Attributing Co‑Conspirator Losses Under U.S.S.G. § 1B1.3: Undisputed PSR Facts and Agent Testimony Can Establish Reasonable Foreseeability of Later Fraudulent Orders

Introduction

In United States v. Edmond Norkus (11th Cir. Sept. 1, 2026) (unpublished, per curiam), the Eleventh Circuit affirmed a wire-fraud-conspiracy sentence where the central dispute was the Sentencing Guidelines “loss amount” attributed to the defendant. Edmond Norkus, operating a logistics company (Champion Resources), worked with co-conspirator Brian Sperber, who controlled a healthcare distribution company (Ark GBST), in a COVID-era personal protective equipment (PPE) scheme.

The key sentencing issue was whether Norkus could be held responsible for an $8,250,000 loss stemming from LHP Pharma’s second PPE order—an order primarily handled through Sperber/Ark—on the theory that this loss constituted “relevant conduct” attributable to Norkus in a jointly undertaken conspiracy.

Summary of the Opinion

The Eleventh Circuit held that the district court did not clearly err in including the $8,250,000 LHP second-order loss in Norkus’s Guidelines loss calculation. The panel emphasized that (i) loss need only be reasonably estimated, (ii) a conspirator is accountable for co-conspirators’ reasonably foreseeable acts in furtherance of jointly undertaken criminal activity, and (iii) the district court could rely on undisputed PSR statements and a testifying agent’s evidence to find foreseeability. The court rejected Norkus’s argument that the government had to present live testimony from LHP representatives or “direct” communications involving Norkus to prove attribution.

Analysis

Precedents Cited

United States v. Cavallo, 790 F.3d 1202 (11th Cir. 2015)

Cavallo supplied two controlling standards: (1) appellate review of loss calculations is for clear error, and (2) the government bears the burden to prove loss by a preponderance of the evidence, while the district court need only make a “reasonable estimate” rather than a precise calculation. In Norkus, these principles framed the inquiry: the question was not whether the Eleventh Circuit would compute the loss differently, but whether the district court’s estimate and attribution findings were plausible given the record.

United States v. Rothenberg, 610 F.3d 621 (11th Cir. 2010)

Rothenberg provided the definition of clear error—whether the appellate court is left with a “definite and firm conviction” a mistake occurred. This deferential lens mattered because Norkus’s challenge targeted the district court’s inferences (foreseeability and conspiracy scope), which are classic fact-bound determinations reviewed with substantial deference.

United States v. Rodriguez, 751 F.3d 1244 (11th Cir. 2014)

Rodriguez was cited for the proposition that loss may be based on “all relevant conduct” attributable to the defendant, not merely the count of conviction’s narrowest factual core. This supported the district court’s ability to look beyond Norkus’s direct handling of a particular LHP transaction and consider the broader jointly undertaken fraud scheme.

United States v. Hunter, 323 F.3d 1314 (11th Cir. 2003)

Hunter supplied the key attribution rule: a conspiracy participant can be held responsible for losses resulting from co-conspirators’ reasonably foreseeable acts in furtherance of the conspiracy. In Norkus, this rule underwrote the district court’s inclusion of the LHP second-order loss, so long as the order fell within the jointly undertaken activity’s scope and was reasonably foreseeable to Norkus.

United States v. Pierre, 825 F.3d 1183 (11th Cir. 2016)

Pierre addressed evidentiary sufficiency at sentencing: the district court may make loss findings based on undisputed PSR statements and evidence presented at the hearing. The Norkus panel used Pierre to reject the defense’s insistence on specific forms of proof (victim witness testimony or direct communications) as a prerequisite for proving attribution by a preponderance.

Legal Reasoning

The court’s reasoning proceeded in three linked steps grounded in U.S.S.G. § 1B1.3(a)(1)(B): whether the disputed loss was (i) within the scope of the jointly undertaken criminal activity, (ii) in furtherance of it, and (iii) reasonably foreseeable in connection with it.

