U.S.S.G. § 1B1.3(c) Limits Only Acquitted-Conduct Use: Relevant Conduct Beyond the Plea Remains Proper

Case: United States v. Phillip Howard (11th Cir., Jan. 7, 2026) (per curiam) (not for publication)
Disposition: Affirmed guilty plea, 168-month sentence, restitution ($12,641,941.06), and forfeiture money judgment ($10,651,941.40).

I. Introduction

Phillip Timothy Howard pleaded guilty in the Northern District of Florida to racketeering under 18 U.S.C. § 1962(c). On appeal, he attacked (1) the validity of his plea (arguing an insufficient factual basis and lack of a knowing/voluntary plea), (2) the procedural and substantive reasonableness of his 168-month sentence (including loss calculations and “relevant conduct”), and (3) the amounts of restitution and criminal forfeiture.

The factual allegations centered on Howard’s investment-related enterprise (Howard & Associates and The Cambridge Entities), concealment of an investment manager’s disqualifying background, solicitation of substantial investments (including from former NFL players), and misrepresentations about investments/returns. The sentencing disputes focused heavily on the valuation of losses and whether various offsets (loans, expenses, collateral, and claimed asset values) should reduce the loss figure.

II. Summary of the Opinion

• Guilty plea upheld: Under plain-error review, the court found the Rule 11 factual basis sufficient and the plea knowing and voluntary.
• Procedural reasonableness upheld: The court approved the use of relevant conduct and affirmed the district court’s loss calculation—particularly its decision not to credit certain loans/expenses and to value speculative or practically unrecoverable items at $0.
• Substantive reasonableness upheld: A within-Guidelines 168-month sentence, well below the statutory maximum, was reasonable given seriousness, punishment, and deterrence.
• Restitution affirmed: Restitution matched actual loss ($12,641,941.06), consistent with the Guidelines’ actual-loss methodology.
• Forfeiture affirmed: A RICO forfeiture money judgment of $10,651,941.40 was supported by tracing testimony and a reasonable proceeds estimate.

III. Analysis

A. Precedents Cited and Their Role

1. Plea validity: Rule 11, factual basis, and plain error

• United States v. Puentes-Hurtado — Set the review framework: unpreserved plea challenges are reviewed for plain error. This drove the panel’s threshold holding that Howard bore a heightened burden on appeal.
• United States v. Hill — Supplied the four-part plain-error test (error, clear/obvious, substantial-rights prejudice, and fairness/integrity effects), which structured the plea analysis.
• Fed. R. Crim. P. 11(b)(3) with United States v. Frye and United States v. Owen — Defined what suffices for a factual basis: the court must have evidence from which it could “reasonably find” guilt; “uncontroverted evidence” is not required. These authorities supported affirmance because the statement of facts contained admissions satisfying the offense elements.
• United States v. Olano and United States v. Dominguez Benitez — Focused “substantial rights” on prejudice. Under Dominguez Benitez, Howard had to show a reasonable probability he would not have pleaded guilty but for the Rule 11 error—an onerous showing he did not make.

2. Substantive criminal law referenced in the factual-basis discussion

• United States v. Starrett — Provided the Eleventh Circuit’s articulation of the elements of a § 1962(c) RICO offense, including “enterprise,” interstate commerce, association, participation, and a “pattern of racketeering activity” (at least two acts in ten years).
• United States v. Maxwell — Defined wire fraud elements and “material misrepresentation,” anchoring the racketeering predicates referenced in the plea’s factual admissions.

3. Knowing and voluntary plea: Due process and Rule 11 “core objectives”

• McCarthy v. United States — Grounded the constitutional requirement that pleas be knowing and voluntary.
• United States v. Presendieu — Identified Rule 11’s “core objectives” (no coercion, understanding charges, understanding consequences), guiding the panel’s assessment of the plea colloquy and written agreement.
• United States v. Moriarty and United States v. Lewis — Reinforced the need for personal colloquy on rights waived and consequences, which the panel found the district court satisfied.

