Acceptance of Responsibility Under § 3E1.1: Unrelated Post-Plea Crime May Justify Denying a Reduction

Case: United States v. Chadwick Lemaine
Court: United States Court of Appeals for the Eleventh Circuit
Date: October 30, 2026
Opinion: Chief Judge William Pryor, joined by Judges Grant and Luck

1. Introduction

A guilty plea does not necessarily establish acceptance of responsibility when a defendant’s subsequent conduct contradicts his professed remorse. In this published decision, the Eleventh Circuit held that the text of Sentencing Guidelines § 3E1.1 permits a sentencing court to consider post-plea criminal conduct, including conduct unrelated to the offense of conviction, when deciding whether the defendant has clearly demonstrated acceptance of responsibility.

The decision is particularly significant because it grounds that authority in the guideline itself, rather than its commentary. The court therefore rejected the contention that earlier circuit decisions permitting consideration of subsequent criminal conduct had been displaced by the circuit’s restrictions on deference to Guidelines commentary.

Chadwick Lemaine pleaded guilty to possessing a firearm as a convicted felon. While awaiting sentencing on bond, he allegedly participated in an armed robbery. The district court found that he committed the robbery, denied an acceptance-of-responsibility reduction, and imposed an above-Guidelines sentence of 96 months’ imprisonment. Lemaine challenged the factual finding, the legal permissibility of considering the robbery under § 3E1.1, and the substantive reasonableness of his sentence. The Eleventh Circuit rejected each challenge.

2. Background and Summary of the Opinion

The firearm prosecution and release conditions

Officers discovered a firearm in Lemaine’s vehicle during a traffic stop. Because he had prior felony convictions, including armed burglary and grand theft of a firearm, a federal grand jury indicted him under 18 U.S.C. §§ 922(g)(1) and 924(a)(8).

Lemaine initially pleaded not guilty and obtained pretrial release subject to home detention. He later pleaded guilty without a plea agreement. At his change-of-plea hearing, the district court removed the home-detention condition but required ankle monitoring and twice warned that violating his release conditions could affect his sentence.

The robbery and supporting evidence

Shortly before sentencing, police arrested Lemaine for an October 20, 2024 robbery. The victim reported that two masked men pointed firearms at her and stole cash, jewelry, and her phone. Receipts later placed the stolen property’s value at approximately $97,000.

The evidence connecting Lemaine to the robbery included:

  • Ankle-monitor data placing him at the robbery location during the relevant period and tracing his departure immediately afterward.
  • Camera footage showing a white Mercedes-Benz sport-utility vehicle arriving at the same time as Lemaine’s ankle monitor. The vehicle belonged to the mother of his children.
  • Phone-location evidence linking Lemaine, his alleged accomplice, and the victim’s stolen phone to the robbery and its aftermath.
  • A tracking device later found on a vehicle the victim used. Its subscription, payment information, and associated accounts connected it to Lemaine.
  • Messages between Lemaine and his alleged accomplice discussing an imminent opportunity, the approaching sentencing date, and being “locked in for the weekend.”

The investigation did not recover the stolen property or firearms, and the robbery video did not reveal the firearms. The weapon evidence therefore depended on the victim’s account, relayed through Detective Gregory Nash.

The sentencing consequences

The initial presentence report recommended an acceptance-of-responsibility reduction and calculated an advisory imprisonment range of 37 to 46 months. After the robbery allegation, the revised report omitted that reduction and calculated a range of 51 to 63 months.

The prosecution then requested an upward variance, described by reference to a four-level increase and a corresponding range of 77 to 96 months. That request did not replace the revised advisory Guidelines range of 51 to 63 months; it supplied a framework for the requested sentence above that range.

The district court denied the reduction and imposed 96 months’ imprisonment followed by three years of supervised release. It considered the robbery overwhelmingly established and viewed the messages as evidence that Lemaine planned a criminal “last hurrah” before imprisonment.

