Acceptance Means More Than a Plea: Sixth Circuit Authorizes Use of Post‑Indictment Jailhouse Drug Misconduct and False Denials to Defeat §3E1.1—Even If Not §1B1.3 Relevant Conduct; Explicit Bostic Concurrence Invokes Invited Error

Introduction

In United States v. Corwin Monte Jett, Jr., the Sixth Circuit affirmed a sentence that denied the defendant a reduction for acceptance of responsibility under U.S.S.G. §3E1.1 and declined to reach a procedural reasonableness challenge on the ground of invited error. The case presents two practical and doctrinally significant holdings:

• Post-indictment jailhouse drug misconduct and false denials to probation can defeat a §3E1.1 reduction even if that misconduct is not “relevant conduct” under §1B1.3 and involves a different drug than the offense of conviction.
• An express, on-the-record concurrence in response to the sentencing court’s Bostic follow-up—affirming that the court addressed all non-frivolous arguments—invokes invited error (or waiver) and forecloses appellate review of a claim that the court failed to address a mitigation argument.

Against a backdrop of substantial drug-trafficking evidence from 2020, a long indictment delay, and a year of apparent stability in Atlanta, Jett’s subsequent in-custody conduct—attempting to smuggle synthetic cannabinoids (K2), “fishing” for contraband, possessing K2, and then denying involvement to probation—proved dispositive. The panel (Judge Larsen, joined by Judges White and Murphy) reaffirmed that acceptance requires more than a guilty plea, and that a defendant’s credibility and post-offense choices can outweigh plea-stage contrition. Judge White concurred, emphasizing that United States v. Carter controls the invited-error analysis.

Summary of the Opinion

The court affirmed the district court on two fronts:

1. Acceptance of Responsibility (§3E1.1): Applying the clear-error standard with “great deference,” the Sixth Circuit upheld the denial of an acceptance-of-responsibility reduction. The district court permissibly relied on:
   • Jett’s post-indictment jailhouse drug conduct (K2 smuggling attempts, “fishing,” possession in cell).
   • His persistent false denials to the probation officer despite “extremely persuasive” evidence.
   The court rejected the argument that §3E1.1(a)’s reference to the “offense” confines the inquiry to the elements or facts of the offense of conviction, or to conduct qualifying as “relevant conduct” under §1B1.3. Acceptance is assessed holistically; ongoing drug misconduct and dishonesty are incompatible with true acceptance, even when the later conduct involves a different drug.
2. Procedural Reasonableness / Variance Argument: The panel declined to reach Jett’s claim that the district court inadequately addressed his argument for a downward variance based on nearly three years of good behavior. Because defense counsel answered “Yes, Your Honor” when asked whether the court had addressed all non-frivolous arguments, Carter controlled: the response constituted invited error (or waiver), foreclosing review absent manifest injustice—an argument Jett did not make.

The sentence—300 months’ imprisonment, a 60-month downward variance from the bottom of the advisory range after the court found the guideline recommendation “too much”—was therefore affirmed in full.

Analysis

Precedents Cited and Their Influence

The court’s reasoning is anchored in a robust line of Sixth Circuit and related caselaw:

