White Collar Offenses New Proposed Guidelines to Reduce Federal Sentences

Federal Criminal Defense Attorney Hope Lefeber Discusses New Proposed Guidelines to Reduce Federal Sentences for White Collar Offenses

Philadelphia, Pennsylvania December 16, 2014

The Criminal Justice Section of the American Bar Association has recently completed its Final Draft Report which recommends proposed federal sentencing guidelines to replace Section 2B1.1. of the United States Sentencing Guidelines.

The Task Force consists of five professors, three judges, six practitioners, two organizational representatives and observers from the Department of Justice and the Federal Defenders.

Federal Criminal Defense Lawyer, Hope Lefeber, discusses the details of the proposed guidelines and the significance of these proposed changes.

The most significant aspect of the proposed guidelines is the reduction in offense levels for the amount of loss involved in white collar crimes, Ms. Lefeber explains.

In addition, the proposed guidelines put great emphasis on offense characteristics most relevant to sentencing that were previously ignored by the existing guideline.

For example, the proposed guideline places appropriate weight on the considerations of loss, culpability and victim impact in relation to one another.

The proposed guideline has 5 levels of culpability which depend on an array of factors, including the defendant’s motive, the correlation between the amount of loss and the amount of defendant’s gain, the degree to which the offense and the defendant’s contribution to it was sophisticated or organized, the duration of the offense, extenuating circumstances, whether the defendant initiated the offense or merely joined in criminal conduct initiated by others, and whether the defendant took steps (such as voluntary reporting or cessation, or payment of restitution) to mitigate the harm from the offense.

Ms. Lefeber notes that most of these factors, previously, were not recognized as a basis for reduction in the offense level.

The proposed guidelines further deconstruct the motive factor in determining the culpability level. Four factors are enumerated as relevant to the motive/nature of the offense:

  1. Predatory (offenses intended to inflict loss for the sole or dominant purpose of generating personal gain to the defendant;
  2. Legitimate a initio (legitimate endeavors that crossed over into criminality as a result of unexpected difficulties);
  3. Risk shifting (offenses not intended to cause loss, but shift the risk from the defendant to a third party – i.e. false statement to obtain loan that is intended to be repaid);
  4. Gate-keeping (offenses not intended to cause loss or to shift risk (ex. billing medicare for medically necessary goods and services that are actually provided without appropriate third party verification of medical necessity).

Ms. Lefeber notes that the proposed guidelines further clarify the issue of gain/loss. A higher culpability factor is assigned where the defendant derived a gain that is commensurate with the loss. Where the gain is less than the loss, the guidelines recognize a lesser degree of culpability.

Where the defendant derived little or no gain from the offense, an even lesser degree of culpability is attributed. This is a very significant change which as, previously, the amount of loss was a purely arithmetic calculation with no consideration of the defendant’s personal gain.

Ms. Lefeber explains that under the current strict application of the amount of loss, defendants who received no financial benefit or gain were sentenced the same as those that reaped huge gains.

The proposed guidelines also consider a number of other issues in determining the level of culpability – duration of the offense and the defendant’s participation, extenuating circumstances, efforts to mitigate harm, voluntary cessation, self-reporting and/or restitution.

Ms. Lefeber explains that, again, these are factors which previously were not recognized as mitigating factors in the guidelines.

Lastly, the proposed guideline has four levels of victim impact (1) minimal or none; (2) low; (3) moderate; (4) high.

There are many factors that the proposed guideline identifies in the consideration of the appropriate level of victim impact – (1) vulnerability of victims; (2) significance of loss to the victim; (3) other non-economic harm; (4) victim inducement of the offense.

Ms. Lefeber notes that the existing guidelines do provide enhancements for “vulnerable victims” in Chapter Three, but the proposed guideline cautions against double-counting for this.

Thus, Ms. Lefeber explains the proposed guideline should have the effect of mitigating the offense level where victims are not vulnerable, a result which has not previously been addressed by the existing guideline

Ms. Lefeber believes that ABA Task Force’s recommendation is an excellent proposal and is hopeful that it will be adopted by the Board of Governors of the ABA and ultimately, the United States Sentencing Commission.

- See more at: https://www.nycfederaldefense.com/press/white-collar-offenses-new-proposed-guidelines-to-reduce-federal-sentences/#sthash.4s0ZHgvs.dpuf

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