Comments on the U.S. Sentencing Commission’s Proposed 2026 Amendments to the Guidelines Manual

SUMMARY

The Federal Courts Committee (Jonathan B. New, Chair) submitted comments on the United States Sentencing Commission’s (“Commission”) Proposed 2026 Amendments to the Federal Sentencing Guidelines Manual. Specifically, the City Bar’s comments addressed Proposed Amendments 2 (Inflationary Adjustments), 3 (Economic Crimes), and 4 (Post-Offense Rehabilitation Adjustment). The City Bar supports the proposed inflationary adjustment and automatic adjustments going forward; supports the proposed restructuring of the loss table if the Commission does not undertake more substantial reform of the economic offenses Guideline; opposes an offense level enhancement for “non-economic” harms in economic offenses; supports amending the definition of “sophisticated means,” with additional revisions; supports offense level reductions for economic offenses committed in certain relationship circumstances or when the defendant was particularly vulnerable or subject to threats or fear; supports offense level reductions for post-offense, pre-arrest restorative efforts; and supports offense level reductions for post-arrest rehabilitative efforts.

REPORT

United States Sentencing Commission
One Columbus Circle, N.E., Suite 2-500
Washington, D.C. 20002-8002
Attention: Public Affairs – Proposed Amendments

Re: Comments on Proposed Amendment to the Guidelines Manual

Dear Commissioners:

On behalf of the Federal Courts Committee of the New York City Bar Association (“City Bar”),[1] we respectfully submit the following comments on the United States Sentencing Commission’s (“Commission”) Proposed 2026 Amendments to the Federal Sentencing Guidelines Manual (“Guidelines” or “U.S.S.G.”). Specifically, the City Bar submits comments concerning Proposed Amendments 2 (Inflationary Adjustments), 3 (Economic Crimes), and 4 (Post-Offense Rehabilitation Adjustment). The City Bar appreciates this opportunity to comment on the Proposed Amendments.      

I. PROPOSED AMENDMENT 2: ADJUSTING THE MONETARY VALUES AND TABLES FOR INFLATION

On December 12, 2025, the Commission proposed an amendment to the monetary tables and values listed throughout the Guidelines, which were last revised to account for inflation in 2015. The proposed amendment would amend these tables and values to adjust for inflation since that year. The Commission has invited comments on (1) whether the monetary tables in the Guidelines should be adjusted for inflation and (2) whether the monetary tables in the Guidelines should be adjusted for inflation on a regular basis or automatically. The City Bar supports both of these proposed amendments.

a. Inflationary Adjustment

According to the Bureau of Labor Statistics Consumer Price Index (“CPI”) Inflation Calculator, $100 dollars in January 2015 has the same buying power as $135.93 in January 2025. With the price of goods increasing 36% in the past ten years,^[2] combined with a historical average rate of inflation of 3%,^[3] the Guidelines must be updated to account for the economic reality of our times.

Both general, commonsense fairness principles and the factors under 18 U.S.C. § 3553 weigh in favor of updating the Guidelines to adjust for significant changes due to inflation. Stale and inaccurate numbers in the Guidelines yield inapposite and inaccurate sentences, and without updating the Guidelines to account for inflation, courts are stymied in their ability to calculate a sentence that is “sufficient, but not greater than necessary” to comply with the goals of sentencing. 18 U.S.C. § 3553(a).

Among the factors courts consider in determining the proper sentence is the need for the sentence imposed “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.” Id. § 3553(a)(2)(A). Without accounting for inflation, the monetary values in the Guidelines represent outdated numbers that fail to reflect real conditions. As inflation changes the significance of monetary amounts, the numbers in the Guidelines cease being adequate reflections of the seriousness of economic crimes. A sentence cannot fairly reflect the harm done if that harm is benchmarked against outdated values.

