United States v. Adolphus Cato, 16-2992

Cato pled guilty to conspiracy to commit bank fraud, five counts of bank fraud, and one count of aggravated identity theft based on a scheme using fake IDs and counterfeit checks.
Plea agreement reserved a dispute over the amount of intended loss; during the plea colloquy the parties said they would advocate intended loss at sentencing and Cato acknowledged a limited appellate right.
At sentencing the question was whether $8,344.50 in duplicate, uncashed checks from a co-conspirator’s VersaCheck ledger should be included in intended loss; the government also relied on $12,780.16 of cashed checks (not contested on appeal).
If intended loss exceeded $250,000, Guidelines offense level increased by 12 levels; below $250,000, the increase was 10 levels—this distinction affected Cato’s Guidelines range by 10 years vs. less.
The District Court counted the ledger duplicates, producing an intended loss just over $250,000, resulting in a total offense level of 22 and an effective Guidelines range of 75–87 months; the court sentenced Cato to 56 months plus a mandatory consecutive 24-month term (total 80 months).
Cato appealed, arguing the District Court erroneously included the $8,344.50 duplicate checks; the government contended the appeal was barred by an appellate-waiver in the plea agreement and, on the merits, that inclusion was proper.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appellate waiver bars review	Cato argued appeal is permissible (raised the loss calculation)	Government argued appellant waived appeal rights in plea agreement	Court did not resolve waiver; decided merits and affirmed sentence
Whether duplicate, uncashed checks count toward "intended loss" under the Guidelines	Cato: duplicates were not intended to be cashed and thus should not be counted (would keep loss under $250k)	Gov: scheme’s modus operandi was creating multiple identical checks for different runners, so duplicates reflect intended loss	Court held District Court did not clearly err in including the duplicate ledger checks; intended loss count upheld

United States v. Geevers, 226 F.3d 186 (3d Cir. 2000) (district court may count intended loss greater than actual loss when plausible that defendant intended full amount)
United States v. Titchell, 261 F.3d 348 (3d Cir. 2001) (district court must perform a "deeper analysis" before equating potential and intended loss)
United States v. Yeaman, 194 F.3d 442 (3d Cir. 1999) (intended loss is tied to defendant’s subjective expectation, not merely potential loss)
United States v. Jackson, 523 F.3d 234 (3d Cir. 2008) (appellate-waiver validity reviewed de novo)