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01-2801 U.S. v. Hartz

By: dmc-admin//July 22, 2002//

01-2801 U.S. v. Hartz

By: dmc-admin//July 22, 2002//

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“Normally, a district court should apply the guideline in effect at the time of the sentencing. United States v. Fones, 51 F.3d 663, 669 (7th Cir. 1995). The guideline in effect at the time of Hartz’s sentencing was § 2F1.1(b)(8)(B). We may, under certain circumstances, consider later amendments to the guidelines but we may apply later amendments only to the extent that they are clarifying rather than substantive changes to the guideline. Id.; USSG § 1B1.11(b)(2). We begin then by comparing the most recent version of the provision, currently listed at USSG § 2B1.1(b)(12)(A) to the guideline in effect at the time Hartz was sentenced: If the defendant derived more than $1,000,000 in gross receipts from one or more financial institutions as a result of the offense, increase by 2 levels. See USSG § 2B1.1(b)(12)(A). At the time Hartz was sentenced, the guideline provided: If the offense . . . affected a financial institution and the defendant derived more than $1,000,000 in gross receipts from the offense, increase by 4 levels. If the resulting offense level is less than level 24, increase to level 24. See USSG § 2F1.1(b)(8)(B).

“The Sentencing Commission offered the following explanation for the amendment: The enhancement also was modified to address issues about what it means to ‘affect’ a financial institution and how to apply the enhancement to a case in which there are more than one financial institution[s] involved. Accordingly, the revised provision focuses on whether the defendant derived more than $1,000,000 in gross receipts from one or more financial institutions as a result of the offense. Supplement to Appendix C, Amendment 617, at 184. The Sentencing Commission thus did not characterize the amendment as a clarification but rather as a modification and revision. Moreover, the amendment changed the plain language of the guideline.

The guideline in effect at the time of the sentencing unambiguously required only that the crime affect a financial institution and that the defendant derive a certain amount from the offense. In the newer version, the gross receipts are to be derived from the financial institution. There is nothing ambiguous about the version the district court applied and even Hartz agrees that a literal reading of the guideline favors the district court’s interpretation… The amendment thus substantively changes the requirements for applying the guideline by focusing on the amount derived from the financial institutions rather than the amount derived from the offense as a whole. Because the amendment substantively changes an unambiguous provision and because the Sentencing Commission did not characterize the amendment as a clarification, we agree that the amendment should not be applied in sentencing Hartz.”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Lindberg, J., Rovner, J.

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