Date: Mar 9, 2026

Waiver of U.S.S.G. § 3E1.1(b) Objections by Conceding “No Objections” at Sentencing; Rule 36 Remand to Correct “Plea” Clerical Error

I. Introduction

In United States v. Collier (5th Cir. Mar. 6, 2026) (per curiam) (unpublished), the Fifth Circuit addressed two recurring sentencing-adjacent issues: (1) how a defendant can waive appellate review of a disputed Guidelines matter—here, the government’s refusal to move for the third-level acceptance reduction under U.S.S.G. § 3E1.1(b)—through counsel’s concessions at the sentencing hearing; and (2) when a limited remand is appropriate to correct a clerical error in the written judgment under Federal Rule of Criminal Procedure 36.

Background. Kimberly Christina Collier was stopped by police; officers found 2.2 kilograms of cocaine. She was charged with possession with intent to distribute, lost a suppression motion, obtained continuances, and proceeded to a stipulated bench trial to preserve appellate issues rather than accept a plea deal. The district court calculated a Guidelines range of 27–33 months but imposed a 15-month downward variance.

Key issues on appeal. Collier argued the court erred by “allowing” the government to withhold a § 3E1.1(b) motion. She also pointed out that the written judgment incorrectly stated she had pleaded guilty rather than being found guilty after a stipulated bench trial.

II. Summary of the Opinion

The Fifth Circuit affirmed Collier’s sentence and held that her challenge to the missing third-level reduction under § 3E1.1(b) was waived because counsel effectively abandoned the objection at sentencing by agreeing there were no objections that would affect the Guidelines and by arguing instead for a variance under 18 U.S.C. § 3553(a). The court additionally observed that § 3E1.1(b) is conditioned on a government motion and that, on this record, the government’s refusal did not present a clear legal defect.

Separately, the court remanded for the sole purpose of correcting a clerical error in the judgment under Rule 36: the judgment stated Collier “pleaded guilty” though she was found guilty following a stipulated bench trial.

III. Analysis

A. Precedents Cited

1. Standard of review: procedural vs. substantive sentencing

Gall v. United States, 552 U.S. 38 (2007): The opinion relies on Gall to separate (a) substantive reasonableness review (abuse of discretion) from (b) procedural correctness (including Guidelines calculation), treated here as reviewed de novo “as questions of law.”
United States v. Castillo, 779 F.3d 318 (5th Cir. 2015): Cited both to “accord” with the Gall framework and—more importantly—to describe limits and permissibility of prosecutorial discretion under § 3E1.1(b) (discussed below).
United States v. Goss, 549 F.3d 1013 (5th Cir. 2008) and United States v. Murray, 648 F.3d 251 (5th Cir. 2011): These cases are cited for the proposition that correct calculation of the Guidelines range is a procedural step subject to appellate scrutiny—framing Collier’s § 3E1.1(b) complaint as, in theory, a procedural challenge.

2. Government-motion requirement and discretion under § 3E1.1(b)

United States v. Castillo, 779 F.3d 318 (5th Cir. 2015): The panel uses Castillo to underscore the controlling principle that the government may withhold a § 3E1.1(b) motion so long as its reason is tied to an interest identified in § 3E1.1(b), and not based on a circumstance the Guidelines carve out as improper (the opinion gives the example of a “good-faith sentencing dispute”). In Collier, the panel reads the record as not showing that the withholding was an unconstitutional penalty for litigating suppression or appeal rights.

3. Waiver of PSR/Guidelines objections at sentencing

United States v. Musquiz, 45 F.3d 927 (5th Cir. 1995): Cited for the foundational Fifth Circuit rule that withdrawing or abandoning a PSR objection at sentencing generally results in waiver.
United States v. Rico, 864 F.3d 381 (5th Cir. 2017): Applied to reinforce that even a written objection can be waived when the defendant “consciously decided to forgo that objection” at the hearing.
United States v. Hernandez, No. 23-50529, 2024 WL 1990929 (5th Cir. 2024) (per curiam) (unpublished): Cited as a parallel unpublished example: written objections were “expressly waived” at sentencing and therefore were “not reviewable.”

4. Forfeiture/plain error as the alternative backstop

United States v. Quezada-Atayde, 148 F.4th 360 (5th Cir. 2025): Cited for the proposition that if a defendant had an opportunity to object and did not, review is for plain error.
United States v. Diggles, 957 F.3d 551 (5th Cir. 2020) (en banc): Cited (via Quezada-Atayde) to anchor the plain-error framework in the sentencing-objection context and to tie it to Fed. R. Crim. P. 52(b).

How these precedents influenced the outcome. Together, the cited cases create a two-step funnel: (1) the defendant must preserve the procedural Guidelines issue at sentencing; otherwise, (2) review is either barred (waiver) or highly constrained (plain error). The panel placed Collier in the first category—waiver—making the merits of her § 3E1.1(b) theory largely academic on appeal.

B. Legal Reasoning

1. The § 3E1.1(b) dispute in context: acceptance, resource-saving, and a government gatekeeper

The opinion distinguishes the two-level reduction in § 3E1.1(a) (acceptance of responsibility) from the additional one-level reduction in § 3E1.1(b), which is expressly conditioned on a government motion and is framed around timely notification of intent to plead guilty so as to save prosecutorial resources.

