Eleventh Circuit Limits Loss Amount Attribution in Federal Fraud Sentencing: What United States v. Lopez Means for Florida Defendants

If you are holding a presentence report that assigns you the entire loss figure for a scheme you touched one corner of, the Eleventh Circuit just handed you something worth using. On August 7, 2026, the court vacated a Southern District of Florida healthcare fraud sentence because the district court attributed roughly $3.2 million in intended Medicare loss to a defendant whose own conduct generated $4,000 in fraudulent claims.

The district court charged a defendant with $3.2 million in intended Medicare loss for conduct that generated $4,000 in claims. The Eleventh Circuit vacated the sentence and sent it back.

Key Takeaways

• The Eleventh Circuit vacated a Southern District of Florida sentence in United States v. Lopez, No. 25-11870 (11th Cir. Aug. 7, 2026), holding the government failed to prove the defendant agreed to join the conduct that generated the scheme's losses.
• Under U.S.S.G. § 1B1.3(a)(1)(B), scope of the agreement comes first and foreseeability comes last. The three requirements are conjunctive, not alternatives.
• A defendant's mere awareness that he was part of a larger scheme is not enough to put another person's criminal activity inside the scope of his agreement.
• The math is the whole case: $3,248,540 in loss is a 16-level enhancement under § 2B1.1(b)(1), while $4,000 carries no loss enhancement at all.
• The panel applied buyer-seller principles, so someone who sold information in discrete transactions is not automatically a joint venturer in whatever the buyer billed next.

What Actually Happened

The defendant pleaded guilty to two counts of health care fraud under 18 U.S.C. § 1347 with no plea agreement. He admitted that between February and September 2021 he obtained Medicare beneficiary cards and sold them knowing they would be used to bill fraudulent claims. On one date in February 2021 he bought ten cards. A clinic used three of them and submitted two claims totaling $4,000.

That same clinic went on to submit approximately $3,248,540 in fraudulent claims and collected roughly $1.5 million from Medicare. The presentence report took the full figure, applied the 16-level enhancement under U.S.S.G. § 2B1.1(b)(1), and produced an advisory range of 37 to 46 months. The court imposed 30 months, three years of supervised release, and about $1.5 million in restitution.

Defense counsel objected. The dispute was not whether a fraud occurred. It was whose fraud the defendant had agreed to join. The district court overruled the objection on the ground that the defendant was working in concert as part of a greater scheme and that substantial losses were foreseeable given his statements to others in the conspiracy.

The precision of that holding is the whole value of the opinion. It is a proof ruling, not an absolution, and that is exactly what makes it usable in the next case.

Ten cards. Three used. Two claims totaling $4,000. The defense theory in this case fit inside two numbers, and that is why it survived appellate review.

The Order of Operations Prosecutors Keep Skipping

Almost every federal fraud sentencing turns on a number calculated before the defense ever sees it. Probation pulls the aggregate scheme loss from the government's summary. The prosecutor defends it with foreseeability. The court adopts it. The defendant is left arguing about a figure never tied to anything he personally agreed to do.

U.S.S.G. § 1B1.3(a)(1)(B) does not permit that shortcut. Since the 2015 restructuring of the relevant conduct guideline, the three requirements sit in the guideline text itself and they are conjunctive. Another person's conduct is attributable to a defendant only when it was within the scope of the criminal activity the defendant agreed to jointly undertake, in furtherance of that activity, and reasonably foreseeable in connection with it.

Scope comes first. Foreseeability comes last.

"Acts of others that were not within the scope of the defendant's agreement, even if those acts were known or reasonably foreseeable to the defendant, are not relevant conduct under subsection (a)(1)(B)."— United States v. Lopez, No. 25-11870 (11th Cir. Aug. 7, 2026)

That forecloses the argument prosecutors have been winning on for years. A defendant can know, with total clarity, that he is one input into a large fraudulent operation and still not have agreed to jointly undertake that operation. In the panel's words, a defendant's mere awareness that he was part of a larger scheme is alone insufficient to show that another individual's criminal activity was within the scope of the defendant's jointly undertaken criminal activity.

The court also reached for something most white collar defense attorneys associate with drug cases. It applied buyer-seller principles, citing the rule that where the buyer's purpose is merely to buy and the seller's purpose is merely to sell, with no understanding beyond the sales agreement, no conspiracy has been shown. Someone who sells beneficiary information to a biller is, on some records, a seller. The transaction is not automatically a joint venture in whatever the buyer does next.

Exposure, the Guideline Math, and the Government's Burden

Health care fraud under 18 U.S.C. § 1347 carries up to 10 years per count. Conspiracy under 18 U.S.C. § 1349 carries the same penalty as the underlying offense. The Anti-Kickback Statute, 42 U.S.C. § 1320a-7b, adds 10 years per count plus mandatory program exclusion. Those maximums are not what drives the sentence. The loss figure does.

The burden question matters as much. When a defendant disputes the loss calculation, the government must prove the facts supporting the enhancement by a preponderance of the evidence, measured against a substantial evidence standard: more than a mere scintilla, meaning relevant evidence a reasonable mind might accept as adequate to support the conclusion. The government does not get to start with the aggregate number and dare the defendant to subtract from it.

