Case 1:16-cr-03212-WJ Document 49 Filed 04/25/17 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO UNITED STATES OF AMERICA, Plaintiff, vs. No. 16 CR 3212 WJ JULIAN BROWN, Defendant. JULIAN BROWN’S SENTENCING MEMORANDUM COMES NOW the defendant, Julian Brown, by and through counsel and, pursuant to U.S. Const. Amend. V, 18 U.S.C. § 3553(a), and applicable statutes and rules, respectfully requests this Court to impose a sentence of 24 months imprisonment in this case. As grounds, defendant states: 1. Nature and circumstances of the offense, History and Characteristics of Mr. Brown. This case is part is part of an Alcohol Tobacco and Firearms (ATF) sting operation in which paid confidential informants and undercover ATF agents went into the poorest parts of Albuquerque and sought out individuals in need of money or narcotics and induced them to commit crimes. The conduct of the agents and informants involved in Mr. Brown’s case have come under scrutiny and Case 1:16-cr-03212-WJ Document 49 Filed 04/25/17 Page 2 of 7 criticism for the tactics they employed in Albuquerque and in other locations. See, Attachment A (BATF Inspector General’s Report); See also, U.S. v. Lonnie Jackson, USDC NM 16 CR 2362 MCA, Doc # 29. In its press conference at the conclusion of this operation, the U.S. Attorney’s office portrayed the defendants in this operation as the “worst of the worst”. In Mr. Brown’s case, nothing could be further from the truth. 2. Mr. Brown was 21 years old at the time of his arrest. He was not a felon. He was working on a stucco crew where he had been gainfully employed for two years. He recently had moved into a one bedroom apartment with his girlfriend and their infant daughter. Mr. Brown was feeling the financial stress of trying to support a household and family. He was approached by ATF informant 11438 and offered cigarettes at 50¢ on the dollar so that he could make some money. Ironically, ATF agents have recently come under scrutiny for “shady” deals involving cigarette transactions. See, Attachment B (New York Times article). Once the undercover agent had established a relationship with Mr. Brown, he asked him to reciprocate his generosity and enticed him to engage in illegal transactions by offering him easy money. Mr. Brown’s desperate financial circumstances got the better of his judgment and he agreed to sell firearms that he previously had acquired and to act as a middleman for narcotics transactions. 2 Case 1:16-cr-03212-WJ Document 49 Filed 04/25/17 Page 3 of 7 Discovery in this case reveals, with the respect to the narcotics transactions, Mr. Brown had to go and purchase or acquire the quantities of methamphetamine and heroin requested by the agents. He did not, on his own, have a ready supply of the drugs desired by the agents, and encountered delays and some difficulty in acquiring what was requested. Rather than arrest Mr. Brown when they first had probably cause to do so, agents continued to string him along to try to get him to engage in more and more illegal transactions. Mr. Brown, being young, stupid, and broke fell for the agent’s inducements to the detriment of his sentencing guidelines range. 3. As set out above, the tactics employed in this case and the lack of oversight has been the subject of much criticism. Upon information and belief, the informant in this case who groomed and recruited Mr. Brown is ATF informant 11438. He makes a substantial living going around the country with his handlers creating crime for the government to prosecute. Upon information and belief, ATF informant 11438 was convicted in federal court of Possession with intent to distribute 28 grams and more of cocaine base and Felon in Possession of a Firearm in 201l. He also has been convicted of felony narcotics offenses on at least two occasions in state court. Despite the fact that he was sentenced to 120 months or ten years’ federal imprisonment in 2011, he is at large working for ATF. He is 3 Case 1:16-cr-03212-WJ Document 49 Filed 04/25/17 Page 4 of 7 paid approximately $80,000 a year before bonuses. He has owned or currently owns a boat, automobiles, and a home. Mr. Brown on the other hand hauls mud for a stucco crew, and was living in a one bedroom apartment with his girlfriend and their infant daughter. 4. While Mr. Brown displayed exceptionally poor judgment in falling prey to the agents’ inducements, he is far from the “worst of the worst.” Mr. Brown has a juvenile record, and one adult conviction for possession of a small amount of marijuana. Mr. Brown was given probation for the marijuana offense and successfully completed that probation. While Mr. Brown claimed all sorts of affiliations and criminal activities to make himself seem “legit” to the unknown African American men with whom he was dealing, in reality, he was working a solid 40 hour week plus overtime, and spent most of his off hours with his family. 