Date: Aug 14, 2026

Circuit Split Bars Plain-Error Reversal of U.S.S.G. § 2B1.1(b)(9)(A) “Acting on Behalf of a Charity” Enhancement in For-Profit Investment Fraud

1. Introduction

In United States v. Henry Abdo (11th Cir. Aug. 13, 2026) (unpublished, non-argument calendar), the Eleventh Circuit affirmed a 168-month sentence for two counts of wire fraud, in violation of 18 U.S.C. § 1343. The defendant, Henry Abdo, ran a multi-million-dollar Ponzi scheme through Titanium Capital LLC, falsely assuring investors of a foreign exchange platform and fixed returns while using new investor money to pay earlier investors.

The appeal turned on a sentencing issue: whether the district court plainly erred in applying a two-level enhancement under U.S.S.G. § 2B1.1(b)(9)(A) for “misrepresentation that the defendant was acting on behalf of a charitable, educational, religious, or political organization, or a government agency.” Abdo argued for the first time on appeal that the enhancement should not apply because he solicited investments in a for-profit company, not donations to a charity.

2. Summary of the Opinion

The Eleventh Circuit affirmed on plain-error review. It did not resolve the underlying interpretive question about the scope of § 2B1.1(b)(9)(A). Instead, the court held that any error was not “plain” because:

Neither the Supreme Court nor the Eleventh Circuit has decided whether § 2B1.1(b)(9)(A) applies to for-profit investment solicitations premised on charitable-benefit representations; and
Other circuits are split, with the Ninth Circuit applying the enhancement in similar circumstances and the Tenth Circuit suggesting a narrower approach.

Because Abdo failed to object to the enhancement in the district court (despite objecting to related facts), he could not meet the “plainness” requirement needed for appellate relief.

3. Analysis

A. Precedents Cited

Preservation and standard of review

United States v. Irons, 176 F.4th 1275 (11th Cir. 2026): The court relied on Irons for the rule that failing to raise an available objection in the district court triggers plain-error review on appeal.
United States v. Thomas, 108 F.4th 1351 (11th Cir. 2024): Thomas supplied the Eleventh Circuit’s preservation requirement— an objection must be specific enough to alert the trial court and the government to the precise grounds later pressed on appeal. Abdo’s factual objection to PSR paragraph 16 did not preserve a legal objection to the enhancement’s applicability.

Plain error framework and prejudice

United States v. Beaufils, 160 F.4th 1147 (11th Cir. 2025): Provided the canonical three-part plain-error test (error; plainness; effect on substantial rights).
United States v. Crespo, 178 F.4th 1250 (11th Cir. 2026): Supplied the fourth discretionary step—whether the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.
Rosales-Mireles v. United States, 585 U.S. 129 (2018), and Molina-Martinez v. United States, 578 U.S. 189 (2016): Cited for the principle that an incorrect Guidelines range typically affects substantial rights and often warrants correction. Notably, these cases mattered only hypothetically here because Abdo failed at the “plainness” prong.

“Plainness” and circuit splits

United States v. Aguillard, 217 F.3d 1319 (11th Cir. 2000): The controlling Eleventh Circuit authority on “plainness.” Aguillard states that an error is not “plain” unless it is clear under current law, and that when the Supreme Court and the Eleventh Circuit have not resolved an issue and other circuits are split, there is no plain error.
United States v. Humphrey, 164 F.3d 585 (11th Cir. 1999): Reinforced the “obvious or clear under current law” articulation of plainness.

Substantive scope of § 2B1.1(b)(9)(A): persuasive out-of-circuit authority

United States v. Cohen, 742 F.3d 856 (9th Cir. 2013): The Ninth Circuit applied the charitable-misrepresentation enhancement where the defendant induced victims to invest in for-profit ventures while pretending that some proceeds would go to charities. This case supported the Eleventh Circuit’s conclusion that application of the enhancement here was at least reasonable, defeating “plain error.”
United States v. Treadwell, 593 F.3d 990 (9th Cir. 2010), overruled on other grounds by United States v. Miller, 953 F.3d 1095 (9th Cir. 2020): Treadwell supplied the Ninth Circuit’s textual reasoning that “acting on behalf of” can mean acting “in the interest or for the benefit of,” not only as an agent. The Eleventh Circuit cited this to illustrate why the interpretive question is genuinely debatable.
United States v. Frazier, 53 F.3d 1105 (10th Cir. 1995): The Tenth Circuit indicated a narrower view—suggesting the enhancement does not apply absent a false representation of authority to act as the charity’s agent/representative. This was the counterweight establishing a circuit split.

