U.S.S.G. § 1B1.3(c) Limits Only Acquitted Conduct: Uncharged/Unadjudicated Relevant Conduct May Still Drive RICO Fraud Loss, Restitution, and Forfeiture

I. Introduction

In United States v. Phillip Howard (11th Cir. Jan. 7, 2026) (unpublished), Phillip Timothy Howard appealed his RICO conviction and the resulting sentence after pleading guilty to racketeering under 18 U.S.C. § 1962(c). The case arose from Howard’s role as founder/president of Howard & Associates and The Cambridge Entities and his admitted misconduct involving investor funds—particularly funds solicited from former NFL players—through alleged misrepresentations and concealment of key facts (including the background of an investment manager barred by the SEC).

Howard challenged (1) the validity of his guilty plea (insufficient factual basis; not knowing/voluntary), (2) the procedural and substantive reasonableness of his 168-month prison sentence (including use of relevant conduct and loss calculations), and (3) the district court’s orders of restitution (set at actual loss) and a forfeiture money judgment of $10,651,941.40.

The Eleventh Circuit affirmed across the board. A particularly important doctrinal point is the court’s treatment of the 2024/2025 Guidelines change to relevant conduct: the panel read U.S.S.G. § 1B1.3(c) as barring only acquitted conduct—leaving uncharged or non-acquitted conduct available for guideline calculations.

II. Summary of the Opinion

  • Plea validity affirmed: The court found no plain error in accepting the plea because the written statement of facts provided a sufficient factual basis, and the Rule 11 colloquy established the plea was knowing and voluntary.
  • Procedural reasonableness affirmed: The district court permissibly considered relevant conduct beyond the plea admissions; and the loss calculation (approximately $12.6 million actual loss) was not clearly erroneous. Claimed “credits” (loans, business expenses, speculative equity value, collateral) were properly denied or valued at zero.
  • Substantive reasonableness affirmed: The within-guidelines sentence was upheld as reasonable under 18 U.S.C. § 3553(a).
  • Restitution affirmed: Restitution equaled the proven actual loss ($12,641,941.06), consistent with the overlap between guideline “actual loss” and restitution calculation.
  • Forfeiture affirmed: The $10,651,941.40 forfeiture money judgment was supported by tracing testimony and a reasonable estimate of proceeds derived from racketeering activity.

III. Analysis

A. Precedents Cited

1. Guilty plea standards: factual basis and plain error

  • United States v. Puentes-Hurtado set the appellate posture: because Howard did not challenge his plea in the district court, review was for plain error.
  • United States v. Hill supplied the four-part plain-error framework (clear error; effect on substantial rights; effect on integrity of proceedings).
  • United States v. Frye and United States v. Owen governed the Rule 11 factual-basis inquiry: the district court must have evidence from which it could “reasonably find” guilt, and need not have “uncontroverted” evidence.
  • United States v. Olano and United States v. Dominguez Benitez framed prejudice: after a plea, the defendant must show a reasonable probability he would not have pleaded guilty but for the Rule 11 error.

2. Elements of RICO and predicate wire fraud

  • United States v. Starrett supplied the elements of a § 1962(c) offense, including a “pattern” requiring at least two racketeering acts within ten years.
  • United States v. Maxwell set out wire fraud’s elements and materiality standard, which mattered because wire fraud was the racketeering activity supporting the plea and sentencing narrative.

3. Knowing and voluntary pleas: Rule 11 “core objectives”

  • McCarthy v. United States anchored the constitutional requirement that pleas be knowing and voluntary.
  • United States v. Presendieu provided the three “core objectives” of Rule 11: absence of coercion, understanding the nature of charges, and understanding consequences.
  • United States v. Moriarty and United States v. Lewis guided what must be covered in the colloquy and that the court must address the defendant personally.

4. Sentencing procedure, objections, and appellate constraints

  • United States v. Barrington supplied the abuse-of-discretion framework for procedural reasonableness (incorrect standards, improper procedures, clearly erroneous findings).
  • United States v. Ramirez-Flores was used to enforce forfeiture of issues not clearly objected to at sentencing—important because Howard’s “relevant conduct” complaint was reviewed only for plain error.
  • United States v. Cunningham and United States v. Brown underscored abandonment principles for inadequate briefing, reinforcing that appellate review depends not just on merits but also on preservation and presentation.

5. Relevant conduct and the post-Booker advisory guideline regime

  • United States v. Booker established the advisory guidelines system and the obligation to consult the Guidelines.
  • United States v. Chau was the key constitutional rebuttal: in an advisory system, “extra-verdict enhancements” do not violate the Constitution—supporting the panel’s rejection of Howard’s Fifth and Sixth Amendment arguments.
  • United States v. Matthews, United States v. Beckles, and United States v. Aguilar-Ibarra collectively supported the mechanics of guideline fact-finding: courts may rely on plea admissions, undisputed PSI facts (deemed admitted), and sentencing evidence; disputed facts must be proven by a preponderance.

