First-Time Offender: Will I Go to Prison for PPP Fraud?
So your probably wondering if being a first-time offender will save you from prison in a PPP fraud case, and the short answer is—not necessarily. Clean criminal history helps, but it doesn’t guarantee probation. Federal judges have been sending first-time PPP fraud defendants to prison at rates that surprised even experienced defense attorneys. The assumption that “white collar” defendants with no record automatically get probation stopped being true around 2022, and by 2025 the sentencing patterns show judges treating pandemic loan fraud more seriously than most traditional fraud cases.
We represent clients in PPP and EIDL fraud cases across California and the federal system, and we’ve watched the sentencing landscape shift dramatically over the past three years. What worked in 2021—emphasizing clean record, family ties, pandemic hardship—doesn’t carry the same weight anymore. Judges are varying UPWARD from the guidelines more often than downward, and there hearing the same mitigation arguments in every case. Your probably thinking that because you never committed a crime before, the judge will give you a break. That’s not what the data shows.
The harsh reality is that most first-time PPP fraud defendants serve at least some prison time, even in cases involving relatively small amounts like $20,000 or $30,000. Only two reported PPP fraud defendants received straight probation in the first wave of prosecutions, and both had extraordinary circumstances that your case probably doesn’t have. If your thinking probation is the likely outcome, you need to understand what judges actually look at when they decide whether to send someone to federal prison—and clean criminal history is just one factor among many.
Will I Definitely Go to Prison If This Is My First Offense?
No, it’s not automatic, but the statistics aren’t encouraging. In a comprehensive review of PPP fraud sentencings through 2024, researchers found that approximately 94% of defendants received prison sentences. That includes first-time offenders with clean records, defendants who repaid the money before sentencing, and people with significant health problems or family responsibilities. The federal system doesn’t treat white collar crime the way state courts often do—there’s no presumption of probation for non-violent first offenders.
What determines whether you go to prison isn’t primarily your criminal history—it’s the federal sentencing guidelines calculation. Under the guidelines, your offense level gets calculated based on the fraud amount, enhancements for sophisticated means or role in the offense, and adjustments for acceptance of responsibility. Your criminal history score (which will be I if you’ve never been convicted of anything) then intersects with that offense level to produce a guideline range. For a $50,000 PPP fraud with a 3-point acceptance reduction, a first-time offender typically lands at offense level 13, criminal history I—which produces a guideline range of 12 to 18 months.
The judge can vary below that range (probation), within it, or above it. The 18 U.S.C. § 3553(a) factors govern that decision—nature and circumstances of the offense, history and characteristics of the defendant, need for the sentence to reflect seriousness and promote respect for law, deterrence, and several other considerations. Clean criminal history is just one characteristic among many. If the spending was particularly egregious (luxury cars, gambling, designer goods) or if you lied to investigators during the initial interview, judges often conclude that probation wouldn’t adequately reflect the seriousness of the conduct—regardless of your criminal history.
We had a client last year—23 years old, no criminal record, took a $35,000 PPP loan for a business that never existed and spent most of it on rent and car payments during the pandemic. The pre-sentence report recommended the low end of the guidelines (15 months). The defense argued for probation based on his age, lack of record, difficult family circumstances, and the fact that he wasn’t living lavishly. The judge acknowledged all of that and still imposed 12 months—a downward variance, but not probation. The reasoning: “Thousands of people struggled during the pandemic and didn’t commit fraud. The defendant made a choice, and there have to be consequences.”
What’s the Typical Sentence for First-Time PPP Fraud Offenders?
For fraud amounts under $50,000, first-time offenders typically receive sentences in the 6 to 18 month range, with 12 months being common. That’s assuming a guilty plea with acceptance of responsibility, no aggravating factors like identity theft or sophisticated means enhancements, and reasonably sympathetic personal circumstances. If the amount climbs to $100,000-$150,000, your looking at guideline ranges around 21 to 27 months for criminal history I, and judges have been sentencing within or above those ranges.
