Affirmative Sentencing Choices Waive Appellate Challenges, and Counterfeit-Drug Loss May Include Buyers’ Full Payments

A. The Framework of Review and the Importance of the Earlier Conspirator Appeal

The opinion distinguishes legal interpretation, factual findings, and the overall sentencing process. Under United States v. Battaglia, 624 F.3d 348, 351 (6th Cir. 2010), legal questions concerning Guidelines calculations receive de novo review, while underlying factual findings receive clear-error review. United States v. Smith, 749 F.3d 465, 488 (6th Cir. 2014), supplies the corresponding framework for forfeiture questions. Under United States v. Simpson, 138 F.4th 438, 445 (6th Cir. 2025), preserved procedural-reasonableness challenges otherwise receive abuse-of-discretion review.

These distinctions matter. An appellate court independently interprets a Guideline, but it does not freely replace the sentencing judge’s reasonable factual inferences with its own. Nor does it reach an otherwise available legal issue when the defendant has waived it.

The most consequential factual and doctrinal precedent was United States v. Wala, 166 F.4th 583 (6th Cir. 2026). That decision affirmed the conspiracy leader’s 90-month sentence and rejected challenges concerning counterfeit-drug loss and risks to human life. It established that this operation involved drugs falsely presented as approved products and supported valuing the fraud from the deceived purchaser’s perspective. It also established the operation’s serious health risks.

The present opinion nevertheless required individualized consideration. Wala’s awareness of danger, for example, did not automatically establish Chirinos de Urena’s awareness. The court therefore examined evidence concerning her own participation rather than simply transferring findings about the conspiracy leader to another defendant.

B. Choosing an Earlier Guidelines Edition Can Waive a Later Appellate Challenge

The ordinary rule and the constitutional qualification

Guidelines § 1B1.11(a) ordinarily directs sentencing courts to use the manual in effect at sentencing. Because the defendants were sentenced in October 2025, the ordinarily applicable edition was the 2024 manual; the 2025 manual did not take effect until November 1, 2025.

That rule has an important qualification. A later manual should not be used when doing so would violate the constitutional prohibition against retroactively increasing punishment. Peugh v. United States, 569 U.S. 530, 532–33 (2013), recognizes that retrospective application of more severe Guidelines can create an ex post facto problem, notwithstanding their advisory status.

The district court apparently sought to avoid that concern because the crimes occurred between 2017 and 2022. The 2024 amendment expressly incorporating actual and intended loss into the Guidelines text was potentially significant. The court therefore used the 2023 manual, which was substantively indistinguishable for these defendants from the 2021 manual identified in their plea agreements.

The Sixth Circuit did not decide that constitutional concerns necessarily required the earlier manual. Instead, it held that the defendants’ affirmative litigation choices foreclosed their appellate demand for the newer edition.

Why this was waiver rather than mere silence

The defendants did more than fail to object. Their plea agreements recommended an earlier edition, their arguments relied on that framework, and the court proceeded on the basis they advocated. This amounted to waiver: an intentional surrender of the contrary position.

• United States v. Milton, 27 F.3d 203, 210 (6th Cir. 1994), involved a defendant who requested an older Guidelines edition and later sought the benefit of a newer one. Although its quoted language referred to “forfeited” rights, the present opinion treats affirmative selection as supporting waiver.
• United States v. Nagi, 947 F.2d 211, 213–14 (6th Cir. 1991), supported enforcing a defendant’s agreement concerning the applicable Guidelines edition.
• United States v. Wilson, 184 F.3d 798, 801 (8th Cir. 1999), supplied persuasive authority that stipulating to an edition and acquiescing in its use prevents a contrary appellate objection.
• United States v. Jackson reinforced the distinction between passively overlooking an issue and affirmatively advocating the approach later challenged.

The holding is thus record-specific. It does not establish that parties may freely override the Guidelines’ governing-edition rules. It establishes that these defendants could not obtain ordinary appellate review of a position inconsistent with their own deliberate sentencing requests.

C. Counterfeit-Drug Loss: Full Payments Without Credit for Unwanted Counterfeits

The applicable calculation

Section 2B1.1 increases the offense level according to financial loss. United States v. Skouteris, 51 F.4th 658, 671 (6th Cir. 2022), and United States v. Riccardi, 989 F.3d 476, 481 (6th Cir. 2021), explain that basic structure.

The district court applied Application Note 3(F)(v) of the 2023 Guidelines. That note addresses goods falsely represented as government-approved, goods requiring approval that was never obtained, and goods whose approval was procured by fraud. It directs that loss include the amount paid, without credit for the goods’ value.