• Standard of Review for §3E1.1:
  • United States v. Merritt, 102 F.4th 375 (6th Cir. 2024): Reaffirms that acceptance-of-responsibility determinations are reviewed for clear error with “great deference,” even when the dispute is application of the guideline to essentially undisputed facts.
  • United States v. Turner, 324 F.3d 456 (6th Cir. 2003); United States v. Roberts, 243 F.3d 235 (6th Cir. 2001): The determination will not be overturned unless “without foundation.”
  • U.S.S.G. §3E1.1 cmt. n.5: Recognizes the sentencing judge’s unique vantage point to assess sincerity.
• Plea Does Not Compel Reduction:
  • United States v. Wolfe, 71 F.3d 611 (6th Cir. 1995); United States v. Carroll, 893 F.2d 1502 (6th Cir. 1990): A guilty plea is not an automatic ticket to §3E1.1 credit.
  • §3E1.1 cmt. n.3: A plea is “significant evidence” but can be outweighed by inconsistent conduct.
• Post-Offense Drug Conduct as Disqualifying:
  • United States v. Reed, 951 F.2d 97 (6th Cir. 1991): Those who continue their crimes in jail show “cynical and remorseless contempt for law.”
  • United States v. Snyder, 913 F.2d 300 (6th Cir. 1990); United States v. Clements, 142 F. App’x 223 (6th Cir. 2005); United States v. Askew, 173 F.3d 856 (6th Cir. 1999) (table); United States v. Redmond, 475 F. App’x 603 (6th Cir. 2012): Jailhouse drug seeking or smuggling defeats acceptance.
  • United States v. Walker, 182 F.3d 485 (6th Cir. 1999); United States v. Zimmer, 14 F.3d 286 (6th Cir. 1993); United States v. Salyers, 661 F. App’x 862 (6th Cir. 2016); United States v. Salabarria, 2021 WL 5712151 (6th Cir. 2021); United States v. Searer, 636 F. App’x 258 (6th Cir. 2016); United States v. Cadieux, 846 F. App’x 389 (6th Cir. 2021); United States v. Arzola, 528 F. App’x 487 (6th Cir. 2013); United States v. Humphreys, 108 F. App’x 329 (6th Cir. 2004): Continued drug use or trafficking while on bond undermines acceptance.
  • United States v. Sullivan, 134 F. App’x 77 (6th Cir. 2005); United States v. Love, 518 F. App’x 427 (6th Cir. 2013); United States v. Olvera, 954 F.2d 788 (2d Cir. 1992): Different drugs can still be “of the same type” for acceptance purposes; later cocaine or marijuana conduct can negate acceptance for an ecstasy or cocaine offense.
• Temporal and Procedural Relevance:
  • United States v. Harper, 246 F.3d 520 (6th Cir. 2001), overruled on other grounds: Post-indictment conduct is fair game in assessing acceptance.
  • United States v. Morrison, 983 F.2d 730 (6th Cir. 1993): Acceptance is about “true remorse,” not simply the entry of a plea.
• Scope of §3E1.1 and the Commentary:
  • The panel stresses that application notes “can only support the plain meaning” of the guidelines. The district court “had no need to rely on” Note 1(A), though it cited it as an example—consistent with the Sixth Circuit’s broader approach limiting commentary that purports to expand guideline text.
  • United States v. Mitchell, 107 F.4th 534 (6th Cir. 2024): Misconduct in jail is a proper sentencing consideration as part of the defendant’s history and characteristics and to promote respect for the law.
• Dishonesty to Probation / Obstruction:
  • U.S.S.G. §3C1.1 cmt. 4(h): Providing materially false information to a probation officer can constitute obstruction; §3E1.1 cmt. n.4: Obstruction ordinarily indicates lack of acceptance.
  • United States v. Wilson, 197 F.3d 782 (6th Cir. 1999); United States v. Rathod, 826 F. App’x 527 (6th Cir. 2020): Upholding obstruction and denial of acceptance where defendants lied to probation about material matters.
• Limits: “General criminal disposition” is not enough:
  • United States v. Banks, 252 F.3d 801 (6th Cir. 2001): A court may not deny acceptance based on unrelated post-plea conduct that merely shows a “general criminal disposition” (e.g., assault and property damage unrelated to drug/firearm convictions). The panel distinguishes Banks because Jett’s post-indictment drug activity is of the same type and bears directly on remorse for a drug-trafficking offense.
• Invited Error and the Bostic Question:
  • United States v. Carter, 89 F.4th 565 (6th Cir. 2023): When defense counsel affirmatively concurs that the court has addressed all non-frivolous arguments, the invited-error doctrine (or waiver) forecloses appellate review of a claim that the court failed to address a mitigation argument, absent manifest injustice.
  • United States v. Bostic, 371 F.3d 865 (6th Cir. 2004): Requires the court to ask parties for objections at the end of sentencing to promote error correction in real time. The panel explains that the specific, affirmative concurrence goes beyond Bostic and triggers invited error.
  • United States v. Allen, 93 F.4th 350 (6th Cir. 2024); United States v. Thomas‑Mathews, 81 F.4th 530 (6th Cir. 2023): Distinguished. Those cases applied plain-error review where there was not the same explicit, affirmative concurrence that Carter treats as invited error. Carter controls.
  • United States v. Cogdill, 130 F.4th 523 (6th Cir. 2025): Published opinions bind later panels; hence, Carter governs.
  • United States v. Ramamoorthy, 949 F.3d 955 (6th Cir. 2020): Plain error is a demanding standard; here, the panel never reached it because invited error applied.
  • Wright v. Spaulding, 939 F.3d 695 (6th Cir. 2019): Clarifies what constitutes a holding; helps explain why Thomas‑Mathews did not displace Carter.