5. The Sentencing Guidelines are overinflated. The guidelines in this case are inflated and over represent the seriousness of the offense of conviction. Mr. Brown is before the Court for sentencing on the charge of possession of a sawedoff shotgun. There is no allegation or proof that the weapon was used to commit or facilitate any other offense. The sentencing guidelines for Possession of a sawed off shotgun carry a base offense level of 18 months plus a two level enhancement because a 12 gauge shotgun is considered an “explosive device.” 4 Case 1:16-cr-03212-WJ Document 49 Filed 04/25/17 Page 5 of 7 The guidelines as calculated in this case however, inflate the offense level by adding four levels for narcotics transactions and two levels for possession of a stolen firearm. The narcotics and “stolen” firearm charges are not part of the offense of conviction in this case. Through the federal sentencing guidelines’ unique concept of “relevant conduct” the Court is advised to sentence Mr. Brown to several additional years in prison for offenses that either were not charged or to which he did not plead guilty. The United States is one of the few nations in the free world that encourages courts to impose sentence for offenses different from the offense of which an individual has been convicted. 6. Mr. Brown’s criminal history is similarly overrepresented. Mr. Brown is in criminal history category III primarily because of juvenile convictions. In December 2016, the U.S. Sentencing Commission released for comment a proposal that would eliminate all juvenile convictions from the calculation of criminal history. See, Attachment C (USSC Proposal). The Sentencing Commission’s proposal is backed by solid science showing that juvenile adjudications are unevenly applied and not predictive of future behavior. Mr. Brown at the present time is 21 years old. His juvenile offenses occurred when he was 14 to 17 years of age. By the standard of his so far brief life, the juvenile adjudications are relatively old. 5 Case 1:16-cr-03212-WJ Document 49 Filed 04/25/17 Page 6 of 7 7. Mr. Brown has an extended family in the Albuquerque area. He has positive relationships with all of his parents, step-parents, grandparents and siblings. He has been regularly and gainfully employed since he was 17 years old. He is a dedicated parent and a talented baseball player. The instant offense is his first adult felony conviction. The advisory guidelines in this case call for a sentence of 57 to 71 months. A sentence of almost five years for a 21 year old without any felony record is excessive and counter-productive. 8. Mr. Brown respectfully requests this Court to impose a sentence of 24 months imprisonment. If Mr. Brown’s guidelines were calculated on only the sawed-off shotgun, he would be at base level 20. A three level reduction for acceptance of responsibility reduces that offense level to level 17. If Mr. Brown’s juvenile convictions are excluded from his criminal history category, as may soon be the rule, he is in Criminal History Category I. The guideline range for Offense Level 17 and Criminal History Category I is 24 to 30 months. A 24 month sentence is sufficient but not greater than necessary to satisfy the sentencing goals of punishment, deterrence and protection of the public. Such a sentence will allow Mr. Brown to reunite with his young family with an enhanced appreciation of his liberty and all that he has to lose from engaging in illegal activity. A guideline sentence in this case runs the risk of institutionalizing Mr. Brown and 6 Case 1:16-cr-03212-WJ Document 49 Filed 04/25/17 Page 7 of 7 making his reintegration into society all the more difficult. WHEREFORE, the defendant respectfully requests this Court to impose a sentence of 24 months imprisonment and for such other and further relief as the Court deems proper. Respectfully submitted, I hereby certify that a true copy of the foregoing pleading was filed through the USDC NM CM/ECF system, which caused all parties of record to be served electronically this 25th day of April 2017. /s/ electronically filed Stephen P. McCue FEDERAL PUBLIC DEFENDER 111 Lomas NW, Suite 501 Albuquerque, NM 87102 (505)346-2489 /s/ electronically filed Stephen P. McCue, FPD Attorney for Mr. Brown 7 Case 1:16-cr-03212-WJ Document 49-1 Filed 04/25/17 Page 1 of 2 FOR IMMEDIATE RELEASE March 28, 2017 DOJ OIG Releases Report on ATF’s Management and Oversight of Confidential Informants The Department of Justice (DOJ) Office of the Inspector General (OIG) announced today the release of a report examining the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) management