Understanding Federal Sentencing Guidelines for Fraud Offenses: What New Yorkers Need to Know

Federal fraud sentencing is not determined by the amount of money alone. The court first identifies the guideline tied to the offense of conviction, calculates an advisory range from the offense level and criminal-history category, and then considers the statutory sentencing factors. Loss can be important, but so can the number and impact of victims, the defendant's role, the records and methods involved, obstruction or acceptance of responsibility, mandatory consecutive counts, restitution and the facts presented under 18 U.S.C. § 3553(a).

The governing manual and the dates of the alleged conduct also matter. As of September 30, 2026, the 2025 Guidelines Manual, effective November 1, 2025, remains in effect. The U.S. Sentencing Commission has adopted inflation-adjusted monetary thresholds scheduled to take effect November 1, 2026. This article separates the current table from that future change.

If you received a subpoena, target letter, interview request, complaint or indictment, preserve it and note every deadline. Do not alter or delete records. For a federal matter in New York, call 646 663 4430 or request a free consultation with Lebedin Kofman LLP. Urgent inquiries are available around the clock.

Which guideline applies to a federal fraud case?

Guideline §2B1.1 commonly applies to mail fraud, wire fraud, bank fraud, health care fraud, securities fraud and other theft or deceit offenses. It is not the correct guideline for every charge containing an allegation of fraud. The Statutory Index, the offense of conviction, any applicable cross-reference and the facts established for sentencing determine the Chapter Two guideline.

Tax offenses are an important example. Federal tax crimes generally use the tax guidelines in Chapter Two, Part T, including a separate tax-loss table, rather than treating every tax allegation as an ordinary §2B1.1 fraud case. Insider trading has its own guideline, §2B1.4, although it uses the §2B1.1 loss table by reference. Aggravated identity theft has a separate guideline and statute. Counsel should start with the charged statute and Appendix A instead of assuming one fraud formula applies to every count.

For a §2B1.1 count, the base offense level is usually 7 when the referenced offense carries a statutory maximum of 20 years or more, and 6 otherwise. Specific offense characteristics can then add levels. Chapter Three can add or subtract levels for victim-related issues, role, obstruction and acceptance of responsibility. Multiple-count rules and criminal history complete the advisory-range calculation.

The current §2B1.1 loss table

Under the 2025 manual in effect on September 30, 2026, the loss table adds levels as follows. This table is a component of the calculation, not a prediction of the sentence.

The guideline defines loss as the greater of actual loss or intended loss. Actual loss means reasonably foreseeable pecuniary harm that resulted from the offense. Intended loss means pecuniary harm the defendant purposely sought to inflict, including harm that would have been impossible or unlikely to occur. Pecuniary harm must be monetary or readily measurable in money; emotional distress and reputational harm are not included in this loss definition.

The calculation is often disputed. Issues can include causation, foreseeability, the defendant's purpose, credits against loss, money returned before detection, collateral, services actually rendered, jointly undertaken conduct and special rules for government benefits, investment schemes, health care claims and securities. Gain is an alternative measure only when a loss exists but reasonably cannot be determined. An indictment's headline number does not automatically become the guideline loss.

What changes on November 1, 2026?

The Commission adopted an inflation adjustment, submitted it to Congress and specified an effective date of November 1, 2026. The amendment retains the 16 loss tiers but raises the monetary thresholds. The first threshold will rise from $6,500 to $9,000, the $95,000 threshold to $150,000, the $550,000 threshold to $750,000, the $1.5 million threshold to $2 million, and the top threshold from $550 million to $750 million. The complete official package is available on the Commission's 2026 adopted-amendments page.

This is no longer merely a proposal, but it is not yet the guideline in effect on September 30. Under §1B1.11, a court ordinarily uses the manual in effect on the sentencing date. If that would violate the Constitution's ex post facto clause by increasing the applicable range, the manual in effect when the offense was committed is used. A manual is applied as a whole, rather than mixing favorable provisions from different editions. Offense dates, sentencing date and multiple-count issues must therefore be reviewed before deciding which table governs a particular case.

