United States v. Chadwick Lemaine
CourtCourt of Appeals for the Eleventh Circuit
Date FiledOctober 30, 2026
Docket24-14049
StatusPublished
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Full Opinion
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FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-14049
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHADWICK LEMAINE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:23-cr-00233-CEM-RMN-1
____________________
Before WILLIAM PRYOR, Chief Judge, GRANT, and LUCK, Circuit
Judges.
WILLIAM PRYOR, Chief Judge:
This appeal requires us to decide whether the district court
reversibly erred in finding that Chadwick Lemaine committed an
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2 Opinion of the Court 24-14049
armed robbery while on bond, whether it plainly erred in consid-
ering that armed robbery when it denied Lemaine a reduction in
his offense level for acceptance of responsibility under the Sentenc-
ing Guidelines, and whether it imposed an unreasonable sentence.
Because the district court committed no reversible error, we af-
firm.
I. BACKGROUND
Chadwick Lemaine is a felon previously convicted of armed
burglary of a dwelling, burglary of a dwelling, and grand theft of a
firearm. When officers searched Lemaine’s vehicle during a traffic
stop, they found a firearm. A federal grand jury later indicted Le-
maine for possessing a firearm as a felon. See 18 U.S.C. §§ 922(g)(1),
924(a)(8). He initially pleaded not guilty. Although the prosecution
requested pretrial detention, see id. § 3142(f)(1)(E), a magistrate
judge granted Lemaine bond but required home detention.
Lemaine later pleaded guilty without an agreement. At Le-
maine’s change-of-plea hearing, his counsel requested the removal
of the home-detention condition. The district court obliged. But it
twice warned Lemaine that if he violated bond, it would adjust his
sentence accordingly. It also required him to wear an ankle moni-
tor.
In late October 2024—shortly before Lemaine’s sentencing
hearing—police arrested him for armed robbery. The district court
postponed his sentencing hearing and instead held a bond revoca-
tion hearing. At that hearing, Detective Gregory Nash of the Or-
ange County Sheriff’s Office testified about being called to the
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24-14049 Opinion of the Court 3
scene of a robbery in Orlando, Florida, at 12:22 a.m. on October
20, 2024. The victim told him that two black males in ski masks
approached her outside her residence while she walked to her ve-
hicle. One of them held “an unknown pistol,” and the other held
“a Draco-style pistol.” They pointed the guns at her and ordered
her to give them her valuables. They stole $5,000 in cash, her cell
phone, and what she estimated to be about $90,000 worth of jew-
elry. One robber fled on foot, and the other went west in a white
sport-utility vehicle on Clarcona Ocoee Road.
Detective Nash then testified that a neighbor’s Ring camera
captured the robbery in minimal detail. That footage also showed
a white Mercedes-Benz sport-utility vehicle arrive at 10:12 p.m.,
well before the robbery. A license-plate-reader camera showed a
vehicle matching that description at 10:06 p.m. just four to six
minutes from the robbery site, which matched the time needed to
arrive by 10:12 p.m. That vehicle was registered to Cory Vanessa
Woods. Woods is the mother of Lemaine’s children. Around
1:30 a.m., detectives went to Woods’s house and saw the vehicle
in her driveway. They then watched two black males leave the
house in another vehicle. The detectives stopped the moving vehi-
cle and identified Lemaine as the driver.
Location data from Lemaine’s ankle monitor showed that
he arrived at the robbery site at 10:12 p.m., which matched the time
when the white Mercedes-Benz arrived in the Ring video. The data
also showed that Lemaine left the site at 12:22 a.m., soon after the
robbery, and headed westbound on Clarcona Ocoee Road. And the
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data placed him at Woods’s house by 12:36 a.m. Location data also
showed that the victim’s stolen phone was near Woods’s house
soon after the robbery.
On cross-examination, Detective Nash testified that investi-
gators found no stolen phone, jewelry, cash, or firearms when they
searched Woods’s house. Detective Nash also stated that the vic-
tim’s opinion was the only evidence that the robbers’ firearms were
real.
The district court determined that the prosecution “estab-
lished that [what the prosecution alleged] happened well beyond
the 51 percent mark”—that is, that “the [prosecution] has estab-
lished [under] the probable cause standard [that] the defendant vi-
olated his conditions of release.” The district court revoked Le-
maine’s bond.
