Empirical Intended-Loss Estimation, Distinct-Harm Enhancements, and MVRA Restitution Notice: Sixth Circuit Affirms in United States v. Mitan

Introduction

In United States v. Adrian Mitan (6th Cir. May 14, 2025), a Sixth Circuit panel (Judges Clay, Nalbandian, and Davis; opinion by Judge Davis) affirmed a 140-month sentence and restitution orders arising from three consolidated cyber-enabled fraud conspiracies. The case presents a comprehensive application of modern federal sentencing doctrine to large-scale, transnational cybercrime: (1) how sentencing courts may use empirical, per-card averages to estimate “intended loss” under U.S.S.G. § 2B1.1; (2) when enhancements for a substantial part of a fraud being committed abroad (§ 2B1.1(b)(10)(B)) and for “sophisticated laundering” (§ 2S1.1(b)(3)) may both be applied without impermissible double counting; and (3) how mandatory restitution under the MVRA can be imposed even where the government’s prehearing brief omitted an explicit restitution request for one count, provided the defendant had adequate notice and an opportunity to contest.

The defendant, a Romanian national, pleaded guilty under a global agreement to: conspiracy to commit bank fraud (VoIP “vishing”), conspiracy to commit money laundering (a “brute-force” phishing/ATM cashout scheme), and conspiracy to commit a RICO offense (an online auction fraud network). The district court grouped the offenses together, selected money laundering as the most serious offense, applied multiple enhancements (including an 18-level loss enhancement under § 2B1.1(b)(1)(J)), and varied downward to 140 months. It also ordered restitution of $75,220.51 (brute-force conspiracy) and $675,000 (RICO conspiracy).

On appeal, Mitan challenged the loss methodology (arguing for actual loss rather than intended loss and contesting the $500-per-card estimate), claimed double counting between enhancements, argued his below-guidelines sentence was substantively unreasonable (including disparity with co-conspirators), and attacked the restitution orders, focusing on notice and apportionment. The Sixth Circuit rejected all challenges.

Summary of the Opinion

• Intended loss vs. actual loss: The court held that the district court properly used intended loss for § 2B1.1, consistent with Sixth Circuit precedent (e.g., United States v. You). Though the guideline text (2018 Manual) did not define “loss,” the commentary’s “greater of intended or actual loss” definition remained controlling at the time, and has since been codified by Amendment 827 (Nov. 2024).
• Loss estimation methodology: The district court reasonably estimated intended loss using empirical, per-card averages drawn from actual bank data (roughly $500–$648 per compromised card), applied to approximately 13,000 card numbers (after a 25% credit for invalid numbers), producing a conservative estimate exceeding $6.5 million and supporting an 18-level enhancement. This approach avoided the arbitrary “floor” criticized in United States v. Riccardi because it rested on evidence, not a commentary shortcut.
• No impermissible double counting: Applying both the foreign conduct enhancement (§ 2B1.1(b)(10)(B)) and the sophisticated laundering enhancement (§ 2S1.1(b)(3)) penalized distinct harms—where the scheme was executed (substantial part outside the U.S.) versus how funds were laundered (cryptocurrency, layering, foreign intermediaries).
• Substantive reasonableness: The 140-month sentence—already below the 151–188 month guideline range—was not greater than necessary, appropriately reflected § 3553(a) factors, and did not create an unwarranted disparity given defendant’s greater culpability and higher criminal history category compared to co-conspirators.
• Restitution—notice and amount:
  • Brute-force conspiracy: Restitution was mandatory under the MVRA, and the defendant had adequate notice and opportunity to contest (plea agreement terms, PSR posture, pre-sentencing filings specifying financial institution losses, and ability to cross-examine at sentencing). The late government filing did not violate due process; defendant did not even seek a continuance.
  • RICO conspiracy: Restitution is measured by victims’ losses, not defendant’s personal gain; joint and several liability is permissible under § 3664(h). The district court reasonably apportioned $675,000 based on the conspiracy’s average monthly loss ($45,000) multiplied by the 15 months it found Mitan participated, rather than imposing the full $2.7 million.
• Outcome: Sentence and restitution affirmed in all respects.

