Federal Sentencing Guidelines for COVID Loan Fraud

Federal Sentencing Guidelines for COVID Loan Fraud

You want to know how much prison time you’re facing for PPP fraud. You’ve searched “federal sentencing guidelines” because you think there’s a formula. A calculation. Plug in your loan amount, your criminal history, maybe subtract something for good behavior – and out comes a number. That’s what the guidelines look like. Mathematical. Objective. Predictable. That appearance of precision is the first lie the federal sentencing system tells you.

Welcome to Spodek Law Group. Our goal is to explain the second lie: your sentence isn’t based on the money you actually took. Under USSG 2B1.1, federal sentencing guidelines use the GREATER of “actual loss” or “intended loss.” If you applied for $150,000 in PPP funds but only received $50,000 – you’re sentenced on $150,000. The number on your fraudulent application, not the money that hit your bank account, drives your prison sentence. The guidelines that appear to protect defendants actually give prosecutors enormous power to inflate sentences.

Here’s the revelation that changes everything about how you should prepare for federal court. Defendants sentenced in 2024-2025 are receiving prison terms 40% longer on average than those sentenced in 2021-2022 for identical conduct. Same fraud. Same amount. Same guidelines. But sentenced now rather than three years ago – and receiving significantly more prison time. The mathematical formula hasn’t changed. What’s changed is how judges apply it. And they’re applying it against PPP fraud defendants with increasing severity.

The Math That Lies: Why Federal Sentencing Guidelines Aren’t What They Seem

Heres how federal sentencing guidelines actualy work – and why they dont work the way most defendants expect. The calculation starts with a base offense level. For fraud under USSG 2B1.1, that base level is 7. Then the loss table adds levels based on the amount of money involved:

• $6,500 to $15,000: Add 2 levels (total: 9)
• $15,000 to $40,000: Add 4 levels (total: 11)
• $40,000 to $95,000: Add 6 levels (total: 13)
• $95,000 to $150,000: Add 8 levels (total: 15)
• $150,000 to $250,000: Add 10 levels (total: 17)
• $250,000 to $550,000: Add 12 levels (total: 19)

Then enhancements apply. Sophisticated means – using shell companies, fake identities, complex schemes – adds 2 levels. Abuse of a position of trust adds 2 more. Ten or more victims adds 2 more. Mass marketing adds 2 more. A defendant who started at level 11 for a $30,000 fraud can end up at level 17 or higher after enhancements stack.

Federal sentencing guidelines appear mathematical but prosecutors control the inputs – particularly the “loss” number that drives the entire calculation.

The criminal history category then intersects with offense level to produce a range. Category I means no criminal history. Category VI means extensive criminal history. Most PPP fraud defendants have no record – there Category I. But being Category I dosent mean a short sentence. It means you start at the bottom of your guideline range. For offense level 15 with Category I, thats 18-24 months. For offense level 17, thats 24-30 months. And those are the GUIDELINES – judges can and do vary upward.

The system looks objective. Mathamatical. Predictable. But the inputs – especialy the loss amount – are controlled by prosecutors. And in 2024-2025, judges are using there discretion to impose sentences above the guideline ranges in PPP fraud cases.

Intended Loss vs. Actual Loss: The Number That Actually Drives Your Sentence

Heres were the guidelines math becomes a trap. The 2024 amendments to USSG 2B1.1 make explicit what was already common practice: loss is the GREATER of actual loss or intended loss. If you applied for $200,000 but the bank only approved $75,000 – your sentenced on $200,000. If you submitted multiple applications totaling $500,000 but only recieved $150,000 before getting caught – your sentenced on $500,000.

The Third Circuit tried to limit this in United States v. Banks (2022). The court ruled that certain enhancements should apply only to actual loss, not intended loss. That ruling helped some defendants. Then the 2024 amendments overruled it, moving the intended/actual loss rule directly into the guideline text. The Sentencing Commission explicitly rejected the Banks limitation.

