New Sentencing Guidelines Amendments Have Two Good Provisions for White Collar Criminal Defendants (and Lawyers)

November 8, 2018

Counting blackboardBy: Sara Kropf

On November 1, 2018, several new amendments to the Sentencing Guidelines went into effect. Two of them are quite positive developments for defendants—and their lawyers—in white-collar criminal cases.

As a procedural matter, the new amendments were proposed by the U.S. Sentencing Commission in April 2018. When Congress did not take any steps to disapprove the changes, they automatically went into effect on November 1st. Congress isn’t doing much right now, so they went into effect a few days ago.

Let’s take a look at two helpful new provisions.

You Can Get the Acceptance of Responsibility Reduction Even if You Go to Trial

The amendments reduced the “trial penalty” by making it slightly easier to obtain the 2-level reduction for acceptance of responsibility. In most cases, judges would deny the acceptance of responsibility reduction if the defendant chose to go to trial and lost.

Section 3E1.1 provides:

If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.

Subsection (b) permits an additional 1-level reduction if the offense level is greater than 16 and the government makes a motion for an additional level because the defendant pleaded guilty.

Application Note 1 adds the underlined language:

A defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility, but the fact that a defendant’s challenge is unsuccessful does not necessarily establish that it was either a false denial or frivolous.

Two levels may not sound like a lot. But it can be. In fact, the National Association of Criminal Defense Lawyers recently issued a report called “Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It.”  The report explains how the 2- (or 3-) level reduction for acceptance of responsibility can be quite significant in determining the final sentence.

While a two- or three-level reduction may not seem significant enough to coerce someone to plead guilty, it can have a substantial impact on a defendant’s ultimate sentence. For instance, a defendant with an offense level of 33 ordinarily would face a sentence between 11 and 14 years. But if he timely notifies authorities of his intention to plead guilty and secures a government motion in support of the full three-level reduction, he can reduce his sentence by almost 4 years. Even at the low end of the sentencing table, where only the two-level reduction is available, there is still a significant inducement to plead guilty because it may mean the difference between having to serve jail time or being permitted to serve the sentence in home detention or on probation.

The change in the application notes is advantageous to defendants since it allows them to go to trial without automatically risking losing the 2-level challenge. (As a trial lawyer, I’m particularly happy with any change that makes trials more likely.) It also reduces the prosecutor’s persuasive argument that going to trial is risky on the sentencing side of things.

It is also a fair rule. Every defendant should be permitted to force the government to o prove its case beyond a reasonable doubt. A defendant may accept that he is guilty but still seek to test the government’s proof. Accepting guilt and choosing to go to trial need not be mutually exclusive.

Judges will likely still look askance at defendants’ request for acceptance of responsibility if they went to trial, it seems more likely to be granted if the defendant does not testify or if the defendant’s testimony does not contradict the government’s proof. For example, there may be a case where the facts are not really in dispute and the only question is whether the defendant’s conduct meets a certain statute’s requirements, such as a in case governed by complex regulatory statutes. In that situation, even a defendant who testifies could do so truthfully and not be accused of a “false denial.”

Staying Out of Jail Is a Little Bit Easier

Section 5C1.1 covers “Imposition of a Term of Imprisonment.” It provides that if a defendant is a “nonviolent first offender and the applicable guideline range is in Zone A or B of the Sentencing Table, the court should consider imposing a sentence other than a sentence of imprisonment.”

The new amendments add an application note to make § 5C1.1 consistent with 28 U.S.C. § 994(j):

The Commission shall insure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense, and the general appropriateness of imposing a term of imprisonment on a person convicted of a crime of violence that results in serious bodily injury.

Zone A and Zone B offenses are very low-level offenses. See the excerpt from the sentencing table below:


Zone A covers sentencing ranges of zero to six months. In this zone, there is a full spectrum of sentencing options: a fine, probation, home confinement, a “split sentence” (some prison time and some supervised release) or a prison term.

Zone B sentencing ranges are from one to 15 months. Zone B offenses allow only for limited sentencing options: probation with conditions of confinement, a split sentence or prison time. In other words, fines and home confinement are off the table.

Most white-collar criminal defendants are first-time offenders and committed a non-violent offense, so they qualify under § 5C1.1.

That’s the easy part.

The hard part is staying within Zone A or Zone B. This is extremely challenging since § 2B1.1’s loss table quickly pushes an offense beyond Zone B. The maximum offense level in Zone B is 11. To keep the final offense level under 11, you would have to have less than $40,000 in losses (base level 6 plus 4-levels for under $40k in losses; as soon as you go above $40k, it is base level six plus six-levels, resulting a final offense level of at least 12).

The new Application Note 4 is a reminder to judges to consider non-violent alternatives for offenders in these two zones. The key language is italicized:

If the defendant is a nonviolent first offender and the applicable guideline range is in Zone A or B of the Sentencing Table, the court should consider imposing a sentence other than a sentence of imprisonment, in accordance with subsection (b) or (c)(3). See 28 U.S.C. § 994(j). For purposes of this application note, a “nonviolent first offender” is a defendant who has no prior convictions or other comparable judicial dispositions of any kind and who did not use violence or credible threats of violence or possess a firearm or other dangerous weapon in connection with the offense of conviction. The phrase “comparable judicial dispositions of any kind” includes diversionary or deferred dispositions resulting from a finding or admission of guilt or a plea of nolo contendere and juvenile adjudications.

This new application note does not change anything substantive, but it is another method to remind the sentencing judge that minor and non-violent offenses should not be punished with a prison term. Most reasonable judges already understand this point, but it cannot hurt to have a new section of the guidelines to cite in our sentencing memoranda.

Published by Kropf Moseley

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