United States v. Orton, 73 F.3d 331 (11th Cir. 1996). · Go Syfert
United States v. Orton, 73 F.3d 331 (11th Cir. 1996). Cases Citing This Book View Copy Cite
“fraudulent schemes, however, come in various forms, and we must consider the nature of the -5- scheme in determining what method is to be used to calculate the harm caused or intended.”
89 citation events (77 in the last 25 years) across 8 distinct courts.
Strongest positive: United States v. Daniel P. Alfonso (ca8, 2007-03-09) · Strongest negative: United States v. Salomon S. Loayza (ca4, 1997-02-25)
Treatment trajectory · 1997 → 2026 · click a year to view as-of
1997 2011 2026
Top citers, strongest first. 38 distinct citers. How cited ↗
discussed Cited "but see" United States v. Salomon S. Loayza (2×)
4th Cir. · 1997 · signal: but see · confidence high
See e.g., United States v. Menichino, 989 F.2d 438, 441-42 (11th Cir. 1993); United States v. Smith, 951 F.2d 1164, 1168 (10th Cir.1991); United States v. Kopp, 951 F.2d 521, 534-35 (3d Cir.1991); but see, United States v. Orton, 73 F.3d 331, 334 (11th Cir.1996) (invoking a case-by-case approach).
discussed Cited "but see" United States v. Loayza
4th Cir. · 1997 · signal: but see · confidence high
See e.g., United States v. Menichino, 989 F.2d 438, 441-42 (11th Cir. 1992); United States v. Smith, 951 F.2d 1164, 1168 (10th Cir. 1991); United States v. Kopp, 951 F.2d 521, 534-35 (3d Cir. 1991); but see, United States v. Orton, 73 F.3d 331, 334 (11th Cir. 1996) (invoking a case- by-case approach).
discussed Cited as authority (verbatim quote) United States v. Daniel P. Alfonso
8th Cir. · 2007 · signal: cf. · quote attribution · 1 verbatim quote · confidence high
fraudulent schemes, however, come in various forms, and we must consider the nature of the -5- scheme in determining what method is to be used to calculate the harm caused or intended.
discussed Cited as authority (verbatim quote) United States v. Daniel P. Alfonso
8th Cir. · 2007 · signal: cf. · quote attribution · 1 verbatim quote · confidence high
fraudulent schemes, however, come in various forms, and we must consider the nature of the scheme in determining what method is to be used to calculate the harm caused or intended.
cited Cited as authority (rule) United States v. Luke Joselin
11th Cir. · 2024 · confidence medium
See United States v. Moss, 34 F.4th 1176 , 1190–92 (11th Cir. 2022); United States v. Orton, 73 F.3d 331, 333 (11th Cir. 1996).
discussed Cited as authority (rule) United States v. Carlos Alfredo Verdeza (2×) also: Cited "see"
11th Cir. · 2023 · confidence medium
United States v. Orton, 73 F.3d 331, 333 (11th Cir. 1996).
discussed Cited as authority (rule) United States v. Carlos Alfredo Verdeza (2×) also: Cited "see"
11th Cir. · 2023 · confidence medium
United States v. Orton, 73 F.3d 331, 333 (11th Cir. 1996).
cited Cited as authority (rule) United States v. Andy Armas
11th Cir. · 2017 · confidence medium
“Where detailed information is not available, a detailed estimate is not required.” United States v. Orton, 73 F.3d 331, 335 (11th Cir. 1996).
discussed Cited as authority (rule) United States v. Mitchell J. Stein (2×)
11th Cir. · 2017 · confidence medium
United States v. Rodriguez, 751 F.3d 1244, 1255 (11th Cir. 2014). “[A] sentencing court is not generally required to make detailed findings of individualized losses to each victim.” United States v. Orton, 73 F.3d 331, 335 (11th Cir. 1996) (considering the similar predecessor guideline, U.S.S.G. § 2F1.1).
examined Cited as authority (rule) United States v. Maurice William Campbell, Jr. (4×) also: Cited "see"
11th Cir. · 2014 · confidence medium
