April 30, 2015 United States Sentencing Commission Submits Amendments to Congress

On April 30, 2015 the United States Sentencing Commission submitted proposed amendments to the Federal Sentencing Guidelines to the United States Congress. They will go into effect on November 1, 2015 unless Congress acts to block them. We believe that to be unlikely. Of import is the fact that the Commission made inflationary adjustments that have the effect of increasing the dollar amount for “amount of loss” in financial crimes. Accordingly, there will a now be a higher threshold amount to trigger a specified increase in offense level and this should result overall the reduction in the length of many federal prison sentences. This is positive news. Further, instead of just looking at the number of victims, which can often increase ones guideline level, the new Guideline amendments focuses on the whether there is a substantial financial harm to victims. Additionally, the new proposed amendments would also require that the government demonstrate that the defendant intended to engage in sophisticated conduct. In other words, the court will look at the specific conduct of the defendant rather than the overall scheme or crime to determine whether a crime was “sophisticated” permitting a 2 point upward enhancement. Also of significance is that the Commission is proposing that the “mitigating role” adjustment as contained in USSG Section 3B1.1 is used too sparingly and has broadened its application to benefit more defendants. It is unclear as to whether these changes, if the go into effect on November 1, 2015, will be applied retroactively as the Commission did with the “drug Minus 2” or 2 point reduction affecting drug offenders. We will have to wait and see what the Commission does on that issue.

UPDATE JULY 20, 2015: IT DOES NOT APPEAR THAT THE COMMISSION WILL VOTE TO APPLY THESE AMENDMENTS RETROACTIVELY, WE ARE SORRY TO SAY. At the end of the last Commission hearing, USSC staff brought up the question of retroactivity and said a motion would be appropriate at this time if the Sentencing Commission wanted the staff to conduct a retroactivity impact analysis. No motion was made.