Upcoming Changes to Federal Sentencing Guidelines

The United States Sentencing Commission voted last month to recommend certain changes to the guidelines.  If approved by Congress those changes will go into effect on November 1, 2015.  Among the proposed changes are changes to loss amounts under 2b1.1 [theft and fraud], 2b2.1 [burglary], 2b3.1 [robbery], 2R1.1 [bid rigging, price fixing and other anti-competitive practices], 2t4.1 [the tax table], 5e1.2 [fines for individuals], and 8c2.4 [base fines].

In many respects the proposed changes will benefit many defendants.  For example, currently, a fraud loss of $500,000 would result in a +14 level increase. Under the proposed changes it would only result in a +12 level increase.

Substantive amendments such as these are usually approved by Congress so the likelihood that these changes will take effect is very high.

The proposed changes aren’t all good.  Fine amounts are likely to increase under the amendments.

There are proposed changes to Section 2B1.1(b)(10)(C), sophisticated means.  The current version provides for a two-level enhancement if “the offense . . . involved sophisticated means.” Per the commentary to that guideline, “‘sophisticated means’ means especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense.” USSG §2B1.1, comment (n.9(B)).   The problem with this enhancement is that it is very vague and can encompass a very broad range of conduct.

The Commission amended USSG §2B1.1(b)(10)(C) to now read that a two-level adjustment is to be applied where “the defendant intentionally engaged in or caused the conduct constituting the sophisticated means.” (Emphasis added). According to the Commission, this “amendment narrows the scope of the specific offense characteristics at subsection (b)(10)(C) to cases in which the defendant intentionally engaged in or caused (rather than the offense involved) sophisticated means.”  While that may be the Commission’s intention its unclear exactly what effect this change will have.  Hopefully the language of the amendment coupled with the Commission’s clear intent to narrow the scope of conduct this enhancement pertains to will result in our seeing fewer of these enhancements.

Conspiracy cases frequently involve complicated questions of fact about whether a specific defendant is liable for the conduct of their co-conspirator.   Consider a bank robbery.  Four people decide to rob a bank, three people go in the bank and the fourth person remains in the car as the get-away driver.  The get-away driver is responsible for what the other three people in the bank did, even if the get-away driver doesn’t know what happened inside.  While this is the rule for determining guilt or innocence the analysis for sentencing liability can be very different.

USSG 1B1.3 has led to much confusion over the years because of the difference in how conspiracy liability is viewed in determining guilt or innocence and how it is viewed at sentencing.  The Commission has attempted to clarify this issue.  The guideline changes say that Person A can only be held accountable for the acts of conspirator B where (1) B’s acts were within the scope of criminal activity , (2) B’s acts were in furtherance of that criminal activity, and (3) B’s acts were reasonably foreseeable.

The goal of this amendment is to stop the trend of holding all conspirators liable for the conduct of their co-conspirators in every case.

2G1.1?  Still waiting.