Is Booker a ““Loss”” for White-Collar Defendants?

For defendants convicted of white-collar federal crimes, such as securities fraud, tax evasion, mail or wire fraud, or certain types of RICO claims (to name just a few), the single most important determinant of the length of the sentence is often the amount of monetary loss attributable to the defendants conduct. Under the Sentencing Guidelines, the appropriate sentence for a single count of mail fraud, for example, can vary from probation to nearly twenty years in prison, depending on how much monetary loss the judge finds is traceable to the conduct that formed the basis for the conviction, even in the absence of other aggravating factors. Gonzalez et al discuss some of the most important issues surrounding calculation of loss under the Guidelines, with a particular focus on the interplay between loss calculation and judges' newfound sentencing discretion after Booker. Given Booker's status as a constitutional win for defendants, it is noteworthy (and not a little surprising) that in many ways, loss calculation in the post-Booker era is a rather more perilous exercise for defendants than it was before.