Beyond Dollars: Eleventh Circuit Endorses Upward Variances for Cyberfraud Based on Non‑Economic Harms and Extraterritorial Conduct — United States v. Ayeni

Introduction

In United States v. Babatunde Francis Ayeni, the Eleventh Circuit affirmed a 120‑month sentence—an upward variance from the advisory Guidelines—for a leader in a transnational business email compromise (BEC) scheme targeting U.S. real estate transactions. The conspiracy stole approximately $19 million from 231 victims and intended to steal more than $54 million.

After Ayeni pleaded guilty to wire fraud conspiracy, the district court adopted an advisory Guidelines range of 78–97 months, granted the government’s substantial‑assistance motion under U.S.S.G. § 5K1.1, but ultimately varied upward to impose 120 months. On appeal, Ayeni argued the sentence was procedurally and substantively unreasonable. The Eleventh Circuit rejected those challenges and affirmed.

The decision reinforces several key sentencing principles in cyber‑enabled fraud cases:

District courts may give substantial weight to non‑economic harms—such as emotional trauma, ongoing identity‑theft risk, and intrusion into privileged communications—under 18 U.S.C. § 3553(a).
Courts may consider the extraterritorial execution of a scheme and the difficulty of extradition as aggravating features under § 3553(a)’s deterrence and seriousness factors.
Even when the Guidelines account for loss amount and victim counts, a court may find the range “woefully inadequate” and vary upward, provided it offers a sufficiently compelling explanation tied to § 3553(a).
A court may grant a § 5K1.1 substantial‑assistance motion yet still impose an above‑Guidelines sentence based on other § 3553(a) considerations, so long as the ultimate sentence is well explained and reasonable.

Summary of the Opinion

The Eleventh Circuit (Rosenbaum, Grant, and Abudu, JJ., per curiam) affirmed the district court’s upward variance to 120 months for Ayeni’s wire fraud conspiracy conviction. The court held:

Procedural reasonableness: The district court did not disregard the Guidelines; it adopted the presentence report’s calculations, considered the government’s § 5K1.1 motion, and then provided detailed reasons for varying upward, emphasizing the scheme’s far‑reaching harms, risks of identity theft, intrusion into attorney‑client communications, and the aggravating extraterritorial execution. The court’s factual findings were supported by record evidence, including FBI testimony and victim statements.
Substantive reasonableness: The upward variance fell within the court’s discretion. A court may give additional weight to factors already partially captured by the Guidelines (loss and victim count) and may emphasize other § 3553(a) considerations (non‑economic harm, deterrence, complexity of extradition). The 120‑month sentence—half the 240‑month statutory maximum—was not a clear error of judgment.

Analysis

Precedents Cited and Their Influence

Gall v. United States, 552 U.S. 38 (2007): Provides the framework for reasonableness review. The district court must calculate the Guidelines, consider § 3553(a) factors, and explain any variance sufficiently to permit meaningful appellate review. The panel relied on Gall for the standards governing explanation and deference.
United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc): Clarifies that reasons for a variance must be “sufficiently compelling” and that appellate courts vacate sentences only for a “clear error of judgment” in weighing § 3553(a) factors. The panel measured the district court’s explanation against Irey’s standard.
United States v. Henry, 1 F.4th 1315 (11th Cir. 2021): Affirms that courts may vary based on § 3553(a) and that nothing prevents variances from the Guidelines range. The panel cited Henry to uphold the general permissibility of upward variances.
United States v. Moran, 778 F.3d 942 (11th Cir. 2015): Confirms district courts may give extra weight to factors already incorporated into the Guidelines. This supported the district court’s emphasis on victim count and harm, even though some aspects were already reflected in offense level calculations.
United States v. Thomas, 108 F.4th 1351 (11th Cir. 2024): Used to frame procedural reasonableness and the notion that a sentence well below the statutory maximum tends to indicate reasonableness. The panel cited Thomas in concluding 120 months (half the maximum) supported reasonableness.
United States v. Shaw, 560 F.3d 1230 (11th Cir. 2009): Reminds that outside‑Guidelines sentences are not presumed unreasonable, reinforcing deference to the district court’s weighing of § 3553(a).
United States v. Tome, 611 F.3d 1371 (11th Cir. 2010): Reiterates that reversal requires a clear error of judgment in weighing the § 3553(a) factors.
United States v. Langston, 590 F.3d 1226 (11th Cir. 2009): Emphasizes that appellate courts will not reweigh § 3553(a) factors, underscoring deference to the district court’s balancing.
United States v. Rodriguez, 732 F.3d 1299 (11th Cir. 2013): Supports reliance on record evidence at sentencing. The panel used Rodriguez to reject Ayeni’s claim that the district court relied on “non‑existent” facts.

Legal Reasoning

The opinion proceeds in two steps—procedural reasonableness and substantive reasonableness—applying Gall’s deferential abuse‑of‑discretion standard throughout.

On procedure, the panel found:

The district court expressly adopted the Guidelines calculations (offense level 28; range 78–97 months based on a 22‑level increase for intended loss of $25–$65 million and a 2‑level increase for 10+ victims), reflecting compliance with § 3553(a)(4) and Gall.
Although the court granted the government’s § 5K1.1 motion (40% departure from the low end), it then explained that “applying the guidelines in this matter would work an injustice upon the victims,” signaling a separate § 3553(a) variance based on the offense’s broader harms. The court continued the hearing to ensure fairness before imposing the variance.
The court gave concrete, record‑based reasons for the variance: widespread non‑economic harms (emotional trauma, ongoing identity‑theft risk), the intrusion into privileged attorney‑client information due to targeting law‑related communications, and the aggravating extraterritorial execution in jurisdictions where extradition is difficult. FBI and victim testimony supported these findings.
The court’s explanation was “sufficiently compelling” to support the degree of variance, and it also explained why it stopped at 120 months (Ayeni’s lesser role and substantial assistance mitigated against the 240‑month statutory maximum).

