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White-Collar Crime | MONDAY, SEPTEMBER 28, 2015 | S5

at all, “[t]o better individualize the culpabil- impact on victims (also known as the victim caused by the offense.”26 Nevertheless, the ment even if the defendant’s own conduct

ity of each criminal participant in an offense, table).20 The existing guideline provides for a Task Force supported as an alternative the was not sophisticated. The amendment nar-
the losses intended to be inlicted by each two-level enhancement if the offense involved USSC’s amendment to introduce the concept rows the scope of this enhancement so that
participant should be used as the measure 10 or more victims or was committed through of substantial inancial harm into the existing it applies only in cases in which “the defen-
of culpability, rather than considering such mass-marketing; a four-level enhancement victim table.27
dant intentionally engaged in or caused the
intended losses in the aggregate.”17
if the offense involved 50 or more victims; conduct constituting sophisticated means.”29
In amending the deinition, the USSC dis- and a six-level enhancement if the offense The Task Force had recommended that
missed concerns from the U.S. Department involved 250 or more victims.21
the USSC eliminate the standalone sophisti-
of Justice hat the change would “effectively The amendment provides that the two-level The Task Force report centers cated means enhancement, and that the use
eviscerate use of the intended loss criterion enhancement also will apply if the offense of sophisticated means impact the offense
on a proposed substitution
in determining loss.”18 Speciically, the DOJ results in substantial inancial hardship to for the existing guideline level only as one of the factors bearing on the
had argued:
one or more victims.22 The four- and six-level defendant’s culpability. The Task Force none-
Application of the subjective standard enhancements will be changed to require a §2B1.1 (the economic crimes theless supported the deinitional change
adopted in the proposed amendment showing that the offense resulted in substan- to be made through the amendment as an
will make it dificult, if not impossible, tial inancial hardship for at least ive or at guideline). Among the Task improvement to the existing language. The
to prove any amount of intended loss, least 25 victims, respectively.23
Force’s chief concerns was the Task Force argued to the USSC that “defen-
even in cases where the evidence shows The amendment sets forth a non-exhaus- dants’ culpability is much more justiiably
tive list of factors that a court should con- outsized impact of the loss increased when they are themselves respon-
grossly reckless conduct that evidences
genuine culpability, and will lead to the sider in determining whether a victim has calculations in the current sible for the sophistication of the offense.”30
adoption of an actual loss standard in the sustained “substantial inancial hardship.”24 guideline.
In adopting the amendment, however, the
great majority of criminal fraud cases.19
These include becoming insolvent, iling for USSC dismissed the concerns of the DOJ,
bankruptcy, suffering substantial loss of a which had argued that the sophisticated
Despite the DOJ’s arguments, we expect retirement, education, or other savings or Although eliminating the victim table alto- means enhancement “should not be limited to
intended loss to continue to factor into sen- investment fund, making substantial changes gether would avoid the double-counting that cases in which the defendant personally used
tencing for economic crimes in certain cases. to employment (e.g., postponing retirement often occurs when the loss table and victim the sophisticated means.”31 Speciically, the
Although accepting the Task Force recommenda- plans), making substantial changes to living table calculations are combined, the amend- DOJ observed that “[h]olding the defendant
tion to deine “loss” as “actual loss” would better arrangements (e.g., relocating to a less expen- ment’s requirement of substantial inancial liable for foreseeable conduct of accomplices

ensure that the loss calculations are aligned with sive home), and suffering substantial harm hardship at least seeks to ensure some done in furtherance of . jointly undertaken
the defendant’s culpability, the subjective inquiry to the ability to obtain credit.25
culpability as a prerequisite to the greater activity is hardly novel,” and “most courts to
is a welcome shift, which should enable some The Task Force had recommended that enhancements for impact on a victim, which have considered the issue have held that the
defendants to cabin the loss amount attributed the victim table be removed from the guide- is a positive step.
sophisticated means enhancement applies
to their conduct at sentencing.
line, because “[u]nder ordinary circum- Sophisticated Means. The existing guide- to a particular defendant so long as the use
Victim Table. The USSC’s amendment stances the harm suffered by the victims line provides for an enhancement if “the of sophisticated means by other criminal
introduces a concept of “substantial inancial of an economic crime is fully accounted for offense otherwise involved sophisticated associates was reasonably foreseeable to
hardship” to the offense characteristic for
by consideration of the amount of the loss
means.”28 Courts have applied this enhance-
the defendant.”32 »
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