United States v. Jeffrey Alan Horn

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-13327

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JEFFREY ALAN HORN,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:21-cr-60019-RS-3

____________________

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2 Opinion of the Court 22-13327

Before WILLIAM PRYOR, Chief Judge, and JORDAN, and MARCUS,

Circuit Judges.

MARCUS, Circuit Judge:

In April 2022, a jury convicted Jeffrey Horn, a former regis-

tered stockbroker, of conspiracy to commit mail and wire fraud,

conspiracy to commit securities fraud, and securities fraud. The

district court sentenced him to a term of 100 months in prison, fol-

lowed by a three-year term of supervised release, along with a $600

special assessment and the requirement that he was jointly and sev-

erally liable to make restitution to the victims of the fraud in the

amount of $1,469,702. Horn appeals his convictions for sufficiency

of the evidence and cumulative error, and he raises various objec-

tions regarding the calculation of his loss, restitution, and offense

level under the Sentencing Guidelines. After careful review, we

affirm the judgment of the district court in full.

I.

Sunset Capital Assets (“Sunset”) was a publicly traded com-

pany, traded as a penny stock in the “over the counter” (“OTC”)

market. Penny stocks are stocks that trade under five dollars. Be-

cause there usually are not many buyers and sellers for penny

stocks, and because there is not much information regarding com-

panies considered to be penny stocks, the OTC market is consid-

ered a “buyer beware” marketplace.

Sometime around 2010, John Bert Watson, Sr. and John Bert

Watson, Jr. purchased Sunset. Through their purchase, the Wat-

sons intended either to start a company or acquire companies by

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raising capital. The Watsons appointed a president, CEO, and CFO

to the company. However, these individuals were not involved

much with the company. Allen Speck, the CEO, testified that he

had a full-time job in another state, visited Sunset’s offices only

once, and his sole interaction with the company was signing quar-

terly OTC disclosure statements, which he did not check because

he trusted that the disclosure was correct and had been done by an

accountant. Cynthia Delaparte, the CFO, testified that although

she would check the books on a quarterly basis, “it wasn’t a very

busy time,” and Sunset had very little assets, expenses, or cash flow

up until 2014. As a result, Sunset’s officers were almost entirely

unpaid.

In 2014, the Watsons began issuing restricted Sunset stock

shares. The Watsons made this decision without consulting Speck,

Sunset’s officers, or the Board of Directors, even though the Wat-

sons falsified records stating that they had. The Watsons issued 3

million restricted shares through a Regulation D private place-

ment, meaning that the shares were unregistered securities offered

to a limited number of individuals and could not be sold right away.

Stockholders were required to hold the shares for a certain amount

of time, and then could go through a process with a third-party

agent to “unrestrict” the stock before selling it. Alternatively, the

stock would automatically become unrestricted after seven years.

The Watsons hired the appellant, Jeffrey Horn, to sell the

shares. Horn previously was a licensed stockbroker, having taken

and passed both the Financial Industry Regulatory Authority

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(“FINRA”) Series 7 exam and a companion Series 63 state examina-

tion in 1999. Horn recruited several sales people to call investors,

set up at least one call center, and paid rent for it and for three other

call centers. Horn also directly communicated with an investor

who testified at trial, Stanley Wetch, to convince him to buy Sunset

shares.

The Watsons also prepared several versions of a Private

Placement Memorandum (“PPM”) and a sales presentation, both

of which Horn distributed to investors. The PPM and sales presen-

tation included numerous materially false statements. Thus, for

example, the PPM claimed that Sunset had over $570 million in as-

sets and a “number of fine art, antiquities, and hard assets,” with

market values that had been fairly determined by the company.

Similarly, the sales presentation assured the investors that “Sunset

is well capitalized with assets exceeding $812M” and that “Lloyds

[sic] Associates” had appraised gemstones held by Sunset at over

$1.2 billion in “Combined Replacement Value” and more than $800

million in “Combined Fair Market Value.” The presentation fur-

ther projected the company’s year-end revenue for 2015 to be over

$100 million, and attributed to Speck statements praising Sunset for

hitting “a significant milestone” in an “effort to strengthen our al-

ready solid foundation.”

In reality, Sunset had almost no assets or cash flow at all, and

CEO Speck testified he never made any of the statements at-

tributed to him in the marketing materials. Notably, the gem-

stones did not belong to Sunset, many of them had never been

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appraised by Lloyd Associates, and the individual who appraised

them determined that some of them were fake. In fact, the gem-

stones were not even owned by the Watsons. Rather, the gem-

stones were assigned to the Watsons for the purpose of splitting

the proceeds if the Watsons were ever able to sell them. Watsons

enlisted David Olund to help sell the gemstones, but after Olund

spent about $80,000 and two years to investigate the history of the

assets, he ultimately concluded he could not assign a value to the

gemstones. Nonetheless, the Watsons prepared an “artifact history

brief” assigning value to the gemstones -- ranging from $25,000 to

$100,000 per carat -- and signed Olund’s name to it.

The PPM included still more materially false statements.

For example, the PPM assured investors that the proceeds of the

stock sales would be reinvested in the company as “working capi-

tal,” as well as to pay the “legal and accounting cost[s] associated

with a number of mergers being contemplated.” But in several

emails, the Watsons agreed to distribute more than half of the pro-

ceeds directly to Horn and his fellow sales people. In fact, Horn

received 22.5% of the sales proceeds through his company, Genesis

Holdings, LLC (“Genesis”).

In late 2014, the Sunset sales people began to cold-call vic-

tims to convince them to invest in Sunset. One victim, Stanley

Wetch, testified at trial that Sunset’s sales people “were really push-

ing to put all of your money in it,” but at no point did Horn or any

other sales person disclose where the money was going. Horn also

emailed Wetch a non-disclosure statement and a subscription

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agreement. The subscription agreement included a certification

that the victim (Wetch) was an “accredited investor,” which federal

law defines, among other things, as an organization or individual

with a household net worth of over $1 million, excluding primary

residence. Notably, however, Wetch was not an accredited inves-

tor, and he had a net worth of only around $100,000. When Wetch

went over his net worth with Horn, Horn “said don’t worry about

it” and “just minimized” the requirement. In fact, Wetch had no

recollection of anyone at Sunset ever asking him what his income

was. The subscription agreement also falsely represented that the

stock sale did not include a broker’s fee or finder’s fee when, in fact,

nearly half of the proceeds were paid to Horn and the other sales

people.

The testimony at trial of other victims was similar. Alt-

hough Horn did not speak directly on the phone with the other

victims who testified, he sent follow-up emails to them with the

PPM and sales presentation. Douglas Caruso, an electrician with

“[v]ery, very limited” investment experience, testified that he

“[a]bsolutely read” the documents Horn sent him and relied upon

them when deciding to buy stock. Like Wetch, Caruso also re-

ceived a subscription agreement confirming that he was an accred-

ited investor, and like Wetch, Caruso was not. Moreover, Caruso

did not have a household net worth of over $1 million.

In all, Horn and his sales people raised more than $1.6 mil-

lion from investors, almost all of which went into three bank ac-

counts controlled by the Watsons. Horn received some $182,000

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of that investor money from the Watsons, in addition to about

$55,000 in other deposits. With that money, Horn paid himself

$25,900, paid five other Sunset sales people, and spent $172,688 on

plane tickets, rental cars, hotels, retail purchases, as well as per-

fume, flowers, women’s apparel, and tanning salon visits.

Horn received his last check from Sunset in November 2015.

Soon after, Horn lost all communication with Sunset. The com-

pany stopped answering Horn’s phone calls, emails, and messages,

and Horn stopped working at Sunset.

In 2020, the Watsons sold Sunset to a company called Aphex

Biocleanse Systems through a share exchange, which in essence di-

luted Sunset’s shareholders from owning 100% of the company to

owning just 10%. Sunset’s 2017 annual disclosure statement, filed

retroactively in 2020 for the purpose of the sale, stated that Sunset

“acquired a number of fine art, antiquities, and hard assets in ex-

change for stock” but that “it was determined that these assets

which had been invested in good faith had been lost” despite “rea-

sonable efforts . . . to attempt to recover the assets.” Sunset re-

ported that its Board agreed that the net value of the assets was

now zero, and in subsequent annual reports, the assets remained

zero. Although a few Sunset shareholders, including Horn’s father,

were able to sell their shares in the years following the scheme, the

stock is currently worth almost nothing.

On January 19, 2021, after an extensive FBI investigation, a

grand jury sitting in the Southern District of Florida returned an

indictment charging the Watsons, Horn, and Omar Leon

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8 Opinion of the Court 22-13327

Plummer, a sales person supervised by Horn, with conspiracy to

commit mail and wire fraud, in violation of 18 U.S.C. § 1349 (Count

1), conspiracy to commit securities fraud, in violation of 18 U.S.C.

§ 371 (Count 2), and five counts of securities fraud, in violation of

15 U.S.C. §§ 77q(a) and 77x and 18 U.S.C. § 2 (Counts 3–7). On

April 11, 2022, Horn and Plummer proceeded to trial. 1 The district

court later dismissed Count 3 for reasons not contested or at issue

in this appeal. After only some four hours of deliberation, the jury

returned a verdict convicting Horn on all counts and convicting

Plummer on Count 2.

The district court sentenced Horn to 100 months in prison

for Count 1 and 60 months in prison as to the other counts, all

terms to run concurrently, followed by three years of supervised

release. The court also imposed a $600 special assessment. At the

restitution hearing, the court found that “by a preponderance of

the evidence . . . these defendants [Horn and Plummer] are respon-

sible for the entire amount jointly and severally $1,469,702 as resti-

tution.”

This timely appeal by Horn followed. 2

1 The Watsons did not go to trial. Watson, Sr. had died, and Watson, Jr. was

a fugitive, having fled the United States, and is believed to be living in Nicara-

gua.

