Harmless-Error Review Requires a Clear Keene Statement When a Court Erroneously Denies the Third Acceptance Point Under U.S.S.G. § 3E1.1(b)

1. Introduction

In United States v. Jason Edward Lopez (11th Cir. Apr. 17, 2026) (unpublished), the Eleventh Circuit vacated and remanded a 48-month sentence after concluding that the district court miscalculated the advisory Guidelines range by applying only a two-level reduction for acceptance of responsibility instead of three. The case arose from two fraud schemes:

  • A Medicare durable medical equipment scheme in which Lopez and others paid marketers for doctors’ orders for medically unnecessary equipment and then billed Medicare (nearly $2.6 million in claims; over $900,000 paid).
  • A Small Business Administration Economic Injury Disaster Loan application that falsely represented no illegal activity, resulting in a $7,000 advance.

Lopez pleaded guilty without a plea agreement and challenged two Guidelines components on appeal: (1) whether loss should be based on intended versus actual loss under U.S.S.G. § 2B1.1; and (2) whether he was entitled to the full three-level acceptance reduction under U.S.S.G. § 3E1.1.

2. Summary of the Opinion

The Eleventh Circuit held:

  1. No error on loss: The district court properly used intended loss under U.S.S.G. § 2B1.1(b), relying on United States v. Horn, 129 F.4th 1275 (11th Cir. 2025), which treated “loss” as unambiguously meaning “the greater of actual loss or intended loss.”
  2. Error on acceptance (and not harmless): The district court erred by applying only a two-level acceptance reduction after the government—at the sentencing hearing—declined to support the third level under § 3E1.1(b) based on an inaccurate claim that Lopez repeatedly delayed sentencing. The government conceded it “did not sufficiently justify . . . withholding” the request. The Eleventh Circuit found the error not harmless because the record lacked a clear Keene-type statement that the district court would have imposed the same sentence regardless of the Guidelines error.

The sentence was therefore vacated and remanded for resentencing using the correctly calculated advisory range.

3. Analysis

A. Precedents Cited

1) Standards of review for Guidelines interpretation and application

  • United States v. Wilson, 183 F.3d 1291, 1301 (11th Cir. 1999): Cited for de novo review of a district court’s interpretation and application of the Guidelines—particularly relevant where the district court believes it lacks authority (here, the perceived “binding” nature of the government’s position on § 3E1.1(b)).
  • United States v. Maxwell, 579 F.3d 1282, 1305 (11th Cir. 2009): Cited for de novo review of the Guidelines interpretation concerning loss amount determinations.

2) Defining “loss” under U.S.S.G. § 2B1.1

  • United States v. Horn, 129 F.4th 1275 (11th Cir. 2025): This decision controlled the first issue. The panel treated “loss” in § 2B1.1(b)(1) as unambiguous and equated it to “the greater of actual loss or intended loss,” validating the use of intended loss for the enhancement. That holding foreclosed Lopez’s argument that “loss” must mean only actual loss (the amount Medicare/SBA actually paid).

Notably, the opinion also referenced that the fraud guideline was later amended to define “loss” explicitly as “the greater of actual loss or intended loss” (U.S.S.G. § 2B1.1(b)(1)(A) (Nov. 2024)). While Lopez was sentenced under the earlier text, the amendment underscores the interpretive direction adopted in Horn.

3) Government discretion and judicial review under § 3E1.1(b)

  • United States v. Johnson, 980 F.3d 1364, 1380 (11th Cir. 2020): Quoted for the principle that courts may review whether the government has “improperly refused to make a [section] 3E1.1(b) motion.” In Lopez’s case, the government’s stated reason for withholding support (alleged delays) was inaccurate, and the government ultimately conceded it lacked sufficient justification.

4) Harmless error, Keene statements, and the burden on appeal

  • United States v. Barner, 572 F.3d 1239, 1247–48 (11th Cir. 2009): Supplies the core rule: a Guidelines miscalculation requires vacatur unless harmless, and harmlessness requires showing the district court would have imposed the same sentence absent the error. Barner also frames the “Keene statement” concept as a common way to establish harmlessness.
  • United States v. Focia, 869 F.3d 1269, 1287 (11th Cir. 2017): Emphasizes the government’s burden to show “beyond a reasonable doubt” that the error did not contribute to the sentence.
  • United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006): Establishes that harmlessness can be shown where the sentencing judge clearly states the same sentence would be imposed even if the Guidelines calculation were wrong.
  • United States v. Grushko, 50 F.4th 1, 19 n.7 (11th Cir. 2022): Illustrates sufficient clarity: where the district court confirmed the sentence would remain the same with or without a disputed enhancement.
  • United States v. Eason, 953 F.3d 1184, 1195 n.8 (11th Cir. 2020): Illustrates insufficient clarity: harmlessness is not established where the court never stated the enhancement made no difference.
  • Molina-Martinez v. United States, 578 U.S. 189, 201 (2016): Supports the broader proposition that an incorrect Guidelines range often affects the sentence; thus, uncertainty about impact cuts against harmless-error findings.

