United States v. Alfred Robert Massam, 751 F.3d 1229

Dr. Alfred Massam, an orthopedic surgeon, served as ERISA plan administrator/trustee for two pension plans he established for his practice in 1980.
Following a 2005 divorce, state court distribution orders required Massam to pay his ex-wife $452,242 from his share of the plans; Massam posted a $656,341 supersedeas bond to appeal the order.
In August 2005 Massam attempted to wire the entire plans’ balances (about $1,185,863) to an Anglo Irish Bank account in Austria; the transfer was returned for inadequate documentation.
Between 2006 and 2010 Massam diverted pension funds for personal use, ultimately stealing $502,977.69; he pleaded guilty to one count of embezzling employee benefit funds (18 U.S.C. § 664) based on a $275,000 transfer in 2006.
The PSR calculated intended loss as $1,185,863.32, credited amounts left in the plans and a $350,000 Ponzi loss, and concluded a $772,768.12 loss (yielding a 14‑level enhancement); the district court refused to credit the $452,242 paid to the ex‑wife from the supersedeas bond and sentenced Massam to 24 months.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Massam is entitled to a guidelines loss credit for the $452,242 paid from his supersedeas bond to his ex‑wife	Massam: bond payment satisfied a beneficiary’s loss; therefore credit should reduce intended loss	Government: credit for returned money applies only to actual losses and returns to victims, not to intended‑loss credit via a bond payout	Court: Denied. Credit unavailable because loss was calculated as intended loss and the §2B1.1 credit requires actual loss/victim and return to victim by defendant or joint actor

Massam v. Massam, 993 So. 2d 1022 (Fla. 2d DCA 2008) (state appellate decision affirming divorce distribution orders)
United States v. Barner, 572 F.3d 1239 (11th Cir. 2009) (error in Guidelines loss calculation requires vacatur unless harmless)
United States v. Patterson, 595 F.3d 1324 (11th Cir. 2010) (when intended loss exceeds actual loss, intended loss governs Guideline calculation)
United States v. Kennedy, 554 F.3d 415 (3d Cir. 2009) (actual pecuniary harm is a prerequisite to being a victim under §2B1.1)
United States v. Conner, 537 F.3d 480 (5th Cir. 2008) (temporarily unreimbursed account holders who were fully reimbursed did not suffer actual loss)
United States v. Icaza, 492 F.3d 967 (8th Cir. 2007) (only the entity that sustained actual pecuniary loss counts as victim for Guidelines purposes)
United States v. Yagar, 404 F.3d 967 (6th Cir. 2005) (reimbursed account holders are not victims because they suffered no actual pecuniary harm)