An initial presentence report calculated Lemaine’s guideline
imprisonment range for his felon-in-possession charge as 37 to 46
months. That report reduced his offense level because Lemaine ac-
cepted responsibility for his offense. See United States Sentencing
Guidelines Manual § 3E1.1 (Nov. 2025). After the robbery charge,
the United States Probation Office prepared a new presentence re-
port.
The new report did not grant Lemaine a reduction for ac-
cepting responsibility. His new guideline imprisonment range was
51 to 63 months. The prosecution then moved for a four-level “up-
ward variance” to account for Lemaine’s presentencing robbery.
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24-14049 Opinion of the Court 5
The prosecution calculated that the resulting sentencing range
would be 77 to 96 months and requested a 96-month sentence.
At the sentencing hearing, the prosecution first argued that
Lemaine should not receive a reduction to his offense level for ac-
cepting responsibility because he committed armed robbery while
on bond. To confirm that Lemaine committed armed robbery, the
prosecution offered to have Detective Nash testify about only the
“new evidence secured” from the “ongoing investigation,” or even
“start from the very beginning.” The district court responded that
the prosecution could “certainly ask [it] to incorporate by reference
the evidence [the prosecution] previously presented, because the
burden is going to be the same at sentencing as it was for revoca-
tion” and the record included the previous testimony. For his part,
defense counsel stated that “the defense would not object . . . to
[the district court] considering prior testimony and evidence.” The
district court then “encourage[d]” the prosecution to present any
“evidence that was not developed previously” so the district court
could be “more certain . . . in [its] decision making.” The prosecu-
tion obliged.
Detective Nash testified that the locations of Lemaine’s
phone, the co-conspirator’s phone, and the victim’s stolen phone
coincided with the robbery and events immediately afterward. Le-
maine’s cell phone connected to Ms. Woods’s vehicle. Detective
Nash also recounted the victim’s statement that the robbers told
her, “Don’t move,” and she told them, “Please don’t kill me.” See
United States v. Kennedy, 146 F.4th 1054, 1072 (11th Cir. 2025)
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6 Opinion of the Court 24-14049
(“[R]eliable hearsay is admissible during a sentencing procedure,
and the sentencing judge does not need to make explicit findings
about the reliability of that testimony.” (citation modified)). Based
on itemized receipts, the total value of “the items . . . stolen from”
the victim was approximately $97,000. On cross-examination, De-
tective Nash acknowledged that none of the stolen items or fire-
arms had been recovered, and that the firearms were not visible in
the Ring video of the robbery.
The victim’s vehicle also tied Lemaine to the robbery. The
night of the robbery, the victim was using a vehicle that she often
borrowed. About two weeks after the robbery, the owner of that
borrowed vehicle took it to a mechanic, who found “an Optimus
2.0 tracking device” on it. Lemaine was the “subscriber” for the de-
vice, and it was registered to his phone number and to “two email
addresses that were associated with” him. The tracking device was
also connected to a Visa debit card under his name. And the device
had been to Woods’s residence and another location where Le-
maine stayed. The device and Lemaine’s ankle monitor were both
at the victim’s residence on September 15 for about two hours but
then tracked Lemaine until the night of the robbery. That evidence
reflects that Lemaine went to the victim’s house on September 15
with the tracking device but did not attach it to her vehicle, instead
keeping it with him until the robbery. After the robbery, the
tracker’s location matched that of the vehicle the victim borrowed.
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Lemaine’s cell phone contained several text messages be-
tween him and his co-conspirator before the early-morning Octo-
ber 20 robbery. On October 16, Lemaine’s co-conspirator in-
structed him to “[b]e locked in for the weekend” for “make or
break time.” Twenty minutes later, Lemaine’s co-conspirator re-
minded him that it was “15 days until sentencing” and added that
it was “[t]ime to get it on” and that they were “locked in for the
weekend” regardless of “whatever f[e]ll after that.” Lemaine re-
plied, “Say that.” And on October 19, Lemaine’s co-conspirator
told him to “[s]ee if we can get that tonight,” to which Lemaine
explained that he was “trying” but “[s]he [was] playing it hard.”
