Page 4 - White-Collar Crime

S4 | MONDAY, SEPTEMBER 28, 2015 | White-Collar Crime
| NYLJ.COM

Federal Sentencing:
be applied to the offense levels of high and

low culpability offenders.7
ABA Report To address the issue of guideline sentences
The Impact of of incarceration for irst-time offenders, the
Task Force recommended an offense level
cap of 10 for non-serious offenses by irst-
8
timeoffenders. Inotherwords,ifairst-time
Amendments to Guideline offender committed a non-serious offense, his
And or her offense level would be no greater than
10 and a sentence other than imprisonment

would generally be appropriate under the
For Economic Crimes
Task Force’s proposed guideline.9
Although the USSC did not adopt the more
signiicant structural changes proposed by
the Task Force, the Task Force report arguably
did inluence the 2015 amendments to the
economic crime guideline to some extent. The
USSC sought in those amendments to address

some of the smaller issues addressed by the
Task Force, as will be further described below.
The Task Force report also in its own right
has inluenced some sentencing decisions, and
likely will continue to do so. Even before the
Task Force issued its inal report, two federal
district judges had explicitly referenced the
preliminary Task Force report or its methodol-
ogy as instructive in determining a fair sen-

tence for a white-collar defendant. For example,
U.S. District Judge Robert N. Chatigny, in United
States v. Rivernider, applied the methodology
of the Task Force’s proposed guideline before
awarding a sentence at the upper end of the
Task Force range (12 years) as opposed to the
sentence he calculated pursuant to the USSC
guideline (more than twice that, i.e., 324 to
405 months).Chatigny noted that the “guid-
10
ance provided by the [Task Force] approach is
preferable to what emerge[d] from the exist-
ing guideline,” which he believed “signiicantly
overstate[d the defendant’s] culpability for a
number of reasons.”11 U.S. District Judge Janet
C. Hall, while not applying the Task Force’s
proposed guideline wholesale, observed, in
United States v. Litvak, that the Task Force’s dis-

cussion of the factors impacting a defendant’s
culpability was very helpful in her determina-
tion of a fair sentence.12
OCK
ST
2015 Amendments
BIG

Absent congressional action, the USSC’s On April 9, 2015, the U.S. Sentencing Com- As a starting point in its proposed guide-
2015 amendments to the economic crimes BY MARK S. COHEN mission (USSC) issued preliminary amend- line, the Task Force recommends slimming
guideline will take effect this November 1. AND SCOTT WILCOX
ments to the federal sentencing guideline down the loss table from 15 tiers to six tiers,

These include, inter alia, revisions to the Iapplicable to economic crimes (2B1.1), which and reducing the enhancement for the high-
deinition of intended loss, to the criteria n April 2013, the Criminal Justice Section are slated to take effect this November 1. est loss amount from 30 offense levels to
for the victim table, and to the deinition of of the American Bar Association formed a The Task Force had hoped that the USSC 14 offense levels.3 The Task Force also sets
sophisticated means.
Task Force to evaluate reforms needed in would make signiicant structural changes forth various culpability factors bearing on
Intended Loss. Because loss can have such federal sentencing for economic crimes and to to the economic crime guideline going well a “culpability level” for each defendant.4
an outsized effect under the guideline, the draft a proposed sentencing guideline to effec- beyond the modest changes that will be These include the defendant’s motive, the
deinition of “loss” is particularly important. tuate the reforms. The Task Force—which implemented in November. While the 2015 correlation between the amount of loss and
The economic crimes guideline provides that included distinguished judges, scholars, and amendments seek to ix certain of the smaller the defendant’s gain, the sophistication of
loss is generally “the greater of actual loss practitioners—released a draft report and issues addressed by the Task Force, they fail the offense and the defendant’s contribu-

or intended loss.”13 The amendment deines proposed guideline in September 2013. The to address the fundamental criticisms raised tion to it, the duration of the offense and
“intended loss” to include “the pecuniary Task Force’s inal report, issued in Novem- by the Task Force—along with many judges, the extent of the defendant’s participation,
harm that the defendant purposely sought ber 2014, calls for an offender’s culpability scholars, and practitioners—that loss (rather any extenuating circumstances, whether the
to inlict.”14 This new deinition calls for a to play a greater role in shaping the guide- than culpability) unfairly drives the guide- defendant initiated the offense, and whether
subjective inquiry, in the wake of a circuit line’s sentence for economic crimes, and for lines range.
the defendant took any steps to mitigate
split concerning whether the existing deini- the loss calculations that currently have an the harm from the offense.5 Applying these
tion calls for subjective or objective analysis.
outsized impact on the guidelines range to factors, the offense level of the lowest cul-
The USSC failed to heed the Task Force’s be de-emphasized.
ABA Task Force Report
pability offender would be reduced six to 10

recommendation to deine loss only as “actual The Task Force report centers on a pro- levels, while the offense level of the highest
loss.”15 However, the Task Force nonetheless posed substitution for the existing guideline culpability offender would be increased six
supported the USSC’s deinitional change as MARK S. COHEN is a partner at Cohen & Gresser, where §2B1.1 (the economic crimes guideline).1 to 10 levels.6 The culpability factor would
preferable to an objective inquiry.16 The Task he is chair of the irm’s litigation and arbitration and Among the Task Force’s chief concerns was not impact the offense level of a moderate
Force argued to the USSC that, if intended loss white-collar defense practice groups. SCOTT WILCOX the outsized impact of the loss calculations culpability offender, and a three to ive level
were to factor into the guideline calculation
is a former associate of the irm.
in the current guideline.2
adjustment up or down, respectively, would