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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 challenges on appeal. First, he argues that the government breached
his plea agreement and that the district court erred by failing to
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remedy the breach sua sponte. Second, Brown asserts that the district 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 agreement. 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 sentence.
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.
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Brown and Jackson next targeted an Advance Auto Parts,
where events unfolded similarly. They entered the store, brandished 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 distinctive 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 violation 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 brandishing counts, which would have carried a mandatory seven-year
consecutive sentence, see 18 U.S.C. §§ 924(c)(1)(A)(ii), but which the
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government agreed to drop as part of the plea deal. The government 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 provide relevant factual information, including the totality of the defendant’s criminal activities, . . . to respond to comments made by
the defendant or defendant’s counsel, and to correct any misstatements 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 preparation 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 hearings. 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
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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 indicated that they were indeed for separate crimes, he withdrew his
factual objection to the PSR. The prosecutor reiterated the government’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 lenient 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 criminal 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 brandishing charge. 1
After Brown appealed and the case was fully briefed, the Sentencing 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 category 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.
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previous interpretation of it. We ordered and the parties filed supplemental 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 defendant 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 Guidelines).
The plain-error standard comprises four factors: The defendant must show (1) that the district court committed an error
(2) that is plain and (3) that affects his substantial rights. RosalesMireles v. United States, 585 U.S. 129, 134 (2018). If the defendant
succeeds in demonstrating those three prerequisites, we may exercise 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
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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 government’s actions were inconsistent with what the defendant reasonably understood when he entered his guilty plea.” Id. (citation modified). 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 recommend a within-Guidelines sentence. And at the two sentencing
hearings, the prosecutor made good on that promise. At the first
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hearing, he acknowledged that the government was bound by the
plea agreement to recommend “[n]o more than” a top-of-theGuidelines 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-Guidelines 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 agreement 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 comparable 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
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U.S. 453, 455 (1985) (per curiam). There, the Court clarified that
the government has no obligation to “enthusiastically” recommend a particular sentence unless the plea-bargaining parties contracted for such enthusiasm. Id. at 455. Notably, the Court distinguished 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 distinction between prosecutorial comments that breach a plea agreement 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 agreement’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, despite the government’s agreement not to make any recommendation regarding the length of the sentence, the prosecutor said that
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he “[couldn’t] believe” that the defense would recommend a 20-year sentence).
The prosecutor’s comments here weren’t nearly as troubling 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 acknowledged 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 offenders 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
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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 conduct, 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 retroactively, we conclude that the district court erred. We’ll assess the
error in two steps: by detailing the amendment and then by evaluating the propriety of the amendment’s retroactive application.
a
In 2022, when Brown was sentenced, § 2B3.1(b)(4)(B) provided for a two-level enhancement “if any person was physically
restrained to facilitate commission of the offense or to facilitate escape.” U.S.S.G. § 2B3.1(b)(4)(B) (2021). At that time, the Guidelines’ 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 commentary’s references to tying, binding, and locking, we interpreted
the term “physically restrained” broadly, holding that it applied
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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 interpreted § 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).
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“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); 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 levels.
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 exemplary 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 brandished 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
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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 Guideline 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 substantively changes a Guideline, we will apply it retroactively. Id. A clarifying 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 amendment is clarifying or substantive. First, we ask “whether the
amendment alters the text of the Guideline or alters only the commentary.” 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,
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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 amendment 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 Commission has included the amendment in the list of retroactive
amendments in § 1B1.10([d]).” 3 Jerchower, 631 F.3d at 1185. Omission from that list suggests that an amendment is substantive. Descent, 292 F.3d at 709. Fourth and finally, we ask whether an amendment overturns circuit precedent. If it does, that “suggests a substantive 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 substantive—and, therefore, that it applies retroactively. Let us explain.
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).
