United States v. Antonio Brown

USCA11 Case: 23-13326 Document: 79-1 Date Filed: 10/08/2026 Page: 1 of 23 FOR PUBLICATION In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 23-13326 ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ANTONIO BROWN, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:22-cr-00336-KKM-CPT-1 ____________________ Before JORDAN, JILL PRYOR, and NEWSOM, Circuit Judges. NEWSOM, Circuit Judge: Antonio Brown pleaded guilty to two armed robberies and was sentenced to 17 years’ imprisonment. He raises three chal- lenges on appeal. First, he argues that the government breached his plea agreement and that the district court erred by failing to USCA11 Case: 23-13326 Document: 79-1 Date Filed: 10/08/2026 Page: 2 of 23 2 Opinion of the Court 23-13326 remedy the breach sua sponte. Second, Brown asserts that the dis- trict court erred by imposing a two-level sentencing enhancement applicable to convicted robbers who “physically restrain[]” their victims. And third, he contends that the district court imposed a substantively unreasonable sentence. With respect to the first issue, we hold that the district court didn’t err because the government didn’t breach the plea agree- ment. With respect to the second issue, though, we hold that, in light of recent amendments to the physical-restraint Sentencing Guideline that apply retroactively, the district court plainly erred in applying the two-level enhancement. We therefore vacate Brown’s sentence and remand for resentencing. Having done so, we needn’t reach Brown’s substantive-reasonableness challenge to his sen- tence. I A Brown and his co-defendant, Steven Jackson, robbed two auto-parts stores in Tampa, Florida. Armed with handguns and wearing masks, the two men first entered an O’Reilly Auto Parts. They brandished their guns and ordered the employees to give them the money in the cash registers and the contents of the store’s safe. The employees handed over about $300 from the registers but couldn’t open the safe. After collecting the cash, Brown and Jackson ordered the employees and a customer to lie down in the back of the store and stay there while the two fled. USCA11 Case: 23-13326 Document: 79-1 Date Filed: 10/08/2026 Page: 3 of 23 23-13326 Opinion of the Court 3 Brown and Jackson next targeted an Advance Auto Parts, where events unfolded similarly. They entered the store, bran- dished their weapons, and ordered the employees to empty the safe and the cash registers. Once again, the employees couldn’t open the safe, but they forked over about $1,140 from the registers. And once again, Brown and Jackson directed the employees to the back of the store and told them to lie down, at which point the pair fled. Surveillance footage captured them escaping both stores in a dis- tinctive vehicle. Later that evening, police officers spotted Brown driving a car matching the description of the one involved in the robberies and pulled him over for a traffic violation. After smelling marijuana in the car, the officers searched it and found the clothing and mask that Brown had worn during the hold-ups, Jackson’s wallet, and about $1,000 in cash. Both men were ultimately arrested. B Brown was charged with five counts: two counts of Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951(a)–(b) and 18 U.S.C. § 2; one count of conspiracy to commit Hobbs Act robbery, in vio- lation of 18 U.S.C. §§ 1951(a)–(b); and two counts of brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 18 U.S.C. § 2. Brown pleaded guilty to all counts except one of the bran- dishing counts, which would have carried a mandatory seven-year consecutive sentence, see 18 U.S.C. §§ 924(c)(1)(A)(ii), but which the USCA11 Case: 23-13326 Document: 79-1 Date Filed: 10/08/2026 Page: 4 of 23 4 Opinion of the Court 23-13326 government agreed to drop as part of the plea deal. The govern- ment also agreed to recommend a within-guidelines sentence, but it expressly reserved the right to report “all information concerning the background, character, and conduct of the defendant, to pro- vide relevant factual information, including the totality