and oversight of its confidential informants (CI). The DOJ OIG’s review found that while ATF’s CI policies were generally aligned with the Attorney General’s Guidelines Regarding the Use of Confidential Informants (AG Guidelines), its oversight of its CI Program required significant improvement. Because of the deficiencies we identified, we concluded that ATF was not able to administer its CI Program in a manner that is reflective of the importance of the program, or its risks. Specifically, we found that ATF maintained information that is fundamental to the management of its CI Program in a compartmentalized manner that depended heavily on hard-copy files and an unsophisticated automated system. This insufficient information environment made it difficult for ATF to determine the value that individual CIs brought to ATF investigations, and it impeded ATF’s ability to manage and oversee its CI Program as a whole. Of particular concern, ATF could not efficiently identify and track total payments made to individual CIs, as doing so required ATF to locate and review numerous hard-copy documents in multiple, separate files and systems. Consequently, while we did not examine whether ATF provided incorrect CI payment information during any criminal proceedings and we are not aware of any such instances, we nevertheless concluded that ATF’s information environment did not provide sufficient safeguards to ensure that complete and accurate information was consistently available to prosecutors for use during criminal proceedings. We further found that ATF headquarters officials did not have an adequate method to verify that CIs for whom the AG Guidelines require additional oversight, such as long-term CIs who have been used for more than 6 consecutive years and CIs who hold a high-level position in a criminal enterprise, in fact received that oversight. Moreover, the committee responsible for conducting such reviews had not always met as scheduled, had not always reviewed and opined on all of the CI files provided by ATF for review, and had postponed decisions to a later date on numerous occasions. As a result, we believe that ATF’s review process for these CIs had not provided the enhanced oversight required by the AG Guidelines. Case 1:16-cr-03212-WJ Document 49-1 Filed 04/25/17 Page 2 of 2 Finally, we found that while ATF can sponsor foreign national CIs for temporary legal status when it believes the CI will provide valuable information and assistance to its investigation, ATF officials did not completely and accurately track information related to these foreign national CIs. As a result, we were unable to determine the total number of ATF-sponsored foreign national CIs. This lack of reliable information prohibited ATF headquarters from properly managing the CIs, and from ensuring appropriate coordination with the Department of Homeland Security. We were similarly unable to obtain from ATF an accurate and complete picture of other categories of higher-risk CIs, such as CIs who are also Federal Firearms Licensees and CIs who were used by international ATF offices. ATF is developing and has begun implementing a new automated system that it believes will address many of the findings in our report. We have not assessed the new system, but based on a demonstration provided to us after we had completed our fieldwork, we believe the system improves ATF’s information environment. However, the system is still in its infancy and several enhancements are necessary to address the relevant findings in our report. Today’s report makes five recommendations to ATF to improve the policies and management of its Confidential Informant Program. ATF agreed with all of the recommendations. Report: Today’s report can be found on the OIG’s website at the following link: https://oig.justice.gov/reports/2017/a1717.pdf. Video: To accompany today’s report, the OIG has released an 3-minute video featuring the Inspector General discussing the report’s findings. The video and a downloadable transcript are available at the following link: https://oig.justice.gov/multimedia/. 