Under United States v. Wala, the counterfeit-pill operation fell within that description: the pills were sold under the false appearance that they were approved generic medication. For Basalyga, the court multiplied a conservative price of $2 per pill by 16.1 million attributable pills, producing approximately $32.2 million in loss. Because that exceeded $25 million, § 2B1.1(b)(1)(L) required a 22-level increase.

The commentary-deference question

Before November 2024, § 2B1.1 did not itself define “loss.” Courts disagreed over whether commentary could expand that term to include intended loss:

• United States v. Banks, 55 F.4th 246, 258 (3d Cir. 2022), understood the ordinary meaning as the loss actually suffered by a victim.
• United States v. You, 74 F.4th 378, 397–98 (6th Cir. 2023), held the term ambiguous and permitted deference to commentary encompassing intended loss.

Amendment 827 moved the actual-or-intended-loss definition into the Guidelines text effective November 1, 2024. But because these appeals proceeded under the earlier manual, United States v. You remained controlling.

Basalyga could not avoid that precedent through Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024). That decision ended Chevron deference to administrative interpretations of statutes. The Guidelines issue instead involved Kisor or Auer deference to an agency’s interpretation of its own regulations. United States v. Prather, 138 F.4th 963, 975 (6th Cir. 2025), had already recognized that distinction, while United States v. Xu, 114 F.4th 829, 845 (6th Cir. 2024), supported the panel’s obligation to follow existing circuit precedent.

The court therefore did not announce that all Guidelines commentary automatically controls. It applied existing precedent concerning ambiguity and interpretation of the pre-2024 loss provision.

The independent textual rationale: actual loss need not mean net loss

The court also explained why Basalyga’s argument would fail even apart from commentary deference. The buyers suffered an actual deprivation: they paid for what they believed was genuine generic Xanax and received unapproved substitutes manufactured in a storage unit.

The district court found that end users would not have purchased the products had they known the truth. Consequently, the counterfeit pills were not a wanted substitute whose supposed value necessarily reduced the relevant loss. The opinion’s reasoning concerns the bargain actually induced by the fraud, not merely whether the pills produced some pharmacological effect.

United States v. Marcus, 82 F.3d 606, 610 (4th Cir. 1996), was particularly important. It recognized actual loss in a counterfeit-drug transaction where consumers did not receive their bargain and would have rejected the substitute if fully informed.

The opinion also distinguished the debate over hypothetical losses from the treatment of harm that actually occurred. It discussed:

• Judge Murphy’s concurrence in United States v. Kennert, which accepted that loss can encompass different actual harms while rejecting nonexistent ones;
• Judge Quattlebaum’s dissent in United States v. Boler, which similarly emphasized that loss must concern something that happened; and
• Judge Bumatay’s dissent in United States v. Kirilyuk, which stressed an actual diminution rather than a purely hypothetical injury.

Those separate opinions were not binding authority. Their analytical significance was that even restrictive approaches to “loss” did not necessarily support Basalyga: the purchasers’ payments and failure to receive genuine medication were real events.

Rutherford v. United States, 146 S. Ct. 1320, 1334 (2026), supplied the metaphor of textual “goalposts.” The court considered its understanding of buyers’ actual harm to fall within the permissible breadth of the word “loss.” United States v. Shumway, 112 F.3d 1413, 1425 (10th Cir. 1997), supported the proposition that Guidelines loss is not invariably restricted to net monetary damage. United States v. Smith, 79 F.4th 790, 794–95, 798 (6th Cir. 2023), connected the concept of loss with harm suffered by a victim.

Likewise, the summary order in United States v. Pasternak rejected the assertion that § 2B1.1 unambiguously requires “actual net loss.” Together, these authorities supported the court’s refusal to insert a mandatory “net” modifier into the provision.

Why the court declined to await the Supreme Court

At the time of the opinion, Beaird v. United States was pending before the Supreme Court and could reconsider deference to Guidelines commentary. The Sixth Circuit did not treat that pending case as establishing any rule. Instead, it reasoned that Basalyga’s proposed textual interpretation failed independently: even eliminating commentary deference would not necessarily establish a right to deduct the counterfeit pills’ supposed value.

That alternative rationale justified denying a stay. Importantly, the present case did not depend on finding an unrealized intended loss. Its reasoning centered on payments actually made and genuine products never received.

D. Obstruction Can Be Proven Circumstantially and Need Not Succeed

Section 3C1.1 authorizes a two-level enhancement for willfully obstructing, impeding, or attempting to obstruct or impede the administration of justice concerning the offense. The district court found that Basalyga deleted electronic evidence after learning that Chirinos de Urena had been arrested and her phone seized.

