Federal sentencing can seem unjustly harsh. Consider the following hypothetical: A defendant in a health care case is charged with conspiracy to commit health care fraud and five substantive counts of health care fraud. Each of the substantive counts involves a loss to the insurance company of $6,500, equating to a sentencing range of 0 to 6 month's imprisonment under the advisory guidelines. The overall conspiracy involved the submission of $3.5 million in allegedly fraudulent claims, but based on a n audit the insurer only paid the amounts associated with the substantive counts, or $32,500.

At trial, the defendant's defense team secures what appears to be a resounding victory for their client considering his total exposure: the jury acquits the defendant of conspiracy and four healthcare fraud counts and only convicts on a single, substantive count. Under these circumstances, most people—including the defendant and possibly the jury believing they had given the defendant a break with a compromise verdict—would think that the defendant's recommended sentencing range would be 0 to 6 months. After all, the defendant was acquitted of all conduct save an isolated count resulting in just $6,500 in loss. At the very least, since the indicted conduct resulted in only $32,500 in total loss, one would think that this dollar figure, equating to an advisory guideline range of 6 to 12 months (assuming no criminal history or enhancements), represents the upper limit of the defendant's guideline exposure under any circumstances.