Your Co-Conspirator's Conduct Can Raise Your Federal Sentence: The Eleventh Circuit's October 23 Ruling

You did your part of the scheme and nothing more. You never touched the other accounts or met half the people named in the indictment. On October 23, 2026, the Eleventh Circuit made clear that none of that, standing alone, keeps their conduct out of your guideline calculation.

In a published opinion in No. 24-11532, an appeal from the Middle District of Florida, the court held, as a matter of first impression, that the drug premises enhancement, written in terms of what "the defendant" did, can be applied based entirely on what a co-conspirator did. The case arose from a drug conspiracy. The reasoning rests on a bank fraud precedent, and it will travel straight into Florida's healthcare fraud, wire fraud and telemedicine conspiracy cases.

One house, one lane. The Eleventh Circuit held that the other houses can still count against you.

Key Takeaways

• The Eleventh Circuit held on October 23, 2026 that a guideline enhancement can rest entirely on a co-conspirator's reasonably foreseeable conduct, not your own.
• Under U.S.S.G. § 1B1.3(a)(1)(B), others' acts count against you if within the scope, in furtherance, and reasonably foreseeable from the jointly undertaken activity.
• Conspiracy counts under 21 U.S.C. § 846 and 18 U.S.C. § 1349 carry the same maximum penalty as the underlying drug or fraud offense.
• Failing to object to the specific offense-conduct paragraphs in a PSR admits those facts; the defendant here lost his drug-weight challenge that way.
• For Middle and Southern District of Florida conspiracy defendants, the scope of the agreement is now the main sentencing battleground, starting before the plea.

What the Eleventh Circuit Decided

The defendant pleaded guilty, without a plea agreement, to a drug distribution conspiracy and one substantive possession count. He sold from one house. His co-conspirators sold from several others, and agents seized drugs at those locations, some of it after his arrest. The presentence report held him responsible for all of it and added a two-level enhancement for maintaining premises for drug distribution. The district court found a range of 262 to 327 months and imposed 235.

Agents seized drugs at the co-conspirators' locations, some of it after his arrest. The presentence report held him responsible for all of it.

The panel affirmed on both issues. On drug weight, it held that the defendant was bound by the report's offense-conduct paragraphs because he never objected to them as facts. He objected to the base offense level, a legal conclusion, but conceded at the hearing that he did not dispute the narrative tying him to all three houses. Under circuit law, a failure to object to allegations of fact in a PSR admits those facts for sentencing.

The court also rejected two arguments clients raise all the time. Not being physically present at the other locations does not matter; the question is whether the activity there was in furtherance of the joint undertaking and reasonably foreseeable. And an arrest is not a withdrawal. To withdraw, a defendant must take affirmative steps inconsistent with the conspiracy and communicate them to co-conspirators or disclose the scheme to law enforcement. Being unavailable is not enough.

The First-Impression Holding: The Drug Premises Enhancement

The first-impression holding came on the premises enhancement. The guideline applies "if the defendant maintained a premises" for drug distribution. The defense argued that language requires the defendant's own conduct. The majority disagreed. Relying on a 2001 Eleventh Circuit bank fraud decision, 252 F.3d 1279, which applied the enhancement for using a minor based on co-conspirators' recruiting, the court restated the general rule that enhancements reach a co-conspirator's foreseeable conduct unless the guideline or its commentary limits it, and found no such limit in the premises guideline.

Enhancements reach a co-conspirator's foreseeable conduct unless the guideline or its commentary limits it. The court found no such limit in the premises guideline.

One judge dissented in part: the premises commentary looks to the defendant's own possessory interest and control, and because nearly every drug conspiracy uses a stash house, the majority's rule makes the enhancement close to automatic.

Why Fraud Defendants Should Read a Drug Opinion

Relevant conduct under U.S.S.G. § 1B1.3 is the engine of every federal fraud sentencing. Loss amount, number of victims, sophisticated means, abuse of trust and role adjustments are all driven by it. The October 23 opinion confirms the general rule: unless a specific guideline carves out an exception, the government can load a co-conspirator's foreseeable acts onto your offense level.

That matters in the cases we see most in South Florida healthcare fraud defense. A telemedicine conspiracy charged under 18 U.S.C. § 1349 usually involves marketers, a platform, signing physicians, DME suppliers and labs. A marketer who handled one call center will face a PSR that attributes the full billing of the scheme and every enhancement that came with it. Expect prosecutors in the Southern and Middle Districts of Florida to cite this opinion in fraud sentencings.

There are limits, and the opinion restates them. Mere awareness of a larger scheme does not place a co-conspirator's conduct within the scope of your agreement (880 F.3d 1228, 1246). A guilty plea to a conspiracy does not automatically make you responsible for the whole conspiracy (323 F.3d 1314, 1320). The scope of your jointly undertaken activity is narrower than the conspiracy, and the court must make particularized findings about it.