The sentencing data shows some patterns. Small-dollar cases ($20,000 or less) with full restitution before sentencing and genuinely sympathetic circumstances sometimes result in probation, but it’s uncommon—maybe 10% of the time. Mid-range cases ($50,000-$150,000) almost always result in prison time for first-offenders, typically in the 12 to 30 month range. Large-dollar cases ($250,000+) regularly produce sentences of 3 to 5 years even for defendants with no criminal history, and if there are aggravating factors like using stolen identities or operating a fraud ring, sentences can reach 7 to 10 years.
One factor that surprised many defense attorneys was how judges treated the spending. In traditional bank fraud or wire fraud cases, defendants who gambled the money away or spent it on drugs often received MORE lenient sentences than those who invested it or used it successfully—the theory being that addiction or compulsion is less culpable than calculated theft. PPP fraud judges have rejected that framework. They view frivolous spending (luxury items, trips, entertainment) as WORSE than using the funds for legitimate business expenses, even if the underlying loan application was fraudulent. So if your thinking that spending the money on stupid stuff rather than keeping it will help you at sentencing—it won’t.
Here’s what we’re seeing in 2025 for typical first-time offenders by fraud amount:
- Under $20,000: 6-12 months (occasionally probation with extraordinary mitigation)
- $20,000-$50,000: 12-18 months
- $50,000-$150,000: 18-30 months
- $150,000-$350,000: 30-48 months
- Over $350,000: 48+ months
These aren’t statutory requirements—judges have discretion to go higher or lower. But they represent what’s actually happening in courtrooms across the country right now. And those numbers have been trending UP, not down. Defendants sentenced in 2024-2025 are receiving prison terms approximately 40% longer than defendants sentenced in 2021-2022 for similar conduct. The political and media attention to pandemic fraud, combined with Department of Justice emphasis on these prosecutions, has created an environment where judges feel pressure to impose meaningful sentences.
Can I Get Probation Instead of Prison With a Clean Record?
Yes, it’s possible, but you need a combination of favorable factors that most defendants don’t have. The two documented cases where PPP fraud defendants received straight probation both involved fraud amounts under $20,000, full restitution before sentencing, extraordinary personal circumstances (one involved a defendant who was the sole caretaker for a disabled child and elderly parent, the other involved a defendant with a terminal illness), and spending that was primarily on legitimate business expenses or basic living costs rather than luxury items.
Clean criminal record is necessary but not sufficient for probation. The judges who have imposed probationary sentences in PPP cases have articulated similar reasoning: the defendant’s conduct, while criminal, was an aberration during extraordinary circumstances, there’s no risk of re-offense, imprisonment would create genuine hardship for innocent third parties, and the defendant has taken concrete steps toward rehabilitation. If any of those elements is missing—particularly the lack of genuine hardship to others or evidence of ongoing accountability—judges default to at least some prison time.
The 18 U.S.C. § 3553(a)(2) factors include “the need for the sentence imposed to afford adequate deterrence to criminal conduct.” Judges repeatedly cite general deterrence as a reason they can’t impose probation even when they’re sympathetic to the defendant personally. The reasoning goes: if word gets out that PPP fraud results in probation for first-timers, it encourages fraud. Whether that logic holds up is debatable—most people who commit PPP fraud weren’t carefully researching sentencing outcomes before they did it—but it’s what judges say.
We had a case last year where everything seemed to line up for probation. Client was 55, no record, took $18,000 for a house-cleaning business that was real but exaggerated the revenue, spent the money on overdue rent and utilities, paid back every penny before sentencing, strong family ties, letters from the community. The PSR recommended probation. The government didn’t oppose probation. The defense obviously argued for it. Judge imposed 8 months. The explanation: “I understand the difficult circumstances, and I’ve considered the defendant’s positive characteristics. But this was a calculated fraud, not a momentary lapse, and the court has an obligation to send a message that pandemic relief fraud has serious consequences.” That’s the sentiment in most courtrooms right now.