In line with this purpose, courts have held that a fraudster may not receive credit for value that is provided to his victims for the sole purpose of enabling him to conceal or perpetuate his scheme, see United States v. Orton, 73 F.3d 331, 334 (11th Cir.1996); United States v. Blitz, 151 F.3d 1002, 1012 (9th Cir.1998), nor may he deduct the costs he incurred in running a fraudulent scheme, see United States v. Craiglow, 432 F.3d 816, 820 (8th Cir.2005); United States v. Marvin, 28 F.3d 663, 665 (7th Cir.1994).
discussed Cited as authority (rule) United States v. Douglas Newton
11th Cir. · 2014 · confidence medium
Fraudulent schemes come in a variety of forms, ranging from “theft-like fraud where the perpetrator intends to keep the entire amount fraudulently obtained,” to “contract fraud where the perpetrator, while fraudulently obtaining the contract, intends to perform the contract and to cause no loss to the victim.” United States v. Orton, 73 F.3d 331, 334 (11th Cir.1996).
discussed Cited as authority (rule) United States v. Scott W. Rothstein
11th Cir. · 2013 · confidence medium
In addition to seeking Rothstein’s conviction for these offenses, the information sought the forfeiture of his interests in the numerous properties, including RRA’s bank accounts at Gibraltar Private Bank and Trust (“Gibraltar Bank”) and Toronto Dominion Bank, N.A. (“TD Bank”), listed in the information (and the Appendix of this opinion), on the theory that such interests constituted proceeds of Rothstein’s Ponzi scheme or property acquired with such proceeds. 6 5 The “modus operandi of a Ponzi scheme is to use newly invested money to pay off old investors and convince them tha…
discussed Cited as authority (rule) United States v. Rothstein (In Re Rothstein, Rosenfeldt, Adler, P.A.)
11th Cir. · 2013 · confidence medium
The “modus operandi of a Ponzi scheme is to use newly invested money to pay off old investors and convince them that they are earning profits rather than losing their shirts.” United States v. Orton, 73 F.3d 331, 332 (11th Cir.1996) (internal quotations omitted). 6 .On January 10, 2010, the list of properties in the information was augmented with a bill of particulars.
cited Cited as authority (rule) Perkins v. Haines
11th Cir. · 2011 · confidence medium
United States v. Orton, 73 F.3d 331, 332, n. 2 (11th Cir.1996) (internal quotations omitted). 2 .
discussed Cited as authority (rule) United States v. Hall
D.C. Cir. · 2010 · confidence medium
At sentencing the district court stated it was relying on the method in United States v. Orton, 73 F.3d 331, 334 (11th Cir.1996), and the parties agree that under the “loss to losing victims” method the amount of loss would have been $747,169, the amount *745 the jury ordered to be forfeited; alternatively, the government suggests the district court could have found that the amount of loss was $713,924, the amount identified in the presentence report as the net loss to investors.
discussed Cited as authority (rule) United States v. Laurienti
9th Cir. · 2010 · signal: cf. · confidence medium
Cf. United States v. Orton, 73 F.3d 331, 334 (11th Cir.1996) (holding that, in calculating loss from a Ponzi scheme, the district court correctly calculated the net loss to the losing victims); United States v. Mount, 966 F.2d 262, 265 (7th Cir.1992) (noting that “a fraud that consists in promising 20 ounces of gold but delivering only 10 produces as loss the value of 10 ounces of gold, not 20”).
discussed Cited as authority (rule) United States v. Laurienti
9th Cir. · 2010 · signal: cf. · confidence medium
Cf. United States v. Orton, 73 F.3d 331, 334 (11th Cir. 1996) (holding that, in calculating loss from a Ponzi scheme, the district court cor- rectly calculated the net loss to the losing victims); United States v. Mount, 966 F.2d 262, 265 (7th Cir. 1992) (noting that “a fraud that consists in promising 20 ounces of gold but delivering only 10 produces as loss the value of 10 ounces of gold, not 20”).
