Just a Little Reminder.
- The 2015 Guidelines amendments just took effect on November 1.
- There’s changes to the theft/fraud guideline that are mostly helpful, including a partial adjustment of the loss table for inflation, changes to the victims and “sophisticated means” adjustments, and modification of the commentary defining “intended loss.”
- There’s also some helpful changes to the mitigating role guideline and a Sentencing Commission explanation of the amendment stating that this adjustment has been “applied inconsistently and more sparingly than the Commission intended.”
NOW THE BLOG:
Just a little reminder post today, partly because I’m still in the midst of getting reoriented after my annual Seattle to LA transition. The 2015 Guidelines amendments I posted about last May (see “An Update on the 2015 Guidelines Amendments” in the May 2015 link at the right) are now official, having taken effect on November 1 with no effort by Congress to change them. (As expected, since Congress has used its power to reject proposed amendments only very rarely.) That leaves us with several new guidelines provisions, most of them helpful.
First, the loss tables for the theft/fraud guideline have been adjusted to take into account the effects of inflation – partially. Remember (see my last post) that the amendment takes only inflation since 2001 into account. So you can consider making an argument for variance based on the remaining inflation from the initial adoption of the guidelines in 1987 up to 2001, which is actually three times as much. (See my prior post for the figures, or get inflation figures from the Internet yourself.)
Second, there’s been changes made to the victim adjustment in the theft/fraud guideline, the “sophisticated means” adjustment, and the definition of “intended loss” in the commentary, which are discussed in more detail in the prior post. The first of these amendments can both help and hurt, but the second and third should generally help.
Finally, there are changes to the mitigating role guideline which should help in some – and hopefully many – cases. (Again, see the prior post for details.) Aside from providing factors to point to, there’s the very first paragraph of the explanation of the changes in the Sentencing Commission’s “Reason for Amendment.” It explains that the Commission conducted a review of cases involving low-level offenders and that “the study found that mitigating role is applied inconsistently and more sparingly than the Commission intended.” You should use this to discount prior case law upholding the denial of this reduction and encourage your district courts to apply the adjustment more frequently.
That’s it for this week.