Introduction

This commentary examines the Sixth Circuit’s decision in United States v. Adrian Mitan, a consolidated appeal from three cyber-enabled fraud conspiracies spanning nearly a decade and multiple jurisdictions. The court addressed challenges to the district court’s Sentencing Guidelines calculations—particularly the use and method of “intended loss,” the simultaneous application of enhancements for international conduct and sophisticated laundering in a cryptocurrency context, and the reasonableness of the ultimate sentence. The court also resolved due process and scope objections to restitution under the Mandatory Victims Restitution Act (MVRA).

Adrian Mitan, a Romanian national, pled guilty via a global plea agreement to: (1) conspiracy to commit bank fraud (the “vishing” scheme) in the Western District of North Carolina; (2) conspiracy to commit money laundering (the “brute-force” phishing scheme) in the Eastern District of Kentucky; and (3) conspiracy to commit a RICO offense (the “online auction fraud” scheme) in the Eastern District of Kentucky. He received a downward-variant sentence of 140 months (Guidelines range 151–188 months) and restitution totaling $750,220.51. On appeal, he contested the loss calculation (including the use of intended loss and a $500 per-card estimate), the application of two separate two-level enhancements (international conduct and sophisticated laundering), the substantive reasonableness of his sentence, and the district court’s restitution determinations—especially for the brute-force case, which the government had not specifically briefed as a restitution request prehearing.

Summary of the Opinion

• Intended Loss vs. Actual Loss: The court held that, consistent with binding Sixth Circuit precedent, the district court properly used “intended loss” under U.S.S.G. §2B1.1 and its commentary (as in effect at the time of sentencing) rather than restricting loss to “actual” loss.
• Empirical Per-Card Loss Estimate: The district court’s $500-per-card intended-loss estimate was upheld as a reasonable, evidence-based approximation grounded in financial institutions’ data (average losses circa $500–$648 per card), distinguishing United States v. Riccardi, where a flat per-device minimum drawn solely from commentary was rejected.
• Dual Enhancements Not Double Counting: Applying both the “substantial part outside the United States” enhancement, §2B1.1(b)(10)(B), and the “sophisticated laundering” enhancement, §2S1.1(b)(3), did not impermissibly double count; they address distinct harms—where the conduct occurred versus how the laundering was executed (layered transactions and cryptocurrency obfuscation).
• Substantive Reasonableness: The below-Guidelines 140-month sentence was substantively reasonable. The district court thoroughly considered §3553(a) factors, explained disparities vis-à-vis co-defendants by criminal history and culpability, and emphasized deterrence for sophisticated, international cyber-fraud.
• Restitution (Brute-Force Conspiracy): Despite the government’s late filing and lack of an express prehearing request for that count, restitution was affirmed. Mitan had sufficient notice via the MVRA’s mandate, the plea agreement, prehearing submissions (including specific loss figures), and the opportunity to cross-examine at sentencing.
• Restitution (RICO Conspiracy): The court upheld $675,000 restitution based on Mitan’s roughly fifteen months of participation times the conspiracy’s monthly loss average (~$45,000), rejecting his argument to limit restitution to his personal gain ($10,801) and reaffirming joint-and-several principles under §3664(h).