4. Sentencing procedure, preservation, and “relevant conduct”

• United States v. Barrington — Provided the abuse-of-discretion framework for procedural reasonableness (legal standards, procedures, factual findings).
• United States v. Ramirez-Flores — Controlled preservation: failure to make clear objections triggers plain-error review.
• United States v. Cunningham and United States v. Brown — Addressed abandonment/inadequate briefing, underscoring the need to meaningfully develop appellate arguments rather than rely on passing references.
• United States v. Booker — Confirmed the advisory nature of the Guidelines and the requirement to consult them, paving the way for judicial factfinding at sentencing without the mandatory-Guidelines Sixth Amendment problem.
• United States v. Matthews and United States v. Beckles — Clarified permissible sentencing fact sources: guilty-plea admissions, undisputed PSI statements (deemed admitted), and hearing evidence.
• United States v. Aguilar-Ibarra — Placed on the government the burden to prove disputed sentencing facts by a preponderance.
• United States v. Chau — The key constitutional rebuttal: in an advisory system, extra-verdict enhancements are not unconstitutional. The panel relied on Chau to reject Howard’s Fifth/Sixth Amendment attacks on relevant-conduct use.
• U.S.S.G. § 1B1.3(c) (2024/2025) — The opinion’s most pointed Guidelines clarification: the acquitted-conduct limitation applies only to “conduct for which the defendant was criminally charged and acquitted in federal court,” and did not apply because Howard had no acquittal.

5. Loss calculation principles and offsets

• United States v. Cavallo — Established that the court need only make a “reasonable estimate” of loss, and reiterated the government’s burden to prove loss amounts by a preponderance.
• United States v. Yeager — Warned against speculation and required “reliable and specific evidence” when loss is contested. The panel effectively found the district court’s $0 valuations were evidence-based (testimony and practical recoverability), not speculative.
• United States v. Hamaker and United States v. Hunter — Authorized considering relevant conduct for loss and attributing foreseeable co-conspirator losses in furtherance of a conspiracy.
• United States v. Woodard — Harmless-error concept for failure to deduct returns where it would not change the Guidelines threshold; cited as a general principle reinforcing that not every credit dispute warrants reversal.
• United States v. Campbell — Supported rejecting deductions for expenses that “perpetuat[e] the scheme”; spending money on seemingly legitimate business costs does not cleanse fraudulent spending.
• United States v. Stein — Used here for foreseeability/proximate-cause reasoning: complex processes (medical/legal) can be foreseeable and do not necessarily sever causation for sentencing loss/restitution.

6. Substantive reasonableness standards

• Gall v. United States — Established deferential abuse-of-discretion review for substantive reasonableness.
• United States v. McQueen and United States v. Witt — Emphasized the “rare” nature of substantively unreasonable sentences and the appellant’s burden under the § 3553(a) factors.
• United States v. Pugh — Totality-of-the-circumstances review and respect for district courts’ weighing of § 3553(a) factors.
• United States v. Grushko, United States v. Gonzalez, and United States v. Amedeo — Explained that courts may weigh factors unequally, need not discuss each explicitly, and silence on mitigation does not mean it was ignored.
• United States v. Irey — Provided the “definite and firm conviction” formulation for when an appellate court should vacate as outside the reasonable range.
• United States v. Dorsey and United States v. Thomas — Supported the presumption-like expectation that within-Guidelines sentences are reasonable and that being well below the statutory maximum indicates reasonableness.

7. Restitution and forfeiture frameworks

• United States v. Robertson — Set standards of review: legality de novo, restitution valuation abuse of discretion, factual findings clear error.
• United States v. Martin — Highlighted restitution’s compensatory purpose and the permissibility of reasonable estimation rather than mathematical exactness.
• United States v. Foster — Required that restitution be tied to loss “actually caused” by the defendant’s conduct.
• United States v. Esformes — Governed forfeiture review (facts clear error; law de novo).
• United States v. Dicter — Placed on the government the burden to prove forfeiture elements by a preponderance.