Lemaine stated two objections to his second presentence re-
port. The first was that the report should have reduced his offense
level because he accepted responsibility for his offense. And the sec-
ond was that the report should not have accepted the armed-rob-
bery allegation because there was insufficient evidence that Le-
maine carried a firearm during the robbery.
The district court overruled Lemaine’s objections. It ex-
plained that Lemaine did not earn a reduction for acceptance of
responsibility because he engaged in “a course of conduct that vio-
lated the conditions of release.” And it explained that, as “the trier
of fact,” it was entitled to determine “whether or not [to] believe”
testimony that the victim “w[as] robbed [at] gunpoint.”
When the district court asked Lemaine’s counsel for any “ar-
gument on the sentence,” counsel conceded that neither “[t]he
guidelines” nor “the case law” supported Lemaine’s entitlement to
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8 Opinion of the Court 24-14049
a reduction to his offense level for accepting responsibility. That is,
counsel confirmed that the district court could deny the reduction
“based on precedent.” But he still appealed to the sentencing
court’s “discretion[]” by “request[ing] the [c]ourt’s consideration
for variance purposes” that Lemaine pleaded guilty. Counsel ar-
gued that failing to treat Lemaine’s plea as an acceptance of respon-
sibility would give other defendants who plead an incentive “to
withdraw [their] plea[s]” in like situations because “the guidelines
would be the same” anyway.
The district court sentenced Lemaine to 96 months’ impris-
onment and three years of supervised release. It recounted its ear-
lier warning “that if [Lemaine] violated the conditions of release,
depending on what the violation was, there are potentially going
to be consequences for it.” It stated that the prosecution “alleged
and proved circumstantially, overwhelmingly with circumstantial
evidence, . . . that [Lemaine] committed a robbery.” It stated that
Lemaine’s “attorney [wa]s right that technically there’s no firearm,
so he can argue credibly that” a real firearm was not used in the
robbery. And it explained that “[t]here’s robbery with a weapon in
. . . Florida [and] [t]here’s simple robbery in . . . Florida,” for which
“[a]ll you have to do is induce fear of imminent serious bodily harm
in someone.” It suggested that Lemaine’s objection to the finding
of armed robbery was essentially “play[ing] with semantics” be-
cause failure to satisfy the firearm element would still mean Le-
maine committed robbery. It added that it was “100 percent con-
vinced that” Lemaine committed robbery. And it found that Le-
maine had “proven [him]self to be a dangerous person” in the light
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24-14049 Opinion of the Court 9
of the text messages he exchanged with his co-conspirator. To the
district court, those messages suggested that Lemaine decided to
have a “last hurrah before [he] went away for a while.” Finally, the
district court stated that if the prosecutor asked for “10 years” or
“15 years,” it “wouldn’t have a problem with that either because
[it] th[ought] [Lemaine had] proven [him]self to be a dangerous
person.” At the end of the hearing, Lemaine objected generally “on
procedural and substantive reasonableness” grounds.
II. STANDARDS OF REVIEW
“We review for plain error issues raised for the first time on
appeal.” United States v. Innocent, 977 F.3d 1077, 1081 (11th Cir.
2020). We instead review for clear error preserved objections to
factual findings. United States v. Coats, 8 F.4th 1228, 1261–62 (11th
Cir. 2021). And we review the substantive reasonableness of a sen-
tence for an abuse of discretion. United States v. Boone, 97 F.4th
1331, 1339 (11th Cir. 2024).
III. DISCUSSION
We divide this discussion into three parts. First, we explain
that the district court did not reversibly err in finding that Lemaine
committed the armed robbery. Second, we hold that the district
court did not plainly err in considering Lemaine’s armed robbery
to deny him an offense-level reduction for accepting responsibility.
And third, we conclude that Lemaine’s sentence is substantively
reasonable.
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10 Opinion of the Court 24-14049
A. The District Court Did Not Reversibly Err in Finding that
Lemaine Committed Armed Robbery.
Lemaine argues that the district court applied the wrong
burden of proof in assessing whether, at sentencing, the prosecu-
tion proved that Lemaine committed armed robbery. Because Le-
maine’s objection to the armed-robbery finding was “not clear
enough to inform the district court of th[is] legal basis for [his] ob-
jection . . . the objection is not properly preserved,” and we review
for plain error. See United States v. Massey, 443 F.3d 814, 819 (11th
Cir. 2006).
