Affirmative Waiver Limits Sentencing Appeals; Counterfeit-Drug Loss Can Include Buyers’ Full Payments

A. Standards of review and the importance of preservation

The court separated legal interpretation from factual evaluation. Under United States v. Battaglia, 624 F.3d 348 (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 (6th Cir. 2014), supplies the same division for forfeiture questions. Preserved procedural-reasonableness issues otherwise receive abuse-of-discretion review under United States v. Simpson, 138 F.4th 438 (6th Cir. 2025).

Those standards matter only when an issue remains available for appellate decision. Much of this appeal turned on the logically prior question whether the defendants had deliberately relinquished their arguments. The opinion therefore distinguishes disagreement with a ruling from having previously requested or accepted that ruling.

B. Affirmatively choosing an earlier Guidelines edition waived a contrary appellate position

The ordinary rule is to use the Guidelines effective on the sentencing date. Both defendants were sentenced in October 2025, when the 2024 Guidelines remained effective; the 2025 edition did not take effect until November 1, 2025.

Nevertheless, the plea agreements recommended the 2021 Guidelines, the defendants litigated under pre-2024 provisions, and the district court used the substantively equivalent 2023 edition. The government likewise argued within that framework. The district court apparently sought to avoid applying substantive changes adopted after the offenses, which occurred during 2017–2022.

The potential constitutional concern was legitimate in principle. Peugh v. United States, 569 U.S. 530 (2013), recognizes that retrospective use of harsher Guidelines can violate the Ex Post Facto Clause. Sections 1B1.11(b)(1)–(2) likewise address that problem. Here, Amendment 827 had moved the commentary’s definition of loss into the Guidelines text, effective November 1, 2024, creating at least a potential substantive difference.

The appellate court did not ultimately decide whether those concerns required the earlier edition. Instead, it held that the defendants could not reverse their affirmative positions after sentencing. Relevant precedents were:

• United States v. Milton, 27 F.3d 203 (6th Cir. 1994): a defendant who requested an older Guidelines edition and did not object to its use could not later demand sentencing under a newer edition. Although the quoted passage used “forfeited,” the present opinion relied on the affirmative nature of the defendant’s conduct to support waiver.
• United States v. Nagi, 947 F.2d 211 (6th Cir. 1991): defendants waived a challenge to the Guidelines edition they had agreed upon in their plea agreements.
• United States v. Wilson, 184 F.3d 798 (8th Cir. 1999): persuasive authority similarly treating a plea stipulation and acquiescence at sentencing as waiver of a contrary position.
• United States v. Jackson, 995 F.3d 476 (6th Cir. 2025): supports distinguishing affirmative relinquishment from a mere failure to raise an issue.

The distinction is central. Silence alone was not the court’s reasoning. The defendants requested the earlier framework and argued from it. The resulting holding does not establish that the 2024 Guidelines were constitutionally unavailable, nor does it resolve the different treatment of Wala, whose sentencing used that edition.

C. Counterfeit-drug loss: commentary, textual interpretation, and unwanted substitutes

1. The applicable calculation

Section 2B1.1 increases an offense level according to the amount of loss. United States v. Skouteris, 51 F.4th 658 (6th Cir. 2022), and United States v. Riccardi, 989 F.3d 476 (6th Cir. 2021), supplied the general framework: the Guideline begins with a base offense level and adds graduated enhancements reflecting the loss amount.

Under the pre-2024 text, “loss” was undefined. Application Note 3(F)(v), however, addressed goods falsely represented as government-approved and goods requiring regulatory approval that had not been properly obtained. For those transactions, loss included the amount purchasers paid, without credit for the goods’ value.

United States v. Wala had already determined that this counterfeit-pill operation fell within those descriptions. The scheme marketed pills under the false appearance of FDA approval. Applying the commentary, the district court conservatively valued the 16.1 million pills attributable to Basalyga at $2 each. The resulting $32.2 million exceeded the $25 million threshold for the 22-level enhancement.

2. Why the commentary remained controlling

The opinion situates the dispute within the earlier disagreement about actual and intended loss:

• United States v. Banks, 55 F.4th 246 (3d Cir. 2022), interpreted ordinary “loss” as the loss actually suffered by a victim.
• United States v. You, 74 F.4th 378 (6th Cir. 2023), held that the pre-2024 term was ambiguous and permitted reliance on commentary encompassing intended loss. That Sixth Circuit holding bound the panel.