B. Legal Reasoning

1. Rule 11 factual basis for the RICO plea

Applying United States v. Frye and United States v. Owen, the court held the plea’s statement of facts gave the district judge a reasonable basis to find Howard guilty of RICO. The admissions mapped onto United States v. Starrett’s RICO elements and treated wire fraud (via United States v. Maxwell) as qualifying racketeering activity. On plain-error review, and without a showing under United States v. Dominguez Benitez that Howard would have insisted on trial, the panel found no reversible Rule 11 error.

2. Knowing and voluntary plea

The court relied on the written plea agreement and the plea colloquy to satisfy the Rule 11 “core objectives” articulated in United States v. Presendieu. The district judge personally addressed Howard (per United States v. Lewis) and covered rights waived and consequences (per United States v. Moriarty), supporting the due-process standard in McCarthy v. United States. Notably, Howard’s attempt to soften culpability—claiming lack of intent that victims “not to have money at the end”—did not undermine voluntariness or factual guilt because he conceded a deceptive omission (“I did not inform them, and I had a duty to do that and I didn’t do that”).

3. “Relevant conduct” and the 2024/2025 acquitted-conduct amendment

Howard’s key Guidelines argument was that the district court wrongly used conduct beyond his plea as “relevant conduct.” The panel disposed of two strands:

• Constitutional strand: Citing United States v. Chau and United States v. Booker, the court reiterated that judicial factfinding for advisory-Guidelines calculations—based on preponderance evidence—does not violate the Fifth or Sixth Amendments.
• Guidelines strand: Even assuming the 2024 amendment applied, U.S.S.G. § 1B1.3(c) bars considering “conduct for which the defendant was criminally charged and acquitted in federal court” unless it also establishes the offense of conviction. Because Howard was not acquitted of any charged conduct, the limitation did not apply; thus, there was “no error.”

This portion of the opinion effectively clarifies that the acquitted-conduct restriction is narrow and does not transform “relevant conduct” into “plea-only conduct.” It also underscores the strategic importance of making specific sentencing objections, given United States v. Ramirez-Flores’s preservation rule.

4. Loss calculation: why the district court could value credits/collateral at $0

The district court found approximately $12.6 million in actual loss. Howard did not contest the gross figure but argued for offsets (loans, medical/travel costs, alleged value of investments, collateral, and litigation claims). The panel affirmed the district court’s approach as a “reasonable estimate” supported by record evidence, consistent with United States v. Cavallo and United States v. Yeager.

• Loans to victims are not “money returned”: The court treated loans as separate transactions with expected repayment rather than restitutionary returns, and thus not credits under U.S.S.G. § 2B1.1 commentary. The opinion’s logic is that “credits against loss” focus on restoration of victim principal (or value) rather than additional, distinct leverage transactions that do not unwind the fraud.
• Expenses that perpetuate the scheme are not credits: Relying on United States v. Campbell, the court rejected deductions for medical/travel costs, reasoning they can function as scheme-maintenance expenses rather than victim restoration.
• Speculative equity interests can be valued at $0: The district court rejected rosy projections and found no marketable product; the panel found that valuation reasonable.
• High-risk lending losses and collateral valuation: For Preferred Capital and Virage Capital, testimony supported that the likelihood of recovery was “close to zero” and collateral (attorneys’ fees tied to settlement claims) was practically and legally encumbered (including disbarment-related issues and changing counsel). The panel held it was not clearly erroneous to value such items at $0.

5. Proximate cause and foreseeability in financial fraud tied to litigation/settlement timing

Howard argued intervening complexity in NFL claims broke causation. The panel rejected that, emphasizing that Howard’s fundraising power derived from misrepresentations about his operations and underlying claims. Citing United States v. Stein, the court characterized complex medical/legal processes as reasonably foreseeable aspects of settlement pursuit, not superseding causes.

6. Substantive reasonableness: within-Guidelines and below statutory maximum

Using the § 3553(a) framework and deferential review from Gall v. United States, the panel found 168 months reasonable. The district court permissibly prioritized seriousness, punishment, and deterrence over mitigation (age, no criminal history, claimed intent to repay), consistent with United States v. Grushko. The court also noted the sentence was within the Guidelines (see United States v. Dorsey) and well below the 210-month maximum (see United States v. Thomas).