How Does the Amount of the Loan Affect My Sentence?
The fraud loss amount is the single most important factor in your guideline calculation. Under U.S.S.G. § 2B1.1, the base offense level for fraud starts at 6 or 7, then increases based on the loss amount. The increases are:
- Loss of $6,500-$15,000: add 2 levels
- Loss of $15,000-$40,000: add 4 levels
- Loss of $40,000-$95,000: add 6 levels
- Loss of $95,000-$150,000: add 8 levels
- Loss of $150,000-$250,000: add 10 levels
- Loss of $250,000-$550,000: add 12 levels
- Loss of $550,000-$1.5 million: add 14 levels
Each 2-level increase typically adds 4 to 10 months to the guideline range, depending on where you are in the table. So the difference between a $39,000 fraud and a $41,000 fraud is two offense levels, which for a criminal history I defendant might mean the difference between 10-16 months and 15-21 months. That’s why the government’s loss calculation in the PSR is often the most contested issue—a few thousand dollars can add months to the sentence.
There’s also a question of what counts as “loss.” If you took $50,000 but paid back $30,000 before you were charged, is the loss $50,000 or $20,000? Under the guidelines, it’s the INTENDED loss or actual loss, whichever is greater, minus any money returned before the offense was detected. So if you paid back $30,000 AFTER investigators contacted you, that doesn’t reduce the loss for guideline purposes—it might be mitigation the judge considers under § 3553(a), but it doesn’t change the calculation. If you paid it back BEFORE any investigation, there’s an argument that the actual loss was only $20,000, but prosecutors usually fight that unless the repayment happened very early.
The practical effect is that cases just over a threshold ($40,000, $95,000, $150,000, $250,000) often fight hardest about loss amount. We had a client charged with $97,000 in PPP fraud across two loans. If the loss was calculated at $97,000, that’s 8 levels. If we could get it below $95,000 by arguing certain expenses were legitimate or that one loan shouldn’t count, that’s 6 levels—a potential difference of 12-18 months in the guideline range. We didn’t win that argument (judge found the full amount was fraudulent), but it was worth making because the stakes were so high.
What Factors Make Judges More Likely to Send First-Timers to Prison?
Certain aggravating factors almost guarantee prison time regardless of criminal history. The biggest ones we see in PPP fraud cases are:
Sophisticated means or elaborate scheme. If you created fake tax documents, forged bank statements, used multiple shell companies, or coordinated with others to file applications under different names, expect a 2-level enhancement under § 2B1.1(b)(10)(C) for sophisticated means. Judges view this as evidence of planning and calculation that makes probation inappropriate. It’s one thing to exaggerate your 2019 payroll by $10,000 on an otherwise legitimate application—it’s another thing to fabricate an entire business with fake employees and documents. The latter almost always results in prison.
Using someone else’s identity. If you filed a PPP application using a stolen Social Security number, a relative’s information without permission, or created synthetic identities, your facing a mandatory consecutive 2-year sentence under 18 U.S.C. § 1028A for aggravated identity theft. That’s in ADDITION to whatever sentence you get for the underlying fraud. We’ve seen first-time offenders with $30,000 fraud amounts receive 30 months total—12 months for the fraud, 24 months consecutive for identity theft. And judges can’t reduce or eliminate the identity theft sentence—it’s mandatory by statute.
Lying to investigators. When the SBA OIG or FBI first contacts defendants, many make statements like “I don’t know what your talking about,” “someone must have stolen my identity,” or “my accountant handled everything.” If those statements are provably false and you later plead guilty, prosecutors bring that up at sentencing as obstruction or lack of acceptance, and judges react poorly. Even if you plead guilty eventually, making false exculpatory statements early can cost you the 3-level reduction for acceptance of responsibility, which typically adds 6 to 12 months to your sentence.
