In our last post, we mentioned that changes may be coming with respect to how the federal sentencing guidelines deal with a defendant’s culpability for economic offenses such as fraud, theft and embezzlement. Overall, the recent changes proposed by the U.S. Sentencing Commission are intended to provide for a better measure of a defendant’s actual culpability.
One of the proposed changes is that the table used to determine the offense level increase which corresponds to the amount of loss involved in a case is going to be adjusted for inflation. The effect of the change, while in itself beneficial for defendants, may not ultimately have a significant beneficial effect for offenders, though, since adjustments to the fine table have basically doubled, thus increasing the fines offenders will face at sentencing.
Another change involves the issue of intended loss, which is to be distinguished from actual loss. Under the current scheme, actual loss is the most important factor in determining the offense seriousness level, but the commission proposes to put a greater emphasis on intended loss, which is the amount the defendant intended to obtain by means of the offense.
Another change proposed by the commission concerns the sophisticated means enhancement. Although the enhancement has typically been applied based on the objective nature of the defendant’s conduct, the proposed change directs courts to look to whether the defendant intended to use sophisticated means to carry out the offense. This, again, is in line with the principle of giving greater weight to the defendant’s subjective intent in sentencing.
In our next post, we’ll wrap up this discussion and offer some comments on how an experienced attorney can help criminal defendants navigate the sentencing guidelines.
