{"id":432,"date":"2026-03-13T18:55:12","date_gmt":"2026-03-13T22:55:12","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/whitecollarcriminallaw\/?p=432"},"modified":"2026-03-16T10:19:32","modified_gmt":"2026-03-16T14:19:32","slug":"sentencing-strategies-in-federal-fraud-cases-key-takeaways-for-white-collar-practitioners-from-the-abas-annual-white-collar-conference","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/whitecollarcriminallaw\/2026\/03\/13\/sentencing-strategies-in-federal-fraud-cases-key-takeaways-for-white-collar-practitioners-from-the-abas-annual-white-collar-conference\/","title":{"rendered":"Sentencing Strategies in Federal Fraud Cases: Key Takeaways for White Collar Practitioners From the ABA\u2019s Annual White Collar Conference"},"content":{"rendered":"\n

Authors: Gregory Herrold<\/a> and Eric Boden<\/a><\/p>\n\n\n\n

Tackling complex and evolving issues surrounding sentencing in federal fraud cases, a panel of distinguished jurists and white collar practitioners shared their thoughts at this year\u2019s ABA White Collar Conference in San Diego, California in a discussion titled: \u201cEffective Sentencing Advocacy \u2013 Guidelines, Mitigation, and Data.\u201d The panel, including U.S. District Court Judges Charles Breyer and Trina Thompson of the Northern District of California, explored mitigation strategies defense counsel should implement early in a client\u2019s criminal justice process to most effectively advocate for an appropriate sentence.<\/p>\n\n\n\n\n\n\n\n

Strategies for Mitigation and Advocacy \u2013 Challenging the Loss Amount and Sentencing Policies<\/h4>\n\n\n\n

The panel emphasized loss amount as the single largest component of the court\u2019s calculation of the Guidelines range, making it the natural starting point for defense advocacy. Panelists identified several avenues through which practitioners can challenge or contextualize this figure.

First, the panel encouraged counsel to scrutinize the government’s loss calculation for mathematical or methodological errors. As highlighted during the discussion, there are multiple ways to calculate loss, and the chosen methodology can dramatically affect the outcome. One panelist pointed to the prosecution of embattled Theranos founder Elizabeth Holmes, commenting that arguing for diminution of the investment amount over the actual amount invested often is a more accurate\u2014and lower\u2014measure of the economic loss inflicted.

Second, the panel advised practitioners to carefully examine applicable exclusions from the loss calculation, such as interest, which ordinarily under the Guidelines does not apply to the loss calculation.

Third, the panel suggested that attorneys should consider policy-based arguments to attack the guideline itself, thereby avoiding any appearance of downplaying a defendant\u2019s conduct or dismissing any harm to victims. The fraud guidelines (U.S.S.G. Sec. 2B1.1) have drawn criticism from many district judges, including Judge Breyer, who remarked during the panel that the loss table makes \u201clittle sense,\u201d noting that\u2014unlike the tables for many other criminal offenses\u2014the current, operative version of the fraud loss table was not empirically derived but instead evolved over time, largely as a reaction by the Sentencing Commission to punish fraud more severely in the wake of Sarbanes\u2013Oxley. Indeed, as the panel observed, the Sentencing Commission over the last several decades has increasingly added considerably more levels at similar loss amounts to a defendant\u2019s exposure while also introducing additional enhancements, effectively doubling down on the impetus to sentence financial fraud defendants more severely. The ABA published a \u201cshadow guideline\u201d in 2015 that offers an alternative framework, as one panelist observed, evaluating culpability in a \u201cmore meaningful way\u201d and providing a useful reference point for defense arguments.

Finally, the panelists noted that sentencing now involves a two-step process, allowing practitioners to move to their best variance arguments under the 18 U.S.C. \u00a7 3553(a) factors immediately after the court\u2019s Guideline range calculation. No longer will an attorney have to struggle through the often awkward and cumbersome former Step Two analysis addressing technical, guideline-based departures.