2 The district court sentenced Plummer to 36 months in prison, followed by

three years of supervised release. The court also imposed a $100 special as-

sessment, and it found him jointly and severally liable for the restitutionary

amount of $1,469,702.

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II.

A.

Horn raises several arguments challenging the sufficiency of

the evidence. We begin with Horn’s claim that the evidence was

insufficient to establish that he acted “willfully.” Horn says that

several pieces of evidence at trial show that he was innocently

duped into fraudulently selling Sunset shares and therefore, the

jury could not convict him of anything. We remain unpersuaded.

We review the sufficiency of the evidence de novo. United

States v. Doe, 661 F.3d 550, 560 (11th Cir. 2011). In so doing, the

Court must “view the evidence in the light most favorable to the

government and resolve all reasonable inferences and credibility

evaluations in favor of the jury’s verdict.” Id. (quoting United States

v. Robertson, 493 F.3d 1322, 1329 (11th Cir. 2007)). “Evidence is suf-

ficient to support a conviction if ‘a reasonable trier of fact could find

that the evidence established guilt beyond a reasonable doubt.’”

United States v. Maxwell, 579 F.3d 1282, 1299 (11th Cir. 2009) (quot-

ing United States v. Calhoon, 97 F.3d 518, 523 (11th Cir. 1996)). The

“evidence need not exclude every reasonable hypothesis of inno-

cence or be wholly inconsistent with every conclusion except that

of guilt.” Doe, 661 F.3d at 560 (quoting Robertson, 493 F.3d at 1329).

Proof of intent to defraud is necessary to support a finding

of “willfulness” for securities and wire fraud. United States v. Brad-

ley, 644 F.3d 1213, 1239 (11th Cir. 2011); FindWhat Inv. Grp. v.

FindWhat.com, 658 F.3d 1282, 1299 (11th Cir. 2011). “To gauge a

defendant’s intent to commit a fraudulent scheme,” a jury “must

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determine whether the defendant attempted to obtain, by decep-

tive means, something to which he was not entitled.” Bradley, 644

F.3d at 1240. “A jury may infer an intent to defraud from the de-

fendant’s conduct.” Id. at 1239 (quoting Maxwell, 579 F.3d at 1301);

cf. United States v. Santos, 553 U.S. 507, 521 (2008) (observing that

“knowledge must almost always be proved . . . by circumstantial

evidence.”).

Taking the evidence in the light most favorable to the Gov-

ernment, a reasonable jury could readily infer (as it plainly did) that

Horn acted with the requisite intent to defraud. For starters, the

jury heard testimony from Peter J. Melley, an attorney at FINRA,

that Horn had formerly worked as a licensed stockbroker, having

passed his Series 7 and Series 63 licensing exams in 1999. The jury

also learned that passing those exams imposes upon a licensed

stockbroker the duty to fully and honestly advise his client, and the

duty to make diligent good faith efforts to obtain essential facts be-

fore making appropriate recommendations -- including finding out

what a suitable recommendation is based on the client’s age, time-

line, risk tolerance, assets, liabilities, net worth, and financial so-

phistication.

Further, the jury saw copies of several emails in which Horn

distributed the PPM and sales presentation to investors. Among

other things, these materials falsely represented that the proceeds

of all sales of Sunset stock would be reinvested in Sunset itself. A

reasonable jury could infer that Horn knew this was not true, since

more than half of the proceeds of each sale were distributed

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directly to Horn and the other sales people. Moreover, Horn di-

rected two investors to wire money directly into the bank accounts

of several shell companies controlled by the Watsons.

The jury also learned that Horn emailed Wetch a copy of a

subscription agreement for him to sign, falsely certifying that

Wetch was an “accredited investor[]” as was required in order to

participate in the private placement. Wetch testified, however,

that although he was not an accredited investor, Horn told him,

“[D]on’t worry about it,” and “just minimized” the requirement.

These facts alone are more than enough to enable a reason-

able jury to find that Horn had the requisite fraudulent intent. A

reasonable jury crediting this information readily could determine

that Horn (1) knew well his duty to be honest and diligent when

making sales to clients, but (2) nevertheless repeatedly sent his cli-

ents materially false information telling them that their funds

would be invested completely into Sunset when, in fact, he was

directing them to wire money into shell companies which would

subsequently wire money into Horn’s own bank accounts, and (3)

convinced unsophisticated investors, who did not qualify for the

private placement, to buy the stock anyway, while simultaneously

certifying that they were accredited investors and downplaying the

accreditation requirements.

Despite Horn’s arguments, based primarily on the testi-

mony of his father, that he was also duped by the Watsons and was

an innocent victim, we are required to review the evidence in the

light most favorable to the jury’s verdict. Doe, 661 F.3d at 560. And

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as we see it, we cannot say that no reasonable jury could have

found that his conduct was knowing, willful, and intentional.

Horn also argues that (1) he was only a glorified administra-

tive assistant, (2) he believed Sunset’s PPM, (3) he believed the gem

and artifacts appraisal to be accurate, (4) at least some of the victims

were, in fact, sophisticated or accredited investors who should have

known how to check Sunset’s true value for themselves, and

(5) even sophisticated businessmen dealing with Sunset could not

discern the ongoing fraud. However, none of this refutes the evi-

dence establishing willfulness and, in some cases, is not even rele-

vant. The only pieces of evidence in the record offered to establish

that he was merely Watson, Jr.’s “administrative assistant” are that

Horn did not personally prepare the false PPM and materials sent

to victims and that one victim, Caruso, testified that Horn did not

present him with anything on the phone but only forwarded him

emails. But a jury could limit or disregard the significance of this

evidence in favor of the testimony of, among others, Wetch, who

spoke with Horn on the phone repeatedly and was instructed by

Horn where to wire money, and with whom Horn directly shared

the false sales presentation (even if Horn did not personally prepare

the presentation).

Moreover, Horn cites no contrary evidence showing that he

believed the PPM or the very large gem and artifacts appraisals. In

any event, Horn was not required to know every detail of the

fraud. “A single conspiracy may be found where there is a ‘key

man’ who directs the illegal activities, while various combinations

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of other people exert individual efforts towards the common goal.”

United States v. Gonzalez, 940 F.2d 1413, 1422 (11th Cir. 1991). Fur-

ther, the fact that some of Sunset’s victims were sophisticated or

accredited investors did not relieve Horn of his responsibility to not

mislead them or, in particular, to not mislead others, like Wetch

and Caruso, who plainly were neither sophisticated nor wealthy.

Finally, the fact that Sunset successfully concealed its fraud from

several businessmen with whom it was dealing has no bearing on

Horn’s state of mind when Horn was on the inside of this conspir-

acy.

Horn also argues that the evidence was somehow insuffi-

cient to establish injury or loss as a matter of law because Sunset’s

investors “got what they paid for,” since investors paid for a certain

number of shares and received that number of shares from Sunset.

Horn’s argument is flatly wrong and relies on a misreading of

United States v. Takhalov, 827 F.3d 1307 (11th Cir. 2016). In Takha-

lov, women posing as tourists lured men into the defendants’ bars

and clubs. Id. at 1310–11. Once inside, the men were persuaded to

spend money on overpriced drinks. Id. at 1311. We held that “if

someone is lured to a bar under false pretenses but nevertheless

gets precisely what he pays for, he has hardly been deceive[d] or

cheat[ed] out of money or property.” Id. at 1318 (internal quota-

tion marks omitted).

This is because if the women lied to the men about their

relationship with the bar, and the men, relying on that lie,

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14 Opinion of the Court 22-13327

purchased the overpriced drinks but still got what they bought,

they may have been misled but there was no fraud. Id. at 1316–17,

1319.

The problem with Horn’s theory is that the lies in this case

were about the Sunset shares themselves. By misrepresenting Sun-

set’s essential qualities -- including its assets, cash flow, and what

would be done with the proceeds of the share purchases -- Horn

and his co-conspirators misled investors about what investors were

actually purchasing. The investors thought they were buying

shares in a potentially lucrative company; instead, they got shares

in a worthless shell. For this reason, we have previously rejected

Takhalov arguments in the securities fraud context. See United

States v. Wheeler, 16 F.4th 805, 820–21 (11th Cir. 2021) (per curiam)

(finding that misrepresenting facts about a company’s profits, asso-

ciation with a high-profile company and executive, and commis-

sions to sales people constituted a misrepresentation of the “essen-

tial characteristics of the stock” and thus constituted fraud). Be-

cause Horn misrepresented Sunset’s cash flow and its assets, he

misrepresented the essential characteristics of the stock.

Even if we accepted Horn’s argument that he believed the

company actually had some value, the fact that Horn knew he was

being paid out from the proceeds of investor purchases alone could

amount to fraud, since “a reasonable jury could have found that it

would decrease the value investors got from the bargain if their

money was going to a salesperson’s pocket in the form of commis-

sions, rather than injecting capital for [Sunset] to expand or to

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conduct research and development” as Horn represented. Id. at

821. Horn’s Takhalov argument fails.

What’s more, on this set of facts, the jury was not required

to accept that Horn did not know that the stock was actually

worthless in light of the many materially false representations he

did make, and given the large role he played in setting up the call

centers, hiring sales personnel to staff those centers, deceiving

scores of investors, and participating in this elaborate conspiracy

for more than one year. The evidence was sufficient for a jury to

find beyond a reasonable doubt that Horn had the requisite fraud-

ulent intent.

B.

Horn also claims that cumulative errors at his trial warrant

reversal. At the outset, we consider each of Horn’s asserted errors

one by one before we determine whether there was cumulative

error. United States v. Calderon, 127 F.3d 1314, 1333 (11th Cir. 1997).