2 A.T.F. Filled Secret Bank lof7 ?heNew?arkf?imea U.S. A.T.F. Filled Secret Bank Account With Millions From Shadowy Cigarette Sales By MATT APUZZO FEB. 22, 2017 WASHINGTON Working from an of?ce suite behind a Burger King in southern Virginia, operatives used a web of shadowy cigarette sales to funnel tens of millions of dollars into a secret bank account. They weren?t known smugglers, but rather agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives. The operation, not authorized under Justice Department rules, gave agents an off-the?books way to finance undercover investigations and pay informants without the usual cumbersome paperwork and close oversight, according to court records and people close to the operation. The secret account is at the heart of a federal racketeering lawsuit brought by a collective of tobacco farmers who say they were swindled out of $24 million. A pair of A.T.F. informants received at least $1 million each from that sum, records show. The scheme relied on phony shipments of snack food disguised as tobacco. The agents were experts: Their job was to catch cigarette smugglers, so they 4/11/2017 8:27 AM AIR Fined Secret Bank eagernau?m rmanucsnem 2of7 knew exactly how it was done. Government records and interviews with people involved reveal an operation that existed on a murky frontier between investigating smuggling and being complicit in it. After The New York Times began asking about the operation last summer, the Justice Department disclosed it to the department?s inspector general?s office, which is investigating. The inspector general ?expressed serious concerns,? court records show. It is unclear how broadly the ATE adopted this practice, at what level it was approved, and whether it continues. Nearly all references to the have been blacked out of public court records, and most documents are entirely sealed. The investigation and the looming racketeering trial will bring renewed scrutiny to the ATE, which has been buffeted in recent years by the botched gun-tracking operation known as Fast and Furious and its mismanagement of undercover investigatiOns. Representative Jason Chaffetz, whose House oversight committee investigated Fast and Furious, asked the ATE on Wednesday for reams of documents related to the secret tobacco account. Members of Congress, particularly Republicans, have heaped criticism on the agency for decades, and the National Ri?e Association has lobbied to limit the agency?s authority and funding. While government auditors have previously cited problems with tobacco investigations, this operation went beyond what was identi?ed in that audit, released in 2013. The A.T.F. and the Justice Department declined to comment. 1 Documents in the racketeering lawsuit outline the ATE operation. The tobacco cooperative is suing a former employee and a consultant who, according to court documents, both worked as A.T.F. informants. The informants have denied all wrongdoing. 4/11/2017 8:27 AM Filled Secret Bank (gaggit?jigwm fmgiaqgmgigpent 3of7 Part of their defense, records show, is that they acted on behalf of the government. In response, a judge recently added the United States government as a defendant. Since last summer, The Times has fought to make all the documents public, but the Justice Department has argued successfully in court to keep them secret. Crucial details, however, have been revealed through poor redaction, documents that were filed publicly by mistake and the sheer difficulty of keeping so much a secret for'so long. Buying Into an Operation In spring 2011, US. Tobacco Cooperative was looking to expand its distribution network. The co?op is made up of about 700 tobacco farmers from Virginia to Florida who pool their crops and share the pro?ts. Based in Raleigh, NC, the company is a major exporter to China and produces discount-brand cigarettes including Wildhorse, Traffic and 1839. ?These are really, really good people,? said Stuart D. Thompson, the cooperative?s chief executive. ?Every year, they take all their chips. They put them on the table, and they hope they get them all back.? The company began negotiating to buy a tobacco distributor in Bristol, Va., Big South Wholesale. Big South?s owners, Jason Carpenter and Christopher Small, had a network of customers and owned a warehouse. They also had an existing secret relationship with the ATE, records show. The two men have filed court documents acknowledging ?participation in undercover law enforcement activities.? And a judge?s sealed order, which is publicly available online, revealed that the two men worked ?on behalf of various government agencies, primarily the Bureau of Alcohol, Tobacco, Firearms and Explosives.? The basics of cigarette smuggling are simple. Each state sets its tobacco 4/11/2017 8:27 AM A.T.F. Filled Secret Bank {myadwcgimaent .. 