In United States v. Banks, --- F.4th ---, No. 19-3812 (3d Cir. 2022), the Court vacated the defendant's fraud sentence, concluding "that the loss enhancement in the Guideline’s application notes impermissibly expands the word 'loss' to include both intended loss and actual loss."
Our review of common dictionary definitions of “loss” point to an ordinary meaning of “actual loss.” None of these definitions suggest an ordinary understanding that “loss” means “intended loss.” To be sure, in context, “loss” could mean pecuniary or non-pecuniary loss and could mean actual or intended loss. We need not decide, however, whether one clear meaning of the word “loss” emerges broadly, covering every application of the word. Rather, we must decide whether, in the context of a sentence enhancement for basic economic offenses, the ordinary meaning of the word “loss” is the loss the victim actually suffered. We conclude it is.
Because the commentary expands the definition of “loss” by explaining that generally “loss is the greater of actual loss or intended loss,” we accord the commentary no weight. Banks is thus entitled to be resentenced without the 12-point intended-loss enhancement in § 2B1.1.
