The United States Sentencing Commission is scheduled to review how sentences for white collar crimes are calculated when the group meets in September. Created by Congress in 1984, the Commission is part of the federal judicial branch and annually publishes the Federal Sentencing Guidelines used by every federal court in the nation.
Whether someone goes to prison or receives probation is largely a product of the Federal Sentencing Guidelines. Until 2005, those guidelines were largely mandatory. After a series of U.S. Supreme Court rulings, the guidelines became advisory but are still followed in most cases, including in white collar crimes such as tax evasion and money laundering.
Federal law says that judges must consider the guidelines when sentencing anyone for a federal crime. The guidelines establish a base offense level for every federal crime from tax crimes to bank robbery to gun crimes. Judges can then add or subtract points depending on such factors as “early acceptance of responsibility” or obstruction of justice. In white collar crimes, the adjustment factors include whether “sophisticated means” were used to commit the offense, whether the offender is a “king pin” or ring leader and whether the offender abused a position of trust.
The most important factor in white collar crimes is economic loss. The larger the fraud, the more points are added. The same applies to white collar tax crimes where the loss is called the “relevant conduct tax loss.” The higher the loss amount, the longer the sentence is likely to be.
Although the guidelines are only advisory, most judges stay within the guidelines when sentencing offenders. In recent years, however, some have criticized the economic loss tables saying that too much emphasis is being placed on the amount of the loss. While few feel sorry for Bernie Madoff who stole billions of dollars (Madoff received a 150 year sentence), others say the guideline calculations can be unfair to first time offenders or for those whose crime represents an isolated act as opposed to a well planned on-going crime.
The U.S. Sentencing Commission is set to discuss the application of economic loss on white collar crime sentences when it meets in September.
Having an experienced defense attorney well versed in the federal sentencing guidelines is critical in white collar crime cases. With so much weight placed on the guideline calculations, it is important to have a lawyer who understands how the guidelines are interpreted and can argue for certain allowable mitigating factors.
The criminal tax lawyers at Mahany & Ertl protect the liberty of those charged with a wide range of white collar crimes including tax evasion, filing false returns, money laundering, wire fraud, failure to file tax returns and conspiracy to defraud the government. If you are under investigation, facing prison or believe that an IRS audit may uncover problems that could turn criminal, give us a call.
Mahany & Ertl – America’s Tax and Fraud Lawyers. Offices in Milwaukee, Wisconsin; Detroit, Michigan; Portland, Maine; Minneapolis, Minnesota and San Francisco, California. Federal criminal representation available in most states.
Post by Brian Mahany, Esq.