Third Circuit: USSG 2B1.1 Commentary’s Expansive Definition of Loss Carries No Weight

December 5, 2022

Not that it required a crystal ball, but as we predicted in our last blog post, Daylight Between Sentencing Guidelines and Commentary? Third Circuit Says Yes, and 2B1.1 is Next, the Third Circuit held last week in United States v. Banks that “loss” under 2B1.1 is limited to “actual loss” as defined by the guideline itself, thereby rejecting the expansive “intended loss” definition contained in the commentary.

It is the commentary’s expansiveness that ultimately required the court to accord it no weight. As we explained in our last post, the Third Circuit previously held in Nasir that any commentary that “sweeps more broadly” than the plain language of the guideline should not be given deference.

This is a sea change for sentencing in white collar cases. Banks’ victim suffered no actual loss, but the use of the commentary’s definition resulted in a 12-level enhancement at sentencing – adding several years to his ultimate sentencing range.