United States v. White: Defining Reasonably Foreseeable Loss and the “At the Crux” Test in Aggravated Identity Theft Pleas

1. Introduction

United States v. White, decided April 11, 2025 by the Second Circuit (Summary Order 24-66), arose from a scheme in which Raymond White fraudulently secured a District of Columbia Army National Guard (DCARNG) contract to build a munitions load crew training facility at Joint Base Andrews. White pleaded guilty in the Southern District of New York to six counts, including major fraud (18 U.S.C. § 1031), wire fraud (18 U.S.C. § 1343), aggravated identity theft (18 U.S.C. § 1028A), false statements and documents (18 U.S.C. § 1001). On appeal, White challenged: (1) the district court’s calculation of "loss" under the Sentencing Guidelines (U.S.S.G. § 2B1.1); (2) the sufficiency of the factual basis for his guilty plea to aggravated identity theft; and (3) the effectiveness of his counsel in failing to contest that factual basis.

2. Summary of the Judgment

The Second Circuit affirmed the district court in all respects. It held that:

The district court correctly measured “actual loss” as the difference between White’s tainted contract award and the subsequent reprocurement cost, including foreseeable market and administrative adjustments.
White failed to show plain error in the Rule 11(b)(3) inquiry for aggravated identity theft, as ample record evidence supported the “at the crux” use of another’s Social Security number and signature in the fraudulent procurement scheme.
White’s ineffective‐assistance claim under Strickland v. Washington was rejected because he could not demonstrate a reasonable probability of a different outcome absent counsel’s unobjected plea basis.

3. Analysis

3.1 Precedents Cited

Sentencing Guidelines & Loss Calculation:
- United States v. Cramer, 777 F.3d 597 (2d Cir. 2015) – de novo review of Guidelines application; clearly erroneous standard for facts.
- United States v. Turk, 626 F.3d 743 (2d Cir. 2010) – importance of loss in fraud sentencing.
- United States v. Canova, 412 F.3d 331 (2d Cir. 2005) – predecessor note on foreseeable substitution costs.
- United States v. Robers, 572 U.S. 639 (2014) – foreseeability of market fluctuations in restitution context.
- United States v. Byors, 586 F.3d 222 (2d Cir. 2009) – Guidelines offset by returned value, not legitimate expenditures.
Guilty Plea Factual Basis & Plain Error:
- Fed. R. Crim. P. 11(b)(3) – requirement of a factual basis.
- United States v. Albarran, 943 F.3d 106 (2d Cir. 2019) – purpose of Rule 11(b)(3).
- United States v. Maher, 108 F.3d 1513 (2d Cir. 1997) – standards for plea inquiry.
- United States v. Aybar-Peguero, 72 F.4th 478 (2d Cir. 2023) – limits on post-plea materials; plain‐error test.
“At the Crux” Aggravated Identity Theft:
- 18 U.S.C. § 1028A – aggravated identity theft elements.
- Dubin v. United States, 599 U.S. 110 (2023) – definition of “at the crux” use.
- United States v. Omotayo, 132 F.4th 181 (2d Cir. 2025) – three-part test for fraudulent identity misuse.
Ineffective Assistance of Counsel:
- Strickland v. Washington, 466 U.S. 668 (1984) – reasonableness and prejudice prongs.
- United States v. DiTomasso, 932 F.3d 58 (2d Cir. 2019) – de novo review of Strickland claims.

3.2 Legal Reasoning

Loss Calculation: The court emphasized U.S.S.G. § 2B1.1’s definition of loss as “actual or intended,” adopting “actual loss” measured by foreseeable reprocurement costs. It rejected White’s attempt to exclude market‐driven increases and administrative expenses, relying on Robers and Turk to show such costs are foreseeable harms directly caused by fraud.

Plea Factual Basis: Under Rule 11(b)(3), a district court need only ensure that the admitted conduct falls within the statutory offense. The Second Circuit applied plain‐error review and held that the extensive record—White’s misrepresentations, forged signatures, stolen Social Security number, fabricated documents—satisfied the “at the crux” requirement from Dubin and Omotayo for aggravated identity theft.

Ineffective Assistance: Applying Strickland, the court declined to second‐guess counsel’s strategic decision, finding no reasonable probability of a different result. Because the plea basis was solid, an objection would not have reversed the outcome.

3.3 Impact on Future Cases

Strengthens prosecutorial reliance on anticipated market and administrative costs in fraud sentencing.
Clarifies that Rule 11(b)(3) factual inquiries need not mirror jury verdict standards; a robust plea colloquy and record suffice on plain‐error review.
Reinforces the “at the crux” test in aggravated identity theft, guiding lower courts on the requisite nexus between identity misuse and predicate fraud.
Limits ineffective‐assistance claims on direct appeal where plea bases are well‐documented and preclude different outcomes.

4. Complex Concepts Simplified

Reasonably Foreseeable Pecuniary Harm: The financial damage that a defendant knew or should have known would likely flow from their fraudulent act. Here, it included higher reprocurement bids and extra administrative work.
Actual vs. Intended Loss: “Actual loss” is the victim’s real monetary harm; “intended loss” is what the defendant sought to inflict, whichever is greater.
Plain-Error Review: When a defendant fails to object below, an appellate court only corrects a “clear or obvious” error that affected substantial rights and judicial integrity.
“At the Crux” Test: For aggravated identity theft, the misuse of another’s ID must be integral to committing the underlying felony, not merely incidental.
Strickland Two-Prong Test: Counsel must perform reasonably and, but for the error, there must be a reasonable chance of a different result.

5. Conclusion

United States v. White solidifies key principles in white-collar sentencing and plea practice. It affirms that fraud loss calculations may include foreseeable market shifts and administrative burdens, that Rule 11(b)(3) requires only a minimal but sufficient factual basis for guilty pleas, and that identity‐theft enhancements hinge on a demonstrable “at the crux” misuse of another’s identifiers. Together, these clarifications will guide trial and appellate courts in ensuring fair yet firm adjudication of procurement fraud and aggravated identity theft cases.