Horn has the burden of demonstrating whether the aggregation of

alleged errors affected his substantial rights and rendered the trial

unfair. United States v. Capers, 708 F.3d 1286, 1299 (11th Cir. 2013).

Horn first says the district court erred when it did not allow

him to raise an affirmative defense for a statute of limitations vio-

lation. According to Horn, he affirmatively withdrew from the

conspiracy on November 16, 2015, and therefore the five-year stat-

ute of limitations on the two conspiracy counts expired in

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November 2020, about two months before the indictment was re-

turned. 3 Horn adds that the trial court should have sua sponte given

a statute of limitations defense instruction to the jury, and that he

should have been allowed to argue about the statute of limitations

at closing. Neither argument is correct, so there was no error at

all.

Our precedent is crystal clear that the statute of limitations

is an affirmative defense, which a defendant must assert at trial.

United States v. Najjar, 283 F.3d 1306, 1308 (11th Cir. 2002) (per cu-

riam). Horn’s sole assertion of a statute of limitations defense came

too late. At the close of all of the evidence, Horn renewed his mo-

tion for judgment of acquittal, and when replying in rebuttal to the

Government on the motion, Horn’s counsel made a single refer-

ence to the statute of limitations. Neither the Government nor the

district court responded to it. Horn did not request a jury instruc-

tion regarding the statute of limitations, and the court did not give

one. Later, Horn mentioned the statute of limitations in closing

argument, saying, “the last check to Genesis was November 16,

2015, more than five years ahead of the date of the filing of the in-

dictment which, in fact, violates the statute of limitations.” The

Government objected, and the district court sustained the objec-

tion.

Longstanding precedent has held that raising a statute of

limitations issue for the first time after the close of evidence is

3 Horn does not contest the fraud charges on this basis because fraud has a six-

year statute of limitations.

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insufficient to raise it as an affirmative defense because “the prose-

cution is entitled to an opportunity . . . to introduce evidence”

showing that the defendant fell within the statute. Capone v. Ader-

hold, 65 F.2d 130, 131 (5th Cir. 1933); 4 see also Najjar, 283 F.3d at

1308 (reaffirming the Capone rule). “A plea in bar raises an issue

and affords the prosecution an opportunity to meet it. The ordi-

nary motion to direct a verdict is not such a plea; it is not usually

made until all the evidence is in, and after it is too late for the pros-

ecution to offer evidence in rebuttal and in contradiction of it.” Ca-

pone, 65 F.2d at 131. By failing to raise the defense before the close

of evidence, Horn waived it.

Even if Horn had not waived the statute of limitations issue,

Horn still would not be able to establish that the district court erred

in failing to give a statute of limitations instruction sua sponte. Be-

cause Horn challenges the district court’s failure to deliver a jury

instruction he did not request, we review the court’s failure only

for plain error. United States v. Deason, 965 F.3d 1252, 1265 (11th

Cir. 2020). We may find plain error only where “(1) there is an er-

ror; (2) that is plain or obvious; (3) affecting the defendant’s sub-

stantial rights in that it was prejudicial and not harmless; and

(4) that seriously affects the fairness, integrity or public reputation

of the judicial proceedings.” United States v. Hall, 314 F.3d 565, 566

(11th Cir. 2002). “The Supreme Court has instructed us that plain

4 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we

adopted as binding precedent all Fifth Circuit decisions issued before October

1, 1981. Id. at 1209.

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error review should be exercised sparingly, and only in those cir-

cumstances in which a miscarriage of justice would otherwise re-

sult.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005)

(internal quotation marks and citations omitted). Horn carries the

“difficult” burden of establishing each of the four prongs. Greer v.

United States, 141 S. Ct. 2090, 2097 (2021) (quoting Puckett v. United

States, 556 U.S. 129, 135 (2009)). He has not done so.

This is easily resolved at the first two steps of the analysis,

because there is no error here at all, much less one that was “plain

or obvious.” Hall, 314 F.3d at 566. For the trial court to have even

arguably had a duty to sua sponte provide an instruction for the stat-

ute of limitations, the evidence at trial would have had to have

shown that Horn stopped participating in the conspiracy before

January 19, 2016, five years before the indictment. But the conspir-

acy in which Horn was charged with participating continued until

April 2016. Thus, Horn was required to offer evidence that he af-

firmatively withdrew from the conspiracy before it ended.

However, passively ceasing to participate in a conspiracy

does not amount to withdrawal. Rather, “[i]t is well settled that an

accused conspirator’s participation in a criminal conspiracy is pre-

sumed to continue until all the objects of the conspiracy have been

accomplished or until the last overt act is committed by any of the

conspirators.” United States v. Finestone, 816 F.2d 583, 589 (11th Cir.

1987). To overcome this presumption, Horn has the “substantial”

burden of proving affirmative withdrawal. Id. We employ “a well-

established, two-prong test for withdrawal”: first, “the defendant

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must prove that he undertook affirmative steps, inconsistent with

the objects of the conspiracy, to disavow or to defeat the conspira-

torial objectives,” and second, the defendant must have “either

communicated those acts in a manner reasonably calculated to

reach his co-conspirators or disclosed the illegal scheme to law en-

forcement authorities.” United States v. Bergman, 852 F.3d 1046,

1061–62 (11th Cir. 2017) (quoting Finestone, 816 F.2d at 589) (em-

phasis omitted). “A mere cessation of activity in the conspiracy is

not sufficient to establish withdrawal.” Finestone, 816 F.2d at 589.

Nothing Horn alleges, even if it were entirely believed by

the jury, could amount to a withdrawal from the conspiracy as a

matter of law. Although Horn argues that he “left Sunset after he

confronted Watson, Jr. about misrepresentations regarding Sun-

set’s activities he made to Horn,” he cites to nothing in evidence

and instead refers only to a statement made by his counsel in argu-

ment at his sentencing, which is not evidence. United States v. Va-

lois, 915 F.3d 717, 726 (11th Cir. 2019) (“[S]tatements and argu-

ments of counsel are not evidence.” (quoting United States v. Lopez,

590 F.3d 1238, 1256 (11th Cir. 2009))). In fact, the only evidence

presented at trial about Horn’s exit from Sunset indicated that Sun-

set cut Horn out, not that Horn withdrew. Arnold Horn testified

that his son “lost all communication with the company” when

“[a]ny phone calls weren’t answered, emails weren’t answered,

messages weren’t answered. It was just over time, there was no

more communication whatsoever with the company.” And when

asked whether there was “any doubt in your mind based on how

[Horn] acted that, in fact, [Sunset] cut him off,” Arnold Horn

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20 Opinion of the Court 22-13327

replied, “None whatsoever.” Far from there being a confrontation

with Horn followed by a disavowal, the testimony the jury heard

indicated that, instead, Sunset essentially hung Horn out to dry.

Horn failed to show that he took affirmative steps to disa-

vow or defeat the conspiracy. See United States v. Pippin, 903 F.2d

1478, 1481–82 (11th Cir. 1990). Even under his version of events,

after confronting Watson, Jr., he still collected his final paycheck

from Sunset and did nothing to warn others, mitigate, or otherwise

defeat the objectives of the conspiracy as to the sales in which he

had already participated. Thus, even if Horn’s counsel’s statement

that Horn confronted Watson, Jr. was evidence, which it was not,

and were credited by the jury, which it was not, there was no error

in the district court’s failure to give a statute of limitations instruc-

tion, much less plain error when that instruction was never re-

quested.

Horn also argues that his Fifth Amendment right to silence

was violated by FBI Agent Alonzo Palomares’s statement, “I tried

to get an in-person interview with Horn but was unsuccessful.”

Horn did not object to this testimony, so again we review only for

plain error. See United States v. Frazier, 387 F.3d 1244, 1268 n.21

(11th Cir. 2004) (en banc). Again, Horn’s argument fails because

there was no error.

For starters, Agent Palomares never said, “I tried to get an

in-person interview with Horn but was unsuccessful” at any point

during trial. The closest that Agent Palomares came to saying

something along those lines appears to be the following statement,

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22-13327 Opinion of the Court 21

where he summarized a telephone conversation he had with Horn

on September 22, 2020:

A. It was a very short conversation. I started off by

asking if he knew John Alexander Van Arem. He said

he responded yes, I know a Lex. I asked him if he was

familiar with Sunset Capital Assets. He said yes, he

was familiar with the company. I attempted at that

point [to] establish an in-person interview and we at-

tempted to coordinate to do so.

Q. When was Jeffrey Horn arrested?

A. The same date as Mr. Plummer. January 27, 2021.

Taken in context, this comment is permissible. For one thing, the

conversation related by Agent Palomares was in a pre-arrest con-

text, which we have emphasized is different from the post-arrest

context. See United States v. Carter, 760 F.2d 1568, 1577 (11th Cir.

1985) (“There is no question that in certain circumstances it is per-

missible for a prosecutor to comment on a defendant’s prearrest

silence.”).

More importantly, Agent Palomares did not say that Horn

refused to answer any more questions; instead, he related that “I

attempted at that point [to] establish an in-person interview and we

attempted to coordinate to do so.” The only possible inference the

jury could make regarding pre-arrest silence would be that the

prosecutor’s next question involved Horn’s arrest, not an in-person

interview. “Viewed in this light, any resulting prejudice would at

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22 Opinion of the Court 22-13327

best be minimal.” Carter, 760 F.2d at 1577. There was no error

here, much less plain error.

