“Loss” Revisited: A Defense of the Centerpiece of the Federal Economic Crime Sentencing Guideline

I was, for better or worse, one of the principal architects of Section 2B1.1 in its consolidated 2001 form. Over time, I have become a pointed critic both of errors we made in 2001, and of some of the ways the Sentencing Commission has since amended Section 2B1.1. Nonetheless, I still support the basic structure of Section 2B1.1 and its central component – scaling offense seriousness in large measure based on the economic loss caused or intended by the defendant. In particular, I remain convinced that the definition of “loss” adopted in 2001 remains fundamentally sound.

Recently, the Missouri Law Review published a thoughtful article from Daniel Guarnera sharply criticizing the component of the loss definition dealing with intended loss, and, in particular, a clarifying amendment to that definition adopted effective November 1, 2015. The Law Review’s editors asked me to respond to Mr. Guarnera. I agreed in part because Mr. Guarnera’s central arguments, though vigorously expressed, seem to me unpersuasive, but primarily because the invitation provided me an opportunity to defend the conceptually sound core of a guideline that has often, and sometimes deservedly, been the subject of pointed criticism.