Imputing Co-Schemers’ Mass-Marketing Conduct Without Explicit Scope Findings When the Record Supports Jointly Undertaken Fraud

Introduction

In United States v. Tomas Alksnys (11th Cir. Apr. 3, 2026) (unpublished), the Eleventh Circuit affirmed a 36-month sentence imposed after Alksnys pleaded guilty to bank fraud (18 U.S.C. § 1344) and money laundering (18 U.S.C. § 1957). The case arose from an internet vehicle-sale scheme in which victims wired funds to an Auto Haus Bank of America account that Alksnys opened using a false identity (“John Himmer”). Victims never received vehicles; Alksnys withdrew substantial cash shortly after the wires arrived.

On appeal, Alksnys challenged (i) a mass-marketing guideline enhancement based on co-schemers’ internet advertising, (ii) denial of a minor-role reduction, (iii) assessment of two criminal history points for a later Florida conviction, and (iv) the substantive reasonableness of his within-guidelines sentence. The government sought dismissal based on an appeal waiver; the panel denied that motion as moot after rejecting the appeal on the merits.

Summary of the Opinion

  • Mass marketing enhancement affirmed: Even though the district court did not make explicit individualized findings on the scope of Alksnys’s jointly undertaken activity, the record supported imputing co-schemers’ internet advertising as relevant conduct.
  • Minor-role reduction denied: The district court did not clearly err in finding Alksnys played a critical, trusted role (opening the account with fraudulent ID; repeated in-person withdrawals using false identification).
  • Criminal history points affirmed: The later Florida credit-card theft conviction was not treated as “part of the instant offense” (not relevant conduct), particularly given the temporal gap.
  • Substantive reasonableness affirmed: The 36-month sentence fell within the 30–37 month guidelines range and far below statutory maxima; the district court reasonably weighed § 3553(a) factors.

Analysis

Precedents Cited

1) Relevant conduct, jointly undertaken activity, and mass marketing

The panel relied on United States v. Moran, 778 F.3d 942 (11th Cir. 2015) for the proposition that the mass-marketing inquiry under U.S.S.G. § 2B1.1(b)(2)(A)(ii) may consider “all relevant conduct under § 1B1.3.” Moran provides the gateway: even if the defendant did not personally market, the enhancement may apply if the marketing is relevant conduct attributable to him under § 1B1.3(a)(1)(B).

The key attribution framework came from United States v. Barry, 163 F.4th 1346 (11th Cir. 2026), which the panel used to address a common sentencing error: a district court must make “individualized findings” on the scope of the defendant’s jointly undertaken activity before attributing others’ acts, because the scope of a defendant’s undertaking is not necessarily the scope of the whole conspiracy. Crucially, Barry also supplies the panel’s cure: even when such findings are missing, the sentence can be affirmed if “the record supports” the attribution determination.

Applying Moran and Barry, the panel affirmed despite the district court’s failure to articulate the individualized scope findings, because the record (including the plea proffer and unobjected-to PSR facts) supported an inference that Alksnys jointly undertook a scheme to fraudulently sell vehicles—making it reasonably foreseeable that internet advertising (mass marketing) would be used.

2) Burden of proof at sentencing and what counts as “evidence”

Alksnys argued that once he objected, the government had to introduce evidence and failed to do so. The panel answered with the Eleventh Circuit’s established burden rule from United States v. Washington, 714 F.3d 1358 (11th Cir. 2013): the government must prove guideline-enhancement facts by a preponderance with “sufficient and reliable evidence.”

The panel then emphasized what can satisfy that burden: admissions in the plea proffer and unobjected-to PSR assertions. It cited United States v. Thomas, 32 F.4th 1073 (11th Cir. 2022) and United States v. Baldwin, 774 F.3d 711 (11th Cir. 2014) for the proposition that plea-proffer admissions and undisputed PSR facts may supply the necessary evidentiary support.

3) Minor-role reduction: deference and the De Varon framework

The panel reviewed the minor-role denial for clear error and cited United States v. Cruickshank, 837 F.3d 1182 (11th Cir. 2016) for the deferential nature of that review.