Basalyga’s reliance on Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), did not displace that conclusion. That decision ended Chevron deference to agency interpretations of statutes. The deference underlying United States v. You concerned an agency’s interpretation of its own regulations, associated with Kisor and Auer.

United States v. Prather, 138 F.4th 963 (6th Cir. 2025), supplied the distinction between those deference regimes. United States v. Xu, 114 F.4th 829 (6th Cir. 2024), reinforced the panel’s obligation to follow controlling circuit precedent. The opinion thus rejects the proposition that eliminating statutory Chevron deference automatically invalidated Guidelines-commentary precedent.

3. The independent textual explanation

The court also reasoned that Basalyga’s argument failed even apart from deference. These buyers suffered an actual deprivation: they paid for what they believed was generic Xanax but received an unapproved benzodiazepine and filler manufactured by amateurs in a storage unit.

Crucially, the district court found that end consumers would not have bought the products had they known the truth. The physical receipt of a pill therefore did not establish a benefit requiring subtraction. The opinion treats the loss as the fraud against the buyer, measured by the payment for an unwanted substitute.

The cited authorities clarify the boundaries of that reasoning:

• United States v. Marcus, 82 F.3d 606 (4th Cir. 1996), directly supported treating counterfeit-drug purchases as actual loss where consumers did not receive their bargain and would not knowingly have accepted the substitute.
• United States v. Shumway, 112 F.3d 1413 (10th Cir. 1997), explained that Guidelines loss serves to measure offense severity and is not merely a calculation of net monetary damages.
• United States v. Smith, 79 F.4th 790 (6th Cir. 2023), connected loss with harm suffered by victims, supporting a broader inquiry than the defendant’s proposed mandatory net-value offset.
• Rutherford v. United States, 146 S. Ct. 1320 (2026), supplied the opinion’s textual “goalposts” formulation. The panel concluded that recognizing the buyers’ actual deprivation remained within the breadth of the word “loss.”
• The concurrence in United States v. Kennert, No. 22-1998, 2023 WL 4977456 (6th Cir. Aug. 3, 2023), and the dissents cited in United States v. Boler, 115 F.4th 316 (4th Cir. 2024), and United States v. Kirilyuk, No. 24-3429, 2025 WL 3034694 (9th Cir. Oct. 30, 2025), emphasized that loss must concern harm that actually occurred. These separate opinions were not controlling holdings. The panel used them to show that even commentary skeptics recognized a range of actual harms—and that these buyers experienced such harm.
• United States v. Pasternak, No. 23-6316-CR, 2024 WL 4763986 (2d Cir. Nov. 13, 2024), a summary order, provided persuasive support against reading “loss” as unambiguously limited to actual net loss.

This alternative rationale also explained the refusal to await Beaird v. United States, No. 25-5343. As described in the opinion, that pending Supreme Court case might reconsider deference to Guidelines commentary. It was not an already-decided precedent. The panel concluded that even a broad rejection of commentary deference would not establish Basalyga’s proposed textual limitation.

The holding should not be overstated: the opinion does not declare every counterfeit product valueless in every setting. Its reasoning depends on the applicable regulatory-goods commentary and, independently, the finding that these buyers would not have accepted the actual products.

D. Obstruction may be proved 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 evidence against Basalyga included:

• His immediate question, “Do I need to clean,” after learning of Chirinos de Urena’s arrest and phone seizure.
• His discussion of whether her phone supplied enough information for a warrant.
• His advice to Wala to “clear it and stop.”
• His statement that he had “wiped” a USB device associated with the operation’s payment arrangements.
• Investigative findings suggesting that relevant historical communications were missing from his devices.

Against this combination, Basalyga offered a largely unexplained denial. The court held that the district court’s finding was not clearly erroneous.