Different burdens of proof apply at bond revocation and at
sentencing. At sentencing, “the government must prove the facts
. . . by a preponderance of the evidence.” United States v. Shenberg,
89 F.3d 1461, 1476 (11th Cir. 1996). But to revoke a defendant’s pre-
trial release because he committed a new offense while on bond, a
district court may rely on mere “probable cause to believe that the
person has committed” that offense. 18 U.S.C. § 3148(b)(1)(A). De-
spite these differing burdens, the district court said at Lemaine’s
sentencing that “the burden is going to be the same at sentencing
as it was for revocation.”
Notwithstanding its misstatement of the prosecution’s bur-
den of proof at sentencing, the district court still required the pros-
ecution to satisfy the correct burden. At Lemaine’s bond revoca-
tion hearing, the district court found that “the [prosecution] has
established that [the armed robbery] happened well beyond the 51
percent mark”—that is, by a preponderance of the evidence. See
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United States v. Watkins, 10 F.4th 1179, 1184–85 (11th Cir. 2021) (en
banc) (explaining that the “preponderance standard of proof” is sat-
isfied with “proof that persuades the trier of fact that a proposition
is more likely true than not” (citation modified)). And at sentencing
the district court explained that it would hold the prosecution to
the same burden of proof as it had at the bond revocation hearing.
So, although the district court mistakenly suggested that the same
burden applied at both bond revocation and sentencing, it still ap-
plied the correct standard at sentencing by adopting its use of pre-
ponderance from the revocation hearing. Any “misstatement was
harmless.” See Dunn v. Comm’r, Ala. Dep’t of Corr., 179 F.4th 1277,
1322 (11th Cir. 2026).
Indeed, the district court determined that the prosecution
satisfied an even higher burden than required at sentencing. The
district court became “100 percent convinced that [Lemaine] did
[the robbery]” after the prosecution “proved” Lemaine’s involve-
ment “overwhelmingly.” Again, any misstatement was harmless.
See United States v. Brennan, 326 F.3d 176, 200 & n.7 (3d Cir. 2003)
(district court thrice misstating who had the burden of proof at sen-
tencing was harmless error because it “ultimately placed the bur-
den where it belonged” and, “[i]f anything . . . raised the bar for the
[g]overnment by applying the clear and convincing evidence stand-
ard”).
Lemaine also argues that the district court could not find
armed robbery by a preponderance of the evidence. Lemaine ob-
jected to that factual finding, so we review for clear error whether
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sufficient evidence supported the finding. Coats, 8 F.4th at 1262.
“For a finding to be clearly erroneous, this Court must be left with
a definite and firm conviction that a mistake has been committed.”
United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010) (cita-
tion modified). If instead “the district court’s account of the evi-
dence is plausible in [the] light of the record viewed in its entirety,”
we must affirm. United States v. Matthews, 3 F.4th 1286, 1289 (11th
Cir. 2021) (citation modified).
The district court did not clearly err in finding at sentencing
that Lemaine committed the armed robbery. The circumstantial
evidence placing Lemaine at the scene of the robbery came from
multiple sources: his ankle monitor’s location data; the tracking de-
vice’s location data; and the sightings of the vehicle on the Ring
camera, on traffic cameras, in Woods’s driveway, and its connec-
tion with Lemaine’s phone. The evidence implicating him in the
robbery is likewise substantial, including the text messages be-
tween Lemaine and his alleged co-conspirator and the location data
of the victim’s stolen phone that tracked Lemaine’s location imme-
diately after the robbery. It is not enough that the victim’s stolen
jewelry and phone were never recovered because other evidence
supports the finding that Lemaine more likely than not committed
the armed robbery.
