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'Loss' in the Air Will Not Do
'Loss' under ' 2B1.1 of the U.S. Sentencing Guidelines is a pivotal sentencing issue in many federal fraud cases. In securities fraud, if the sentencing judge finds that the victims collectively suffered losses over $2.5 million, this alone can generate a sentence of five years in prison for a client with no criminal record. Over $400 million in losses can increase a sentence by almost two decades. However, sky-high loss enhancements are increasingly scrutinized in a post-Booker world. Drawing on civil securities law, recent decisions in several circuits endorse an approach holding a defendant responsible for only the portion of victims' losses that was proximately caused by the offense. Although stratospheric sentences in cases like WorldCom and Enron may not be past history, some courts' critical analyses bode well for future sentencings.
Arguing Loss at Sentencing Proceedings
As the Supreme Court noted in Gall v. United States, 128 S. Ct. 586, 596 (2007), a lower advisory Guideline means a lower 'starting point' or 'initial benchmark' for determining a sentence. In securities fraud cases, many factors often contribute to investors' losses. This creates opportunities for lower loss adjustments than those based on gross losses. This is particularly true in complex cases and in cases where events occurred during a volatile market, adverse economic conditions affected a stock's price, victims were sophisticated speculators, or a fraud involved multiple stocks or those with substantial residual value after the dust from a scheme settled ' in sum, where any extrinsic factors that contributed to victims' losses might be carved out to reduce loss for sentencing purposes.
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