A recent series of decisions by the U.S. Supreme Court and the U.S. Court of Appeals for the Second Circuit have ushered in a new era of sentencing discretion, leaving the Sentencing Guidelines truly serving only as advisory guidelines. Yet despite this new legal authority, questions have remained as to just how much discretion district courts would exercise, and how that discretion would be scrutinized on appeal. Recent decisions by district courts within the Second Circuit demonstrate that judges are taking full advantage of the new, discretionary sentencing regime for white-collar crimes, using their experience and judgment in determining what price an individual defendant should pay for his or her crime.
In particular, district judges are using their discretion to issue non-guideline sentences in cases where an extraordinarily severe guideline sentence is principally driven by the loss amount. In these cases, which are described below, courts have taken little or no issue with the government’s analysis of the loss. Rather, the district courts concluded that the loss amount was staggeringly high—high enough, in most cases, to justify a sentence of life in prison.
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