Amendment 833 Is a Substantive Guideline Change and Cannot Be Applied Retroactively on Direct Appeal

1. Introduction

Kenneth Steele was prosecuted for conspiring with his mother to distribute methamphetamine. After a mistrial and a later guilty plea to a lesser-included offense, Steele sought leniency at sentencing, emphasizing his youth, difficult upbringing, family responsibilities, work history, and cooperation (including agreeing to testify against his mother). The district court nevertheless enhanced his sentence for obstruction (perjury at the earlier trial) and removed acceptance-of-responsibility reductions. Although the resulting advisory Guidelines range became 121–151 months, the court varied downward to 90 months.

On appeal, Steele’s principal legal claim attempted to capitalize on a recent Guideline development: Amendment 833, which became effective four days after sentencing and (in general terms) broadened the availability of role reductions in drug cases. He argued the amendment should apply and entitle him to a larger mitigating-role decrease. The Eleventh Circuit rejected that approach and affirmed.

2. Summary of the Opinion

• No retroactive benefit from Amendment 833: The panel held Amendment 833 is a substantive change to the Guidelines and therefore cannot be applied retroactively on direct appeal. The court relied on United States v. Martinez, which had already classified Amendment 833 as substantive and nonretroactive.
• Late-raised alternative argument forfeited: Steele’s reply-brief contention that he qualified for a four-level reduction even under the 2024 Guidelines was treated as forfeited because it was not raised in his opening brief.
• Sentence affirmed as substantively reasonable: The 90-month sentence—well below the 121–151 month range—was upheld because the district court considered the § 3553(a) factors, addressed mitigation, and permissibly emphasized seriousness, deterrence, respect for law, and Steele’s perjury.

3. Analysis

3.1 Precedents Cited

Guidelines interpretation; retroactivity; clarifying vs. substantive

• United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc): Cited for the standard of review—interpretation and application of the Guidelines are reviewed de novo. This frames the appellate inquiry as legal (not discretionary) on the amendment’s applicability.
• United States v. Jerchower, 631 F.3d 1181 (11th Cir. 2011): Supplies the controlling framework for whether post-sentencing amendments can be applied retroactively on appeal: courts generally apply the Guidelines “in effect on the date of sentencing,” and only clarifying amendments may be applied retroactively.
  Jerchower also provides a four-factor test to distinguish “clarifying” from “substantive” amendments:
  1. whether the amendment alters Guideline text or only commentary;
  2. Commission descriptions/notes signaling clarifying vs. substantive change;
  3. whether it appears on the retroactivity list in U.S.S.G. § 1B1.10;
  4. whether it overturns circuit precedent (suggesting substantive change), unless it merely clarifies an inherent meaning.
• United States v. Martinez, 172 F.4th 1306 (11th Cir. 2026): The key driver of the outcome. Martinez held Amendment 833 is substantive and thus not retroactively applicable. The Steele panel adopted Martinez’s reasoning, emphasizing:
  • Amendment 833 changes the text of the Guidelines (not only commentary);
  • the accompanying commentary reflects a substantive expansion of role reductions in drug trafficking cases;
  • the Commission did not list it as retroactive in § 1B1.10;
  • it abrogates circuit precedent by making “the involvement of other participants” irrelevant to role-reduction eligibility.
  In effect, Martinez functioned as controlling circuit law: once Amendment 833 was classified as “substantive,” Steele’s retroactivity argument was foreclosed.

Issue preservation (reply-brief forfeiture)

• United States v. Campbell, 26 F.4th 860 (11th Cir. 2022) (en banc): Used to reject Steele’s attempt to pivot in his reply brief. Campbell stands for the proposition that failure to raise an issue in the initial brief is treated as forfeiture on direct appeal. This preserves adversarial fairness and prevents “sandbagging.”

Role reductions are fact-intensive

• United States v. De Varon, 175 F.3d 930 (11th Cir. 1999) (en banc): Invoked to underscore that role assessments are “uniquely fact-intensive.” Even aside from forfeiture, the panel signaled that the record supported at most a minor-role (not minimal-role) finding, given Steele’s knowledge and repeated transporting.

Substantive reasonableness review and § 3553(a) weighting

• Gall v. United States, 552 U.S. 38 (2007): Establishes abuse-of-discretion review for substantive reasonableness and the “totality of the circumstances” approach.
• United States v. Tome, 611 F.3d 1371 (11th Cir. 2010): Places the burden on the appellant to show unreasonableness in light of the facts and § 3553(a) factors.
• United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc): Provides the tripartite articulation of substantive-reasonableness error: (1) failing to give significant weight to a relevant factor, (2) giving significant weight to an improper factor, or (3) a clear error of judgment in balancing proper factors.
• United States v. Shabazz, 887 F.3d 1204 (11th Cir. 2018): Reinforces “due deference” to the district court’s sentencing-factor analysis.
• United States v. Olson, 127 F.4th 1266 (11th Cir. 2025): Cited for the proposition that the district court may lawfully assign greater weight to one § 3553(a) factor over others.
• United States v. Williams, 526 F.3d 1312 (11th Cir. 2008): Confirms that while the court must consider § 3553(a), it need not discuss each factor explicitly.
• United States v. Snipes, 611 F.3d 855 (11th Cir. 2010): Emphasizes that failure to mention certain mitigating evidence does not itself make a sentence substantively unreasonable.