Lemaine contends that even if the district court did not
clearly err in finding a robbery, it clearly erred in finding an armed
one. He highlights that the prosecution offered no physical evi-
dence that Lemaine “carried a firearm or other deadly weapon”—
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24-14049 Opinion of the Court 13
an element of armed robbery—instead of, say, a fake or a toy. See
FLA. STAT. § 812.13(2)(a); see also id. § 790.001(9) (defining “fire-
arm”). The district court referred to this point when it said that
“technically there’s no firearm.” But the district court could still
find that Lemaine committed armed robbery based on Detective
Nash’s testimony about the victim’s account that the robbers car-
ried firearms that made her fear for her life. See United States v. Hunt,
187 F.3d 1269, 1270–71 (11th Cir. 1999) (holding that “the testi-
mony of . . . two witnesses regarding the gun” that “was never re-
covered,” plus “surveillance photographs and . . . videotape of . . .
[the defendant] holding what appeared to be a gun,” was sufficient
to find beyond a reasonable doubt that a defendant carried “a real
gun” during a bank robbery).
B. The District Court Did Not Plainly Err in Considering the
Armed Robbery for Purposes of Section 3E1.1.
Lemaine’s only challenge to the district court denying him
an offense-level reduction under section 3E1.1 is that it could not
consider the armed robbery in making that decision. Although we
generally review a denial of a reduction under section 3E1.1 for
clear error, United States v. Smith, 22 F.4th 1236, 1242 (11th Cir.
2022), we review Lemaine’s legal argument for plain error because
he did not object on this ground in the district court. “An error is
plain if it is ‘clear’ or ‘obvious.’” Innocent, 977 F.3d at 1081 (quoting
United States v. Olano, 507 U.S. 725, 734 (1993)). “Of course, there
can be no plain error if there was no error at all.” United States v.
Pielago, 135 F.3d 703, 709 (11th Cir. 1998).
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The district court committed no error in considering Le-
maine’s pre-sentencing armed robbery. If a “defendant clearly
demonstrates acceptance of responsibility for his offense,” sec-
tion 3E1.1 directs the district court to “decrease [his] offense level.”
The word “clearly” sets the defendant’s burden of proving his ac-
ceptance of responsibility for his offense “[u]nequivocal[ly]”—that
is, “[w]ithout . . . confusion . . . or uncertainty.” Clearly, BLACK’S
LAW DICTIONARY (6th ed. 1990). And the word “demonstrates”
means that a district court may consider not only a defendant’s
words but also his conduct in determining whether it was clear that
he accepted responsibility for his offense. Demonstrate, BLACK’S
LAW DICTIONARY, supra (“To teach by exhibition of samples.”);
Demonstrate, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY
(1993) (“[T]o make evident or reveal as true by reasoning pro-
cesses, concrete facts and evidence, experimentation, operation, or
repeated examples.”). The phrase “for his offense” dictates for what
a defendant must clearly prove he accepted responsibility. That is,
to establish his entitlement to a reduction under section 3E1.1, a
defendant must accept responsibility for only the offense for which
he was convicted and is being sentenced.
That leaves the phrase “acceptance of responsibility.” “Re-
sponsibility” can mean “moral, legal, or mental accountability.” Re-
sponsibility, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY,
supra. But “nonlawyers use th[e] term in moral senses.” Responsi-
bility, GARNER’S DICTIONARY OF LEGAL USAGE (3d ed. 2011). Be-
cause “[w]ords are to be understood in their ordinary, everyday
meanings,” ANTONIN SCALIA & BRYAN A. GARNER, READING LAW:
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24-14049 Opinion of the Court 15
THE INTERPRETATION OF LEGAL TEXTS § 6, at 69 (2012), we inter-
pret section 3E1.1 to require a defendant to accept that he is mor-
ally accountable for his offense in the sense that he is “answerable
. . . to his conscience,” Accountable, WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY, supra. And in this context, to “accept”
something means “to regard [it] and hold [it] as true,” or “believe
in” it. Accept, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY,
supra.
Altogether, to obtain an offense-level reduction under sec-
tion 3E1.1, a defendant must establish through his words and his
conduct that he believes that he did something morally wrong
when he committed his offense of conviction. Words or conduct
inconsistent with such a belief provide a district court good reason
to deny the reduction. See United States v. Williams, 627 F.3d 839,
844 (11th Cir. 2010) (stating that the guideline’s “plain language”
illustrates that it “is intended to reward defendants who express
contrition for their wrongdoing and evidence a desire to reform
their conduct”). Even a dictionary Lemaine cites supports the con-
struction that the district court could consider his armed robbery
in denying the reduction. Acceptance of Responsibility, MERRIAM-
WEBSTER.COM LEGAL DICTIONARY, https://perma.cc/MZA3-
UC56 (“[A] convicted federal defendant’s acknowledgement of and
remorse for his . . . crime . . . .” (emphasis added)). To hold instead
that a defendant who “obviously d[oes] not cease his life of crime”
must receive a reduction under section 3E1.1 would be “so ludi-
crous as . . . to compromise the public reputation of judicial pro-
ceedings.” Puckett v. United States, 556 U.S. 129, 143 (2009).