B. Legal Reasoning

1) Loss: Intended loss was permissible (and required by circuit precedent)

The panel treated the loss question as largely resolved by United States v. Horn. Even though the Guidelines text at the time did not define “loss” (the commentary did), the court adhered to Horn’s conclusion that “loss” in § 2B1.1(b)(1) is unambiguous and means the “greater of actual loss or intended loss.” As a result:

  • The district court did not err by using intended loss (roughly $2.7 million) rather than actual loss (roughly $910,937).
  • The advisory enhancements tied to the higher intended-loss bracket were therefore affirmed.

2) Acceptance of responsibility: the third point was wrongly withheld and wrongly denied

The critical procedural flaw was the third acceptance point under U.S.S.G. § 3E1.1(b). The presentence report had applied a three-level reduction, but at sentencing the government argued—apparently for the first time—that only two levels should apply due to purported defense delays. The district court, though “surprised” that the government had not objected earlier, believed it was constrained by the government’s position and reduced the credit accordingly.

On appeal, the government conceded it “did not sufficiently justify . . . withholding” the request, and both parties agreed the factual predicate (multiple defense delays) was wrong. The panel therefore found that the district court’s two-level reduction (instead of three) produced an incorrect advisory range—a quintessential procedural Guidelines error.

3) Harmless error: ambiguity is not enough

The government’s fallback was harmless error: it argued that despite the incorrect range, the district court’s 48-month sentence would not have changed. The panel rejected this because the record did not contain a sufficiently clear Keene statement.

The district court’s remarks—that it “may adjust” and that it “consider[ed]” the government’s earlier non-objection—were treated as indefinite rather than definitive. Under Barner and Keene, harmlessness requires clarity that the same sentence would be imposed regardless of the correct range. Under Focia, the government must remove reasonable doubt. And under Molina-Martinez v. United States, the use of an incorrect range commonly influences outcomes—making courts reluctant to deem such errors harmless without a clear record.

Thus, even if the district judge might impose the same 48-month sentence again, the appellate court required resentencing because it could not conclude “beyond a reasonable doubt” that the incorrect range did not matter.

C. Impact

1) Sentencing practice: creating (or avoiding) harmless-error records

The decision reinforces a practical rule for Eleventh Circuit sentencings: if a district court intends a particular sentence to stand independently of disputed Guidelines issues, it must say so clearly on the record. Vague statements (“may adjust,” “considering”) are not enough.

For prosecutors, the case highlights the risk of relying on harmless error when the transcript lacks a clear alternative-sentence pronouncement. For defense counsel, it underscores the value of insisting on accurate reasons for withholding § 3E1.1(b) support and objecting to late-breaking government positions not supported by the record.

2) § 3E1.1(b) litigation: scrutiny of unjustified refusals

By citing United States v. Johnson, the panel situates § 3E1.1(b) disputes within a framework of judicial review for improper government refusals. The government’s concession here signals that unsupported or inaccurate reasons for withholding the third point are unlikely to survive appellate review—particularly where the district court appears to treat the government’s position as determinative.

3) Loss under § 2B1.1: stability after Horn (and the 2024 amendment)

On the loss issue, the decision confirms that, in this circuit, arguments seeking to limit § 2B1.1 loss to actual loss face a steep uphill climb after United States v. Horn, especially given the later textual amendment defining loss as the greater of actual or intended loss.

4. Complex Concepts Simplified

  • Actual loss vs. intended loss: “Actual loss” is what the victim actually paid or suffered. “Intended loss” is what the defendant meant to take, even if the scheme only partly succeeded. Under § 2B1.1 in this circuit (per United States v. Horn), courts use whichever is greater.
  • Acceptance of responsibility (§ 3E1.1): Typically, a defendant may receive up to three levels off the offense level for accepting responsibility. Two levels are common; the third level under § 3E1.1(b) depends on specified conditions and is commonly tied to a government motion/position. Courts can review whether the government improperly refuses to support it (see United States v. Johnson).
  • Guidelines range miscalculation: Even though the Guidelines are advisory, the calculated range acts as the starting point and anchor for sentencing. Getting it wrong is a serious procedural error.
  • Harmless error and a Keene statement: An appellate court will not affirm a sentence despite a Guidelines mistake unless it is sure the mistake didn’t matter. A “Keene statement” is a clear on-the-record declaration by the judge that the same sentence would be imposed even if the Guidelines issue were decided the other way.

5. Conclusion

United States v. Jason Edward Lopez delivers two core messages. First, in the Eleventh Circuit, district courts may calculate fraud “loss” under U.S.S.G. § 2B1.1 using intended loss as the greater-of measure, consistent with United States v. Horn. Second, and more importantly for sentencing procedure, when a defendant is wrongly denied the third acceptance point under § 3E1.1(b), the government cannot salvage the sentence on harmless-error grounds without a clear record—particularly a clear Keene-type statement that the same sentence would have been imposed under the correct advisory range. The opinion thus strengthens incentives for accurate § 3E1.1(b) litigation, careful record-making, and explicit alternative-sentence findings when Guidelines disputes arise.