The sentencing guidelines for economic crimes has changed and these Amendments will take effect on November 1st, 2015.
- a. Intended loss is not based on what each defendant purposely sought to inflict
- b. The victims guidelines have changed and will now have enhancements based on the following;
- 1. Plus 2 points if the conduct caused a substantial financial hardship on one or more victims. (Plus 4 for 5 or more victims and plus 6 for 25 or more victims). The enhancements for the number of victims is tied to financial hardship findings that must also be qualified as substantial.
- c. The substantial hardship classification is based on a five factor analysis though these five factors are not all a judge can consider.
- 1. If a victim as a result of the criminal conduct of the defendant becomes insolvent
- 2. If any of the victims had to file bankruptcy as a result of the criminal conduct
- 3. Did anyone suffer a substantial loss in their retirement, education or other savings or investments
- 4. Did any person have to change their employment or postpone retirement plans due to the criminal conduct
- 5. Did any person have to make any substantial changes in their living arrangements, such as relocating to a less expensive home or losing their home.
- 6. Did any person suffer substantial harm to his or her ability to obtain credit.
- d. As for sophisticated means there is a change which now states “the offense otherwise involved sophisticated means and the defendant intentionally engaged in or caused the conduct constituting sophisticated means.”
- e. The court can now use any method that is appropriate an practicable for calculating loss factors. Loss can be calculated based on many factors that include inflation , devaluation, stock manipulation etc. The monetary guidelines table is amended to account for inflation. (These calculations have moved the guidelines slightly. At the lower ranges the value for increases is about $1500 more while the higher levels are adjusted about $150,000.)
Other guideline changes
- 1. Mitigating role has changed allowing for more individuals to be considered for downward role adjustments. In determining whether a minus 4 or minus 2 points should be considered a court may review the following criteria:
- a. The degree to which the defendant understood the scope and structure of the criminal activity
- b. The degree to which the defendant participated in planning or organizing the criminal activity
- c. The degree to which the defendant exercised decision-making authority or influenced the exercise of such decision making authority
- d. The nature and extent of the defendant participation in the commission of the criminal activity including the act the defendant performed and the responsibility and discretion the defendant had in performing those acts
- e. The degree to which the defendant stood to benefit from the criminal activity.
- 2. Jointly undertaken Criminal Activity and Relevant conduct.
- a. Are the acts and omissions within the scope of the jointly undertaken activity
- b. In furtherance of that criminal activity and
- c. Reasonably foreseeable in connection to the jointly undertaken activity.
If one of these is not met then the conduct is not relevant conduct under the jointly undertaken provision.