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April 9, 2015

US Sentencing Commission votes to amend fraud guidelines (but not really "fix" that much)

As reported in this official press release, "United States Sentencing Commission voted today to adopt changes to the fraud guideline to address longstanding concerns that the guidelines do not appropriately account for harm to victims, individual culpability, and the offender’s intent. The Commission also voted to change the drug quantity table to account for the rescheduling of hydrocodone." Here are some details from the press release concerning this important federal white-collar sentencing news:

The Commission altered the victim enhancement in the fraud guideline to ensure that where even one victim suffered a substantial financial harm, the offender would receive an increased sentence. It also made changes to refocus economic crime penalties toward the offender’s individual intent, while maintaining an underlying principle of the fraud guideline that the amount of loss involved in the offense should form a major basis of the sentence.

“We found through comprehensive examination that the fraud guideline provides an anchoring effect in the vast majority of cases, but there were some problem areas, particularly at the high-end of the loss table,” said Chief Judge Patti B. Saris, chair of the Commission. “These amendments emphasize substantial financial harms to victims rather than simply the mere number of victims and recognize concerns regarding double-counting and over-emphasis on loss.”

The Commission also acted today to provide additional guidance as to which offenders are eligible to receive a reduced sentence as a minor or minimal participant in an offense. “This change is intended to encourage courts to ensure that the least culpable offenders, such as those who have no proprietary interest in a fraud, receive a sentence commensurate with their own culpability without reducing sentences for leaders and organizers,” Saris said....

The Commission also made an adjustment to monetary tables to account for inflation. This goodgovernment measure derives from a methodology provided by Congress and will have an effect on both penalty and fine tables.  The amendments will be transmitted to Congress by May 1, 2015. If Congress does not act to disapprove some or all of the amendments, they will go into effect November 1, 2015.  More information about this process and the amendments approved today will be available on the Commission’s web site at www.ussc.gov.

At the USSC's website, one can now find this "Preliminary 'Reader-Friendly' Version of Amendments. Though "reader-friendly," the amendments themselves do not really provide a complete picture of just how much these amendments, assuming they are not disapproved by Congress, could impact guideline-sentencing ranges in future high-loss white-collar cases.  In addition, and of perhaps particular interest to some currently incarcerated  defendants, the Commission has to my knowledge not yet indicated in any formal documents whether, when and how it might consider making these amendment retroactive in a manner that might impact past high-loss white-collar cases.

IMPORTANT FRAUD AMENDMENT RETROACTIVITY UPDATE: A helpful colleague who was able to watch the USSC meeting and votes provided this report on the topic of the potential retroactivity of these amendments:

At the end of the hearing, USSC staff brought up the question of retroactivity and said a motion would be appropriate at this time if the Sentencing Commission wanted the staff to conduct a retroactivity impact analysis. USSC Chair Saris asked whether anyone wanted to make such a motion and no one did. Saris then read a brief statement saying they have a statutory obligation to consider whether any amendments should be retroactive, and they had determined in this case that for these amendments that would not be appropriate.

Notably, if Congress was truly eager to help with prison-crowding problems by doing something for some notable non-violent offenders, I think Congress could provide by statutory direction either that the amendments be made retroactive in whole or in part (or it might at least direct that the Commission consider more fully whether these amendments be made retroactive in whole or in part). Also, back in 2007, when the crack guidelines were first adjusted downward slightly, the Commission did not take up the retroactivity issue until many months after it promulgated amendments lowering the guidelines. But, I suspect absent some significant advocacy by the white-collar defense bar, the die may be already permanently cast against any even partial retroactivity of these new fraud amendments.

April 9, 2015 at 02:42 PM | Permalink

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Comments

And from what I gathered, these amendments are not retroactive? Therefore those sentences before November 1, 2015 will not receive a sentence reduction?

Posted by: Tina | Apr 9, 2015 2:47:46 PM

So basically it was not made retroactive, but there may be a slim chance?

Posted by: Tina | Apr 9, 2015 4:20:18 PM

That's basically right, Tina, and I think the slim chance is VERY VERY slim unless someone politically powerful tells the USSC it needs to look into this more.

Posted by: Doug B. | Apr 9, 2015 10:08:27 PM

How can the USSC allow retroactivity for drug offenders but not white collar crimes?

Posted by: Diana | Apr 10, 2015 1:05:46 PM

Fraud may include violation of the honest service provision. Non-disclosure of a significant conflict of interest may qualify as a violation. Rent seeking is an another example.

Posted by: Supremacy Claus | Apr 10, 2015 1:10:35 PM

Is there any way to file for reductions in sentences from the new amendments even if they do not say retroactive?

Posted by: steve | Apr 10, 2015 2:34:17 PM

Is there any chance for retroactivity? My son I will be sentenced fir fraud that was NOT intended. He is 33, a graduate of Cornell in 3 years. He filed 3 times to take his company public, but something went wrong. During the court hearing he just knew he would be found not guilty based on the evidence and he did NOT take the plea bargain because he just knew he would be found not guilty. Well, he was found guilty, and he still says he never intended for his clients to lose money.

My son is facing sentencing in June.m we could not afford an attorney, so we had a public defender.

My son is a fine young man with a great attitude. He wants to get back to work to pay restitution as soon as possible.. He is Very remorseful for how things turned out and needless to say, me and my husband are suffering with our dear son.

Please let me know what I can do to help my son, and keep me informed with new legislation.

Thank you.

R.,Powell

rpowellyes@hotmsil.com


Posted by: Rita P. | Apr 11, 2015 2:31:34 AM

Email correction to R. Powell email:

R. Powell email: rpowellyes@hotmail.com

Thank you!

Posted by: Rita P. | Apr 11, 2015 2:35:04 AM

R. Powell, I sympathize with you completely. Unfortunately, the system is made to punish those who go to trial. If you believe you're innocent and fight the charges, you are automatically adding obstruction of justice as well as other enhancements. The fact that it was even considered for retroactivity, doesn't look good. I don't get it, but there is a lot that I don't understand. Best of luck to your son. No matter what the outcome, you can get through it together.

-T

Posted by: Tina | Apr 12, 2015 12:46:56 AM

My I son was sentence in 2014 white collar crime with the new guidelines would they be retroactive for him .

Posted by: kim | May 3, 2015 10:57:17 PM

Is it true it goes in effect Nov 1 2015 but if sentenced in 2014 u can file a motion to get it

Posted by: alex | Jul 9, 2015 11:37:18 PM

Even though it's not retroactive, can you still file a motion to get it?

Posted by: Rob ar | Jul 19, 2015 3:11:33 AM

My husband was convicted in 2014 and just lost his appeal... he is going to file a 2255. If my Husband is awarded a 2255 and is re-sentenced would he be sentenced under the new guidelines (even though he plead guilty in January of 2014)? I guess my question is... is the date November 2015 based on conviction date or sentencing date?

Thank you

Posted by: Sarah | Aug 29, 2015 11:13:59 PM

this is not fair. they agree for retroactive reduction for drug dealers. this could almost appear to be a prejudice argument, as lets face it, most white collar crime men are white and most drug dealers etc are black, it is what it is. im not being racist I just find its more the facts.
when prisons are so over crowded, and the US justice system totally screws people with these long drawn out sentences, it just doesn't add up, why should the newer criminals be awarded lesser sentencing than the older guys
my husband was sentenced in 2007 to 15 yrs. and has 30 months left. I was so praying that this amendment would have opened the doors to his early release back to Canada.

Posted by: Leslie | Nov 5, 2015 4:42:06 PM

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