4of7 taxes. Buying cigarettes in low?tax states, like Virginia, and secretly selling them in higher-tax states, like New York, generates large profits. More complicated schemes have shipped cigarettes to Indian reservations, where they are not taxed, then rerouted them for sale on the black market. A.T.F. agents try to disrupt these networks. Often. that means working with informants to buy and sell tobacco on the black market, much the way agents pose as drug dealers to investigate cartels. Because so much of the case remains sealed, Mr. Carpenter and Mr. Small are prohibited from answering questions about nearly every aspect of the case. ?Everything we did that is being attacked now in litigation, we did in good faith,? they said in a statement. Exactly who at US. Tobacco knew about their A.T.F. ties and what they knew are a matter of dispute. But there were signs that Big South was not a simple tobacco distributor. Its assets included more than two dozen vehicles, including expensive S.U.V.s and a ?eet of Mercedes, BMW, Audi, Lexus and Jaguar sports cars. Early 2011 was a time of intense pressure inside the ATE. The agency was under fire from Congress over the Fast and Furious operation, in which agents allowed gun traffickers to buy weapons and ship them to Mexico, hoping the shipments could lead them to major weapons dealers. Justice Department auditors began scrutinizing how ATE. agents managed their tobacco smuggling investigations. With that audit continuing, the ATE. issued new rules to monitor undercover investigations. Soon after those rules went into effect, U.S. Tobacco completed its purchase of Big South for $5.5 million, a deal that gave Big South the authority to buy and sell cigarettes on behalf of the cooperative. Almost immediately, the farmers say, Mr. Carpenter and Mr. Small began defrauding them. It worked like this: An export company working with the ATE. placed an 4/11/2017 8:27 AM A.T.F. Filled Secret Bank @awt?Mt??M?lmg? {Wawmnt 50f7 order for cigarettes to be shipped internationally thus not subject to American taxes. Big South would instead ship bottled water and potato chips, making it look as if cigarettes had been exported. Mr. Carpenter and Mr. Small would then buy the tobacco at a slight markup through a private bank account. Lastly, they would sell the tobacco to Big South, again at a markup. Because they had the authority to buy on behalf of the tobacco cooperative, ?Carpenter and Small simply sold products to themselves,? the farmers wrote in court documents. All of these transactions occurred on paper. The cigarettes never left the Virginia warehouse. ?It?s what 1 saw with my own eyes,? said Brandon Moore, the warehouse manager and one of the people who discussed the transactions in the case. Their accounts fit with descriptions in court records. Mr. Moore said he was aware of the ATE operation but became troubled by it as he learned more. ?It shouldn?t be going on, even if it is the he said. In one deal described in the lawsuit, the informants bought tobacco at $15 a carton and sold it to US. Tobacco at $17.50. The profit, about $519,000, went into what was known as a ?management account.? That account, while controlled by Mr. Carpenter and Mr. Small, helped pay for A.T.F. investigations. Mr. Moore, the warehouse manager, said agents often told him what to buy on the company?s credit card. For instance, he recalled spending tens of thousands of dollars at Best Buy on iPads, televisions and other gifts to curry favor with potential criminal targets. I Mr. Carpenter and Mr. Small have also acknowledged in court documents receiving more than $1 million each, though it is not clear from public documents whether that was pro?t or reimbursement for expenses paid on behalf of the government. How that arrangement began is unclear. Ryan Kaye, an A.T.F. supervisor, 4/11/2017 8:27 AM A.T.F. Filled Secret Bank mwtl?wm fgnm?jiaWGigpent 6of7 testified that the management account was created ?as a result of verbal directives from the ATP. program office and other headquarters of?cials.? Mr. Kaye?s full statement is sealed, but excerpts are cited in one publicly available document. The defendants in the lawsuit contend that US. Tobacco got a good deal on the cigarettes, even at the prices they paid. The farmers tell a different story, saying they never would have purchased Big South if they understood that Mr. Carpenter and Mr. Small had a side arrangement that involved selling them tobacco at inflated values. Thomas Lesnak, a retired A.T.F. agent who was involved in the operation, dismissed suggestions that anything was done improperly. He said he could not discuss Big South because the Justice Department was still conducting investigations based on information developed during operations based at the warehouse. The arrangement began to break down in late 2012, when Mr. Thompson joined U.S. Tobacco as the chief financial officer. He was curious why his warehouse was placing so many orders for a brand of cigarette that competes against US. Tobacco. He could not get a straight answer, the company said in court documents. In March 2013, Mr. Moore picked up the phone, called Mr. Thompson and explained what was happening. did what I did because of the ethics of it,? Mr. Moore said recently. ?What was happening there was wrong.? Once