No Double Counting: § 3B1.3 Must Not Apply When § 2B1.1(b)(9)(A) Is Based on the Same Conduct (11th Cir.)

1. Introduction

In United States v. Cassandra Harris Parker (11th Cir. Mar. 5, 2026) (per curiam) (not for publication), the Eleventh Circuit reviewed a 37-month sentence imposed after Cassandra Parker pleaded guilty (open plea) to: (i) conspiracy to commit federal program theft, 18 U.S.C. § 371, and (ii) theft concerning programs receiving federal funds, 18 U.S.C. § 666(a)(1), arising from an embezzlement scheme at Tuskegee University.

The appeal centered on whether the district court correctly applied several Sentencing Guidelines enhancements—particularly: the loss amount increase under U.S.S.G. § 2B1.1(b)(1), the leader/organizer increase under U.S.S.G. § 3B1.1(a), and the abuse-of-trust increase under U.S.S.G. § 3B1.3—and whether the court impermissibly “double counted” by applying both U.S.S.G. § 2B1.1(b)(9)(A) (misrepresentation of acting on behalf of an educational organization) and § 3B1.3 based on the same conduct.

2. Summary of the Opinion

  • Loss amount (§ 2B1.1(b)(1)): Affirmed. The district court did not clearly err in attributing losses tied to co-conspirators Parker claimed she did not know (Welch and Tyner), because their conduct was reasonably foreseeable given Parker’s knowing, active participation in an ongoing conspiracy.
  • Organizer/leader (§ 3B1.1(a)): Affirmed. Recruiting four participants, directing their activity, and taking a substantially larger share supported a leader/organizer finding.
  • Double counting (§ 2B1.1(b)(9)(A) and § 3B1.3): Reversed on plain-error review. Under U.S.S.G. § 2B1.1, cmt. (n.8(E)(i)), if the conduct supporting the § 2B1.1(b)(9)(A) enhancement is the only conduct supporting § 3B1.3, then § 3B1.3 must not apply. The record showed both enhancements rested on the same conduct (Parker’s position at the university), making § 3B1.3 ineligible. Because the error changed the Guidelines range, the court vacated and remanded for resentencing.

3. Analysis

3.1. Precedents Cited

The panel’s reasoning is built on a familiar scaffold: standards of review, relevant-conduct attribution in conspiracies, leadership-role factors, and plain-error correction when an incorrect Guidelines range is used.

A. Standards of review and evidentiary burdens

  • United States v. Jackson, 997 F.3d 1138 (11th Cir. 2021): Provided the baseline framework—Guideline interpretation/application is reviewed de novo, while fact findings are reviewed for clear error. This allocation mattered because Parker’s loss amount and role arguments largely attacked factual determinations.
  • United States v. Rodriguez-Lopez, 363 F.3d 1134 (11th Cir. 2004): Supplied the “definite and firm conviction” formulation for clear-error review, reinforcing the deference given to district court findings.
  • United States v. Wilson, 788 F.3d 1298 (11th Cir. 2015): Emphasized that choosing between “two permissible views” of evidence is not clear error—important where Parker’s account (limited knowledge) competed with an inference of foreseeability from the long-running scheme.
  • United States v. Victor, 719 F.3d 1288 (11th Cir. 2013): Confirmed the government’s burden to prove enhancements by a preponderance of the evidence.
  • United States v. Ramirez-Flores, 743 F.3d 816 (11th Cir. 2014): Set the plain-error lens for issues raised first on appeal—the key gateway for Parker’s double-counting claim.