Think about what this means for PPP fraud defendants. You filled out an application claiming payroll expenses. Those numbers – wheather you recieved that amount or not – become the “intended loss” that prosecutors use to calculate your offense level. The government dosent need to prove you recieved or spent the full amount. They just need to show what you asked for.

This is why many defendants are shocked when they see there pre-sentence report. They expected the calculation to reflect what they actualy got. Instead it reflects what they tried to get. And the difference can be years of federal prison.

Consider two defendants with identical conduct: both inflated there payroll by 50% on there PPP applications. Defendant A applied for $40,000 and recieved $40,000. Defendant B applied for $200,000 but the bank flagged the application and only approved $40,000. Same fraud percentage. Same amount recieved. But Defendant B faces a significently higher offense level becuase the intended loss was $200,000.

The intended loss doctrine means your exposure is determined the moment you submit the application – not when (or if) the money arrives.

Theres another aspect of intended loss that catches defendants off guard. If you submitted multiple applications to different banks – even if only one was approved – prosecutors may calculate intended loss based on ALL applications. The attempt that failed still counts. The application that was rejected still counts. Every submission is evidence of what you intended to steal, regardless of wheather you succeded.

This is why federal defense attorneys emphasize early intervention. Once the applications exist, the intended loss number is locked in. The only strategy at that point is contesting enhancements, demonstrating acceptance of responsibility, and arguing for judicial mercy in a climate that offers very little of it.

How Enhancements Stack: Sophisticated Means, Abuse of Trust, and More

OK so you understand the base offense level and the loss table. Now heres were the enhancement stacking becomes devastating. Each enhancement adds levels, and levels translate directly into additional prison time.

Sophisticated Means (+2 levels): Did you use shell companies? Multiple bank accounts? Fake employee identities? Any scheme that involved more then basic deception can qualify as sophisticated means. Prosecutors argue this enhancement liberaly in PPP cases becuase most fraud schemes involved at least some layering of applications or funds.

Abuse of Position of Trust (+2 levels): Were you an accountant who filed applications for clients? A bank employee who processed fraudulent loans? A buisness owner who employees trusted? This enhancement applies when your position gave you access or credibility that you exploited.

Ten or More Victims (+2 levels): The SBA. The lending bank. Legitimate buisnesses that didnt get PPP funds becuase the program ran out. Taxpayers. Prosecutors can argue multiple victims even in a single-application fraud, potentially triggering this enhancement.

Mass Marketing (+2 levels): Did you solicit clients for fraudulent applications? Advertise services that included PPP fraud? Use social media to recruit participants? Mass marketing enhancement applies to scheme coordinators.

Heres how stacking works in practice. A defendant with a $75,000 actual/intended loss starts at offense level 13 (base 7 plus 6 for the loss amount). Add sophisticated means: level 15. Add abuse of trust: level 17. Thats a guideline range of 24-30 months for a Category I defendant – before any variances. The same $75,000 fraud without enhancements would have been 12-18 months.

Todd Spodek has represented clients who expected there sentence to reflect just the loss amount. They didnt anticipate the enhancement stacking that prosecutors would argue. Every enhancement is a negotiating point – and every enhancement your attorney fails to contest adds months to your sentence.

Acceptance of Responsibility: The Reduction That Requires Permission

Theres a provision in the sentencing guidelines that sounds like it helps defendants who plead guilty. USSG 3E1.1 provides for a 2 or 3 level reduction for “acceptance of responsibility.” Defense attorneys describe it as roughly a 35% sentence reduction. That sounds significant. Heres why it often isnt.

First, the 2-level reduction isnt automatic. You must “clearly demonstrate” acceptance of responsibility. Pleading guilty is not sufficient by itself. Truthfully admitting the conduct, not falsely denying relevant conduct, cooperating with investigators – all of these factor in. If prosecutors argue you minimized your role or didnt fully disclose, they can oppose the reduction.

Second, the third level – going from 2 to 3 levels of reduction – requires a government motion. The guidelines are explicit: the extra level “may only be granted upon a formal motion by the Government.” Your attorney needs to negotiate this at the plea stage. If the plea agreement dosent include government agreement to file the 3E1.1(b) motion, your probably not getting the third level.

