On December 26, 2023, the U.S. Sentencing Commission (“USSC”) proposed several amendments to its Guidelines Manual (the “Guidelines”). Two of these proposed amendments have the potential to especially impact sentencing decisions in white collar criminal cases. In particular, one amendment changes the rule for calculating loss, and another provides new options regarding the consideration of acquitted conduct.Rule for Calculating LossThe USSC’s proposed revision to the Guidelines’ rules for calculating loss arises out of an effort to continually evaluate and address evolving case law concerning the validity and enforceability of the Guidelines. 88 Fed. Reg. 60536 (Sept. 1, 2023). Specifically, the proposed amendment addresses the Third Circuit’s 2022 decision in United States v. Banks, which held that the Guidelines’ Application Note 3(A) of the Commentary to §2B1.1 (“the Commentary”) is not entitled to interpretive deference because the term “loss” in §2B1.1 is not ambiguous. 55 F.4th 246 (3d Cir. 2022).As most white collar practitioners know, Section 2B1.1 contains the “loss table” which sets forth the stair-stepped increases to a defendant’s offense level based on the monetary loss resulting from an offense. The Commentary provided a general, interpretive rule to guide courts in applying the provision: “loss is the greater of actual loss or intended loss.” United States Sentencing Guidelines § 2B1.1, comment. (n.3.(A)). The Commentary also defined the terms “actual loss” and “intended loss.”In Stinson v. United States, the U.S. Supreme Court held that commentary which “interprets or explains a guideline is authoritative unless it violates the Constitution