Defense attorneys make the argument all of the time -- hold the client responsible for the actual loss in the case, not the "intended" loss. The Third Circuit raised this interesting point about the issue in a case where a defendant made about $30,000 but the "intended" loss, according to the district court, was $36 million:
Under a Guidelines comment, a court must ... identify the greater figure, the actual or intended loss, and enhance the defendant’s offense level accordingly. Only this comment, not the Guidelines’ text, says that defendants can be sentenced based on the losses they intended. By interpreting “loss” to mean intended loss, it is possible that the commentary “sweeps more broadly than the plain text of the Guideline.” United States v. Nasir, 982 F.3d 144, 177 (3d Cir. 2020) (en banc) (Bibas, J., concurring). But Kirschner assumes the comment is correct, and so we will too.
I haven't seen this argument before, which I'm sure will be making its way into all sentencing briefs and appeals going forward. Let's hope some more sensibility comes around for these crazy loss calculations. By the way, the 3rd Circuit reversed the loss finding on other grounds and remanded to the district court for a fuller hearing and analysis.