In US v. Barry, No. 23-12101 (11th Cir. Jan. 7, 2026) (Kidd, CJ Pryor, Grant), the Court vacated and remanded Mr. Barry’s sentence, including the restitution amount, after he was convicted by a jury for his involvement in a credit card fraud conspiracy.

In reversing Mr. Barry’s sentence, the Court held that:

  1. The district court erred when it calculated the loss amount based on the total amount that Mr. Barry  and his codefendants charged on shared credit cards, which multiple conspirators used to purchase cigarettes, without first determining the amount for which Barry himself should be responsible, as required by U.S.S.G. § 1B1.3. The Court observed that Mr. Barry’s conviction conspiracy was insufficient, alone, to establish that the total loss caused by all conspirators was attributable to Mr. Barry, “because the scope of the defendant’s jointly undertaken activity is not necessarily the same as the scope of the entire conspiracy[.]”  Instead, the Court reiterated that the sentencing court must first make individualized findings concerning the scope of the defendant’s criminal activity. While sometimes the Court can affirm the district court’s loss amount findings, despite the absence of individualized findings, the record was insufficient here to conclude that the total loss amount involved jointly undertaken criminal activity that was reasonably foreseeable to Mr. Barry.

On remand, “the district court will have the opportunity to make individualized findings regarding the scope of the criminal activity that Barry undertook, and only after doing so, what conspiratorial conduct was reasonably foreseeable to Barry.”

  1. Because “the measure of restitution is each victim’s loss proximately caused by the defendant,” but—as discussed above—the district court never made any individualized findings as to the loss caused by Mr. Barry—the Court also reversed the restitution amount, which was the total loss amount caused by the entire conspiracy.

Grant dissented, arguing that the district court made sufficiently individualized findings, and the record provided enough additional circumstantial evidence to support the district court’s conclusions as to loss amount, such that the Court should have affirmed the sentence on clear error review.

Full opinion here: https://media.ca11.uscourts.gov/opinions/pub/files/202312101.pdf