of the de- fendant’s criminal activities, . . . to respond to comments made by the defendant or defendant’s counsel, and to correct any misstate- ments or inaccuracies.” Plea Agreement at 12, Dkt. No. 63. In the run-up to sentencing, a probation officer prepared a pre-sentence investigation report (PSR). The PSR recommended two enhancements: a five-level enhancement under U.S.S.G. § 2B3.1(b)(2)(C), which applies to instances in which the offender “brandished” a firearm, and a two-level enhancement under § 2B3.1(b)(4)(B), which, at the time, applied to instances in which a convicted robber “physically restrained” a victim. The PSR also detailed Brown’s lengthy criminal history. Because much of the Brown’s history was unscored, the PSR identified it as warranting an upward departure from the Guidelines range. After the prepa- ration of the PSR but before sentencing, the district court notified the parties that it was considering a departure. The district court then held two successive sentencing hear- ings. At the first hearing, the prosecutor acknowledged that the government was bound by the plea agreement to recommend “[n]o more than” a top-of-the-Guidelines sentence, which he urged the court to impose. Sent’g Hr’g Tr. I at 17, Dkt. No. 136. Brown, for his part, objected to the facts in the PSR, arguing that two of his USCA11 Case: 23-13326 Document: 79-1 Date Filed: 10/08/2026 Page: 5 of 23 23-13326 Opinion of the Court 5 prior convictions weren’t actually for separate crimes. The court stayed sentencing for three weeks to allow the parties to investigate that issue. Brown’s sentencing resumed at a second hearing a few weeks later. Because the record of Brown’s past convictions indi- cated that they were indeed for separate crimes, he withdrew his factual objection to the PSR. The prosecutor reiterated the gov- ernment’s view that “the top of the Guidelines is the appropriate sentence.” Sent’g Hr’g Tr. II at 8, Dkt. No. 137. He opined that a top-of-the-Guidelines sentence “would be possibly considered leni- ent by some,” but he acknowledged that the government had “agreed to advocate for” it. Id. at 7. After considering the 18 U.S.C. § 3553(a) factors—with a particular focus on Brown’s crimi- nal history—the district court decided to vary upward. The court sentenced Brown to 204 months’ imprisonment: 120 months for the Hobbs Act charges, and a consecutive 84 months for the bran- dishing charge. 1 After Brown appealed and the case was fully briefed, the Sen- tencing Commission amended § 2B3.1(b)(4)(B), abrogating our 1 Brown had a total offense level of 25 (including the two-level § 2B3.1(b)(4)(B) “physical[] restrain[t]” enhancement at issue here) and a criminal-history cate- gory of III, which resulted in a Guidelines range of 70–87 months for the Hobbs Act charges. In the absence of the “physical[] restrain[t]” enhancement, a total offense level of 23 with the same criminal-history category would have netted a range of 57–71 months. See U.S.S.G. ch. 5, pt. A. USCA11 Case: 23-13326 Document: 79-1 Date Filed: 10/08/2026 Page: 6 of 23 6 Opinion of the Court 23-13326 previous interpretation of it. We ordered and the parties filed sup- plemental briefs addressing the amendment’s relevance. II Ordinarily, we review de novo both whether the government breached a plea agreement, United States v. Hunter, 835 F.3d 1320, 1324 (11th Cir. 2016), and the district court’s “interpretation and application of the Sentencing Guidelines,” United States v. Dupree, 57 F.4th 1269, 1272 (11th Cir. 2023) (en banc). But when a defend- ant raises his challenges for the first time on appeal, we review for plain error. See Puckett v. United States, 556 U.S. 129, 135–36 (2009) (breach of plea agreement); United States v. Aguilar-Ibarra, 740 F.3d 587, 592 (11th Cir. 2014) (interpretation of the Sentencing Guide- lines). The plain-error standard comprises four factors: The de- fendant must show (1) that the district court committed an error (2) that is plain and (3) that affects his substantial rights. Rosales- Mireles v. United States, 585 U.S. 129, 134 (2018). If the defendant succeeds in