Sentencing courts must also “avoid unwarranted sentence disparities among defendants with similar records,” id. § 3553(a)(6), that is courts should treat “like cases alike.”^[4] According to the Commission’s Public Data Briefing, if the monetary values in the Guidelines were updated to account for inflation, a significant percentage of defendants would see a reduction in their offense level.^[5] Not accounting for inflation effectively applies a different standard to contemporary defendants based on outdated data, thus resulting in disparate treatment.

Moreover, adopting an inflationary adjustment can serve to further Eighth Amendment proportionality goals, ensuring similar crimes are sentenced similarly.^[6]

b. Regularly Adjusting Monetary Tables

For the same reasons, the monetary tables and values in the Guidelines should be adjusted on a regular basis to account for ongoing inflation. An average inflation rate of 3% can make a significant difference in applicable Guidelines ranges. According to the Commission, using data from fiscal year 2024, 37% of individuals charged with an economic crime would see a reduction in their offense levels if an inflationary adjustment were applied.^[7]

The City Bar believes that if the Commission concludes it has statutory authority to implement such an automatic adjustment, the Commission should adopt this proposal.

II. PROPOSED AMENDMENT 3: RESTRUCTURING THE LOSS TABLE AND AMENDING SPECIFIC OFFENSE CHARACTERISTICS FOR ECONOMIC OFFENSES

The Commission’s December 12, 2025 announcement also proposed several amendments to the primary economic offenses Guideline, Section 2B1.1. Specifically, the Commission proposed amending the loss table in Section 2B1.1 to eliminate several of the loss amount levels, solicited comment on whether the Guidelines’ approach to loss amounts should otherwise be amended, and proposed amendments to certain specific offense characteristics in Section 2B.1.

The City Bar believes that the Guidelines’ approach to calculating offense levels for economic crimes, and specifically the reliance on the loss table in Section 2B.1, is misguided and should be substantially reformed. To the extent the Commission does not restructure Section 2B1.1 to eliminate the loss table, however, the City Bar supports the proposed amendment to reduce the number of loss enhancement levels.

With respect to the proposed amendments regarding specific offense characteristics, the City Bar opposes adding an offense level enhancement for “non-economic harm”; supports revising the definition of “sophisticated means”; and supports adding mitigating factor adjustments similar to those found elsewhere in the Guidelines.

a. Loss Table

As an initial matter, the City Bar strongly encourages the Commission to consider more fundamental revisions to the Guidelines for economic crimes. Numerous courts and scholars—including in New York—have criticized the methodology behind Section 2B1.1, which uses loss as a proxy for culpability, as irrational or unjust. See, e.g., United States v. Corsey, 723 F.3d 366, 380 (2d Cir. 2013) (Underhill, J., concurring) (“For the small class of defendants convicted of fraud offenses associated with very large guidelines loss calculations, the guidelines now are divorced both from the objectives of Section 3553(a) and, frankly, from common sense. Accordingly, the guidelines calculations in such cases are of diminished value to sentencing judges.” (internal quotation marks and alterations omitted)); United States v. Faibish, 2015 WL 4637013, at *2 (E.D.N.Y. Aug. 3, 2015) (“The loss table is but one example of the seemingly mindless acceleration of penalties for economic crimes incorporated into the current Sentencing Guidelines regime.”); United States v. Adelson, 441 F. Supp. 2d 506, 509 (S.D.N.Y. 2006) (describing the “inordinate emphasis that the Sentencing Guidelines place in fraud cases on the amount of actual or intended financial loss”); United States v. Emmenegger, 329 F. Supp. 2d 416, 427 (S.D.N.Y. 2004) (describing loss amount as a “relatively weak indicator of the moral seriousness of the offense or the need for deterrence”). Notably, in fiscal year 2024 (the last year for which full data are available), only 48.4% of sentences imposed by district courts were within the applicable Guidelines range when the primary Guideline was Section 2B1.1 (not including sentences for cooperators).^[8] Such statistics clearly indicate that the sentencing ranges prescribed by the loss table consistently fail to accord with judges’ determinations regarding what sentences are just, fair, and sufficient but not greater than necessary.