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Lemaine contends that section 3E1.1 “simply directs a court
to determine whether a defendant has acknowledged and ex-
pressed remorse for the conduct relating to his underlying offense.”
But that interpretation ignores the word “demonstrate,” which di-
rects the district court to consider more than a defendant’s words.
Additionally, a necessary implication of Lemaine’s position—albeit
one that Lemaine’s counsel disavowed at oral argument—is that
any defendant who pleads guilty and makes even a barebones state-
ment of contrition is entitled to a reduction under section 3E1.1.
But “clearly” is surplusage under that construction because there is
no way to unclearly satisfy those requirements. See SCALIA &
GARNER, supra, § 26, at 174 (“If possible, every word . . . is to be
given effect . . . . None should be ignored.”).
Lemaine also contends that because the phrase “for his of-
fense” modifies “acceptance of responsibility,” the guideline does
not allow a district court to consider “criminal conduct that is un-
related to the underlying offense.” But when “for his offense” mod-
ifies “acceptance of responsibility,” it suggests nothing about what
a district court may consider relevant to the sincerity of a defend-
ant’s acceptance of responsibility for his offense.
Lemaine tries to bolster his construction using the amend-
ment history of section 3E1.1(a). The original guideline required a
defendant to demonstrate acceptance “for the offense of convic-
tion.” U.S.S.G. § 3E1.1(a) (Oct. 1987). It was then amended to re-
quire acceptance “for his criminal conduct.” U.S.S.G. § 3E1.1(a)
(Jan. 1988). And it was later amended again to require acceptance
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24-14049 Opinion of the Court 17
only “for his offense.” U.S.S.G. § 3E1.1(a) (Nov. 1992). As Lemaine
acknowledges, this last change was to clarify only that a defendant
need not admit to uncharged criminal conduct to earn the reduc-
tion because a circuit split had developed over whether such a re-
quirement would violate the Fifth Amendment. See SUSAN
WINARSKY, DAVID DEBOLD & RICHARD MCNEIL, U.S. SENT’G
COMM’N, ACCEPTANCE OF RESPONSIBILITY WORKING GROUP
REPORT 16–18, 21, 26 (1991). Compare United States v. Frierson, 945
F.2d 650, 662–64 (3d Cir. 1991) (court may consider defendant’s de-
nial of relevant conduct in denying acceptance-of-responsibility re-
duction), United States v. Gordon, 895 F.2d 932, 936 (4th Cir. 1990)
(same), United States v. Mourning, 914 F.2d 699, 705–06 (5th Cir.
1990) (same), and United States v. Ignancio Munio, 909 F.2d 436, 439–
40 & n.4 (11th Cir. 1990) (same), with United States v. Perez-Franco,
873 F.2d 455, 463–64 (1st Cir. 1989) (conditioning acceptance-of-
responsibility reduction on defendant’s admission to relevant con-
duct would violate Fifth Amendment’s prohibition on self-incrimi-
nation, so the guideline is best interpreted to avoid that deficiency);
United States v. Oliveras, 905 F.2d 623, 626–29 (2d Cir. 1990) (same);
United States v. Piper, 918 F.2d 839, 840–41 (9th Cir. 1990) (same).
Nothing about the amendment history changes whether
courts can consider post-plea conduct. Whether a defendant admits
to such conduct is irrelevant to section 3E1.1 today. Instead, the
issue is whether that conduct—admitted or not—undermines the
defendant’s attempt to establish that he accepted responsibility for
his offense of conviction. See United States v. Pace, 17 F.3d 341, 344
(11th Cir. 1994) (stating that the 1992 amendment “was not made
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18 Opinion of the Court 24-14049
to take from the district court the discretion to consider the defend-
ant’s continued criminal conduct”).