discussed Cited as authority (rule) United States v. Timothy Rafferty
11th Cir. · 2008 · confidence medium
“Fraudulent schemes ... come in various forms, and we must consider the nature of the scheme in determining what method is to be used to calculate the harm caused or intended.” United States v. Or- *798 ton, 73 F.3d 331, 333 (11th Cir.1996).
discussed Cited as authority (rule) United States v. Linda Ann Borden
11th Cir. · 2008 · confidence medium
Nevertheless, because loss calculations under the Guidelines are often not calculable “with precision,” we have noted that a sentencing court need only “make a reasonable estimate of the loss, given the available information.” See United States v. Orton, 73 F.3d 331, 335 (11th Cir.1996).
cited Cited as authority (rule) United States v. Timothy C. Moses
11th Cir. · 2007 · confidence medium
Such a rigid rule is not required by the Guidelines.” ■ United States v. Orton, 73 F.3d 331, 335 (11th Cir.1996).
discussed Cited as authority (rule) United States v. Mahendra Pratap Gupta (2×) also: Cited "see"
11th Cir. · 2006 · confidence medium
Furthermore, because loss is often not calculable “with precision,” the district court need only “make a reasonable estimate of the loss, given the available information.” USSG § 2F1.1 comment, (n.9); Orton, 73 F.3d at 335 (citation and emphasis omitted). *1200 “ ‘[L]oss’ under § 2Fl.l(b) is a specific offense characteristic intended to measure the actual, attempted, or intended harm of the offense.” United, States v. Munoz, 430 F.3d 1357, 1369 (11th Cir. 2005) (citation omitted).
cited Cited as authority (rule) United States v. Debra B. Woodard
11th Cir. · 2006 · confidence medium
United States v. Orton, 73 F.3d 331, 333 (11th Cir.1996).
discussed Cited as authority (rule) United States v. Francisco Munoz (2×)
11th Cir. · 2005 · confidence medium
This Court has concluded that the “ ‘loss’ under § 2Fl.l(b) is a specific offense characteristic intended to measure the actual, attempted, or intended harm of the offense.” United States v. Orton, 73 F.3d 331, 333 (11th Cir.1996).
discussed Cited as authority (rule) United States v. Stephen Bracciale (2×) also: Cited "see, e.g."
11th Cir. · 2004 · confidence medium
Thus, “ ‘loss’ under § 2F1.1(b) is a specific offense characteristic intended to measure the actual, attempted, or intended harm of the offense.” United States v. Orton, 73 F.3d 331, 333 (11th Cir.1996).
discussed Cited as authority (rule) United States v. Harry W. Snyder, Jr. (2×)
11th Cir. · 2002 · confidence medium
U.S. Sentencing Guidelines Manual § 2F1.1 cmt. n. 9; United States v. Orton, 73 F.3d 331, 334 (11th Cir.1996).
discussed Cited as authority (rule) United States v. John T. Renick
11th Cir. · 2001 · confidence medium
In United States v. Orton, 73 F.3d 331, 334 (11th Cir.1996), this court stated: *1027 The individuals who receive a “return” or break even on their “investments” are not victims for purposes of § 2F1.1.
discussed Cited as authority (rule) United States v. Deavours
5th Cir. · 2000 · confidence medium
The Ponzi schemer, on the’ other hand, as the Holiusa court recognized, makes only those payments of “profit” necessary to continue his scheme, increase the total returns from his criminal activity, and endanger yet more victims. *404 Deavours also points to United States v. Orton, 73 F.3d 331, 334 (11th Cir.1996), holding that losses relating to a Ponzi scheme should be determined by conducting an accounting of the losses incurred by each victim.
discussed Cited as authority (rule) UNITED STATES of America, Plaintiff-Appellee, v. Brenda KUKU, Defendant-Appellant
11th Cir. · 1997 · confidence medium
U.S.S.G. § 2F1.1 is entitled "Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States.” This guideline is applicable "to a wide variety of fraud cases.” United States v. Orton, 73 F.3d 331, 333 (11th Cir.1996). 4 .