Substantively, it invoked the two-part analytical approach from United States v. Rodriguez De Varon, 175 F.3d 930 (11th Cir. 1999): (1) compare the defendant’s role to the relevant conduct for which he is held accountable, and (2) compare his role to other participants in that relevant conduct. The panel held that repeatedly using false ID to open and access the central bank account and withdrawing large sums supported the district court’s finding that Alksnys was not substantially less culpable, even if he did not advertise or communicate with victims.

4) Guideline commentary after Dupree (and why it still mattered here)

The opinion includes an important interpretive aside tied to United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc), which held that guideline commentary is owed deference only if the guideline text is ambiguous. Here, however, neither party contested the application of commentary to § 3B1.2 or § 4A1.2, and both relied on it; thus, the panel followed United States v. Jews, 74 F.4th 1325 (11th Cir. 2023) in considering the commentary in that posture. While not altering outcomes, this signals that post-Dupree litigation can turn on whether parties preserve commentary-text conflicts and ambiguity arguments.

5) Substantive reasonableness and deference to district-court weighing

The panel applied the abuse-of-discretion framework from Gall v. United States, 552 U.S. 38 (2007). It used the Eleventh Circuit’s “definite and firm conviction” formulation from United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc). It reiterated that the weight given to specific § 3553(a) factors is for the district court, citing United States v. Croteau, 819 F.3d 1293 (11th Cir. 2016), and placed the burden on the appellant under United States v. Boone, 97 F.4th 1331 (11th Cir. 2024).

For an “anchor” indicator of reasonableness, it cited United States v. Woodson, 30 F.4th 1295 (11th Cir. 2022), noting that while no presumption of reasonableness applies, within-guidelines and well-below-statutory-maximum sentences typically support affirmance.

Legal Reasoning

1) The operative rule applied: record-supported attribution can salvage missing scope findings

The opinion’s most practically significant holding is its application of the Barry principle: although individualized scope findings are required before attributing co-participant acts as relevant conduct, the appellate court can affirm without such findings when the record supports the imputation determination. The panel treated the deficiency as non-fatal because circumstantial facts supported a finding that Alksnys jointly undertook the fraudulent vehicle-sale scheme and that mass marketing via the internet was reasonably foreseeable.

The panel’s foreseeability analysis was driven by the scheme’s structure:

  • Alksnys opened an “Auto Haus” account using false identity documents, supporting knowledge that the enterprise was not legitimate.
  • The account received multiple wires from different individuals in vehicle-price ranges over a short period.
  • Alksnys promptly conducted multiple in-person cash withdrawals using fraudulent ID.

These facts allowed the court to infer agreement to participate in fraudulent “vehicle sales” (not merely generic money handling), and thus infer foreseeability that the scheme used online advertising to reach victims.

2) Enhancement proof mechanics: admissions + undisputed PSR facts

The panel underscored a recurrent sentencing principle: the government does not necessarily need live testimony or exhibits at sentencing if the necessary facts are established by reliable sources already in the record—especially plea-proffer admissions and PSR facts not specifically disputed. This mattered because Alksnys’s objection focused on his personal noninvolvement in advertising, not on whether advertising occurred or whether victims were recruited online.

3) Minor role: “critical node” participation defeats mitigating role

The panel’s minor-role analysis reflects the Eleventh Circuit’s traditionally restrictive approach under De Varon: a defendant can be denied a minor-role reduction even if others are more culpable, where his own conduct was essential to accomplishing the offense conduct for which he is held accountable. Here, the court characterized Alksnys as more than a passive “money mule” because he established and controlled access to the account using in-person misrepresentations and repeatedly executed cash withdrawals.

4) Criminal history: temporal separation undermines “part of the instant offense”

For criminal history scoring, the panel focused on the guideline concept that prior sentences do not count only if they are for “conduct not part of the instant offense,” with “part of” generally mapped to “relevant conduct” under § 1B1.3 (via § 4A1.2 commentary). The court found that the Florida offense conduct occurred months after completion of the federal offenses, and that gap made it unpersuasive to treat the state conduct as relevant conduct to the federal case (even if a similar false identity appeared in both).

