Third Circuit Limits Sentencing Guidelines to Actual Loss: Implications for Fraud and Possibly Antitrust Sentencing

On Nov. 30, 2022, following the U.S. Supreme Court’s 2019 decision in Keiser v. Wilkie and contrary to the guidelines’ own commentary, the Third Circuit decided that the loss enhancement to the fraud guideline in the U.S. Sentencing Guidelines (“USSG”) applies only to “actual loss” and not to “intended loss.” This distinction, the limitation to actual loss, is enormous, particularly for criminal defendants whose conduct caused little to no actual loss, despite any intent to do so. If other circuits follow suit, if courts apply this reasoning to other sections of the USSG, or if this case makes its way to the Supreme Court, the implications could be even more significant for all federal sentencing. The Third Circuit may have begun a revolution in white collar federal sentencing.

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