Further, even if Horn had established error, he has not

shown that any of his substantial rights were affected. Hall, 314

F.3d at 566. “This Circuit has held that the harmless error doctrine

is applicable to unconstitutional comment on silence.” United

States v. Gonzalez, 921 F.2d 1530, 1549 (11th Cir. 1991). In Gonzalez,

we held as harmless a comment on the defendant’s silence when

the testimony accounted for “only a few moments during an eight-

day trial,” and when “[t]he prosecutor did not focus on, nor em-

phasize Special Agent Eledge’s response, or Gonzalez’s silence,”

nor did the prosecution intentionally elicit the testimony or raise it

again in argument. Id. at 1549–50. Like in Gonzalez, here the testi-

mony at issue consisted of a single oblique reference during a six-

day trial, and the Government did not intentionally elicit the testi-

mony, nor did the Government emphasize, focus on, or return to

Agent Palomares’s testimony in any way. Agent Palomares’s testi-

mony did not violate Horn’s Fifth Amendment rights.

Finally, Horn argues that the district court erred by permit-

ting Government witness Peter Melley to testify when, according

to Horn, Melley was an undisclosed expert witness. The trial

court’s ruling regarding the admissibility of lay or expert testimony

is an evidentiary decision reviewed for clear abuse of discretion.

United States v. Jeri, 869 F.3d 1247, 1265 (11th Cir. 2017). There was

no abuse of discretion because Melley did not testify as an expert

witness.

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22-13327 Opinion of the Court 23

Federal Rules of Evidence 701 and 702 govern the boundary

between lay and expert witnesses. Fed. R. Evid. 701; Fed. R.

Evid. 702. Under Rule 701, a witness who is not testifying as an

expert may offer opinions limited only to those rationally based on

his own perception and not based on scientific, technical, or spe-

cialized knowledge. Fed. R. Evid. 701. An expert witness, on the

other hand, may testify in the form of an opinion based upon the

application of the expert’s scientific, technical, or other specialized

knowledge. Fed. R. Evid. 702. If a witness will offer expert testi-

mony, Federal Rule of Criminal Procedure 16 requires timely dis-

closure before trial of that expert, his testimony, and what opinions

he will make, so as to “provide a fair opportunity for the defendant

to meet the government’s evidence.” Fed. R. Crim. P. 16(a)(1)(G).

However, “[j]ust because [a witness]’s position and experience

could have qualified him for expert witness status does not mean

that any testimony he gives at trial is considered ‘expert testi-

mony.’” United States v. LeCroy, 441 F.3d 914, 927 (11th Cir. 2006).

If a witness who could be an expert nevertheless offers only “layper-

son observations” and does “not provide expert testimony under

Rule 702,” then “no Rule 16 notice [is] required.” Id.

Although Melley was qualified to be an expert witness

should the Government have chosen to qualify him, none of the

testimony he offered crossed into the realm of Rule 702. At trial,

Melley explained the nature of his employment at FINRA and

FINRA’s role in regulating and licensing stockbrokers. Melley also

authenticated FINRA records establishing that Horn passed his Se-

ries 7 and Series 63 exams to become a licensed stockbroker.

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24 Opinion of the Court 22-13327

Finally, Melley gave a basic overview of what was tested on those

exams, including the definitions of securities, private placements,

penny stocks, and the disclosure and ethical obligations of securi-

ties brokers. Melley offered no opinions on facts or issues at trial.

Testimony like Melley’s -- in which the witness is “testifying

based on particularized knowledge gained from their own personal

experiences” or professional background, or presenting hard facts -

- does not generally rise to the level of expert opinion. Jeri, 869 F.3d

at 1265–66 (quoting United States v. Hill, 643 F.3d 807, 841 (11th Cir.

2011)). Consistent with this rule, we’ve held that no expert disclo-

sure was necessary under Rule 16 where, for example: the witness

provided the jury with a summary of the defendant’s bank and

wage records, but did not opine on them, United States v. Chalker,

966 F.3d 1177, 1192 (11th Cir. 2020); the witness “explained how

cell phone towers record ‘pings’ from each cell phone number and

how he mapped the cell phone tower locations for each phone call”

in certain exhibits, United States v. Ransfer, 749 F.3d 914, 937–38

(11th Cir 2014); and the witness reviewed accounting records and

explained how he calculated a summary, United States v. Hamaker,

455 F.3d 1316, 1331–32 (11th Cir. 2006).

Just like in those cases, Melley neutrally authenticated rec-

ords indicating that Horn had passed his certification exams and

explained from his own experience what is tested on those exams.

“The problem for [Horn] is that he points to no opinion testimony

offered by [Melley] that impermissibly crossed over the line into

expert testimony. He does not, because he cannot -- [Melley] never

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22-13327 Opinion of the Court 25

opined as an expert.” Chalker, 966 F.3d at 1192. The district court

did not abuse its discretion in permitting Melley to testify and there

was no error.

In short, Horn has identified no errors at all, let alone cumu-

lative errors requiring that his conviction be overturned.

III.

Horn also argues that the district court erred at sentencing

when it increased his offense levels for various reasons. Each of

Horn’s arguments fails, and we take each challenge in turn.

A.

We begin with the district court’s increase of Horn’s offense

level by 4 levels under U.S.S.G. § 3B1.1(a) after finding that he was

an “organizer” or “leader.” We review the district court’s determi-

nation that a defendant is subject to a Section 3B1.1 role enhance-

ment as a leader or organizer for clear error. United States v. Mar-

tinez, 584 F.3d 1022, 1025 (11th Cir. 2009). Here, the district court

did not clearly err, because the evidence at trial supported the dis-

trict court’s conclusion.

Pursuant to Section 3B1.1(a), a district court must increase a

defendant’s offense level by four levels “[i]f the defendant was an

organizer or leader of a criminal activity that involved five or more

participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). In

considering who is a leader or organizer, titles are not controlling;

rather, we consider the following factors:

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26 Opinion of the Court 22-13327

[(1)] the exercise of decision making authority, [(2)]

the nature of participation in the commission of the

offense, [(3)] the recruitment of accomplices, [(4)] the

claimed right to a larger share of the fruits of the

crime, [(5)] the degree of participation in planning or

organizing the offense, [(6)] the nature and scope of

the illegal activity, and [(7)] the degree of control and

authority exercised over others.

United States v. Grushko, 50 F.4th 1, 16 (11th Cir. 2022) (quoting

U.S.S.G. § 3B1.1 cmt. n.4). There is no requirement that all of these

factors must be present. Id. Rather, we’ve been clear that “these

factors are merely considerations for the sentencing judge, who

makes the factual determinations for the applicability of the § 3B1.1

enhancement on a case-by-case basis, and we give deference to the

factfindings of the sentencing judge.” United States v. Ramirez, 426

F.3d 1344, 1356 (11th Cir. 2005) (per curiam). Additionally, com-

ment four of U.S.S.G. § 3B1.1 explains that “[t]here can, of course,

be more than one person who qualifies as a leader or organizer of

a criminal association or conspiracy.” U.S.S.G. § 3B1.1 cmt. n.4.

The facts presented at trial supported the district court’s

finding that Horn was an organizer or leader. As for factor two,

role in the offense, Horn set up and maintained at least one call

center, and he paid the rent for it and for three other call centers,

where sales people cold-called investors and sold Sunset shares.

Horn further recruited several sales people and paid them their

commissions, satisfying the third factor, recruitment of accom-

plices. Horn also claimed the right to a larger share of the fruits of

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22-13327 Opinion of the Court 27

the crime, the fourth factor, since he received nearly a quarter of

the proceeds of each sale. As for the degree of participation in plan-

ning or organizing the offense, the fifth factor, Horn oversaw the

call centers, followed up on sales calls by emailing and calling the

victims and sending them instructions on where to wire money,

and -- unlike co-defendant Plummer or the other sales people who

reported to him -- Horn reported directly to the Watsons. Finally,

as for the nature and scope of the illegal activity, the sixth factor,

Horn participated in an extensive years-long scheme to fraudu-

lently sell millions of dollars of worthless stock shares to many in-

vestors.

Horn may not have been at the very top of the food chain in

this conspiracy, but the facts support that he knew the overall

scheme, hired and directed many accomplices, operated the call

centers, directed where the money would be wired, and dispersed

funds. On these facts, we can discern no clear error in the district

court’s determination that Horn’s offense level should be en-

hanced. See, e.g., United States v. Rendon, 354 F.3d 1320, 1332 (11th

Cir. 2003) (upholding a four-level enhancement where a defendant

operated a drug smuggling boat, hired at least two participants,

knew the delivery location of the drugs, and gave instructions to

throw cocaine overboard when a Navy plane flew overhead).

Horn’s arguments are unpersuasive. For one thing, the role

played by Horn went far beyond being a glorified administrative

assistant, as he put it. He also claims that he was not an “organizer”

or “leader” at Sunset because he was not on the Board or a

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28 Opinion of the Court 22-13327

corporate officer at the company. But even setting aside the fact

that comment four of the Guidelines instructs us that titles are not

determinative, see U.S.S.G. § 3B1.1 cmt. n.4, Horn has confused the

structure of Sunset with the structure of the conspiracy. Although

others held Board or officer positions at Sunset, they were not a

part of the conspiracy, and they were kept in the dark. In sharp

contrast, Horn was clearly inside the conspiracy, despite having no

official title in Sunset. Horn further says that he recruited no one,

but he cites only to the testimony of an FBI agent on cross exami-

nation saying he cannot recall whether Horn recruited anyone, not

that Horn actually did not recruit anyone. Finally, Horn generally

realleges that he was an innocent victim duped by the Watsons,

which is just a dispute with the jury verdict.

We turn next to Horn’s argument, which does not cite to

any authority, that the district court erred in finding that he was a

“broker” or “dealer,” and accordingly in giving him a four-level en-

hancement pursuant to U.S.S.G. § 2B1.1(b)(20)(A). This too is a

factual finding at sentence that we review only for clear error.

United States v. McGuinness, 451 F.3d 1302, 1304 (11th Cir. 2006) (per

curiam).

