United States of America v. Lafiamma C. Orona

In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 21-1734
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LAFIAMMA C. ORONA,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 20-cr-00049-DRL-MGG-1 — Damon R. Leichty, Judge.
____________________
ARGUED FEBRUARY 23, 2022 — DECIDED OCTOBER 1, 2024
____________________
Before SYKES, Chief Judge, and FLAUM and KANNE,* Circuit
Judges.
SYKES, Chief Judge. Lafiamma Orona was indicted for mail
theft, identity theft, and other crimes stemming from his
months-long scheme of stealing mail—including credit cards,
* Circuit Judge Kanne died while this case has been under advisement, so
the appeal is being resolved by a quorum of the panel. See 28 U.S.C.
§ 46(d).

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2 No. 21-1734
checks, and other personal identifying documents—from
mailboxes in Elkhart County, Indiana. About six weeks before
trial, he pleaded guilty to all charges.
An offender who enters a timely guilty plea and truthfully
admits his offense conduct receives a two-point reduction in
his offense level under the Sentencing Guidelines. See U.S.S.G.
§ 3E1.1(a). An additional one-level reduction is possible, but
only if the government requests it by filing a motion affirming
that the defendant’s acceptance of responsibility saved pros-
ecutorial and court resources. Id. § 3E1.1(b). Structured this
way, the guideline vests the government—not the court—
with the authority to determine whether the conditions for the
third-point credit have been met.
The district judge awarded the two-level reduction, but
the prosecutor declined to move for the extra one-level reduc-
tion, citing Orona’s baseless challenge to the loss amount,
which required the government to prepare documents and
witnesses to prove that guidelines enhancement at sentenc-
ing. Orona objected to the government’s refusal to move for
the third point, essentially asking the judge to order the pros-
ecutor to do so. The judge overruled the objection, holding
that the government had permissibly withheld the § 3E1.1(b)
motion based on Orona’s frivolous challenge to the loss
amount.
That ruling was clearly correct under circuit precedent. See
United States v. Nurek, 578 F.3d 618 (7th Cir. 2009), and United
States v. Sainz-Preciado, 566 F.3d 708 (7th Cir. 2009). Orona
maintains that the Sentencing Commission abrogated Nurek
and Sainz-Preciado in 2013 when it adopted Amendment 775,
which modified the application notes to § 3E1.1. We disagree
and affirm the judgment. Amendment 775 did not displace

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No. 21-1734 3
Nurek and Sainz-Preciado, so the judge correctly overruled
Orona’s objection.
I. Background
In 2020 law enforcement in Elkhart County opened an in-
vestigation into reports of stolen mail. Witness accounts and
security-camera footage linked the thefts to the driver of a sil-
ver Chevrolet Malibu Maxx, so the police issued an “Attempt
to Locate” notice for the vehicle. In May officers in Bristol, a
small town in the county along the Indiana-Michigan border,
spotted a car matching the description. As they initiated a
traffic stop, the driver threw a methamphetamine pipe out the
window and the front-seat passenger tossed a handgun from
the car.
Lafiamma Orona was the driver, his girlfriend Toni Hall
was the front-seat passenger, and their three children were
seated in the back. The officers recovered the broken pieces of
the meth pipe and the discarded firearm, which had an oblit-
erated serial number. They then searched the vehicle and dis-
covered 37 rounds of ammunition that matched the discarded
handgun. They also found a bag containing stolen credit
cards, checks, money orders, and Indiana identification cards,
together with a stamp used to forge names on already issued
checks. Orona’s name was forged on some of the checks; his
photo appeared on the identification cards with the victims’
names and personal identifying information.
Orona was arrested and admitted to stealing mail from lo-
cal mailboxes. When he arrived at the jail, he called his mother
and instructed her to go to Hall’s home across the border in
Michigan and destroy incriminating evidence in the house.
Before she could do so, officers obtained and executed a

