Actual Loss Over Intended Loss and Victim Definition in USSG §2B1.1

Introduction

United States v. Patrick Barkers-Woode and United States v. Nana Mensah, decided May 7, 2025 by the Third Circuit, clarifies two critical sentencing‐guidelines questions in fraud prosecutions: first, whether “loss” for enhancement under U.S.S.G. §2B1.1(b)(1) means intended loss or actual loss; and second, whether identity-theft targets qualify as “victims” under U.S.S.G. §2B1.1(b)(2). In these consolidated appeals, Barkers-Woode and Mensah challenged their guideline calculations, evidentiary rulings, and the district court’s decision forcing Barkers-Woode to proceed pro se. The Third Circuit reversed in part—holding that only actual, not intended, loss may trigger a guideline enhancement—and affirmed in part, upholding the number-of-victims enhancement (including identity-theft victims), key evidence admissions, forfeiture of Barkers-Woode’s counsel right, and guideline enhancements based on advisory factors.

Summary of the Judgment

A jury found appellants Barkers-Woode and Mensah guilty of mail fraud, aggravated identity theft, and related conspiracy counts in a scheme that used stolen identities to obtain promotional smartphones from Sprint. The district court calculated both actual and intended loss, then applied:

• A 14-point enhancement under §2B1.1(b)(1)(H) based on intended loss exceeding $550,000;
• A 2-point enhancement under §2B1.1(b)(2)(A)(i) for more than 250 victims;
• Additional enhancements for sophisticated means and leadership roles;
• Sentences of 111 months for Barkers-Woode and 99 months for Mensah.

On appeal, both defendants argued the court should have used actual loss for the §2B1.1(b)(1) enhancement. They also challenged the victims‐count enhancement, Barkers-Woode’s evidentiary rulings and self‐representation, and Mensah’s advisory guideline enhancements as jury‐fact issues. The Third Circuit:

• Reversed and remanded on the §2B1.1(b)(1) enhancement, holding “loss” means actual loss under United States v. Banks;
• Affirmed the victims enhancement, concluding identity-theft targets are “victims” under the plain meaning of §2B1.1(b)(2);
• Upheld admission of co-conspirator testimony about a related Walmart fraud as intrinsic evidence;
• Found Barkers-Woode forfeited his Sixth Amendment right to counsel due to repeated dilatory conduct and affirmed the self-representation order;
• Rejected Mensah’s claim that Apprendi extends to advisory guideline enhancements, affirming the remaining sentencing adjustments.

Analysis

Precedents Cited

• United States v. Banks, 55 F.4th 246 (3d Cir. 2022): Held that “loss” under §2B1.1(b)(1) refers to actual loss, not intended loss.
• United States v. Kennedy, 554 F.3d 415 (3d Cir. 2009): Previously held that “victims” required pecuniary harm, but that definition was overruled by amendment and by the approach in Nasir.
• United States v. Nasir, 17 F.4th 459 (3d Cir. 2021) (en banc): Directed courts to apply traditional tools of statutory interpretation before deferring to guideline commentary.
• United States v. Green, 617 F.3d 233 (3d Cir. 2010) & United States v. Bowie, 232 F.3d 923 (D.C. Cir. 2000): Defined “intrinsic” evidence not subject to Rule 404(b).
• United States v. Goldberg, 67 F.3d 1092 (3d Cir. 1995) & United States v. Thomas, 357 F.3d 357 (3d Cir. 2004): Articulated circumstances under which a defendant forfeits the right to counsel through dilatory tactics.
• United States v. Grier, 475 F.3d 556 (3d Cir. 2007) (en banc): Held Apprendi’s reasonable-doubt requirement does not apply to advisory sentencing guidelines.

Legal Reasoning

1. Loss Enhancement (§2B1.1(b)(1)): The district court applied a 14-level enhancement based on the intended loss of $595,399.76. In Banks, the Third Circuit overruled prior case law and held that “loss” in §2B1.1(b)(1) unambiguously means actual, not intended, loss. This was plain error that affected substantial rights; accordingly, the panel reversed and remanded for recalculation using the $357,565.92 actual loss.