7. Restitution equal to Guidelines actual loss

The court affirmed restitution under principles from United States v. Martin and United States v. Foster: restitution is compensatory and must reflect loss actually caused. Importantly, it invoked United States v. Stein for the proposition that, in most cases, Guidelines actual loss and restitution match—hence, affirming $12,641,941.06 for both loss and restitution was doctrinally coherent.

8. RICO forfeiture money judgment supported by tracing

Under 18 U.S.C. § 1963(a)(3), forfeiture covers property constituting or derived from racketeering proceeds. Applying United States v. Dicter (preponderance burden) and review principles from United States v. Esformes, the panel held the $10,651,941.40 money judgment reasonable, crediting the IRS investigator’s tracing testimony as an adequate evidentiary basis.

C. Impact

• Narrow reading of U.S.S.G. § 1B1.3(c): The opinion reinforces that the 2024/2025 acquitted-conduct limitation is triggered by an actual federal acquittal. Defendants who plead guilty (or are convicted without an acquittal on related counts) should expect courts to continue considering broader relevant conduct in advisory-Guidelines calculations, subject to proof standards and evidentiary reliability.
• Pragmatic valuation at sentencing: The court endorsed valuing purported offsets at $0 where recovery is legally or practically remote and where valuations are speculative. This tends to favor evidence-driven “recoverability” analysis (likelihood of collection) over formalistic nominal values (face amount of loans or theoretical collateral).
• Restitution-loss alignment: By reiterating that actual loss under the Guidelines will “in most cases” equal restitution, the opinion supports streamlined restitution determinations where the sentencing record already robustly establishes actual loss.
• RICO forfeiture based on tracing: The affirmation signals that detailed financial tracing testimony can sustain large money judgments even where defendants contest valuation, so long as the district court’s estimate is reasonable and proceeds-based.
• Litigation practice signal: Preservation matters. The opinion repeatedly invokes standards that penalize undeveloped objections or failure to object at sentencing, making careful, specific record-making essential.

IV. Complex Concepts Simplified

• Plain error review: If you did not object in the district court, you must show an obvious legal mistake that likely changed the outcome and seriously undermines the proceeding’s fairness.
• Rule 11 factual basis: Before accepting a guilty plea, the judge must ensure there are enough facts to reasonably conclude the defendant committed the crime—without needing a mini-trial.
• RICO “enterprise” and “pattern”: RICO requires an “enterprise” (an organization or association) and a “pattern” (at least two racketeering acts within ten years) connected to the enterprise’s affairs.
• Relevant conduct: Sentencing can account for conduct related to the offense even if not charged in the count of conviction, so long as it meets Guidelines rules and is proven by a preponderance. The 2024/2025 limitation discussed here targets acquitted conduct—conduct the defendant was charged with and found not guilty of.
• Actual loss vs. credits against loss: “Actual loss” is the real economic harm. Some amounts can reduce loss (e.g., money returned before detection), but courts may refuse offsets for speculative assets, unrecoverable collateral, or expenses that merely keep the fraud going.
• Restitution vs. forfeiture: Restitution pays victims to make them whole; forfeiture is a penalty that strips the defendant of criminal proceeds for the government. They can be different numbers because they serve different purposes.

V. Conclusion

United States v. Phillip Howard affirms, across plea, sentencing, restitution, and forfeiture, a consistent theme in Eleventh Circuit practice: (1) guilty pleas withstand attack when the written factual proffer and colloquy satisfy Rule 11’s core objectives; (2) advisory-Guidelines sentencing continues to permit judicial consideration of relevant conduct beyond the plea, and the 2024/2025 U.S.S.G. § 1B1.3(c) restriction is limited to situations involving an actual federal acquittal; (3) loss and restitution may properly exclude claimed offsets where “value” is speculative or effectively unrecoverable; and (4) RICO forfeiture money judgments can rest on a reasonable proceeds estimate supported by tracing evidence. In practical effect, the decision signals that defendants must contest sentencing facts with specificity and evidentiary support, or face deferential review and affirmance.