discussed Cited as authority (rule) United States v. KuKu
11th Cir. · 1997 · confidence medium
Pursuant to § 3D1.3(a), the district court selected this single guideline by determining which of the offenses in the group produces the "highest offense level of the counts in the Group." The district court determined that 18 U.S.C. § 1001 produced the highest offense level because Appendix A directs that violations of 18 U.S.C. § 1001 be sentenced based on § 2F1.1, which produced an offense level that was higher than the offense level produced by the guidelines for the other counts.5 3 U.S.S.G. § 2F1.1 is entitled "Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Ins…
discussed Cited as authority (rule) United States v. KuKu
11th Cir. · 1997 · confidence medium
The district court grouped Kuku’s offenses because they involved substantially the same harm, U.S.S.G. § 3D1.2, and used a single guideline to 3 U.S.S.G. § 2F1.1 is entitled “Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States.” This guideline is applicable “to a wide variety of fraud cases.” United States v. Orton, 73 F.3d 331, 333 (11th Cir. 1996). 4 U.S.S.G. § 2L2.1 is entitled “Trafficking in a Document Relating to Naturalization, Citizenship, or Legal Resident Status, or a United Sta…
cited Cited "see" United States v. Jeffrey Alan Horn
11th Cir. · 2025 · signal: accord · confidence high
Id. at 793–94; accord United States v. Orton, 73 F.3d 331, 333 (11th Cir. 1996).
cited Cited "see" Securities and Exchange Commission v. James A. Torchia
11th Cir. · 2019 · signal: see · confidence high
See generally United States v. Orton, 73 F.3d 331 , 332 n.2 (11th Cir. 1996) (outlining the parameters of the scheme).
cited Cited "see" Securities and Exchange Commissioner v. James A. Torchia
11th Cir. · 2019 · signal: see · confidence high
See generally United States v. Orton , 73 F.3d 331 , 332 n.2 (11th Cir. 1996) (outlining the parameters of the scheme).
cited Cited "see" Wiand Ex Rel. Valhalla Investment Partners, L.P. v. Lee
11th Cir. · 2014 · signal: see · confidence high
See United States v. Orton, 73 F.3d 331 , 332 n. 2 (11th Cir.1996). 2 .
cited Cited "see" United States v. Svete
11th Cir. · 2008 · signal: see · confidence high
See United States v. Orton, 73 F.3d 331, 333 (11th Cir.1996).
cited Cited "see" United States v. Svete
11th Cir. · 2008 · signal: see · confidence high
See United States v. Orton, 73 F.3d 331, 333 (11th Cir.1996).
cited Cited "see" United States v. David Phillip Munoz Bennie E. McGregor Donald L. Thomson
9th Cir. · 2000 · signal: see · confidence high
See United States v. Orton, 73 F.3d 331, 334 (11th Cir.1996).
discussed Cited "see" United States v. Alegria
1st Cir. · 1999 · signal: see · confidence high
See United States v. Orton, 73 F.3d 331, 334 (11th Cir.1996) (explaining difference between theft and simple fraud); United States v. Smith, 951 F.2d 1164, 1167 (10th Cir.1991) (similar); United States v. Kopp, 951 F.2d 521, 528-29 (3d Cir.1991) (similar); see also United States v. Flowers, 55 F.3d 218 (6th Cir.1995) (declining to treat check-kiting cases like fraudulent loan application cases); United States v. Frydenlund, 990 F.2d 822, 825-26 (5th Cir.1993) (similar); cf. United States v. Schneider, 930 F.2d 555, 558 (7th Cir.1991) (distinguishing between fraud in which the fraudfeasor inten…
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
James Glenn ORTON, Defendant-Appellant
94-6708.
Court of Appeals for the Eleventh Circuit.
Jan 23, 1996.
73 F.3d 331
William A. Short, Jr., Bessemer, AL, for appellant., Michael V. Rasmussen, Asst. U.S. Attorney, Walter E. Braswell, U.S. Attorney, Birmingham, AL, for appellee.
Hatchett, Dubina, Black.
Cited by 47 opinions  |  Published
BLACK, Circuit Judge:

James Glenn Orton pled guilty to four counts of wire fraud, in violation of 18 U.S.C. § 1343, and three counts of mail fraud, in violation of 18 U.S.C. § 1341. He was sentenced to 33 months’ incarceration to be followed by 3 years’ supervised release. He appeals his sentence, objecting to the way the district court calculated the amount of the loss used to determine the offense level enhancement pursuant to U.S.S.G. § 2Fl.l(b)(l).1 This appeal raises the issue of how “loss” should be determined under § 2F1. [1] for cases involving a “Ponzi” or pyramid scheme, [2] where a defendant has partially repaid fraudulently obtained funds before discovery of the scheme. We hold that a sentencing court, in determining the amount of loss caused by a Ponzi scheme, must estimate the actual, attempted, or intended loss and that the estimated loss must be reasonably based on the information available to the court.

I. BACKGROUND

Orton was an employee of BP Oil Company (BP Oil). When he fell behind in making payments on the American Express account provided to him by the company, he instigated a Ponzi scheme to make money. He began the scheme in early 1988 and continued it until March 1993, well after the time he left BP Oil in September 1988.

Orton told friends, relatives, and acquaintances that, as an employee of BP Oil, he could invest in an incentive program BP Oil had for its executives. He further told them that the investments would mature in a few months and would yield a high rate of return. He persuaded 44 victims to purchase investment “units.” As part of the scheme, Orton used money “invested” by later victims to pay “interest” to earlier victims, providing the successful image necessary to entice new victims and to encourage additional “invest-[*333] merits” by other victims. Orton was not an executive of BP Oil; BP Oil did not have an executive investment program; and Orton did not use the money to make investments. The scheme ended in 1993 when the FBI, following an initial investigation, obtained a warrant and searched Orton’s residence and business.

The total amount Orton received from all victims was $525,865.66. The total amount he returned to the victims was $242,513.65. The net amount lost by all victims was, therefore, $283,352.01, which was also the total amount gained by Orton. Only 12 of Orton’s victims received back more money than they invested. The total amount lost by the other victims, those who suffered individual net losses, was $391,540.01. [3]

A Presentence Investigation report (PSI) was prepared, and sentencing hearings were held on June 23, 1994, and July 21, 1994. For Orton’s violation of 18 U.S.C. §§ 1343 and 1341, the PSI found a Base Offense Level of 6 pursuant to U.S.S.G. § 2Fl.l(a) (Fraud and Deceit). The PSI recommended that the offense level be enhanced: (1) by 9 levels pursuant to § 2Fl.l(b)(l)(J) for an offense involving a loss of more than $350,000; (2) by 2 levels pursuant to § 2Fl.l(b)(2)(A) and (B) for an offense involving more than minimal planning and more than one victim; and (3) by 2 levels pursuant to § 3Al.l for an offense involving a vulnerable victim. The PSI also recommended that the offense level be reduced by 3 levels pursuant to § 3El.l(b) for acceptance of responsibility. Prior to the sentencing hearing, Orton filed objections to the PSI. At the sentencing hearing, the court, finding that Orton used his specialized knowledge of the oil business to entice victims, enhanced the offense level by 2 levels pursuant to § 3B1.3 for use of a special skill to facilitate the offense. Otherwise, the court adopted the recommendations in the PSI.