demonstrating those three prerequisites, we may exer- cise our discretion to correct the error if (4) it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. at 135 (citation modified). III Because Brown didn’t raise his challenges regarding a breach of the plea agreement and the two-level sentencing enhancement in the district court, we review both for plain error. Our analysis proceeds in two parts. First, we hold that the government didn’t USCA11 Case: 23-13326 Document: 79-1 Date Filed: 10/08/2026 Page: 7 of 23 23-13326 Opinion of the Court 7 breach Brown’s plea agreement and, accordingly, that the district court didn’t plainly err by failing to remedy the breach sua sponte. Second, we hold that because U.S.S.G. § 2B3.1(b)(4)(B) was amended after the district court announced Brown’s sentence, and because the amendment applies retroactively, the district court (through no fault of its own) plainly erred in imposing the two-level “physical[] restrain[t]” enhancement. A We first consider whether the government breached Brown’s plea agreement and whether the district court erred by failing to remedy that alleged breach sua sponte. The government didn’t breach the agreement, so the court didn’t err. The government must keep the promises it makes in an agreement “that induce[] the defendant to plead guilty.” United States v. Sosa, 782 F.3d 630, 637 (11th Cir. 2015) (quoting United States v. Horsfall, 552 F.3d 1275, 1281 (11th Cir. 2008)). To assess whether the government breached, we (1) “determine the scope of the government’s promises” and (2) “ask whether the govern- ment’s actions were inconsistent with what the defendant reasona- bly understood when he entered his guilty plea.” Id. (citation mod- ified). A court should not read implied-in-law terms into a plea agreement. See United States v. Benchimol, 471 U.S. 453, 455 (1985) (per curiam). In the plea agreement, the government agreed to recom- mend a within-Guidelines sentence. And at the two sentencing hearings, the prosecutor made good on that promise. At the first USCA11 Case: 23-13326 Document: 79-1 Date Filed: 10/08/2026 Page: 8 of 23 8 Opinion of the Court 23-13326 hearing, he acknowledged that the government was bound by the plea agreement to recommend “[n]o more than” a top-of-the- Guidelines sentence. Sent’g Hr’g Tr. I at 17–19. And at the second hearing, he said that “the top of the Guidelines is . . . appropriate.” Sent’g Hr’g Tr. II at 8. He acknowledged that a top-of-the-Guide- lines sentence “would be possibly considered lenient by some,” but he reiterated that the government had “agreed to advocate for” it. Id. at 7. Consistent with its position from the outset, the prosecutor opposed Brown’s request for a lower sentence, because, he said, “the top of the Guidelines should be the lowest the Court should go.” Id. at 7–8. On appeal, Brown contends that the prosecutor was obliged to advocate for, and not in any way undermine, the recommended sentence—an obligation, Brown says, that the prosecutor breached when he implied that he regretted the government’s sentencing promise. For support, Brown relies heavily on our predecessor court’s decision in United States v. Grandinetti, 564 F.2d 723 (5th Cir. 1977). We held that the plea agreement in that case entitled the defendant to “a forceful and intelligent recommendation” of the agreed-upon sentence, and that the prosecutor breached the agree- ment by questioning the “legality” and “propriety” of the sentence and thereby “in effect[] argu[ing] against it.” Id. at 725, 727. Brown insists that the prosecutor’s tepid recommendation here is compa- rable to the conduct we condemned in Grandinetti. Respectfully, we disagree, especially when we consider the Supreme Court’s ensuing decision in United States v. Benchimol, 471 USCA11 Case: 23-13326 Document: 79-1 Date Filed: 10/08/2026 Page: 9 of 23 23-13326 Opinion of the Court 9 U.S. 453, 455 (1985) (per curiam). There, the Court clarified that the government has no obligation to “enthusiastically” recom- mend a particular sentence unless the plea-bargaining parties con- tracted for such enthusiasm. Id. at 