As commentators have noted, “the loss table fails to differentiate offenders who ought to be differentiated. For example, an amount of loss—especially when it is actual loss—does not tell us anything about why the defendant committed the offense or how much he personally benefited. These motive-based facts are important for the courts’ consideration of retribution, deterrence, and the need for incapacitation.”^[9] The need for retribution, in particular, is measured by the defendant’s “blameworthiness,” which turns, in part, on “the offender’s degree of culpability in committing the crime, in particular, his degree of intent (mens rea) [and] motives . . . .”^[10]

In light of widespread criticism that the Guidelines’ approach to economic crimes has received from courts, practitioners, academics, and experts, an American Bar Association (“ABA”) task force—which included among its members U.S. Circuit Judge Gerard Lynch, U.S. District Court Judge Jed Rakoff, and former U.S. District Court Judge and Sentencing Commission member John Gleeson—proposed amendments that would focus less on “loss” and more on “culpability.”^[11] The ABA task force’s report drew particular attention to sentences for first-time, non-violent offenders and recommended an approach more faithful with the Commission’s enabling legislation, whereby “[i]f the defendant has zero criminal history points under Chapter 4 and the offense was not ‘otherwise serious’ within the meaning of 28 U.S.C. § 994(j), the offense level shall be no greater than 10 and a sentence other than imprisonment is generally appropriate.”^[12] The City Bar urges the Commission to consider the recommendations of the ABA task force and to undertake its own review of the current structure of the economic offense Guidelines—and its underlying assumptions—to ensure that they “appropriately reflect the culpability of the individual and the harm to the victim.”[13]

However, to the extent that the Commission presently intends to retain the Section 2B1.1(b)(1) loss table, the City Bar supports restructuring the table as set forth in part A of Proposed Amendment 3. The proposed revisions advance the Commission’s goal of simplifying the application of the Guidelines.  By consolidating the loss categories in the table, the proposed amendment will reduce the burden not only on the courts, but also on defendants and the government. Rather than spend time and resources litigating over complicated loss calculations within narrow ranges (particularly where there is disagreement, for example, over the amount of intended loss), the parties and the court will be able to focus on other mitigating or aggravating factors that are more pertinent to individual culpability and harm to the victims.

Before adopting the proposed restructuring of the loss table, the Commission should harmonize the loss amounts in the new table with the separately proposed inflationary adjustments.  As currently formulated, the table published in part A of the proposed amendment does not include any inflationary adjustments.  As a result, certain defendants who otherwise would benefit from the proposed amendment for inflationary adjustments might be unfairly disadvantaged by the proposed restructuring of the loss table.  For example, in a case where the relevant loss amount was determined to be $100,000, the application of the inflationary adjustment to the existing loss table would yield a 6-level increase in the offense level, but the restructured loss table would require an 8-level increase.  Such a discrepancy is unwarranted and would not reflect the relative culpability of the defendant or advance any of the other goals of Section 3553(a).

b. “Non-Economic Harm” Offense Level Enhancement

The Commission has proposed adding an offense level enhancement at Subsection 2B1.1(b)(3). The proposed amendment would increase by two, three, or four levels the offense level calculation under Section 2B1.1 for offenses that result in “substantial non-economic harm” such as “physical harm, psychological harm, emotional trauma, harm to reputation or credit rating, and invasion of privacy interest.”

The City Bar opposes this proposed amendment, which will lead to cumulative and duplicative enhancements for outcomes that are all but inherent in many economic offenses. Should the Commission adopt this amendment, the threshold to be met before this enhancement applies should be significantly higher than the language in the proposed amendment.

