Recalibrating Economic Crime Sentencing: The U.S. Sentencing Commission’s Proposed Reforms to Section 2B1.1 and What They Mean for the Defense Bar

Proposed Amendments Released December 12, 2025 | Public Comment Due February 10, 2026

The U.S. Sentencing Commission (the “Commission”) has proposed amendments to federal fraud sentencing guidelines and is soliciting comments from the public.

What You Need to Know:

• Simplified Loss Table: The proposed amendments reduce the 16-tier loss table to eight broader tiers, aiming to simplify sentencing and reduce disputes over marginal loss amounts.
• Focus on Culpability and Harm: New guidelines emphasize non-economic victim harm (e.g., emotional trauma) and introduce mitigating factors for defendants acting under coercion or showing early remediation.
• Retroactivity and Public Input: The Commission is considering retroactive application of these changes and invites public comments by February 10, 2026, ahead of a May 1, 2026, deadline for Congressional submission.

Overview

Federal sentencing for fraud and theft offenses has long been dominated by a single metric: monetary loss. Section 2B1.1 of the Commission’s Guidelines Manual (the “Guidelines”) presents a graduated “loss table”—a standardized schedule used by federal courts to translate the dollar impact of an offense into a recommended sentencing range—that can add as many as 30 offense levels, potentially resulting in additional decades of criminal exposure. In recent years, practitioners and criminal-justice reform advocates have criticized the table as both overly granular and not sufficiently tied to individual culpability. Against that backdrop, the U.S. Sentencing Commission has proposed a significant redesign of §2B1.1 for the amendment cycle ending May 1, 2026. [1]

Section 2B1.1 covers federal economic crimes such as fraud, theft, embezzlement, and similar offenses. It starts with a fairly low base offense level, but the range can climb quickly once the specific offense characteristics (SOCs) kick in, especially the loss table. Critics argue the “loss-driven” approach can produce ranges that do not meaningfully distinguish between different forms of culpability or between different types of victim harm. [2]. The Commission’s proposal is aimed at two familiar problems practitioners keep raising. First, the loss table is so finely sliced that cases often turn into expensive litigation fights over whether a loss number clears the next rung on the loss table. Second, the existing SOCs do not consistently capture non-monetary victim harm or mitigating circumstances often present in real-world cases. [3].

The economic crimes proposed amendments are organized into two parts: Part A, restructuring/simplifying the loss table at §2B1.1(b)(1), and Part B, amending SOCs and adding new SOCs to §2B1.1 to better reflect the culpability of the individual and harm to the victim. These proposed changes present both near-term opportunities and longer-term consequences for sentencing advocacy, plea negotiations, and possibly post-conviction relief, if any changes are made retroactive. [4]

The Commission published its proposed amendments in the Federal Register on December 19, 2025. Written public comments, including comments addressing possible retroactive application of any amendments, must be received by February 10, 2026. Comments may be submitted electronically through the Commission’s public comment portal or by mail to the Commission’s Public Affairs office. The Commission also indicated it may hold a public hearing, with details to be announced on the Commission’s website. [5]

If the Commission votes to promulgate new amendments, it must transmit them to Congress for consideration no later than May 1, 2026. [6]

We discuss the Commission’s proposed reforms to §2B1.1 in more detail below.

Part A: Restructuring the Loss Table to Simplify Application

The Commission’s stated goal with its proposed amendments is simplification—specifically, lowering the fact-finding burden on courts and reducing disputes where the loss amount falls close to a tier boundary. [7]

As a starting point, the Commission uses fiscal year 2024 data to group sentenced §2B1.1 cases into quintiles based on loss, with each group representing roughly 20 percent of cases. Under the proposal, the first five categories would align with those quintiles, while additional tiers would remain at the highest loss amounts to preserve differentiation among the most extreme cases. [8]

In practical terms, the proposal would collapse the current 16-tier table into eight enhancement thresholds. Each tier would therefore cover a much broader loss range. The proposed quintile-based thresholds would begin at $15,000 (triggering an enhancement), then step up to $95,000, $250,000, and $1.5 million before moving to higher-loss tiers intended to capture the highest-loss cases. [9]

The Commission expressly seeks comment on whether broader categories adequately capture financial harm, whether the $15,000 threshold is the appropriate trigger for any enhancement, and whether the offense-level increases associated with the remaining categories should be adjusted in light of the restructuring. [10].

