Federal embezzlement sentencing works in the same manner as in most non-capital, federal cases. The sentencing guidelines are used to recommend a sentence to the judge. However, the sentence is ultimately governed by 18 USC § 3553 (a).
In the federal context embezzlement cases are treated very similarly to fraud cases and it is, therefore, important those charged consult with a DC federal embezzlement lawyer as soon as possible to begin building a defense.
Embezzlement Sentencing Factors
Specific offense characteristics are particular factors that might be present in a given offense. If they are present in the offense, the rules and the guidelines recommend that the offense level be adjusted upwards or downwards. In the context of § 2B1.1, specific offense characteristics often add to the defendant’s offense level.
With embezzlement cases and § 2B1.1, there are a total of about 19 specific offense characteristics. However, not all of them are relevant to embezzlement. The characteristics relevant to embezzlement include:
- The loss amount
- Whether the defendant is in the business of stolen property
- Whether the defendant abused the public healthcare system
- Amount of harm
- Used sophisticated means to carry out the offense
- Or was involved in the violation of certain securities laws
There are additional specific offense characteristics more closely tailored to other offenses covered under § 2B1.1.
Common Factors Involved in Embezzlement Cases
One of the common specific offense characteristics relating to embezzlement includes sophisticated means. Sophisticated means is often applicable in embezzlement cases because to be able to steal money or resources from one’s employer, an employee must implement sophisticated means to execute the plan or conceal their conduct.
This could include some elaborate check cashing scheme, falsifying expense reports, or moving money between different accounts. If more of these kinds of facts are relevant to one’s case, the more likely it is they will face enhancement for sophisticated means.
Another example includes substantial harm to the victim. If the victim is a small business and the theft was quite substantial, it could hurt the economic viability of the business, which could also lead to a higher offense level for the defendant.
Differences Between Federal and State Level Sentencing
Federal sentencing is much more complex than state sentencing because you have to apply the guidelines and evaluate the 18 USC § 3553 (a) factors in each case. To appropriately apply the guidelines, you must research case law for prior decisions on how these rules were applied to a particular case. Because the judge is no longer mandated to sentence someone strictly pursuant to the guidelines; the door is open for both factual and legal advocacy.
Importance of An Attorney
It is important to engage the services of an experienced federal sentencing attorney in all federal criminal matters because federal sentencing hearings are a real opportunity to advocate for a lesser or mitigated sentence. For a situation where specific offense characteristics might apply, you need someone who can review the facts of the case and relevant case law to determine whether it is appropriate to apply these enhancements. If you can successfully demonstrate that they do not apply, the sentence recommended to the judge pursuant to the guidelines may be less severe than if you did not confront those offense characteristics and challenge the government on its assertions.