Lavish or obviously inappropriate spending. Judges distinguish between defendants who used PPP money for rent, groceries, and car payments versus those who bought jewelry, took trips to Vegas, or purchased luxury cars. Both are illegal if the loan application was fraudulent, but the latter demonstrates a level of greed and disregard that makes probation unlikely. We represented a first-time offender who took $45,000, spent $8,000 on rent and utilities, $12,000 on legitimate business expenses for a struggling company, and $25,000 on a used BMW. The judge imposed 18 months and specifically cited the car purchase as evidence that this wasn’t about survival during the pandemic—it was about wanting something he couldn’t afford.
Multiple applications or ongoing fraud. If you filed PPP applications for three different businesses, or took PPP and EIDL and tried to get Restaurant Revitalization Funds, judges view that as a pattern rather than a one-time mistake. Same if you applied in 2020, got funded, then applied again in 2021 for a second draw with false information. The guidelines account for this through higher loss amounts, but judges also consider it under § 3553(a) as evidence of character. Someone who files one inflated application is making a bad choice; someone who files five is running a scheme.
No remorse or accountability. If you fight the case all the way to trial and lose, your not getting probation. If you plead guilty but the PSR notes that you blamed your accountant, claimed you didn’t understand the rules, or minimized your conduct, judges notice. Acceptance of responsibility isn’t just about pleading guilty—it’s about genuinely acknowledging wrongdoing. We prep our clients extensively on this because the difference between “I made a terrible mistake and I’m deeply sorry” versus “everyone else was doing it and the rules were confusing” can literally be the difference between 12 months and 24 months.
Does Paying the Money Back Help Avoid Prison?
Paying full restitution before sentencing is probably the single most effective mitigation strategy, but it doesn’t guarantee probation. What it does is eliminate one of the main concerns judges have—making the victim (the government) whole. If the full amount has been repaid, the judge doesn’t have to worry about ordering restitution as part of the sentence, and it demonstrates that you’ve taken concrete steps toward accountability. That’s meaningful.
In the cases where first-time offenders received probation, both had paid full restitution before sentencing. But plenty of defendants paid full restitution and still went to prison—it’s necessary but not sufficient. The timing matters too. If you repay the money within days or weeks of receiving it, before any investigation starts, that’s stronger mitigation than repaying it after investigators contact you. And repaying it after your charged is better than not repaying it at all, but judges understand that at that point your motivated by wanting a lighter sentence, not by genuine remorse.
We tell clients: if you can possibly pay it back, do it before sentencing. Borrow from family, sell assets, set up a payment plan with the prosecutor—whatever it takes. A defendant who shows up to sentencing having repaid $75,000 in fraud proceeds is in a fundamentally different position than one who owes $75,000 in restitution the judge has to order. It doesn’t mean you won’t go to prison, but it’s one less reason FOR prison.
There’s also the practical consideration that if your sentenced to prison and owe restitution, you’ll be paying it off at $25/quarter from your prison commissary account, and then through monthly payments after release while your on supervised release. It can take a decade to pay off a $50,000 restitution order at those rates. If you can pay it upfront, you eliminate that burden and start your post-conviction life without that hanging over you.
How Many First-Time Offenders Actually Received Probation in PPP Cases?
In the comprehensive sentencing data through late 2024, only about 6% of PPP fraud defendants received probationary sentences, and the vast majority of those had criminal history category I (first-time offenders). But even among first-time offenders, probation was the exception, not the rule. The rough estimate is that perhaps 8-10% of first-time PPP fraud defendants received straight probation, mostly in cases under $25,000 with full restitution and extraordinary mitigation.
The numbers have gotten worse over time. In 2021, approximately 15% of first-time offenders received probation. By 2023, that had dropped to around 8%. In 2024-2025, it’s probably closer to 5%. The shift reflects both prosecutorial charging decisions (DOJ is now primarily prosecuting cases over $50,000, which have higher guideline ranges) and judicial sentiment (less sympathy for pandemic fraud as time passes and more cases come through).