U.S. Tobacco discovered the bookkeeping irregularities, it reported them to the Justice Department, which investigates white?collar crime and government misconduct. Records show that the Justice Department, which includes the ATE, investigated some aspects of the case but no charges were filed. ?We voted unanimously to give everything we had to the government,? said Charlie Batten, a US. Tobacco board member whose family has worked the 4/11/2017 8:27 AM - A.T.F. Filled Secret Bank same North Carolina soil for generations. ?We thought they would take it and run with it. What happened was, they?ve fought us tooth and nail.? Because of the sealing order, Mr. Thompson, Mr. Batten and others are prohibited from discussing what happened to the money even with their own farmers. Three years into its lawsuit, U.S. Tobacco still cannot disentangle itself from the government. The cooperative recently told a judge that it was under investigation by the Treasury Department. All those secret tobacco sales, it turns out, should have been taxed. And the government wants its money. Kitty Bennett contributed research. Get politics and Washington news updates via Facebook, Twitter and in the Morning Brie?ng newsletter. A version of this article appears in print on February 23, 2017, on Page A1 of the New York edition with the headline: Shadowy Cigarette Sales Secret Bank Account for A.T.F. 2017 The New York Times Company 7 of7 4/11/2017 8:27 AM This document IS schedUled to be published In the Federal Register on 12/19/2016 and available online at 6-30493, and on BAC 2210-40 UNITED STATES SENTENCING COMMISSION Sentencing Guidelines for United States Courts AGENCY: United States Sentencing Commission ACTION: Notice of proposed amendments to sentencing guidelines, policy statements, and commentary. Request for public comment, including public comment regarding retroactive application of any of the proposed amendments. Notice of public hearing. SUMMARY: The United States Sentencing Commission is considering promulgating certain amendments to the sentencing guidelines, policy statements, and commentary. This notice sets forth the proposed amendments and, for each proposed amendment, a synopsis of the issues addressed by that amendment. This notice also sets forth a number of issues for comment, some of which are set forth together with the proposed amendments, and one of which (regarding retroactive application of proposed amendments) is set forth in the Supplementary Information portion of this notice. DATES: (1) Written Public Comment?Written public comment regarding the proposed amendments and issues for comment set forth in this notice, including public comment regarding retroactive application of any of the proposed amendments, should be received by the Commission not later than February 20, 2017. Written reply comments, which may only respond to issues raised in the original comment period, should be received by the Commission on March 10, 2017. Public comment regarding a proposed amendment received after the close of the comment period, and reply comment received on issues not raised in the original comment period, may not be considered. Case 1:16-cr-03212-WJ Document 49-3 Filed 04/25/17 Page 2 of 9 by 2 levels?), 1.1 (Contempt), and (Obstructing or Impeding the Administration of Justice)? Alternatively, should the Commission identify and amend particular offense guidelines in Chapter Two to include the Violation of a court protection order as a specific offense characteristic? If so, which guidelines should be amended to include such a new speci?c offense characteristic? For example, should the Commission include such a new specific offense characteristic in the guidelines related to offenses against the person, sexual offenses, and offenses that create a risk of injury? Should the Commission include such a new speci?c offense characteristic in offenses that caused a ?nancial harm, such as identity theft? Youthful Offenders Synopsis of Proposed Amendment: This proposed amendment is a result of the Commission?s study of the treatment of youthful offenders under the Guidelines Manual. United States Sentencing Commission, ?Notice of Final Priorities,? 81 FR 5280004 (Aug. 24, 2016). This policy priority stemmed from recommendations about the treatment of youthful offenders contained in the May 2016 Report issued by the Commission?s Tribal Issues Advisory Group. Report of the Tribal Issues Advisory Group (May 16, 2016), at group. 