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4 No. 21-1734
search warrant at Hall’s Michigan home. There they found
more stolen mail containing credit cards and checks, some of
which had been altered to substitute Orona’s name for the vic-
tims’ names. Officers also recovered additional Indiana iden-
tification cards with Orona’s photo but with others’ personal
identifying information and more materials used to forge
checks. Credit-card statements found at the home showed
that credit cards had been issued to Orona in others’ names
but with his contact information. The face value of the forged
checks recovered from the car and Hall’s home totaled
$226,244.
Orona was indicted for possession of stolen mail, 18 U.S.C.
§ 1708; mail fraud, id. § 1341; aggravated identity theft, id.
§ 1028A; and possession of a firearm as a felon, id. § 922(g)(1).
About six weeks before trial, Orona pleaded guilty to all four
counts without a plea agreement. The judge accepted Orona’s
guilty pleas and directed the probation department to prepare
a presentence report (“PSR”).
The probation office circulated the draft PSR about a
month before the sentencing date. To calculate the advisory
imprisonment range under the Sentencing Guidelines, the
probation officer recommended the application of various of-
fense-level enhancements for the stolen-mail, mail-fraud, and
firearm counts. Under the grouping rules, the combined of-
fense level for these counts was 25. (The conviction for aggra-
vated identity theft required a mandatory 24-month
consecutive sentence, see 18 U.S.C. § 1028A(b), so that count
was not grouped.) The probation officer also recommended a
two-level reduction in the offense level for acceptance of re-
sponsibility under § 3E1.1(a), plus the additional one-level

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No. 21-1734 5
reduction under § 3E1.1(b), for a total recommended offense
level of 22 for the grouped counts.
Orona’s appeal concerns the extra one-level reduction un-
der § 3E1.1(b), so we pause here to describe the terms of this
guideline. Subsection (a) of § 3E1.1 instructs the sentencing
judge to reduce the offense level by two levels “[i]f the de-
fendant clearly demonstrates acceptance of responsibility for
his offense.” Under subsection (b) of § 3E1.1, the defendant
may receive an additional one-point reduction if the offense
level prior to applying subsection (a) is 16 or greater and the
government requests the extra one-point reduction after deter-
mining that the defendant’s guilty plea has saved prosecuto-
rial and court resources.
More specifically, the court may award the additional one-
level reduction only
upon motion of the government stating that the de-
fendant has assisted authorities in the investiga-
tion or prosecution of his own misconduct by
timely notifying authorities of his intention to
enter a plea of guilty, thereby permitting the
government to avoid preparing for trial and
permitting the government and the court to al-
locate their resources efficiently.
§ 3E1.1(b) (emphasis added).
Returning to this case, four of the PSR’s recommended of-
fense-level enhancements are important to Orona’s appeal. As
relevant here, the probation officer recommended that the
court increase Orona’s offense level as follows:
(1) two levels because the offense involved
more than 10 victims (based on the

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6 No. 21-1734
government’s estimate of 253 victims), see
§ 2B1.1(b)(2)(A)(i);
(2) two levels based on Orona’s unauthorized
transfer or use of a means of identification,
see § 2B1.1(b)(11)(C)(i);
(3) two levels because Orona attempted to ob-
struct justice by directing his mother to de-
stroy evidence, see § 3C1.1;1 and
(4) 10 levels because the total loss amount was
more than $150,000 but less than $250,000
(based on the government’s estimate of
$226,244 in intended losses), see
§ 2B1.1(b)(1)(F)
After reviewing the draft PSR, Orona’s attorney contacted
the prosecutor and asked how the intended loss amount had
been calculated. The prosecutor responded that the $226,244
total was the sum of the face-value amounts on the stolen
checks recovered from the car and Hall’s house. The prosecu-
tor also confirmed that there were no actual out-of-pocket
losses because Orona had not cashed any of the stolen checks.
Later that day Orona filed written objections challenging
all four enhancements. As relevant here, he argued that (1)
there were fewer than 253 victims; (2) he did not actually ob-
struct justice because his mother took no action to destroy
1 The guidelines commentary recognizes the tension between adjusting a
defendant’s offense level upward for obstruction of justice and downward
for acceptance of responsibility. See U.S.S.G. § 3E1.1 cmt. n.4. No one chal-
lenges the application of both adjustments here.

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No. 21-1734 7
evidence; (3) the total intended loss was “$6,500 or less” be-
cause, among other reasons, he did not possess the checks re-
covered from Hall’s home; and (4) applying the enhancement
for unauthorized use of a means of identification was imper-
missible “double counting.”
The government’s response to the draft PSR agreed that
the enhancement for unauthorized use of a means of identifi-
cation was inapplicable because the sentencing package in-
cluded a conviction for aggravated identity theft under
§ 1028A. The prosecutor also acknowledged that the number
of victims was not as high as its original estimate of 253. But
law enforcement had documented at least 46 victims, so the
two-level enhancement under § 2B1.1(b)(2)(A)(i)—applicable
to offenses involving more than 10 victims—remained appro-
priate. Finally, the government endorsed the PSR’s recom-
mendations regarding the obstruction and loss-amount
enhancements.
Because Orona had lodged objections to the PSR’s recom-
mended guidelines adjustments, the government took the po-
sition that he was not clearly accepting responsibility for
purposes of § 3E1.1. The prosecutor acknowledged that the
court would decide whether to award the two-level reduction
in subsection (a), but he signaled that the government would
not move for the additional one-level reduction under subsec-
tion (b).
Orona insisted that his objections were legal, not factual,
and therefore could not be grounds for denial of credit for ac-
ceptance of responsibility. He submitted a revised set of ob-
jections stating that he “continue[d] to accept responsibility
for his crimes but objects to an improperly designated loss