It’s worth noting that some of those “probation” sentences included periods of home confinement, which is technically a condition of probation but involves wearing an ankle monitor and being confined to your residence except for approved activities like work. So the defendant isn’t in federal prison, but there not exactly free either. A sentence of “3 years probation with 12 months home confinement” is better than 12 months in prison, but it’s not what most people think of when they hear “probation.”
The other category that sometimes gets counted as “no prison” is sentences below the guideline range that include split sentences—like 6 months in prison followed by 6 months home confinement and 2 years supervised release. Those are wins compared to the guideline recommendation, but the defendant is still going to federal prison. When we talk to clients about realistic outcomes, we distinguish between straight probation (you don’t go to prison at all), probation with home confinement (you wear a monitor but stay home), and downward variances that still include prison (you go to prison but for less time than the guidelines recommend).
What About Home Confinement or Halfway House Instead of Prison?
Home confinement can be ordered as a condition of probation OR as part of a prison sentence served under the BOP’s Residential Reentry Center (RRC) placement. The statute allows the BOP to place inmates in home confinement for up to the shorter of 10% of the sentence or 6 months, and the First Step Act expanded that for certain inmates. So if your sentenced to 18 months, you might serve 12 months in federal prison, then 6 months in a halfway house or home confinement before starting supervised release.
Some judges will recommend or order home confinement as part of the sentence, particularly in COVID-era cases where they’re concerned about prison conditions. A sentence of “12 months, the court recommends service in home confinement to the extent permitted by statute” gives the BOP authority to place you at home rather than in a facility, though the BOP makes the final decision based on their criteria. That’s different from a probationary sentence with home confinement as a condition, where you never go into BOP custody at all—you just report to probation and they set up the monitoring.
Halfway house placement is common toward the end of a prison sentence. If your sentenced to 24 months, you’ll likely spend 18-20 months in a federal prison camp, then 4-6 months in a Residential Reentry Center (halfway house) before release. The RRC is a Bureau of Prisons facility, but it’s less restrictive than a prison—you can leave for work, religious services, medical appointments, and other approved activities. It’s a transition period.
For first-time offenders with short sentences (12 months or less), there’s sometimes an argument for straight home confinement rather than reporting to a facility at all. We’ve had clients receive sentences of “12 months, to be served in home confinement,” meaning they never set foot in a prison or halfway house—they just wear an ankle monitor at home for a year. But that outcome requires both judicial willingness to order it AND BOP approval, and it’s relatively rare in PPP fraud cases unless there are serious health issues or other compelling circumstances.
How Does My Criminal History Score Affect My Sentence?
Your criminal history category combines with your offense level to determine the guideline range. There are six criminal history categories (I through VI), with I being no criminal record and VI being extensive prior convictions. The vast majority of first-time offenders fall into category I. Each prior conviction adds points based on the sentence length—3 points for each prior sentence exceeding 13 months, 2 points for each prior sentence of 60 days to 13 months, 1 point for each other sentence, plus additional points for committing the offense while on probation or within certain time periods after release.
For first-time offenders, the question is usually whether there are any juvenile adjudications, very old convictions, or minor offenses that might add a point or two. The difference between criminal history I and criminal history II can be significant in terms of the guideline range, but for most PPP fraud defendants with no record, the score is I.
The more important question is how judges treat criminal history I defendants in white collar cases. There’s been significant criticism of the guidelines for treating white collar defendants too leniently, and some judges consciously sentence above the guidelines in fraud cases involving defendants with no record, reasoning that the guidelines understate the seriousness of calculated economic crimes. The Sentencing Commission’s data shows that in fraud cases, defendants with criminal history I receive upward variances more often than defendants in most other offense categories, suggesting judges don’t view clean record as dispositive.
The practical effect for you is that being a first-time offender helps—your guideline range is lower than it would be with prior convictions. But it doesn’t mean you avoid prison. It means your range might be 12-18 months instead of 24-30 months. That’s significant, but it’s not the difference between probation and prison that many defendants expect.