Earlier versions of the Guidelines provided that an upward departure might be warranted if the Guidelines calculation “substantially understate[d] the seriousness of the offense” when an economic offense “caused or risked substantial non-monetary harm,” such as “physical harm, psychological harm, or severe emotional trauma, or resulted in a substantial invasion of a privacy interest.” U.S.S.G. § 2B1.1 n.21(A)(ii) (repealed Nov. 1, 2025). Similarly, under earlier versions of the Guidelines, an upward departure for psychological harm might be “appropriate only ‘if a victim or victims suffered psychological injury much more serious than that normally resulting from the commission of the offense.’” United States v. Neadle, 72 F. 3d 1104, 1111 (3d Cir. 1995) (quoting then-applicable U.S.S.G. § 5K2.3)).

As the caselaw applying these Guidelines reflected, a high threshold needed to be met for an upward departure for non-economic harms to be justified because non-economic harms are frequent byproducts of frauds and similar offenses. Addressing an upward departure provision that was later consolidated into Section 2B1.1, the Second Circuit noted that “[f]raud will generally tend to reduce its victims’ self-esteem, as well as their bank accounts.” United States v. Mandel, 991 F.2d 55, 59 (2d Cir. 1993) (vacating upward departure under then-U.S.S.G. § 2F1.1). To justify an upward departure for non-economic harms, an offense needed to result in non-economic harm that was “exceptional” for the type of offense at issue. See, e.g., United States v. Rajwani, 476 F.3d 243, 252 (5th Cir. 2007) (rejecting upward departure under Section 2B1.1 when court did “not find the emotional hardship the victims suffered in this case to be of such intensity as to justify such a dramatic departure from the Guideline range”); United States v. Pelkey, 29 F.3d 11, 15–16 (1st Cir.1994) (finding that victims’ feelings of lack of trust, frustration, shock, and depression were not “so far beyond the heartland of fraud offenses as to constitute psychological harm within the meaning of the Policy Statement in § 5K2.3” or the application note to then-U.S.S.G. § 2F1.1).

As drafted, the proposed offense level enhancement would appear to be applicable in a run-of-the mill fraud case in which a victim loses a large amount of money, thereby causing secondary, non-economic harm that was neither intended nor potentially foreseeable. Cf. U.S.S.G. § 2F1.1 n.11 (deleted by consolidation by amendment 481, effective Nov. 1, 1993) (noting an upward departure might be warranted if the loss amount “does not fully capture the harmfulness and seriousness of the conduct,” such as when “a primary objective of the fraud was non-monetary; or the fraud caused or risked reasonably foreseeable, substantial non-monetary harm;” or “the offense caused reasonably foreseeable, physical or psychological harm or severe emotional trauma”). While such loss might be considerable and the harm to the victim’s reputation or psyche substantial, such an outcome is likely common or unexceptional in similar cases and should not result in an offense level enhancement for a result intrinsic to the offense unless it was intended.

Adding an upward adjustment for outcomes that are frequent, if not inherent, in many economic offenses will lead to a virtually automatic increase in the offense level for a wide swath of conduct already accounted for by the economic crimes Guideline. Such automatic enhancements for conduct intrinsic to an offense, which are found elsewhere in the Guidelines, have been subject to significant criticism. For example, in the context of child pornography offenses, the Second Circuit has noted that “[a]n ordinary first-time offender is therefore likely to qualify for a sentence of at least 168 to 210 months, rapidly approaching the statutory maximum, based solely on sentencing enhancements that are all but inherent to the crime of conviction.” United States v. Dorvee, 616 F.3d 174, 186–87 (2d Cir. 2010); see also United States v. Jenkins, 854 F.3d 181, 190 (2d Cir. 2017) (“[H]ere, as in Dorvee, § 2G2.2 cannot bear the weight assigned it because the cumulation of repetitive, all-but-inherent, enhancements yielded, and the district court applied, a Guideline range that failed to distinguish between Jenkins’s conduct and other offenders whose conduct was far worse.”). Courts have recognized similar problems with the Congressional directive to the Commission to automatically enhance offense levels and criminal history categories based on conduct inherent in terrorism-related offenses. See, e.g., United States v. Bradley, 21 Cr. 277 (PAE) (S.D.N.Y.), Doc. 112 at 60:17–61:7 (noting that the upward adjustments in offense levels and criminal history categories for terrorism-related offenses pursuant to U.S.S.G. § 3A1.4(a) “would basically apply to almost any material support case”).