6. Loss calculation doctrine (guidelines and causation)

  • United States v. Cavallo and United States v. Yeager structured the loss analysis: the government must prove loss by a preponderance, the court may make a reasonable estimate, but cannot speculate; contested estimates must be supported by reliable and specific evidence.
  • United States v. Hamaker and United States v. Hunter reinforced that relevant conduct can drive loss and that co-participants may be responsible for reasonably foreseeable losses in furtherance of a scheme (used here to legitimize broader loss attribution).
  • United States v. Woodard supplied the harmless-error principle: failure to deduct certain returns is harmless if it would not change the loss-enhancement threshold.
  • United States v. Campbell supported denial of credit for expenses that perpetuate a fraud scheme (even if superficially “legitimate”).
  • United States v. Stein supported proximate cause/foreseeability reasoning: complex medical/legal processes are foreseeable features of settlement claims, so they do not necessarily break the causal chain for loss.

7. Substantive reasonableness and the § 3553(a) framework

  • Gall v. United States provided the governing standard for substantive reasonableness review (abuse of discretion; totality of the circumstances).
  • United States v. McQueen emphasized that substantive unreasonableness is rare, setting a deferential tone.
  • United States v. Witt placed the burden on the challenger to show unreasonableness under the record and the § 3553(a) factors.
  • United States v. Pugh, United States v. Grushko, United States v. Gonzalez, and United States v. Amedeo collectively framed the district court’s discretion in weighing factors, the non-necessity of addressing each factor explicitly, and the meaning of silence as to mitigating evidence.
  • United States v. Irey supplied the “definite and firm conviction” standard for finding a clear error of judgment.
  • United States v. Dorsey and United States v. Thomas supported the panel’s reliance on benchmarks (within-guidelines expectation of reasonableness; below-statutory-maximum indicates reasonableness).

8. Restitution and forfeiture standards

  • United States v. Robertson provided the standard of review (legality de novo; amount abuse of discretion; factual findings clear error).
  • United States v. Martin framed restitution’s purposes (make victims whole; not an exact science; reasonable estimates allowed).
  • United States v. Foster required that restitution reflect loss actually caused by the defendant’s conduct.
  • United States v. Esformes supplied the forfeiture review standards.
  • United States v. Dicter set the government’s burden for criminal forfeiture (preponderance).

B. Legal Reasoning

1. Rule 11 factual basis and voluntariness

Applying Fed. R. Crim. P. 11(b)(3) and United States v. Frye, the panel held that the plea’s attached statement of facts gave the district court enough to reasonably find guilt: Howard admitted to leadership roles, concealment of a barred felon’s involvement, soliciting millions from former NFL players, and misrepresenting investments and returns. Under United States v. Owen, the absence of “uncontroverted evidence” did not matter.

As to voluntariness, the court relied on McCarthy v. United States and the Rule 11 “core objectives” in United States v. Presendieu. The district court’s personal colloquy, Howard’s confirmation of understanding, and his repeated admissions of guilt satisfied the constitutional baseline. The panel treated Howard’s claim that he did not intend victims to end without money as legally beside the point given his concession that he withheld material information despite a duty to disclose.

2. Relevant conduct after the 2024/2025 Guidelines change: acquitted conduct only

Howard’s principal procedural argument was that the district court improperly relied on “relevant conduct” beyond the plea admissions. The panel rejected that claim on two tracks:

  • Constitutional track: Citing United States v. Chau and the advisory-guidelines framework of United States v. Booker, the court reiterated that extra-verdict enhancements are not unconstitutional in an advisory system.
  • Guidelines track: Even assuming applicability of the 2024 amendment, the panel read U.S.S.G. § 1B1.3(c) narrowly: it bars consideration of conduct “for which the defendant was criminally charged and acquitted in federal court.” Because there was no acquittal here, the limitation did not apply. In effect, unacquitted conduct remained available as relevant conduct.

3. Loss calculation: credits, valuation at zero, and causation

The court upheld the district court’s actual-loss finding (~$12.6 million) and rejected Howard’s proposed offsets. Using U.S.S.G. § 2B1.1 cmt. 3(D)(i) and § 2B1.1 cmt. 3(E)(iv), the panel treated “credits against loss” as limited and context-dependent.