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8 No. 21-1734
amount.” This revised filing removed his previous claim that
he was not in possession of the checks found in Hall’s home.
The prosecutor stood his ground on the relevant-conduct
enhancements and argued that Orona’s continued objections
were inconsistent with acceptance of responsibility. He main-
tained that the court should not award the two-level reduc-
tion under § 3E1.1(a) and made it clear that he would not seek
the additional one-level reduction under § 3E1.1(b).
As the sentencing date approached, the lawyers attempted
to resolve the dispute. They agreed that if Orona withdrew
his remaining objections to the guidelines enhancements, the
government would support the baseline two-level reduction
for acceptance of responsibility under § 3E1.1(a). The govern-
ment did not, however, agree to move for the additional one-
point reduction under § 3E1.1(b). Orona’s attorney pressed
the prosecutor to reconsider, threatening to accuse the gov-
ernment of violating discovery rules and its obligations under
Brady v. Maryland, 373 U.S. 83 (1963). The prosecutor was un-
moved.
Once the final PSR and addenda were submitted to the
court, the parties filed written sentencing memoranda. Given
the nature and extent of the defense objections and the gov-
ernment’s response, the judge vacated the sentencing date
and scheduled a bifurcated sentencing proceeding, starting
with a hearing for submission of evidence and argument on
the guidelines objections, followed by a later sentencing date.
In the meantime, the government formally notified the proba-
tion office that it would not move for the additional one-level
reduction for acceptance of responsibility under § 3E1.1(b).
Orona withdrew his objections to the guidelines enhance-
ments that same day.

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No. 21-1734 9
At the evidentiary hearing a few weeks later, the govern-
ment submitted a thumb drive containing numerous docu-
mentary exhibits, photos of the traffic stop and search of
Hall’s home, and videos of Orona’s post-arrest interview by
law enforcement. By then Orona had withdrawn his objec-
tions to the enhancements, so the judge turned almost imme-
diately to the question of Orona’s acceptance of responsibility.
The bulk of the lengthy hearing was devoted to the parties’
dispute over the government’s refusal to file a motion for the
third-level reduction under § 3E1.1(b).
The prosecutor explained that he had declined to seek the
third-point reduction because Orona’s objections to the rele-
vant-conduct enhancements required the commitment of re-
sources to prepare for a contested sentencing hearing. He said
his office and law enforcement had spent around 40 hours
preparing to prove up the challenged enhancements, includ-
ing gathering evidence and preparing a federal agent and two
state law-enforcement officers to testify to the number of vic-
tims and the loss amounts. The government had also ordered
Orona’s plea transcripts on an expedited basis to help prove
the enhancements. Orona’s attorney had requested impeach-
ment information on the witnesses, so the government spent
time preparing that information too. In short, Orona’s objec-
tions to the PSR’s recommended guidelines enhancements re-
quired the government to allocate resources to proving up his
relevant offense conduct at sentencing.
Orona’s attorney responded that his client’s guilty plea
had spared the government the burden of trial preparation,
and nothing more was required for the additional one-point
reduction under § 3E1.1(b). He also argued that the

