Police
Department conducted a record check and determined that VanLeer was a
previously convicted felon. This led to the filing of a one-count
indictment, charging felon in possession of a firearm in violation of
18 U.S.C. 922(g)(1). The defendant pled guilty, leading to this
sentencing.

Both sides agree that the proper offense level starts at a level 14
under the guidelines applicable to felons in possession of a firearm.
[FN2] Both sides further agree that a two-level reduction for accepting
responsibility is appropriate, producing a final offense level of 12.
VanLeer's criminal history (involving driving under the influence of
alcohol, forgery, reckless driving, theft, attempted forgery,
shoplifting) is a level VI, establishing a sentencing range of 30-37
months. VanLeer seeks a downward departure from this range.

DISCUSSION
I. Standards for a Downward Departure Before the Feeney Amendment

The Supreme Court and the Tenth Circuit have announced the general
standards for a downward departure under the sentencing guidelines. In
1996, the Supreme Court explained that when a sentencing court is
considering departing from the Guidelines, it should ask four
questions:
1) What features of this case, potentially, take it outside the
Guidelines' 'heartland' and make it a special, or unusual case?
2) Has the Commission forbidden departures based on those features?
3) If not, has the Commission encouraged departures based on those
features?

4) If not, has the Commission discouraged departures based on those
features? [FN3]

If a factor is not mentioned in the Guidelines, as in this case, then
"the court must, after considering the 'structure and theory of both
relevant individual guidelines and the Guidelines taken as a whole,'
decide whether it is sufficient to take the case out of the Guideline's
heartland." [FN4] The Tenth Circuit has instructed that a sentencing
court, when considering a downward departure on grounds that the case
is "outside the heartland" must determine whether the departure is
consistent with the Guidelines' goals. [FN5] These goals are to "(1)
reflect the seriousness of the offense, promote respect for the law,
and provide just punishment for the crime;
(2)
deter criminal conduct; (3) protect the public from the defendant's
further crimes; and (4) provide the defendant with needed correctional
care or treatment." [FN6]

Departures--both downward and upward--are a critical component of the
sentencing guideline scheme. Departures provide flexibility to what
would otherwise be an unduly rigid system. Indeed, without departures
to avoid unduly lenient or unduly excessive punishment, it seems likely
that popular support for sentencing guidelines would quickly erode.
Presumably for this very reason Congress directed that the sentencing
guidelines should be crafted (and presumably interpreted) so as to
"avoid[ ] unwarranted sentencing disparities among defendants with
similar records who have been found guilty of similar criminal conduct
while maintaining sufficient flexibility to permit individualized
sentences when warranted by mitigating or aggravating factors not taken
into account in the establishment of general sentencing practices...."
[FN7]

These pronouncements on downward departures, however, all predate the
passage of the Feeney Amendment, adopted by Congress on April 10, 2003
with an effective date of April 30, 2003. Both Sides have apparently
agreed that the Feeney Amendment governs the sentencing at issue here.
There is a substantial question concerning the constitutionality of
retroactively applying the Feeney Amendment to VanLeer, who committed
his crime before effective date of the Act. In view of the parties'
agreement, however, the court will assume the Amendment applies
retroactively. The question thus
arises: what effect does the Feeney Amendment have on these general
standards for downward departures?

II. The Effect of the Feeney Amendment on Downward Departures

A. Legislative History of the Feeney Amendment.

On February 24, 2003, the Senate considered and unanimously passed
what was formally called the Prosecutorial Remedies and Tools Against
the Exploitation of Children Today ("PROTECT") Act of 2003 . [FN8] This
legislation focused on enhancing the prosecution of child pornography.
When the House took up the measure on March 26, 2003, its focus was on
legislation to prevent child abduction, including a national
notification system to find abducted children known as the Amber Alert.
[FN9] On March 27, 2003, Representative Tom Feeney proposed amending
this legislation to "address [ ] long-standing and increasing problems
of downward departures from the Federal sentencing guidelines." [FN10]
His amendment would have restricted downward departures in all cases.
Departures would be limited to grounds that had been "affirmatively and
specifically identified as a permissible ground of downward departure
in the sentencing guidelines or policy statements." [FN11] The
justification for this restriction was to prevent judges from "mak[ing]
up exceptions [to the guidelines] as they go along." [FN12] The Feeney
Amendment was approved by a vote of 357 to 58, [FN13] and the child
abduction prevention legislation to which it was attached passed
overwhelmingly as well. [FN14]