5) Substantive reasonableness: within-range sentence, individualized § 3553(a) explanation

The panel credited the district court’s explanation that Alksnys quickly earned $17,000 over roughly 60 days, repeatedly used false identification, and played a trusted role as sole signatory for an account receiving over $170,000 in victim wires. It also rejected a disparity argument based on unindicted co-schemers because § 3553(a)(6) concerns disparities among defendants “who have been found guilty.”

Impact

  • Sentencing attribution disputes: The decision illustrates how easily an appellate court may affirm co-participant attribution despite imperfect scope findings when the record supports the inference of joint undertaking and foreseeability. Practically, defense counsel should (i) demand explicit scope findings under § 1B1.3(a)(1)(B), but also (ii) build a record that undermines the inference of agreement to the broader scheme (not merely the inference of knowledge).
  • Mass marketing enhancement exposure in “back-end” roles: Defendants who handle accounts/cash-outs can still face § 2B1.1(b)(2)(A)(ii) if the offense model logically implies broad victim solicitation. The “foreseeability” step may be satisfied by scheme characteristics (multiple victims, wire amounts matching typical online purchases, rapid withdrawals), even without direct evidence the defendant saw advertisements.
  • Minor-role reductions remain difficult: The opinion reinforces that control of a critical conduit (bank account access) can defeat mitigating role arguments, even where others handle victim-facing deception.
  • Post-Dupree commentary practice: The court’s reliance on commentary because the parties did not contest it signals that litigants who want to limit commentary’s role must preserve ambiguity and inconsistency arguments explicitly; otherwise, panels may proceed as if commentary is usable guidance.
  • Unpublished but informative: As “NOT FOR PUBLICATION,” the decision is not binding precedent, but it is a useful indicator of how the Eleventh Circuit is likely to apply Barry/Moran/De Varon in similar guideline disputes.

Complex Concepts Simplified

Mass marketing (U.S.S.G. § 2B1.1(b)(2)(A)(ii))
A two-level increase when the crime is carried out by soliciting a large audience—often via the internet (websites, broad online postings). Even if the defendant did not personally post ads, the enhancement can apply if co-participants’ mass marketing is attributable as “relevant conduct.”
Relevant conduct & jointly undertaken criminal activity (U.S.S.G. § 1B1.3)
Sentencing can account for more than the defendant’s personal acts. In a shared scheme, the defendant can be held responsible for others’ acts if those acts were: within the scope of what the defendant agreed to do, in furtherance of it, and reasonably foreseeable.
Individualized scope findings
The sentencing judge should specify what the defendant actually agreed to undertake (which may be narrower than the entire scheme). Under Barry, appellate courts may still affirm without explicit findings if the record clearly supports the attribution decision.
Minor participant (U.S.S.G. § 3B1.2(b))
A two-level decrease for someone less culpable than most participants. In the Eleventh Circuit (De Varon), courts focus heavily on the defendant’s role in the conduct that determined his guideline range, and on comparisons to other participants in that same relevant conduct.
Criminal history points & “part of the instant offense” (U.S.S.G. §§ 4A1.1, 4A1.2)
Prior sentences add points unless the prior conduct is treated as part of (i.e., relevant to) the instant federal offense. Temporal distance and separateness can defeat efforts to treat later state conduct as part of the earlier federal offense.
Substantive reasonableness (18 U.S.C. § 3553(a); Gall)
Appellate review asks whether the sentence falls within a range of reasonable outcomes given the facts and the statutory sentencing factors. Courts defer substantially to the district judge’s weighing of those factors.
Appeal waiver
Plea agreements often waive sentencing appeals. Here, the panel avoided deciding enforceability because it affirmed on the merits, denying the government’s dismissal motion as moot.

Conclusion

United States v. Tomas Alksnys affirms a within-guidelines sentence and, most notably, applies the principle that a district court’s failure to make explicit, individualized scope findings for relevant-conduct attribution will not require reversal when the record supports imputing co-participants’ conduct—here, mass-marketing internet advertising in a fraudulent vehicle-sale scheme. The decision also reinforces the Eleventh Circuit’s deferential approach to minor-role determinations, its pragmatic view of what can satisfy the government’s sentencing burden (plea admissions and undisputed PSR facts), and its reluctance to treat temporally separated state offenses as “part of” the instant federal offense for criminal history scoring.