455. Notably, the Court distin- guished Grandinetti as a case about “reservations” more substantive than mere “less-than-enthusiastic support for leniency.” Id. at 456. Together, it seems to us, Grandinetti and Benchimol stand for the proposition that the government doesn’t breach a plea agreement by offering a halfhearted or grudging recommendation; rather, to breach the agreement, the prosecutor must functionally “argue[] against it.” See Grandinetti, 564 F.2d at 727. In subsequent cases, we have continued to flesh out the dis- tinction between prosecutorial comments that breach a plea agree- ment and those that don’t. Most conspicuous is United States v. Levy, 374 F.3d 1023 (11th Cir. 2004), vacated on other grounds, 545 U.S. 1101 (2005), reinstated, 416 F.3d 1273 (11th Cir. 2005). There, the prosecutor said that he might be able to present evidence to support a sentencing enhancement but that, “with a heavy heart,” he couldn’t do so because his “hands [were] bound” by the agree- ment’s terms. Id. at 1028. Even on those facts—which seem to us if anything a bit worse than those in this case—we held that the government “clearly did not violate [the] plea agreement.” Id. at 1034 (emphasis added); see also, e.g., United States v. Carrazana, 921 F.2d 1557, 1569 (11th Cir. 1991) (finding no breach even where, de- spite the government’s agreement not to make any recommenda- tion regarding the length of the sentence, the prosecutor said that USCA11 Case: 23-13326 Document: 79-1 Date Filed: 10/08/2026 Page: 10 of 23 10 Opinion of the Court 23-13326 he “[couldn’t] believe” that the defense would recommend a 20- year sentence). The prosecutor’s comments here weren’t nearly as trou- bling as those in Grandinetti; he never, for instance, raised “personal reservations,” Benchimol, 471 U.S. at 456, about the “legality” or the objective “propriety” of Brown’s sentence, Grandinetti, 564 F.2d at 725. Nor, for that matter, did he melodramatically lament that it was only with a “heavy heart” that he was going along with the recommended sentence. Levy, 374 F.3d at 1028. The worst that can be said of the prosecutor’s comments here is that he acknowl- edged that a top-of-the-Guidelines sentence “would be possibly considered lenient by some.” Sent’g Hr’g Tr. II at 7. Under the law as it has developed since Grandinetti, that’s not a breach. B Next, we consider whether the district court plainly erred by imposing a two-level sentencing enhancement applicable to offend- ers who “physically restrain[]” robbery victims. U.S.S.G. § 2B3.1(b)(4)(B) (2021). Recall the four prongs for plain-error review: As an initial matter, the defendant must show (1) that the district court erred, (2) that the court’s error was plain, and (3) that the error affects his substantial rights. Rosales-Mireles, 585 U.S. at 134. If those boxes are checked, we will correct the error if (4) it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. at 135 (quoting Molina-Martinez v. United States, 578 U.S. 189, 194 (2016)). Importantly here, we consider the plainness of the alleged USCA11 Case: 23-13326 Document: 79-1 Date Filed: 10/08/2026 Page: 11 of 23 23-13326 Opinion of the Court 11 error “at the time of appellate consideration,” not at the time it occurred. United States v. Cingari, 952 F.3d 1301, 1305 n.1 (11th Cir. 2020) (quoting United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005)). It will take a bit of explaining, but we conclude that because (1) the relevant Sentencing Guideline was amended after Brown’s sentencing hearing in a way that renders it inapplicable to his con- duct, and (2) the amendment applies retroactively, the district court plainly erred. 