White-Collar Sentencing Under the Amended Guidelines: Fewer Steps, Same Dance

By: Robert Ward

For years, the U.S. Sentencing Commission’s Guidelines Manual has guided courts through a three-step process to determine the sentence to be imposed. At a high level, that process looked like this: First, the court would calculate the guideline range based on relevant offense conduct and related factors, along with the defendant’s criminal history.  Second, the court would consider the Sentencing Commission’s policy statements or commentary relating to “departures” from the guidelines as well as the defendant’s specific personal characteristics. Third, and finally, the court would consider the statutory factors set out in 18 U.S.C. § 3553(a) in determining the sentence to be imposed (whether within the guideline range or varying in either direction).

As of November 1, 2025, this three-step process is no more. Instead, as the result of an amendment aimed at “simplifying” the guidelines, only steps one and three remain. That is, courts will now (1) calculate the applicable guideline range as the “starting point and initial benchmark” for sentencing and then (2) determine an appropriate sentence upon consideration of all the factors set forth in section 3553(a).[1] To implement this simplification, the amendment eliminates nearly all departures and related guidance from the Guidelines Manual.[2]

While the amendment itself runs nearly 600 pages, what looks like a dramatic restructuring of the Guidelines Manual is unlikely to have a correspondingly dramatic effect on sentencing practices, particularly in white-collar cases. Consider the economic crime guidelines, U.S.S.G. § 2B1.1. Judges, practitioners, and commentators have long recognized that, at step one, the guidelines place too much weight on quantifiable factors like loss and too little on culpability-related factors.[3] Unlike in some areas, where departures provided helpful, targeted guidance, the departure considerations under the economic crime guidelines did little to address the guidelines’ flaws. Other than a narrow departure for certain victims of emergencies or disasters, the commentary simply observed that “[t]here may be cases in which the offense level determined under this guideline substantially overstates the seriousness of the offense. In such cases, a downward departure may be warranted.”[4]

This guidance did little to mitigate the undue severity of loss-driven sentencing under the guidelines. “Substantial overstatement” departures have played a minor role in sentencing under the economic crime guidelines in recent years. In 2024, for example, non-government-initiated downward variances accounted for 27.5% of sentences under § 2B1.1, while non-government-initiated downward departures accounted for only 1.7%.[5] Eliminating step two, and with it the substantial overstatement departure, is therefore unlikely to have much of an effect on sentences under § 2B1.1.

Instead, as a practical matter, white-collar sentencing in federal court will look much like it has for the past decade. While no longer labeled a departure, § 5K1.1 will continue to allow a court, on the government’s motion, to impose a sentence that is below the guideline range—and sometimes below the statutory minimum—where a defendant has provided substantial assistance to the authorities.[6]  Defense attorneys will likewise continue to seek downward variances, which may be justified by a broader set of considerations than departures, including the excessive weight placed on loss at step one. In cases subject to the amended guidelines, the past is likely to be a good indicator of the future: most sentences will fall below the guidelines range—either because the defendant provided substantial assistance or because the court varied downward. And the small number of sentences that would previously have been departures will fit easily into the variance category.

Commentators have described the simplification amendment has been described as the Commission’s “most significant” structural amendment since Booker was decided.[7] That may be true. At the same time, however, the amendment represents yet another missed opportunity to address step one’s fundamental flaws: from its overreliance on quantifiable factors like loss to the proliferation of sentence-enhancing specific offense characteristics. Until the Commission addresses those flaws, no amount of simplification will allow the guidelines to achieve their intended goals of proportionality and uniformity in federal sentencing.

[1]  U.S. Sentencing Comm’n, Amendments to the Sentencing Guidelines at 159   (citing Gall v. United States, 552 U.S. 38, 49–51 (2007)), https://www.ussc.gov/sites/default/files/pdf/amendment-process/official-text-amendments/202505_Amendments.pdf.

[2] U.S. Sentencing Comm’n, Amendments in Brief 2025 – Simplification., https://www.ussc.gov/sites/default/files/pdf/amendment-process/amendments-in-brief/AIB_2025-simplification.pdf.

[3] See e.g., United States v. Corsey, 723 F.3d 366, 378 (2d Cir. 2013) (Underhill, J., concurring) (calling the loss guideline fundamentally flawed); United States v. Shapiro, No. 14-cr-399 (ENV), 2022 WL 2758129, at *1 (E.D.N.Y. July 14, 2022) (describing guidelines as pegged to “unhinged economic loss figures”); Barry Boss & Kara Kapp, How the Economic Loss Guideline Lost its Way, and How to Save It, 18 Ohio St. J. Crim. L. 605, 621 (2021) (observing that loss guidelines can result in similarly situated offenders receiving wildly divergent sentences depending on the particular sentencing court’s approach to departures and variances).

[4] See U.S.S.G. § 2B1.1, cmt. n.21(C) (2024).

[5] Data collected from the Commission’s Interactive Data Analyzer using the following filters: Fiscal Year: 2015-2024; Guideline: §2B1.1 Circuit: All; State: All; District: All; Race: All; Gender: All; Age: All; Citizenship: All; Education: All; Crime Type: All Guideline: §2B1.1; Criminal History: All; Career Offender Status: All.

[6] U.S.S.G. § 5K1.1 (2025); see also 18 U.S.C. § 3553(e); 28 U.S.C. § 994(n).

[7] Jonathan J. Wroblewski, Did the Sentencing Commission Just Make the Guidelines Even Worse? Sentencing Matters Substack, https://sentencing.substack.com/p/did-the-sentencing-commission-just (Apr. 14, 2025).