B. Loss calculation and relevant conduct in jointly undertaken criminal activity

  • United States v. Cavallo, 790 F.3d 1202 (11th Cir. 2015): Supported the proposition that loss need only be a “reasonable estimate,” not a precise accounting, thereby insulating the district court’s calculation from attack absent clear error.
  • United States v. Siegelman, 786 F.3d 1322 (11th Cir. 2015): Anchored the requirement that the Guidelines calculation must reflect “relevant conduct,” which in conspiracy cases can include acts of others.
  • United States v. Hunter, 323 F.3d 1314 (11th Cir. 2003): Supplied the operative rule that conspirators can be accountable for losses caused by reasonably foreseeable acts of co-conspirators in furtherance of the conspiracy—critical to attributing Welch’s and Tyner’s losses to Parker.
  • United States v. Wheeler, 16 F.4th 805 (11th Cir. 2021): Strengthened attribution by stating a defendant can be liable for the total conspiracy loss when “actively involved in furthering the conspiracy’s overall objective.” The court used Wheeler to characterize Parker’s participation as integral rather than peripheral.
  • United States v. Chitty, 15 F.3d 159 (11th Cir. 1994): Parker invoked Chitty as a limiting analogy. The panel distinguished it: Chitty involved “isolated, minimal involvement” and lack of knowledge of broader operations, while Parker knowingly joined a long-running scheme and performed essential internal functions (purchase orders/check retrieval) that made the fraud work.

C. Leadership-role enhancement

  • United States v. Ramirez, 426 F.3d 1344 (11th Cir. 2005): Provided the standard: leadership/organizer determinations are factual findings reviewed for clear error.
  • United States v. Shabazz, 887 F.3d 1204 (11th Cir. 2018): Supplied the multi-factor framework (decision-making, recruitment, control, share of proceeds, etc.) and reiterated that supervising “one or more” participants can suffice.
  • United States v. Caraballo, 595 F.3d 1214 (11th Cir. 2010): Reinforced that not all factors must be present and highlighted recruitment/instruction/decision-making as common proofs of leadership—features the panel found in Parker’s recruitment and direction of four check cashers and her collection of proceeds.

D. Guideline commentary after Dupree—and reliance when uncontested

  • United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc): Stated courts may not defer to Guideline commentary where the guideline text is unambiguous (the Eleventh Circuit’s post-Kisor approach). The panel flagged Dupree but proceeded to rely on commentary because the parties did not contest its validity.
  • United States v. Jews, 74 F.4th 1325 (11th Cir. 2023): Supported that practical move: where no party challenges commentary validity, the court may rely on it. This mattered because the no-double-counting rule came from § 2B1.1’s commentary.

E. Plain error and incorrect Guidelines ranges

  • Molina-Martinez v. United States, 578 U.S. 189 (2016): Provided the core prejudice principle: in most cases, using the wrong Guidelines range is enough to show an effect on substantial rights. The panel relied on this to conclude a reasonable probability of a different outcome.
  • United States v. Olano, 507 U.S. 725 (1993): Provided the four-part plain-error test and the discretionary fourth prong (“fairness, integrity, or public reputation”).
  • Rosales-Mireles v. United States, 585 U.S. 129 (2018): Supported exercising discretion to correct Guidelines miscalculations that affect substantial rights; such errors ordinarily satisfy the fourth prong.

3.2. Legal Reasoning

A. Loss attribution: foreseeability from participation in a long-running fraud

The court treated Parker’s argument (“I didn’t know Welch and Tyner”) as insufficient to defeat foreseeability. The key move was to connect: (i) Parker’s admitted knowledge that the scheme existed and was illegal, (ii) the scheme’s longevity (“almost a decade” pre-dating her entry), and (iii) her active operational role (creating purchase orders, retrieving checks, recruiting additional cashers). From that, the panel inferred it was reasonably foreseeable that other check cashers existed and would continue operating after she joined.

In effect, the panel framed ignorance of identities as different from ignorance of operational reality: a conspirator can foresee “unknown others” when she joins an established enterprise whose mechanics necessarily require multiple participants.

B. Leadership: recruitment + direction + proceeds as practical markers of “organizer or leader”

Although Parker argued she was subordinate to Hairston and Kitt, the panel emphasized that Guideline leadership does not require being the single “mastermind.” It was enough that Parker (1) recruited four accomplices, (2) directed their check-cashing activity and collected proceeds, and (3) retained a larger share than the cashers. These facts aligned with Shabazz/Caraballo’s commonly cited indicators.

C. The key holding: commentary-based bar on stacking § 2B1.1(b)(9)(A) and § 3B1.3 for the same conduct

The decisive error was the simultaneous application of: § 2B1.1(b)(9)(A) (misrepresentation of acting on behalf of an educational organization) and § 3B1.3 (abuse of position of trust), where the PSI and sentencing record described both enhancements as flowing from the same core conduct: Parker’s use of her university purchasing-manager position.

