See Jerome v. United States , 318 U.S. 101, 104, 63 S.Ct. 483, 87 L.Ed. 640 (1943). Although not a federal statute, the Guidelines are given the force of law, United States v. Kirvan , 86 F.3d 309, 311 (2d Cir. 1996), and arguably have an even greater need for uniform application, United States v. Savin , 349 F.3d 27, 34 (2d Cir. 2003). The Jerome presumption thus applies equally to the Guidelines.

However, it noted that, in footnote 2 of Collins, this court had referenced a definition of "investment company" that defined the term as "`a company substantially engaged in the business of investing in securities of other companies.'" Collins, 361 F.3d at 346 n. 2 (citing United States v. Savin, 349 F.3d 27, 37 (2d Cir. 2003)). The district court then stated that, because it viewed Tradewinds as essentially an organization substantially engaged in the business of investing in securities of other companies, Tradewinds should be characterized as a financial institution for purposes of the sentencing enhancement. Mrs. Harris spoke at the sentencing about her husband's remorse.

In United States v. Savin, which is cited by Mr. Laboy, the Second Circuit applied the Jerome presumption to the construction of terms in the Guidelines. 349 F.3d 27, 34 (2d Cir. 2003). Nonetheless, the Savin court also conducted a textual analysis of a term in the Guidelines applying "traditional principles of statutory construction."

This goal of uniformity is the reason many of our sister circuits have applied the Jerome presumption to the construction of the Guidelines. SeeUnited States v. Savin , 349 F.3d 27, 34 (2d Cir. 2003) (collecting cases). Under this presumption, "we must generally assume, in the absence of a plain indication to the contrary, that Congress when it enacts a statute is not making the application of the federal act dependent on state law."

And five Courts of Appeal, this one included, entertained vagueness challenges to the mandatory Guidelines. See United States v. Savin, 349 F.3d 27, 38–39 (2d Cir. 2003) ; United States v. Rutherford, 175 F.3d 899, 906 (11th Cir. 1999) ; United States v. Johnson, 130 F.3d 1352, 1354 (9th Cir. 1997) ; United States v. Jones, 979 F.2d 317, 318–19 (3d Cir. 1992) ; United States v. Moore, No. 95-5586, 107 F.3d 868, 1997 WL 71707, at *1 (4th Cir. Feb. 20, 1997) (per curiam) (unpublished). But see United States v. Brierton, 165 F.3d 1133, 1139 (7th Cir. 1999) (concluding the mandatory Guidelines were not subject to vagueness challenges), abrogation recognized by Cross v. United States, 892 F.3d 288, 296 (7th Cir. 2018) ; United States v. Smith, 73 F.3d 1414, 1417–18 (6th Cir. 1996) ; United States v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990) ; United States v. Wivell, 893 F.2d 156, 160 (8th Cir. 1990).

Our precedents focus on whether the financial institution suffers some type of loss or liability in providing the requisite funds. Indeed, no case in this Circuit has applied this enhancement where a financial institution did not suffer some type of loss or liability. See, e.g., United States v. Goldstein, 442 F.3d 777, 779–81, 785–86 (2d Cir. 2006) (applying the enhancement for stealing banking and credit card information); United States v. Khedr, 343 F.3d 96, 98–99, 100–02 (2d Cir. 2003) (fraudulently obtaining car loans); United States v. Savin, 349 F.3d 27, 30–39 (2d Cir. 2003) (stealing money from a foreign investment company); United States v. Millar, 79 F.3d 338, 340–42, 345–46 (2d Cir. 1996) (bank robbery). Prior to 2001, U.S.S.G. § 2F1.1(b)(8)(B) provided a four-level enhancement if the offense "affected a financial institution and the defendant derived more than $1,000,000 in gross receipts from the offense."

Peugh, 133 S.Ct. at 2085 (Sotomayor, J., plurality opinion). The opinions in United States v. Maurer, 639 F.3d 72, 77 (3d Cir.2011) and United States v. Savin, 349 F.3d 27, 38–39 (2d Cir.2003), which were decided before Irizarry, fail for the same reason.--------

It is an open question in our Circuit whether vagueness challenges can even be raised with respect to the Sentencing Guidelines. See, e.g., United States v. Savin, 349 F.3d 27, 38 (2d Cir. 2003). We need not reach this question, because even assuming the Guidelines were susceptible to vagueness challenges, Nastri's argument is without merit.

At least three courts of appeals have held or assumed that the Guidelines can be challenged on vagueness grounds. See United States v. Gallagher, 99 F.3d 329, 334 (9th Cir.1996) (“[V]ague sentencing provisions may pose constitutional questions if they do not state with sufficient clarity the consequences of violating a given criminal statute.”); see also United States v. Maurer, 639 F.3d 72 (3d Cir.2011) (holding guideline was not unconstitutionally vague on the merits); United States v. Savin, 349 F.3d 27, 38 (2d Cir.2003) (same). Three appellate courts have disagreed with this result, holding that the Guidelines may not be challenged for vagueness.

Accordingly, that interpretation violates the "cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant." TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) (internal quotations omitted); United States v. Savin, 349 F.3d 27, 35-36 (2d Cir. 2003) (holding that traditional principles of statutory construction apply to the Sentencing Guidelines and its interpretive or explanatory commentary). Interpreted as the defendant urges, section 4A1.2(c) ensures that, if driving while impaired offenses are similar to any offenses listed in section 4A1.2(c)(1), the seriousness of the conduct in each individual case will determine whether the sentence actually counts.