It’s Not Too Early to Start Thinking About the Future: The Upcoming Guidelines Amendments
- The Sentencing Commission has published new proposed guidelines amendments which will apply to any defendant sentenced after November 1 if the amendments are adopted.
- One amendment adjusts the loss tables to reflect inflation, which has the effect of increasing the loss ranges by 25 to 40 percent.
- Other potentially favorable amendments modify the enhancement for number of victims, narrow application of the “sophisticated means” enhancement, and provide some additional guidance on application of the minor/minimal role adjustment.
NOW THE BLOG:
Given that new sentencing guidelines amendments apply so long as they’re in effect at the time of sentencing (unless they’re harsher, in which case the Ex Post Facto Clause makes them inapplicable, see Peugh v. United States, 133 S. Ct. 2072 (2013)), you should always be looking ahead to the guidelines amendments coming down the road. (But see Booker and some of my prior posts on deconstructing the guidelines, available through the November 2013 and December 2013 links at the right.) If there’s something favorable coming, you want to think about stretching things out so your client gets sentenced after the favorable guideline takes effect. (Though after Booker, we can always argue the upcoming guideline as a variance, at least once it’s been officially approved by the Sentencing Commission.)
With this in mind, I thought I’d share some information about proposed guidelines amendments that recently came across my desk. (Well, okay, nowadays things don’t come across my desk, so much as pass by on my computer screen, but you know what I mean.) There’s several amendments being considered that could have a not insignificant impact on your cases. The amendments are just proposed and published for comment at this point, so they may not actually be adopted by the Sentencing Commission. Still, they’re the Commission’s own proposals, which means there’s at least a decent chance they’ll be adopted. It’s certainly worth keeping the possibility in mind for those cases that would be affected.
The amendment that has the broadest potential impact is a proposal to adjust the loss table in § 2B1.1 for theft and fraud – as well as other guidelines with similar monetary tables – to reflect inflation. (See page 36 and following of the pdf version of the proposed amendments linked here.) Each loss range would be increased by roughly 25 to 40 percent, depending on the range. To use some of the key break points as examples, the loss necessary to kick a criminal history category I offender with no other offense level enhancements out of Zone A where he or she can completely avoid custody would increase from $30,000 to $40,000. Going on up the table, the loss necessary to kick a criminal history category I offender out of Zone B where the required custody can be home detention or community confinement would increase from $70,000 to $95,000. Especially for clients with losses in these ranges, this could be a pretty important shift.
There’s also a second proposed amendment to § 2B1.1 that could have a significant impact, though it’s a two-part amendment that will hurt in some cases. This is an amendment to the specific offense characteristic for victims (appearing at page 78 of the linked pdf version of the proposed amendments). The favorable part of the amendment is a reduction in the increases for number of victims in § 2B1.1(b)(2) to 1 level, 2 levels, and 3 levels for 10 or more victims, 50 or more victims, and 250 or more victims, respectively, from the current increases of 2 levels, 4 levels, and 6 levels. The unfavorable part of the amendment, which could make it worse in some cases, is an additional modification that applies the increases in cases with smaller numbers of victims if the victims suffered “substantial [financial] hardship.” “[S]ubstantial [financial] hardship” is then defined in a new application note and includes not just financial impacts but also the impact of identity theft. So this amendment would help in a case with 10 or more victims, so long as there weren’t enough victims who suffered “substantial [financial] hardship.” But it may hurt in cases where there was “substantial [financial] hardship,” including the damage done by identity theft.
There’s also an amendment to another specific offense characteristic in § 2B1.1 – the specific offense characteristic in § 2B1.1(b)(10)(C) for “sophisticated means” (appearing at page 83 of the linked pdf version of the proposed amendments). The amendment would narrow the applicability of this enhancement in two ways. First, it would require – in an amendment to the application note defining “sophisticated means” – that the “sophisticated means” “display[ ] a significantly greater level of planning or employ[ ] significantly more advanced methods in executing or concealing the offense than a typical offense of the same kind.” (Emphasis added.) Second, it would require that the defendant himself have engaged in or caused the conduct constituting the sophisticated means.
Finally, there’s an amendment to the mitigating role guideline that could help in some cases, but may not really add so much. This amendment (appearing at page 54 of the linked pdf with the proposed amendments) provides what it labels a “non-exhaustive list” of three factors a court should consider, which are (1) the degree to which the defendant understood the scope and structure of the criminal activity; (2) the degree to which the defendant participated in planning or organizing the criminal activity; and (3) the degree to which the defendant stood to benefit from the criminal activity. This list might not help in many cases, and the explanation of the amendment doesn’t suggest it’s intended to change the standard, but the list could help in the right case.
In any event, these are some amendments that seem worth keeping in mind as you pick up cases that could be stretched past November 1, which is the date these guideline amendments would take effect. For the right minor or minimal role case or the right theft or fraud case, you may want to stretch things out – or, if you can’t stretch things out, argue for a variance based on the pending guideline amendment.