Third – and this is the trap – if you recieve an obstruction of justice enhancement under USSG 3C1.1, you almost certainly lose acceptance of responsibility. The guideline says obstruction “ordinarily indicates” the defendant didnt accept responsibility. So if you lied to FBI agents during the investigation – a seperate federal crime under 18 USC 1001 – you get BOTH the obstruction enhancement AND lose your acceptance reduction. Its a double penalty.

Acceptance of responsibility sounds like reward for pleading guilty – but it requires government permission for the full reduction and disappears entirely if you obstructed the investigation.

The mathematics of this trap: A defendant at offense level 15 who pleads guilty and gets full acceptance of responsibility drops to level 12 (15 minus 3). Thats 10-16 months for Category I. But if that defendant lied to investigators, they get obstruction (+2) and lose acceptance (forfeiting 2-3 levels). Theyre now at level 17 or higher – 24-30 months. The difference between cooperating from the start and lying then pleading guilty can be over a year of federal prison.

2024-2025: When Judges Stopped Following the Guidelines

The federal sentencing guidelines are “advisory” since the Supreme Court’s 2005 decision in United States v. Booker. Judges must calculate the guideline range, but they can impose sentences above or below that range by considering the factors in 18 USC 3553(a). Those factors include the nature of the offense, the defendant’s history, deterrence, and protection of the public.

In PPP fraud cases, judges are using that discretion – but not in defendants favor.

According to USSC data for fiscal year 2024, courts applied variances (sentences outside the guideline range) in 32% of sentencing proceedings. Departures (a more formal deviation) occured in only 4% of cases. That 32% variance rate sounds like it might help defendants. In PPP fraud cases, it dosent. Defense attorneys report that most variances in pandemic fraud cases are UPWARD – judges imposing longer sentences then the guidelines recommend.

Look at recent sentencing outcomes:

• Richard Nieto (June 2025): 46 months for $913,000 PPP fraud, plus $962,438 restitution
• Renetta Golden-Larimore (June 2025): 51 months for $900,000
• Tommy Hawkins (October 2024): 65 months for coordinating $5 million in fraudulent loans
• Cincinnati defendant (March 2025): 18 months for $21,000 – ABOVE guidelines
• Nevada defendant (August 2025): 15+ years for $11 million plus money laundering

The Cincinnati case is particulary revealing. For a $21,000 fraud with no criminal history, the guidelines would recommend 6-12 months. The judge imposed 18 months – 50% above the top of the range. Thats not an outlier. Thats the pattern in PPP fraud sentencing.

Judges are angry about pandemic fraud. Theyve processed thousands of cases. Theyve heard every excuse. The sympathy that existed in 2021 – when judges understood that the pandemic created genuine confusion – has evaporated. What remains is judicial fatigue and a determination to send a deterrence message to anyone else who might be considering fraud.

The pattern is clear across districts. Judges who might have given probation in 2021 are now imposing prison. Judges who might have imposed 12 months are now imposing 24 months. The 40% increase in sentence length isnt happening becuase the guidelines changed – its happening becuase judicial attitudes changed. And those attitudes are unlikely to shift back to leniency anytime soon.

Consider what judges see when they look at PPP fraud defendants. They see people who took money from a program designed to help struggling buisnesses and employees. They see taxpayer funds diverted to luxury purchases, personal expenses, and cryptocurrency. They see defendants who claim confusion about program rules while documenting there fraud in text messages. After seeing this pattern thousands of times, judges have lost patience with explanations that might have sounded reasonable in 2021.

The statute of limitations for PPP fraud was extended to 10 years. That means prosecutions will continue through 2030 or 2032 for fraud commited in 2020-2022. And the judicial climate is not improving. Every year that passes, judges become less sympathetic to pandemic-era excuses and more committed to deterrence through harsh sentencing.