The precedents performed several distinct functions:

• United States v. Golobic, 170 F.4th 515 (6th Cir. 2026), established that conduct can obstruct justice “with respect to” an investigation before a formal investigation begins. Basalyga’s awareness of impending investigative scrutiny was therefore relevant.
• United States v. U.S. Gypsum Co., 333 U.S. 364 (1948), supplied the clear-error formulation: reversal requires a definite and firm conviction that a mistake occurred.
• Anderson v. City of Bessemer City, 470 U.S. 564 (1985), explained that a factfinder’s choice between two permissible interpretations cannot be clearly erroneous.
• United States v. Hang, 75 F.3d 1275 (8th Cir. 1996), supported proof by a preponderance of the evidence, including indirect and circumstantial evidence. Conclusive proof was unnecessary.
• United States v. Simpson reinforced the insufficiency of a bare denial to place the supported factual finding into serious dispute.
• United States v. Green, 167 F.4th 832 (6th Cir. 2026), and United States v. Thomas, 933 F.3d 605 (6th Cir. 2019), established that attempted obstruction is enough; the government need not prove that the investigation was actually defeated.
• United States v. Histed, 93 F.4th 948 (6th Cir. 2024), supplied the materiality requirement: the conduct must tend to influence the investigation’s outcome.
• United States v. Baker, 894 F.2d 1083 (9th Cir. 1990), explained why evidence remaining available elsewhere does not eliminate the obstructive potential of withholding or destroying it.

Basalyga separately argued in reply that conduct preceding an investigation had to be “likely to thwart” it under Application Note 1. The court treated that argument as untimely under United States v. Campbell, 279 F.3d 392 (6th Cir. 2002), which generally precludes arguments first raised in a reply brief.

It also invoked United States v. Hymes, 19 F.4th 928 (6th Cir. 2021), for the principle that commentary interprets rather than replaces Guidelines text. Section 3C1.1 reaches materially obstructive attempts; it does not require that the defendant probably succeed in stopping an investigation. Finally, the district court had expressly found the conduct likely to thwart the investigation, independently answering the argument on its own terms.

The opinion therefore does not dispense with materiality. It distinguishes material obstructive potential from demonstrated investigative failure.

E. Repeated consent barred review of the forfeiture judgment’s statutory basis

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

The Sixth Circuit did not resolve the statutory question. Basalyga had consented to forfeiture in his plea agreement, expressly waived procedural and substantive defenses, briefly challenged forfeiture, withdrew that challenge, stipulated to $6,975,000, and agreed not to object to the judgment’s validity. He then raised no concern when the district court finalized it.

Under United States v. Olano, 507 U.S. 725 (1993), that conduct constituted intentional relinquishment rather than simple nonpreservation. Several decisions reinforced the result:

• United States v. Droganes, 728 F.3d 580 (6th Cir. 2013), prevented a defendant from renouncing an agreed forfeiture judgment because of its consequences. It also distinguished an express appellate-waiver clause from waiver of a particular argument through conduct.
• United States v. Skouteris supported waiver through express withdrawal of an objection or agreement to a calculated money judgment.
• Swift & Co. v. United States, 276 U.S. 311 (1928), supplied the general rule that consenting to judgment waives an appeal from that judgment.
• United States v. Bryant, 663 F. App’x 420 (6th Cir. 2016), applied the interpretive principle that specific contractual provisions govern general ones. The forfeiture-specific waivers therefore could not be displaced by more general appellate-waiver language.
• United States v. DeWitt, 366 F.3d 667 (8th Cir. 2004), supported reading the agreement without rendering its forfeiture provisions meaningless.
• United States v. Seuell, 135 F.4th 480 (6th Cir. 2025), further supported waiver through express consent or withdrawal of an objection, independently of a general appeal waiver.

The court nevertheless considered the narrow possibility of excusing waiver. Hunter v. United States, 146 S. Ct. 1702 (2026), described a miscarriage-of-justice exception requiring an egregious and obvious error capable of undermining public confidence in the judiciary. United States v. Hunter (Hunter II), 183 F.4th 416 (5th Cir. 2026), supported rejecting nonbinding out-of-circuit authority as sufficient to establish obvious error in this setting.

Reliance on United States v. Fishman alone did not satisfy that demanding exception. The significance is procedural, not substantive: affirmance did not establish that § 334 authorizes the disputed form of forfeiture.

