On August 6, 2025, the United States Sentencing Commission voted to adopt its policy priorities for the 2025-2026 Amendment Cycle. Among the policy priorities this year is a proposal to change the federal sentencing guidelines related to fraud offenses.
United States Sentencing Commission Amendment Cycle
Every year, the United States Sentencing Commission solicits public comment from practitioners, think tanks, academics, attorneys, formerly incarcerated individuals, judges, and others interested in federal sentencing policy concerning potential changes to the federal sentencing guidelines. This year, the Commissioners voted to prioritize to look into a number of issues including whether the fraud guidelines appropriately reflect the culpability of a defendant and harm to victims.
The Commission is considering whether to de-emphasize the importance of loss amount in guidelines calculations for appropriate sentences for fraud defendants. The Commission received significant public comment on the issue. Some advocacy groups feel that tying a defendant’s sentence almost exclusively to the loss amount can overstate the seriousness of the offense and the culpability of the defendant. Many argue that there are other, more appropriate factors to consider like a defendant’s motive and specific offense characteristics related to the conduct of defendants rather than looking purely at loss amounts.
Current Fraud Sentencing Guidelines
Fraud guidelines are calculated under Section 2B1.1 of the United States Sentencing Guidelines. Currently, the fraud sentencing guidelines are primarily driven by loss amounts. These loss amount enhancements are particularly felt by fraud defendants involved in lower-level loss amounts.
For example, while the offense level increases are in increments of 2 levels, the gap for the amount attributable to each 2 level increase rises dramatically the higher the loss amount is. This means that a 2-level increase could be due to an additional loss amount of $8,500 (the difference between 2B1.1(b)(1)(B) and 2B1.1(b)(1)(C)) or it can be due to an additional loss amount of $300,000,000 (the difference between 2B1.1(b)(1)( (O) and 2B1.1(b)(1)( (P)). Despite a stark difference in the loss amounts, both call for a 2-level increase from the level below.
| Loss (apply the greatest) | Increase in Level |
| (A) $6,500 or less | no increase |
| (B) More than $6,500 | add 2 |
| (C) More than $15,000 | add 4 |
| (D) More than $40,000 | add 6 |
| (E) More than $95,000 | add 8 |
| (F) More than $150,000 | add 10 |
| (G) More than $250,000 | add 12 |
| (H) More than $550,000 | add 14 |
| (I) More than $1,500,000 | add 16 |
| (J) More than $3,500,000 | add 18 |
| (K) More than $9,500,000 | add 20 |
| (L) More than $25,000,000 | add 22 |
| (M) More than $65,000,000 | add 24 |
| (N) More than $150,000,000 | add 26 |
| (O) More than $250,000,000 | add 28 |
| (P) More than $550,000,000 | add 30. |
Under the principles of relevant conduct under USSG 1B1.3, defendants can be held accountable for loss amounts much higher than losses attributable to their conduct, even if their role was limited.
Potential Changes to the Fraud Guidelines
While it remains to be seen what changes the Commission may adopt, the Commission seems prepared to make a number of changes to the 2B1.1 fraud guidelines. Over the course of the next year, the Commission will consider:
- The appropriate roll for loss amounts in guidelines calculations
- Whether the loss table should be revised or adjusted for inflation
- The impact of victim-related adjustments
- Whether to apply role in the offense adjustments
This may reduce the impacts of loss amounts on low-level defendants and take into consideration factors other than loss amount when determining relative culpability. Next, the Commission will conduct research, publish the proposed amendments, hold public hearings concerning and review comment, and promulgate the final amendments. If adopted, the amendments to the 2B1.1 fraud guidelines would be delivered to Congress no later than May 1, 2026 and the amendments would be effective November 1, 2026 absent disapproval by Congress.