Part B: Shifting the Focus Toward Culpability and Victim Impact

Part B responds to a different critique: even if loss remains a central driver, §2B1.1 should better measure culpability and the full spectrum of harm. The Commission noted that §2B1.1 currently contains 20 SOCs and four cross-references, including enhancements for number of victims / financial hardship and for “sophisticated means.” Stakeholders have argued that the guideline does not adequately capture non-economic victim harm, applies sophisticated means too broadly, and lacks mitigating adjustments for certain defendants with limited agency or atypical vulnerability. [11]

Part B would create a new SOC (proposed at §2B1.1(b)(3)) for offenses resulting in “substantial non-economic harm” to one or more victims, with a bracketed increase of two, three, or four levels. The proposal supplies illustrative examples of “non-economic harm”—including physical harm, psychological harm, emotional trauma, and reputation damage—to help guide courts in applying the enhancement. [12]

If adopted, the defense bar should expect this SOC to become a frequent battleground. In consumer-facing fraud, identity theft, cyber-enabled schemes, and reputational injury cases, the government may argue that the same conduct producing financial loss also caused “substantial” non-economic harm. Defense counsel will need to develop countervailing evidentiary records, especially where non-economic harms are speculative, remediable, or already addressed through restitution or regulatory remediation.

“Sophisticated means” is a frequent enhancement fight in economic crime cases, and the Commission is proposing a dedicated package with two alternative approaches: either move sophisticated means into a new Chapter Three adjustment (Section 3C1.5) with a uniform definition, or keep it in Chapter Two but provide updated, uniform guidance across multiple guidelines, including §2B1.1. Part B would amend the “sophisticated means” enhancement (renumbered as §2B1.1(b)(11)) by revising its definition to require “a greater level of complexity than typical for an offense of that nature” and add further guidance to help courts decide what conduct qualifies as “sophisticated means.”

Part B would also add two mitigating factors designed to reduce offense levels in specific circumstances. First, it would authorize a two-level decrease where the defendant committed the offense at an employer’s direction for fear of negative employment consequences, acted due to an intimate or familial relationship or due to threats or fear absent which he/she would have been unlikely to commit such an offense, or was unusually vulnerable to persuasion or inducement due to a physical or mental condition. Second, it would create a tiered decrease for certain post-offense conduct occurring before the defendant knew of an investigation—such as voluntarily ceasing the criminal activity, making efforts to return money or property, or reporting the offense to authorities. [13]

These proposed decreases represent a notable shift in that §2B1.1 has historically added enhancements more readily than it has recognized mitigation. If adopted, these adjustments could materially affect guideline negotiations in employee-driven fraud, coercion-adjacent conduct, and cases involving early remediation.

Key Legal and Interpretive Issues Practitioners Should Expect

Because §2B1.1 disputes often turn on commentary-defined concepts and fact-intensive enhancements, the proposed amendments intersect with broader interpretive debates about guideline text versus commentary, the standard of proof for large enhancements, and the degree to which sentencing judges should treat the advisory range as a starting point.

The proposed consolidation of the loss table does not itself resolve the recurring disputes over what counts as loss and how to measure it. Application Note 3 to §2B1.1 defines actual loss and intended loss, and intended-loss disputes remain a major driver of guideline exposure in many cases. In Kisor v. Wilkie, for instance, the U.S. Supreme Court narrowed deference to an agency’s interpretation of its own regulations, emphasizing that deference is appropriate only when the text is genuinely ambiguous and the interpretation is reasonable. Lower courts have increasingly relied on Kisor to scrutinize whether guideline commentary can expand the text. [14]

For example, the U.S. Court of Appeals for the Third Circuit has held that, because §2B1.1’s text refers to loss without mentioning intended loss, commentary cannot require courts to use intended loss where it exceeds actual loss. Other circuits have continued to apply intended loss under the commentary, creating an entrenched circuit split with significant practical consequences. Part A’s wider tiers may reduce some marginal disputes, but the intended-loss question will still shape which tier applies in high-exposure cases. [15]

Since United States v. Booker rendered the Guidelines advisory, federal judges may find guideline facts by a preponderance of the evidence, so long as the ultimate sentence does not exceed the statutory maximum. Still, large guideline enhancements can exert a powerful influence on sentencing outcomes, and defendants frequently raise due process concerns when loss or harm findings drive large increases. Although the Supreme Court has held that the advisory Guidelines are not subject to vagueness challenges, the Court’s reasoning leaves room for continued litigation over fair notice and reliability. [16]

If Part B’s non-economic harm SOC is adopted, litigants can expect disputes over what qualifies as “substantial,” how causation should be proved, and what evidentiary showings are required. The Commission’s illustrative list may help, but it will not eliminate borderline cases.

