Judicial Abuse of “Process”: Examining the Applicability of Section 2F1.1(b)(4)(B) of the Federal Sentencing Guidelines to Bankruptcy Fraud

The proliferation of bankruptcy filings over the past decade has coincided with a comparable increase in the incidence of bankruptcy fraud. In response to this growing problem, the United States Department of Justice has placed greater emphasis on federal prosecution of bankruptcy fraud. As a result, federal judges are increasingly applying the Federal Sentencing Guidelines (“Guidelines”) to bankruptcy fraud and have begun to implement uniform standards for sentencing defendants convicted of this crime. Congress enacted the Guidelines pursuant to the Sentencing Reform Act of 1984. In instituting the Guidelines, Congress sought honesty, reasonable uniformity, and proportionality in sentencing. Congress attempted to achieve honest sentencing by eliminating parole. In order to realize uniformity and proportionality, Congress created the United States Sentencing Commission (“Sentencing Commission”) to devise a sentencing scheme that balances the tension between uniform and proportional sentencing.