Accordingly, the City Bar opposes the proposed amendment as currently drafted. If the Commission promulgates an enhancement for “non-economic harms,” it should amend the proposed language to clarify that this enhancement should only apply in exceptional circumstances or when such harms were intended, and should ensure that this enhancement does not duplicate or “double count” conduct or outcomes accounted for by other provisions in the Guidelines.

c. “Sophisticated Means” Offense Level Enhancement

Additionally, the Commission has proposed amending the “sophisticated means” enhancement, which would be listed at renumbered Subsection 2B1.1(b)(11). The proposed amendment would revise the definition of “sophisticated means” to mean “committing or concealing an offense with a greater level of complexity than typical for an offense of that nature,” and provide further guidance for when conduct meets that definition.[14]

The City Bar supports revising the definition of “sophisticated means” to narrow its application. In many cases, the current enhancement—as interpreted by the commentary—may be reflexively sought (and obtained) by prosecutors in many cases, rendering “sophisticated means” less an enhancement for appropriate cases and more an automatic increase in cases involving economic offenses. Prosecutors are not shy about seeking the enhancement in a wide variety of cases. See, e.g., United States v. Buchanan, 146 F.4th 1342, 1358 (11th Cir. 2025) (vacating a “sophisticated means” enhancement and observing, inter alia, that “putting superglue on one’s fingers does not seem to be especially complex”). Indeed, according to the data from fiscal year 2024, the “sophisticated means” enhancement was one of the most frequently applied specific offense characteristics under Section 2B1.1(b)—second only to Subsection 2B1.1(b)(2)(A)(i), which imposes a two-level enhancement for offenses involving ten or more victims.[15]

With respect to the specific language proposed by the Commission, the City Bar believes that the following revisions would most effectively and fairly modify the current definition:

“Sophisticated means” means committing or concealing an offense with a greater level of complexity than typical for an offense of that nature. Such complexity may be achieved through various methods, including by using advanced or emerging technologies in ways not routinely employed by everyday users and in a more specialized, elaborate, or unusual way than an ordinary user would. Sophisticated means are often used to increase the scale of the offense or to make especially difficult the detection of the offense or the detection of the defendant’s participation in the offense.

Beyond those revisions, however, the Commission also should consider updating and revising its interpretive commentary applicable to the enhancement. In particular, while the proposed revisions to Application Note 9 reflect certain changes intended to conform the commentary to a new narrower definition of “sophisticated means,”[16] it retains an “example of conduct ordinarily indicating sophisticated means” that describes “a telemarketing scheme” that “locat[es] the main office of the scheme in one jurisdiction but locat[es] soliciting operations in another jurisdiction” as “ordinarily indicat[ing] sophisticated means.” That characteristic, however, largely restates one of the essential elements of wire fraud—namely, that the government must prove some scheme or artifice to defraud involved a transmission “in interstate or foreign commerce . . . for the purpose of executing such scheme or artifice . . . .”  18 U.S.C. § 1343. Such a broad interpretation of what constitutes “sophisticated means” may render the enhancement applicable in many cases based on inherent elements or aspects of the underlying offense.

More appropriate for purposes of the enhancement—and more consistent with the proposed amended definition of “sophisticated means”—is the second example in Application Note 9, which opines that “[c]onduct such as hiding assets or transactions, or both, through the use of fictitious entities, corporate shells, or offshore financial accounts also ordinarily indicates sophisticated means.” Such conduct implicates not only additional efforts to conceal activity related to an offense, but also special use of legal, financial, or other technological techniques that materially differentiates the conduct from that typical of a comparable economic offense commonly prosecuted in federal court. An enhancement that recommends a more severe sentence based solely on the greater level of complexity of an offense should require at least differentiation of that kind,[17] and should not permit application of the enhancement based on aspects of the offense already or largely embodied in the essential elements that the government must prove to secure a conviction.

d. Mitigating Factor Offense Level Reductions

1. 1. Reduction for Coercion or Duress

The Commission has proposed adding a two-level reduction at Subsection 2B1.1(b)(22) if the defendant committed the offense at the direction of his or her employer for fear of negative employment consequences, was motivated by an intimate or familial relationship or by threats or fear to commit the offense and was otherwise unlikely to commit such an offense, or was unusually vulnerable to being persuaded or induced to commit the offense due to a physical or mental condition.