The district court did not clearly err because the evidence

establishes that Horn qualifies for this enhancement. Sec-

tion 2B1.1(b)(20)(A) of the Guidelines provides a four-level en-

hancement where an offense involves:

a violation of securities law and, at the time of the

offense, the defendant was (i) an officer or a director

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22-13327 Opinion of the Court 29

of a publicly traded company; (ii) a registered broker

or dealer, or a person associated with a broker or

dealer; or (iii) an investment adviser, or a person asso-

ciated with an investment adviser.

U.S.S.G. § 2B1.1(b)(20)(A). The application notes clarify that a

“registered broker or dealer” means the same thing as the defini-

tion found in 15 U.S.C. § 78c(a)(48). U.S.S.G. § 2B1.1 cmt. 16. That

statute covers any “broker or dealer registered or required to reg-

ister pursuant to” 15 U.S.C. §§ 78o or 78o-4, which generally covers

anyone engaged in interstate securities transactions. See 15 U.S.C.

§ 78o. Since Horn was engaged in securities transactions, he was

required to register and therefore qualified for the § 2B1.1(b)(20)(A)

enhancement.

Horn’s arguments are unavailing. Horn reiterates that he

does not qualify for the enhancement because he was an innocent

administrative assistant. But this is unsupported by the record and

contrary to the jury verdict. Horn also argues that it is not clear

from the record which role under § 2B1.1(b)(20)(A) -- officer, direc-

tor, broker, or investment advisor -- he falls under, and asks this

Court to remand the case “for a resentencing hearing to clarify”

“which of the 4 titles the court found to apply the enhancement.”

This too is unconvincing. Horn cites no authority for the proposi-

tion that the district court was required to make a specific finding

about which of the four titles applies for the enhancement. In any

event, the Government explained in its reply to Horn’s objections

to the Presentence Investigation Report (“PSI”) that he met the def-

inition of “broker or dealer” and reiterated those arguments at

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30 Opinion of the Court 22-13327

sentencing, where the Government represented (without objec-

tion) that Horn was conceding the point and where the court sub-

sequently overruled the objections to the PSI. The record is thus

clear that the district court understood that Horn qualified for the

enhancement as a broker or dealer, and the district court did not

clearly err.

We also find no merit in Horn’s claim, again citing to no le-

gal authority, that the district court erred by making a two-level

enhancement for “10 or more victims” pursuant to U.S.S.G.

§ 2B1.1(b)(2)(A)(i). The number of victims is a factual question at

sentencing that we review only for clear error. United States v. Ro-

driguez, 732 F.3d 1299, 1305 (11th Cir. 2013). “Although review for

clear error is deferential, a finding of fact must be supported by sub-

stantial evidence.” Id. (quoting Robertson, 493 F.3d at 1330). Where

the defendant objects to the number of victims, the government

has a duty to present “reliable and specific evidence.” Id.

Here, the Government fully met its burden. The Govern-

ment offered two dozen pages of Sunset’s internal records cata-

loguing the private placement of stocks, including to whom they

were sold, the buyers’ contact information, the price at which the

stocks were sold, and other related information. The Government

also presented a table with the names of dozens of known investor-

victims, which also included the dates of purchases and total loss

for each victim, with citations to trial exhibits, including wire trans-

fer records, bank records, and Sunset’s own records. This showing

of specific and reliable evidence is far more than “an allegation by

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22-13327 Opinion of the Court 31

the government on a piece of paper,” Rodriguez, 732 F.3d at 1305,

that the offense involved more than ten victims. The district court

did not clearly err.

B.

Horn next challenges the district court’s loss calculation at

sentencing. Horn’s arguments are unpersuasive.

For starters, we are unconvinced by Horn’s argument that

the district court erred at sentencing when it used “intended loss”

for sentencing purposes rather than “actual loss.” As a preliminary

matter, as of November 1, 2024, U.S.S.G. § 2B1.1(b)(1)(A) defines

“[l]oss” as “the greater of actual loss or intended loss.” See U.S.S.G.

§ 2B1.1(b)(1)(A) (2024); U.S.S.G. App’x C Supp. Amend. 827. At the

time of Horn’s sentencing on September 22, 2022, the definition of

“loss” was in the commentary to Section 2B1.1 and not in the text.

See U.S.S.G. § 2B1.1(b)(1)(A) cmt. n.3 (2021).

Horn’s reasoning goes this way. Under Stinson v. United

States, 508 U.S. 36 (1993), the Supreme Court held that the Sentenc-

ing Commission’s comments to the Sentencing Guidelines Manual

are “akin to an agency’s interpretation of its own legislative rules,”

and, consequently, the comments must be given “controlling

weight unless [they are] plainly erroneous” or “inconsistent with

the [Guidelines].” Id. at 45. However, in Kisor v. Wilkie, 139 S. Ct.

2400 (2019), the Supreme Court revisited this deference and deter-

mined that an agency receives deference “only if a regulation is

genuinely ambiguous” after courts have first “exhaust[ed] all the

‘traditional tools’ of construction.” Id. at 2414–15 (citation

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32 Opinion of the Court 22-13327

omitted). Kisor did not explicitly overrule Stinson, and Kisor did not

concern the Sentencing Guidelines.

Then, in United States v. Dupree, 57 F.4th 1269 (11th Cir.

2023) (en banc), this Court was tasked with “figur[ing] out how to

read Stinson and Kisor together,” and concluded that “the only way

to harmonize the two cases is to conclude that Kisor’s gloss on Auer

and Seminole Rock applies to Stinson.” Id. at 1275. Following Dupree,

we defer to the Sentencing Commission’s Commentary to the

Guidelines only if the Guideline is genuinely ambiguous. Id. Ac-

cordingly, Horn argues that we should never reach the Commen-

tary to Section 2B1.1. This is because U.S.S.G. § 2B1.1(b)(1) in-

structs that the offense level should be increased by the amount of

the “Loss (Apply the Greatest),” and the term “loss” is unambigu-

ous, meaning “actual loss.” As a result, Horn adds, even though

Application Note 3(A) to Section 2B1.1, which is part of the Com-

mentary, says that, subject to some exclusions not relevant here,

“loss is the greater of actual loss or intended loss,” we never have

to reach the comment.

The Government responds that Horn failed to raise his Ki-

sor/Dupree argument in district court, so we can review it only for

plain error. If the government is right, then this case is controlled

by United States v. Verdeza, 69 F.4th 780 (11th Cir. 2023). In Verdeza,

the defendant argued for the first time on appeal that § 2B1.1’s use

of the word “loss” is unambiguous, so the Court considered the

question under the plain-error review standard. Id. at 794. We

noted that “[a]n error cannot be plain unless the issue has been

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22-13327 Opinion of the Court 33

specifically and directly resolved by . . . on point precedent from

the Supreme Court or this Court.” Id. (quoting United States v.

Sanchez, 940 F.3d 526, 537 (11th Cir. 2019)). “But whatever else

Dupree did, it did not ‘specifically and directly resolve[]’ the ques-

tion of whether § 2B1.1’s definition of ‘loss’ is ambiguous.” Id. We

previously had held that “loss” includes “intended loss” under

§ 2B1.1(b)(1). Id. at 793–94; accord United States v. Orton, 73 F.3d

331, 333 (11th Cir. 1996). Accordingly, under the plain-error stand-

ard of review, the Verdeza Court was bound by Orton and held that

the district court did not err in using the greater of intended or ac-

tual loss. Verdeza, 69 F.4th at 794.

But Horn argues that he preserved the issue in the district

court, so we are obliged to review the question de novo. Horn

raised this issue twice in his formal objections to the PSI. First, he

objected that “[t]he actual number of 68 investors and actual sale of

1,985,164 shares more accurately reflects the ‘loss[,’] than the in-

tended loss of $3,750,000.” Second, he objected to the PSI’s state-

ment that “intended loss amount is $3,750,000 18 level increase” and

replied, “Actual loss amount attributable to Horn is $182,027

(amount he received) 10 level increase.” Horn’s counsel elaborated

on these written objections at sentencing.

At no point before the district court did Horn bring up Kisor,

Dupree, or whether the Guidelines were ambiguous, and he made

almost no legal argument as to why the court should use actual

rather than intended loss. Rather, Horn argued about the nature

and extent of the loss that was actually foreseeable to him.

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34 Opinion of the Court 22-13327

Nevertheless, Horn was adamant throughout that he thought

“[t]he actual number . . . more accurately reflects the ‘loss[,’] than

the intended loss.”

Precedent is clear that while an issue can be waived, alterna-

tive arguments on an issue cannot. See, e.g., Yee v. City of Escondido,

503 U.S. 519, 534 (1992) (“Once a federal claim is properly pre-

sented, a party can make any argument in support of that claim;

parties are not limited to the precise arguments they made be-

low.”). By way of example, in In re Home Depot Inc., 931 F.3d 1065

(11th Cir. 2019), Home Depot argued in district court that the court

should not apply a multiplier to class counsel’s lodestar for one rea-

son, then argued a completely different reason on appeal. Id. at

1086. Although we observed that the “new argument is based on

a different line of precedents . . . and is inconsistent with the old

argument,” we held that Home Depot was presenting only “a new

argument, not a new issue,” since “Home Depot asked the District

Court not to apply a multiplier.” Id. We acknowledged that “[i]t’s

a close call,” but because Home Depot on appeal was making “the

same request, albeit for different (and contradictory) reasons,”

“[t]he issue was not waived.” Id.

Horn clearly and repeatedly asked the district court to use

actual loss instead of intended loss. Now, Horn raises the same

issue, although for reasons relying on a different line of precedent.

Like the defendant in Home Depot, Horn raises “a new argument,

not a new issue,” and did not waive the issue. Id. Thus, the basic

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22-13327 Opinion of the Court 35

question of whether Section 2B1.1 is ambiguous is squarely before

this Court.