The evidentiary sequence supported that inference. Basalyga asked whether he needed to “clean,” discussed whether the seized phone could support a warrant, advised Wala to “clear it and stop,” and stated that he had “wiped” a USB device containing payment-related information. Investigators also found relevant communications missing from his devices.

Proof and appellate review

United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948), supplied the clear-error standard: reversal requires a definite and firm conviction that a mistake occurred. Under Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985), a trial court’s choice between two permissible interpretations of evidence is not clearly erroneous.

United States v. Hang, 75 F.3d 1275, 1285 (8th Cir. 1996), supported proof by a preponderance using indirect and circumstantial evidence. The government therefore did not need conclusive forensic proof of every deletion. The court also invoked United States v. Simpson in finding that Basalyga’s largely unsupported denial did not seriously undermine the district court’s factual determination.

Timing, attempts, and materiality

United States v. Golobic, 170 F.4th 515, 521 (6th Cir. 2026), established that conduct may obstruct justice “with respect to” an investigation even before a formal investigation begins. Basalyga’s awareness of the arrest and possible warrant connected his actions to anticipated investigative activity.

United States v. Green, 167 F.4th 832, 865 (6th Cir. 2026), and United States v. Thomas, 933 F.3d 605, 610 (6th Cir. 2019), confirmed that attempted obstruction is enough. The government did not have to prove that deleting evidence ultimately defeated the investigation.

Materiality remained relevant. United States v. Histed, 93 F.4th 948, 960 (6th Cir. 2024), asked whether the conduct would tend to influence the investigation’s outcome. United States v. Baker, 894 F.2d 1083, 1084 (9th Cir. 1990), explained why information remaining available elsewhere does not eliminate the obstructive potential of withholding or destroying it. The availability of other evidence was fortunate for investigators, not a defense to the deletion effort.

The late “likely to thwart” argument

Basalyga’s reply brief separately invoked commentary concerning pre-investigation conduct “likely to thwart” an investigation. The court identified three obstacles:

1. United States v. Campbell, 279 F.3d 392, 401 (6th Cir. 2002), supported declining a distinct argument first presented in reply.
2. United States v. Hymes, 19 F.4th 928, 936 (6th Cir. 2021), established that commentary interprets rather than replaces Guidelines text. The text reaches material impediments and attempts; it does not require proof that an investigation would be completely stopped.
3. The district court had, in any event, expressly found the conduct likely to thwart the investigation by eliminating proof.

The result therefore did not require a categorical ruling invalidating the commentary’s treatment of pre-investigation conduct. The timing problem, textual reasoning, and alternative factual finding each supported rejection of the challenge.

E. Specific Consent to Forfeiture Forecloses a Later Statutory Challenge

Basalyga argued that § 304 of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 334, did not authorize the nearly $7 million money judgment. He relied on United States v. Fishman, 157 F.4th 143 (2d Cir. 2025), which the opinion identified as the only appellate decision expressly considering the issue.

The Sixth Circuit did not decide whether the statute authorized this forfeiture. Its holding concerned waiver.

The cumulative record of intentional relinquishment

Under United States v. Olano, 507 U.S. 725, 732–33 (1993), waiver involves intentional relinquishment or abandonment of a known right. Basalyga’s record showed far more than an unmade objection:

• He consented in his plea agreement to forfeiture of the identified property.
• He agreed that the property was lawfully forfeitable and promised assistance in completing forfeiture.
• He expressly waived procedural, substantive, constitutional, legal, and equitable challenges.
• After briefly challenging forfeiture, he withdrew that challenge.
• He stipulated to $6,975,000 and agreed not to contest validity.
• He voiced no objection when the stipulated judgment was finalized at sentencing.

United States v. Droganes, 728 F.3d 580, 588 (6th Cir. 2013), prevented a defendant from renouncing an agreed forfeiture merely because its consequences became unwelcome. United States v. Skouteris similarly treated express withdrawal of an objection or agreement to a calculated money judgment as waiver. Swift & Co. v. United States, 276 U.S. 311, 324 (1928), provided the broader principle that consenting to judgment generally relinquishes an appeal from it.

Specific forfeiture waivers controlled over general appeal language

Basalyga contended that his general appellate-waiver clause concerned his guilty plea and conviction, not his sentence. The court explained that this did not neutralize the separate, specific forfeiture provisions.