1 First up, error. In light of the recent amendment of U.S.S.G. § 2B3.1(b)(4)(B), which we conclude is properly applied retroac- tively, we conclude that the district court erred. We’ll assess the error in two steps: by detailing the amendment and then by evalu- ating the propriety of the amendment’s retroactive application. a In 2022, when Brown was sentenced, § 2B3.1(b)(4)(B) pro- vided for a two-level enhancement “if any person was physically restrained to facilitate commission of the offense or to facilitate es- cape.” U.S.S.G. § 2B3.1(b)(4)(B) (2021). At that time, the Guide- lines’ commentary defined the term “physically restrained” as “the forcible restraint of the victim such as by being tied, bound, or locked up.” U.S.S.G. § 1B1.1 cmt. n.1(L) (2021); see id. § 2B3.1 cmt. n.1 (2021) (incorporating § 1B1.1’s definition). Despite the com- mentary’s references to tying, binding, and locking, we interpreted the term “physically restrained” broadly, holding that it applied USCA11 Case: 23-13326 Document: 79-1 Date Filed: 10/08/2026 Page: 12 of 23 12 Opinion of the Court 23-13326 whenever “a defendant creates circumstances allowing his victims no alternative but compliance.” United States v. Deleon, 116 F.4th 1260, 1263 (11th Cir. 2024) (citation modified); accord United States v. Jones, 32 F.3d 1512, 1519 (11th Cir. 1994). So, for example, we held that a robber “physically restrained” a store clerk when he pointed a gun at him and demanded money. See Deleon, 116 F.4th at 1264. That interpretation—with which some of our judges disagreed 2— put us on one side of a circuit split alongside the First, Fourth, Sixth, and Tenth Circuits. United States v. Wallace, 461 F.3d 15, 34– 35 (1st Cir. 2006); United States v. Dimache, 665 F.3d 603, 608 (4th Cir. 2011); United States v. Howell, 17 F.4th 673, 692 (6th Cir. 2021); United States v. Miera, 539 F.3d 1232, 1235–36 (10th Cir. 2008). On the other side, the Second, Third, Fifth, Seventh, and Ninth Circuits inter- preted § 2B3.1(b)(4)(B) more narrowly—in particular, to require more than the “psychological coercion of pointing a gun.” U.S.S.G. app. C, amend. 832 (2025); see also United States v. Anglin, 169 F.3d 154, 164 (2d Cir. 1999); United States v. Bell, 947 F.3d 49, 57 (3d Cir. 2020); United States v. Garcia, 857 F.3d 708, 713–14 (5th Cir. 2017); United States v. Herman, 930 F.3d 872, 877 (7th Cir. 2019); United States v. Parker, 241 F.3d 1114, 1118–19 (9th Cir. 2001). Last year, to “address[ the] circuit conflict[]” that had arisen regarding § 2B3.1(b)(4)(B)’s meaning, the Sentencing Commission amended the Guideline to make the enhancement applicable when 2 See Deleon, 116 F.4th at 1265–66 (Rosenbaum, J., concurring); id. at 1270 (Newsom, J., concurring). USCA11 Case: 23-13326 Document: 79-1 Date Filed: 10/08/2026 Page: 13 of 23 23-13326 Opinion of the Court 13 “any person’s freedom of movement was restricted through phys- ical contact or confinement, such as by being tied, bound, or locked up.” U.S.S.G. § 2B3.1(b)(4)(B); see also id. app. C, amend. 832 (2025) (“This two-part amendment addresses circuit conflicts involving § 2B3.1 (Robbery) . . . .”). Here’s the change in graphic form, with the new language in bold: [I]f any person was physically restrained person’s freedom of movement was restricted through physical contact or confinement, such as by being tied, bound, or locked up, to facilitate commission of the offense or to facilitate escape, increase by 2 lev- els. Most conspicuously, the amendment made two changes. First, it scrapped the term “physically restrained” in favor of a reference to the restriction of a person’s “freedom of movement” through “physical contact or confinement.” And second, it brought the ex- emplary clause—“such as by being tied, bound, or locked up”— from the commentary into the text of the Guideline itself. As a reminder, during each of his robberies, Brown bran- dished a firearm and ordered people to lie down in the back of the store while he fled, but there is no evidence that he used “physical contact” of the sort described in the amended Guideline, let alone that he “tied, bound, or locked up” anyone. Brown’s conduct, therefore, triggered the § 2B3.1(b)(4)(B) enhancement under our previous interpretation, but may well not trigger the enhancement USCA11 Case: 23-13326 Document: 79-1 Date Filed: 10/08/2026 Page: 14 of 23 14 Opinion of the Court 23-13326 under the amended version’s plain text. Put simply, the two-level enhancement might not apply to him anymore. b Of course, the amended text matters only if the new