A Fatally Flawed Proxy: The Role of "Intended Loss" in the U.S. Sentencing Guidelines for Fraud

By Guarnera, Daniel S. | Missouri Law Review, Summer 2016 | Go to article overview

A Fatally Flawed Proxy: The Role of "Intended Loss" in the U.S. Sentencing Guidelines for Fraud


Guarnera, Daniel S., Missouri Law Review


TABLE OF CONTENTS  TABLE OF CONTENTS                                                715 I. INTRODUCTION                                                  716 II. SENTENCING GUIDELINES THROUGH THE LENS OF RULES AND STANDARDS                                                        720   A. The Origins of the Guidelines                               720   B. The Rules/Standards Framework                               722   C. The Rule-Oriented Structure of the Guidelines               724   D. United States v. Booker and a Hybrid System of Rules and      Standards                                                   726  III. THE FRAUD GUIDELINES AND THE LOSS ENHANCEMENT              730   A. The Fraud Guidelines and Their Discontents                  731   B. The Purposes and Structure of the Fraud Guidelines          732      1. Historical and Pragmatic Justifications for the      Loss Rule                                                   734      2. Loss as a Proxy for Culpability and Harm                 736   C. Actual and Intended Loss                                    737      1. The Absence of Mitigation in the Fraud      Guidelines                                                  741      2. Non-Loss Enhancements and Double Counting                743  IV. THE CHALLENGE OF MEASURING CULPABILITY WITH A   RULE: THE 2015 "PURPOSEFUL LOSS" AMENDMENT                     745   A. Clarifying the Meaning of "Intended" Loss                   745   B. Critiquing the Fit Between Purposeful Loss and Culpability  751   C. Expected Loss as an Alternative Measure of Culpability      754  V. RETHINKING RULE-BASED PROXIES FOR CULPABILITY                758   A. Loss and Proportional Sentencing                            758   B. Alternative Approaches to Measuring Culpability             760      1. A Rule-Based Culpability Score                           761      2. A Standard-Based Alternative                             762  VI. CONCLUSION                                                  767 

I. INTRODUCTION

On November 1, 2015, the U.S. Sentencing Commission promulgated a slate of amendments that capped off a "comprehensive, multi-year study" of the economic crime provisions in the U.S. Sentencing Guidelines. (1) Section 2B1.1 of the Guidelines provides judges with advisory sentencing recommendations for defendants convicted of offenses like fraud and theft, (2) which are among the most commonly prosecuted in the federal system. (3) Yet judges depart from the economic crime Guidelines at higher rates than almost any other major Guidelines provision, (4) leading one Commissioner to lament that Section 2B1.1 has "lost the backing of a large part of the judiciary." (5) The Commission's study and the resulting amendments sought to reassess the economic crime Guidelines in light of these concerns. (6)

The most important driver of sentences for economic crimes under the Guidelines is the amount of pecuniary harm that the defendant either actually caused or intended to cause. (7) The "loss enhancement" received special focus in the recent review of Section 2B1.1, (8) but the Commission ultimately rebuffed calls from advocacy groups for a fundamental reimagining of loss's role. (9) The November 2015 amendments did, however, resolve a lingering circuit split by clarifying the definition of "intended loss." (10) Whereas Section 2B1.1 had previously left the word "intended" undefined, the new amendment explained that intended loss means "the pecuniary harm that the defendant purposely sought to inflict." (11)

This Article provides the first extended analysis of the new intended loss provision, and it does so primarily through the framework of rules and standards. (12) Generally speaking, a rule is "framed in terms of concepts that can be applied without explicit reference to the principles or policies that might have motivated the rule, usually by specifying operative facts that trigger the rule." (13) In contrast, the use of standards "involve[s] recourse to justificatory principles or policies, mediated by some form of balancing that does not specify in advance the result thereof. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

A Fatally Flawed Proxy: The Role of "Intended Loss" in the U.S. Sentencing Guidelines for Fraud
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.