After the House's approval of legislation differing from the Senate's,
the matter went to a Conference Committee. While pending there, a
variety of diverse commentators expressed their concern about various
aspects of the Feeney Amendment. For example, the Judicial Conference
of the United States, through the Chief Justice, expressed its view
that "this legislation, if enacted, would do serious harm to the basic
structure of the sentencing guideline system and would seriously impair
the ability of courts to impose just and responsible sentences."
[FN15] Similarly, Business Civil Liberties, Inc., offered its view that
the Amendment would interfere with the proper sentencing of those in
the business community who had committed criminal offenses involving
essentially regulatory infractions. [FN16] The National Association of
Criminal Defense Lawyers argued that "[w]ithout the discretionary
authority to depart, all crimes regardless of the circumstances would
have to be sentenced exactly the same; one size must fit all...."
[FN17]

Apparently as a result of concerns such as these, the Conference
Committee reached a bipartisan compromise, which substantially narrowed
the breadth of the Feeney Amendment. [FN18] The compromise version has
been called the Hatch-Sensenbrenner-Graham compromise amendment, [FN19]
but for clarity here will be identified as the "Feeney Amendment." This
Amendment made the most restrictive limitations on downward departures
applicable only to certain child crimes and sex offenses. [FN20] With
this change, the House and the Senate agreed to the conference report
on April 10, 2003, the President approved it, and the Act became
effective on April 30.2003. [FN21]

B. Changes in the Standards for Departures.

As finally approved by Congress, the Feeney Amendment makes a variety
of changes related to sentencing procedures. The Amendment expands
appellate review of sentencing departures [FN22] and alters the
procedures to be used following remands in such cases. [FN23] The
Amendment further requires a formal government motion before awarding a
defendant a three-level reduction for accepting responsibility (instead
of the normal two-level reduction). [FN24] In an effort to gain
additional data about the sentencing guidelines, the Amendment directs
the Chief Judge of each district to submit information about sentencing
judgments to the Sentencing Commission, which in turn makes it
available to Congress if so requested. The Amendment also directs the
Sentencing Commission to promulgate, within 180 days after enactment of
the Amendment, new guidelines that "ensure that the incidence of
downward departures are substantially reduced" [FN25] and a new policy
statement "authorizing a downward departure of not more than 4 levels
if the Government files a motion or such departure pursuant to an early
disposition program authorized by the Attorney General and the United
States Attorney." [FN26] Finally, the Amendment directs the Attorney
General to take certain steps toward aggressively appealing improper
downward departures. [FN27]

None of these reforms restrict the ability of a district court to
depart downward (or upward). The Feeney Amendment does, however, make
one limited change in the ability of district courts to depart downward
in child abduction and sex offense cases--a limited change that has
been described in dramatically different terms. For example, a
prominent journal circulated to defense attorneys seemingly suggested
that the Feeney Amendment "essentially eliminates judges' discretion to
depart below the Guidelines in all cases." [FN28] This description is
not accurate, as the brief review of legislative history just recited
makes clear. The Feeney Amendment ultimately adopted by Congress is
substantially narrower than originally proposed. For child abduction and
sex offenses, the Amendment does limit downward departures to the
grounds specifically listed in the sentencing guidelines for these
offenses. [FN29] But for all other offenses--such as the
felon-in-possession offense at issue here--the Feeney Amendment makes
no change. As Senator Hatch, the Chairman of the Judiciary Committee
and member of the Conference Committee on the Act explained: "The
compromise agreed to in conference will affect only crimes against
child and sex crimes--that is, sexual abuse, pornography, prostitution,
and kidnaping/hostage taking. These types of cases represent only 2
percent of the federal criminal case load." [FN30]

The court has gone to the lengths of writing an opinion on this point
because hyperbolic claims about how departure authority has been
"eliminated" in "all cases" can be positively harmful to individuals
awaiting sentencing. If criminal defense attorneys believe such
statements and operate under the misapprehension that downward
departures are no longer permissible, they might refrain from filing
departure motions in appropriate cases. This could lead to criminal
defendants serving unduly long prison terms (not to mention
inappropriately consuming valuable federal prison space that should be
reserved for other offenders). It is therefore critically important that
defense counsel understand the narrow parameters of the Feeney Amendment
and continue to file motions for downward departure where appropriate.
Of course, the government should continue to file upward and downward
departures where appropriate as well.

