Circuit Split on Intended Loss Created by the Third Circuit’s Banks Decision Resolved by Amendment to § 2B1.1

A week ago, on April 17, 2024, the United States Sentencing Commission voted to approve an amendment which moves the language related to intended loss from the commentary to § 2B1.1 to notes to the loss table in the guideline itself, effectively abrogating the Third Circuit’s holding in Banks that the definition of “loss” in § 2B1.1 is limited to its plain meaning. Indeed, “loss” in § 2B1.1 means both “actual loss” and “intended loss” again. Now that it is safely tucked within the guideline, intended loss is here to stay (unless Congress rejects the proposed amendments). Once approved, one issue that will remain is whether the amendment will apply retroactively to offenses committed after Banks but before the amendments go into effect.

Another point for future consideration is that while Banks’s narrow, dictionary definition of “loss” is dead, its reasoning lives on: any gloss added by the commentary to unambiguous guideline terms – like the concept of “intended loss” was to “loss” before the Commission moved it – is not authoritative. This is based on a line of Supreme Court cases regarding deference to administrative agencies’ interpretations of their own rules, and Third Circuit decisions like Nasir, Adair, and Kirschner which applied that reasoning to the sentencing guidelines. Read more about the Banks decision and the cases that led up to it here.

If the guideline commentary expands a definition that is unambiguous in the guideline itself and the commentary is harmful to a criminal defendant, defense counsel should argue that the commentary does not apply. You might get a decision like Banks. Just beware that the government may make that argument about helpful commentary, too.

By Richard Walk