Federal Judiciary

United States v. Amico, 573 F.3d 150 (2d Cir. 2009)

Amico and the Government disputed the question of whether a 2001 amendment to the Guidelines applies retroactively.  Specifically, Section 2F1.1(b)(7)B) of the 1998 Guidelines states, in relevant part, that if the offense "affected a financial instuitution and the defendnat derived more than $1,000,000 in gross receipts from the offense, increase by 4 levels."  In 2002, this section of the Guidelines was amended to state, in relevant part, that if "the defendant derived more than $1,000,000 in gross receipts from one of more financial institutions as a result of the offense, increase by 2 levels."  The Second Circuit joined the Seventh Circuit in finding that the amendment substantively changes an unambiguous provision of the Guidelines, and therefore does not apply retroactively.  (If, by contrast, the amendment had been found to be a clarification, it would have applied retroactively.)