Sentencing and Conspiracy: White Collar Crime

Goals of Sentencing in Federal Cases

Fairness and Avoid unwarranted disparities between defendants

Brooker

Guidelines for sentencing made advisory, not mandatory

How many members does the US Sentencing Commission have?

Seven Members appointed by the President, confirmed by senate

What does the US Sentencing Commission do?

Issue sentencing guidelines annually (offense levels, policy statements and commentary)

Who created the US Sentencing Commission?

Congress created it via Sentencing Reform Act of 1984

Who can override the US Sentencing Commission?

Congress can override it by specific guidelines by statute like drug and child exploitation

Sentencing Table

Offense Level X Criminal History = Range

Base Offense

Offense characteristics seriousness is looked at 1st.

Relevant Conduct

Take account the uncharged conduct counts, which is broader than the convictions (heavily contested). Looked at 2nd.

Criminal History

They look at the categories (I-V). Recidivism raised the categories and juvi records may count. This is looked at 3rd.

Aggravating

Leadership, sophistication means vulnerable victims

Mitigating

Minor role of acceptance of responsibility

Cooperation

Substantial Assistance in the investigation, or prosecution of another person-not merely pleading guilty. However, if cooperation is not met, or dishonest motion can be ignored.

5k1.1

creates significant leverage for prosecutors in plea negotiations, however can be ignored by judge

1. Quantity Based Offenses

If offense level is based primarily on amount of money or substance, or involves repetitive ongoing misconduct add the quantities together & apple the guidelines to the conduct as a whole.

Closely Interrelated Offenses

Group them together and use only the offense level for the most serious offense in that group.

Independent Offenses

Start with the offense level for the most serious count, then use the number and severity of additional counts to determine how much to increase that offense level.

Sentencing Factors (looked at after guidelines)

History, seriousness, circumstances, etc

§ 3553(a) factors

the "second bite" to argue for a different sentence above or below the range.

Mandatory minimums

hard floor that overrides both the Guidelines and § 3553(a).

Proposed 2026 amendments

inflated dollar thresholds will reduce loss-level increases, a personal transformation adjustment will reward rehabilitation, and Zone B expansion may replace mandatory imprisonment with home detention for many defendants.

Criminal Forfeiture

The government can take away & money of equal value if assets are hiden or spent by the defendant.

Civil Forfeiture

Government must show a reasonable belief the property is connected to the offense. Property is seized under a warrant before trial.

Conspiracy

two or more persons to commit any offense against the United States, or to defraud the United States one or more of such persons do any act to effect the object of the conspiracy, imprisoned not more than five years

Exception for Conspiracy Sentencing

If the offense of conspiracy is a misdemeanor the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

Needs 3 Elements for Conspiracy

1. Agreement (2 or more)

2. Intent

3. One act required and must be unlawful

Hammerschmidt Requirement

Defraud the government clause requires deceit, craft or trickery

Does it matter whether the improper acts or objective are criminal under another statute?

No. The defraud clause does not require that the object of the conspiracy violate any separate criminal statute. Impairment of a lawful government function is sufficient.

Does it require proof of an actual or intended monetary or proprietary loss?

No. It requires only deceit, craft, or trickery aimed at obstructing a government function. No financial loss to the government need be shown or intended.

In a tax case, is there any advantage to charging a conspiracy to defraud the IRS instead of income tax evasion?

Yes. It avoids the need to prove the elements of tax evasion, such as a tax deficiency or willfulness.

Team Conspiracy

All conspirators work together toward a shared objective with knowledge of each other's roles.

Chain Conspiracy

Sequential links where each member handles one stage — e.g., manufacturer → distributor → dealer.

Hub and Spoke Conspiracy

Central figure coordinates with multiple independent actors.

Pinkerton doctrine

co-conspirators liable for foreseeable crimes

committed in furtherance of the conspiracy

Joinder & Severance

Multiple defendants can be tried together; defense may seek severance to avoid spillover prejudice

Hearsay Exception

co-conspirator statements during and in furtherance of conspiracy are admissible

Statute of Limitations

Runs from the date of the last overt act; withdrawal starts the clock for that conspirator

No Merger

Conspiracy is a separate offense from the underlying substantive crime — both can be charged

Venue of Jurisdiction

Prosecution can be brought wherever the agreement was formed or any overt act occurred

Bruton v. United States

A co-defendant’s confession incriminating another defendant cannot be admitted at a joint trial without violating the Confrontation Clause.

Gray v. Maryland

Replacing a co-defendant’s name with [blank] or

[redacted] in a confession does not cure the Bruton problem.

Withdrawal from Conspiracy

withdrawal to co-conspirators starts individual statute of limitations clock. Does NOT retroactively eliminate conspiracy

liability. Burden is on the defendant to prove withdrawal

RICO Elements

1. Involved in an enterprise

2. 2 or more crimes committed within 10 yrs

3. Pattern of continuity of Racketeering

4. Participation and done in a specific area (interstate, or foreign commerce must be affect)

Criminal RICO

• 20+

• Forfeiture of all

• needs to show defendant agreed to participate

Civil RICO

• Costs of fees and damages

• Lower burden of proof

§ 371 is a dual-object statute

the defraud clause is far broader than the offense clause, but Hammerschmidt requires deceit, craft, or trickery; it cannot reach merely unlawful or policy-adverse conduct