The appellate holdings

  1. No reversible burden-of-proof error: Although the district court incorrectly suggested that bond revocation and sentencing involved the same burden, its findings showed that it actually applied at least the preponderance standard required at sentencing.
  2. No clear error in finding armed robbery: The combined circumstantial evidence established participation, and the victim’s account supported the finding that actual firearms were used.
  3. No error under § 3E1.1: Subsequent criminal conduct could undermine Lemaine’s attempt to demonstrate genuine acceptance of responsibility for his firearm offense.
  4. A substantively reasonable sentence: The same robbery could support both denying the reduction and varying upward, and the district court adequately connected the variance to the statutory sentencing factors.

The court affirmed Lemaine’s conviction and sentence.

3. Analysis

A. Precedents Cited and Their Influence

Preservation and standards of appellate review

United States v. Innocent, 977 F.3d 1077, 1081 (11th Cir. 2020), supplied the rule that issues first raised on appeal receive plain-error review. Together with United States v. Olano, 507 U.S. 725, 734 (1993), it also supplied the requirement that a plain error be “clear” or “obvious.” These authorities governed Lemaine’s newly articulated challenges to the sentencing burden of proof and the permissible scope of § 3E1.1.

United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006), explained why those legal arguments were unpreserved: an objection must identify its legal basis clearly enough to inform the district court. Lemaine’s objection to the evidentiary sufficiency of the robbery finding did not preserve a separate objection to the burden of proof.

United States v. Coats, 8 F.4th 1228, 1261–62 (11th Cir. 2021), established clear-error review for preserved factual objections. It therefore governed whether the evidence sufficiently supported the armed-robbery finding. United States v. Boone, 97 F.4th 1331, 1339 (11th Cir. 2024), supplied abuse-of-discretion review for substantive sentencing reasonableness.

Finally, United States v. Pielago, 135 F.3d 703, 709 (11th Cir. 1998), supplied the straightforward proposition that there can be no plain error without an underlying error. Because the court found that § 3E1.1 permitted consideration of the robbery, it did not need to proceed through the remaining plain-error requirements.

Proof, factual findings, and sentencing evidence

United States v. Shenberg, 89 F.3d 1461, 1476 (11th Cir. 1996), established that the prosecution must prove sentencing facts by a preponderance of the evidence. United States v. Watkins, 10 F.4th 1179, 1184–85 (11th Cir. 2021) (en banc), defined that standard as proof making a proposition more likely true than not. Together, they allowed the panel to distinguish the applicable legal standard from the district court’s mistaken terminology.

Dunn v. Comm'r, Ala. Dep't of Corr., 179 F.4th 1277, 1322 (11th Cir. 2026), supported treating a misstatement as harmless when the record showed that it did not produce an operative legal error. The district court had expressly found the evidence “well beyond the 51 percent mark” at revocation and adopted that level of proof at sentencing.

United States v. Brennan, 326 F.3d 176, 200 & n.7 (3d Cir. 2003), supplied a closely related sentencing analogy. There, mistaken statements about the burden did not require reversal because the court ultimately placed the burden correctly and, if anything, demanded more proof than necessary. Similarly, the district court’s statements that Lemaine’s participation was established “overwhelmingly” reinforced the conclusion that it had not actually relied on mere probable cause.

United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010), required a “definite and firm conviction” of mistake before reversing a factual finding. United States v. Matthews, 3 F.4th 1286, 1289 (11th Cir. 2021), complemented that rule: a plausible account of the evidence, considered as a whole, must stand. These authorities prevented the appeal from becoming a fresh weighing of the competing factual inferences.

United States v. Kennedy, 146 F.4th 1054, 1072 (11th Cir. 2025), explained that reliable hearsay is admissible at sentencing and that explicit reliability findings are not invariably necessary. It supported consideration of Detective Nash’s account of the victim’s statements. Its relevance was evidentiary; it did not eliminate the requirement that the hearsay be reliable.

United States v. Hunt, 187 F.3d 1269, 1270–71 (11th Cir. 1999), established that failure to recover a firearm does not necessarily prevent a finding that a real firearm was used. That case involved eyewitness testimony and visual evidence sufficient even under the beyond-a-reasonable-doubt standard. Lemaine’s case lacked comparable video confirmation of a weapon, but the panel used the decision for the narrower proposition that physical recovery is not indispensable; the victim’s account could support the finding under the lower sentencing standard.

