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Top Chicago Criminal Defense Lawyer Michael Leonard addresses proposed Amendments to Sentencing Guidelines

by | Apr 24, 2024 | Firm News

Top Chicago Criminal Defense Lawyers address proposed Amendments to Sentencing Guidelines.

The United States Sentencing Commission has proposed certain significant Amendments to the United States Sentencing Guidelines. The Guidelines are relevant in every Federal criminal case, from making a decision to go to trial or plea, through the sentencing process itself – if that becomes necessary.

We are providing a brief review of those proposed Amendments.

U.S.S.G. § 2B1.1

U.S.S.G. § 2B1.1 is relevant to most Federal financial crimes. This Guideline includes the “loss table.” The Offense Level increases based on the amount of the loss resulting from the offense. For example, if an offense involves a loss between $6,501 and $15,000 of loss, a two-level increase to the base Offense Level results. Increase to the Offense Level based upon the amount of the loss can result up to a 30-level increase in the offense level (i.e., for a loss that is more than $550 million).

The Application Note 3(A) to this Guideline states that, as a general rule, courts should calculate the applicable loss amount by using the greater of the “actual loss” (to the victim) or alternatively the “intended loss” (i.e., the financial harm that the defendant intended to cause). The Commentary provides definitions for “actual loss,” “intended loss,” “pecuniary harm,” and “reasonably foreseeable pecuniary harm.”

In Stinson v. United States, the United States Supreme Court held that Guidelines Commentary “that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” 508 U.S. 36, 38 (1993). The extent to which courts should give deference to the various Guidelines Commentary has been the subject of debate.

The Third Circuit Court of Appeals recently held that Application Note 3(A) of the Commentary to § 2B1.1 is not entitled to deference. See United States v. Banks, 55 F.4th 246 (3d Cir. 2022). The Court in that case held that that the term “loss” is unambiguous in the context of § 2B1.1. The Third Circuit reversed the District Court’s use of intended loss under § 2B1.1. The Third Circuit held that the Commentary did not need to be referenced because the “loss” in the context of the Guidelines text was not ambiguous. The defendant in that case went from an Offense Level of 19 (i.e., based on a 12-level increase for the sum of $324,000 in “intended loss”) to an Offense Level of 7 based upon a zero “actual loss.” In light of the defendant’s Criminal History category, the outcome of the defendant’s lower Offense Level resulted in a recommended Guidelines range that was three to five years lower.

The differences in opinion regarding what deference should be given to the Guidelines’ Commentary has resulted in a split among the Circuit Courts of Appeal. By way of one illustration only, the loss calculation for a defendant who is charged in the Third Circuit is computed in a different manner than in the Circuit Courts of Appeal that to apply the Auer deference standard to the Commentary in the Guidelines, pursuant to the Supreme Court’s decision in Stinson (see above).

Therefore, to address the resulting inconsistencies in the application and interpretation of the Guidelines, the United States Sentencing Commission drafted an Amendment.

This proposed Amendment would result in the following: 1) create notes to the Loss Table in § 2B1.1(b)(1); 2) move the general rule establishing loss as the greater of actual loss or intended loss from the commentary to the guideline itself as part of the notes; 3) move the rule providing for the use of gain as an alternative measure of loss from the commentary to the notes; and 4) move the definitions of “actual loss,” “intended loss,” “pecuniary harm,” and “reasonably foreseeable pecuniary harm” from the commentary to the notes. Furthermore, this Amendment would make changes to the Commentary to §§ 2B2.3 (Trespass), 2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right; Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials; Conspiracy to Defraud by Interference with Governmental Functions), and 8A1.2 (Application Instructions – Organizations), which calculate loss by reference to the commentary to § 2B1.1.

U.S.S.G. § 1B1.3

Section 1B1.3 discusses “relevant conduct.” Under § 1B1.3(a)(1), “relevant conduct” includes “all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant,” and all acts and omissions of others “in the case of a jointly undertaken criminal activity,” that “occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.”

In addition, Chapter Six, Part A of the Guidelines Manual contains sentencing procedures that are universally applicable. Section 6A1.3 provides for resolution of any reasonably disputed factors, and allows courts to consider “relevant information without regard to its actual admissibility under the Federal Rules of Evidence – so long as the information has sufficient “indicia of reliability.”

Acquitted conduct is not expressly addressed in the Guidelines Manual. The proposed Amendment would revise the Guidelines Manual to address the use of acquitted conduct in sentencing. The proposed Amendment presents three options:

  1. Option 1: Amend the Commentary to § 6A1.3 to make conforming revisions addressing the use of acquitted conduct for purposes of determining the Guidelines range. This option would element acquitted conduct from the definition of relevant conduct.
  2. Option 2: Amend the Commentary to § 1B1.3 to add a new Application Note providing that a downward departure may be warranted if the use of acquitted conduct has a disproportionate impact in determining the guideline range relative to the offense of conviction. The Amendment brackets the possibility of limiting the departure’s application in cases in which the impact is “extremely” disproportionate. It also clarifies in a parenthetical that acquitted conduct is conduct [underlying] (constituting an element of) a charge of which the defendant has been acquitted by the trier of fact in federal court or upon a motion of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure.
  3. Option 3: Amend § 6A1.3 to add a new subsection (c) addressing the standard of proof required to resolve disputes involving sentencing factors. The proposed Amendment provides that a preponderance of the evidence standard generally is appropriate to meet due process requirements and policy concerns in resolving such disputes. However, it further provides that acquitted conduct should not be considered unless it is established by clear and convincing evidence.

On April 17, the Sentencing Commission voted to adopt the proposed Amendments to the Guidelines. On the “acquitted conduct” issue, Option 1 was adopted.

Michael Leonard 

Leonard Trial Lawyers

April 24, 2024