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USSG § 2b1.1: How Do Sentencing Guidelines Work in Federal Fraud Cases?


Fraud and financial crimes are big targets for law enforcement, especially at the federal level. Be it a financially motivated cybercrime offense or a more “traditional” fraud that falls under federal jurisdiction, the penalties of a conviction can be extreme – and serious prison time may be on the table.

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Though personally consulting with a criminal defense attorney who has experience in federal court is the most effective way to gauge what you may be facing and what the best strategy for your defense will look like, it’s still important to understand how sentencing in federal fraud cases work.

Federal Fraud Sentencing Guidelines (§2b1.1)

Federal fraud crimes encompass a range of white collar crimes. Some of these include:

  • Wire fraud & mail fraud
  • Credit card fraud
  • Embezzlement
  • Bank fraud
  • Securities fraud
  • Mortgage fraud
  • Insurance fraud
  • Computer fraud
  • Tax fraud
  • Health care fraud
  • Identity theft
  • Government procurement

Although these offenses can vary in terms of their unique elements and context, the most essential parts of fraud cases are quite similar in the eyes of the federal government. That is: a defendant “lied” or participated in a scheme to obtain something of value from another through deceit.

Of course, it is the government’s burden to prove your guilt, in this case, your intent to either lie or deceive, beyond a reasonable doubt. And you may have options for defending against those allegations and/or the substantial penalties which accompany them.

Because the general premise of financial crimes is more or less similar in nature, most financial crimes prosecuted by the federal government are subject to the United States Sentencing Guidelines (USSG) Section 2B1.1. Like other federal sentencing guidelines, these guidelines can be quite complex, and may also include more specific guidelines applicable to certain types of offenses, such as those involving

  • Larceny, embezzlement, and other theft;
  • Stolen property;
  • Fraud and deceit;
  • Forgery; and
  • Altered or counterfeit instruments.

Guideline Calculations for Fraud Offenses

For crimes subject to §2b1.1, a point system is used to determine a potential range of penalties. Factors considered for the purposes of calculating points include:

1. Base points – Every federal criminal offense is assigned a certain number of “base points.” Standard fraud typically carriers 6 or 7 points.

2. Loss amount – The amount of alleged economic loss is perhaps one of the most important factors in calculating federal fraud sentencing guidelines. Generally, the greater the loss amount, the more points will be added, and the greater the potential for more prison time. For example:

  • 4 points may be added if alleged losses total $10k
  • 10 points for losses in excess of $120k but less than $200k
  • 14 points for losses over $400k

A standard fraud case involving losses over $70k (8 points) could alone increase sentence ranges to between 15 and 20 months, and those with losses over $1 million in calculated losses (16 points), often result in more than three years in prison, though it may differ in some cases. What’s more, loss calculations under §2b1.1 are notorious for their complexity and severity. Losses are calculated not by the amount a defendant allegedly profited or the exact amount an alleged victim lost; it’s “reasonably foreseeable losses,” or the losses a person in the underlying situation could have seen victims losing. And that can be much higher than any amount a person actually made or lost.

3. Enhancement factors – Certain circumstances present in a case may result in additional points. Examples of aggravating sentencing factors including:

  • Means – How a defendant committed an alleged crime or the “means” they used, can impact sentencing guidelines. If crimes are facilitated with “sophisticated means” or by abusing a “position of trust,” point enhancements may follow. Using ass marketing also increases guideline ranges.
  • Victims – Points may be added if alleged offenses involve multiple victims, or are committed against the elderly or vulnerable individuals.
  • Use of minors – The use of a minor in the commission of an alleged offense is an aggravating sentencing factor.
  • Role – Being alleged as the “leader” or a person of higher stature in financial schemes involving groups of people is typically an aggravating factor.

4. Mitigating Factors – Mitigation is an important part of reigning what can be astronomical sentencing ranges into a more realistic realm, though what those mitigating factors are and how they’re viewed will always depend on the case and the court. Generally, accepting responsibility, playing a “minor” role, and other factors may mitigate potential penalties.

Following these steps, points are added to determine a total offense level and will be cross-referenced with a defendant’s criminal history to determine a sentencing guideline range. Federal judges can and sometimes do make departures from a given guideline range, but there are often still considerable sentences on the line.

Facing a Federal Financial Indictment? Call (216) 928-7700

If you or someone you love has been charged with federal fraud offense, you should know that even though sentencing guidelines are “advisory” in nature, allowing judges in some cases to consider other factors and use discretion, there is no substitute for professional and personalized advice from a qualified attorney.

At Friedman Nemecek Long & Grant, L.L.C., L.L.C., Attorneys at Law, Attorney Ian N. Friedman, and our legal team have become known for our extensive experience, creativity, and results in complex and high stakes criminal cases. Our criminal defense attorneys are here to help potential clients throughout Cleveland, the state of Cleveland, and beyond.

Call (216) 928-7700 or contact us online to speak confidentially with a federal criminal defense lawyer.