1. Joint scheme and role with LHP “from the start.” The district court found that Norkus was involved in cultivating LHP’s business relationship at the outset—meeting LHP’s owner, providing a warehouse tour, and displaying PPE stock to induce trust and orders. These actions supported a finding that LHP-related transactions were not an independent undertaking by Sperber alone, but part of the conspiracy Norkus joined.
2. Conduct demonstrating an intent to induce future orders. Evidence showed Norkus diverted gloves that were intended (and paid for) by another customer (BD&S) to partially fulfill LHP’s first order. The district court treated this as an operational step designed to keep LHP engaged and believing that Ark/Champion could perform—making additional LHP orders a predictable next step in the fraudulent business model.
3. Foreseeability of a “much bigger” LHP deal. The district court credited evidence that Norkus knew, before LHP’s second order, that a larger transaction (described as a $27 million deal) was in progress. From that, it was reasonable to infer that subsequent large LHP orders—including the disputed $8,250,000 order—were foreseeable within the conspiracy’s ongoing plan and sales pipeline.

Addressing Norkus’s evidentiary objections, the Eleventh Circuit highlighted the permissive sentencing proof framework: the government was not required to call LHP witnesses or produce direct Norkus-involved communications about the second order. Undisputed PSR facts plus agent testimony were enough to support the district court’s preponderance finding, and under clear-error review the panel would not reweigh those factual inferences.

Impact

Although the decision is marked “NOT FOR PUBLICATION” and thus lacks precedential force in the same way a published opinion would, it illustrates and reinforces several practical points that are likely to influence sentencing litigation within the circuit:

• Attribution of later transactions can turn on relationship-building conduct. A defendant’s early participation in cultivating a victim relationship (e.g., demonstrations of supply, strategic partial fulfillment, reassurance) can support foreseeability of later fraudulent orders even if the co-conspirator is the primary communicator for the later deal.
• Sentencing proof is flexible. The panel’s rejection of a “must have victim testimony/direct emails” demand underscores that the government can meet its burden through investigative testimony and undisputed PSR content, so long as the evidence supports a reasonable inference of scope/foreseeability.
• Clear-error review is outcome-determinative in many loss disputes. Once the district court makes detailed findings tying the defendant to the victim relationship and to knowledge of anticipated future business, appellate courts are unlikely to disturb loss determinations absent a strong showing of mistake.

Complex Concepts Simplified

“Loss amount” (U.S.S.G. § 2B1.1)

A Guidelines measure used to increase the offense level in fraud cases. The court need not compute loss with mathematical precision; it must make a reasonable estimate based on available information.

“Relevant conduct” (U.S.S.G. § 1B1.3)

The set of acts and omissions used to calculate Guidelines adjustments, which can include conduct beyond the specific count of conviction. In conspiracies, it includes certain acts of others.

“Jointly undertaken criminal activity” and “reasonably foreseeable” (U.S.S.G. § 1B1.3(a)(1)(B))

In a shared criminal scheme, a defendant can be held accountable for a partner’s acts if those acts were within the agreed-upon scope of the joint activity, furthered that activity, and were reasonably predictable to the defendant given what the defendant knew and did.

“Preponderance of the evidence”

The government’s sentencing burden: more likely than not. This is lower than “beyond a reasonable doubt.”

“Clear error” appellate review

A highly deferential standard. The appellate court will affirm unless it is firmly convinced the district court made a factual mistake.

Conclusion

United States v. Edmond Norkus affirms a broad but familiar sentencing principle in conspiracy fraud cases: a defendant may be held responsible for substantial losses caused by a co-conspirator’s later transactions when the record supports that the transactions were part of the jointly undertaken scheme and reasonably foreseeable—particularly where the defendant helped establish the victim relationship and knew larger deals were impending. The decision also underscores that, at sentencing, undisputed PSR statements and agent testimony can suffice to prove loss attribution by a preponderance of the evidence, without requiring live victim testimony or direct communications involving the defendant for the disputed transaction.