White-collar practitioners and corporate lawyers should take note of a significant and evolving trend in loss calculations for securities fraud crimes under the U.S. Sentencing Guidelines. A defendant convicted of an economic crime may have the calculation of his advisory sentencing range increased under Section 2B1.1 of the sentencing guidelines depending on the amount of loss caused by the offense. However, a defendant is to be held liable only for those losses caused directly by the wrongful conduct for which he was convicted.
The guidelines provide that a sentencing court need only make a reasonable estimate of this loss amount “given the available information.”1 Reviewing appellate courts must determine whether the method of calculating such loss is “legally acceptable.”
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