Guide- line applies retroactively. Generally, when reviewing the district court’s application of the Guidelines, we “appl[y] the version of the [G]uidelines in effect on the date of the sentencing hearing.” United States v. Jerchower, 631 F.3d 1181, 1184 (11th Cir. 2011) (quoting United States v. Descent, 292 F.3d 703, 707 (11th Cir. 2002)). If, though, a subsequent amendment “clarifies” rather than substan- tively changes a Guideline, we will apply it retroactively. Id. A clar- ifying amendment applies retroactively because rather than change a Guideline’s meaning, it simply confirms its preexisting meaning. See id.; Descent, 292 F.3d at 707–08. Accordingly, our task here is to determine whether the 2025 amendment of § 2B3.1(b)(4)(B) “is substantive or clarifying.” Jerchower, 631 F.3d at 1185. Applying the traditional considerations, we conclude that the amendment is “clarifying” and, therefore, applies retroactively. We consider four factors in determining whether an amend- ment is clarifying or substantive. First, we ask “whether the amendment alters the text of the Guideline or alters only the com- mentary.” Id. On the one hand, changes to actual Guideline text “strongly suggest[]” that an amendment is substantive. United States v. Summers, 176 F.3d 1328, 1331 (11th Cir. 1999). On the other, if an amendment “simply moves longstanding commentary to the [Guideline] text,” then it may be clarifying. United States v. Horn, USCA11 Case: 23-13326 Document: 79-1 Date Filed: 10/08/2026 Page: 15 of 23 23-13326 Opinion of the Court 15 129 F.4th 1275, 1300 (11th Cir. 2025). Second, we ask “whether the Commission has described an amendment as clarifying or whether its statements in the amendment commentary reflect a substantive change in the punishment for an offense.” Jerchower, 631 F.3d at 1185. Importantly, we have observed that if a Guideline amend- ment reflects the Commission’s intent to resolve a circuit split, the amendment is more likely to be clarifying than substantive. See id. at 1187; Horn, 129 F.4th at 1301. Third, we ask “whether the Com- mission has included the amendment in the list of retroactive amendments in § 1B1.10([d]).” 3 Jerchower, 631 F.3d at 1185. Omis- sion from that list suggests that an amendment is substantive. De- scent, 292 F.3d at 709. Fourth and finally, we ask whether an amend- ment overturns circuit precedent. If it does, that “suggests a sub- stantive change.” Jerchower, 631 F.3d at 1185. If, by contrast, the amendment simply “clarifies a meaning that was inherent in the original Guideline,” then it “could be considered clarifying.” Id. (quoting Summers, 176 F.3d at 1331). On balance, we conclude that these factors indicate that the 2025 amendment of § 2B3.1(b)(4)(B) is clarifying, rather than sub- stantive—and, therefore, that it applies retroactively. Let us ex- plain. First, as already noted, the amendment’s primary change is to pull language from the commentary—essentially verbatim— 3 When Jerchower was decided, this list was in § 1B1.10(c); it’s now in § 1B1.10(d). USCA11 Case: 23-13326 Document: 79-1 Date Filed: 10/08/2026 Page: 16 of 23 16 Opinion of the Court 23-13326 into the Guideline’s text. Again, before the amendment, the com- mentary defined the term “physically restrained” as “the forcible restraint of the victim such as by being tied, bound, or locked up.” U.S.S.G. § 1B1.1 cmt. n.1(L) (2021); see id. § 2B3.1 cmt. n.1 (2021) (incorporating § 1B1.1’s definition). As amended, the Guideline’s text states, almost identically, that the enhancement applies if “any person’s freedom of movement was restricted through physical contact or confinement, such as by being tied, bound, or locked up.” U.S.S.G. § 2B3.1(b)(4)(B) (2025) (emphasis added). As already ex- plained, under our precedent, an amendment’s “move[ment of ] longstanding commentary to the [Guideline’s] text” indicates that the amendment is clarifying rather than substantive. Horn, 129 F.4th at 1300. Second, the Commission’s own description of the amend- ment suggests that it is clarifying: The Commission said that the amendment of § 2B3.1(b)(4)(B) was designed “[t]o promote uni- formity and consistency in [G]uideline application” by resolving a circuit split, U.S.S.G. app. C, amend. 