Will Pleading Guilty Help Me Avoid Prison?
Pleading guilty helps reduce the LENGTH of your prison sentence through the 3-level acceptance of responsibility reduction, but it rarely changes the IN/OUT decision (prison versus probation) by itself. The 3-level reduction typically reduces the guideline range by 6 to 12 months depending on where you are in the table. So if your guideline range before acceptance is 18-24 months, it might become 12-18 months with the reduction. That’s meaningful—12 months instead of 18 months is six months of your life—but your still going to prison.
Going to trial and losing is almost certain to result in a longer sentence than pleading guilty. Defendants who go to trial give up the acceptance reduction, and judges often impose sentences at or above the guideline range for defendants who put the government through a trial. We’ve seen cases where the plea offer was 18 months, the defendant rejected it and went to trial, lost, and received 36 months. The judge isn’t supposed to punish you for exercising your trial right, but as a practical matter, defendants who plead guilty get better outcomes than those who fight and lose.
The timing of your plea matters too. If you plead guilty at arraignment or shortly after indictment, that’s stronger evidence of acceptance than if you fight for 18 months, file a dozen motions, engage in extensive discovery, and plead guilty on the eve of trial. The guidelines technically allow the 3-level reduction in both situations (as long as you plead before trial), but judges have discretion to deny it if they believe your plea was motivated solely by the strength of the evidence rather than genuine remorse.
Early cooperation can sometimes result in a government motion for downward departure under U.S.S.G. § 5K1.1, but that requires providing substantial assistance in the investigation or prosecution of others. In PPP fraud cases, that usually means identifying co-conspirators, testifying against loan preparers who filed fraudulent applications for multiple clients, or providing information about other fraud schemes. If your case is a single-defendant application where you acted alone, there’s probably no cooperation value. But if you were part of a larger scheme or you know about others who committed fraud, early cooperation can result in recommendations for sentences below the guideline range.
What Are Judges Looking For When They Decide to Show Leniency?
Judges who impose probationary sentences or downward variances in PPP fraud cases typically articulate several things there looking for. The most common themes are:
Genuine remorse and accountability. Not just saying your sorry, but demonstrating through actions—repaying the money, cooperating with the investigation, immediately accepting responsibility when confronted. Judges can tell the difference between someone who’s sorry they got caught and someone who genuinely regrets the conduct. We spend hours with clients preparing for sentencing allocution because how you present yourself in that 5-10 minutes can influence the judge’s perception of your character.
Extraordinary personal circumstances. Health issues that make prison particularly difficult (though this has to be serious—cancer, dialysis, severe mental health issues—not just anxiety or depression), caretaking responsibilities that can’t be met by anyone else (sole caretaker of disabled child or elderly parent), or other factors that make incarceration especially harsh. These arguments work occasionally, but they have to be documented and genuine. Judges hear hardship arguments in every case.
Limited scope and relatively sympathetic facts. A single loan application with modest inflation of 2019 payroll, where most of the money was used for legitimate business expenses or basic living costs, is more sympathetic than multiple applications for fabricated businesses where the money was spent on luxury items. Both are illegal, but the former is closer to the line between aggressive interpretation of ambiguous rules and outright fraud. Judges have more flexibility to show leniency when the conduct, while criminal, doesn’t involve the most egregious behavior.
Evidence of rehabilitation or positive contributions. Strong employment history, community ties, charitable work, family stability—factors that suggest this was an aberration rather than a pattern. Letters from employers, family members, community leaders, and others who can speak to your character carry weight, particularly if they’re specific about how imprisonment would affect your ability to continue positive contributions. Generic “he’s a good person” letters don’t help much; specific “he volunteers 20 hours a month at the food bank and his absence would leave a gap we can’t fill” letters are more effective.
Restitution and concrete steps toward making amends. Full repayment before sentencing, cooperation with the investigation, efforts to help identify how the fraud occurred and prevent future fraud—actions that demonstrate you’ve moved beyond just avoiding punishment to actively trying to fix the harm you caused. This doesn’t mean you should volunteer information that incriminates you further, but if your already pleading guilty, taking every possible step to make amends demonstrates character.