Acceptance of responsibility and the role of commentary

United States v. Williams, 627 F.3d 839, 844 (11th Cir. 2010), described § 3E1.1 as rewarding contrition and a demonstrated desire to reform. It supported the panel’s conclusion that acceptance of responsibility concerns more than a verbal acknowledgment of legal guilt.

United States v. Scroggins, 880 F.2d 1204, 1215–16 (11th Cir. 1989), upheld consideration of a drug defendant’s post-plea drug use. More directly, United States v. Pace, 17 F.3d 341, 343–44 (11th Cir. 1994), permitted consideration of subsequent criminal conduct unrelated to the conviction. The latter decision also explained that the 1992 amendment to § 3E1.1 did not remove sentencing courts’ discretion to consider continued criminal activity.

Lemaine argued that United States v. Dupree, 57 F.4th 1269, 1279 (11th Cir. 2023) (en banc), displaced those precedents because they relied on Guidelines commentary. That decision prohibits deference to commentary before determining that the guideline itself is ambiguous. The panel answered by interpreting § 3E1.1 independently and concluding that the earlier decisions were consistent with its text. Accordingly, the commentary-deference restriction did not abrogate them.

United States v. Smith, 22 F.4th 1236, 1242 (11th Cir. 2022), supplied the ordinary clear-error standard for reviewing denial of an acceptance reduction. United States v. Knight, 562 F.3d 1314, 1322 (11th Cir. 2009), emphasized the substantial deference owed to such decisions: they should not be disturbed unless without foundation. These decisions supported the district court’s fact-specific conclusion after the panel resolved the legal question about what conduct could be considered.

The court also invoked Puckett v. United States, 556 U.S. 129, 143 (2009), for its observation about the implausibility of requiring an acceptance benefit for a defendant who plainly continues a criminal life. That observation reinforced the panel’s interpretation, but the opinion’s principal foundation remained the guideline’s language.

The historical split over admissions of additional conduct

The opinion discussed an earlier disagreement over conditioning an acceptance reduction on admissions concerning additional criminal conduct. United States v. Frierson, 945 F.2d 650, 662–64 (3d Cir. 1991); United States v. Gordon, 895 F.2d 932, 936 (4th Cir. 1990); United States v. Mourning, 914 F.2d 699, 705–06 (5th Cir. 1990); and United States v. Ignancio Munio, 909 F.2d 436, 439–40 & n.4 (11th Cir. 1990), permitted consideration of a defendant’s denial of relevant conduct when evaluating acceptance.

By contrast, United States v. Perez-Franco, 873 F.2d 455, 463–64 (1st Cir. 1989); United States v. Oliveras, 905 F.2d 623, 626–29 (2d Cir. 1990); and United States v. Piper, 918 F.2d 839, 840–41 (9th Cir. 1990), treated such conditions as implicating the Fifth Amendment privilege against self-incrimination and interpreted the guideline to avoid that problem.

These authorities mattered as amendment history, not as direct answers to Lemaine’s appeal. They explained why the guideline was revised to require acceptance “for his offense.” The panel distinguished requiring an admission of additional wrongdoing from considering independently established wrongdoing as evidence that claimed remorse is not genuine.

Upward variances and substantive reasonableness

Gall v. United States, 552 U.S. 38, 51 (2007), required deference to a district court’s judgment that the § 3553(a) factors collectively justify an outside-Guidelines sentence. United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc), supplied the corresponding reversal threshold: a clear error of judgment producing a sentence outside the range of reasonable sentences supported by the facts.

United States v. Taylor, 997 F.3d 1348, 1355 (11th Cir. 2021), directly defeated Lemaine’s claim of impermissible double counting. It permits an upward variance based on conduct already considered in calculating the Guidelines range. It also treats a sentence well below the statutory maximum as an indicator of reasonableness. Both propositions supported affirmance, although neither makes every below-maximum sentence reasonable.