When departure motions are filed, this court will review them in the
same way that it always has--it will be grant them where proper and
deny them where improper. The reason for emphasizing this obvious point
is that suggestions have been made that federal judges might somehow be
"intimidated" by the Feeney Amendment's reporting requirements. [FN31]
For example, during the Senate debate on the final version of the bill,
the ranking member of the Judiciary Committee argued:

The amendment effectively creates a judicial "black list" of judges
that stray from the draconian mandates of this bill. The [final]
language retains the Feeney amendment's attempt to intimidate Federal
judges by compiling a "hit list" of all judges who impose sentences that
the Justice Department does not like in any type of criminal case. It
takes a sledge hammer to the concept of separation of powers. [FN32]

The basis for contention about a "black list" appears to be the
provision in the Feeney Amendment requiring the Attorney General to
submit a report to the House and Senate Judiciary within 15 days
whenever a district court judge departs downward in a case (other than
for reasons of substantial assistance to the government). [FN33] This
report would identify the judge who departs by name. It is unclear
whether this provision will ever take effect, however, because its
effective date has been suspended for 90 days and, if the Attorney
General take steps to ensure "vigorous pursuit of appropriate and
meritorious appeals" of unjustified downward departures it appears that
the provision is suspended indefinitely. [FN34] Even were such a
provision to take effect, however, the overriding fact remains that
judicial departure decisions (like any other judicial action) are
already matters of public record. This court's sentencing decisions,
for example, are all easily available both in the court's public files
and on an internet website, www.utd.uscourts.gov. In any event, since
the suggestion has been raised, this court wishes to observe that it is
not concerned about close scrutiny of its downward (or upward) departure
decisions by Congress, the public, or otherwise.

C. Procedural Changes in the Feeney Amendment.

While the Feeney Amendment does not substantively change the ability
of district courts to depart in most cases, it does make a procedural
change that deserves brief discussion. The Amendment requires all
departures--both downward and upward--to be described with specificity
in writing in the judgment. After the Amendment, the relevant statutory
language now
reads:

The court, at the time of sentencing, shall state in open court the
reasons for its imposition of the particular sentence, and, if the
sentence--... is outside the range[ ] described in [in the sentencing
guidelines], the specific reason for the imposition of a sentence
different from that described, which reasons [sic] must also be stated
with specificity in the written order of judgment and commitment ....
[FN35]

Therefore, in contrast to previous practice under which a district
judge could orally state the reasons for a departure at the time of
sentencing, the new legislation requires that such reasons be stated
"with specificity" in writing. This provision's rationale appears to be
facilitating appellate review of district court departure decisions, as
such review is expanded by the Feeney Amendment.

This new practice requires the court, prosecutors, and defense
counsel, to think about how departure findings can best be reduced to
writing expeditiously. Delay in finalizing criminal judgments should be
avoided because defendants are unable to receive a designation from the
Bureau of Prisons until the judgment is completed and signed by the
judge. Defendants are better off if they move quickly to facilities
designed for long term confinement and equipped to provide vocational
and other training. In addition, the public has a strong interest in
rapid completion of criminal judgments. Any delay at this stage creates
significant additional expense to the taxpayers, as the use of temporary
facilities for housing prisoners often substantially exceeds that of the
Bureau of Prison facilities. Moreover, in many jurisdictions (including
Utah) temporary jail space for federal prisoners is difficult to
locate.

How to reduce reasons for departures to writing quickly deserves
general consideration. Perhaps this court's standard judgment and
conviction form should be modified to provide space for entry of such
findings. Alternatively, it might be useful if the writing could occur
during the sentencing proceeding itself, perhaps with the assistance of
the parties. Prosecutors will most frequently be involved in departure
motions, as the vast bulk of downward departure motions are made by the
government seeking recognition of a defendant's "substantial assistance"
to government authorities. The government less frequently files upward
departure motions, but when these motions are filed they typically
involve extraordinarily serious cases. It may be that the government,
when filing departure motions--either upward or downward--should also
include a proposed written order that could be attached to the judgment
stating with specificity the reasons for departure. [FN36] Likewise,
defense counsel may wish to do the same when filing their motions for a
downward departure. No doubt, there are other approaches that could be
pursued. In this case, the court will attach this opinion to the
judgment as its statement of reasons for the departure. The court,
however, invites counsel in criminal cases to consider ways in which
the writing requirement can be expeditiously handled.