832 (2025), and, even more ex- pressly, that it “adopt[ed] the approach” taken by the Second, Third, Fifth, Seventh, and Ninth Circuits. Id. Notably, the Supreme Court has underscored the Commission’s congressionally author- ized mission to “make whatever clarifying revisions to the Guide- lines conflicting judicial decisions might suggest.” Braxton v. United States, 500 U.S. 344, 348 (1991) (emphasis added). And, accordingly, the Court has said that it will exercise “restrain[t] and circum- spect[ion] in using [its] certiorari power” to address Guideline-re- lated circuit splits—precisely to permit the Commission to resolve USCA11 Case: 23-13326 Document: 79-1 Date Filed: 10/08/2026 Page: 17 of 23 23-13326 Opinion of the Court 17 such splits via clarifying, retroactive amendments. Id. (indicating that the Commission’s “unusual explicit power to decide whether and to what extent its amendments reducing sentences will be given retroactive effect” counsels giving the Commission the first crack at resolving circuit splits). Here, the Commission seems to have viewed the amendment as ratifying one side’s interpretation of § 2B3.1(b)(4)(B) rather than giving the provision an entirely new meaning—a point in favor of treating the amendment as clarify- ing.4 Third, the amendment isn’t listed in § 1B1.10(d)’s catalogue of retroactive amendments—which, under our precedent, counsels in favor of treating it as substantive. See Descent, 292 F.3d at 709. 5 4 It’s true, as the government says, that the Commission didn’t explicitly use a form of the term “clarifying” in describing the § 2B3.1(b)(4)(B) amendment, as it did in describing the contemporaneous § 4A1.2 amendment. See U.S.S.G. app. C, amend. 832 (2025). As we understand it, though, our precedent privi- leges substance over form, and doesn’t require any magic-words recitation. 5 One caveat about the third factor: Our decision in Descent didn’t cite any authority to support its suggestion that an amendment’s inclusion in § 1B1.10(d) is probative of its clarifying nature. The underlying statutes, 28 U.S.C. § 994(o) and 18 U.S.C. § 3582(c)(2), appear to grant the Commission broad authority to make retroactive amendments “in consideration of com- ments and data coming to its attention.” 28 U.S.C. § 994(o). And it’s not clear why that authority wouldn’t at least permit the Commission to make retroac- tive substantive amendments. So it may turn out that an amendment listed in § 1B1.10(d) could be either clarifying or substantive—and, therefore, that the list itself is at least partially orthogonal to the substantive/clarifying distinc- tion. But it’s neither here nor there—Descent is binding on us, and, under its direction, we conclude that the § 2B3.1(b)(4)(B) amendment’s omission from the list weighs in favor of treating it as substantive. USCA11 Case: 23-13326 Document: 79-1 Date Filed: 10/08/2026 Page: 18 of 23 18 Opinion of the Court 23-13326 After Descent, we held that this factor doesn’t weigh heavily when the Guideline amendment doesn’t result in reduced terms of im- prisonment. See Horn, 129 F.4th at 1301 (“[A]lthough Amendment 827 is not included in a list of retroactive amendments in § 1B1.10(d), that fact does not weigh heavily here, since § 1B1.10 pertains only to amendments that result in reduced terms of im- prisonment, which is not applicable.”). Because Amendment 832 likewise doesn’t result in reduced terms of imprisonment—quite the opposite, in fact—the third factor doesn’t weigh heavily either way. Fourth, in amending § 2B3.1(b)(4)(B), the Commission abro- gated Deleon and the other cases on our side of the circuit split. Or- dinarily, a revision that overturns existing precedent is deemed to be substantive. But not always; we have to assess the particular cir- cumstances of the abrogation. Here, the Commission resolved a robust circuit split over § 2B3.1(b)(4)(B)’s proper interpretation. The circuits had taken diametrically opposed views, all but elimi- nating a “third way,” so to speak. Because