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into the Guideline’s text. Again, before the amendment, the 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). 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 explained, 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 amendment suggests that it is clarifying: The Commission said that the
amendment of § 2B3.1(b)(4)(B) was designed “[t]o promote uniformity and consistency in [G]uideline application” by resolving a
circuit split, U.S.S.G. app. C, amend. 832 (2025), and, even more expressly, 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 authorized mission to “make whatever clarifying revisions to the Guidelines 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 circumspect[ion] in using [its] certiorari power” to address Guideline-related circuit splits—precisely to permit the Commission to resolve
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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 clarifying.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 privileges 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 comments 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 retroactive 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 distinction. 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.
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After Descent, we held that this factor doesn’t weigh heavily when
the Guideline amendment doesn’t result in reduced terms of imprisonment. 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 imprisonment, 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 abrogated Deleon and the other cases on our side of the circuit split. Ordinarily, a revision that overturns existing precedent is deemed to
be substantive. But not always; we have to assess the particular circumstances 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 eliminating 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 “clarifie[d] a meaning that was inherent in the original Guideline” all
along. Jerchower, 631 F.3d at 1185 (quoting Summers, 176 F.3d at
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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 substantive. Accordingly, we hold that the amendment applies retroactively—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
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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 already explained, under our precedent, a clarifying amendment applies 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 retroactively applicable, the district court’s imposition of the two-level enhancement 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.
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United States v. Thomas, 108 F.4th 1351, 1356 (11th Cir. 2024) (quoting Molina-Martinez, 578 U.S. at 200). But not always. Evidence
“that the district court thought the sentence it chose was appropriate irrespective of the Guidelines range,” Molina-Martinez, 578 U.S.
at 200, or the fact that the sentence is well above the Guidelines
range, “can be a powerful indicator that a guidelines error did not
impact a defendant’s substantial rights,” Thomas, 108 F.4th at 1357
(citation modified).
To be sure, the district court here offered a lengthy discussion of its decision to vary upward, focusing on Brown’s criminal
history and his pattern of recidivism. But it’s unclear whether the
court did so (1) because it thought the sentence length was appropriate irrespective of the Guidelines range or (2) because it thought
a 33-month upward variance was appropriate irrespective of the
Guidelines range and then applied that variance to the top of the
range. If the latter, it’s possible that, without the two-level enhancement, the court would have applied the same upward variance but anchored it to a lower Guidelines range. And the court
didn’t issue what we call a “Keene statement”—i.e., it didn’t say that
it would impose the same sentence regardless of any error in its
Guidelines calculations. See United States v. Keene, 470 F.3d 1347,
1348 (11th Cir. 2006).
For these reasons, we conclude that there is a reasonable
probability—not an absolute certainty, but a reasonable probability—that Brown’s sentence would have been different absent the
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two-level enhancement. Accordingly, we hold that the error prejudiced his substantial rights.
4
Lastly, our discretion. As the Supreme Court recently clarified, “[a] plain Guidelines error that affects a defendant’s substantial
rights is precisely the type of error that ordinarily warrants relief.”
Rosales-Mireles, 585 U.S. at 139. If we declined to correct this error,
we would “risk [the] unnecessary deprivation of liberty” and
thereby “undermine[] the fairness, integrity, [and] public reputation of judicial proceedings.” Id. at 140. We will, therefore, exercise our discretion to correct the error here.
* * *
To summarize, the district court plainly erred by applying
the two-level enhancement based on our prior interpretation of the
relevant Guideline. Now that the Guideline has been amended to
clarify its original meaning, Brown should have a shot at resentencing under the proper legal standard.
To be clear, nothing in this opinion precludes the district
court on remand from concluding (again) that a 204-month sentence is appropriate. District courts are uniquely suited to consider
and balance the totality of a criminal defendant’s circumstances,
and we afford them great deference in determining variances absent errors of the sort we have corrected today. See Concepcion v.
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United States, 597 U.S. 481, 501 (2022); Gall v. United States, 552 U.S.
38, 51 (2007). 6
IV
We hold that the government did not breach the plea agreement, and we therefore AFFIRM Brown’s convictions. But because the district court plainly erred in applying § 2B3.1(b)(4)(B)’s
two-level sentencing enhancement, we VACATE his sentence and
REMAND for resentencing.
6 As already noted, because we vacate Brown’s sentence and remand for resentencing, we needn’t address his separate argument that his sentence was
substantively unreasonable.