Moreover, even if Horn had raised this argument for the first

time on appeal, “[t]he question of whether to hear a claim not

raised in the district court is ultimately one that falls within the

sound discretion of the Court.” Blue Martini Kendall, LLC v. Miami

Dade Cnty., 816 F.3d 1343, 1349 (11th Cir. 2016); see also Singleton v.

Wulff, 428 U.S. 106, 121 (1976). On occasion, we have exercised

our discretion when an unpreserved issue “presents significant

questions of general impact or of great public concern.” Dean Wit-

ter Reynolds, Inc. v. Fernandez, 741 F.2d 355, 360–61 (11th Cir. 1984).

The proper reading of the term “loss” potentially affects the sen-

tences of numerous defendants with cases before this Court, in ad-

dition to Horn’s sentence; it is a significant question having a gen-

eral impact, so we may properly exercise our discretion.

Turning to the merits, then, and as a preliminary matter, we

observe that other circuits have considered whether the term

“loss” is ambiguous and whether to defer to the Commentary in

the Guidelines to discern its meaning. See, e.g., United States v. You,

74 F.4th 378, 397–98 (6th Cir. 2023) (holding that the term “loss” is

“genuinely ambiguous” and deferring to the Sentencing Commis-

sion’s interpretation in the Commentary); United States v. Boler, 115

F.4th 316, 328–29 (4th Cir. 2024) (same). But see United States v.

Banks, 55 F.4th 246, 258 (3d Cir. 2022) (holding that the ordinary

meaning of “loss” controls and not deferring to the Commentary).

We need not, however, determine whether we are bound by the

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36 Opinion of the Court 22-13327

Commentary, because we are satisfied that the text of the Guide-

lines is clear.

We begin with the text of the Guidelines at the time of

Horn’s sentencing. See Ross v. Blake, 578 U.S. 632, 638 (2016); An-

tonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of

Legal Texts 69 (2012) (“Interpreters should not be required to divine

arcane nuances or to discover hidden meanings.”). Sec-

tion 2B1.1(b)(1) says: “If the loss exceeded $6,500, increase the of-

fense level as follows.” U.S.S.G. § 2B1.1(b)(1). The Guidelines then

include a chart, one of the columns of which is headed by the

words, “Loss (Apply the Greatest).” Id. Section 2B1.1 does not de-

fine the word “loss,” so we presume that the term carries its ordi-

nary meaning. Schwarz v. City of Treasure Island, 544 F.3d 1201, 1214

(11th Cir. 2008). Merriam-Webster Dictionary defines “loss,”

among other things, as “a person or thing or an amount that is

lost.” Loss, Merriam-Webster Dictionary, https://www.merriam-

webster.com/dictionary/loss (last visited Jan. 31, 2025). Black’s

Law Dictionary, similarly, defines “loss” as:

An undesirable outcome of a risk; the disappearance

or diminution of value, usu. in an unexpected or rel-

atively unpredictable way. When the loss is a decrease

in value, the usual method of calculating the loss is to

ascertain the amount by which a thing’s original cost

exceeds its later selling price.

Loss, Black’s Law Dictionary (12th ed. 2024).

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22-13327 Opinion of the Court 37

Although neither definition references intended loss, Kisor

and Dupree instruct that we should not determine that the Guide-

lines are ambiguous until we have “exhaust[ed] all the ‘traditional

tools’ of construction.” Dupree, 57 F.4th at 1275 (quoting Kisor, 139

S. Ct. at 2415). And although we start with the ordinary meaning

of a word, it is also a “fundamental canon of statutory construction

that the words of a statute must be read in their context and with a

view to their place in the overall statutory scheme.” Nat’l Ass’n of

Home Builders v. Defs. of Wildlife, 551 U.S. 644, 666 (2007) (quoting

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132–33

(2000)); see United States v. Shannon, 631 F.3d 1187, 1189 (11th Cir.

2011) (noting that “our interpretation of the Sentencing Guidelines

is governed by traditional rules of statutory construction”). The

text of the Guidelines, then, must be construed as a whole, since

“[c]ontext is a primary determinant of meaning.” Scalia & Garner,

Reading Law: The Interpretation of Legal Texts, supra, at 167.

Here, U.S.S.G. § 1B1.3 -- which is an introductory guideline

providing definitions for relevant conduct throughout the Guide-

lines -- provides that courts “shall,” for the purposes of calculations

in Chapter Two, unless “otherwise specified,” calculate harm as in-

cluding “all harm that resulted from the acts and omissions speci-

fied in subsections (a)(1) and (a)(2) above, and all harm that was the

object of such acts and omissions.” U.S.S.G. § 1B1.3(a)(3) (emphasis

added). Of course, the use of the term “shall” means “must.”

There is nothing precatory about this verb form. See Schwier v. Cox,

340 F.3d 1284, 1292 (11th Cir. 2003). Moreover, this definition uses

the conjunctive “and,” which means that courts must consider not

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38 Opinion of the Court 22-13327

only “all harm that resulted” from the defendant’s conduct, but

also “all harm that was the object of” his conduct. Id. (emphasis

added); see United States v. Palomar-Santiago, 141 S. Ct. 1615, 1620–

21 (2021).

Merriam-Webster, in turn, defines “object” as “the goal or

end of an effort or activity: purpose, objective.” Object, Merriam-

Webster Dictionary, https://www.merriam-webster.com/dic-

tionary/object (last visited Jan. 31, 2025). It also lists “intention”

and “intent” as synonyms for “object.” Id. Similarly, Oxford Eng-

lish Dictionary defines “object” as “goal, purpose, or aim.” Object,

Oxford English Dictionary, https://www.oed.com/diction-

ary/object_n (last visited Jan. 31, 2025). Applying these dictionary

definitions, Section 1B1.3(a)(3) instructs us that courts must con-

sider as relevant conduct not only the harm caused by the defend-

ant that actually occurred, but also the harm that was the goal or

object of the defendant’s conduct -- that is, the harm the defendant

intended to cause. Cf. Voisine v. United States, 579 U.S. 686, 691–92

(2016) (noting that committing an assault intentionally requires

that a defendant “have that result as a ‘conscious object’” (citation

omitted)).

In the context of financial crimes, like fraud and other crimes

covered by U.S.S.G § 2B1.1, the relevant “harm” contemplated by

Section 1B1.3(a)(3) is “loss.” Because courts must consider both ac-

tual harm and intended harm to calculate harm under Sec-

tion 1B1.3(a)(3), this means that for purposes of calculating “loss”

under Section 2B1.1, courts must consider both “actual loss” and

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22-13327 Opinion of the Court 39

“intended loss.” And Section 2B1.1(b)(1) says to use “Loss (Apply

the Greatest).” In other words, we see no need to turn to the Ap-

plication Notes in the Commentary to the Guidelines to know that

a court should apply the greater of actual loss or intended loss. The

text of the Guidelines and the traditional tools of statutory inter-

pretation unambiguously tell us so. Therefore, the district court

correctly used intended loss for sentencing purposes rather than

limiting its analysis to actual loss.

What’s more, Amendment 827 -- the amendment to

U.S.S.G. § 2B1.1(b)(1) that moves from the Commentary to the

text of the Guidelines a definition of “loss” as “the greater of actual

loss or intended loss” -- applies. Amendment 827 was effective as

of November 1, 2024, which is after Horn’s sentencing date of Sep-

tember 22, 2022. When an amendment takes effect during the pen-

dency of a direct appeal, it applies if it is a “clarifying” amendment

rather than a “substantive” amendment. United States v. Presendieu,

880 F.3d 1228, 1245 (11th Cir. 2018). To determine whether an

amendment to the Guidelines is substantive or clarifying, we con-

sider the following factors:

First, we look to whether the amendment alters the

text of the Guideline or alters only the commentary.

An amendment that alters the text of the Guideline

itself suggests a substantive change, while an amend-

ment that alters only the commentary suggests a clar-

ification. . . . Second, this Court looks to whether the

Commission has described an amendment as clarify-

ing or whether its statements in the amendment com-

mentary reflect a substantive change in the

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40 Opinion of the Court 22-13327

punishment for an offense. Third, we examine

whether the Commission has included the amend-

ment in the list of retroactive amendments in

[U.S.S.G. § 1B1.10(d)]. Finally, we have noted that an

amendment overturning circuit precedent suggests a

substantive change, but that such an amendment

could be considered clarifying if it “clarifies a mean-

ing that was inherent in the original Guideline.”

United States v. Jerchower, 631 F.3d 1181, 1185 (11th Cir. 2011) (cita-

tions omitted).

Considering the amendment in light of our case law, we

conclude that it is a clarifying amendment. First, the amendment

simply moves longstanding commentary to the text. Specifically,

Amendment 827 moves commentary defining “loss” into the text

of the Guideline under a “Notes” section of the text, and we have

previously found that moving explanatory commentary to the text

of the Guidelines, when it explains the meaning of a pre-existing

provision of the Guidelines, constitutes a clarifying change. See

Presendieu, 880 F.3d at 1245.

Furthermore, Amendment 827’s characterization of the re-

located text as “Notes” suggests that it is meant to explain the text

of the Guideline, not to alter it. See Note, Merriam-Webster Dic-

tionary, https://www.merriam-webster.com/dictionary/note

(last visited Jan. 31, 2025) (defining “note” as “a brief comment or

explanation”). Such an explanatory supplement to the text of the

Guidelines further indicates that Amendment 827 is clarifying. See

Jerchower, 631 F.3d at 1187. Indeed, Amendment 827 bears no

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22-13327 Opinion of the Court 41

resemblance to the kinds of amendments we have previously

deemed substantive, such as an amendment that created an en-

tirely new provision in the text of the Guidelines, see United States

v. Handlon, 97 F.4th 829, 833 (11th Cir. 2024) (per curiam), or one

that replaced a one-dimensional enhancement with a graduated

framework, see United States v. Morales-Alonso, 878 F.3d 1311, 1313

n.2 (11th Cir. 2018).