the Commission was choosing between two stark alternatives, one side’s reading of the Guideline was essentially bound to be adopted, and the other side’s was essentially bound to be abrogated. And importantly, as already explained, in adopting the amended version, the Commission didn’t so much break new ground as it rejected one view (ours) and adopted another—indicating, we think, that the amendment “clar- ifie[d] a meaning that was inherent in the original Guideline” all along. Jerchower, 631 F.3d at 1185 (quoting Summers, 176 F.3d at USCA11 Case: 23-13326 Document: 79-1 Date Filed: 10/08/2026 Page: 19 of 23 23-13326 Opinion of the Court 19 1331). So to the extent the fourth factor cuts one way, we think it actually favors treating the amendment as clarifying. * * * On balance, the pertinent factors indicate to us that the amendment of § 2B3.1(b)(4)(B) was clarifying rather than substan- tive. Accordingly, we hold that the amendment applies retroac- tively—meaning that the district court erred in relying on our old law to impose the two-level enhancement. 2 Second, plainness. “An error is plain if it is obvious and clear under current law” at the time we conduct our review. United States v. Johnson, 981 F.3d 1171, 1179 (11th Cir. 2020) (citation modified); see Cingari, 952 F.3d at 1305 n.1 (observing that the plainness of the alleged error is determined “at the time of appellate consideration” (quoting Rodriguez, 398 F.3d at 1299)). Section 2B3.1(b)(4)(B) now clearly states that, to qualify for the enhancement, a defendant must employ “physical contact or confinement.” Accordingly, it is now clear that the district court applied the wrong legal standard at sentencing, relying instead on our previous interpretation of the old version of the Guideline. Therefore, the district court’s error was plain. The government contends that any error couldn’t have been plain because (1) the enhancement was proper under then-existing precedent and (2) only an intervening decision from the Supreme Court or this Court can make an error plain that wasn’t clear at the time it occurred. Even a clarifying amendment isn’t like a court USCA11 Case: 23-13326 Document: 79-1 Date Filed: 10/08/2026 Page: 20 of 23 20 Opinion of the Court 23-13326 decision, the government asserts, because it doesn’t clarify “what the [provision] has always meant.” Supplemental Br. of Appellee at 4 (quotation marks omitted) (quoting Rivers v. Roadway Express, Inc., 511 U.S. 298, 313 n.12 (1994)). With respect, we disagree. That’s exactly what a clarifying amendment does. Indeed, as al- ready explained, under our precedent, a clarifying amendment ap- plies retroactively precisely because it doesn’t change a Guideline but rather explains what the Guideline meant all along. See supra at 14; Descent, 292 F.3d at 707–08. Accordingly, in light of the 2025 amendment, which we have held to be clarifying and thus retroac- tively applicable, the district court’s imposition of the two-level en- hancement wasn’t proper at the time of sentencing, regardless of what our then-existing precedent said. Cf. Henderson v. United States, 568 U.S. 266, 269 (2013) (“[A]s long as the error was plain as of . . . the time of appellate review . . . the error is ‘plain’ within the meaning of [Rule 52(b)].”). 3 Third, whether the error affects Brown’s substantial rights. See Rosales-Mireles, 585 U.S. at 134–35. Candidly, there’s evidence going both ways. We conclude, though, that there is “a reasonable probability that, but for the error,” Brown would have received a different sentence. Id. (Molina-Martinez, 578 U.S. at 194). As a general matter, “a defendant who has shown that the district court mistakenly deemed applicable an incorrect, higher Guidelines range” demonstrates prejudice to his substantial rights. USCA11 Case: 23-13326 Document: 79-1 Date Filed: 10/08/2026 Page: 21 of 23 23-13326 Opinion of the Court 21 United States v. Thomas, 108 F.4th 1351, 1356 (11th Cir. 2024) (quot- ing Molina-Martinez, 578 U.S. at 200). But not always. Evidence “that the district court thought the sentence it chose was appropri- ate irrespective