Victims, hardship and mass marketing

Current §2B1.1(b)(2) does not use the old progression of 10, 50 and 250 victims. It provides:

• A 2-level increase when the offense involved 10 or more victims, was committed through mass marketing, or resulted in substantial financial hardship to one or more victims.
• A 4-level increase for substantial financial hardship to five or more victims.
• A 6-level increase for substantial financial hardship to 25 or more victims.

The guideline directs courts to consider facts such as insolvency, bankruptcy, a substantial loss of retirement or education savings, major employment or living-arrangement changes and substantial harm to the ability to obtain credit. The victim count, the hardship count and the definition of victim can require separate analysis. Identity and undelivered-mail cases also have special victim rules.

Other adjustments that can change the range

Depending on the offense and proven facts, the calculation may address:

• Sophisticated means: §2B1.1 provides a 2-level increase when the offense involved sophisticated means and the defendant intentionally engaged in or caused the conduct constituting sophisticated means. International relocation or a substantial part of a scheme conducted from outside the United States can trigger the same subsection.
• Access devices and identification: producing or trafficking in unauthorized access devices, using one means of identification to obtain another, or possessing specified identification material can create an increase and minimum offense level. A separate aggravated-identity-theft conviction can add a statutory consecutive term.
• Health care programs: a federal health care offense involving a government program can add levels at specified government-loss amounts. The guideline also contains a rebuttable intended-loss rule for aggregate fraudulent bills submitted to a government health care program.
• Role in the offense: Chapter Three can add levels for organizing, leading, managing or supervising criminal activity, or subtract levels for a qualifying mitigating role. Labels in a charging document are not the complete analysis.
• Position of trust or special skill: §3B1.3 can apply when a position of public or private trust or a special skill significantly facilitated the offense or concealment. The same conduct cannot always be counted twice, so the interaction with offense-specific provisions matters.
• Obstruction: destroying or concealing material evidence, threatening a witness, committing perjury or other covered conduct can support an obstruction adjustment. Preserving records and obtaining advice before responding to investigators helps avoid creating a separate issue.
• Acceptance of responsibility: §3E1.1 can reduce the offense level when its requirements are met. The additional third level has separate timing and government-motion conditions. A guilty plea does not automatically guarantee the adjustment, and litigating a legitimate issue does not always foreclose it.

These provisions can be cumulative unless the guidelines say otherwise. That is why a reliable estimate requires a count-by-count worksheet, the alleged relevant conduct and the criminal-history record, not a loss amount alone.

From offense level to advisory range

After the adjusted offense level is calculated, the court determines the criminal-history category and uses the Sentencing Table to identify an advisory imprisonment range. The court must correctly calculate and consider that range, but the guidelines are advisory. The court then applies 18 U.S.C. § 3553(a), including the nature and circumstances of the offense, the person's history and characteristics, the purposes of sentencing, available sentences, unwarranted disparities and restitution.

A guideline range is not the same as a statutory maximum or minimum. Mail and wire fraud generally carry maximum terms, while bank fraud and fraud affecting a financial institution can carry different statutory exposure. A conviction under 18 U.S.C. § 1028A ordinarily requires a two-year term consecutive to the underlying felony sentence. The statute contains specific rules for multiple §1028A counts and limited statutory mechanisms that should be analyzed from the actual counts and any government motion.

Cooperation credit is not automatic. Section 3E1.1 concerns acceptance of responsibility; §5K1.1 and 18 U.S.C. § 3553(e) concern government motions based on substantial assistance and have different effects. A plea agreement may also contain stipulations, appeal waivers or restitution terms. Each provision should be read before a person relies on an expected reduction.

Restitution, forfeiture and financial consequences

The Mandatory Victims Restitution Act applies to qualifying Title 18 property offenses, including offenses committed by fraud or deceit, when an identifiable victim suffered pecuniary loss. Restitution is determined under 18 U.S.C. §§ 3663A and 3664. The statute includes rules for identifying victims, measuring covered loss, allocating payment and cases in which factual complexity can affect mandatory restitution. An order does not guarantee that a victim will collect the full amount.

Criminal forfeiture is separate from restitution. The government must identify a statutory forfeiture basis and establish the required connection between the offense and the property. Depending on the statute, forfeiture can reach proceeds and, in some cases, other specified property; substitute-property rules can also apply. It is too broad to say that every asset used in some way during a fraud is automatically forfeitable.

