NATIONALLY RECOGNIZED FEDERAL LAWYERS
Can first-time offenders get probation for bank fraud?
|Thanks for visiting Spodek Law Group. We’re a second-generation law firm managed by Todd Spodek – and we’ve got over 40 years of combined experience. You’ve probably heard about some of the cases we’ve handled, like the Anna Delvey case that became a Netflix series, or the Ghislaine Maxwell juror misconduct case. Those were cases others said couldn’t be won. We took them anyway.
If you’re reading this, you’re probably worried about whether a bank fraud charge means prison time – or if there’s a chance at probation. That’s what we’re covering here. Why probation matters for first-time offenders, what the federal sentencing guidelines actually say about it in 2025, and what judges look at when they decide your fate.
The short answer – it’s possible, but it depends on the dollar amount and how the case gets calculated under the guidelines. Most bank fraud cases don’t qualify for probation because of how federal prosecutors pick their cases.
Federal Prosecutors Only Take Big Cases
Here’s something you need to understand about bank fraud under 18 USC 1344 – most U.S. Attorney’s Offices won’t even touch your case unless the loss is $250,000 or higher. They have intake thresholds. If you stole $50,000, the feds probably won’t prosecute you – the state might, but not the federal government.
That $250,000 threshold creates a problem for probation. Under the federal sentencing guidelines, bank fraud gets sentenced under §2B1.1, which ties your offense level directly to the loss amount. A $250,000 loss gets you significant enhancements – we’re talking about an adjusted offense level around 19 or higher before any reductions. Even with acceptance of responsibility (pleading guilty and taking accountability), you’re looking at level 16. That puts you in Zone D of the sentencing table.
Zone D means prison. Not probation, not home confinement – actual prison time.
The Sentencing Zones Determine Everything
Federal sentencing works through zones. Zone A is where probation lives – if your guideline range tops out at 6 months or less, you can get straight probation. Zone B requires at least a month in custody. Zone C means half your time in prison. Zone D means you’re serving the whole sentence behind bars.
First-time offenders start in Criminal History Category I – no points from prior convictions. But your offense level still matters more than your clean record in most fraud cases. If the loss is under $10,000, you might land in Zone A or B. Those cases exist, but federal prosecutors typically don’t bother with them.
Amendment 821 Changed The Game Slightly
In November 2023, Amendment 821 to the sentencing guidelines went into effect. It created something called the “zero-point offender” adjustment. If you meet ten specific criteria – including having no criminal history points and not causing substantial financial hardship to victims – you get a two-level reduction in your offense level.
The problem – one of those criteria says you can’t have caused “substantial financial hardship” to any victim. And remember, federal prosecutors are selecting cases with $250,000+ losses. Those cases often involve victims who suffered financially. So Amendment 821 sounds great for white-collar defendants, but it doesn’t help as many people as you’d think in bank fraud prosecutions.
Judges Can Vary From The Guidelines
The sentencing guidelines aren’t mandatory anymore – they haven’t been since United States v. Booker in 2005. Judges calculate your guideline range, but they can sentence below it if there are compelling reasons. We call that a variance.
First-time offenders have better arguments for variances than repeat criminals. You can argue that prison time isn’t necessary because you have no history of violence, you’re employed, you have family support. Judges consider those factors – they’re required to under 18 USC 3553(a).
But getting a variance that takes you all the way down to probation when your guideline range calls for years in prison is tough. Only about 15% of fraud defendants get probation-only sentences. Over 70% serve time behind bars.
You need a defense attorney who knows how to build a mitigation case – letters from employers, family members, community leaders. Showing the judge who you are beyond the offense matters when they’re deciding whether to grant a variance.
The Loss Amount Calculation Is The Battleground
Since everything hinges on the loss amount, fighting over that number becomes critical. The guidelines say the court calculates either the actual loss or the intended loss – whichever is greater. If you attempted to defraud a bank of $500,000 but only got $100,000 before getting caught, the court uses $500,000.
Your attorney needs to challenge the government’s loss calculation. Sometimes prosecutors inflate the numbers. They include losses that weren’t reasonably foreseeable, or they attribute losses to you that other co-conspirators caused. Every dollar matters because the loss table has breakpoints – $95,000 to $150,000 is one enhancement level, $150,000 to $250,000 is another.
Knocking the loss down from $260,000 to $240,000 might not sound like much, but it could drop you a level. That level might be the difference between Zone C and Zone D, or between 18 months and 24 months in the guideline range.
Cooperation Can Get You Probation
Cooperation with the government can get you a substantial assistance departure under Rule 5K1.1 or 18 USC 3553(e). If you help the government prosecute other people – co-conspirators, other fraudsters, people up the chain – the prosecutor can file a motion asking the judge to sentence you below the guideline range. That motion can get you probation even when the guidelines call for prison.
But cooperation has risks. You’re testifying against people who might retaliate. You’re prolonging your case while you help with other investigations. And if you acted alone, you have nothing to trade.
Our Approach At Spodek Law Group
We’ve been handling federal fraud cases for decades – our attorneys include former federal prosecutors who know how the government builds these cases. When a first-time offender comes to us facing bank fraud charges, we attack the loss calculation. We challenge every enhancement the government tries to add.
Then we build mitigation – your background, your circumstances, what led to the offense, what you’ve done since. We fight for variances when the guidelines are too harsh. We negotiate cooperation agreements when it makes sense.
Todd Spodek has handled many, many cases involving fraud allegations – from high-profile matters that made national news to cases that never saw a headline. The approach is always the same – figure out where the weaknesses are, exploit them, and give the judge every reason to show leniency.
Bank fraud is serious. The statute allows up to 30 years in prison and a million-dollar fine. Federal judges don’t take it lightly. But first-time offenders do get probation sometimes – when the loss is low enough, when the mitigation is strong enough, when the attorney knows how to present the case.
If you’re facing bank fraud charges and wondering about probation, the time to act is now. Before you talk to investigators. Before you make statements that hurt your case later. We’re available 24/7 – we handle cases coast to coast, and we focus only on clients we believe we can help. Call us. Let’s figure out if probation is realistic in your case, and if it is, how we get you there.