B. Legal Reasoning

1. The court examined the burden actually applied, not an isolated statement

For the new-offense component of bond revocation, 18 U.S.C. § 3148(b)(1)(A) permits reliance on probable cause. At sentencing, however, the prosecution had to establish the disputed conduct by a preponderance of the evidence. The district court therefore misstated the law when it suggested that the burdens were the same.

Nevertheless, the record showed that it had already demanded proof exceeding the preponderance threshold at the revocation hearing and carried that standard forward into sentencing. Its later expressions of overwhelming confidence further undermined any suggestion that the robbery finding rested only on probable cause.

The appellate court did not equate the two legal standards. Instead, it distinguished an inaccurate description of the standard from actual application of an insufficient standard. On this record, the former did not establish reversible error.

2. Circumstantial evidence supported the robbery finding

The panel considered the evidence cumulatively. Ankle-monitor records, vehicle movements, telephone locations, the tracking device, and incriminating messages reinforced one another. The failure to recover stolen property did not negate that combined showing.

The firearm component required separate attention. Proof of a robbery alone would not establish that it was armed within the relevant Florida provision. Although the district court discussed the possibility that even an unarmed robbery would remain serious misconduct, the appellate court independently upheld the armed finding based on the victim’s description of the guns and her fear of being killed.

Thus, the ruling does not dispense with the weapon element or treat fear alone as proof of a real gun. It holds that the credited account supplied sufficient evidence here, notwithstanding the absence of a recovered weapon.

3. Section 3E1.1 distinguishes the offense requiring acceptance from the evidence showing acceptance

The central guideline language requires that a defendant:

“clearly demonstrates acceptance of responsibility for his offense”

The court assigned a distinct function to each part of that language:

  • “Clearly” requires an unequivocal showing rather than an uncertain or merely formal expression.
  • “Demonstrates” permits examination of conduct as well as words.
  • “Acceptance of responsibility” requires recognition of moral accountability for the offense, not simply acknowledgment that the prosecution can establish legal guilt.
  • “For his offense” identifies the wrongdoing for which acceptance is required; it does not restrict all evidence bearing on whether that acceptance is sincere.

That final distinction resolves the main interpretive dispute. A defendant need not accept responsibility for every other crime to obtain the reduction. But other behavior can reveal that his claimed acceptance of responsibility for the conviction offense is unconvincing.

The court supported its reading with ordinary and legal dictionaries and principles of textual interpretation. It also rejected an interpretation that would make “clearly” largely redundant by treating a guilty plea and a minimal statement of remorse as sufficient in themselves.

This is an evidentiary permission, not a mandatory rule that every later offense defeats acceptance. The opinion leaves sentencing courts to determine how strongly particular conduct bears on the sincerity of the defendant’s acceptance.

4. Amendment history did not restrict consideration of subsequent conduct

The guideline originally referred to acceptance for “the offense of conviction,” then to “his criminal conduct,” and ultimately to “his offense.” Lemaine relied on the narrowing final formulation.

The court concluded that the amendment addressed whether defendants had to admit additional criminal conduct, particularly given self-incrimination concerns. It did not establish an evidentiary prohibition against considering later crimes proven through other sources.

The distinction is between compelled acknowledgment and demonstrated behavior. The court’s decision concerned the latter; it did not hold that defendants must confess to uncharged crimes to obtain a reduction.

5. The textual analysis preserved earlier circuit precedent after the commentary-deference decision

Rather than relying exclusively on the prior-panel-precedent rule, the court showed why the earlier decisions permitting consideration of subsequent crime fit the guideline’s own language. The restriction on commentary deference therefore did not undermine their result.

This approach is significant but limited. The opinion does not declare every commentary-based precedent immune from reconsideration. It establishes that these particular precedents remain sound because their rule is independently supported by § 3E1.1’s text.

Because the court found no error, it expressly declined to decide the government’s alternative invited-error argument arising from defense counsel’s statements below.

6. The same conduct could inform both the Guidelines calculation and the ultimate sentence

Denying an acceptance reduction and imposing an upward variance serve different analytical functions. The first determines whether the defendant qualifies for a mitigating Guidelines adjustment. The second determines the appropriate sentence under 18 U.S.C. § 3553(a).

