I. Introduction and Summary

NCLA applauds the Sentencing Commission’s desire to rectify serious issues pertaining to the Guidelines. NCLA does not take a position regarding the appropriate definition of the terms “crime of violence” or “controlled substance offense” or whether a categorical approach should be utilized. Id. at 65401. Instead, NCLA agrees that the amendment correctly proposes to move the inchoate offenses provision from the Commentary to § 4B1.2 to the Guidelines themselves as a new subsection (c). Id. at 65413. NCLA writes to stress that this change is constitutionally required and therefore ought to be adopted by the Commission.

The hybrid nature of the Sentencing Commission implicates limits set by the Constitution, Congress, and the courts. As an administrative agency, the Commission has no lawmaking power under Article I of the Constitution. Thus, under the agency’s specified authority, any expansion or amendment of the Guidelines must be approved by Congress. Furthermore, congressional oversight with a notice-and-comment period is necessary when adding offenses to the Guidelines to insure compliance with the Administrative Procedure Act (APA). Finally, the Commission has no judicial function, under Article III of the Constitution, and thus the Commentary may only interpret the Guidelines, not define them.

The Commission violates and ignores theses limits when attempting to add offenses by changing the Commentary instead by adding provisions to the congressionally-approved Guidelines text. And, as Courts have recognized, the Commission effectively broadened the scope of the Guidelines text in Application Note 1 to § 4B1.2. Thus, if the Commission wishes to include inchoate offenses under § 4B1.2’s reach, the Commission should propose to move the inchoate offenses provision from the Commentary to the Guidelines text and submit the amendment for congressional approval. The Commission must also ensure that all future amendments to the Guidelines are located within the Guidelines’ text, not relegated to the Commentary.

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