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10 No. 21-1734
government had violated discovery rules and its Brady obli-
gations. The judge took the dispute under advisement.
At the sentencing hearing two months later, the judge
ruled—without objection from the government—that Orona
had clearly accepted responsibility for purposes of the two-
level reduction under § 3E1.1(a). But the judge also held that
the government had permissibly withheld the motion for the
third-level reduction under § 3E1.1(b) based on Orona’s base-
less denial of relevant conduct. Specifically, the judge deter-
mined that by disputing the loss amount, Orona had falsely
asserted that the checks found in Hall’s home were not in his
possession. As the judge put it, the evidence “overwhelm-
ingly” showed that Orona possessed the checks and that he
did so with the purpose or intent to defraud. Indeed, Orona
had called his mother from jail and instructed her to destroy
the incriminating evidence in Hall’s home.
In sum, the judge concluded that Orona’s frivolous objec-
tion to the loss amount (and relatedly, his objection to the ob-
struction enhancement) had forced the government to
prepare to prove his relevant conduct at a contested sentenc-
ing hearing. Although Orona eventually withdrew his objec-
tions, the government had already sunk resources into
preparing to prove the guidelines enhancements. The judge
also rejected Orona’s argument that the government had vio-
lated its discovery and Brady obligations.2
In the end, the judge calculated a final offense level of 22
for the stolen-mail, mail-fraud, and firearm counts, which
when combined with Orona’s criminal history category of VI
2 On appeal Orona acknowledges that his trial attorney’s allegations of
discovery and Brady violations were unfounded.

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No. 21-1734 11
produced an advisory imprisonment range of 84 to 105
months for those counts (subject to the maximum penalty of
60 months on the stolen-mail count). After weighing the sen-
tencing factors under 18 U.S.C. § 3553(a), the judge imposed
concurrent sentences of 84 months for the mail-fraud and fire-
arm convictions, a concurrent 60-month sentence for the sto-
len-mail conviction, and the mandatory consecutive sentence
of 24 months on the conviction for aggravated identity theft—
for a total term of 108 months in prison.
II. Discussion
On appeal Orona challenges only the judge’s ruling on the
third acceptance-of-responsibility point under § 3E1.1(b). He
argues that the government lacked the discretion to withhold
the § 3E1.1(b) motion. As he reads the guideline, saving trial
resources is all that counts for the third-point reduction. On
this view, objections to sentencing enhancements do not mat-
ter; his timely guilty plea permitted the government to avoid
preparing for trial and thus entitled him to the third ac-
ceptance-of-responsibility point under § 3E1.1(b).
Orona acknowledges, as he must, that this argument is
foreclosed by circuit precedent—namely Nurek and Sainz-Pre-
ciado. He argues that those decisions are no longer good law
based on the Sentencing Commission’s Amendment 775,
which revised the guidelines commentary to § 3E1.1. To place
this argument in proper context, a bit of background about
the acceptance-of-responsibility guideline is necessary.
The current requirements and procedure for awarding the
extra offense-level reduction under § 3E1.1(b) are the result of
an unusual congressional amendment of the guideline in
2003. Before then, the district court alone determined whether

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12 No. 21-1734
a defendant was entitled to the extra one-point reduction. See
United States v. Branch, 195 F.3d 928, 936–37 (7th Cir. 1999). In
the PROTECT Act of 2003, Congress took the uncommon step
of amending the guidelines itself, giving the government the
authority to determine whether the defendant’s acceptance of
responsibility supports the extra one-point offense-level re-
duction. See PROTECT Act, Pub. L. No. 108-21, § 401(g)(1)(A),
117 Stat. 650, 671 (2003).
As amended by the PROTECT Act, subsection (b) of
§ 3E1.1 conditions the additional one-level reduction on a mo-
tion from the government stating that the defendant has
assisted authorities in the investigation or pros-
ecution of his own misconduct by timely notify-
ing authorities of his intention to enter a plea of
guilty, thereby permitting the government to avoid
preparing for trial and permitting the government
and the court to allocate their resources efficiently.
Id. § 401(g)(1)(B), 117 Stat. at 671 (emphasis added).
To reinforce this shift in authority from the court to the
government, Congress also amended the application notes as
follows: “Because the Government is in the best position to
determine whether the defendant has assisted authorities in a
manner that avoids preparing for trial, an adjustment under
[§ 3E1.1(b)] may only be granted upon a formal motion by the
Government at the time of sentencing.” Id. § 401(g)(2)(B), 117
Stat. at 672. And Congress went a step further to preserve
these amendments from later modification by the Sentencing
Commission by expressly providing that “[a]t no time may
the Commission promulgate any amendment that would