One last issue deserves brief mention. The Feeney Amendment, as part
of the PROTECT Act, became effective on April 30, 2003. [FN37] Because
the Feeney Amendment does not operate to retroactively disadvantage
VanLeer, there is no ex post facto problem here. [FN38]

To summarize, the Feeney Amendment does not change the pre-existing
law which allowed a downward (or upward) departure where the court
determines that, given the "structure and theory of both relevant
individual guidelines and the Guidelines taken as a whole," [FN39] the
case at hand is outside the Guidelines' heartland. [FN40]

III. Departures for Felons Dispossessing Themselves of Firearms

VanLeer argues that because he was dispossessing himself of the
firearm covered in the indictment that his behavior lies "outside the
heartland" of the charged offense. This argument gains support from one
specifically-listed ground for departure: where the defendant's
"conduct may not cause or threaten the harm or evil sought to be
prevented by the law proscribing the offense at issue." [FN41] The
Tenth Circuit has instructed that this harm-not- threatened departure
"should be interpreted narrowly." [FN42]

VanLeer pled guilty to violating 18 U.S.C. 922(g), which forbids
felons (among other dangerous persons) from possessing firearms. The
harm the law seeks to prevent is violent crimes and consequent personal
injury and even death. [FN43] Thus, a downward departure would be
appropriate where the defendant's conduct does not threaten these
outcomes.

In this case, VanLeer's brief possession of a firearm does not
threaten the harms at which 922(g) was directed. The facts plainly
reveal that VanLeer briefly possessed the gun only because he intended
to dispose of the gun. Indeed, it is undisputed that he did in fact
dispossess himself of the firearm at a pawn shop. In that process, he
used his own name and gave his own fingerprint. Nothing in the
circumstances surrounding that transaction suggest any criminal intent.
Rather, VanLeer was simply trying to take his property and pawn it to
obtain money.

To be sure, as a convicted felon, VanLeer should have left the firearm
where it was or, arguably, had his friend pawn it for him. But the
question before this court at this stage is not whether VanLeer's
conduct was lawful (it plainly was not) but rather whether it was
outside the "heartland" of offenses covered by the applicable
guideline. When a felon acts illegally to get rid of a firearm, that
criminal offense is simply less culpable than when a felon continually
possesses a firearm. Viewed another way, a gun that leaves the hands of
a felon is less dangerous than a gun remaining in the hands of felon.

The Eight Circuit has reached a similar conclusion on somewhat similar
facts. In United States v. Lewis, [FN44] the Eight Circuit reviewed a
situation where the defendant, a felon, took a shotgun and pawned it
for $50 to pay utility bills. The shotgun was a family heirloom, and
the defendant returned a few days later to retrieve it. To retrieve the
gun, the defendant completed an ATF Form 4473 in which he falsely denied
being a felon. In reversing a district court's decision not to depart
downward, the Eighth Circuit held that "the sentencing commission must
have envisioned departures under 5K2.11 when an illegal weapon is not
possessed for an unlawful purpose." [FN45] The Circuit remanded for
further consideration, explaining that "the district court certainly
could conclude that briefly possessing a firearm in order to pawn it to
pay bills and attempting to keep a family heirloom in the family were
not the types of harms or evils envisioned by Congress when it enacted
... 922(g)(1)." [FN46]

In reaching this conclusion, the court is mindful of the Tenth
Circuit's mandate that the harms-not-threatened departure guideline
"should be interpreted narrowly." [FN47] Likewise, the court is fully
aware of the substantial possibility that convicted felons may well lie
about the circumstances surrounding their unlawful possession of a
firearm--lies that the government may have a difficult time disproving.
This court has frequently heard dubious claims from felons that they
intended to get rid of a gun or had a gun only briefly. This case,
however, stands on quite different footing from more routine
situations. Here, the indisputable facts
establish: (1) the defendant's possession of the firearm was quite
brief (he had only been released from prison a few weeks earlier); (2)
the possession was motivated solely by an interest in disposing of the
property (he took it directly to a pawn shop); (3) the defendant made
no secret of his possession (he used his own name and placed his own
fingerprint on the federally required form); and most importantly, (4)
the defendant in fact disposed of the gun in what would have otherwise
been an entirely lawful transaction (sales of firearms to pawnshops are
legal). In light of all these unusual factors, this case falls well
outside the heartland of the usual felon-in-possession case and does
not involve the kind of harms envisioned by Congress when it enacted
the prohibitions against felons possessing firearms. The court will,
therefore, depart downward.