The City Bar supports this proposed amendment. The Guidelines already include similar specific offense characteristic reductions for non-economic crimes, such as firearms trafficking and narcotics trafficking. See U.S.S.G. § 2K2.1(b)(10) (applying two-level reduction if defendant is convicted of firearms trafficking, does not have more than 1 criminal history point, and “(i) was motivated by an intimate or familial relationship or by threats or fear to commit the offense and was otherwise unlikely to commit such an offense; or (ii) was unusually vulnerable to being persuaded or induced to commit the offense due to a physical or mental condition”); id. § 2D1.1(b)(17) (applying an additional two-level reduction if the defendant receives a reduction for having a minimal role in the offense and the defendant received no monetary compensation for the illegal narcotics trafficking activity, had minimal knowledge of the scope of the narcotics trafficking enterprise, and “was motivated by an intimate or familial relationship or by threats or fear to commit the offense and was otherwise unlikely to commit such an offense”).

The Commission has promulgated several amendments to appropriately account for the different functions that individuals play in criminal schemes and their relative levels of culpability. This has included the Commission’s efforts to limit the sentencing impact of drug quantity for offenders who perform relatively low-level drug trafficking functions. See U.S.S.G. App’x C, amend. 640 (effective Nov. 1, 2002). More recently, the Commission amended the Commentary to Section 3B1.2 to encourage the application of the mitigating role adjustment in drug trafficking offenses. See U.S.S.G. App’x C, amend. 794 (effective Nov. 1, 2015)). In the most recent amendment cycle, the Commission further expanded the circumstances in which a mitigating role adjustment is warranted to include when the defendant’s primary function in a drug trafficking offense was low-level trafficking activity or was motivated primarily by an intimate or familial relationship or by threats or fear. See U.S.S.G. App’x C, amend. 833 (effective Nov. 1, 2025)).

Similarly, Congress and the Commission have identified mitigating circumstances in firearms trafficking offenses and provided for a two-level reduction when the defendant was “motivated by an intimate or familial relationship or by threats or fear who was otherwise unlikely to commit such an offense, or . . . was unusually vulnerable due to physical or mental conditions.” U.S. Sent’g Comm’n, Amendments to the Sentencing Guidelines (Apr. 27, 2003), at 60 (citing Section 12004(a)(5) of the Bipartisan Safer Communities Act, Pub. L. No. 117-159); see U.S.S.G. App’x. C, amend. 819 (effective Nov. 1, 2025).

For the same reasons that an offender’s conduct may be mitigated by intimate or familial relationships, unique vulnerability, or by threats or fear in the context of drug and firearms offenses, so too may it be mitigated in the context of economic offenses. There is no principled reason why these factual circumstances should lead to a reduction in offense level calculations for the former types of offenses, but not the latter. Moreover, with the elimination of the “Coercion and Duress” policy statement and departure from the Guidelines in the 2025 Manual, see U.S.S.G. App’x C, amend. 836 (deleting Section 5K2.12 effective Nov. 1, 2025), the Guidelines currently do not account for the mitigating role of coercion or duress for economic offenses.

1. 2. Reduction for Post-Offense Behavior or Rehabilitation

The Commission has further proposed providing for a tiered reduction based on whether, prior to a defendant’s knowledge of any criminal investigation or prosecution, he or she voluntarily ceased the criminal activity, made efforts to return money or property to any victims, or reported the offense to appropriate authorities. The City Bar supports the inclusion of this reduction, which appropriately recognizes voluntary actions that seek to minimize harms caused by criminality and demonstrate genuine rehabilitative efforts.