II. DISCUSSION

Section 2Fl.l(b)(l) of the Sentencing Guidelines requires that the offense level for an offense involving iraud or deceit be enhanced if the loss exceeded $2,000 and specifies the appropriate enhancement based on the amount of loss. U.S.S.G. § 2Fl.l(b)(l). Application Note 7 defines “loss” as “the value of the money, property, or services unlawfully taken” and indicates how loss should be calculated for certain types of fraud. Id. at comment, (n. 7). It does not, however, suggest a method for calculating loss in a Ponzi scheme where part of the scheme itself is to pay “interest” to early victims from the money “invested” by later victims in order to create the illusion of a successful investment program.

As a general matter, § 2F1.1 applies to a wide variety of fraud cases. U.S.S.G. § 2F1.1, comment, (backg’d). The Sentencing Guidelines make clear that “loss” under § 2Fl.l(b) is a specific offense characteristic intended to measure the actual, attempted, or intended harm of the offense. Id. § 1B1.3, comment, (n. 5); Id. § 2F1.1, comment. (n. 7). This measure of harm focuses on the victim’s loss. See United States v. Wilson, 993 F.2d 214, 217 (11th Cir.1993) (‘Victim’s direct loss” is a primary determinant of the appropriate sentence under § 2F1.1).

When considering the loss or harm caused by the fraudulent conduct, the sentencing court must make a reasonable estimate, given the available information. U.S.S.G. § 2F1.1, comment, (n. 8). Fraudulent schemes, however, come in various forms, and we must consider the nature of the scheme in determining what method is to be used to calculate the harm caused or intended. [4] With these general consider[*334] ations in mind, we proceed to consider the Ponzi scheme in the case subjudice.

If one were to set out the different types of fraud, at one end of the scale would be theft-like fraud where the perpetrator intends to keep the entire amount fraudulently obtained. [5] On the other end of the scale would be contract fraud where the perpetrator, while fraudulently obtaining the contract, intends to perform the contract and to cause no loss to the victim. See generally United States v. Kopp, 951 F.2d 521, 529 (3d Cir.1991) (discussing intents involved in different frauds). A Ponzi scheme falls somewhere in between. While the perpetrator fraudulently obtains the full amount of the “investment,” he or she has no intent to keep the entire amount. Indeed, the very nature of the scheme contemplates payments to earlier victims in order to sustain and conceal the fraudulent conduct.

In this case, the sentencing court conducted a detailed accounting of the losses incurred by each victim — a method which we shall call the “loss to losing victims” method. The amount of loss was calculated by totaling the net losses of all victims who lost all or part of the money they invested. This method takes into consideration the nature of a Ponzi scheme by holding a defendant fully accountable for all losses suffered by those victims who lose money, but does not allow the defendant to fully benefit from payments made to others. It does not reward a defendant who returns money in excess of an individual’s initial “investment” solely to entice additional investments and conceal the fraudulent conduct.

Appellant Orton advocates the “net loss” method, which estimates loss as the net loss to victims as a group. [6] Under this method, the defendant will, for sentencing purposes,

receive the full benefit of all of his return payments. The “net loss” method, however, focuses on the gain to the defendant, which ordinarily underestimates the loss. U.S.S.G. § 2F1.1, comment, (n. 8).

The “loss to losing victims” method, on the other hand, correctly focuses on the harm to the victims. The individuals who receive a “return” or break even on their “investments” are not victims for purposes of § 2F1.1. At most, they are unwilling pawns in the Ponzi scheme. These individuals may be exposed to a risk of harm by the Ponzi scheme, but the risk of harm should not be considered in estimating the loss under § 2F1.1. Under § 2F1.1, “the risk created enters into the determination of the offense level only insofar as it is incorporated into the base offense level. Unless clearly indicated by the guidelines, harm that is merely risked is not to be treated as the equivalent of harm that occurred.” U.S.S.G. § 1B1.3, comment, (n. 5).

