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Nasir, Adair, and the Return of Textualism to Federal Sentencing

December 21, 2022

Reprinted with permission from the Pennsylvania Association of Criminal Defense Lawyer’s “For the Defense” Magazine, Vol. 7, Issue 4. Further duplication without permission is prohibited. All rights reserved.

This past June, the Third Circuit issued its decision in United States v. Adair which built upon the Court’s previous decision in United States v. Nasir and has significant consequences for federal sentencing proceedings. In Adair, the Third Circuit made two important pronouncements regarding the sentencing enhancement under U.S.S.G. § 3B1.1(a). First, the Court refined the definitions of organizers and leaders of criminal activity. Second, the Court discussed the nature of the government’s obligation to move for a reduction in sentence for acceptance of responsibility under U.S.S.G. § 3E1.1 (Spoiler Alert: There is no such obligation.). Together, Adair and Nasir signal the Third Circuit’s renewed emphasis on the plain language of the Sentencing Guidelines, and growing disregard of the Sentencing Commission’s explanatory comments. Following Nasir and Adair, cases that relied upon the Guidelines’ commentary are no longer precedential. Indeed, as recently as November 30, 2022, the Third Circuit applied Nasir and Adair to eliminate the concept of “intended loss” under U.S.S.G. § 2B.1 – a huge win for defense practitioners. 3 Given the rate at which things seem to be changing, both courts and counsel would be wise to consider how these cases will influence sentencing decisions moving forward.

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