For the Defense - Vol. 7, Issue 4 - 26

and upon motion of the government stating that the
defendant has assisted authorities in the investigation
or prosecution of his own misconduct by timely
notifying authorities of his intention to enter a plea
of guilty, thereby permitting the government to avoid
preparing for trial and permitting the government
and the court to allocate their resources efficiently,
decrease the offense level by 1 additional level.31
A striking example of how Nasir and Adair can be used to
overcome negative precedent was just handed down by the Third
Circuit on November 30, 2022 in United States v. Banks.43
Banks
1990s.32
This Guideline was amended several times in the 1980s and
After additional unsuccessful attempts to amend it in the
early 2000s, Congress made changes by using Section 401 of the
Prosecutorial Remedies and Other Tools to End the Exploitation
of Children Today (PROTECT) Act of 2003. Section 401 " amended
Guideline § 3E1.1(b) to delete the complete-information basis
for the third-point acceptance-of-responsibility reduction. " 33
Section 401 " also effectuated a structural change to the thirdpoint
acceptance-of-responsibility reduction[.] " " Before the § 401
amendments, the sentencing court decided the appropriateness
of the additional one-point reduction[.] " " Section 401 further
specified the necessary contents for the government's motion:
it must state that the defendant 'timely notif[ied] authorities
of his intention to enter a plea of guilty, thereby permitting
the government to avoid preparing for trial and permitting the
government and the court to allocate their resources efficiently.' " 34
Section 401 also eliminated the Commission's ability to " alter[]
or repeal[] the legislative amendments to the acceptance-ofresponsibility
reduction. " 35
In 2013, Congress adopted Amendment 775, which significantly
reduced the government's discretion to withhold a motion under
this Guideline by adding the following sentence to Application
Note 6: " The government should not withhold such a motion
based on interests not identified in § 3E1.1, such as whether the
defendant agrees to waive his or her right to appeal. " 36
Court thoroughly examined the legislative history of § 3E1.1(b),
including Amendment 775. It concluded that it " does not control
§ 3E1.1(b) motions " for multiple reasons.37
While noting that
other circuits paid more deference to Amendment 775, the Court
nevertheless concluded that the Amendment does not apply in
the Third Circuit.38
Having rejected the application of Amendment 775, the
Court then examined whether the government violated the
" unconstitutional-motive standard " by withholding a motion
under § 3E1.1(b).39
the requisite showing of such a violation.40
rejected what it termed Adair's " effort to compel the government
to make a § 3E1.1(b) motion. " 41
Impact on Sentencing Law and the Elimination of " Intended " Loss
The future of the Sentencing Guidelines' commentary and its
applicability is certainly in question after Nasir and Adair. Prior
decisions that make automatic reference to the commentary
are no longer binding, and " must be re-evaluated under the
Kisor process. " 42
This " fresh " look, as Judge Bibas put it, offers
an opportunity for defense counsel to break away from negative
sentencing precedent.
26 For The Defense l Vol. 7, Issue 4
had been convicted of wire fraud and identity theft. Although his
scheme resulted in $0 of actual loss to the victim, Banks' offense
level was increased by 12 points under U.S.S.G. § 2B1.1 because
the trial court found he intended to cause $324,000 in loss.
The trial court relied upon the § 2B1.1 application notes, which
state that loss includes not just actual loss, but intended loss as
well. On appeal, the Third Circuit explained that " the Guideline
does not mention 'actual' versus 'intended' loss; that distinction
appears only in the commentary. That absence alone indicates
that the Guideline does not include intended loss. " 44
The court
concluded that because the commentary expanded the definition
of " loss " , it should be accorded no weight, and remanded the case
for Banks to be re-sentenced without the 12-point intended-loss
enhancement.45
The Banks case is a major victory for the defense
bar, which has been maligning the use of intended loss in fraud
cases for years.
Attorneys should also consider the collateral impacts of Nasir
and Adair. Indeed, counsel may be considered ineffective for
failing to consider the impact that these cases have on existing
case law relative to a client's sentencing. The opinions invite debate
over the extent to which judges must apply Nasir sua sponte in
situations where counsel has not challenged the commentary
under Kisor. Is a sentencing judge always obligated to conduct a
Kisor analysis, even if neither party raises the issue?
Adair could also (and arguably should) spark a significant
shift in probation officers' approach to drafting presentence
reports. Where probation officers previously relied heavily upon
Guidelines' commentary, now there may be a need to conduct a
more thorough inquiry into the applicable case law. 46
The Adair
Finally, it seems that Adair and Nasir afford sentencing judges
more discretion in applying the Guidelines, which can yield both
positive and negative outcomes. This discretion may permit
more individualized sentencing determinations. However, added
discretion has the potential to lead to inconsistency among courts,
an outcome that the Guidelines were designed to avoid.47
Such
inconsistency is already manifesting itself, as other Courts of
Appeals have departed from the approach contemplated by Nasir
and Adair, while some have adopted the Third Circuit's approach,
and at least one court appears undecided on the issue.48
Of course,
The Court found that Adair failed to make
As a result, the Court
the Sentencing Commission always has the option of amending
the Guidelines to incorporate aspects of the Commentary that it
may wish to enshrine, rendering these considerations moot.
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