Legal Reasoning

The panel’s analysis proceeds in two principal steps.

1) What §3E1.1(a) Means by “Clearly Demonstrates Acceptance of Responsibility”

The court undertakes a textual analysis of “acceptance of responsibility,” recognizing that the guideline does not define the phrase. The opinion canvasses ordinary-meaning sources and—more importantly—the circuit’s own caselaw, concluding that acceptance requires more than the act of pleading guilty. It encompasses genuine remorse and a demonstrated turning away from the criminal conduct and its enabling lifestyle. That understanding is consistent with the guideline’s illustrative factors (e.g., voluntary termination of criminal conduct, post-offense rehabilitation, timeliness).

From this vantage point, the court holds that judges may consider post-offense conduct—including post-indictment misconduct in jail—that undermines the sincerity of the defendant’s professed acceptance. The analysis is not confined to §1B1.3 “relevant conduct.” Although Application Note 1(A) uses “relevant conduct” in the §1B1.3 sense to illustrate when false denials are inconsistent with acceptance, the panel emphasizes two limits:

• Application notes are non-binding and cannot expand the guideline’s plain meaning; they can only illuminate it.
• Even if Note 1(A) does not by its own terms reach non‑§1B1.3 conduct, the guideline’s text permits consideration of other conduct that bears on whether acceptance has truly been demonstrated.

Applying that framework, the court holds that Jett’s in-custody drug activities—smuggling and possession of K2 while awaiting sentencing on a drug-trafficking charge—are squarely relevant to the §3E1.1 inquiry, notwithstanding:

• The drug was different (K2 vs. methamphetamine): Sixth Circuit precedent treats different controlled substances as sufficiently “of the same type” for assessing acceptance in drug cases.
• The conduct was temporally remote from the offense but occurred post‑indictment and pre‑plea: Post‑indictment behavior remains highly probative of remorse.
• The possibility that the specific jail conduct may not qualify as §1B1.3 relevant conduct: The district court could consider it anyway under §3E1.1’s broader, text-driven inquiry into acceptance.

The court adds an independent ground: lying to the probation officer about a materially relevant matter undermines acceptance and can constitute obstruction (ordinarily incompatible with §3E1.1 credit). Even if no obstruction enhancement is imposed, the dishonesty counts heavily against acceptance.

2) Invited Error Bars the Procedural Challenge

On the mitigation argument (three years of law-abiding behavior in Atlanta), the panel does not reach the merits. The district judge asked two questions at the close of sentencing:

1. The standard Bostic question: any objections not previously raised? Defense counsel said no.
2. A follow-up: is counsel satisfied the court addressed all non-frivolous arguments? Defense counsel said yes.

Under Carter, the affirmative concurrence constitutes invited error (or waiver), which forecloses appellate review absent a showing of manifest injustice. Jett made no such showing. The panel distinguishes cases applying plain-error review (Allen, Thomas‑Mathews) because they did not present the same clear, affirmative concurrence that Carter treats as dispositive. The court underscores the institutional purpose of the Bostic colloquy—allowing the district court to correct potential errors “on the spot”—and enforces the preservation requirement strictly where counsel explicitly assures the court that all arguments were addressed.

Impact and Practical Significance

A. Acceptance-of-Responsibility Litigation in Drug Cases

• Defense teams should treat all post-offense drug-related conduct—including use, possession, distribution attempts, and contraband schemes while on bond or in custody—as highly material to §3E1.1. Different drugs will not insulate the conduct from consideration.
• False denials to probation are especially damaging; they risk both an obstruction enhancement and forfeiture of acceptance credit.
• The opinion’s explicit recognition that courts need not cabin the §3E1.1 inquiry to §1B1.3 “relevant conduct” helps prosecutors rely on a broader array of post-offense behavior to contest acceptance and helps courts articulate reasons without over-reliance on commentary.
• Conversely, defendants seeking acceptance should marshal evidence of sustained, demonstrable withdrawal from criminal associations, treatment efforts, and verifiable compliance, and should avoid categorical “plain meaning” arguments that seek to wall off post-offense behavior from the analysis.

