Acceptance of responsibility after a new crime

A new crime before sentencing can cost the guidelines reduction for accepting responsibility, even when that crime is not the federal charge. On October 30, 2026, in a published opinion, the Eleventh Circuit affirmed a 96-month prison sentence in United States v. Lemaine, No. 24-14049, after holding that a robbery while on bond could support denying that reduction. Read the decision (PDF).

What happened

A federal grand jury in the Middle District of Florida indicted Chadwick Lemaine for possessing a firearm after a felony conviction, 18 U.S.C. § 922(g)(1) and § 924(a)(8). Officers had found a firearm in his vehicle during a traffic stop. He first pleaded not guilty. He later pleaded guilty without a plea agreement.

The prosecution asked that he be detained before trial under 18 U.S.C. § 3142. A magistrate judge granted bond and required home detention. At the guilty-plea hearing, the district court removed the home-detention condition, required an ankle monitor, and warned him twice that a bond violation would be taken into account at sentencing.

In late October 2024, shortly before sentencing, police arrested Lemaine for an armed robbery in Orlando. The district court revoked his bond. It said the prosecution had shown the robbery "well beyond the 51 percent mark."

The first presentence report applied USSG §3E1.1 from the November 2025 Guidelines Manual and calculated a range of 37 to 46 months. After the robbery arrest, probation prepared a new report and did not give the acceptance reduction. The range rose to 51 to 63 months. The prosecution asked for a four-level variance above that range, calculated a resulting span of 77 to 96 months, and requested 96 months. The court imposed 96 months in prison and three years of supervised release.

The guideline

Section 3E1.1(a) says the judge decreases the offense level by 2 levels if the defendant "clearly demonstrates acceptance of responsibility for his offense." That sentence is the same in the Guidelines Manual that took effect on November 1, 2026. The Commission's historical note lists the last amendment to §3E1.1 as November 1, 2023. Subsection (b) allows one more level, and only on a government motion, when the offense level before subsection (a) is 16 or higher and the person gave timely notice of a guilty plea so the government could avoid preparing for trial.

The current commentary says a timely guilty plea, together with a truthful admission of the offense, is "significant evidence" of acceptance. It also says that evidence "may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility," and that a person who pleads guilty "is not entitled to an adjustment under this section as a matter of right." One factor the commentary lists is "voluntary termination or withdrawal from criminal conduct or associations."

The Lemaine panel did not treat that commentary as the ground for its holding. It described an earlier en banc decision, United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023), as holding that a court does not defer to guideline commentary until it decides the guideline text is ambiguous. The panel decided the question from the text of §3E1.1(a).

What the court decided

Later conduct can defeat the reduction. Lemaine argued that §3E1.1 asks only whether he acknowledged the gun charge, so a different crime could not matter. The court read "demonstrates" to include conduct as well as words. It read "for his offense" to mean he must accept responsibility for the offense of conviction. Those words still allow the judge to consider other conduct when deciding whether the acceptance is real. The panel held that the district court could consider the robbery, and that the judge did not clearly err in finding that the robbery undercut Lemaine's acceptance of the gun charge. How far other conduct counts is left to the sentencing judge on the record in the case.

The panel said this matches earlier Eleventh Circuit law, including United States v. Pace, 17 F.3d 341 (11th Cir. 1994), which it described as allowing a judge to consider later criminal conduct unrelated to the offense of conviction. Because those cases fit the guideline text, the court held that Dupree did not undo them. Lemaine had not made this legal argument in the district court. The panel therefore used plain-error review. An error is plain only when it is clear or obvious, and the panel found no error.

The robbery finding stood. For a fact used at sentencing, the Eleventh Circuit requires proof by a preponderance of the evidence, meaning the fact is more likely true than not. Lemaine objected to the finding that he committed the robbery, so the panel reviewed that finding for clear error. Clear error means the appeals court is left with a definite and firm conviction that a mistake was made. The panel found no clear error. It pointed to ankle-monitor data placing him at the site, a tracking device subscribed in his name, sightings of a vehicle registered to the mother of his children, text messages with another person before the robbery, and location data for the stolen phone. It also held that the district court could find the robbery was armed from testimony about the victim's account that the robbers had guns, even though no gun was recovered.

The burden mix-up was harmless. To revoke bond for a new crime, 18 U.S.C. § 3148(b)(1)(A) uses probable cause to believe the person committed a federal, state, or local crime while on release. That standard is lower than preponderance. At sentencing, the district judge said the burden would be the same as at the bond hearing. The panel called that a misstatement. It still affirmed on this point, because the bond finding had been "well beyond the 51 percent mark," and at sentencing the judge said he was "100 percent convinced" Lemaine committed the robbery.

The same conduct can support a higher sentence. Lemaine argued that the court used the robbery twice: once to deny the reduction, and again to go above the guideline range. The panel rejected that argument. It relied on United States v. Taylor, 997 F.3d 1348 (11th Cir. 2021), which it described as allowing a sentence above the range based on conduct already used in the guideline calculation. The opinion also tied the variance to 18 U.S.C. § 3553(a). The robbery was part of Lemaine's history. He was on bond when it happened, which the court treated as a reason for the sentence to promote respect for the law. The judge also treated his record as a reason to protect the public from further crimes. The 96-month sentence is below the 15-year maximum in § 924(a)(8). The court affirmed the conviction and the sentence.

What it means at sentencing

• A guilty plea does not lock in the reduction. In the Eleventh Circuit, a plea and an admission can be outweighed by later conduct. A new crime before the sentencing hearing is conduct this decision treats as relevant. The judge still decides, on the facts of the case, whether that conduct undercuts acceptance.
• The new crime does not have to be the federal charge. Lemaine was a felon-in-possession case. The conduct that cost the reduction was a robbery the sentencing judge found by a preponderance. That finding is not a conviction, and it is not proof beyond a reasonable doubt.
• One set of facts can change both the range and the sentence above it. Removing the reduction moved the range from 37 to 46 months to 51 to 63 months. The court then imposed 96 months.
• The decision governs district courts in Alabama, Florida, and Georgia.

Our guides to federal sentencing, federal gun charges, release before trial, and appeals in the Eleventh Circuit explain the hearing, the charge, bond, and how a circuit ruling is reviewed.