Retroactivity: What to Watch and How to Advise Clients

Even if the Commission promulgates these amendments, the practical impact for currently incarcerated individuals turns on retroactivity. Under 18 U.S.C. §3582(c)(2), a defendant may seek a sentence reduction when the Commission lowers the applicable guideline range and makes the amendment retroactive through Section 1B1.10. The Commission has expressly invited comment on retroactive application as part of this amendment cycle. [17]

From a reform-advocate perspective, retroactivity is often where guideline changes deliver the greatest systemic benefit. Yet, retroactivity analysis for §2B1.1 reforms is complicated. If Part A merely collapses tiers while preserving the general architecture of loss-driven sentencing, the Commission may view retroactivity as administratively feasible—because courts could, in many cases, map an already-found loss amount onto a new tier without relitigating the factual record. On the other hand, if Part B’s new SOCs and mitigating adjustments drive the overall policy rationale, retroactive application may require fact-finding that was not developed at the original sentencing.

Defense counsel should consider two distinct retroactivity questions: whether the Commission makes any Part A changes retroactive, and whether it makes Part B’s culpability and harm recalibrations retroactive (in whole or in part). In the meantime, for clients currently in plea negotiations or awaiting sentencing, counsel may consider building a record that anticipates future retroactivity arguments—particularly evidence relevant to mitigation factors and to the absence (or remediable nature) of non-economic harm.

Practical Takeaways

The proposed §2B1.1 reforms are not final, but they already provide a roadmap for where economic-crime sentencing policy may be headed. Defense practitioners should consider the following action items:

• Submit targeted public comments. The Commission is expressly seeking feedback on the tradeoffs of broader loss tiers, the appropriate trigger threshold, and the shape of offense-level increases, as well as the scope and definition of non-economic harm and the contours of mitigation.
• Reassess loss-driven litigation strategy. Wider tiers may reduce the value of marginal loss disputes while increasing the importance of threshold determinations and alternative arguments (culpability, harm, role, and variance factors under 18 U.S.C. §3553(a)).
• Develop a victim-harm record early. Where non-economic harm is likely to be argued, develop expert or documentary proof to test claims of emotional, reputational, or privacy harm, and to show remediation measures.
• Position “sophisticated means” disputes around typicality. If the definition is narrowed, the key question becomes whether the conduct reflects complexity beyond what is typical for the offense. Build comparisons to baseline offense conduct and highlight where the scheme was ordinary or opportunistic rather than intricate.
• Leverage the proposed mitigation factors. Employer-directed conduct, coercion- or relationship-based involvement, unusual vulnerability, and early cessation/remediation should be documented and presented in a way that is persuasive both under current §3553(a) arguments and under any future guideline adjustment.

For corporate and institutional clients, the amendments also reinforce the value of proactive remediation: voluntary cessation, restitution or refund mechanisms, and early internal reporting may become more salient in guideline calculations if Part B is adopted. Even if the amendments are not promulgated, these factors remain powerful mitigation themes in contemporary sentencing practice.

One practical consequence of the proposed amendments may be fewer trials—or, at least, less inefficient trial preparation. If broader loss tiers and clearer, more targeted enhancements reduce the stakes of close-call disputes, parties may have less incentive to spend resources litigating marginal issues through trial, and more incentive to resolve the case earlier around the truly contested questions of culpability and victim impact.

Other Commission Proposals Worth Tracking for White-Collar Cases

Although the economic-crimes proposal is the centerpiece for §2B1.1-driven sentencing, the Commission’s December 2025 package also includes several cross-cutting proposals that could affect cases through Chapter Three adjustments or baseline calculation rules. Counsel evaluating charging decisions, plea posture, or sentencing timing should track these related proposals as the amendment cycle progresses.

A Broader “Sophisticated Means” Framework Across Guidelines

In addition to the §2B1.1-specific revisions described above, the Commission has proposed a separate, broader approach to “sophisticated means.” Under one option, the Commission would create a new Chapter Three adjustment that applies across Chapter Two offenses when the offense involved sophisticated means, defined as committing or concealing an offense with a greater level of complexity than typical for an offense of that nature. Under an alternative option, the Commission would retain sophistication as a Chapter Two concept but would update and harmonize the definitions and guidance in the guidelines that currently contain “sophisticated” SOCs. Either approach is likely to shift litigation toward what is “typical” for a given offense and to sharpen double-counting questions where other adjustments capture the same conduct. [18]

Multiple-Count Simplification and Grouping Changes

The Commission also seeks to simplify the multiple-count rules in Chapter Three, Part D. The proposed approach would continue to aggregate conduct for certain quantity-driven guidelines (including §2B1.1), but it would replace the current unit-based mechanism for many other offense types with a more straightforward count-based adjustment table. For white-collar practice, the practical question often becomes strategic rather than mathematical: how many counts, and which guideline(s), should drive the combined offense level. If adopted, the proposal may change the leverage dynamics around count selection, grouping arguments, and plea agreements that “cap” exposure by limiting the number or type of counts of conviction. [19]