In the second place, the Commission’s statements and de-

scriptions of the amendment also weigh in favor of characterizing

Amendment 827 as clarifying rather than substantive. In its “Rea-

son for Amendment,” the Commission described how it adopted

Amendment 827 to maintain the status quo. Specifically, the Com-

mission noted that “loss calculations for individuals in the Third

Circuit” were being “computed differently than” those in other Cir-

cuits, and it communicated that Amendment 827 was aimed at “en-

sur[ing] consistent loss calculation across circuits.” U.S.S.G. App’x

C Supp. Amend. 827. This approach, the Commission explained,

would “ensure consistent guideline application . . . without taking

a position on how loss may be calculated in the future” should the

Commission “undertake a comprehensive review of § 2B1.1 in a

future amendment cycle.” Id. In other words, the Commission’s

statements accompanying Amendment 827 reserve a potential sub-

stantive change in the future and demonstrate that the amendment

maintains the same longstanding approach for calculating loss used

in this Circuit’s case precedent. See, e.g., United States v. Toussaint,

84 F.3d 1406, 1407–08 (11th Cir. 1996); United States v. Grant, 431

F.3d 760, 762, 764–65 (11th Cir. 2005); United States v. Moran, 778

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42 Opinion of the Court 22-13327

F.3d 942, 973–74 (11th Cir. 2015); United States v. Moss, 34 F.4th

1176, 1190, 1192 (11th Cir. 2022).

Third, although Amendment 827 is not included in a list of

retroactive amendments in § 1B1.10(d), that fact does not weigh

heavily here, since § 1B1.10 pertains only to amendments that re-

sult in reduced terms of imprisonment, which is not applicable.

Finally, Amendment 827 does not overturn our Circuit’s

precedent. See Jerchower, 631 F.3d at 1187. Rather, it is consistent

with the approach we have taken for the last thirty years, under

which courts have sentenced defendants while considering both ac-

tual loss and intended loss in their Guidelines calculations. See, e.g.,

Toussaint, 84 F.3d at 1407–08; Grant, 431 F.3d at 762; Moran, 778

F.3d at 973–74; Moss, 34 F.4th at 1190.

Thus, the amendment -- which maintains the rule that loss

is the greater of actual or intended loss and which is consistent with

our longstanding precedent -- applies to Horn. And in our view,

this conclusion flows logically from and is altogether consistent

with our conclusion that the term “loss” is unambiguous when

reading the Guidelines as a whole, see supra. Put differently, the

Guidelines already unambiguously say that loss is the greater of ac-

tual or intended loss, and Amendment 827, a clarifying amendment

that applies to Horn, makes that conclusion even clearer.

C.

There is no basis in Horn’s remaining claims that the sen-

tencing court otherwise miscalculated loss. Horn argues that the

Government failed to prove by a preponderance of the evidence

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22-13327 Opinion of the Court 43

factual “but for” causation that the victims actually relied on the

fraudulent materials when purchasing Sunset shares. Many of

Horn’s arguments regarding the intended loss calculation rely on

this Court’s decision in United States v. Stein, 846 F.3d 1135 (11th

Cir. 2017), which is distinguishable from this case.

Under Stein, “[t]he government bears the burden of proving

by a preponderance of the evidence actual loss attributable to the

defendant’s conduct.” Id. at 1152. However, the sentencing court

is “not generally required to make detailed findings of individual-

ized losses to each victim.” Id. (quoting Orton, 73 F.3d at 335). “In-

stead, the court may employ a variety of methods to derive a ‘rea-

sonable estimate of the loss’ to the victims based on the infor-

mation available to the district court” so long as that estimate is

based on “reliable and specific evidence” and not the district court’s

“speculat[ion] about the existence of facts.” Id. (first quoting United

States v. Snyder, 291 F.3d 1291, 1295 (11th Cir. 2002); and then quot-

ing United States v. Ford, 784 F.3d 1386, 1396 (11th Cir. 2015)). Be-

cause the “sentencing court is in the best position to assess the evi-

dence and estimate the loss based upon that evidence . . . the

court’s loss determination is entitled to appropriate deference” and

will generally be upheld so long as it is “reasonable.” United States

v. Gupta, 463 F.3d 1182, 1200 (11th Cir. 2006) (quoting United States

v. Renick, 273 F.3d 1009, 1025 (11th Cir. 2001)).

The Government must also show causation: that is, but for

the investors’ reliance on the fraudulent information, they would

not have purchased the stock. Stein, 846 F.3d at 1153. The

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44 Opinion of the Court 22-13327

government may make this showing “either through direct evi-

dence or specific circumstantial evidence.” Id. In Stein, the issue

was that the “government failed to satisfy either of these options.”

Id. at 1154. There, the defendant was convicted of mail, wire, and

securities fraud based on evidence that he fabricated press releases

and purchase orders to inflate the stock price of a publicly traded

company. Id. at 1139. At sentencing, the district court “found that

more than 2,000 investors relied on Mr. Stein’s fraudulent infor-

mation, but the only evidence supporting this finding was the tes-

timony of two individuals that they relied on Mr. Stein’s false press

releases and generalized evidence that some investors may rely on

some public information.” Id. at 1140. This Court reversed, find-

ing that the government made no showing of direct, individualized

evidence for each investor, and that the circumstantial evidence

was “far too limited” to “support the inference that all 2,415 inves-

tors relied on Mr. Stein’s fraudulent information when deciding to

purchase Signalife stock.” Id. at 1154.

Horn argues that his case is similar to Stein in that in calcu-

lating both intended loss for sentencing and actual loss for restitu-

tion, the district court improperly extrapolated from the four vic-

tims who testified at trial and attributed their reliance to more than

a thousand victims who bought Sunset stock.

As a preliminary matter, Horn failed to adequately raise this

argument before the district court. The Government filed a de-

tailed restitution memo with the court explaining its actual loss cal-

culations, laying out the Stein standard, and explaining how the

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22-13327 Opinion of the Court 45

Government satisfied it. Horn never filed a response, and Horn’s

counsel only loosely touched on this issue at the restitution hearing

when he noted that there could have been other investors who

made money, and that the Government did not contact all of those

people to determine whether each one made or lost money. But

these statements did not clearly present the issue of factual causa-

tion to the district court. See Gennusa v. Canova, 748 F.3d 1103, 1116

(11th Cir. 2014) (holding that a “single, passing reference” to an is-

sue “unaccompanied by any discussion or elaboration” does not

preserve an argument). Therefore, we review it only for plain er-

ror.

Again, however, there was no error at all. Stein is different

from this case because the Government made an adequate show-

ing of specific circumstantial evidence here. Unlike the facts in

Stein, which involved a publicly traded company with real publicly

available information that had some fraudulent information sprin-

kled in, see Stein, 846 F.3d at 1140–41, 1144–45, Sunset’s victims all

purchased their shares through private placement. The private

placement sales were made by cold-calling investors and giving

them the fraudulent sales pitch, followed up by emails containing

the fraudulent PPM and sales presentation. The only information

available to Sunset’s investors was the fraudulent information pro-

vided directly to them by Horn and his sales team. This was the

argument made by the Government before the district court, and

the district court adopted the Government’s reasoning at the resti-

tution hearing.

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46 Opinion of the Court 22-13327

Horn does not seriously contest this circumstantial evi-

dence. He argues instead that at least some of the victims were

“sophisticated investors” who were capable of purchasing stock

based on their own knowledge and experience without relying on

the fraudulent sales materials, because they “were well aware of

how to check out Sunset’s value of shares in the stock market.” But

the argument is unpersuasive because Horn’s hypothetical investor

had no way of checking Sunset’s value of shares in the stock mar-

ket, since there was no publicly available information beyond the

fraudulent information coming from Sunset itself. Horn singles

out Dr. Pankey, a wealthy oral surgeon who testified as a victim at

trial, as an example of a “sophisticated investor.” However, Dr.

Pankey testified that he tried to look Sunset up, but that his search

“didn’t turn up too much” except that “it was a company,” so he

relied on Plummer’s 5 representations over a series of phone calls.

In short, the district court did not err, much less plainly err,

in finding that the Government proved, by a preponderance of the

evidence, “but for” causation through specific circumstantial evi-

dence that the Sunset investors who purchased shares through the

private placement relied on the fraudulent materials and represen-

tations.

Horn also argues that unforeseeable intervening events de-

stroyed the value of Sunset’s shares. Horn failed to raise this

5 In his testimony, Dr. Pankey refers to a series of phone calls with “Alexander

Goldstein.” The parties stipulated at trial that “Alexander Goldstein” was an

alias sometimes used by Plummer.

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22-13327 Opinion of the Court 47

argument before the district court, so it too is reviewed only for

plain error. In any event, the argument is meritless.

Horn again relies on Stein. In Stein, we also held that the

district court erred by “failing to take into account intervening

events that may have contributed to investors’ losses.” Id. at 1154,

1156. When calculating loss and restitution, the defendant in Stein

urged the district court “to consider that Signalife stock value had

declined in part because of the short selling of over 22 million

shares of Signalife stock and the across-the-board stock market de-

cline of 2008.” Id. at 1155. The district court did not consider these

factors, so we reversed. Id. at 1156.

Along the same lines, Horn argues that Sunset stock was

similarly affected by four intervening events: (1) the fact that “the

vast majority of Sunset shareholders would not go through with

the agreed-upon process to get their stocks unrestricted to sell

them”; (2) Sunset’s acquisition by Aphex in 2020; (3) Aphex filed

Completed Satisfactions of two judicial liens that remained on the

Sunset balance sheet; and (4) Aphex filed for bankruptcy in May

2022. Horn, however, never explains how these “intervening”

events affected the value of Sunset’s stock, instead only vaguely

suggesting that the district court somehow should have accounted

for them.