The panel notes the Guidelines’ own commentary: acceptance can still apply even when a defendant litigates certain constitutional issues (the opinion references the suppression context by pointing to § 3E1.1 cmt. 2). But the extra point under (b) is different: cmt. 6 emphasizes that only the government is “in the best position” to determine whether the defendant’s actions avoided trial preparation, thus requiring a formal motion.

2. The panel’s treatment of Collier’s textual argument

Collier argued the government’s refusal was inconsistent with the Guidelines, highlighting that “preparations for pretrial proceedings (such as … suppression motions) ordinarily are not considered ‘preparing for trial’” under § 3E1.1(b). The panel acknowledged she had a “reasonable basis” for that contention as a matter of textual fit.

However, the panel also emphasized countervailing record facts: Collier requested multiple continuances, proceeded to a stipulated bench trial, and the government had already been lenient in supporting the two-level acceptance reduction despite other defense themes (including references to duress). Against this backdrop, and given the government-motion requirement, the panel saw no clear legal basis to compel the motion—particularly because the opinion did not find the withholding to be retaliation for preserving suppression or appeal rights.

3. Dispositive ground: waiver at sentencing

The court treated waiver as the case’s pivot. Although counsel had previously filed a written objection regarding the missing § 3E1.1(b) motion, the sentencing colloquy ended with defense counsel effectively conceding the absence of live objections and confirming there was “nothing that would affect the Guidelines.” Under Musquiz and Rico, this amounted to a “conscious” abandonment of the issue, and therefore waiver.

4. Invited error and strategic success

The opinion also credits the government’s alternative framing: any procedural error claim was undermined by defense counsel’s strategic choice to accept the 27–33 month range and seek a § 3553(a) variance—a strategy that achieved a 15-month sentence. The panel cautioned against allowing a defendant to benefit from a tactic at sentencing and then obtain a second chance on appeal (“have her cake and eat it too”), a concern consistent with the invited-error doctrine even if the panel ultimately resolved the matter via waiver.

5. Rule 36 remand for the judgment’s “plea” misstatement

Finally, the panel applied Fed. R. Crim. P. 36 straightforwardly: the judgment’s statement that Collier pleaded guilty conflicted with the procedural reality (stipulated bench trial). Because this is a classic clerical mistake, the Fifth Circuit affirmed the conviction and sentence but remanded solely to correct the written record.

C. Impact

Preservation is outcome-determinative for Guidelines disputes. The case reinforces that a defendant can lose appellate review of a Guidelines issue—despite earlier written objections—if counsel’s sentencing statements are reasonably read as withdrawing or abandoning the objection.
§ 3E1.1(b) remains structurally prosecutorial. The opinion underscores that courts cannot simply award the third level absent a government motion, and that challenges to withholding must grapple with the government’s discretion and the commentary’s “best position” rationale.
Stipulated bench trials do not automatically secure § 3E1.1(b). Even where suppression litigation is not “trial preparation” in the ordinary sense, delays, continuances, and proceeding to trial (even stipulated) can complicate arguments that the government necessarily saved trial resources.
Clean records matter. The Rule 36 remand is a practical reminder: inaccuracies in the judgment about how guilt was adjudicated (plea vs trial) can and should be corrected, even when they do not affect the sentence length.

Note on precedential force. The opinion is “not designated for publication” under 5th Cir. R. 47.5, so it is not binding precedent in the same way as a published decision. But it is still informative of how the Fifth Circuit applies existing waiver and § 3E1.1(b) principles to common sentencing fact patterns.

IV. Complex Concepts Simplified

Acceptance of responsibility (§ 3E1.1(a)): A typical two-level decrease when a defendant clearly accepts responsibility. A guilty plea often supports it, but the Guidelines allow it even when a defendant litigates certain issues (like suppression) that do not necessarily deny factual guilt.
Third-level reduction (§ 3E1.1(b)): An extra one-level decrease available only when (among other criteria) the government files a motion, usually because the defendant’s timely intent to plead guilty saved the government from meaningful trial preparation.
Stipulated bench trial: A trial to the judge (not a jury) where key facts are agreed upon, often used to preserve appellate issues (e.g., suppression) without a full contested trial.
Downward variance: A sentence below the advisory Guidelines range based on the statutory sentencing factors in 18 U.S.C. § 3553(a), rather than a Guidelines “departure.”
Waiver vs. forfeiture (plain error): Waiver is an intentional relinquishment of a right—often making the issue unreviewable on appeal. Forfeiture is a failure to object; appellate review may still occur but only under the demanding plain error standard.
Invited error: A doctrine preventing a party from complaining on appeal about an error the party induced or strategically embraced in the district court.
Rule 36 clerical error: A mechanism allowing courts to correct mistakes in the written record (like mislabeling a conviction as resulting from a plea) without reopening the merits.

V. Conclusion

United States v. Collier is principally a case about sentencing preservation: even a potentially colorable textual argument about the scope and purpose of § 3E1.1(b) will not be reached when counsel affirmatively signals at sentencing that there are no objections affecting the Guidelines calculation. The decision also reaffirms the practical division of labor embedded in § 3E1.1(b): the additional level reduction is procedurally unavailable without a government motion, and any appellate challenge is constrained by both discretion and preservation doctrines. Finally, the opinion illustrates the narrow but important role of Rule 36 in keeping the written judgment accurate, remanding solely to correct the erroneous statement that Collier pleaded guilty.