A Wire-Fraud Sentence After Substantial Assistance

On November 2, 2026, the Eleventh Circuit affirmed a 60-month prison sentence for conspiracy to commit wire fraud. In United States v. Lubin, No. 26-10415, a per curiam opinion that is not for publication, the court held that the district court did not plainly err when it granted a substantial-assistance departure and imposed 60 months. Read the decision (PDF). The court also held that the sentence was substantively reasonable.

What happened

Joel Lubin pleaded guilty in the Southern District of Florida to one count of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1343 and § 1349. The district court case is No. 1:25-cr-20391-BB-1. Chief Judge William Pryor and Judges Grant and Lagoa decided the appeal without oral argument.

A probation officer prepared a presentence investigation report. That report is the written account the court uses to calculate the advisory Sentencing Guidelines range. The report started at a base offense level of 7 under U.S.S.G. § 2B1.1. It added 18 levels for a loss of $7,249,457.94. It added 4 levels because Lubin was an organizer or leader of an offense that involved five or more participants. It subtracted 3 levels for acceptance of responsibility. The total offense level was 26. His criminal history score was 0, so his criminal history category was I. The advisory range was 63 to 78 months. The statutory maximum was 20 years.

The government moved for a sentence below that range under U.S.S.G. § 5K1.1, based on substantial assistance. At sentencing, the government said Lubin had been charged in an investigation of for-profit schools. It said he was responsible for issuing diplomas to people who had not achieved a nursing degree or diploma. It said he made "a good amount of money" from the offense. It also said he had cooperated from the start by identifying the other people involved and by satisfying his forfeiture obligations. The government asked for a sentence of one-third from the lower end of the range.

The court asked how far the cooperation went and about the status of the other people. Lubin agreed the offense was serious. He asked for 24 months. He pointed to his lack of a criminal record, his service, his family support, and his help to the government.

Neither side objected to the presentence report. The court adopted it: offense level 26, criminal history category I, and a range of 63 to 78 months.

The district court called the conduct "horrific." It said the conduct endangered the public by allowing unqualified people to provide health care, and that Lubin did it for his own financial gain. The court said it considered his lack of a criminal record, his substantial assistance, the nature and characteristics of the offense, the sophisticated means used to commit it, and the need to promote respect for the law, to deter similar conduct, and to avoid unwarranted disparities. It granted a downward departure and imposed 60 months in prison, two years of supervised release, and a $25,000 fine. Lubin did not object.

After the hearing, the court entered a paperless order granting the departure motion "for the reasons stated on the record." A paperless order is an order on the docket that does not come with a separate written opinion.

What the charge requires

Section 1343 is the wire fraud statute. It applies when a person has devised, or intends to devise, a scheme to defraud, or a scheme to obtain money or property by false or fraudulent pretenses, and transmits a wire communication in interstate or foreign commerce, or causes one to be transmitted, to carry out the scheme. 18 U.S.C. § 1343. In general, the statute authorizes a prison term of not more than 20 years. The opinion says that was the maximum in this case.

Section 1349 covers a conspiracy to commit an offense in that chapter. A person who conspires is subject to the same penalties as the offense that was the object of the conspiracy. 18 U.S.C. § 1349. Lubin's conviction is the conspiracy count.

Loss, role, and the range

The loss increase comes from the dollar table in § 2B1.1(b)(1). The opinion says the report added 18 levels under subsection (J) for a loss of $7,249,457.94.

In the manual effective November 1, 2026, subsection (J) adds 18 levels when the loss is more than $5 million. The next step, 20 levels, applies when the loss is more than $15 million. A loss of $7,249,457.94 falls in the 18-level band. The base offense level of 7 is the level § 2B1.1 uses when the statute of conviction authorizes 20 years or more.

The role increase is U.S.S.G. § 3B1.1(a). It adds 4 levels if the defendant was an organizer or leader of a criminal activity that involved five or more participants, or that was otherwise extensive. The report used the five-participant path.

Acceptance of responsibility is a separate adjustment. U.S.S.G. § 3E1.1(a) and (b) accounted for the 3-level decrease that produced a total offense level of 26. The commentary to § 5K1.1 says a reduction for help to the government is considered independently of acceptance of responsibility. Acceptance is about the person's own conduct. Substantial assistance is about help investigating or prosecuting someone else.

