For the Defense - Volume 2, Issue 2 - 2017 - 12

A significant problem that the Task Force
sought to address with the Shadow Guidelines is
the exponential increase in Federal Guideline sentences for economic crimes involving a high-dollar
loss. Currently, the Federal Sentencing Guidelines
are somewhat Draconian in this regard. By
way of background, the Federal Sentencing
Guidelines, which were promulgated by the U.S.
Sentencing Commission, are a set of guidelines
that aid federal judges in crafting sentences
for defendants convicted of federal crimes. The
Sentencing Guidelines set forth "Base Offense
Levels" for every federal crime, which are based
on a number of factors.4 The Guidelines also
contemplate "Adjustments" to the Base Offense
Level based on a litany of aggravating factors
(Upward Adjustments, for a longer sentence) and
mitigating factors (Downward Adjustments, for a
shorter sentence); the result of those Adjustments
is the "Offense Level."5 There are forty-three (43)
Offense Levels, with one (1) being the lowest and
forty-three (43) being the highest.6 The Guidelines
contemplate longer sentences for repeat offenders by the addition of "Criminal History Points" to
the Offense Level."7 The Guidelines also provide

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individual faces.
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Stradley Ronon's lawyers guide clients through
some of their most delicate and potentially
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investigations, create and implement effective
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against allegations of white-collar crime.

Michael J. Engle
Chair, White-Collar Defense, Internal Investigations & Corporate Compliance
215.564.8737 | mengle@stradley.com
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12

For The Defense | Vol. 2, Issue 2

guidance on whether probation or incarceration
is appropriate in any given circumstance.8 The
Guidelines are supposed to be but one factor for
the District Court to consider when fashioning a
sentence.9
There remains an ongoing debate about
whether the Federal Sentencing Guidelines are
still perceived to bind sentencing courts, despite
the fact that these guidelines were deemed to
be merely advisory in nature by the United States
Supreme Court.10 In its most-recent (March 2017)
pronouncement on this issue, the Supreme Court,
in an opinion written by Justice Thomas, held that
the Guidelines "are not amenable" to a vagueness
challenge because they "merely guide the district
courts' discretion"; they do not mandate any particular sentence.11 But in her opinion concurring in
the judgment, Justice Sotomayor noted that,
[t]he importance of the Guidelines in
this process, as we explained last Term,
makes them not only the starting point
for most federal sentencing proceedings but also the lodestar. In most cases,
it is the range set by the Guidelines,
not the minimum or maximum term
of imprisonment set by statute, that
specifies the number of years a defendant will spend in prison. District
courts impose a sentence within the
Guidelines (or below the Guidelines
based on a Government motion) over
80% of the time. And when Guidelines
ranges change - because the Guidelines
themselves change, or because the
court is informed of an error it made in
applying them - sentences change, too.
It is therefore no exaggeration to say
that the Guidelines are, in a real sense,
the basis for the sentence imposed by
the district court.12
Many white-collar defense practitioners
would surely agree with Justice Sotomayor,
though it is true that sometimes sentencing
courts choose to vary or depart from the
Sentencing Guidelines and issue sentences outside the advisory Guideline range.
With respect to economic crimes, there are fifteen different monetary tiers tied to an increase
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Table of Contents for the Digital Edition of For the Defense - Volume 2, Issue 2 - 2017