Analysis

Precedents Cited and Their Role

• Loss under § 2B1.1 and commentary deference:
  • 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): These decisions adopted the commentary’s definition of “loss” (greater of actual or intended loss) as a reasonable interpretation of § 2B1.1, post-Kisor. Mitan conceded the panel would be bound by this line unless overruled en banc or by the Supreme Court.
  • United States v. Riccardi, 989 F.3d 476 (6th Cir. 2021): Important distinction. Riccardi rejected automatic application of a commentary-derived $500-per-device floor lacking textual basis. Here, the government did not rely on that floor; it presented bank-derived empirical averages. The court expressly distinguished this case from Riccardi.
  • United States v. Murphy, 815 F. App’x 918 (6th Cir. 2020): Earlier support for using intended loss via commentary, later fortified by You and its progeny.
  • Guidelines Amendment 827 (Nov. 2024): Moves the “loss” definition into the guideline text—cementing the approach that governed at Mitan’s 2021 sentencing and on appeal.
• Estimating loss and standards of review:
  • United States v. Agrawal, 97 F.4th 421 (6th Cir.), cert. denied, 145 S. Ct. 258 (2024): Methodology reviewed de novo; ultimate findings for clear error.
  • United States v. Ellis, 938 F.3d 757 (6th Cir. 2019); United States v. Estrada-Gonzalez, 32 F.4th 607 (6th Cir. 2022); United States v. Nicolescu, 17 F.4th 706 (6th Cir. 2021): A sentencing court need only make a reasonable estimate based on a preponderance; reviewing court defers if estimate is “plausible on the record as a whole.”
• Double-counting and enhancements:
  • United States v. Myers, 854 F.3d 341 (6th Cir. 2017): Multiple enhancements may apply if triggered by distinct conduct or address distinct harms.
  • United States v. Mehmood, 742 F. App’x 928 (6th Cir. 2018): Cautionary note where the same conduct supports both “sophisticated means” and “sophisticated laundering” enhancements; remand may be warranted. Here, the court found distinct rationales: geography vs. laundering methodology.
  • 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): Endorse applying sophisticated-laundering enhancement when multi-step, layered transactions are used to conceal proceeds.
• Sentencing reasonableness:
  • 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): Framework for procedural and substantive reasonableness; abuse-of-discretion review.
  • 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): Presumptions and burdens, especially heavy for below-guidelines sentences.
  • United States v. Conatser, 514 F.3d 508 (6th Cir. 2008): No strict proportionality required among co-defendants; individualized culpability and criminal history matter.
  • Rita v. United States, 551 U.S. 338 (2007): Role of district court’s explanation and responsiveness to nonfrivolous arguments.
• Restitution and due process notice:
  • MVRA, 18 U.S.C. § 3663A; § 3664: Restitution is mandatory for property offenses and fraud; PSR and pre-sentencing procedures establish how loss information should be gathered and presented.
  • United States v. Sawyer, 825 F.3d 287 (6th Cir. 2016); United States v. Bogart, 576 F.3d 565 (6th Cir. 2009): Due process is satisfied where defendant has notice and an opportunity to contest; courts may manage timing challenges consistent with § 3664.
  • United States v. Kilpatrick, 798 F.3d 365 (6th Cir. 2015); United States v. Williams, 612 F.3d 500 (6th Cir. 2010): Restitution is measured by victims’ loss, not defendant’s gain; joint and several liability available; apportionment permitted under § 3664(h).
  • Peugh v. United States, 569 U.S. 530 (2013): Ex post facto considerations; the court noted the district court used the guidelines applicable to the offense conduct period and the then-operative commentary.

Legal Reasoning

The Sixth Circuit’s doctrinal throughline is deference to reasonable, evidence-based sentencing determinations made by the district court, combined with a careful eye to ensure enhancements are not duplicative in purpose and that restitution procedure satisfies due process.

1. Intended loss is an appropriate measure—and was properly found here.
   • The panel reaffirmed that, at the time of sentencing, the commentary’s definition—“greater of actual or intended loss”—governed in the Sixth Circuit (You, Smith, Tellez, Kennert), and no superseding authority compels a departure. Amendment 827 now codifies that approach in the text of § 2B1.1.
   • The district court’s methodology was upheld: it derived a per-card intended-loss estimate from actual bank data (roughly $500–$648 per card) and applied it to approximately 13,000 cards (after a 25% discount for invalid numbers), yielding an amount exceeding the $3.5 million threshold for the 18-level enhancement under § 2B1.1(b)(1)(J). The court described its figure as “conservative” and explained that even more aggressive assumptions would still trigger the same loss band.
   • Riccardi did not bar the estimate: unlike Riccardi’s disapproved rote $500 commentary floor, this per-card figure was anchored in institution-specific empirical losses rather than an across-the-board commentary proxy.
2. No double counting: separate enhancements targeted separate harms.
   • Section 2B1.1(b)(10)(B) punished that a substantial part of the scheme was conducted from outside the United States (Romania); § 2S1.1(b)(3) punished the laundering’s sophistication (cryptocurrency conversion, multi-wallet layering, foreign intermediaries). As in Myers, multiple enhancements may be stacked when they respond to different facets of the conduct. Mehmood’s caution about overlapping “sophistication” was inapplicable because the enhancements here did not rest on the same facts or policy target.
3. Substantive reasonableness: heavy burden unmet.
   • The district court addressed each salient § 3553(a) factor, emphasized the breadth, international scope, and repetition of the cyberfraud conduct, and explained the need for deterrence. Any disparity with co-conspirators was nonproblematic given Mitan’s higher criminal history (Category III vs. others’ Category I) and greater culpability. With a below-guidelines term, Mitan’s already heavy burden to show substantive unreasonableness was not met.
4. Restitution: MVRA’s mandatory framework and adequate notice.
   • Brute-force conspiracy: Although the government’s brief primarily focused on RICO restitution and was late relative to a court-set deadline, the MVRA made restitution mandatory for each count; the consolidated plea agreement put Mitan on prolonged notice; the government filed a sentencing memorandum eleven days before sentencing disclosing the brute-force losses by identified institutions; and Mitan cross-examined the witness at sentencing. The court found this satisfied due process and § 3664’s procedural requirements; the defendant neither challenged the accuracy of the $75,220.51 total nor sought a continuance.
   • RICO conspiracy apportionment: Restitution tracks victim losses, not a defendant’s profits (Kilpatrick). Joint and several liability is permitted (Williams), and apportionment is allowed under § 3664(h). The district court carefully limited Mitan’s obligation to $675,000 by tying it to documented participation over 15 months at $45,000 per month, rather than the full $2.7 million. Finding no clear error in the court’s duration finding, the panel affirmed.

