Pre-2024 U.S.S.G. § 2B1.1 Requires the Greater of Actual or Intended Loss (and Upholds Upward Variances in Pandemic-Relief Fraud)

1. Introduction

In United States v. Omar Loaces Gonzalez, the Eleventh Circuit reviewed a sentence imposed after Omar Loaces Gonzalez pleaded guilty to wire fraud, in violation of 18 U.S.C. § 1343, for defrauding COVID-19-era federal relief programs—the Paycheck Protection Program and the Economic Injury Disaster Loan Program.

Two issues drove the appeal:

• Guidelines issue (loss calculation): whether the district court erred by using intended loss (rather than actual loss) under U.S.S.G. § 2B1.1 to calculate the advisory range.
• Reasonableness issue (variance): whether a 31-month sentence—above the calculated range—was substantively unreasonable for lack of sufficiently compelling justification.

The panel affirmed on both grounds, relying heavily on intervening circuit precedent and standard substantive-reasonableness principles.

2. Summary of the Opinion

The Presentence Investigation Report attributed $342,877 in intended loss and $210,832 in actual loss. Using intended loss triggered a 12-level enhancement under § 2B1.1 and produced a guidelines range of 21–27 months (Criminal History Category I). Gonzalez argued that “loss” meant actual loss, which would have reduced the range to 15–21 months. The district court overruled the objection, adopted the 21–27 month range, but then imposed an upward variance to 31 months after weighing § 3553(a).

On appeal, the Eleventh Circuit held:

• No Guidelines error: The argument that pre-2024 § 2B1.1 cannot use intended loss was foreclosed by United States v. Horn.
• No substantive unreasonableness: The district court adequately justified the upward variance based on the seriousness of pandemic-relief fraud, specific and general deterrence, and respect for the law; the sentence was well below the 20-year statutory maximum.

3. Analysis

3.1. Precedents Cited

A. Guidelines interpretation and standard of review

• United States v. Kluge, 147 F.4th 1291, 1296 (11th Cir. 2025): Cited for the proposition that guideline interpretation is reviewed de novo. This frames the first issue as a pure legal question—what § 2B1.1 “loss” means—rather than a discretionary sentencing call.
• United States v. Horn, 129 F.4th 1275 (11th Cir. 2025): The controlling decision. The panel treated Gonzalez’s argument as already decided: even before the 2024 amendment, § 2B1.1 “unambiguously” required using “the greater of actual loss or intended loss,” applying “traditional tools of statutory interpretation.” This foreclosed any attempt to confine “loss” to actual loss on the theory that intended loss appeared only in commentary.

B. Substantive reasonableness framework (Supreme Court and Eleventh Circuit)

• Gall v. United States, 552 U.S. 38, 41, 51 (2007): Provides the abuse-of-discretion framework for substantive reasonableness and the “totality of the circumstances” approach; also supports deference to district courts’ sentencing judgments.
• United States v. Goldman, 953 F.3d 1213, 1221 (11th Cir. 2020): Used to restate the “totality of the circumstances” test and the inquiry whether the sentence achieves § 3553(a)’s purposes.
• United States v. Butler, 39 F.4th 1349, 1355 (11th Cir. 2022): Cited for the principle that the weight assigned to each § 3553(a) factor is committed to the district court’s sound discretion—critical in upholding variances when the judge prioritizes deterrence or seriousness.
• United States v. Grushko, 50 F.4th 1, 18, 20 (11th Cir. 2022): Supplies two key points: (1) the district court need not discuss each factor individually if it acknowledges consideration of arguments and factors; and (2) there is no presumption that a sentence outside the guidelines is unreasonable, while major variances require more justification than minor ones.
• United States v. Hunt, 459 F.3d 1180, 1185 (11th Cir. 2006): Reinforces that guidelines are one consideration among § 3553(a) factors and that courts may assign them varying weight so long as they remain anchored to § 3553(a).
• United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (citing United States v. Campa, 459 F.3d 1121, 1174 (11th Cir. 2006) (en banc)): Provides the canonical three-part abuse-of-discretion description (failure to consider relevant factors; reliance on improper factors; clear error of judgment in weighing proper factors). The panel uses this as the measuring stick for the upward variance.
• United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008): Supplies the “definite and firm conviction” formulation for when an appellate court will reverse for substantive unreasonableness—setting a high bar to disturb the district court’s balancing.
• United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008): Cited for the idea that a sentence well below the statutory maximum is an indicator of reasonableness. The court used the 20-year maximum under 18 U.S.C. § 1343 as a benchmark to contextualize 31 months.

C. Ineffective assistance not addressed on direct appeal

• United States v. Flanders, 752 F.3d 1317, 1343 (11th Cir. 2014) (quoting United States v. Tyndale, 209 F.3d 1292, 1294 (11th Cir. 2000)): Cited for the general rule that ineffective assistance claims are not considered for the first time on direct appeal—preserving such claims for collateral proceedings (typically 28 U.S.C. § 2255) where a factual record can be developed.