The robbery supported several statutory considerations:

  • History and characteristics: It provided additional evidence of Lemaine’s criminal behavior and dangerousness.
  • Respect for law: Committing a serious offense while on release, after explicit warnings, supported a stronger sentence.
  • Public protection: The apparent planning and willingness to commit another robbery shortly before sentencing supported concern about future crimes.

The 96-month sentence was also substantially below the 180-month statutory maximum. That comparison reinforced, rather than replaced, the individualized § 3553(a) analysis.

C. Potential Impact

Continued criminal conduct remains relevant after a guilty plea

The decision confirms that a plea does not secure an acceptance reduction regardless of later behavior. Defense counsel must assess the client’s conduct through sentencing, while prosecutors may present reliable evidence of subsequent wrongdoing even without a resulting conviction.

Importantly, the appellate court approved a sentencing finding about the robbery, not a separate robbery conviction. Its ruling should not be read as substituting the sentencing burden for the proof required in a criminal prosecution.

Unrelated conduct is not categorically excluded

Future defendants cannot defeat consideration of post-plea crime merely by showing that it differs from the conviction offense. The relevant question is whether that conduct undermines the demonstrated sincerity of acceptance. Conversely, courts must still explain the conduct’s significance rather than treating any allegation as automatically disqualifying.

The decision strengthens a text-based foundation for existing doctrine

The principal doctrinal contribution is clarification rather than invention. Earlier circuit decisions already permitted consideration of subsequent, unrelated criminal conduct. This opinion explains why that rule survives the circuit’s revised approach to Guidelines commentary.

Specific objections remain essential

The opinion illustrates the consequences of failing to distinguish factual objections from legal ones. Challenging whether a robbery occurred did not preserve an objection to the standard used to find it. Likewise, seeking an acceptance reduction did not preserve the distinct contention that unrelated conduct was legally irrelevant.

Substantial variances remain possible, but require justification

The decision permits sentencing courts to consider the same misconduct at more than one stage without automatically engaging in impermissible double counting. It does not authorize unrestricted sentence increases: reliable factual findings, correct Guidelines treatment, and a reasoned statutory sentencing analysis remain necessary.

4. Complex Concepts Simplified

Acceptance of responsibility
A Guidelines reduction for a defendant who convincingly shows that he accepts responsibility for his offense. Pleading guilty is relevant, but later conduct may contradict the claimed acceptance.
Probable cause and preponderance of the evidence
Probable cause requires a sufficient basis to believe an offense occurred. Preponderance requires the factfinder to conclude that the disputed proposition is more likely true than not. The latter governed the robbery finding at sentencing.
Plain error
A restrictive appellate standard for arguments not properly raised below. A clear or obvious legal error is necessary; disagreement with the district court is not enough.
Clear error
Deferential review of factual findings. An appellate court does not reverse merely because it might have weighed the evidence differently.
Guidelines commentary
Explanatory material accompanying a sentencing guideline. Under the circuit precedent discussed here, courts cannot defer to that material without first finding the guideline itself ambiguous.
Upward variance
A sentence above the advisory Guidelines range, justified by the statutory sentencing factors. It is analytically distinct from recalculating the range or applying a Guidelines departure.
Reliable hearsay at sentencing
A sufficiently trustworthy out-of-court statement may inform sentencing even when the original speaker does not testify. Admission does not make every such statement automatically reliable.
Substantive reasonableness
Whether the sentence’s length falls within the range reasonably justified by the facts and statutory sentencing purposes, rather than whether the appellate judges would have chosen the same sentence.

5. Conclusion

The Eleventh Circuit confirmed that § 3E1.1 requires demonstrated acceptance, not merely the formal act of pleading guilty. Unrelated post-plea criminal conduct may undermine that showing because the phrase “for his offense” limits what the defendant must accept responsibility for, not all evidence relevant to whether his acceptance is genuine.

By grounding that conclusion in the guideline’s text, the court preserved existing circuit doctrine without depending on commentary deference. The decision also confirms that sufficiently proven misconduct may support both denial of the reduction and an upward variance, provided the sentence remains justified under § 3553(a).