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Sentencing Commission Revises Guidelines

Jaclyn Jaeger | May 16, 2012

As mandated by the Dodd-Frank Act, the U.S. Sentencing Commission has proposed amendments to its Federal Sentencing Guidelines regarding securities fraud, mortgage fraud, and institutional fraud, and other offenses.

Dodd-Frank mandated that the Commission "rewrite and, if appropriate, amend" the Sentencing Guidelines with respect to securities fraud, mortgage fraud, and institutional fraud. "Fraud offenses represent almost ten percent of the federal criminal docket annually, and have been the focus of congressional attention as evidenced by the directive to the Commission," Commission Chair Judge Patti Saris said in a prepared statement.

The changes to the guidelines proposed on April 13 increase penalties for insider-trading cases and "ensure that no defendant will receive a reduced penalty because of a federal intervention, such as a bailout," Saris added.

The changes are in response to feedback from a number of stakeholders, including courts, defense attorneys, and prosecutors, who called for a broader review of the operation of the fraud guidelines. Specifically, they've argued that the interaction of the loss attributed to an offense and the number of victims in an offense, particularly in high-loss fraud cases, may result in disproportionate or disparate sentences.

"This is an area of the guidelines that the Commission must continue to review in a comprehensive manner," said Saris.

More than 30 other federal sentencing guidelines either reference the fraud guideline or have a proportional relationship with it. Therefore, any change to the loss or victims calculations in the fraud guideline 
must be undertaken comprehensively, the Commission stated.

Human Rights Violations

The Commission also amended the federal sentencing guidelines to cover substantive human rights violations. First, the Commission enhanced sentencing that would apply to a defendant convicted of committing a serious human rights offense, including genocide, torture, war crimes, and the use or recruitment of child soldiers.

Second, the Commission revised the guideline covering immigration offenses to prove a penalty enhancement if a defendant committed the offense to conceal or attempt to conceal their role in a serious human rights offense.

"These amendments will ensure appropriate penalties for those who commit serious human rights offenses," explained Saris.

The amendments have an effective date of Nov 1, barring that Congress does not act to modify or disapprove them. More information on revisions to the guidelines can be found here.