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Buckley Commentary & Analysis

"Foreign defendants beware of 'outside the United States' sentencing enhancements" by Paige Ammons

Buckley Commentary & Analysis

Paige Ammons

Foreign citizens and companies criminally prosecuted in the United States may face an unwelcome surprise if convicted ─ a higher sentence due solely to the fact that they operated in a foreign country. A little known enhancement in the Federal Sentencing Guidelines governing fraud offenses appears to do just that in situations where “a substantial part of the fraudulent scheme was committed from outside the United States.”

Read literally, even a relatively minor offense — like making a single false statement — could result in a significant sentencing enhancement simply because the underlying conduct took place outside of the United States. The guideline is vague, however, which leaves open a potential argument for foreign defendants to explore at sentencing.

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