B. Legal Reasoning

Unpreserved legal challenge triggers plain-error review. Abdo objected to PSR facts concerning his charitable involvement, but he did not object to the Guidelines application decision imposing § 2B1.1(b)(9)(A), and counsel affirmatively agreed the range was correct. Under United States v. Irons and United States v. Thomas, that failure limited appellate review to plain error.
The court centered its decision on “plainness,” not correctness. The Eleventh Circuit did not decide whether Abdo’s reading of § 2B1.1(b)(9)(A) was right or wrong as an original matter. It held only that any error was not “plain” because the issue is unsettled in the Supreme Court and the Eleventh Circuit, and other circuits disagree.
Guidelines text and commentary framed the dispute. The opinion quoted § 2B1.1(b)(9)(A) and its commentary (Application Note 8(b)), which focuses on representing one is obtaining a benefit “on behalf of” a charity and then diverting that benefit for personal gain. The background commentary identifies the social harm: exploiting victims’ “generosity and charitable motives.” These materials support a broader understanding of the enhancement that can encompass investment pitches if the charitable-benefit claim is part of the inducement.
Circuit split forecloses plain-error relief. Under United States v. Aguillard, an unsettled question with split authority cannot be “plain.” The Ninth Circuit’s decisions (United States v. Cohen; United States v. Treadwell) show one plausible construction favoring application here, while United States v. Frazier shows another. That disagreement was dispositive.

C. Impact

Practical effect in the Eleventh Circuit: preservation is paramount. Defendants must specifically object to § 2B1.1(b)(9)(A)’s applicability at sentencing (not merely dispute related facts) to obtain meaningful appellate review. Otherwise, even a strong legal argument may fail at “plainness.”
Substantive question remains open on de novo review. The Eleventh Circuit did not adopt the Ninth Circuit’s broad view or the Tenth Circuit’s narrower view. Future litigants who preserve the issue could prompt a published decision resolving whether “acting on behalf of” includes promoting charitable beneficiaries while soliciting for-profit investments.
Sentencing litigation strategy. The case underscores that agreeing to the Guidelines calculation (or failing to dispute it) can effectively lock in a higher range, because plain-error reversal is difficult when the law is unsettled.
Broader fraud enforcement implications. Prosecutors may continue to seek § 2B1.1(b)(9)(A) when charitable-benefit representations are part of the fraudulent pitch—even if the transaction is styled as an “investment”— unless and until the Eleventh Circuit limits the enhancement on preserved review.

4. Complex Concepts Simplified

U.S.S.G. § 2B1.1(b)(9)(A) enhancement: A two-level increase in the offense level for fraud when the defendant lies about acting for, representing, or advancing a charity (or similar entity). The key interpretive issue is what counts as “acting on behalf of”—formal agency only, or also “for the benefit of.”
Commentary / Application Notes: Explanatory text accompanying the Guidelines. Here, the commentary emphasizes the defendant claiming to obtain a benefit for a charity but intending to divert it. The background also describes the social harm of exploiting charitable impulses.
Plain-error review: A stringent appellate standard applied when an objection was not properly raised below. The defendant must show not merely that the district court was wrong, but that the error was obvious under settled law and affected the outcome.
Circuit split: Different federal appellate courts interpret the same provision differently. In the Eleventh Circuit, a split often defeats a claim that the district court’s action was “plainly” wrong.

5. Conclusion

United States v. Henry Abdo establishes a clear, practice-driving takeaway in the Eleventh Circuit: where the scope of U.S.S.G. § 2B1.1(b)(9)(A) is unsettled and other circuits are divided, a defendant who fails to object at sentencing will rarely obtain reversal on appeal, because any error will not be “plain” under United States v. Aguillard. The decision leaves open the substantive question—whether “acting on behalf of” encompasses misrepresentations that for-profit investments will benefit charitable causes—while powerfully reinforcing that preserving Guidelines objections is often outcome-determinative.