Impact

• Sentencing in cyber-enabled fraud will continue to rely on intended loss, now textually codified: After Amendment 827, litigants should expect § 2B1.1 loss to default to the greater of intended or actual loss. The key is evidentiary grounding: empirical averages (e.g., per-card) drawn from real victim data are robust and withstand Riccardi-type challenges.
• Per-card intended-loss estimates are viable if rooted in evidence: A “$500 per card” estimate survives attack when it is an average derived from actual institutional losses, especially with offsets for invalid cards and testimony linking the methodology to the scheme.
• Double-counting objections must isolate overlapping facts and purposes: Where enhancements address distinct sentencing interests (e.g., geographic execution vs. laundered-funds concealment methods), stacking is permissible. Defendants should pinpoint identical factual predicates and guideline text warning against overlap to prevail.
• MVRA restitution can be imposed notwithstanding late filings if notice is otherwise adequate: Defense teams should be prepared to address restitution at sentencing in MVRA cases even if the government’s filing is late or incomplete; the remedy is to seek a continuance and marshal counterevidence, not to presume forfeiture of restitution.
• Restitution measured by victim loss, not defendant’s gain; apportionment remains a flexible tool: In conspiracy cases, courts may impose joint and several liability or apportion based on duration and scope of participation. Defendants arguing for narrower apportionment should present concrete evidence of withdrawal dates and limited roles.
• Substantive reasonableness challenges to below-guidelines sentences are uphill: Absent an error in guideline calculation or a disregard of § 3553(a) factors, below-guidelines terms are rarely disturbed, particularly where the record reflects careful attention to deterrence and individualized culpability.

Complex Concepts Simplified

• Intended loss vs. actual loss: “Actual loss” is what victims actually lost; “intended loss” is what the defendant meant to inflict, even if some of it never materialized. The guideline uses the higher of the two.
• Empirical per-card estimate: In card-fraud cases, courts may multiply the number of compromised cards by an average loss per card derived from bank data, adjusted for invalid cards, to estimate intended loss.
• Double counting: Applying two enhancements is impermissible if both punish the same aspect of conduct for the same reason. It is permissible if they target different harms—for example, where the scheme occurred versus how proceeds were concealed.
• Sophisticated laundering: Methods that make tracing illicit funds harder—like converting to cryptocurrency, moving assets through multiple wallets/accounts, and using foreign intermediaries—qualify as “sophisticated.”
• Procedural vs. substantive reasonableness: Procedural asks whether the sentencing process (including guidelines calculation and explanation) was correct; substantive asks whether the sentence length is fair in light of the purposes of sentencing.
• MVRA restitution and notice: For many federal property/fraud offenses, restitution is mandatory. Due process requires notice and a chance to contest the amounts; courts can proceed at sentencing if those basics are met.
• Joint and several liability; apportionment (§ 3664(h)): In conspiracies, each defendant can be responsible for the full loss. Courts may also apportion based on duration or scope of participation to assign a fair share.

Conclusion

United States v. Mitan reinforces three durable themes in federal sentencing and restitution for cyber-enabled fraud. First, intended loss under § 2B1.1 remains the lodestar and—when supported by institution-specific empirical data—permits per-card estimates that comfortably sustain large loss enhancements. Second, enhancements for foreign execution (§ 2B1.1(b)(10)(B)) and sophisticated laundering (§ 2S1.1(b)(3)) can be imposed together when they address different sentencing interests, particularly in transnational cryptocurrency schemes. Third, MVRA restitution turns on victim loss, not offender gain; courts retain both the authority to impose joint and several liability and the discretion to apportion based on proven participation, and due process is satisfied when defendants have notice and an opportunity to be heard, even if the government’s filings are late or imperfect.

Although unpublished, Mitan is a detailed, persuasive roadmap for prosecutors and courts confronting modern cybercrime: ground loss estimates in empirical evidence; articulate the distinct rationales for multiple enhancements; and document restitution with sufficient specificity to afford the defense a fair chance to respond. For defense counsel, Mitan underscores the importance of timely seeking continuances when notice is arguably inadequate, marshalling counterevidence on loss, and precisely identifying overlapping enhancement facts to sustain a double-counting attack. The Sixth Circuit’s affirmance leaves intact a 140-month sentence and substantial restitution orders, and it clarifies practical expectations for loss, enhancements, and MVRA procedure in complex, international fraud cases.