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No. 21-1734 13
alter or repeal the amendments made by subsection (g) of this
section.” Id. § 401(j)(4), 117 Stat. at 673.
With authority over the third acceptance-of-responsibility
point now firmly in the government’s hands, courts were
faced with questions about the scope of the prosecutor’s dis-
cretion. In 2009 we broadly interpreted the 2003 amendments
as “a license for prosecutorial discretion” that “confers an en-
titlement on the government” to determine whether to give the
defendant extra credit under § 3E1.1(b). United States v. De-
berry, 576 F.3d 708, 710 (7th Cir. 2009). Deberry held that the
government could permissibly withhold the § 3E1.1(b) mo-
tion based on the defendant’s refusal to consent to an appeal
waiver in his plea agreement. Id. We added, however, that the
government “may not base a refusal to file a motion under
[§] 3E1.1(b) on an invidious ground” or “on a ground unre-
lated to a legitimate governmental objective.” Id. at 711. But
securing an appeal waiver is neither invidious nor unrelated
to legitimate governmental interests; on the contrary, it saves
the government “the expense and uncertainty of having to de-
fend the defendant’s conviction and sentence on appeal,”
which is a legitimate governmental objective “closely related
to the express criteria in subsection (b).” Id.
Our decisions in Nurek and Sainz-Preciado—also issued in
2009—rested on a similarly broad interpretation of the 2003
congressional amendments. We concluded in both cases that
the government may withhold the § 3E1.1(b) motion based on
the defendant’s objection to sentencing enhancements. Nurek,
578 F.3d at 624–25; Sainz-Preciado, 566 F.3d at 716. Citing De-
berry, we observed in Nurek that the government’s discretion
to withhold a § 3E1.1(b) motion is “quite broad, though not
limitless; the government may not base a refusal to file a

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14 No. 21-1734
motion under section 3E1.1(b) on an invidious ground, or …
on a ground unrelated to a legitimate governmental objec-
tive.” 578 F.3d at 625 (internal quotation marks omitted). But
objecting to relevant conduct reflects a failure to accept full
responsibility and requires the prosecution to sink resources
into proving the full scope of the defendant’s criminal con-
duct at sentencing—a legitimate basis to withhold the
§ 3E1.1(b) motion. Nurek, 578 F.3d at 625; Sainz-Preciado,
566 F.3d at 716. A contested sentencing hearing is an “added
burden to both the government and the court system,” giving
“the government good reason (if it needed one) not to file a
§ 3E1.1(b) motion.” Sainz-Preciado, 566 F.3d at 716.
After our decisions in Deberry, Nurek, and Sainz-Preciado, a
circuit split emerged on the scope of the government’s discre-
tion under § 3E1.1(b). The Fourth Circuit expressly rejected
Deberry and cases in other circuits that had reached the same
conclusion. In United States v. Divens, the court held that the
government may not withhold the § 3E1.1(b) motion based on
the defendant’s refusal to waive his appeal rights. 650 F.3d
343, 348 (4th Cir. 2011). The Fourth Circuit reasoned that the
text of § 3E1.1(b) “reveals a concern for the efficient allocation
of trial resources, not appellate resources.” Id.
The Second Circuit soon extended Divens to sentencing
challenges, ruling that the government may not withhold the
§ 3E1.1(b) motion based on a defendant’s good-faith objection
to factual assertions in a presentence report. United States v.
Lee, 653 F.3d 170, 174–75 (2d Cir. 2011). Drawing on the ra-
tionale in Divens, the Second Circuit held that because the pri-
mary condition for the extra one-level credit is a timely guilty
plea that “permit[s] the government to avoid preparing for
trial,” § 3E1.1(b), the language that follows about the efficient

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No. 21-1734 15
allocation of governmental and court resources refers only to
trial resources, not sentencing resources. Id. at 174. The court
thus held that “[a]s long as the defendant disputes the accu-
racy of a factual assertion in the PSR in good faith,” the gov-
ernment may not withhold the § 3E1.1(b) motion. Id.
Two years later we were faced with a request to reconsider
our circuit precedent based on Divens and Lee. In United States
v. Davis, we acknowledged the emerging circuit split about
the scope of the government’s discretion but declined to
change course, concluding again that § 3E1.1(b) “confers an
entitlement on the prosecutor, not on the defendant.” United
States v. Davis, 714 F.3d 474, 475 (7th Cir. 2013) (per curiam).
Davis, like Deberry, concerned a defendant who had refused
to waive his right to appeal, leading the prosecutor to with-
hold the § 3E1.1(b) motion. On appeal the defendant insisted
that “a motion from the prosecutor is mandatory whenever
the defendant pleads guilty early enough to spare the prose-
cutor the burden of trial preparation.” Id. We disagreed, reit-
erating our holding in Deberry that “[t]he prosecutor may
withhold such a motion for any reason that does not violate
the Constitution.” Id. By then four other circuits had lined up
on the Deberry side of the divide. Id. (collecting cases). Chang-
ing sides would not eliminate the conflict, so we left the reso-
lution of the issue to “the Supreme Court or the Sentencing
Commission.” Id. Judge Rovner agreed but wrote separately
to endorse Divens and Lee and urge the Commission to ad-
dress the split. Id. at 478–80 (Rovner, J., concurring).
Roughly six months later, the Commission adopted
Amendment 775. As relevant here, the Commission added
this language to application note 6 to § 3E1.1: “The govern-
ment should not withhold … a [§ 3E1.1(b)] motion based on