Fines, special assessments, interest, supervised-release conditions, immigration consequences, licensing issues and parallel civil or regulatory proceedings may also matter. A financial resolution should account for the possible interaction among restitution, forfeiture, taxes, receiverships and third-party interests.

EDNY and SDNY are different districts, not different guideline systems

The same federal statutes and national guidelines apply in both districts, subject to binding appellate law and the facts of the case. The Eastern District of New York comprises Kings, Nassau, Queens, Richmond and Suffolk Counties, with courthouses in Brooklyn and Central Islip. The Southern District of New York includes New York, Bronx, Westchester, Rockland, Putnam, Orange, Dutchess and Sullivan Counties, with court in Manhattan, White Plains and Poughkeepsie.

There is no responsible district-wide promise that one court is lenient or harsh, or that a specific loss amount produces a fixed term. The assigned judge, offense conduct, record, victims, co-defendant comparisons, statutory factors and presentation all matter. Published aggregate statistics cannot substitute for the record in an individual case.

What to preserve for a sentencing analysis

• The complaint, indictment, plea agreement, verdict form and statutory citations.
• Subpoenas, search-warrant papers, interview requests and target or subject letters.
• Original financial records, contracts, invoices, claims, communications and accounting data.
• Records supporting legitimate services, returned funds, collateral, expenses or credits against claimed loss.
• A chronology identifying participants, decisions, control of accounts and the purpose of challenged transactions.
• Criminal-history records and documents relevant to personal history, medical issues, family responsibilities, employment and restitution ability.

Do not contact witnesses to shape testimony, create backdated records or delete data. Counsel can address preservation, privilege, interviews and productions while separately evaluating trial issues, plea exposure and a sentencing presentation. Learn more about the firm's federal defense, fraud and white-collar defense, EDNY defense and SDNY defense practices.

Common questions about federal fraud sentencing

Does the charged loss amount set the sentence?

No. The court determines the guideline loss from the governing definitions and evidence. It then calculates all other applicable adjustments and criminal history before considering the advisory range and the statutory sentencing factors. The amount alleged in a press release or indictment is not automatically the final loss finding.

Is intended loss still used in 2026?

Yes. The 2025 manual currently states in the guideline text that loss is the greater of actual or intended loss and defines intended loss as pecuniary harm the defendant purposely sought to inflict. Whether a claimed amount meets that definition is a fact-specific issue.

Are the November 2026 fraud thresholds already in effect?

No. As of September 30, 2026, the 2025 manual remains in effect. The Commission's adopted inflation adjustment is scheduled to take effect November 1, 2026. Manual selection also depends on the sentencing date and the ex post facto rule.

Do all tax fraud cases use §2B1.1?

No. Federal tax offenses generally use Chapter Two, Part T and its tax-loss rules. The Statutory Index, count of conviction and any cross-reference identify the applicable guideline. A case with multiple kinds of counts may require several guideline sections and the multiple-count rules.

Can a judge sentence below the guideline range?

The guidelines are advisory, and the court applies 18 U.S.C. § 3553(a) after calculating them. Statutory mandatory minimums and consecutive-sentence requirements can limit the available sentence. A variance is case specific and never guaranteed.

Does aggravated identity theft always add two years?

A conviction under 18 U.S.C. § 1028A ordinarily requires a two-year term consecutive to the underlying felony sentence. Multiple §1028A counts and substantial-assistance provisions have specific statutory rules, so the indictment, plea and any government motion must be reviewed rather than assuming every count simply stacks.

Meet the attorneys or request a free consultation. Call 646 663 4430 for an urgent federal inquiry.

Primary sources reviewed September 30, 2026: U.S. Sentencing Commission 2025 Guidelines Manual §§1B1.1, 1B1.11, 2B1.1 and related provisions; the Commission's adopted 2026 amendments, effective November 1, 2026 absent contrary congressional action; 18 U.S.C. §§ 1028A, 3553, 3663A and 3664; and the official EDNY and SDNY court descriptions. This is general information, not a guideline calculation or legal advice for a particular case.