The remaining question is the extent of the departure. The court
believes that a four-level departure, from a level 12 to a level 8, is
appropriate. This modest departure serves to differentiate VanLeer's
conduct from more culpable conduct of other felons. A four-level
departure is roughly proportionate to the six-level downward departure
that the guidelines authorize in other circumstances for unlawful
possession of a firearm for lawful sporting purposes [FN48] and to the
four level upward departure that the guidelines authorize for
possession of a firearm in connection with another felony offense.
[FN49]

CONCLUSION

For the foregoing reasons, the court grants the defendant's motion for
a downward departure. The court departs downward from a level 12 to a
level 8 and sentences the defendant to a term in prison of 18 months.

FN1. Mark H. Allenbaugh, Who's Afraid of the Federal Judiciary? Why
Congress' Fear of Judicial Sentencing Discretion may Undermine a
Generation of Reform, 27 JUN CHAMPION 6, 9 (2003).

FN2. See U.S.S.G. 2K2.1(a)(6).

FN3. Koon v. United States, 518 U.S. 81, 95, 116 S.Ct. 2035, 135
L.Ed.2d 392 (1996); citing United States v. Rivera, 994 F.2d 942, 949
(1st Cir.1993).

FN4. Koon, 518 U.S. at 95 (citing Rivera, 994 F.2d at 949).

FN5. See United States v. Miranda-Ramirez, 309 F.3d 1255,
1260 (10th Cir.2002), cert. denied, --- U.S. ----, 123 S.Ct. 1380, 155
L.Ed.2d 217 (2003).

FN6. Id. (citing 18 U.S.C. 3553(a)(2)).

FN7. 28 U.S.C. 991(b)(1)(B).

FN8. See 149 CONG REC. S2573-90 (daily ed. Feb. 24, 2003).

FN9. See 149 CONG. REC. H2320-H2325 (daily ed. Mar. 26,
2003).

FN10. 149 Cong. Rec. H2422 (daily ed. Mar. 27, 2003) (statement of Rep.
Feeney).

FN11. Id. at H2420.

FN12. Id. at H2435 (statement of Rep. Feeney).

FN13. See Id. at H2436.

FN14. See Id. at H2438.

FN15. Letter from the Chief Justice to Sen. Patrick Leahy (Apr. 2,
2003).

FN16. See Business Civil Liberties, Inc., Business Civil Liberties,
Inc. Opposed Limiting Downward Departures in Federal Sentencing (Apr.
7, 2003).

FN17. Letter from NACDL to congressional representatives
(Apr. 9, 2003).

FN18. See H.R. CONF. REP. NO. 108-66, Title IV (2003).

FN19. See, e.g., 149 CONG REC. S5137-01 (daily ed. Apr. 10,
2003) (statement of Sen. Hatch).

FN20. See PROTECT Act, Pub.L. No. 108-21 401, 117 Stat.
650, 667 (to be codified as 18 U.S.C. 3553(b)).

FN21. See 149 CONG. REC. H3075-76 (daily ed. Apr. 10, 2003); id. at
S5156 (daily ed. Apr. 10, 2003). See generally PROTECT Act, Pub.L. No.
108-21, 117 Stat. 650 (to be codified as 18 U.S.C. 3553),
Legislative History.

FN22. See PROTECT Act, Pub.L. No. 108-21, 401(d), 117
Stat. 650, 670 (to be codified as 18 U.S.C. 3742(e)(3)).

FN23. See id.

FN24. See PROTECT Act, Pub.L. No. 108-21, 401(g), 117
Stat. 650, 671 (to be codified as 28 U.S.C. 994(a)).

FN25. PROTECT Act, Pub.L. No. 108-21, 401(m), 117 Stat.
650, 675 (to be codified as 28 U.S.C. 994)).

FN26. PROTECT Act, Pub.L. No. 108-21, 401(m)(2)(B), 117 Stat. 650,
675 (to be codified as 28 U.S.C. 994).

FN27. See PROTECT Act, Pub.L. No. 108-21, 401(l)(2)(A) & 401(1)(3),
117 Stat. 650, 674 (to be codified at 18 U.S.C. 3553 note).

FN28. Mark H. Allenbaugh, Who's Afraid of the Federal Judiciary? Why
Congress' Fear of Judicial Sentencing Discretion may Undermine a
Generation of Reform, 27 CHAMPION 6, 9 (2003) (emphasis added).

FN29. See PROTECT Act, Pub.L. No. 108-21, 401, 117 Stat. 650, 667 (to
be codified as 18 U.S.C. 3553(b)).