Proposed Post-Offense Rehabilitation Adjustment

Separate from (but related to) the economic-crimes package’s proposed mitigation for early cessation and remediation, the Commission has proposed a new Chapter Three adjustment—proposed Section 3E1.2—that would reduce the offense level for defendants who demonstrate meaningful rehabilitative efforts prior to sentencing. The proposal offers alternative structures (including tiered reductions) and a non-exhaustive list of considerations such as voluntary restitution payments or schedules, participation in treatment or rehabilitation programs, sustained employment, and community or family support. The Commission has specifically asked how any new §3E1.2 reduction should interact with §3E1.1, Section 5K1.1, and the economic-crimes package’s proposed tiered reduction for early remediation—making it important for defense counsel to build a documented record of timing, voluntariness, and measurable change, both for current sentencing advocacy and for any later retroactivity arguments. [20]

Inflation Adjustments to Monetary Thresholds

Finally, the Commission has proposed inflation adjustments to monetary tables and values throughout the Guidelines (including the monetary thresholds embedded in §2B1.1), using a Consumer Price Index methodology similar to the Commission’s 2015 inflation update. Even though this proposal is not tailored to any one offense type, it can meaningfully alter guideline exposure at the margins, particularly where charging or loss calculations are near key dollar thresholds. [21]   

Conclusion

The Commission’s proposed economic-crimes amendments reflect a meaningful attempt to recalibrate federal fraud sentencing away from hyper-granular loss disputes and move toward a framework that directly measures individualized culpability and victim harm. Whether the final product moves the system closer to those goals will depend on stakeholder input, the Commission’s ultimate choices about offense-level calibration, and (crucially) whether any reforms are made retroactive. For the defense bar, the public comment period is an immediate opportunity to shape the trajectory of §2B1.1—and to advocate for reforms that improve proportionality, reduce unwarranted disparity, and ensure that guideline ranges remain anchored to reliable, litigable facts.

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For additional information about the issues discussed in this Insight, please contact the attorney(s) listed on this page or the Epstein Becker Green attorney who regularly handles your legal matters.

ENDNOTES

[1] U.S. Sent’g Comm’n, Proposed Amendments to the Sentencing Guidelines, Policy Statements, and Official Commentary 57–58 (Dec. 12, 2025) (hereinafter, “Proposed Amendments”).

[2] Proposed Amendments, supra note 1, at 65–66 (summarizing stakeholder concerns regarding culpability and victim harm).

[3] Id. at 58–59, 65–66.

[4] Proposed Amendments, supra note 1, at 58, 65–68.

[5] Sentencing Guidelines for United States Courts, 90 Fed. Reg. 59,660, 59,660–61 (Dec. 19, 2025).

[6] Id. at 59,660 (noting amendment cycle ending May 1, 2026); U.S. Sent’g Comm’n, Amendment Process, https://www.ussc.gov/guidelines/amendment-process (last visited Jan. 13, 2026).

[7] Proposed Amendments, supra note 1, at 58 (noting simplification goal and current “16 levels”).

[8] Id. at 58–59 (describing quintile approach and retained high-loss categories).

[9] Id. at 59–60 (proposed thresholds and bracketing of offense-level increases).

[10] Id. at 64–65 (issues for comment on restructuring and threshold amounts).

[11] Id. at 65–66.

[12] Id. at 66–67.

[13] Id. at 65 (mitigating factors).

[14] Kisor v. Wilkie, 588 U.S. 558, 563–64 (2019); Stinson v. United States, 508 U.S. 36, 38 (1993).

[15] See, e.g., United States v. Banks, 55 F.4th 246, 255–58 (3d Cir. 2022) (declining to apply commentary’s intended-loss definition); United States v. Manatau, 647 F.3d 1048, 1050–52 (10th Cir. 2011).

[16] United States v. Booker, 543 U.S. 220, 245 (2005); Beckles v. United States, 580 U.S. 256, 262 (2017).

[17] 18 U.S.C. §3582(c)(2); U.S.S.G. §1B1.10 (U.S. Sent’g Comm’n 2025); Dillon v. United States, 560 U.S. 817, 826–27 (2010); 90 Fed. Reg. at 59,660 (inviting comment on retroactivity).

[18] Proposed Amendments, supra note 1, at 157–68, 167–68.

[19] Id. at 92–95, 128–29.  

[20] Id. at 84–88.

[21] Id. at 43–44, 57–58