2. Victim Enhancement (§2B1.1(b)(2)): Barkers-Woode and Mensah contended that identity-theft targets who suffered no pecuniary harm should not count as “victims.” The panel applied the tools of textual interpretation—ordinary meaning, dictionary definitions, and the Sentencing Commission’s 2009 amendment adding Application Note 4(E) to include individuals whose IDs were used without authority. Identity-theft targets plainly fall within “any person who sustained reasonably foreseeable pecuniary harm” or simply “a person harmed by a crime.” Kennedy’s pecuniary-harm requirement was superseded by amendment and Nasir’s interpretive approach.

3. Evidentiary Ruling (Federal Rule of Evidence 404(b)): Over objection, the court admitted co-conspirator testimony about a contemporaneous Walmart fraud. Under Green and Bowie, an act is intrinsic if it directly proves the charged conspiracy or occurs inextricably with it. The Walmart scheme shared the same actors, agreement, timeframe, modus operandi, and objective, making it intrinsic and properly admitted without a 404(b) analysis.

4. Sixth Amendment Forfeiture: Barkers-Woode cycled through six attorneys, exhibited combative and dilatory conduct (including physical removal by prison guards), filed baseless complaints, and repeatedly stalled sentencing by demanding discovery and appealing protective-order rulings. Under Goldberg and Thomas, such “extremely dilatory” behavior forfeits the right to counsel without a full Faretta colloquy. The district court’s warnings that no seventh attorney would be appointed satisfied due process.

5. Advisory-Guideline Enhancements: Mensah argued that enhancements for sophisticated means and leadership roles should have been charged to a jury and proved beyond a reasonable doubt under Apprendi. Grier forecloses that theory: the advisory nature of the Guidelines means judicial fact-finding on enhancements does not implicate Sixth Amendment jury‐trial rights.

Impact on Future Cases

This decision has far-reaching implications:

• District courts must apply actual loss—not intended loss—when calculating §2B1.1(b)(1) enhancements.
• Individuals whose identification is stolen are categorically “victims” for purposes of counting under §2B1.1(b)(2), even absent demonstrable out-of-pocket losses.
• The intrinsic-evidence doctrine permits admission of closely related uncharged conspiratorial schemes without separate 404(b) analysis.
• Courts may forfeit a defendant’s right to counsel when faced with prolonged, obstructive interactions, even without an exhaustive Faretta warning.
• Apprendi does not extend to the fact-finding underpinning advisory-guideline enhancements.

Complex Concepts Simplified

• Actual vs. Intended Loss: “Actual loss” is the money victims actually lost; “intended loss” is the hypothetical maximum the fraud could have cost. After Banks, guideline enhancements rely on actual loss.
• U.S.S.G. Enhancements: The Sentencing Guidelines assign points for various offense characteristics—loss amount, number of victims, sophistication, leadership—that raise or lower the sentencing range.
• Intrinsic Evidence: Evidence is “intrinsic” if it arises from the same transaction or directly proves the charged crime; it is not subject to the character‐evidence limits of Rule 404(b).
• Forfeiture of Counsel: A defendant’s Sixth Amendment right to counsel can evaporate if he deliberately sabotages representation through repeated, extreme misconduct.
• Advisory Guidelines & Apprendi: Unlike mandatory minimum laws, the advisory sentencing framework permits judges to find guideline‐enhancement facts by a preponderance of the evidence, not beyond a reasonable doubt.

Conclusion

United States v. Barkers-Woode establishes pivotal clarifications in sentencing mail-fraud and identity-theft conspiracies. By insisting on actual loss and codifying that identity-theft targets are victims, the Third Circuit aligns guideline calculation with common‐sense definitions and statutory text. The court’s rulings on evidence and Sixth Amendment forfeiture offer practical guidance on intrinsic‐evidence analysis and self-representation limits. Finally, reaffirming that Apprendi does not govern advisory guidelines preserves judicial fact-finding authority. Taken together, this opinion will shape fraud sentencing and evidentiary practices across the Third Circuit and beyond.