The 2025 Simplification: How Two Steps Replaced Three (And What You Lost)

The 2025 amendments to the sentencing guidelines changed how federal sentencing works in a way that most defendants wont understand until its to late. Previously, sentencing involved three steps: (1) calculate the guideline range, (2) consider departures, and (3) consider variances based on 3553(a) factors. The 2025 amendments collapsed this into two steps: (1) calculate the range, and (2) determine an appropriate sentence based on 3553(a).

At Spodek Law Group, we explain to clients why this “simplification” actualy hurts defendants. The seperate departure step gave defense attorneys two opportunities to argue for a below-guidelines sentence – first under departure provisions, then under variance provisions. Now theres only one opportunity. The departure provisions that previously appeared in the guidelines manual have been moved to an appendix. They still exist, but theyre no longer part of the structured three-step analysis.

The practical impact: judges who previously might have considered departure grounds in step two now move directly to the variance analysis. Some departure grounds that were well-established – like departures for extraordinary family circumstances or aberrant behavior – may recieve less formal consideration in the streamlined process.

For PPP fraud defendants, this change is especialy significant becuase departure provisions sometimes offered specific grounds for below-guidelines sentences. The “aberrant behavior” departure, for example, could apply to defendants with no criminal history who committed a single out-of-character offense. That departure still technically exists, but its harder to invoke in the two-step framework.

Theres also a timing issue. The 2025 Guidelines Manual became effective November 1, 2025. Defendants sentenced after that date are subject to the new framework. Defendants sentenced before that date were still under the three-step process. If your sentencing is scheduled for late 2025 or 2026, your subject to a framework that offers less structural protection then the previous version.

Calculating Your Actual Exposure Before You’re Charged

Everything above leads to this practical question: if your facing potential PPP fraud charges, or youve already been charged, how do you calculate your actual exposure?

Step 1: Determine the Loss Amount

Not what you recieved – what you APPLIED for. Every application, every inflated number, every false statement adds to the intended loss calculation. If prosecutors can prove you submitted applications totaling $300,000, thats your intended loss even if you only recieved $50,000.

Step 2: Calculate Base Offense Level

Use the loss table. Base level 7 plus the appropriate addition for your loss amount. A $100,000 intended loss means base 7 plus 8 = offense level 15.

Step 3: Identify Potential Enhancements

Sophisticated means (+2)? Abuse of trust (+2)? Mass marketing (+2)? Ten or more victims (+2)? Each enhancement adds to your offense level. Be honest with your attorney about every aspect of the scheme so they can anticipate what prosecutors will argue.

Step 4: Calculate Acceptance of Responsibility

If your pleading guilty and cooperating fully, you may get 2-3 levels off. But only if the government agrees to the third level, and only if you didnt obstruct the investigation.

Step 5: Find Your Guideline Range

Cross-reference your final offense level with your criminal history category. For most PPP fraud defendants, thats Category I. The intersection gives you a range in months.

Step 6: Add the Variance Factor

In 2024-2025, expect upward variances. The guideline range is the floor, not the ceiling. Judges are sentencing 40% longer then identical cases from 2021-2022.

Call Spodek Law Group at 212-300-5196 for a consultation. We can calculate your actual guideline exposure before you ever talk to prosecutors – and build a strategy for minimizing the enhancements, preserving acceptance of responsibility, and preparing for a judicial climate that is hostile to PPP fraud defendants.

The federal sentencing guidelines look mathematical. Objective. Predictable. Theyre not. Prosecutors control the inputs. Judges control the variances. And in 2024-2025, both are working against defendants in COVID loan fraud cases. The only protection is understanding the system before it processes you.

Sources:

• USSG 2B1.1 – Federal Fraud Sentencing Guidelines
• USSG § 3E1.1 – Acceptance of Responsibility
• USSC Sourcebook 2024 – Sentencing Statistics
• 18 U.S.C. § 3553 – Factors in Sentencing
• 2025 Sentencing Guidelines Update – Two-Step Process
• PPP Fraud Maximum Prison Sentences Analysis
• SSA OIG – COVID Relief Fraud Sentencing Case