Judge Breyer offered a practical tip for those attorneys assessing a criminal defendant\u2019s likely sentencing exposure in a fraud case: when the loss amount is even slightly complicated, counsel should request a hearing on the loss calculation before the date of sentencing. By increasing the time between the loss determination and the broader sentencing hearing, counsel can \u201cameliorate the impact of the loss\u201d and take the steam out of the bottom-line number. After the loss amount is determined, defense counsel then can return\u2014preferably days or weeks later\u2014to advocate for their client under the Section 3553(a) factors.

That said, defense counsel should always remain mindful of their audience. Not every judge will be receptive to the argument that the Guidelines themselves are fundamentally flawed. Counsel therefore should have a Plan B: even if the court declines the invitation to question the Fraud Guideline\u2019s validity, it may still be receptive to the argument that the defendant\u2019s conduct was only minimally responsible for the overall loss.<\/p>\n\n\n\n

Personalization and Mitigation: Telling the Defendant’s Story<\/h4>\n\n\n\n

Effective sentencing advocacy goes well beyond the numbers. Panelists emphasized that personalizing the defendant\u2014telling the court who they are and why they ended up before a sentencing judge\u2014is equally critical.

One presenter outlined a comprehensive mitigation approach that begins well before the sentencing hearing. Practitioners should engage proactively during the U.S. Probation Office\u2019s Presentence Investigation Report stage, ideally by providing the assigned Probation Officer with supportive documents including character letters, a statement from the defendant demonstrating remorse, documentation of military service, and relevant medical history, including letters from clinicians with diagnoses regarding mental or other health issues. The earlier these materials are submitted to the Probation Officer, the more impactful they are toward shaping the narrative about who the defendant is and who the defendant is not. Waiting until the filing of the sentencing memorandum\u2014or the sentencing hearing itself\u2014to introduce the court to your client leaves the judge little time to form a meaningful understanding of who the defendant is. Defense counsel should also speak with their client early in the process about their client\u2019s remorse, personal growth, and lessons learned, as these aspects will inform the court’s assessment of any need to impose a sentence to achieve the goals of both specific and general deterrence. Character letters on behalf of the defendant should be solicited by counsel well in advance of sentencing. These letters should be organized around consistent themes that reinforce the narrative that the defendant is a person whose conduct as reflected in the charging instrument or plea agreement was aberrant from who the defendant is over a lifetime of good conduct.

Where the defendant has the ability to pay restitution, doing so is a straightforward way to improve the defendant’s position at sentencing. Additionally, while many practitioners consider victims to be adverse to the defense\u2019s sentencing goals, counsel should explore whether any victims might be willing to provide supportive letters on the defendant’s behalf, while being mindful of any bail conditions prohibiting such conduct.<\/p>\n\n\n\n

Insights from the Bench: What Judges Want to See<\/h4>\n\n\n\n

The judicial perspective offered during the panel was particularly illuminating. Practitioners were reminded to not overlook the presence of victims in the courtroom. Indeed, as Judge Thompson remarked, sentencing is not solely about the defendant; equally important is the presence of victims, whether physically in the courtroom or represented in impact statements submitted to the court. The panelists also advised attorneys (especially in high profile cases) to have a keen understanding of how their case is being treated in the media, so as to distinguish what their case is from what it is not.

Judges Breyer and Thompson also noted that courts are often moved by a defendant’s post-arrest conduct, including efforts between the date of arrest and the date of sentencing to better oneself and repair the community affected by the defendant\u2019s conduct. However, Judge Thompson urged counsel to make reasonable sentencing requests, and not ask for a sentence so unreasonable that the attorney loses credibility and undermines the seriousness of the defendant\u2019s advocacy. Such pie-in-the-sky requests serve only to hamper the court’s ability to fashion an appropriate sentence.

Judge Breyer remarked that while he enters a sentencing hearing with a strong and well-informed sense of the defendant and the defendant\u2019s conduct, he remains open to persuasion. Judge Breyer also offered several suggestions for counsel:<\/p>\n\n\n\n