3.2 Legal Reasoning

A. Why Amendment 833 did not help Steele

The panel’s reasoning is doctrinally straightforward: under Jerchower, post-sentencing amendments are applied retroactively on appeal only if they are “clarifying,” not “substantive.” The court then treated Martinez as dispositive because Martinez had already performed the Jerchower analysis for Amendment 833 and concluded it was substantive.

This classification matters because “substantive” amendments change the law governing punishment going forward; applying them to already-imposed sentences would effectively resentence defendants outside the established retroactivity mechanisms (such as those expressly authorized through U.S.S.G. § 1B1.10 and 18 U.S.C. § 3582(c)(2) for certain retroactive amendments).

B. Why Steele’s “even under the 2024 Guidelines” argument went nowhere

Steele attempted to argue in his reply brief that he should receive a four-level role reduction even under the pre-amendment Guidelines. The panel rejected that pivot under Campbell as forfeited because it was not raised in the opening brief. The court also added an alternative observation: given Steele’s knowledge of the operation and multiple transports, it was not clear error to deny the “minimal role” category under the fact-intensive approach described in De Varon.

C. Why the 90-month sentence was affirmed as reasonable

On substantive reasonableness, the court applied Gall and Irey and emphasized deference. The district court:

• recognized mitigation (family circumstances, work history, guilty plea, cooperation, upbringing);
• identified aggravators it was entitled to weigh heavily (seriousness of meth trafficking and, especially, perjury at trial as a “huge aggravator”);
• tied the sentence to traditional § 3553(a) goals (deterrence, respect for law, just punishment); and
• imposed a significant downward variance (90 months) from the advisory 121–151 month range.

Under Olson, the district court could assign greater weight to the aggravating factors; under Williams and Snipes, it did not need to recite every mitigating fact to show it considered them. The appellate court therefore found no abuse of discretion.

3.3 Impact

1) Cementing (and operationalizing) Martinez’s nonretroactivity rule for Amendment 833

Although this opinion is “Not for Publication,” its practical significance is that it applies Martinez to dispose of a common class of arguments that arose immediately after Amendment 833’s effective date: defendants sentenced shortly before the amendment cannot obtain its benefits on direct appeal by recharacterizing it as “clarifying.” In the Eleventh Circuit, Martinez (and now Steele’s application of it) channels relief away from direct-appeal retroactivity and toward whatever limited retroactivity the Commission expressly authorizes through § 1B1.10 (which, as noted, does not include Amendment 833).

2) Reinforcing appellate discipline on briefing and preservation

The court’s reliance on Campbell is a reminder that defendants must fully develop Guidelines theories in the opening brief. Where a new decision (like Martinez) appears mid-appeal, Steele shows the court may still enforce forfeiture rules against newly reframed arguments.

3) Encouraging explicit sentencing explanations where amendments are imminent

The district court’s statement that it would impose the same sentence even if the range changed serves as a form of “variance inoculation”: it can reduce the significance of Guidelines disputes and make affirmance more likely where the judge anchors the sentence in § 3553(a) and articulates independent reasons (here, seriousness and perjury).

4. Complex Concepts Simplified

• Mitigating-role reduction (U.S.S.G. § 3B1.2): A decrease in offense level for defendants who played a lesser role than typical participants. A “minor” role generally means less culpable than most others; a “minimal” role is reserved for the least culpable, often with limited knowledge or understanding. The difference matters: it can change the advisory sentencing range substantially.
• Clarifying vs. substantive Guideline amendments: A “clarifying” amendment explains what the Guideline always meant and can be applied to older sentences on appeal. A “substantive” amendment changes the rule going forward (e.g., expands eligibility for reductions) and is not applied retroactively unless the Commission expressly authorizes it through its retroactivity policy statement.
• Retroactivity list (U.S.S.G. § 1B1.10): The Sentencing Commission maintains a list of amendments that can be applied to reduce sentences already imposed (typically via sentence-modification proceedings). If an amendment is not listed, courts generally cannot apply it retroactively to reduce a sentence.
• Obstruction of justice (U.S.S.G. § 3C1.1): An enhancement applied when a defendant obstructs the administration of justice—commonly through perjury (lying under oath about material matters). Here, Steele’s false trial testimony triggered this enhancement.
• Acceptance of responsibility (U.S.S.G. § 3E1.1): A reduction for defendants who clearly accept responsibility. Going to trial and testifying falsely can disqualify a defendant even if he later pleads guilty.
• Substantive reasonableness: An appellate check on whether the length of the sentence is defensible in light of § 3553(a). It is highly deferential; the question is not whether the appellate judges would impose a different sentence, but whether the district judge abused discretion in balancing legitimate factors.

5. Conclusion

United States v. Kenneth Steele reinforces a key rule for Eleventh Circuit sentencing appeals: Amendment 833 cannot be used retroactively to secure a larger mitigating-role reduction because it is a substantive Guideline change under United States v. Martinez and the retroactivity framework of United States v. Jerchower. The opinion also reiterates strict issue-preservation principles under United States v. Campbell and illustrates the breadth of district-court discretion in weighing § 3553(a) factors when evaluating substantive reasonableness. Practically, defendants sentenced just before Amendment 833’s effective date should not expect direct-appeal relief based on that amendment absent an express retroactivity designation by the Sentencing Commission.