Seven plus 18 plus 4, minus 3, is 26. With criminal history category I, that is a range of 63 to 78 months. The court adopted those numbers. The appeal did not challenge the arithmetic.

What the cooperation motion did

Section 5K1.1 is a policy statement. The opinion treats the government's filing as a motion for a downward departure under that section. In the manual effective November 1, 2026, the statement says that, on a government motion, a sentence below the otherwise applicable range may be appropriate. The motion must state that the defendant gave substantial assistance in the investigation or prosecution of another person who committed an offense. The court determines the reduction and states its reasons. Those reasons may include how significant and useful the help was, taking into account the government's evaluation, and the nature and extent of the help. U.S.S.G. § 5K1.1.

The government does not control whether the court goes below the range, or by how much. United States v. Livesay, 525 F.3d 1081, 1091 (11th Cir. 2008). Even after a downward departure, the court must consider the statutory sentencing factors before it imposes the sentence. United States v. McVay, 447 F.3d 1348, 1356 (11th Cir. 2006). Those factors are in 18 U.S.C. § 3553(a). They include the nature of the offense, the history of the person, the guidelines, and the need for the sentence to reflect the seriousness of the offense, to deter, and to avoid unwarranted disparities.

The district court granted the motion. Sixty months is three months below the bottom of the 63-to-78-month range. The government had asked for a sentence of one-third from the lower end. Lubin had asked for 24 months. The court chose 60 months after saying it had considered both the assistance and the harm.

Why the sentence stayed in place

Lubin argued that the court failed to say whether it granted the departure. He argued that, if the court did grant it, the court failed to explain how the departure changed the range. He also argued that 60 months was substantively unreasonable.

He did not object at the hearing. When there is no objection, the Eleventh Circuit reviews a procedural claim for plain error. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). Plain error means the appeals court looks for a mistake that is clear and that affected the person's substantial rights. Procedural errors include miscalculating the range, treating the guidelines as mandatory, failing to consider the § 3553(a) factors, using clearly erroneous facts, or failing to explain the sentence, including an explanation for a deviation from the range. Gall v. United States, 552 U.S. 38, 51 (2007).

The court found no plain procedural error. It said the district court granted the departure for substantial assistance. United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005). Lubin did not explain how any procedural mistake led to a longer sentence or otherwise prejudiced his substantial rights.

Substantive reasonableness is reviewed for abuse of discretion. Gall, 552 U.S. at 51. A court abuses its discretion when it fails to consider factors that deserved significant weight, gives significant weight to an improper factor, or makes a clear error of judgment. United States v. Sotelo, 130 F.4th 1229, 1244 (11th Cir. 2025). The Eleventh Circuit said it was not left with a definite and firm conviction that the district court made that kind of error. United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc). The district court weighed the seriousness of the offense, the lack of a criminal record, and the assistance. Sixty months was also well below the 20-year maximum. The appeals court affirmed.

From my perspective

A § 5K1.1 motion opens the door to a sentence below the range. It does not set the size of the reduction. The policy statement in the current manual says the court determines the reduction, and the court may consider the government's view of how useful the help was. On this record the government asked for a sentence of one-third from the lower end of the range, and Lubin asked for 24 months. The court asked about the cooperation and about the other people, granted the motion, and imposed 60 months, three months under the range.

The reasons the court gave were about harm as well as help. The diplomas went to people who had not achieved a nursing degree or diploma. The court treated that as a danger to the public and as conduct done for financial gain. Those are § 3553(a) facts. A cooperation motion does not take them off the table. McVay says the statutory factors still have to be considered after a departure.

The appeal also shows what happens when no one objects at the hearing. The procedure is then reviewed only for plain error. The order entered after the hearing, granting the motion for the reasons stated on the record, answered the claim that the court never said whether it granted the departure. Without a showing that any gap in the explanation made the sentence longer, the procedural claim failed. The reasonableness claim failed because 60 months, on these facts and well under the statutory maximum, was within the district court's discretion.

Federal wire fraud and federal fraud conspiracy explain the statutes in this case. Federal white collar charges explains how a dollar amount can drive the guideline range. The federal appeal process covers how an appeal uses the record made in the district court. Book a consultation and tell us what happened.