Consistent with § 2F1.1, the sentencing court estimated the actual losses caused by the Ponzi scheme. In this case, the “loss to losing victims” method employed by the court results in a more accurate estimate of loss to victims, and we therefore reject the “net loss” method advocated by Appellant. We hold that the district court’s estimate of loss was reasonable and thus affirm.

We take this opportunity to address our concern that the Court’s opinion today might be read to require the “loss to losing victims” method in every Ponzi scheme case. This opinion does not stand for that proposition. While the district court’s detailed investigation is commendable, such an exhaustive inquiry is not required in every case involving a Ponzi scheme. The information available in this case allowed the sentencing[*335] court to accurately calculate the loss to each individual victim. Nonetheless, in estimating the loss in a Ponzi scheme, a sentencing court is not generally required to make detailed findings of individualized losses to each victim in every case. There are cases where it would be unduly cumbersome, potentially requiring large expenditures of time and resources to determine large amounts of detailed information. Such a rigid rule is not required by the Guidelines. All that is required is that the court “make a reasonable estimate of the loss, given the available information.” U.S.S.G. § 2F1.1, comment, (n. 8) (emphasis added). Where detailed information is not available, a detailed estimate is not required.

III. CONCLUSION

We hold that the sentencing court’s estimate of losses was correct. In eases where a defendant has committed fraud by using a Ponzi or pyramid scheme, taking money from victims and giving part of it to other victims in order to further the scheme, the sentencing court must estimate the actual or intended loss to the victims.

AFFIRMED.

1

. Orton also raises the issues of whether the sentencing court erred in finding that (1) Bill Downey was a vulnerable victim; (2) Sandra Anthony suffered foreseeable psychological harm and danger of insolvency; and (3) Orton used a special skill in committing the crimes. These issues are without merit.

2

. The "modus operandi of a Ponzi scheme is to use newly invested money to pay off old investors and convince them that they are 'earning profits rather than losing their shirts.' ” United States v. Holiusa, 13 F.3d 1043, 1048 n. 1 (7th Cir.1994) (Manion, J. dissenting) (citing Bosco v. Serhant, 836 F.2d 271, 274 (7th Cir.1987), cert. denied, 486 U.S. 1056, 108 S.Ct. 2824, 100 L.Ed.2d 925 (1988)). The scheme takes its name from "the notorious swindler, Charles Ponzi, who, starting in 1919, received $9,582,000 within a period of eight months by inducing investors to give him $100 for the promised repayment of $150.” Id. (citing United States v. Boula, 932 F.2d 651, 652 n. 1 (7th Cir.1991)).

3

. The presentence investigation report erroneously shows this amount to be $389,800.85. Apparently the $1,740.00 lost by Kim Simmons was omitted from the total because of a clerical error. For purposes of sentencing in this case, the difference is insignificant as both amounts fall within § 2Fl.l(b)(l)(J), "More than $350,000."

4

. Application note 8 specifically authorizes the consideration of the nature and extent of the fraud. U.S.S.G. § 2F1.1, comment, (n. 8). The Sentencing Commission is clearly aware that different types of fraud may call for different methods of calculation. See U.S.S.G. § 2F1.1, comment. (n. 7) (setting forth additional factors to be considered in determining the loss or intended loss in various types of fraud). Thus, while[*334] § 2F1.1 sets forth the general framework for calculating loss, we will examine the nature of this particular offense to determine what method and factors are to be used. See United States v. Shaffer, 35 F.3d 110, 114 (3d Cir.1994) (indicating that a court is compelled to estimate the loss based on the particular offense); United States v. Dickler, 64 F.3d 818, 825 (3d Cir.1995) (holding that § 2F1.1 and commentary require the method of calculating victim's loss to correspond to the nature of the defendant's conduct).

5

. Application Note 7 indicates that frequently loss in fraud cases will be the same as the loss in a theft case. U.S.S.G. § 2F1.1, comment, (n. 7). This observation is most accurate where the fraudulent intent is to retain the entire amount as would be the intent in theft cases.

6

. The "net loss” method also measures the "net gain” to the defendant.