The proposed amendment would add a new Subsection 23 to Section 2B1.1(b). With respect to the specific language proposed by the Commission, the City Bar believes that the following would most effectively and fairly convey the new reduction:

(Apply the greatest) If, prior to the defendant’s knowledge of the criminal investigation or prosecution for the offense, the defendant— (A) voluntarily ceased the criminal activity, returned the money or property to the victim, or made a good faith effort to the maximum extent possible to return the money or property to the victim, and reported the offense to appropriate governmental authorities, decrease by 6 levels; (B) voluntarily ceased the criminal activity and returned the money or property to the victim or made a good faith effort to the maximum extent possible to return the money or property to the victim, decrease by 4 levels; or (C) voluntarily ceased the criminal activity, decrease by 2 levels.

This amendment would recognize a series of tiered reductions tied to specific actions taken by defendants to interrupt criminality, mitigate harms, and/or notify law enforcement in a timely manner. Because the reductions are all predicated on conduct occurring prior to a defendant’s knowledge of any criminal investigation or prosecution, there is little risk that such efforts will be taken purely for purposes of obtaining favorable treatment during the criminal process.[18] Likewise, because the reduction promotes actions prior to the intervention of law enforcement, it incentivizes defendants to act voluntarily and may forestall or limit further harm to victims of offenses. For those reasons, the City Bar believes that the Commission should adopt the amendment and afford the maximum proposed reduction for each tier.

In connection with any amendment, however, the City Bar also urges the Commission to permit defendants to obtain reductions if they have “returned the money or property to the victim” or “made a good faith effort to the maximum extent possible to return the money or property to the victim.” Despite even the best efforts of the most repentant defendant, it may not always be possible to recover all money or property that was the subject of an offense prior to an investigation or prosecution. While that is appropriate for courts to consider in connection with restitution and other similar remedies, the City Bar does not believe that full restitution should be a precondition to acknowledging voluntary ameliorative conduct prior to any investigation or prosecution.

III. PROPOSED AMENDMENT 4: ADDING A POST-OFFENSE REHABILITATION ADJUSTMENT

In its December 12, 2025 announcement, the Commission proposed adding a new offense level reduction in Chapter Three of the Guidelines applicable if the defendant demonstrates positive post-offense behavior or rehabilitative efforts. The City Bar supports this proposed amendment and specifically Option 1, which would provide a non-exhaustive list of factors for the court to consider in determining whether a defendant qualifies for this adjustment.

Although the statutory framework governing federal sentencing, particularly 18 U.S.C. § 3553(a)(2)(D), explicitly identifies rehabilitation—through educational, vocational, medical, or other correctional treatment—as a core consideration for sentencing judges, the Guidelines currently contain few provisions related to rehabilitation.  In many cases, there is now a substantial delay between a defendant’s arrest or conviction and sentencing, during which time he may make significant advances in his rehabilitation.  “[A] court’s duty is always to sentence the defendant as he stands before the court on the day of sentencing,” United States v. Bryson, 229 F.3d 425, 426 (2d Cir. 2000), and evidence of a defendant’s conduct since arrest or conviction “constitutes a critical part of the ‘history and characteristics’ of a defendant that Congress intended sentencing courts to consider.” Pepper v. United States, 562 U.S. 476, 491–93 (2011) (holding that at resentencing a district court may consider evidence of post-sentence rehabilitation as support for a possible downward variance from the guidelines range).