B. Sentencing Procedure and Preservation

• Do not reflexively say “Yes, Your Honor” to the court’s follow-up question about whether it has addressed all non-frivolous arguments if you intend to preserve a procedural-reasonableness claim. Counsel should politely state that a particular argument remains unaddressed and the grounds for the objection.
• Carter has real teeth. This case reaffirms that an explicit concurrence can foreclose appellate review altogether under invited error or waiver.
• If a party believes the court overlooked an argument (e.g., a variance based on sustained rehabilitation), counsel should request a brief opportunity to be heard or ask the court to expressly address the factor on the record.

C. Commentary and Text Post-Havis/Kisor Era

While not citing Havis or Kisor, the panel’s statement that “application notes can only support the plain meaning of the guidelines” fits the Sixth Circuit’s current approach to guideline commentary. District courts can and should resolve §3E1.1 issues from the guideline’s text and structure, using the notes as illustrative rather than dispositive. This opinion is a practical example: the judge said there was “no need to rely” on the application notes to deny the reduction, even as Note 1(A) supplied a familiar analytic path.

Complex Concepts Simplified

• Acceptance of Responsibility (§3E1.1): A potential 2–3 level reduction in the advisory guideline range if a defendant clearly shows true remorse and accountability for the offense. A guilty plea is helpful but not dispositive. Conduct inconsistent with remorse—like new criminal conduct or material lies—can nullify it.
• Relevant Conduct (§1B1.3): A technical term for conduct used to calculate the guideline range (e.g., acts during the offense, in preparation for it, to avoid detection, or part of a common scheme/course of conduct). Not all sentencing-relevant behavior qualifies as “relevant conduct” in this sense. Here, the Sixth Circuit says §3E1.1 does not require courts to ignore non‑§1B1.3 behavior when judging acceptance.
• Application Notes vs. Guideline Text: Commentary may interpret but cannot expand the guideline. Courts may consult notes for examples but are anchored by the text.
• Invited Error / Waiver / Forfeiture:
  • Waiver: Intentionally relinquishing a known right (no appellate review).
  • Invited Error: Inducing or explicitly concurring in the alleged error (generally forecloses review unless manifest injustice).
  • Forfeiture: Failing to timely assert a right (reviewed for plain error).
  • Answering “Yes, Your Honor” to the court’s follow-up question that it addressed “all non-frivolous arguments” is invited error under Carter.
• The Bostic Question: At the end of sentencing, the court must ask whether the parties have any objections not previously raised. This is designed to permit immediate correction and proper preservation for appeal. Many judges also ask a follow-up about whether all non‑frivolous arguments were addressed; an affirmative answer can be outcome-determinative on appeal.
• “Fishing” for Contraband in Jail: A jailhouse technique using lines or makeshift devices to pass or retrieve contraband between pods or cells—an example here of continued drug involvement post-indictment.
• K2 (Synthetic Cannabinoids): A synthetic drug often smuggled into detention facilities via papers, cards, or documents infused with the substance—relevant here as the medium of Jett’s post-indictment drug misconduct.
• Clear Error Review: A deferential standard. The appellate court asks whether it is left with a definite and firm conviction that a mistake has been made; acceptance-of-responsibility findings receive “great deference” because district judges observe defendants first-hand.

Conclusion

United States v. Jett delivers two concrete, practice-shaping directives. First, acceptance of responsibility under §3E1.1 is not confined to the boundaries of §1B1.3 relevant conduct or the four corners of the offense of conviction. It is a holistic assessment of remorse and changed behavior. Post-indictment drug misconduct—even with a different drug—and materially false denials to probation are squarely inconsistent with acceptance. This reaffirms a durable Sixth Circuit line: a plea is significant evidence, but it is not the end of the inquiry.

Second, preservation matters. An express, on-the-record concurrence that the court addressed all non-frivolous arguments invokes invited error or waiver under Carter and forecloses appellate review absent manifest injustice. Defense counsel must respond to the sentencing court’s closing colloquy with precision to preserve procedural claims.

The opinion thus strengthens doctrinal clarity on two fronts—substantive guideline application and sentencing procedure—while offering concrete guidance to practitioners: demonstrate and document authentic rehabilitation; avoid any post-offense misconduct that undercuts remorse; be scrupulously truthful with probation; and preserve objections with care at sentencing. The Sixth Circuit’s message is unambiguous: acceptance of responsibility means more than words, and preservation requires more than silence—or a reflexive “yes.”