The Champion

September - October 2016 , Page 16 

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From Bean Counting to Soul Searching: The Amended Definition of ‘Intended Loss’ in the Fraud Guidelines and the New Opportunities for White Collar Defendants to Litigate Loss

By Daniel N. Marx and William W. Fick


In April 2015, the Sentencing Commission amended Application Note 3(A)(ii) to the fraud guidelines, U.S.S.G. § 2B1.1, to clarify that, for the purpose of determining the amount of loss from economic crime, “intended loss” means “the pecuniary harm that the defendant purposely sought to inflict” on the victim. By revising the definition of intended loss, the Sentencing Commission effectively resolved a long-standing circuit split and endorsed a subjective approach to intended loss. It also created new opportunities for white collar defendants to resist the absurdly long sentences that the Sentencing Guidelines often recommend based on the “loss table.”

This article surveys these developments in federal sentencing law and discusses two cases, one decided by the Seventh Circuit and one pending in the Third Circuit, that demonstrate how the recent amendments concerning intended loss can benefit white collar defendants.

I.    Monetary loss — particularly, ‘intended loss’ — has

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