Analysis

Precedents Cited and Their Role

• Loss Calculation Framework:
  • United States v. You, 74 F.4th 378 (6th Cir. 2023); United States v. Smith, 79 F.4th 790 (6th Cir. 2023); United States v. Tellez, 86 F.4th 1148 (6th Cir. 2023); United States v. Kennert, 2023 WL 4977456 (6th Cir. Aug. 3, 2023): collectively endorse using the commentary’s “greater of actual or intended loss” definition for §2B1.1 as applicable at the time of sentencing.
  • United States v. Agrawal, 97 F.4th 421 (6th Cir. 2024): sets standards of review—methodology de novo; factual loss findings for clear error.
  • United States v. Riccardi, 989 F.3d 476 (6th Cir. 2021): rejects a flat $500-per-device loss minimum when grounded only in commentary, not evidence. Here, the panel distinguished Riccardi because the $500 figure was anchored in record evidence from financial institutions, not a commentary presumption.
  • United States v. Ellis, 938 F.3d 757 (6th Cir. 2019); United States v. Estrada-Gonzalez, 32 F.4th 607 (6th Cir. 2022): endorse reasonable estimates of loss by a preponderance and deference so long as “plausible on the record.”
  • United States v. Nicolescu, 17 F.4th 706 (6th Cir. 2021); United States v. Jackson, 25 F.3d 327 (6th Cir. 1994): emphasize the appellant’s “heavy burden” to show loss estimates are outside permissible computations.
  • Peugh v. United States, 569 U.S. 530 (2013): guides the use of the Guidelines applicable without violating ex post principles, relevant here because the 2024 Amendment 827 post-dated Mitan’s 2021 sentencing.
• Enhancements and Double Counting:
  • United States v. Myers, 854 F.3d 341 (6th Cir. 2017): permits multiple enhancements when different conduct triggers distinct sentencing purposes.
  • United States v. Mehmood, 742 F. App’x 928 (6th Cir. 2018): warns against applying overlapping enhancements when the same conduct supports both.
  • United States v. Hubbard, 843 F. App’x 667 (6th Cir. 2019); United States v. Vela-Salinas, 677 F. App’x 224 (6th Cir. 2017): sustain “sophisticated laundering” where multi-step, layered transactions are used to conceal proceeds.
• Reasonableness Review:
  • Gall v. United States, 552 U.S. 38 (2007); United States v. Gates, 48 F.4th 463 (6th Cir. 2022); United States v. Perez-Rodriguez, 960 F.3d 748 (6th Cir. 2020): procedural and substantive reasonableness standards.
  • United States v. Rita, 551 U.S. 338 (2007): adequacy of explanation and engagement with the parties’ arguments.
  • United States v. Vowell, 516 F.3d 503 (6th Cir. 2008); United States v. Xu, 114 F.4th 829 (6th Cir. 2024); United States v. Miller, 73 F.4th 427 (6th Cir. 2023); United States v. Nunley, 29 F.4th 824 (6th Cir. 2022): standards and presumptions for substantive reasonableness, including the heavy burden to upset a below-Guidelines sentence.
  • United States v. Conatser, 514 F.3d 508 (6th Cir. 2008): explains why co-defendant disparity claims often fail when histories/roles differ.
• Restitution (MVRA):
  • United States v. Hills, 27 F.4th 1155 (6th Cir. 2022): de novo review for authority to award restitution; abuse of discretion for amount.
  • United States v. Sawyer, 825 F.3d 287 (6th Cir. 2016): due process satisfied where defendant had notice and opportunity to challenge restitution at sentencing.
  • United States v. Bogart, 576 F.3d 565 (6th Cir. 2009): timing and mechanics under §3664 when loss amounts are not fully ascertainable pre-sentencing.
  • United States v. Kilpatrick, 798 F.3d 365 (6th Cir. 2015): restitution compensates victims’ losses; defendant’s personal gain is not a cap.
  • United States v. Williams, 612 F.3d 500 (6th Cir. 2010): joint and several liability under §3664(h) in conspiracy cases.

Legal Reasoning

1) Intended Loss Is Proper Under §2B1.1 and Pre-2024 Commentary

The panel reaffirmed that, for Mitan’s 2021 sentencing, the definition of “loss” in the §2B1.1 commentary controlled: loss is the greater of actual or intended loss, and intended loss is the pecuniary harm the defendant sought to inflict, even if impossible or unlikely. The court emphasized binding circuit precedent (e.g., You) embracing this approach. The 2024 amendment moving the definition into the Guideline’s text (Amendment 827) post-dated sentencing and does not upend the analysis here; Peugh counsels reliance on the applicable version without ex post concerns.

2) Empirical, Per-Card Intended-Loss Estimate Is a Reasonable Approximation

In computing intended loss, the district court estimated roughly $500 per compromised card. Crucially, this figure came from record evidence—financial institutions’ data showing average losses $500–$648 per card—rather than from a commentary-based minimum. That evidentiary foundation differentiates this case from Riccardi. The district court also discounted the total card count by 25% to account for invalid numbers and still exceeded the $3.5 million threshold for an 18-level enhancement. Given the deferential clear-error standard and the “reasonable estimate” doctrine in fraud cases, the Sixth Circuit found the calculation “plausible on the record as a whole.”

Further, the court rejected the claim that the district court ignored Mitan’s argument that this approach “inflated” culpability. The sentencing judge called the estimate “conservative,” explained that even greater discounts would not change the enhancement threshold, and addressed Mitan’s role and duration of participation—all hallmarks of adequate explanation under Rita.

3) No Double Counting: “Where” vs. “How” the Offense Occurred

The panel upheld two separate two-level enhancements: (a) §2B1.1(b)(10)(B) for committing a substantial part of the fraudulent scheme from outside the United States; and (b) §2S1.1(b)(3) for sophisticated laundering (layered transactions, cryptocurrency conversion, multiple wallets, and foreign intermediaries). Addressing Mehmood’s caution against overlap, the court reasoned these enhancements punish distinct aspects of the criminality: geography (conduct originating in Romania; cross-border routing) and laundering sophistication (multi-step obfuscation using crypto architecture). That framework coheres with Myers’s acceptance of multiple enhancements that serve distinct purposes and with Hubbard/Vela-Salinas recognizing multi-layering as “sophisticated laundering.”

4) Substantive Reasonableness of a Below-Guidelines Sentence

The Sixth Circuit declined to disturb the 140-month sentence, noting the district court’s thoughtful consideration of §3553(a) factors and explicit reasoning for a modest downward variance. The panel underscored the heavy burden to show a below-Guidelines sentence is substantively unreasonable (Nunley). The court rejected any claim of unwarranted co-defendant disparity given Mitan’s category III criminal history (versus others’ category I) and the greater sophistication and breadth of his conduct (Conatser).