38 Case Document 49-3 Filed 04/25/17 Page 3 of 9 Pursuant to Chapter Four, Part A (Criminal History), sentences for offenses committed prior to age eighteen are considered in the calculation of the defendant?s criminal history score. The guidelines distinguish between an ?adult sentence? in which the defendant committed the offense before age eighteen and was convicted as an adult, and a ?juvenile sentence? resulting from a juvenile adjudication. Under (De?nitions and Instructions for Computing Criminal History), if the defendant was convicted as an adult for an offense committed before age eighteen and received a sentence exceeding one year and one month, the sentence is counted so long as it was imposed, or resulted in the defendant being incarcerated, within ?fteen years of the defendant?s commencement of the instant offense. 13$ USSG All other sentences for offenses committed prior to age eighteen are counted only if the sentence was imposed, or resulted in the defendant being incarcerated, within five years of the defendant?s commencement of the instant offense. _S_e_e USSG The Commentary to provides that, to avoid disparities from jurisdiction to jurisdiction in the age at which a defendant is considered a ?juvenile,? the rules set forth in ?4A1.2(d) apply to all offenses committed prior to age eighteen. Juvenile adjudications are addressed in two other places in the guidelines. First, provides a list of certain offenses that are ?never counted? for purposes of the criminal history score, including ?juvenile status offenses and truancy.? Second, ?4A1.2(f) provides that adult diversionary dispositions resulting from a finding or guilt, or a nolo contendere, are counted even if a conviction is not formally entered. However, the same provision further provides that 39 Case Document 49-3 Filed 04/25/17 Page 4 of 9 ?diversion from juvenile court is not counted.? The proposed amendment amends ?4Al to exclude juvenile sentences from being considered 5 A i f??hjy in the calculation of the defendant?s criminal history score. The proposed amendment also amends ?girl? the Commentary to (Departures Based on Inadequacy of Criminal History Category (Policy Statement)) to provide an example of an instance in which a downward departure from the defendant?s criminal history may be warranted. Speci?cally, the proposed amendment provides that a downward departure may be warranted if the defendant had an adult conviction for an offense committed prior to age eighteen counted in the criminal history score that would have been classi?ed as a juvenile adjudication (and therefore not counted) if the laws of the jurisdiction in which the defendant was convicted did not categorically consider offenders below the age of eighteen years as ?adults.? Issues for comment are provided. Proposed Amendment: The Commentary to captioned ?Application Notes? is amended in Note 2 by striking ?An adult or juvenile sentence? and inserting ?An adult sentence?; and in Note 3 by striking ?An adult or juvenile sentence? and inserting ?An adult sentence?. Section 4A1 .2 is amended?? 40 Case Document 49-3 Filed 04/25/17 Page 5 of 9 [in subsection by striking ?Juvenile status offenses and truancy?;] in subsection by striking ?or juvenile? both places such term appears in paragraph (2), and by inserting at the end the following new paragraph (3): (3) Sentences resulting from juvenile adjudications are not counted?; [and in subsection by striking: except that diversion from juvenile court is not counted?]. The Commentary to captioned ?Application Notes? is amended in Note 7 by striking the following: ?Section 4A1 covers offenses committed prior to age eighteen. Attempting to count every juvenile adjudication would have the potential for creating large disparities due to the differential availability of records. Therefore, for offenses committed prior to age eighteen, only those that resulted in adult sentences of imprisonment exceeding one year. and one month, or resulted in imposition of an adult or juvenile sentence or release from confinement on that sentence within five years of the defendant?s commencement of the instant offense are counted. To avoid disparities from jurisdiction to jurisdiction in the age at which a defendant is considered a ?juvenile,? this provision applies to all offenses committed prior to age eighteen?, 41 Case Document 49-3 Filed 04/25/17 Page 6 of 9 and inserting the following: ?Section 4A1 applies only when the defendant was convicted as an adult for an offense committed prior to age eighteen. This provision also sets forth the time period within which such prior adult sentences are counted?. The Commentary to ?4Al .3 captioned ?Application Notes? is amended in Note 3 by striking the following: Downward Departures?A downward departure from the defendant?s criminal history category may be warranted if, for example, the defendant had two minor misdemeanor convictions close to ten years prior to the instant offense and no other evidence of prior criminal behavior in the intervening period. A