27 Nov 23

Challenging Sentencing Enhancements for Mass Marketing

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Last Updated on: 15th December 2023, 01:20 pm

Challenging Sentencing Enhancements for Mass Marketing

Mass marketing fraud is no joke–it affects millions of people and costs billions of dollars every year. But the penalties can be pretty harsh, with sentencing enhancements that add years in prison for those convicted. Is there any way to challenge these enhancements? Let’s take a look.

First off, what exactly is mass marketing fraud? Basically, it’s any scheme to defraud a large number of people through things like telemarketing, email spam, or fake websites. The criminals behind it use technology and psychology to try to trick as many people as possible.

Common techniques include phishing scams, lottery and sweepstakes scams, work-from-home scams, and more. They might promise people prizes or jobs, but really they just want to steal money or personal information.

The Costs of Mass Marketing Fraud

According to the FBI, these kinds of scams cost victims more than $10 billion ever year in the U.S. alone. And that’s just the financial costs–there’s also the emotional toll it takes. Many people lose their life savings or go deep into debt. It can be absolutely devastating.

So the government takes these crimes very seriously. There are a number of laws used to prosecute mass marketing fraud, including mail fraud, wire fraud, and identity theft statutes.

And here’s the kicker: under the federal sentencing guidelines, there are major penalty enhancements for mass marketing. We’re talking adding anywhere from 2-7 years to a sentence under Section 2B1.1(b).

The Purpose of Sentencing Enhancements

The idea behind these sentencing enhancements is pretty simple – to deter people from committing fraud, and to account for the widespread harm it causes. The logic is basically:

  • Mass marketing scams hurt a ton of victims
  • So we need harsh penalties to deter criminals
  • And the more victims, the harsher the penalty should be

For example, there’s a 2-level enhancement if the crime involved 10 or more victims or caused losses over $250k. And it keeps going up from there – 4 levels for 50+ victims, 6 levels for 250+ victims.

Given that the federal sentencing guidelines equate 1 level to around 6 extra months in prison, you can see how these add up.


Challenging the Enhancements in Court

So that brings us to the big question – if you’re facing charges for mass marketing fraud, are there any ways to challenge these sentencing enhancements in court?

Well, there’s no magic bullet, but skilled criminal defense attorneys have had some success. Here are a few of the main arguments they use:

The victim count is inaccurate

First, you may be able to argue that the prosecutors have inflated the number of victims. After all, they have the burden of proving this enhancement applies. If their records are sloppy, you may get lucky.

Your lawyer can scrutinize the documentation, look for duplicates or errors, and try to knock the count down below the threshold for certain enhancements. This is probably the easiest and most straightforward approach.

Individual victims weren’t actually harmed

Another angle is to argue that the sentencing rules require victims to have actual loss. You would need to dig into the details of each victim and try to prove:

  • They didn’t actually lose any money
  • Or their losses were so small it doesn’t count

Again this takes scrutinizing records, gathering testimony, etc. But it can sometimes work to get particular victims excluded from the counts.

Culpability should be limited

Finally, you may be able to convince the court that your role in the fraud was minor enough that you shouldn’t face the full enhancements. For example, if you just collected checks or forwarded emails, you can argue you weren’t running the whole show and shouldn’t be punished as harshly.

The goal here would be to get the judge to depart downward from the guidelines. You’d emphasize factors like:

  • Limited decision-making authority
  • Just following instructions from superiors
  • Stopped participating once you realized it was fraud

Of course, the counterargument is that everyone in the scheme enables the mass victimization. So you need an attorney who can craft a convincing narrative about why you were less culpable.