  • Loans to victims: The panel treated “loans” as separate transactions with repayment expectations and thus not “money returned” that would offset investment-scheme loss under the commentary’s principles.
  • Medical/travel costs and other spending: Under United States v. Campbell, expenditures that perpetuate a fraud do not become credits merely because they resemble legitimate business expenses.
  • Startup equity value: The district court did not clearly err in valuing the investment at $0 given lack of substantiated value and no marketable product.
  • Third-party lender and collateral valuations: The court accepted valuation of certain high-risk loans and collateral at $0 based on testimony regarding the practical barriers to recovery (including disbarment and other complications).
  • Proximate cause: Relying on United States v. Stein, the panel held that delays and uncertainties in medical/legal claims processing were foreseeable and did not sever causation where the ability to raise funds depended on misrepresentations.

4. Substantive reasonableness: deference and benchmarks

Under Gall v. United States and Eleventh Circuit reasonableness caselaw (United States v. Pugh, United States v. Grushko), the panel upheld a 168-month sentence. The district court permissibly weighed seriousness of the fraud, just punishment, and deterrence over Howard’s mitigating arguments (age, lack of criminal history, asserted intent to repay). The panel also invoked benchmarks from United States v. Dorsey (within-guidelines expectation) and United States v. Thomas (well below statutory maximum) to support affirmance.

5. Restitution and forfeiture: distinct remedies, consistent proof standards

For restitution, the panel applied United States v. Foster (actual loss caused) and United States v. Martin (reasonable estimates; not exact science), and adopted United States v. Stein for the proposition that guideline actual-loss calculations generally track restitution. Thus, using the same rationale that supported loss, the panel affirmed restitution of $12,641,941.06.

For forfeiture, the court applied 18 U.S.C. § 1963(a)(3) (forfeiture of proceeds derived from racketeering), and the burden framework from United States v. Dicter, with review standards from United States v. Esformes. It upheld the forfeiture money judgment based on the IRS investigator’s tracing analysis and the district court’s acceptance of that evidence.

C. Impact

  1. Narrow reading of U.S.S.G. § 1B1.3(c): The opinion signals that, at least in this panel’s view, the 2024/2025 “acquitted conduct” limitation does not restrict consideration of uncharged, dismissed, or otherwise unacquitted conduct (subject to ordinary proof standards). This narrows the practical reach of the amendment to the specific circumstance of a federal-court acquittal.
  2. Loss “credits” are not an equity exercise: The decision reinforces a structured approach to offsets: loans, scheme-perpetuating expenses, speculative asset values, and practically unrecoverable collateral may be denied or valued at zero when supported by testimony and record evidence.
  3. Restitution often tracks guideline actual loss: By reaffirming the close relationship between guideline loss and restitution amounts, the opinion may encourage litigants to focus restitution disputes on the same evidentiary and causation issues litigated in loss-enhancement fights.
  4. Forfeiture tracing evidence can carry the day: The court’s acceptance of tracing testimony underscores the importance of forensic accounting at sentencing and the relative difficulty of overturning forfeiture amounts on appeal absent clear error.

IV. Complex Concepts Simplified

  • Plain error review: A demanding appellate standard used when an issue was not properly raised below; the defendant must show a clear error that likely changed the outcome and seriously undermined the fairness of the proceedings.
  • Rule 11 factual basis: Before accepting a guilty plea, the judge must confirm there are enough facts in the record to reasonably support guilt—without needing a mini-trial.
  • Relevant conduct: Conduct beyond the exact elements admitted in the plea can still affect the guideline range (e.g., loss amount), so long as the court may find it by a preponderance of the evidence and the Guidelines permit it. Here, the court emphasized that § 1B1.3(c) removes only acquitted conduct from relevant conduct.
  • Actual loss vs. “credits against loss”: “Actual loss” is the reasonably foreseeable pecuniary harm caused. “Credits” reduce that number only in defined situations—typically money or property returned before detection—rather than any expenditure the defendant claims created value.
  • Restitution vs. forfeiture: Restitution is designed to compensate victims; forfeiture is a penalty that strips the defendant of proceeds of crime. They may be based on related financial evidence, but they serve different legal purposes.

V. Conclusion

United States v. Phillip Howard affirms a full suite of district-court determinations—plea validity, guideline calculations, sentence reasonableness, restitution, and forfeiture— in a RICO fraud setting. The opinion’s most notable legal takeaway is its interpretation of U.S.S.G. § 1B1.3(c): the 2024/2025 limitation is confined to conduct that resulted in a federal acquittal, leaving unacquitted conduct available as relevant conduct for guideline purposes. Coupled with its strict approach to claimed loss offsets and its acceptance of reasonable valuation at zero when recovery is impractical, the decision provides a clear, prosecution-favorable roadmap for sustaining loss-driven sentences, restitution amounts, and RICO forfeiture judgments on appeal—especially under deferential standards of review.