DOJ Opposes Amendments To Economic Crime Sentencing Guidelines

As previously reported on this blog, the U.S. Sentencing Commission has proposed several amendments to the federal sentencing guidelines for economic crimes. The amendments are designed to address criticism that § 2B1.1 of the Guidelines is vague, that it treats defendants who have secondary roles with undue harshness, and that it suggests disproportionately severe sentences for first-time offenders.

On March 18, 2015, the Sentencing Commission heard commentary and reviewed letters in response to a request for public comment on the proposed amendments. The Department of Justice asserted a vigorous opposition to several of the proposals, on the ground that they would result in unwarranted leniency for white-collar offenders. The DOJ also objected to adjusting victim losses for inflation in sentencing calculations, stating that any reduction would be contrary to "overwhelming societal consensus."

On the other end of the spectrum, members of the defense bar criticized the proposed amendments as falling short of their goals. Michael Caruso, the Federal Public Defender for the Southern District of Florida, expressed disappointment that the Commission did not conclude that § 2B1.1 is "fundamentally broken." He argued that "Defenders see a steady stream of government cases against individuals with no criminal history who played a low-level role in a larger scheme. . . . [T]he guidelines fail to provide courts with adequate guidance on the appropriate sentence for these individuals."

Several commissioners seemed unconvinced by some of the DOJ's positions. Commissioner William Pryor, a judge on the Court of Appeals for the Eleventh Circuit, found the DOJ's arguments against adjusting sentencing enhancements premised on victim losses to account for inflation "singularly unpersuasive." Judge Pryor asked, "how can it be that someone who was sentenced 30 years ago should get effectively, a lower sentence for the same crime that someone today commits?"

In addition to the proposed inflation adjustment, the DOJ opposed amendments to the following sections

1. § 2B1.1 cmt. 3(A)(ii): Intended Loss Defined

   "Intended loss" is currently defined in application note 3(A)(2) as "the pecuniary harm that was intended to result from the offense," including "intended pecuniary harm that would have been impossible or unlikely to occur (e.g., as in a government sting operation, or an insurance fraud in which the claim exceeded the insured value)." In the new amendments...