departure below the lower limit of the applicable guideline range for Criminal History Category I is prohibited under subsection due to the fact that the lower limit of the guideline range for Criminal History Category I is set for a ?rst offender with the lowest risk of recidivism.?, and inserting the following: CC Downward Departures.? (A) Examples?A downward departure from the defendant?s criminal history category 42 Case Document 49-3 Filed 04/25/17 Page 7 of 9 may be warranted based on any of the following circumstances: The defendant had two minor misdemeanor convictions close to ten years prior to the instant offense and no other evidence of prior criminal behavior in the intervening period. (ii) The defendant had an adult conviction for an offense committed prior to age eighteen counted in the criminal history score that would have been classified as a juvenile adjudication (and therefore not counted) if the laws of the jurisdiction in which the defendant was convicted did not categorically consider offenders below the age of eighteen years as ?adults.? (B) Downward Departures from Criminal History Category departure below the lower limit of the applicable guideline range for Criminal History Category I is prohibited under subsection due to the fact that the lower limit of the guideline range for Criminal History Category I is set for a ?rst offender with the lowest risk of recidivism.?. Issues for Comment: 1. The Commission seeks comment on whether the Commission should consider changing how the guidelines account for juvenile sentences for purposes of determining the 43 Case Document 49-3 Filed 04/25/17 Page 8 of 9 defendant?s criminal history pursuant to Chapter Four, Part A (Criminal History). Should the Commission amend the guidelines to provide that sentences resulting from juvenile adjudications shall not be counted in the criminal history score? Alternatively, should the Commission amend the guidelines to count juvenile sentences only if the offense involved violence or was an otherwise serious offense? Should the Commission provide instead that sentences for offenses committed prior to age eighteen are not to be counted in the criminal history score, regardless of whether the sentence was classified as a ?juvenile? or ?adult? sentence? If the Commission were to promulgate the proposed amendment, should the Commission provide that juvenile sentences may be considered for purposes of an upward departure under (Departures Based on Inadequacy of Criminal History Category (Policy Statement))? If so, should the Commission limit the consideration of such departures to certain offenses? For example, should the Commission provide that an upward departure under ?4Al .3 may be warranted if the juvenile sentence was imposed for an offense involving Violence or that was an otherwise serious offense? The proposed amendment would provide that a departure may be warranted in cases in which the defendant had an adult conviction for an offense committed prior to age eighteen counted in the criminal history score that would have been classi?ed as a juvenile adjudication (and therefore not counted) if the laws of the jurisdiction in which the defendant was convicted did not categorically consider offenders below the age of eighteen 44 Case Document 49-3 Filed 04/25/17 Page 9 of 9 years as ?adults.? Should the Commission provide that a downward departure may be warranted for such cases? How would courts determine that the defendant would have received a juvenile adjudication if the laws of the jurisdiction in which the defendant was convicted did not categorically consider offenders below the age of eighteen years as ?adults?? Should the Commission provide speci?c examples or guidance for determining whether a downward departure is warranted in such cases? If so, what guidance or examples should the Commission provide? Should the Commission use a different approach to address these cases and, if so, what should that approach be? Are there other circumstances that the Commission should identify as an appropriate basis for a downward departure? Criminal History Issues Synopsis of Proposed Amendment: This proposed amendment is a result of the Commission?s work in examining Chapter Four, Part A (Criminal History) ?to (A) study the treatment of revocation sentences under and (B) consider a possible amendment of (Departures Based on Inadequacy of Criminal History Category (Policy Statement? to account for instances in which the time actually served was substantially less than the length of the sentence imposed for a conviction counted under the Guidelines Manual.? United States Sentencing Commission, ?Notice of Final Priorities,? 81 FR 58004 (Aug. 24, 2016). (A) Treatment of Revocation Sentences Under 45