Second Circuit Remands for Consideration of Whether the Sentencing Guidelines Produce Unfair Sentencing Ranges for Financial Crimes

In United States v. Murshed, two defendants were convicted of financial offenses involving the Supplemental Nutrition Assistance program. When calculating the Sentencing Guidelines ranges the base offense levels for both defendants tripled because of the amount of loss attributable to each (under U.S.S.G. § 2B1.1, the base offense level was 6 but increased to 18 for one defendant and 16 for the other).

Because the Sentencing Commission had assigned a “rather low base offense level” for fraud offenses and then “increased it significantly by a loss enhancement,” the sentencing judge was entitled to consider that fact alone as a basis for a non-Guidelines sentence.

So, while specifically stating that it was not declaring any error in the sentences imposed, the Court remanded for the sentencing judge to consider the impact of the loss enhancement as a reason for imposing a non-Guidelines sentence.

It isn’t clear from the Second Circuit’s decision whether the sentencing court felt this was not a permissible basis for a non-Guidelines sentence or whether the argument was raised for the first time on appeal.