5) Restitution Under the MVRA: Notice, Timing, and Scope

Brute-force conspiracy: Although the government’s pre-sentencing briefing did not expressly request restitution for this count and some filings were late, the court found adequate notice and opportunity consistent with due process. Restitution was mandatory (MVRA) for each count of conviction; Mitan’s global plea agreement acknowledged restitution “in an amount determined at sentencing”; the statement of facts identified specific victims and losses; and the government’s sentencing memorandum (filed 11 days before) listed specific brute-force losses (e.g., FTFCU and U.S. Bank). At sentencing, a witness testified about losses; Mitan cross-examined; and he never sought a continuance. Under Sawyer and §3664, the procedures sufficed.

RICO conspiracy: The panel affirmed $675,000 restitution—based on Mitan’s ~15 months’ participation times a $45,000 average monthly loss—rejecting his argument to cap restitution at his personal gain ($10,801). Restitution aims to make victims whole (Kilpatrick), and joint and several liability is authorized for conspiracies (§3664(h); Williams). The district court reasonably limited Mitan’s share by duration and evidence of continued involvement; it could have imposed the full $2.7 million but did not.

Impact and Practical Implications

Key Takeaways for Cyber-Fraud and Crypto-Laundering Cases

• Empirical intended-loss estimates will withstand appellate review where the government provides credible financial-institution data and the district court explains its methodology. Practitioners should:
  • Collect affidavits/spreadsheets showing average per-card losses across affected institutions.
  • Document discounts (e.g., excluding invalid/duplicate card numbers) to show conservatism.
  • Explicitly distinguish any per-card estimate from commentary-based “minimums” disapproved by Riccardi when unsupported by record evidence.
• Distinct-harms enhancement doctrine: Prosecutors and probation can apply both international-conduct and sophisticated-laundering enhancements where the record shows:
  • Substantial conduct from abroad (e.g., coordination from Romania, foreign exchanges).
  • Layered laundering methods (crypto conversion, multiple wallets, foreign cash-out intermediaries).
  Defense should focus on overlap only when the same conduct supplies the basis for both enhancements—Mehmood’s caution—otherwise, Myers permits distinct enhancements for distinct harms.
• Restitution logistics under the MVRA: Even late or imperfect government filings will not defeat restitution where the defendant had actual notice (plea terms, PSR references, prehearing disclosures) and an opportunity to contest at sentencing. Defense counsel should:
  • Move for a continuance if late disclosures impair preparation.
  • Make targeted objections to victim identity, causation, and loss quantification.
  • Propose apportionment metrics (e.g., duration, scope) to avoid joint liability for the full amount.
• Amendment 827 (effective November 2024) moves “loss” into the Guideline text. For post-2024 sentencings, disputes about commentary deference (e.g., under Kisor) are less salient for loss definition. For pre-2024 sentencings (like Mitan’s), Sixth Circuit precedent continues to validate reliance on commentary definitions where not inconsistent with the text.
• Co-defendant disparity claims remain uphill where criminal history and roles differ, especially in complex, international frauds requiring general and specific deterrence.

Complex Concepts Simplified

• Intended loss vs. actual loss: “Actual loss” is what victims truly lost. “Intended loss” is the harm the defendant meant to cause, even if it didn’t fully materialize (e.g., compromised cards that weren’t all used, or would have been declined). Sentencing uses the greater of the two.
• Reasonable estimate of loss: Courts need not prove exact dollars in complex frauds. They make a reasonable estimate supported by evidence (e.g., average per-card losses from victim banks) and explain how they got there.
• Double counting: Impermissible only if two enhancements punish the same aspect of the same conduct. It is permissible if each targets a different harm (e.g., “where” the scheme occurred vs. “how” the money was cleaned).
• Sophisticated laundering: Using multiple steps and structures to hide proceeds—cryptocurrency conversion, movement through several wallets, and foreign intermediaries—to frustrate tracing.
• MVRA restitution: For many fraud crimes, restitution is mandatory. It compensates victims’ losses and can be joint and several across conspirators. It is not limited to the defendant’s personal profit.
• Substantive reasonableness: An appellate check that the sentence is not “greater than necessary” under §3553(a). Below-Guidelines sentences are particularly hard to upset on appeal.

Conclusion

United States v. Mitan crystallizes three practical points for cyber-fraud sentencings and MVRA restitution in the Sixth Circuit. First, district courts may rely on intended loss, and an empirically grounded per-card estimate—distinct from a commentary “minimum”—will likely stand. Second, applying both the international-conduct and sophisticated-laundering enhancements is permissible where they address different harms, a frequent pattern in cryptocurrency-driven laundering. Third, MVRA restitution will be sustained despite late government filings when the defendant has clear notice and an opportunity to contest at sentencing; restitution is about victim loss, not the defendant’s personal gain, and joint/several liability remains a potent tool.

Although non-precedential, the opinion provides a detailed roadmap for constructing (and defending against) loss estimates and enhancements in data-compromise and crypto-laundering schemes, and it offers pragmatic guidance on structuring restitution records under the MVRA. Counsel on both sides should heed the court’s emphasis on evidentiary grounding, distinct-harms analysis for enhancements, and careful attention to notice and timing in restitution practice.