FN30. 149 CONG. REC. S5113-01 (daily ed. April 10, 2003) (statement of
Sen. Hatch). Even with respect to the narrow category of cases
involving child abduction and sex offenses, the claim that the Feeney
Amendment "eliminates" a judge's ability to depart downward appears to
be significantly overstated. The Feeney Amendment appears to restrict a
judge's ability to depart downward to grounds for departure
specifically identified in the Sentencing Guidelines. See PROTECT Act,
Pub.L. No. 108-21 401, 117 Stat. 650, 667 (to be codified as 18
U.S.C. 3553(b)((2)(A)). As Senator Hatch explained, "Contrary to the
oft repeated claims of the opponents, the compromise proposal is not a
mandatory minimum. Judges hands handling these important criminal cases
can sometimes exercise discretion to depart downward, but only when the
Sentencing Commission specifies the factors that warrant a downward
departure, only when they have the right to do so as listed by the
Sentencing Commission." 49 CONG. REC. S5113-01 (daily ed. April 10,
2003) (statements of Sen. Hatch). Given that the Guidelines identify a
number of grounds for downward departure--presumably including the most
frequently-encountered grounds for departure--the Amendment appears to
restrict departures in only a minority of cases.

FN31. 149 CONG. REC. H3059-02 (daily ed. April 10, 2003) (statement of
Ms. Jackson-Lee).

FN32. 149 CONG. REC. S5137-01 (daily ed. April 10, 2003) (statement of
Sen. Leahy).

FN33. See PROTECT Act, Pub.L. No. 108-21, 401(l)(2)(B),
117 Stat. 650, 676 (to be codified as 18 U.S.C. 3553 note).

FN34. See PROTECT Act, Pub.L. No. 108-21, 401(l)(2)(A) & 401(1)(3),
117 Stat. 650, 674 (to be codified as 18 U.S.C. 3553 note).

FN35. PROTECT Act, Pub.L. No. 108-21 401(c), 117 Stat.
650, 669 (to be codified as 18 U.S.C. 3553(c)).

FN36. Government prosecutors may also wish to consider how
to smoothly implement another part of the Feeney, which allows a
reduction in the offense level of three levels (rather than the
standard two
levels)
upon a prosecutor's "formal motion at the time of sentencing." PROTECT
Act, Pub.L. No. 108-21, 401(g), 117 Stat. 650, 671 (to be codified as
28 U.S.C. 994(a)). The administrative problem that this provision
might create is modifying every presentence report in all cases in
which the three-level reduction is granted. At the time the probation
office prepares the pre-sentence report, the formal motion for the
third-level reduction will not have been made. As a result, the office
might prepare a report reflecting only a guidelines calculation based
on a two-level reduction, which would then need to be formally amended
at the time of sentencing to reflect a three-level reduction. This
could lead to a proliferation of "amendments" to pre-sentence reports,
which is burdensome to the courts and confusing to the those (such as
the Bureau of Prisons) who have to rely on their calculations. To avoid
this problem, the government might consider placing a provision in its
plea agreement to the effect that it anticipates making a motion. That
would permit the probation office to prepare the pre-sentence report on
the assumption that the three- level motion would be forthcoming. This
approach would limit the need for an amendment of the pre-sentence
report to the relatively rare case where such a motion was not
forthcoming.

FN37. See PROTECT Act, Pub.L. No. 108-21 401, 117 Stat.
650, 667 (to be codified as 18 U.S.C. 3553(b)).

FN38. See United States v. Sullivan, 255 F.3d 1256, 1260
(10th Cir.2001), cert. denied, 534 U.S. 1166, 122 S.Ct. 1182, 152
L.Ed.2d 124 (2002).

FN39. Rivera, 994 F.2d at 949 (internal quotation omitted).

FN40. See Koon, 518 U.S. at 95.

FN41. 18 U.S.C. 5K2.11.

FN42. United States v. Warner, 43 F.3d 1335, 1338 (10th Cir.1994).

FN43. See United States v. Lewis, 249 F.3d 793, 796 (8th Cir.2001);
Huddleston v. United States, 415 U.S. 814, 824-25, 94 S.Ct. 1262, 39
L.Ed.2d 782 (1974).

FN44. 249 F.3d 793 (8th Cir.2001).

FN45. Id. at 795 (citing United States v. White Buffalo, 10 F.3d 575,
576 (8th Cir.1993)).

FN46. Id. at 796.

FN47. Warner, 43 F.3d at 1338 (10th Cir.1994).

FN48. See U.S.S.G. 5K2.1(b).

FN49. See U.S.S.G. 5K2.1(b)(5).