F. Awareness of serious health risks can be inferred from sustained participation

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

In United States v. Wala, the court had declined to resolve a circuit disagreement about whether subjective awareness is required. It instead assumed the more defendant-favorable standard: the offense must create the relevant risk, and the defendant must actually know of and consciously disregard it. This opinion followed the same approach without resolving that disagreement.

Chirinos de Urena was not involved in the incriminating exchanges that demonstrated Wala’s knowledge. But the government did not need equivalent direct evidence. For approximately three years, she mixed chemicals in a storage unit, pressed counterfeit pills, and prepared large quantities for shipment despite lacking relevant training. The district court also found that the participants knew protective measures were necessary.

Those circumstances supported actual awareness. United States v. Milton established that circumstantial evidence and conduct may prove the relevant state of mind. United States v. McCord, Inc., 143 F.3d 1095 (8th Cir. 1998), supplied persuasive support for finding awareness where a fraudulent scheme’s serious bodily risks are sufficiently obvious.

Importantly, the court did not replace actual knowledge with a categorical presumption that every participant knows every risk. It reviewed individualized evidence concerning the nature, duration, and scope of her participation and upheld the resulting inference under clear-error review.

G. Immigration consequences must be considered when raised, but need not produce a variance

As a lawful permanent resident, Chirinos de Urena argued that possible deportation and exclusion from certain Bureau of Prisons programming justified a lower sentence. The district court discussed those arguments but regarded the consequences as collateral effects of criminal conduct undertaken with knowledge of her status.

The appellate court distinguished refusal to accept an argument from failure to consider it:

• United States v. Lay, 583 F.3d 436 (6th Cir. 2009), established that rejecting a mitigation argument is different from ignoring it.
• United States v. Petrus, 588 F.3d 347 (6th Cir. 2009), recognized broad sentencing discretion in deciding whether immigration status sufficiently mitigates an offense.
• United States v. Zheng, 27 F.4th 1239 (6th Cir. 2022), supported rejecting an absolutist approach to immigration-related sentencing mitigation. Such consequences do not automatically require a reduction.
• United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (en banc), required a fair, contextual reading of sentencing explanations rather than an unduly narrow interpretation of isolated transcript language.
• United States v. Hymes supported the conclusion that one stray comment does not establish reversible error within an otherwise thoughtful sentencing discussion.
• Rita v. United States, 551 U.S. 338 (2007), supplied the governing requirement that the sentencing court consider the arguments and provide a reasoned basis for its decision.

The district court’s statement that it would not vary over executive-branch programming restrictions did not demonstrate that it thought itself powerless to do so. Read as a whole, the discussion reflected a discretionary refusal, not a misunderstanding of authority.

Accordingly, the decision neither prohibits immigration-based mitigation nor requires it. Its focus is adequate consideration and reasoned sentencing discretion.

H. Potential impact on future cases

1. Greater consequences for affirmative sentencing positions. Counsel who affirmatively select a Guidelines edition, stipulate to forfeiture, or withdraw objections risk waiver rather than merely more demanding appellate review. The record of deliberate agreement can matter independently of a general appeal-waiver clause.
2. A durable basis for counterfeit-drug loss calculations. The opinion supports full-payment loss where purchasers were deceived about approved drugs and would not have accepted the substitute. Its independent textual analysis may remain relevant even if commentary-deference doctrine changes.
3. No automatic collapse of commentary precedent after Loper Bright. Litigants must identify the particular deference doctrine involved and confront binding circuit authority. At the same time, commentary cannot displace the Guideline’s text.
4. Practical significance for digital-evidence destruction. Messages discussing deletion, combined with missing records, may establish attempted obstruction without forensic certainty or proof that the investigation actually failed.
5. Individualized but circumstantial proof of dangerousness. Extensive participation in unsafe drug manufacturing may demonstrate actual awareness without admissions or incriminating messages. The unresolved circuit split over the minimum required mental state remains unresolved.
6. Continuing discretion over immigration-related mitigation. Sentencing courts should address substantial collateral-consequence arguments, but a reasoned rejection generally does not become procedural error merely because the defendant sought a different balance.

The decision’s limits are equally important. It does not settle § 334’s forfeiture authority, decide the pending Supreme Court commentary question, require the pre-2024 Guidelines in comparable cases, or impose a categorical rule against immigration-related variances.