The Federal Sentencing Guidelines have for some years prescribed substantial sentences for high-level corporate officials convicted of large frauds. Guidelines sentences for offenders of this type moved higher in 2001 with the passage of the Economic Crime Package amendments to the Guidelines, and higher still in the wake of the Sarbanes-Oxley Act of 2002. Today, any corporate insider convicted of even a moderately high-loss fraud is facing a guideline range measured in decades, or perhaps even mandatory life imprisonment. Successful sentencing advocacy on behalf of such defendants requires convincing the court to impose a sentence outside (in many cases, far outside) the range prescribed by the Guidelines. Conventional departure or variance arguments emphasizing particular characteristics of the client or the offense remain important; however, guideline sentencing levels for corporate officers in big frauds are currently so high that individualized arguments must be paired with the more fundamental contention that the Federal Sentencing Guidelines no longer provide useful guidance for sentencing such defendants. This Article lays out this fundamental argument, and explores its limits.
Frank O. Bowman III, Sentencing High-Loss Corporate Insider Frauds After Booker, 20 Fed. Sent. R. 167 (2008)