On April 30, 2013, the Sentencing Commission submitted several amendments to Congress. Below is a brief summary of the non-technical amendments. The full text can be accessed from the Commission’s website: http://www.ussc.gov/
1. Trade Secrets: revises the existing specific offense characteristic at §2B1.1(b)(5), in two ways. First, it broadens the scope of the enhancement to provide a 2-level increase for trade secret offenses in which the defendant knew or intended that the trade secret would be transported or transmitted out of the United States. Second, it increases the severity by providing a 4-level enhancement and a minimum offense level of 14 for trade secret offenses in which the defendant knew or intended that the offense would benefit a foreign government, foreign instrumentality, or foreign agent.
2. Pre-retail Medical Products (“a medical product that has not yet been made available for retail purchase by a consumer.”): Adds a new specific offense characteristic at §2B1.1(b)(8) that provides an enhancement for an offense that violates 18 U.S.C. § 670 and a higher enhancement if the defendant was employed by, or an agent of, an organization in the supply chain for the pre-retail product. Further, it amends the upward departure provisions in Application Note 19(A) to provide – as an example of a case in which an upward departure would be warranted – a case involving on offense that results in serious bodily injury or death, “including serious bodily injury or death resulting from the use of the pre-retail medical product.”
3. Tax Deductions: Amends §2T1.1 by adding a new application note that instructs courts, when determining the amount of tax loss, to always account for the standard deduction and personal and dependent exemptions to which the defendant is entitled. Further, the court should also account for any other previously unclaimed credit, deduction, or exemption that is needed to ensure a reasonable estimate of the tax loss, when certain conditions are met: 1) the credit, deduction, or exemption must be one that was related to the tax offense and could have been claimed at the time the tax offense was committed; 2) the otherwise unclaimed credit, deduction, or exemption must be reasonably and practicably ascertainable; and 3) the defendant must present information to support the credit, deduction, or exemption sufficiently in advance of sentencing to provide an adequate opportunity to evaluate whether it has sufficient indicia of reliability to support its probable accuracy. Finally, the application note makes clear that the burden is on the defendant to establish any credit, deduction, or exemption permitted by a preponderance of the evidence.
4. Acceptance of Responsibility: amends two aspects of §3E1.1. First, Government’s Discretion to Withhold the Motion: amendment adds an additional sentence to the Commentary stating that “[t]he government should not withhold such a motion based on interests not identified in §3E1.1, such as whether the defendant agrees to waive his or her right to appeal.” Second, The Court’s Discretion to Deny the Motion: amends the Commentary to §3E1.1 by making it clear that the court retains the discretion to make its own determination of whether the conditions have been met.
5. Setxer v United States, 132 S. Ct. 1463: amendment responds to a recent Supreme Court decision that federal courts have discretion to order that the sentence run consecutively to (or concurrently with) an anticipated, but not yet imposed, state sentence.
Published By Joaquin & Duncan, L.L.C.;
A Law Firm of Federal Sentencing Attorneys
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