But how Horn expected the district court to have accounted

for these events is not obvious. That Sunset’s shareholders could

not sell their stock without undergoing an arduous unrestricting

process was not an unforeseeable intervening factor, but rather a

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48 Opinion of the Court 22-13327

known condition of every sale of stock in the private placement.

Nor was the stock necessarily wholly devalued by Sunset’s acquisi-

tion -- for example, Arnold Horn made his profit in 2021, a year

after the acquisition -- although the acquisition did trigger Sunset’s

retroactive acknowledgment that its assets were, in fact, nonexist-

ent the entire time. Horn’s remaining intervening events are en-

tirely speculative. Thus, by way of example, Horn poses only hy-

pothetical questions regarding the effects of the satisfaction of judi-

cial liens. If there were any error in the district court’s failure to

inquire sua sponte about this fact -- which does not appear anywhere

in this record -- that error was not plain.

More importantly, the impact of intervening events on a

stock’s “true” value does not need to be accounted for when the

stock has no true value at all. Unlike in Stein, where the company

still had some value as a legitimate company after accounting for

the inflation in share price from fraud, and the unrelated decrease

in that true value from the 2008 market crash that had to be sepa-

rated out, Sunset was not a company with any true value. The

evidence presented at trial established that Sunset did not even

have enough cash flow to pay its officers for years on end, and after

being bought out, Sunset retroactively admitted that the value of

its assets was “zero.”

In similar situations, we’ve held that the “true” value of a

stock is appropriately considered to be zero when calculating loss.

In United States v. Hedges, 175 F.3d 1312 (11th Cir. 1999), the con-

spirators “disseminated false information to the public” stating that

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22-13327 Opinion of the Court 49

the company “operated a large number of cosmetics and women’s

apparel stores and that these operations were highly profitable,”

when in reality, the company “operated only a few stores, its busi-

ness ventures generated almost no revenue, and the company was

operating at an enormous loss.” Id. at 1313. The Court upheld a

sentence holding a conspirator liable for a loss calculation that

found that the stock was not only “overvalued” but “completely

worthless.” Id. at 1316 & n.11.

The facts of this case are far more analogous to those found

in Hedges than those in Stein, so it is appropriate to calculate loss as

the entire amount defrauded from investors, because they received

a share in a company that was worthless. Again, the district court

did not err, much less plainly err, when it did not inquire sua sponte

into intervening events that may have affected Sunset’s true value.

Horn further claims that the district court failed to make an

individualized finding as to what amount of loss was foreseeable to

him, since he left Sunset in November 2015 and should not have

had any subsequent loss attributed to him. A court may hold a de-

fendant accountable only for those acts jointly undertaken in the

conspiracy that were reasonably foreseeable to him. United States

v. Mateos, 623 F.3d 1350, 1370 (11th Cir. 2010). But, as we’ve noted,

there is no evidence in the record that Horn affirmatively withdrew

from the conspiracy as a matter of law as opposed to merely ceas-

ing to participate in it. Thus, the only question is whether the fur-

ther acts of the conspiracy were reasonably foreseeable to Horn af-

ter he ceased participation.

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50 Opinion of the Court 22-13327

Here, our precedent is clear: where a defendant “was ac-

tively involved in contacting and recruiting clients into this fraud-

ulent scheme” and was “actively involved in recruiting investors to

further the . . . scheme,” he is accountable for the entire loss, even

if he “did not necessarily ‘design’” the scheme himself. United States

v. McCrimmon, 362 F.3d 725, 731–33 (11th Cir. 2004) (per curiam).

The district court did not err in attributing the entire loss to Horn.

Horn also briefly raises several additional arguments that

boil down to his disagreement with the jury verdict and his claim

that “Sunset stock had actual value.” He argues that the “loss

amount” should be limited to the four victims who testified at trial

because no “outright fraud” was perpetrated by Horn, in so far as

investors who bought shares never complained of fraud until the

FBI contacted them. But this is contrary to the jury verdict, which

found that Horn committed multiple counts of fraud.

Next, Horn says that the actual value of Sunset shares should

be deducted from the loss amount because “[i]t’s not like Sunset

was selling shares in a unicorn farm. Sunset stock had actual value

. . . .” But Sunset was a “unicorn farm,” so to speak: every asset

about which it boasted -- real estate, various banks and businesses,

and rare collections of artifacts and jewels -- were completely ficti-

tious, and we’ve considered stocks like this to be “worthless” for

the purposes of calculating loss. Hedges, 175 F.3d at 1316.

Horn also argues that almost none of the investors ever tried

to go through the process to unrestrict or sell their Sunset stock.

But Horn fails to make an argument: he asks only a rhetorical

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22-13327 Opinion of the Court 51

question (“Should these stocks be considered a loss attributable to

Horn?”). “We have long held that an appellant abandons a claim

when he either makes only passing references to it or raises it in a

perfunctory manner without supporting arguments and author-

ity.” Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th

Cir. 2014). Finally, Horn argues that loss was not foreseeable to

him because he was “duped” and “deceived,” but this too is con-

trary to the jury’s verdict.

D.

Horn also disputes the district court’s calculation of his res-

titution, though his arguments are mostly redundant with his ob-

jections to the district court’s calculation of loss. As for his argu-

ments that the Government failed to prove “but for” causation,

that the Sunset stock actually had value, and the value should be

subtracted from the restitution calculation, we’ve already rejected

these claims. The district court did not plainly err in finding that

the government proved, by a preponderance of the evidence, “but

for causation” and that Sunset’s stocks are worthless.

Finally, Horn’s claim that the district court erred because it

did not credit any profits toward the total loss similarly fails. For

example, Horn’s father made a profit of $30,000 on his shares. The

Government excluded him from the total loss, just as it deducted

any amounts recouped by investors through the sales of their

shares. Horn, however, wants us to go further and subtract his fa-

ther’s $30,000 profit from the total loss amount calculation. Horn

cites no legal authority to support this calculation method and we

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52 Opinion of the Court 22-13327

are aware of none. Horn generally cites to Stein, but Stein mentions

the “buyer’s only” method only twice in the factual background

section and does not reach the calculation dispute at all because in

Stein, the court disposed of the case on causation grounds. Stein,

846 F.3d at 1144–45, 1154.

***

For all of these reasons, we affirm the determinations made

by the district court and its judgment.

AFFIRMED.

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22-13327 JORDAN, J., Concurring 1

JORDAN, Circuit Judge, Concurring in Part and Concurring in the

Judgment:

I concur in the court’s opinion as to all but Part III.B, which

addresses Mr. Horn’s challenge to the district court’s use of in-

tended loss under U.S.S.G. § 2B1.1(b)(1) (2021). As to Part III.B, I

concur in the judgment for the reasons set out below.

Our colleague, Judge Newsom, has written that “issuing al-

ternative holdings is often just a bad idea,” United States v. Files, 63

F.4th 920, 933 (11th Cir. 2023) (Newsom and Tjoflat, J.J., concur-

ring), and I generally agree with him. In Part III.B, I think the court

provides unnecessary alternative holdings on procedural and sub-

stantive issues.

On the procedural side, the court holds in the alternative

that even if Mr. Horn’s argument on intended loss—based on cases

like United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc)—

was not raised in the district court, we can exercise our discretion

to address it as a significant question of general impact or great

public concern. From my perspective, this alternative holding is

unwarranted. As the court explains, and holds, the Dupree-based

argument is properly before us because our precedent teaches that

parties can forfeit (or waive) issues but not arguments on those is-

sues. Mr. Horn challenged the use of intended loss in the district

court, and he is allowed to challenge intended loss again on appeal

even if his legal argument is now different. That is all the court

needs to say on the point.

USCA11 Case: 22-13327 Document: 71-1 Date Filed: 02/24/2025 Page: 54 of 54

2 JORDAN, J., Concurring 22-13327

With respect to the merits, the court rejects Mr. Horn’s chal-

lenge to the use of intended loss for two independent reasons.

First, the court holds that the term “loss” in the 2021 version of

§ 2B1.1(b)(1) is not ambiguous and includes intended loss by virtue

of § 1B1.3(a)(3), which states (emphasis mine) that courts “shall,”

unless “otherwise specified,” calculate harm as including “all harm

that resulted from the acts and omissions specified in subsections

(a)(1) and (a)(2) above, and all harm that was the object of such acts

and omissions.” Second, the court holds that Amendment 827—

which in 2024 moved intended loss from the commentary to the

text of § 2B1.1(b)(1)—constitutes a clarifying amendment that ap-

plies to Mr. Horn’s case.

I agree with the latter holding and would not opine on

whether the 2021 version of § 2B1.1(b)(1) is ambiguous as to the

use of intended loss. Our sister circuits are divided on that ques-

tion, compare United States v. You, 74 F.4th 378, 397–98 (6th Cir.

2023), with United States v. Banks, 55 F.4th 246, 258 (3d Cir. 2022),

and the Fourth Circuit has concluded that § 2B1.1(b)(1) is ambigu-

ous even after consulting § 1B1.3(a)(3). See United States v. Boler, 115

F.4th 316, 325–26 (4th Cir. 2024) (“We agree with the Government’s

view that the context of [§] 1B1.3 applies to our interpretation of

‘loss’ as written in [§] 2B1.1. . . . Indeed, [§] 1B1.3 lends more ambi-

guity to the meaning of ‘loss’ because it can encompass more than

the actual harm caused by a defendant.”). This is a “good oppor-

tunity for us to practice judicial minimalism, and decide no more

than what is necessary to resolve [this] . . . appeal.” Harbourside

Place, LLC v. Town of Jupiter, 958 F.3d 1308, 1322 (11th Cir. 2020).