Federal criminal defense cases are generally controlled by the Federal Sentencing Guidelines which help Federal Judges to determine the appropriate sentencing guideline range at sentencing. This guideline range could determine whether you, or your family member, goes to prison, is sentenced to home confinement, or is sentenced to probation.
On November 1 every year, the United States Sentencing Commission makes amendments to the Sentencing Guidelines. These amendments can affect current, future, and past defendants depending on the facts of the case.
Here are some of the most notable changes that will apply starting November 1, 2024 of this year.
Acquitted Conduct
This new amendment prohibits the Judge from considering acquitted conduct in determining the appropriate guideline range at sentencing. Prior to this amendment, a court could consider acquitted conduct to increase a defendant’s guideline range.
For example, consider a defendant who was charged with Possession with Intent to Distribute Cocaine and Possession of a Firearm in Furtherance of a Drug Trafficking Crime. In the past, if a jury found the Defendant guilty of the drug charge but not guilty of the firearm charge, a judge could still use the fact that the defendant possessed a firearm to give him a two-point enhancement on his guidelines for the drug charge. Now, that may not be the case.
The United States Sentencing Commission made this amendment to address some of the judicial concerns mentioned in previous years including undermining a jury’s decision and perceived fairness in the criminal justice system. See McClinton v. United States, 143 S. Ct. 2400 (2023). The new amendment now states “relevant conduct does not include conduct for which the defendant was criminally charged and acquitted in federal court unless such conduct also establishes, in whole or in part, the instant offense of conviction.”
This new approach should benefit defendant’s in the criminal justice system who are found not guilty at trial and should give them confidence that a court will not consider their acquitted conduct in most cases. However, this change does not prohibit a judge from considering uncharged or dismissed conduct at sentencing.
Youthful Offenders
This new amendment makes several revisions to 5H1.1 (Age (Policy Statement)) which previously stated that “age may be relevant in determining whether a departure is warranted, if considerations based on age, individually or in combination with other offender characteristics, are present to an unusual degree and distinguish the case from the typical cases covered by the guidelines.”
The new amendment strikes the “unusual degree” requirement and now permits age to be considered in arguably every youthful offender case. The amendment has revised this language to simply state “age may be relevant in determining whether a departure is warranted.” In addition, the guideline now specifically provides that a downward departure may be warranted in cases in which the defendant was youthful at the time of the instant offense or any prior offenses.
This new amendment should give criminal defense attorneys more flexibility in requesting downward departures or variances from a defendant’s guideline range in youthful offender cases moving forward.
Rule for Calculating Loss
This new amendment moves from the commentary to the actual guidelines the rule that the Judge must use the higher of the “actual loss” and “intended loss” when calculating a defendant’s guideline range for an economic crime. “Actual loss” means “the reasonably foreseeable pecuniary harm that resulted from the offense”. “Intended loss” means the “pecuniary harm that the defendant purposely sought to inflict”.
For example, consider an individual who applies for five fraudulent loans each valued at $100,000. He is approved for two of them and denied for the other three. His actual loss would be $200,000 but his intended loss would be $500,000 under the guidelines.
Now, a court must use the higher number when determining a defendant’s guideline range. While this change is generally bad for defendants in the future, most circuits have calculated loss this way for many years. This change will most notably only change the way things are handled in the Third Circuit which consists of Delaware, New Jersey, Pennsylvania, and the U.S. Virgin Islands.
Call Hubbs Law for all Federal Criminal Defense Cases
If you or a loved one have been or will be charged with a federal crime, please give our office a call. We handle all federal and state criminal defense cases in the State of Florida.
Our criminal defense attorney, E.J. Hubbs, is a former prosecutor and has handled over 10,000 criminal cases in his career. In addition, he is Board Certified in Criminal Trial Law, a privilege held by less than 1% of attorneys in Florida.
Hubbs Law offers free consultations for all pending criminal cases and investigations. Call anytime to discuss at 305-570-4802 or use our contact form.
Disclaimer: Please note that by reading this blog you are not entering into an attorney-client relationship with Hubbs Law, P.A. This blog only provides general legal information. Every case is unique and you should request a consultation to ensure that you are getting the correct legal advice for your specific case.