3.2. Legal Reasoning

A. “Loss” under § 2B1.1: intended loss controls when greater (pre-2024)

The heart of the first issue is the relationship between guideline text and commentary. Before 2024, § 2B1.1’s text did not define “loss,” while the commentary stated that loss is “the greater of actual loss or intended loss.” The Sentencing Commission later adopted Amendment 827 (effective in the 2024 Guidelines manual), moving this definition into the guideline text.

Gonzalez attempted to leverage the pre-2024 structure to argue “loss” meant only actual loss. The panel rejected that position because United States v. Horn had already resolved the interpretive question: applying traditional interpretive tools, the pre-2024 guideline already unambiguously required using the greater of actual or intended loss. As a result:

• the district court properly used intended loss ($342,877) because it exceeded actual loss ($210,832); and
• the 12-level enhancement and resulting 21–27 month range were correctly calculated.

Importantly, the panel treated Amendment 827 not as creating a new rule, but as consistent with (and confirming) what the guideline already required under Horn.

B. Upward variance: district court discretion upheld under § 3553(a)

On the second issue, the panel applied the “totality of the circumstances” review. It emphasized that the district court:

• considered Gonzalez’s mitigation (acceptance of responsibility, family support, positive role), expressly acknowledging he appeared to be “a good family man,”
• but found the § 3553(a) factors did not justify a downward variance and instead supported an upward variance.

The district court articulated four principal reasons the panel deemed legitimate and sufficiently connected to § 3553(a):

• Seriousness / nature of the offense: fraud targeting “trust-based” pandemic-relief programs during a global emergency, implicating the integrity of government distribution of emergency funds.
• Specific deterrence: despite Criminal History Category I, Gonzalez had “several crimes in recent years,” supporting concern about recidivism and the need to deter him personally.
• General deterrence: the need to discourage others in the community who might view his conduct as a model.
• Respect for law: promoting respect for legal rules governing truthful applications for public funds, especially in crisis programs.

The panel also used the statutory maximum as a reasonableness cross-check: 31 months is far below the 20-year ceiling, which supports (though does not by itself establish) reasonableness under circuit precedent.

3.3. Impact

A. Loss calculation disputes in the Eleventh Circuit (pre-2024 cases)

This decision’s practical impact is largely consolidating Horn’s reach: defendants sentenced under the pre-2024 version of § 2B1.1 should expect the Eleventh Circuit to treat “loss” as the greater of actual or intended loss, notwithstanding that the definition formerly appeared in commentary. In short, within this circuit, the “intended-loss objection” to pre-2024 § 2B1.1 is now a losing argument on direct appeal.

B. Variances in pandemic-relief fraud cases

The opinion also signals continued appellate tolerance for upward variances in COVID-19 relief fraud where district courts:

• connect the variance to articulated § 3553(a) purposes (deterrence, seriousness, respect for law), and
• address mitigation but explain why it does not outweigh the offense context.

The court’s emphasis on the pandemic context reinforces that “circumstances of the offense” can take on heightened weight when the crime exploits emergency relief systems designed for public welfare.

4. Complex Concepts Simplified

• Actual loss vs. intended loss: Actual loss is the money actually taken. Intended loss is what the defendant meant to take (even if they failed or were stopped). Under § 2B1.1 (as applied here), courts use whichever is greater.
• Guidelines “commentary” vs. “text”: The guideline text is the rule itself; commentary explains how to apply it. Here, the key definition moved from commentary into text in 2024 (Amendment 827), but the Eleventh Circuit (via Horn) treats the earlier version as already requiring the same approach.
• Variance (upward/downward): A variance is a sentence outside the advisory guideline range based on § 3553(a) factors. It differs from a “departure,” which is a guidelines-authorized adjustment within the guideline system.
• Substantive reasonableness: This asks whether the length of the sentence is reasonable given § 3553(a), not whether the judge followed correct procedures. Appellate courts give substantial deference and reverse only for clear misjudgment in balancing factors.
• Ineffective assistance on direct appeal: Claims that counsel performed unreasonably usually require evidence outside the trial record, so they are typically raised later in a 28 U.S.C. § 2255 motion rather than on direct appeal.

5. Conclusion

United States v. Omar Loaces Gonzalez is a straightforward but important application of Eleventh Circuit sentencing doctrine in two respects. First, it confirms that, under United States v. Horn, the pre-2024 version of U.S.S.G. § 2B1.1 requires using the greater of actual or intended loss—making intended-loss challenges largely futile in this circuit for that guideline period. Second, it illustrates the deference given to district courts that impose above-guidelines sentences when they tie the variance to well-recognized § 3553(a) purposes, particularly deterrence and the heightened seriousness of fraud exploiting pandemic-relief programs.