Again, “his offense” in section 3E1.1 dictates only for what a
defendant must accept responsibility; it does not suggest anything
about how he may or may not clearly demonstrate his acceptance.
Of course, if a defendant continues to engage in conduct mirroring
his original offense, a district court may easily conclude that a de-
fendant has not accepted the moral wrongfulness of that conduct.
But it is within the district court’s discretion to determine the ex-
tent to which other conduct also speaks to acceptance.
The government asserts that our prior-panel-precedent rule
compels the foregoing conclusion. See United States v. Scroggins, 880
F.2d 1204, 1215–16 (11th Cir. 1989) (affirming consideration of a
drug-offense defendant’s post-plea drug use); Pace, 17 F.3d at 343–
44 (affirming consideration of “subsequent criminal conduct that is
unrelated to the offense of conviction”). Lemaine counters that be-
cause those precedents were based on the commentary to sec-
tion 3E1.1, our holding in United States v. Dupree abrogated them.
57 F.4th 1269, 1279 (11th Cir. 2023) (en banc) (holding that courts
cannot defer to a guideline’s commentary until determining that
the guideline itself is ambiguous). Because our precedents are con-
sistent with the text of section 3E1.1, Dupree did not abrogate them.
In determining whether to grant Lemaine an offense-level
reduction under section 3E1.1, the district court could consider his
armed robbery. And it did not clearly err in determining that the
armed robbery vitiated Lemaine’s attempt to demonstrate that he
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24-14049 Opinion of the Court 19
accepted responsibility for his offense of conviction. See Smith, 22
F.4th at 1242; see also United States v. Knight, 562 F.3d 1314, 1322
(11th Cir. 2009) (“[A] denial of a reduction of sentence for an ac-
ceptance of responsibility . . . is entitled to great deference on re-
view and should not be disturbed unless it is without foundation.”
(citation modified)). Because the district court committed no error,
we do not reach the government’s argument that any error was
invited.
C. Lemaine’s Sentence Is Substantively Reasonable.
When a district court varies above the range the sentencing
guidelines recommend, we “must give due deference to the district
court’s decision that the [section] 3553(a) factors, on a whole, jus-
tify the extent of the variance.” Gall v. United States, 552 U.S. 38, 51
(2007); see also 18 U.S.C. § 3553(a). We vacate only if “we are left
with the definite and firm conviction that the district court com-
mitted a clear error of judgment in weighing the [section] 3553(a)
factors by arriving at a sentence that lies outside the range of rea-
sonable sentences dictated by the facts of the case.” United States v.
Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (citation modi-
fied).
Lemaine argues that his sentence is substantively unreason-
able because the district court “doubly punished” him by basing
both “the denial of the 3-point acceptance of responsibility deduc-
tion and the addition of the 4-point upward variance” on the armed
robbery. But we have held that a “district court may vary upward
based on conduct that was already considered in calculating the
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20 Opinion of the Court 24-14049
guideline range.” United States v. Taylor, 997 F.3d 1348, 1355 (11th
Cir. 2021). So, the district court could consider the armed robbery
not only to deny a reduction under section 3E1.1 but also to vary
above the guideline range.
Lemaine’s armed robbery was also relevant to multiple sec-
tion 3553(a) factors and provided adequate support for the vari-
ance. The robbery formed part of “the history . . . of the defend-
ant.” See 18 U.S.C. § 3553(a)(1). Lemaine committed it while on
bond, as a “last hurrah before [he] went away for a while,” which
supports a harsher sentence “to promote respect for the law.” See
id. § 3553(a)(2)(A). And the robbery supported the finding that Le-
maine was “dangerous,” a “characteristic[] of the defendant,” see id.
§ 3553(a)(1), that makes a longer sentence appropriate “to protect
the public from further crimes of the defendant,” see id.
§ 3553(a)(2)(C). “Finally, a sentence imposed well below the statu-
tory maximum penalty is an indicator of a reasonable sentence.”
Taylor, 997 F.3d at 1355. Here, the statutory maximum term is 15
years, 18 U.S.C. § 924(a)(8)—nearly twice Lemaine’s sentence. His
sentence is substantively reasonable.
IV. CONCLUSION
We AFFIRM Lemaine’s conviction and sentence.