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

Introduction

United States v. White is a Second Circuit summary order affirming the conviction and sentence of Raymond White for a fraudulent scheme to secure a District of Columbia Army National Guard contract. The Government charged White with 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 document preparation (18 U.S.C. § 1001). On appeal, White challenged three aspects of his sentence and plea: the loss amount under the Sentencing Guidelines, the sufficiency of the factual basis for his guilty plea to aggravated identity theft, and the effectiveness of his counsel. The Second Circuit addressed each issue under well-established standards and affirmed.

Summary of the Judgment

The court reviewed de novo the Guidelines issues and for clear error the underlying facts.
It held that “actual loss” under U.S.S.G. § 2B1.1 properly includes the difference between White’s fraudulently awarded contract and the replacement contract—encompassing foreseeable administrative and reprocurement costs and market fluctuations.
It found that the district court complied with Rule 11(b)(3) in accepting a factual basis for the aggravated identity theft plea and, under plain error review, White failed to show prejudice.
It rejected White’s ineffective-assistance claim because he could not demonstrate that a timely objection would have changed the outcome.
The judgment of the district court was affirmed in all respects.

Analysis

1. Precedents Cited

The court’s decision draws on a constellation of precedents:

Sentencing Guidelines and Loss Calculations
- United States v. Cramer, 777 F.3d 597 (2d Cir. 2015) – de novo review standard;
- Anderson v. City of Bessemer City, 470 U.S. 564 (1985) – clear-error standard;
- 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) – procurement fraud and substitution cases;
- United States v. Robers, 572 U.S. 639 (2014) – market fluctuations are foreseeable losses;
- United States v. Byors, 586 F.3d 222 (2d Cir. 2009) – permissible offsets to actual loss.
Plea and Factual Basis
- Fed. R. Crim. P. 11(b)(3) – requirement of a factual basis for a guilty plea;
- United States v. Albarran, 943 F.3d 106 (2d Cir. 2019) and Maher, 108 F.3d 1513 (2d Cir. 1997) – scope of Rule 11;
- United States v. Culbertson, 670 F.3d 183 (2d Cir. 2012) and Aybar-Peguero, 72 F.4th 478 (2d Cir. 2023) – permissible sources of factual basis;
- United States v. Torrellas, 455 F.3d 96 (2d Cir. 2006) – plain error standard for unpreserved Rule 11 claims.
Aggravated Identity Theft and “At the Crux” Test
- United States v. Dubin, 599 U.S. 110 (2023) – “at the crux” requirement for aggravated identity theft under 18 U.S.C. § 1028A;
- United States v. Omotayo, 132 F.4th 181 (2d Cir. 2025) – three-factor test for identifying “at the crux” misuse of identification.
Ineffective Assistance of Counsel
- Strickland v. Washington, 466 U.S. 668 (1984) – two-pronged test;
- United States v. DiTomasso, 932 F.3d 58 (2d Cir. 2019) – de novo review of Strickland claims;
- United States v. Lloyd, 901 F.3d 111 (2d Cir. 2018) – options for addressing ineffective assistance on appeal.

2. Legal Reasoning

The court’s reasoning rests on the following pillars:

Loss Calculation under U.S.S.G. § 2B1.1 “Actual loss” is the greater of actual and intended loss and includes “reasonably foreseeable pecuniary harm,” such as administrative and reprocurement costs. The court agreed that the gap between White’s awarded contract and the replacement contract reflected foreseeable market-driven increases and administrative delays. Legitimate but non-beneficial expenditures (reimbursements for bonds, insurance, planning) do not reduce the loss.
Factual Basis for Guilty Plea Under Rule 11(b)(3), the district court may rely on admissions by the defendant and counsel to establish a factual basis. On plain error review, White failed to show a reasonable probability that he would have rejected his plea absent any Rule 11 deficiency.
Aggravated Identity Theft “At the Crux” Test To sustain a § 1028A conviction, the fraudulent use of another’s means of identification must be central to the scheme. White admitted fabricating signatures and using a false Social Security number to secure the contract and SBA guaranty—actions that played an integral, deceptive role in the fraud.
Ineffective Assistance Even if counsel had objected to the factual basis, White could not establish a reasonable probability of a different outcome, so the Strickland prejudice prong fails.

3. Impact on Future Cases

This decision will guide lower courts in procurement-fraud sentencing and identity theft prosecutions:

It reaffirms that market fluctuations and administrative reprocurement costs are “reasonably foreseeable” losses under § 2B1.1.
It emphasizes that only services returning a real benefit to the victim may offset loss.
It clarifies the “at the crux” standard of Dubin and Omotayo for aggravated identity theft, ensuring central fraudulent uses of identification are distinguished from peripheral misuse.
It underscores the limited scope of Rule 11(b)(3) factual-basis review and the high bar for plain error challenges.

Complex Concepts Simplified

Actual vs. Intended Loss: “Actual loss” tracks real dollars lost; “intended loss” measures the harm the defendant sought to cause.
Reasonably Foreseeable Pecuniary Harm: Costs a defendant should anticipate, including delays, administrative burdens, and market changes.
Rule 11(b)(3) Factual Basis: Courts need only ensure that admitted conduct falls within the charged statute, not weigh evidence as a jury would.
Plain Error Review: Claims unraised in the district court are reversed only if there is a clear error affecting substantial rights and the integrity of proceedings.
“At the Crux” Test (§ 1028A): The misuse of another’s identification must be a key, integral factor in executing the fraud—more than peripheral or incidental.
Strickland Two-Prong Test: (1) deficient performance by counsel, and (2) a reasonable probability of a different outcome absent the deficiency.

Conclusion

United States v. White reaffirmed critical principles in fraud sentencing and identity theft law. It confirmed that reprocurement and market-driven cost increases are foreseeable losses under U.S.S.G. § 2B1.1, clarified the limits of offsets, and solidified the “at the crux” standard for aggravated identity theft. The decision also illustrates the exacting standards for challenging Rule 11 colloquies and counsel performance on direct appeal. As a result, courts and practitioners now have sharper guidance on quantifying loss in procurement fraud, establishing plea-colloquy sufficiency, and applying aggravated identity theft statutes where a false identity lies at the heart of a criminal scheme.