On substance, the panel concluded:

Variances based on § 3553(a) are permissible; courts may give extra weight to factors partially incorporated in the Guidelines (e.g., victims), especially where the Guidelines’ loss‑driven calculus inadequately captures the offense’s qualitative and enduring harms.
Giving meaningful weight to non‑economic harms and deterrence—particularly in transnational cyber schemes—falls within the district court’s discretion.
120 months, half the statutory maximum, aligns with Eleventh Circuit indicators of reasonableness, and there was no clear error of judgment in the court’s balancing of competing § 3553(a) considerations.

Impact

While not published and therefore not binding precedent, Ayeni is a robust affirmation of district court discretion in cyber‑fraud sentencings. It carries several forward‑looking implications:

Non‑economic harms as variance drivers: The decision invites prosecutors to present—and judges to credit—evidence of emotional distress, enduring identity‑theft risks, and collateral harms (such as compromised attorney‑client communications) to justify upward variances in sophisticated frauds.
Extraterritorial execution as aggravation: Conduct coordinated from abroad, especially where extradition is difficult, may justify higher sentences under the seriousness and deterrence goals of § 3553(a). Expect increased emphasis on geographic and operational features of cybercrime as aggravating factors.
Guidelines loss is not the last word: Even with heavy loss‑driven enhancements and victim‑count increases, courts may find the advisory range “woefully inadequate” where qualitative harms are substantial. Defense strategies that focus solely on dollar loss may leave key mitigation terrain unaddressed.
Interplay with § 5K1.1: Courts may grant substantial‑assistance departures yet still vary upward. The practical takeaway is that cooperation mitigates but does not cap the ultimate sentence; counsel should explicitly link cooperation to concrete sentencing outcomes and request the court to anchor its variance analysis with a clear account of how assistance materially reduces the final term.
Sentencing practice in BEC and real‑estate wire fraud: Given the recurring real‑estate‑closing fact pattern in BEC cases, Ayeni is likely to be cited for the proposition that these schemes inflict exceptional qualitative harms, supporting above‑Guidelines sentences when the record is developed with agent testimony and victim impact statements.

Complex Concepts Simplified

Business Email Compromise (BEC): A form of cyber‑enabled fraud where offenders spoof or compromise business email accounts (often via phishing) to redirect wire transfers. In real estate, fraudsters intercept closing communications and trick buyers into wiring funds to criminal accounts.
Advisory Guidelines vs. Variance: The U.S. Sentencing Guidelines produce a recommended range. A “variance” is a court’s decision to impose a sentence outside that range based on the statutory factors in 18 U.S.C. § 3553(a) (seriousness, deterrence, protection of the public, etc.).
Departure vs. Variance: A “departure” is an adjustment authorized by the Guidelines themselves (e.g., § 5K1.1 for substantial assistance). A “variance” is a separate, statutory adjustment under § 3553(a). Courts can do both in the same case if adequately explained.
Procedural vs. Substantive Reasonableness:
- Procedural: Did the court calculate the Guidelines correctly, consider § 3553(a), rely on accurate facts, and explain its decision?
- Substantive: Is the sentence, in light of the record and § 3553(a), a reasonable exercise of discretion—not a clear error of judgment?
Intended Loss vs. Actual Loss: For economic offenses, the Guidelines often enhance based on the greater of intended or actual loss. Here, intended loss (~$54 million) drove a 22‑level increase, even though actual loss was ~$19 million. The Eleventh Circuit did not need to address any dispute on this point because the defendant’s appeal focused on the reasonableness of the ultimate sentence.
Statutory Maximum as a Reasonableness Indicator: The Eleventh Circuit considers a sentence well below the statutory maximum as one indicator (not a rule) of reasonableness on appeal.

Key Takeaways for Practitioners

Build the record on non‑economic harms. Agent testimony and victim statements about psychological trauma, identity‑theft risk, and privilege intrusion can decisively support upward variances in cyberfraud cases.
Anticipate extraterritorial aggravation. Where conduct is orchestrated from abroad, be prepared to litigate whether extradition difficulty and transnational features fairly reflect increased culpability or simply investigative happenstance.
Do not assume § 5K1.1 defines the ceiling. Substantial assistance helps, but courts retain full § 3553(a) discretion. Tie the assistance to measurable reductions and ask courts to explain how cooperation concretely affects the final sentence.
Address the human story. Defense advocacy should tackle the non‑economic narrative with mitigation: restitution efforts, cybersecurity remediation cooperation, identity‑theft mitigation for victims, and verified acceptance of responsibility that goes beyond the plea.

Conclusion

United States v. Ayeni underscores that in modern cyber‑enabled fraud, the harms “beyond dollars” carry real sentencing weight. The Eleventh Circuit approved an upward variance grounded in the emotional, privacy, and systemic impacts of a large‑scale BEC scheme and in the aggravating realities of extraterritorial execution. The court reaffirmed that:

District judges may find high, loss‑driven Guidelines ranges incomplete when the offense inflicts severe non‑economic harm and poses enduring risks.
So long as the court calculates the Guidelines, grounds its findings in the record, and offers a sufficiently compelling § 3553(a) explanation, even significant upward variances will withstand appellate scrutiny.
A sentence well below the statutory maximum and calibrated to the defendant’s role and cooperation will often signal reasonableness.

Although unpublished, Ayeni provides a clear, persuasive template for how courts in the Eleventh Circuit can assess and articulate upward variances in complex cyberfraud cases—anchoring sentencing judgments in the full spectrum of victim harms and the practical realities of transnational crime.