Is This The Beginning Of A Sentencing Revolution?

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

Key Takeaways

• The Third Circuit recently decided that the loss enhancement to the fraud guideline in the U.S. Sentencing Guidelines applies only to "actual loss" and not to "intended loss."
• While the primary impact of this decision is on federal sentencing in fraud cases, the Third Circuit decision potentially has broad-reaching sentencing implications, including in criminal antitrust cases such as recent attempted monopolization prosecutions.

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