Rehabilitation efforts may also demonstrate a defendant’s reduced risk of recidivism and increased likelihood of successful reintegration into society. Recognizing post-arrest or conviction, pre-sentence rehabilitation aligns with the statutory goal of promoting rehabilitation and protecting the public. See Gall v. United States, 552 U.S. 38, 59 (2007) (“Gall’s self-motivated rehabilitation . . . lends strong support to the conclusion that imprisonment was not necessary to deter Gall from engaging in future criminal conduct or to protect the public from his future criminal acts.” (citing 18 U.S.C. §§ 3553(a)(2)(B), (C)); Pepper, 562 U.S. at 492–93 (“Pepper’s post-sentencing conduct also sheds light on the likelihood that he will engage in future criminal conduct, a central factor that district courts must assess when imposing sentence . . . [and] may be taken as the most accurate indicator of his present purposes and tendencies.”).

The City Bar supports adoption of Option 1 of Proposed Amendment 4 that provides a tiered adjustment with a non-exhaustive list of examples. Option 1 provides clarity to both courts and defendants as to the specific types of relevant conduct.  By doing so, it provides strong incentives for defendants to begin taking such actions as early as possible, which would provide maximum benefits to themselves, their victims, and the general public.  For that reason, as well as because of the financial impediments for certain defendants identified by the Commission in issue 4 for comment, the proposed amendment should not include a “voluntariness” requirement.

Although Option 2 would also be a welcome addition to the Guidelines, its reliance on a broadly worded standard could invite additional litigation over its application, with the potential for regional disparities. The reduction might also become less available to defendants over time. As more defendants are incentivized by the new Guideline to undertake rehabilitative efforts, courts could decide that those steps no longer “go beyond the typical actions undertaken by defendants prior to sentencing.” Moreover, Option 1 is superior to Option 2 because the latter requires that defendants “demonstrate[] a sustained commitment to positive behavioral change evidenced by post-offense behavior or rehabilitative efforts that go beyond the typical actions undertaken by defendants prior to sentencing,” which may not always be a reasonably available possibility for all defendants. Due to pre-sentence incarceration, bail conditions, or other practical limitations, defendants realistically may be foreclosed from undertaking sustained efforts that are different from those typically available to detained individuals or permitted by conditions of release. The availability of a reduction predicated on positive rehabilitative efforts should not be foreclosed for defendants who are legally or practically prohibited from undertaking the efforts necessary to qualify for that reduction.

Finally, the Commission has sought comment on how the proposed Chapter Three adjustment for post-offense rehabilitation should interact with other Guidelines.  Although the application notes for Section 3E1.1 allow for the consideration of certain rehabilitation efforts, such as the voluntary payment of restitution, in the vast majority of cases the deduction for acceptance of responsibility is based upon a defendant’s truthful admission to the offense conduct by the entry of a guilty plea. See U.S.S.G. § 3E1.1, nn. 1(A), (2), & (3).  Therefore, the new adjustment will rarely, if ever, rely upon the same conduct as Section 3E1.1. Moreover, the two deductions serve different purposes.  See id. “Background” (noting that the timely acceptance of responsibility by a defendant serves “legitimate societal interests”).

However, to the extent that the proposed new Section 2B1.1(b)(23) potentially overlaps with the adjustment for post-offense rehabilitation, the two Guidelines should be applied cumulatively, unless the same conduct is the sole basis for applying both deductions.  In those circumstances, only the Guideline providing the greater reduction should be applied.

IV. CONCLUSION

The City Bar supports the proposed inflationary adjustment and automatic adjustments going forward; supports the proposed restructuring of the loss table if the Commission does not undertake more substantial reform of the economic offenses Guideline; opposes an offense level enhancement for “non-economic” harms in economic offenses; supports amending the definition of “sophisticated means,” with additional revisions; supports offense level reductions for economic offenses committed in certain relationship circumstances or when the defendant was particularly vulnerable or subject to threats or fear; supports offense level reductions for post-offense, pre-arrest restorative efforts; and supports offense level reductions for post-arrest rehabilitative efforts.

We thank the Commission for the opportunity to comment on these proposals.

Respectfully,

Federal Courts Committee
Jonathan B. New, Chair

Drafting Subcommittee
Neil P. Kelly, Co-Chair
Jarrod L. Schaeffer, Co-Chair
Jaime S. Reiner