The Sentencing Guidelines provide that the base offense level for certain crimes must be increased based on the amount of financial “loss.” E.g., U.S.S.G. § 2B1.1(b)(1). The commentary to the Guidelines says that “loss” means the actual or intended loss, whichever is greater. Id. cmt. n.3(A).
In an important new ruling, the Third Circuit held in United States v. Banks, — F.4th —-, 2022 WL 17333797 (3d Cir. Nov. 30, 2022), that this commentary is invalid because, under Kisor v. Wilkie, 139 S. Ct. 2400 (2019), it improperly expands the plain meaning of “loss,” which refers to the actual loss only. In the court’s words:
Our review of common dictionary definitions of “loss” point to an ordinary meaning of “actual loss.” None of these definitions suggest an ordinary understanding that “loss” means “intended loss.” […]
Because the commentary expands the definition of “loss” by explaining that generally “loss is the greater of actual loss or intended loss,” we accord the commentary no weight.
Id. at *7. The Third Circuit thus vacated the defendant’s sentence, which included a 12-level enhancement for intended loss, and remanded for resentencing without this enhancement.
The Second Circuit has not yet weighed in on the validity of the intended-loss commentary in the aftermath of Kisor. But Banks provides powerful support for limiting the Guidelines loss amount to the actual loss. So make the Banks argument if you can! And be on the lookout for any other Guidelines commentary that improperly expands the plain meaning of a Guideline and therefore may also be invalid.