Friday, September 20, 2013

ABA Proposal to Modify 2B1.1 - Fraud Guideline

The U.S. Sentencing Commission held a conference that examined 2B1.1 - the Fraud Guideline.  A proposal offered from the ABA Task Force on the Reform of Federal Sentencing for Economic Crimes was one topic of discussion. (See ABA Task Force Report Download USSC Presentation 9-17-13).   This proposal, presented by James E. Felman, came with several caveats, most importantly that the existing statutory structural framework would remain in effect, although their "Prinicples of Consensus" presented weaknesses to this framework.

The ABA Proposal focuses on three key specific offense characteristics - loss, culpability, and victim impact.  But unlike the existing 2B1.1 guideline, levels of culpability would play a significant role in determining the sentence. Although loss continued to remain a component in determining a sentence under this proposal, the sentence  would not be a function of a mathematical computation that was basically driven by the amount of loss.   The proposal appeared to be a framework for discussion, as opposed to an in-depth description as to exactly how it would operate.  And although it left open many questions, it offered a strong base for starting a conversation that would move the sentencing guidelines away from being predominantly loss-focused and also away from including "intended loss."  The proposal also appeared to provide the judiciary with more influence in the sentence received, something that might not be as appealing to the government.  

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