US Sentencing Commission proposes (modest but significant) changes to the fraud guidelines

As reported in this official news release, the “United States Sentencing Commission voted today to publish proposed guideline amendments, including revisions to the sentencing guideline governing fraud.” Here are the basics from the release:

The bipartisan Commission voted to seek comment on a proposed amendment to revise guideline §2B1.1 governing fraud offenses by clarifying the definition of “intended loss,” which contributes to the degree of punishment, and the enhancement for the use of sophisticated means in a fraud offense. The proposed amendment also revises the guideline to better consider the degree of harm to victims, rather than just the number of victims, and includes a modified, simpler approach to “fraud on the market” offenses which involve manipulation of the value of stocks.

The proposed revisions to the fraud guidelines come after a multi-year study, which included a detailed examination of sentencing data, outreach to experts and stakeholders, and a September 2013 symposium at John Jay College of Criminal Justice in New York. “We have heard criticism from some judges and members of the bar that the fraud guideline may be fundamentally broken, particularly for fraud on the market cases,” said Judge Patti B. Saris, Chair of the Commission. “Based on our extensive examination of data, we have not seen a basis for finding the guideline to be broken for most forms of fraud, like identity theft, mortgage fraud, or healthcare fraud, but this review has helped us to identify some problem areas where changes may be necessary.”…

Consistent with the Commission’s mission to make the guidelines more efficient and more effective, the Commission also voted today to clarify the provisions allowing for sentence reductions for offenders with mitigating roles in the offense and the provisions governing jointly undertaken criminal activity.  The Commission similarly proposed adjusting the tables based on amounts of money for inflation in an attempt to keep the guidelines current and follow the approach generally mandated by statute for most civil monetary penalties….

The proposed amendments and issues for comment will be subject to a public comment period running through March 18. A public hearing on the proposed amendments will be scheduled in Washington, D.C., on March 12. More information about these hearings, as well as a data presentation on today’s proposed fraud amendment and other relevant data, will be available on the Commission’s web site at www.ussc.gov.

Here are links to new materials already posted on the USSC website this afternoon:

• “Reader-Friendly” Version of Proposed Amendments (January 9, 2015)
• Chair’s Remarks at Public Meeting (January 9, 2015)

As the title of this post indicates, these new proposed amendments strike me as relatively modest but still quite significant. Most notably, the white-collar defense bar is likely to be very interested in what these changes signal and suggest, and any federal fraud defendants currently serving very long guideline sentences may want to start thinking about whether these proposed amendments might help their cause if they are formally adopted and thereafter made retroactive.