In fraud cases, the sentencing guidelines are largely predicated on the amount of loss attributable to the defendant’s conduct. Typically, the greater the loss suffered by the victim, the higher the defendant’s guidelines sentencing range. And while sentencing judges have substantial leeway to vary from the guidelines, they are required to use the properly computed guidelines range as the starting point for deciding the appropriate sentence in each case.

Section 2T1.1(c)(1) of the guidelines defines loss as “the total amount of loss that was the object of the offense (i.e., the loss that would have resulted had the offense been successfully completed).” By contrast, the guidelines calculations for most other economic crimes are governed by Chapter 2B, which, until a recent amendment, relegated the definition of loss to commentary adopted by the U.S. Sentencing Commission. That commentary incorporated the concept of “intended loss,” which encompassed “the pecuniary harm that the defendant purposely sought to inflict.” U.S.S.G. §2B1.1, cmt. n.3(A)(ii).