United States v. Bryant, 663 F. App’x 420, 422 (6th Cir. 2016), supported the interpretive rule that specific provisions govern general ones. United States v. DeWitt, 366 F.3d 667, 670 (8th Cir. 2004), supported avoiding an interpretation that would make express contractual provisions meaningless.

Moreover, an issue can be waived through litigation conduct even without an express appellate-waiver clause. United States v. Droganes, United States v. Skouteris, and United States v. Seuell, 135 F.4th 480, 482–83 (6th Cir. 2025), supported that distinction. Permission to appeal a sentence generally did not revive a specific objection knowingly surrendered.

The exceptional miscarriage-of-justice inquiry

Hunter v. United States, 146 S. Ct. 1702, 1713–14 (2026), recognized an exceptionally narrow basis for excusing waiver: an egregious, obvious error producing a miscarriage of justice and undermining public confidence in the judiciary.

Basalyga’s reliance on United States v. Fishman did not satisfy that standard. A disputed statutory argument supported by one nonbinding appellate decision did not establish the required obvious error. United States v. Hunter (Hunter II), 183 F.4th 416, 419–20 (5th Cir. 2026), reinforced that conclusion concerning reliance on out-of-circuit authority.

The important boundary is that enforcing the waiver was not an endorsement of the forfeiture statute’s scope. The underlying statutory question remained unresolved in this appeal.

F. Awareness of Serious Health Risks May Be Established Without Direct Admissions

Chirinos de Urena challenged the two-level enhancement under § 2B1.1(b)(16)(A) for an offense involving a conscious or reckless risk of death or serious bodily injury.

In United States v. Wala, the court had declined to resolve a circuit split over whether the enhancement requires subjective awareness of risk. It instead assumed the more defendant-protective standard: the offense must create the requisite danger, and the defendant must actually recognize and consciously disregard it.

The present opinion followed that approach without resolving the split. The operation’s danger was supported by crude manufacture, uncontrolled distribution, abuse potential, and serious health risks. The remaining issue was Chirinos de Urena’s awareness.

Her absence from incriminating messages exchanged by Wala and Basalyga did not defeat the enhancement. Her own circumstances supplied the necessary inference:

• She participated for approximately three years.
• Without relevant training, she mixed chemicals, pressed pills, and prepared large quantities for shipment.
• She knowingly facilitated sales of millions of pills through the dark web.
• The district court found that the defendants knew handling the product required personal protective measures.

United States v. Milton supported using circumstantial evidence to establish the required state of mind. United States v. McCord, Inc., 143 F.3d 1095, 1098 (8th Cir. 1998), explained that some fraudulent schemes create risks so obvious that awareness can be inferred even under an actual-awareness test.

Applying the clear-error framework of United States v. Battaglia, the court upheld the finding. This was an inference from the nature, duration, and hands-on character of her conduct—not a rule that membership in a dangerous conspiracy automatically proves awareness.

G. Immigration Consequences Must Be Considered When Raised, but Need Not Produce a Reduction

As a lawful permanent resident, Chirinos de Urena argued that possible deportation and restrictions on Bureau of Prisons programming justified a lower sentence. Although the district court imposed a below-Guidelines sentence, it declined to reduce the sentence on those particular grounds.

The appellate question was whether the court disregarded the argument or misunderstood its authority. United States v. Lay, 583 F.3d 436, 446 (6th Cir. 2009), distinguishes ignoring an argument from considering and rejecting it. The record showed the latter.

The district court regarded the consequences as collateral results of criminal choices made with knowledge of immigration status. It also expressed concern that an additional reduction could create disparities with citizen co-conspirators or effectively offset consequences assigned by immigration and prison-administration rules.

United States v. Petrus, 588 F.3d 347, 356 (6th Cir. 2009), recognizes substantial sentencing discretion in deciding whether immigration status mitigates an offense. United States v. Zheng, 27 F.4th 1239, 1244 (6th Cir. 2022), rejects an automatic approach to downward variances based on the collateral consequences facing deportable defendants.

The statement that prison-program restrictions were not something the court “would vary over” expressed unwillingness, not necessarily legal inability. United States v. Vonner, 516 F.3d 382, 392 (6th Cir. 2008) (en banc), counsels reading sentencing explanations fairly and with appropriate deference rather than isolating phrases. United States v. Hymes similarly explains why one stray comment does not establish reversible error when the broader discussion is thoughtful.

Finally, Rita v. United States, 551 U.S. 338, 356 (2007), supplied the governing requirement of a reasoned basis for the sentencing choice. The district court met that obligation. The opinion does not hold that immigration consequences are categorically irrelevant; it holds that their consideration does not compel a variance.