One caution. Restitution runs on a different track. Under the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A, a scheme offense can support restitution to persons directly harmed by the defendant's criminal conduct in the course of the scheme. A guideline win on scope does not automatically erase a restitution order, but the same evidentiary gap is the gap to press on the restitution number.

Sixteen levels separate those two numbers. The government does not get to start with the aggregate figure and dare the defendant to subtract from it.

Critical Mistakes People Make Early

The loss fight is usually lost long before sentencing, in decisions made by people who did not know they were making them.

Talking to agents without counsel. The district court leaned on this defendant's own statements to others in the scheme. Statements to agents work the same way, and inconsistencies become their own charge under 18 U.S.C. § 1001. HHS-OIG subpoena defense begins with silence and counsel.

Pleading open without a loss stipulation. Pleading without an agreement leaves the number entirely to probation and the court. Sometimes that is the right call. It should be a decision, not a default.

Filing generic PSR objections. Generic objections lose. The objection that works identifies what the defendant agreed to do, names the specific transactions inside that agreement, and forces the government to connect every other dollar to it.

How to Litigate Scope After Lopez

Make the district court do the analysis in the correct order, and build a record that makes skipping it reversible.

Force an individualized finding. Ask the court on the record to identify what criminal activity this defendant agreed to jointly undertake, before any discussion of foreseeability. A transcript in which the court moves straight to foreseeability is now an appellate issue.

Separate knowledge from agreement. Concede what is true. The client knew there was a larger operation. Then insist that knowledge is not the finding the guideline requires, and make the government identify its evidence of agreement.

Map the transactions. Tie the client's conduct to specific dates, counts, and dollars. Here the defense theory fit in two numbers, ten cards and $4,000.

Use the buyer-seller framing where the facts support it. A defendant who sold information in discrete transactions, with no ongoing role in the biller's operation, stands differently than one embedded in the billing entity.

Why Timing Matters Right Now

Two clocks are running. The first is in cases already in the pipeline. Any defendant awaiting sentencing in the Southern or Middle District of Florida, or whose direct appeal is still open, should be evaluating whether the loss figure in the presentence report rests on scope findings or on foreseeability language. Guideline objections have deadlines, and appellate issues are waived if not preserved.

The second is the guideline amendment package taking effect November 1, 2026, which rewrites the economic loss rules at U.S.S.G. § 2B1.1. A defendant resentenced after that date may get both a corrected attribution analysis and a restructured loss table. For someone whose sentencing date is still flexible, that combination is worth analyzing rather than leaving to the calendar.

South Florida federal criminal defense practice sees the same pattern in case after case. A handful of organizers build the operation. Dozens of peripheral participants supply pieces of it. Then everyone gets measured against the same aggregate number. Lopez is the case that says the measuring has to be done one defendant at a time.

Common Questions

Facing a Federal Healthcare Fraud Investigation or Sentencing in Florida?

AMC Defense Law represents physicians, clinic owners, billers, marketers, patient recruiters, and corporate officers in federal healthcare fraud matters across the Southern and Middle Districts of Florida and nationwide. Physician federal investigation defense and federal investigation defense for peripheral participants are both built the same way here: early intervention, disciplined guideline litigation, and sentencing positioning that treats the loss figure as something to be proven rather than accepted.

Discretion is the rule. Every consultation is confidential. Call 561.542.5494 or contact the firm through amcdefenselaw.com to schedule a confidential case review.

If you or your loved ones have been arrested or are facing a federal sentencing in Florida, call Aaron M. Cohen for a confidential consultation, 24 hours a day, to get help.

This article was written by Michael Hursey, Esq., and Aaron M. Cohen, Esq., of AMC Defense Law. Michael Hursey, Esq. is Of Counsel to AMC Defense Law. He has practiced criminal defense and appellate law for more than 45 years. He is a member of The Florida Bar and is admitted to the Supreme Court of the United States, the United States Courts of Appeals for the Fourth, Fifth, Seventh, and Eleventh Circuits, and multiple United States District Courts in Florida, Illinois, Michigan, Texas, and New Jersey. Before entering private practice he served as a federal prosecutor in Miami, representing the United States Department of State and the Department of Justice in international extradition matters. His practice includes drug conspiracy and trafficking, fraud and economic crimes, weapons offenses, post-conviction relief, and extradition.

Aaron M. Cohen, Esq. is the founding attorney of AMC Defense Law (The Law Offices of Aaron M. Cohen, P.A.), a criminal defense firm based in Boca Raton, Florida. With more than 30 years of experience as a federal criminal defense attorney, Mr. Cohen represents individuals and entities in complex federal and state criminal investigations and prosecutions nationwide. He is admitted to practice law in Florida, New York, New Jersey, and the District of Columbia, and is admitted in the United States District Courts for the Southern, Middle, and Northern Districts of Florida, the District of Columbia, the Southern and Eastern Districts of New York, the District of New Jersey, the Eastern District of Michigan, and the Southern District of West Virginia, as well as the United States Court of Appeals for the Eleventh Circuit. Mr. Cohen is available pro hac vice in federal districts nationwide for clients requiring experienced criminal defense counsel in complex or sensitive matters.

This article is for general informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship. Every federal investigation and sentencing involves unique facts. Anyone who believes they may be under investigation, or who is facing a federal sentencing, should consult experienced federal criminal defense counsel before taking any action.