The harsh truth is that even when all of these factors are present, most judges still impose at least some prison time in cases over $30,000-$40,000. The combination of guideline calculations, prosecutorial recommendations, and judicial concern about general deterrence creates strong pressure toward incarceration. Leniency is possible, but it requires a nearly perfect storm of favorable circumstances, and even then it’s not guaranteed.
Can My Defense Attorney Negotiate a No-Prison Sentence?
Your attorney can negotiate with the prosecutor for a recommended sentence, and in some cases prosecutors will agree to recommend probation or a below-guidelines sentence as part of a plea agreement. But the judge isn’t bound by that recommendation. Under Federal Rule of Criminal Procedure 11(c)(1)(C), there are binding plea agreements where the sentence is part of the deal and the judge either accepts the whole package or rejects it, but those are relatively rare. Most plea agreements involve the government agreeing to recommend a particular sentence or not oppose a defense request, but the judge makes the final decision.
In PPP fraud cases, we’ve had prosecutors agree to recommend probation in small-dollar cases (under $20,000) with full restitution and strong mitigation, and judges usually follow those recommendations but not always. We’ve also had prosecutors agree to recommend the low end of the guideline range, or to recommend a 2-level reduction for minor role, or not to seek enhancements for sophisticated means—those concessions can reduce the guideline range significantly, which increases the chances of a downward variance.
The negotiation often centers on disputed guideline applications. If the PSR calculates loss at $95,000 and we believe it should be $75,000, there’s an 8-level difference between the two, which translates to 18-24 months versus 12-18 months in guideline range. If we can negotiate a loss stipulation at $85,000 (6 levels), that might be acceptable to both sides and saves the time and expense of a contested evidentiary hearing. Similarly, if there’s a question about whether sophisticated means enhancement applies, the government might agree not to seek it in exchange for the defendant pleading guilty early and cooperating with the investigation of others.
The leverage in these negotiations depends on the strength of the government’s case, your willingness to cooperate, the prosecutor’s office policies, and the judge’s reputation. Some prosecutors’ offices have policies against recommending probation in any fraud case over a certain amount ($25,000, $50,000, varies by district). Some judges are known for following government recommendations; others ignore them. An experienced federal defense attorney knows the local practices and can give you realistic expectations about what’s negotiable.
What’s generally NOT negotiable is the charge itself in most PPP fraud cases. Your either guilty of wire fraud or bank fraud or false statements, or your not. There usually isn’t a lesser-included offense to plead to. So the negotiation is about sentencing recommendations, not about reducing the charge from a felony to a misdemeanor or something like that. The wire fraud statute carries up to 20 years (30 years if the fraud affects a financial institution), and there’s no “wire fraud lite” to plead to instead.
Bottom line: a good defense attorney can sometimes negotiate for a probationary recommendation, particularly in small cases with strong mitigation, but there’s no guarantee the judge will follow it. The attorney’s value is in identifying every possible mitigation argument, challenging the guideline calculations, presenting your character and circumstances in the most compelling way possible, and fighting for the lowest possible sentence—whether that’s probation, home confinement, or a reduced prison term. But given the current sentencing climate in PPP fraud cases, the honest answer is that most first-time offenders with fraud amounts over $40,000-$50,000 should expect at least some prison time, and the goal becomes minimizing how much.
If your facing a PPP or EIDL fraud charge as a first-time offender, talk to a federal defense attorney who has experience with these cases and can give you realistic expectations about sentencing. The worst thing you can do is assume that clean criminal history means probation—it doesn’t, and going into the process with unrealistic expectations makes it harder to make informed decisions about plea negotiations, cooperation, and trial strategy. We represent clients in PPP fraud cases throughout California and the federal system, and we’re here to provide honest assessments and aggressive advocacy. Call us today.