BLOG BULLETS:

• The Sentencing Commission has adjusted the loss tables to take inflation into account, though the adjustment accounts only for inflation since 2001.
• The Commission has also made favorable changes to the victims enhancement, the sophisticated means enhancement, and the definition of “intended loss.”
• Finally, the Commission has added considerations and commentary to the mitigating role guideline that will hopefully lead courts to apply it more frequently.

 

NOW THE BLOG:

Last January, I put up a post about the Sentencing Commission’s preliminary proposed guidelines amendments in which I highlighted a few potentially helpful amendments.  (See “It’s Not Too Early to Start Thinking About the Future: The Upcoming Guidelines Amendments,” in the January 2015 link at the right.)  The Commission has now made its final decision on what to send to Congress, so I thought it might be time for a little update on what the Commission finally adopted.  You can pretty much count on these amendments taking effect, as it’s only once or twice in the history of the guidelines that Congress has exercised its power to veto amendments proposed by the Commission.

The full text of the amendments the Commission voted to submit to Congress is attached here.  The Commission did adopt most of its preliminary proposals, though there were a few changes, and a couple of these are significant.  Initially, the Commission did adopt the proposed adjustment of the various monetary tables for inflation (see page 13 of the linked document), so, in a theft or fraud case, the cutoff for Zone A, where a defendant can completely avoid custody (this assuming credit for acceptance of responsibility and that no other adjustments or specific offense characteristics apply), goes from $30,000 to $40,000, and the cutoff for Zone B, where custody can be limited to just home detention or community confinement (again assuming credit for acceptance of responsibility and that no other adjustments or specific offense characteristics apply), goes from $70,000 to $95,000.  And there’s a variance argument to keep in mind based on this recognition that losses should adjust for inflation.  As pointed out in a statement given by a Federal Public Defender representative who testified on the amendments (see page 56 of the pdf version of the Defender comments linked here), the adjustment of the § 2B1.1 tables only takes into account the effects of inflation since 2001 rather than all inflation since 1987, when the guidelines started.  If you want, you can find CPI tables on the Internet, and you’ll find that the CPI change from November 2001 through November 2014 was only 33.1% while the change from November 1987 through November 2014 was 104.6%.  You can combine the Commission’s recognition of the general principle that there should be an inflationary adjustment with this more complete inflation figure to argue for a doubling of the amounts in the monetary tables rather than just the one-third increase the Commission has adopted.

The Commission also adopted an amendment of the victims adjustment in § 2B1.1, though the amendment actually adopted differs a little from what was originally proposed.  (See pages 26-27 of the document linked above.)  Instead of changing the increases for more than 10 victims, more than 50 victims, and more than 250 victims across the board from 2 levels, 4 levels, and 6 levels to 1 level, 2 levels, and 3 levels as in the original proposal, the amendment keeps the 2-level adjustment for more than 10 victims and simply eliminates the additional adjustments for more than 50 victims and more than 250 victims.  It does then add the increases for smaller numbers of victims who suffered “substantial financial hardship,” but slightly narrows the definition in the original proposal, by including “substantial harm to [the victim’s] ability to obtain credit,” but not including the more general “having his or her identity assumed by someone else” that was in the original proposed amendment.  (See the proposed amendments linked to my January post for this language in the original proposal.)  Use this change if the government tries to argue that the more amorphous harms of identity theft constitute “substantial financial hardship,” by arguing that the Commission considered including other identity theft harms and specifically decided not to.

Next, the Commission adopted part of the proposed amendment of the “sophisticated means” enhancement I described in my post last January.  (See page 27 of the document linked above.)  The part of the amendment the Commission adopted was the requirement that the defendant intentionally engaged in or caused the conduct constituting the sophisticated means.  The part of the amendment the Commission didn’t adopt was a proposed amendment of the application note, which would have (1) eliminated the examples of locating a main office in a different jurisdiction and/or hiding assets and (2) substituted a requirement that the conduct “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.”  (Again see the proposed amendments linked to my January post for this language in the original proposal.)

There’s also one additional amendment of the theft/fraud guideline that I didn’t mention in my January post, but probably should have.  That’s an amendment to the definition of “intended loss” in Application Note 3.  It replaces the words “intended to result from the offense” with the words “the defendant purposely sought to inflict.”  (See page 28 of the document linked above.)  As or more helpful as this new language is the Commission’s explanation of it.  The explanation indicates that the language is intended to incorporate the holding of United States v. Manatau, 647 F.3d 1048 (10th Cir. 2011), in which the court of appeals reversed a district court ruling that intended loss should be determined by adding up the credit limits of some stolen convenience checks.  The court of appeals held this was error, because “intended loss” contemplates “a loss the defendant sought purposely to inflict,” id. at 1055, that the appropriate standard was one of “subjective intent to cause the loss,” id., and that such intent may be determined by “reasonable inferences about the defendant’s mental state from the available facts,” id. at 1056.   (For the Commission’s discussion of this case in its explanation of the amendment, see pages 24-25 of the document linked above.)  I found myself wondering as I read this whether and how we might use this reasoning to challenge the $500 per access device presumption in Application Note 3(F)(i) to § 2B1.1.  Perhaps we can argue it shows a court’s focus shouldn’t be on credit limits or presumptive amounts, but should be on the defendant’s actual intent and that Application Note 3(F)(i) is inconsistent with this.

Then, on the last of the amendments I discussed in my January post, the Commission did adopt the proposed amendment to the mitigating role guideline that I described in my January post; in fact, it even improved the amendment slightly.  (See page 45 of the document linked above.)  In addition to the factors to be considered that were already listed in the proposed amendment, the Commission added “the degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority” and “the nature and extent of the defendant’s participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts.”  The Commission also added the example of “a defendant who does not have a proprietary interest in the criminal activity and who is simply being paid to perform certain tasks.”  It also rejected the rationale courts sometimes give for denying the adjustment to a defendant who “plays an essential role,” by adding the following to the application note:   “The fact that a defendant performs an essential or indispensable role in the criminal activity is not determinative.  Such a defendant may receive an adjustment under this guideline if he or she is substantially less culpable than the average participant in the criminal activity.”  Both of these additions seem to create a very strong argument for a mitigating role adjustment in the case of drug mules.

In addition, on the subject of changes that were suggested but not incorporated into any amendment, I want to commend to your attention another argument made in the Federal Public Defender comments on the amendments.  Those comments, which are linked above in full, provide a strong argument against the low “reasonable foreseeability” threshold for “relevant conduct” in § 1B1.3(a)(1)B), which these new amendments tweak but don’t change.  A recent e-mail I got on one of the listservs I’m on suggested the argument made in this testimony could be used to argue for a variance, on the theory that mere “reasonably foreseeable” conduct isn’t what should drive sentencing.  And this is just one example of a way to use the defender comments to argue for a variance; there’s lots more in there if you take the time to peruse the comments in full.

Finally, you could starting considering these amendments now, even though they don’t officially take effect until November 1.  First, they may be a reason to try to stretch cases out so your sentencing takes place after November 1.  Second, you can use them to support variance arguments now even if they aren’t technically applicable yet.