2nd Circ.'s Stunning Assault On The Fraud Guidelines

Law360, New York (March 6, 2017, 1:00 PM EST) -- Ever since the U.S. Supreme Court freed sentencing judges from the bonds of the previously mandatory U.S. Sentencing Guidelines in United States v. Booker, 543 U.S. 220 (2005), defense lawyers have been on the attack. Their stock-in-trade is seeking below-guidelines sentences. Nowhere is this more evident than for white collar defendants facing sentencing under the notorious fraud guidelines — § 2B1.1.

Time and again defense lawyers seek below-guidelines sentences for fraud, arguing that the guideline overstates the seriousness of the offense. Time and again they argue that the only driver of the guidelines is the loss amount, which is an ill-fitting...

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