The panel treated U.S.S.G. § 2B1.1, cmt. (n.8(E)(i)) as controlling: if the conduct supporting § 2B1.1(b)(9)(A) is “the only conduct” supporting § 3B1.3, then § 3B1.3 “do[es] not apply.” Because the record did not identify distinct, independent conduct supporting § 3B1.3 beyond what already justified § 2B1.1(b)(9)(A), the enhancement was ineligible.

On prejudice, the court applied Molina-Martinez: removing § 3B1.3 dropped the offense level and shifted the advisory range from 37–46 months to 30–37 months. With no clear indication the same sentence would have been imposed regardless, the error affected substantial rights and warranted correction under Rosales-Mireles.

Note: The opinion contains what appears to be a minor citation slip—stating that without “a two-level enhancement under § 3B1.1” the offense level would be 19. Context indicates the court meant “under § 3B1.3,” because the error found was the improper application of § 3B1.3, not the leadership enhancement under § 3B1.1(a).

3.3. Impact

  • Practical sentencing rule: The opinion reinforces that, at least where the record ties both enhancements to the same workplace-status conduct, a court must not stack § 2B1.1(b)(9)(A) and § 3B1.3. Even when a defendant does not raise the issue below, the error can be plain and lead to remand if the Guidelines range changes.
  • Record-building importance: If the government seeks both enhancements, it must develop and articulate distinct conduct for § 3B1.3 (beyond what supports § 2B1.1(b)(9)(A)), or accept that § 3B1.3 is barred by the commentary’s “only conduct” limitation.
  • Foreseeability in mature conspiracies: For loss attribution, the decision underscores that joining a longstanding scheme can expand foreseeable scope, even as to participants unknown by name—raising the stakes for defendants who enter an established fraud pipeline.
  • Non-publication caveat: Because the opinion is “NOT FOR PUBLICATION,” it is not binding precedent in the same way as published Eleventh Circuit decisions, but it is still a clear indicator of how the court applies (and will likely continue to apply) the § 2B1.1 commentary’s anti-double-counting rule on plain-error review.

4. Complex Concepts Simplified

Relevant conduct (U.S.S.G. § 1B1.3)
In conspiracy cases, sentencing can include not just what the defendant personally did, but also what co-conspirators did— if those acts were within the jointly undertaken activity, furthered it, and were reasonably foreseeable.
Reasonable foreseeability
A defendant need not know every participant or every transaction. If the broader conduct is a predictable part of the scheme the defendant joined, losses from that conduct can be attributed to the defendant.
Organizer/leader vs. manager/supervisor (U.S.S.G. § 3B1.1)
“Leader/organizer” often turns on recruitment, direction, control, planning, and share of profits. You can be a leader of a part of the scheme (e.g., supervising one group of participants) even if someone else started the conspiracy earlier.
Abuse of trust (U.S.S.G. § 3B1.3)
This enhancement applies when the defendant uses a position of trust (often a job with discretion or access) to significantly facilitate the crime.
Double counting (in this context)
“Double counting” means increasing the Guidelines offense level twice for the same essential conduct. Here, the Guidelines commentary to § 2B1.1 specifically prevents applying § 3B1.3 when § 2B1.1(b)(9)(A) already accounts for the same conduct and there is no additional, separate trust-abuse conduct.
Plain error
If an issue wasn’t properly raised in the district court, an appellate court will correct it only if it was clearly wrong (“plain”), likely changed the result, and undermines confidence in the fairness of the proceeding. Incorrect Guidelines ranges commonly qualify.

5. Conclusion

United States v. Cassandra Harris Parker is most significant for its enforcement—on plain-error review—of the § 2B1.1 commentary’s anti-stacking rule: when the misrepresentation enhancement under § 2B1.1(b)(9)(A) and the abuse-of-trust enhancement under § 3B1.3 rest on the same conduct, § 3B1.3 must not be applied. The decision simultaneously illustrates the Eleventh Circuit’s deference to district-court findings on loss and leadership when supported by the record, while showing little tolerance for Guidelines-range errors that alter the advisory range—even absent a timely objection.