Federal Sentencing Tips


The U.S. Sentencing Commission Votes for Fundamental Fixes to the Sentencing Guidelines – Part I

by Alan Ellis and Mark H. Allenbaugh

On April 9, 2015, the U.S. Sentencing Commission voted to fundamentally fix some portions of the U.S. Sentencing Guidelines that have long been in need of repair. These fixes will become final on November 1, 2015 if Congress does not act to the contrary. Of the 700+ amendments to the guidelines, Congress has only vetoed Commission action a few times, and those generally had to do with drug amendments. While the Department of Justice (DOJ) initially opposed some of the current changes, it voiced no opposition at the April 9 vote. It is highly doubtful that Congress will reject any of these amendments, as they are relatively non-controversial.

This newsletter briefly reviews two of those changes: (1) Jointly Undertaking Criminal Activity and (2) Mitigating Role. Subsequent newsletters (Parts II, III, and IV) will address changes to the economic crimes guidelines, intended loss, inflationary guideline changes, number-of-victims table, sophisticated means, and Securities Fraud.

While not everything the organized bar (American Bar Association, NACDL, Practitioner Advisory Group, Federal Public and Community Defenders, and New York Council of Criminal Lawyers) had hoped for, the amendments nonetheless reflect a welcome emphasis on a defendant’s actual culpability. Practitioners should take note of these amendments in order to maximize the benefits of these changes for their clients. If possible, where the changes are helpful, practitioners should move sentencings to after November 1, 2015, or at least otherwise argue to the court that downward variances should be made to account for relevant amendments.

Jointly Undertaken Criminal Activity

Conspiracy cases often involve complex questions of fact regarding the liability of one conspirator for another. For purposes of trial, conspirator A can be held liable for the overt acts of conspirator B even if A had no actual knowledge of B’s acts, as long as B’s acts were in furtherance of the conspiracy. But the same does not necessarily hold for purposes of sentencing, and this has led to considerable confusion in the courts.

At the trial level, courts are concerned with liability, while at sentencing the issue turns to culpability. Or as the Commission long has noted, “[t]he principles and limits of sentencing accountability . . . are not always the same as the principles and limits of criminal liability.” USSG §1B1.3, comment. n.1 (emphasis added). This has nevertheless led to confusion inasmuch as courts often equate trial liability with sentencing accountability. For example, in a fraud conspiracy involving A and B that resulted in $15 million in investor losses, while A and B may be criminally liable for the conspiracy, the guidelines recognize that A may not be as accountable—in other words, less culpable—as B especially where A’s role was comparatively small. The same of course holds true for drug conspiracies and other offenses that are quantity-driven, e.g., antitrust, bribery, tax fraud, and racketeering.

The Commission now has clarified conspirator A can only be held accountable for the acts of conspirator B where (1) B’s acts were within the scope of criminal activity that A agreed to jointly undertake, (2) B’s acts were in furtherance of that criminal activity, and (3) B’s acts were reasonably foreseeable in connection with that criminal activity. The first criterion, which now has been added to the guidelines, clarifies that within conspiracies, each co-conspirator should only be held accountable for conduct that he actually agreed to jointly undertake with the other conspirators.

This clarification hopefully will reverse the trend of automatically holding one conspirator accountable for the conduct of all other conspirators. After all, holding a conspirator accountable only for the foreseeable conduct they agreed to undertake, which was in furtherance of the conspiracy, is a far better measure of culpability than has often been the case.

Mitigating Role

With respect to measuring culpability, section 3B1.2 of the guidelines provides for a downward adjust of between two and four levels where an offender is found to be a minor or minimal participant in a conspiracy. The question has been whether that determination turns only on the conduct of co-conspirators in the case at hand, or whether a court is also to look at other cases involving those who have committed similar crimes.

The Commission has now voted that courts are only to look at the relative culpability of co-conspirators in the case before them, rather than engage in a review of similarly situated defendants in other cases. This move likely will reduce unnecessary litigation on the issue and hopefully increase application of this downward adjustment, which currently is only awarded an abysmal 6.9% of the time.

About Alan Ellis
Alan Ellis is a criminal defense lawyer with offices in San Francisco and New York, with 50 years of experience as a practicing lawyer, law professor and federal law clerk. He is a nationally recognized authority in the fields of federal plea bargaining, sentencing, prison matters, appeals, habeas corpus 2255 motions and international criminal law.

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