Exposure and What the Government Must Prove

A drug conspiracy under 21 U.S.C. § 846 carries the penalties of the underlying offense, including mandatory minimums keyed to quantity. A fraud conspiracy under 18 U.S.C. § 1349 carries the maximum of the object offense: ten years for healthcare fraud under 18 U.S.C. § 1347, twenty for wire fraud under 18 U.S.C. § 1343. In practice the guidelines, not the statutory maximum, decide the sentence, and relevant conduct decides the sentencing guidelines calculation. In a fraud case it is also where every loss amount dispute is won or lost.

At sentencing the government bears the burden by a preponderance on any disputed fact. For co-conspirator conduct, it must establish three things: the conduct was within the scope of what you agreed to undertake, it was in furtherance of that activity, and it was reasonably foreseeable to you. A specific, timely objection forces that proof. Silence concedes it.

Critical Mistakes People Make Early

The first mistake is the factual proffer at the plea. The defendant in this case stipulated to being part of the conspiracy and tried to reserve relevant conduct for later, but the PSR's narrative filled the gap and he did not contest it. Every sentence of a factual basis is a sentencing fact. Negotiate it line by line.

Every sentence of a factual basis is a sentencing fact. Negotiate it line by line.

The second is a proffer session attorney who lets the client describe the whole enterprise. A client who explains what everyone else was doing often proves foreseeability for the government. Cooperation can be the right decision, but it has to be structured with that cost in view.

The third is objecting to conclusions instead of facts. Our recent post on PSR objections explained that a specific objection to a specific paragraph shifts the burden to the government. This opinion is the other side of that coin.

The fourth is waiting. Too many people under federal investigation lawyer up only after indictment, when their alleged role is already written into agent reports.

A Strategic Defense Approach

Federal conspiracy defense on relevant conduct begins at the investigation stage, long before a federal sentencing attorney sees a PSR. Effective federal investigation defense in a multi-defendant federal case means defining your client's lane early. When a client receives a letter from the U.S. Attorney's Office or a federal grand jury subpoena, the early work is documenting the boundaries of what that client did: which accounts, which locations, which time period, which people. Those records become the factual basis for limiting scope later.

At the plea stage, the agreement and factual proffer should define the client's role in concrete terms. At the PSR stage, a PSR objections attorney should go paragraph by paragraph, contesting each attribution of co-conspirator conduct under Federal Rule of Criminal Procedure 32 and demanding particularized findings on scope. Where the record supports it, withdrawal evidence matters too; affirmative acts of disengagement, communicated to others, can cut off later conduct.

Finally, preserve the dissent's argument. Where a guideline's commentary focuses on the defendant's personal relationship to the conduct, argue that the commentary limits the default rule. The issue is now squarely framed for further review, and a 3553(a) variance under 18 U.S.C. § 3553(a) remains available where an enhancement overstates a minor participant's culpability.

Why Timing Matters Right Now

Published Eleventh Circuit authority binds every federal court in Florida the day it issues. Any defendant with a PSR due, a factual proffer under negotiation or a co-conspirator cooperating against them should assume the government will cite this opinion. Objection deadlines under Rule 32 run fourteen days from receipt of the report.

Common Questions

Facing a Federal Conspiracy Charge in Florida?

If you have received a target letter, a grand jury subpoena, or a presentence report in a conspiracy case, the scope of what you agreed to is the question that drives your sentence. Aaron M. Cohen is a federal criminal defense attorney and white collar defense attorney who represents individuals in conspiracy to commit wire fraud, healthcare fraud and federal drug conspiracy cases. Southern District of Florida federal defense and Middle District of Florida work are the core of the practice, with matters nationwide, and the firm acts as federal target letter attorney counsel before charges are filed. Request a confidential consultation to discuss your situation.

Aaron M. Cohen defends individuals in federal conspiracy cases in the Southern and Middle Districts of Florida and nationwide.

If you or your loved ones have been arrested or contacted by federal agents, call Aaron M. Cohen, 24 hours a day to get help.

About the author. Aaron M. Cohen is the founder and principal attorney of AMC Defense Law, a criminal defense firm in Boca Raton, Florida, with more than 30 years of experience in state and federal courts. He is admitted to practice in Florida, New York, New Jersey, and the District of Columbia, and before the United States District Courts for the Southern and Middle Districts of Florida, the Southern, Eastern, and Western Districts of New York, the District of New Jersey, and the Northern District of Texas. He appears pro hac vice in other federal districts nationwide. The firm represents clients in federal investigations and prosecutions involving healthcare fraud, Anti-Kickback Statute matters, DME and telemedicine fraud, peptide and compounded-drug enforcement, controlled-substance and drug conspiracy cases, financial crimes, and complex federal litigation, in Florida and nationwide.

This article is provided for general informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship. Every case turns on its own facts; consult a qualified attorney about your specific situation. Past results do not guarantee a similar outcome.