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16 No. 21-1734
interests not identified in § 3E1.1, such as whether the defend-
ant agrees to waive his or her right to appeal.” U.S.S.G. supp.
to app. C, amend. 775 (Nov. 1, 2013) (codified at § 3E1.1 cmt.
n.6, deleted by U.S.S.G. supp. to app. C, amend. 820 (Nov. 1,
2023)).
In announcing the amendment, the Commission ex-
plained that it had set out to resolve the circuit split over
“whether the government may withhold a motion based on
an interest not identified in § 3E1.1.” Id. Citing both Deberry
and Divens, the Commission discussed the existing circuit
split over whether a defendant’s refusal to waive his appellate
rights is a legitimate reason for the government to withhold
the motion. On that point the Commission was clear: “[T]he
defendant’s waiver of his or her right to appeal is an example
of an interest not identified in § 3E1.1.” Id. The language of
Amendment 775, and the Commission’s explanation of the
reasons for it, thus speak directly to the question of appeal
waivers. See United States v. Johnson, 980 F.3d 1364, 1385 (11th
Cir. 2020) (noting that “it is clear that the Government can no
longer base its refusal to move for a third-level reduction on a
defendant’s refusal to waive appellate rights”).
Beyond that, however, things get murkier. In its explana-
tion of Amendment 775, the Commission cited Lee only
briefly, at the end of its discussion of Divens and our remark
in Davis calling on the Commission to resolve the circuit con-
flict. Our decisions in Nurek and Sainz-Preciado are not men-
tioned.
Given this ambiguity, Orona’s argument that Amendment
775 abrogated Nurek and Sainz-Preciado falls far short of the
mark. We will not overturn circuit precedent “absent a com-
pelling reason.” Wilson v. Cook County, 937 F.3d 1028, 1035 (7th

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No. 21-1734 17
Cir. 2019) (per curiam). We have overruled circuit precedent
interpreting the guidelines only when an amendment to an
application note is “unequivocal” about when the guideline
applies. United States v. Krumwiede, 599 F.3d 785, 790 (7th Cir.
2010); see also United States v. Longoria, 958 F.3d 372, 379 (5th
Cir. 2020) (requiring that a guidelines amendment “clearly
overrid[e]” circuit precedent).
As we’ve just noted, it’s clear enough that Amendment 775
abrogated our decision in Deberry concerning the effect of a
defendant’s refusal to agree to an appeal waiver. Another part
of Amendment 775 clarified that the sentencing judge has the
discretion to deny the government’s § 3E1.1(b) motion; this
change clearly displaced our contrary holding in United States
v. Mount, 675 F.3d 1052 (7th Cir. 2012). See United States v. Lov-
ing, 22 F.4th 630, 635 (7th Cir. 2022). In Loving we recognized
that the amendment explicitly addressed a circuit split on this
subject and “was intended to resolve the conflict against the
Mount position by endorsing a sentencing court’s discretion
to deny such a motion.” Id.
The effect of Amendment 775 on our decisions in Nurek
and Sainz-Preciado is not nearly so clear. To repeat, the amend-
ment added this sentence to application note 6: “The govern-
ment should not withhold … a [§ 3E1.1(b)] motion based on
interests not identified in § 3E1.1, such as whether the defend-
ant agrees to waive his or her right to appeal.” Though this
language is not limited to the appeal-waiver issue, there is “no
consensus on what other grounds can justify the Govern-
ment’s refusal to make a § 3E1.1(b) motion.” Johnson, 980 F.3d
at 1385.
Section 3E1.1(b) does not, on its face, limit the govern-
ment’s discretion to considerations related to preserving trial

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18 No. 21-1734
resources. The third acceptance-of-responsibility point is ex-
pressly conditioned on the prosecutor’s determination that
the defendant’s timely guilty plea “permitt[ed] the govern-
ment to avoid preparing for trial and permitt[ed] the govern-
ment and the court to allocate their resources efficiently.”
§ 3E1.1(b) (emphasis added). In Nurek and Sainz-Preciado we
interpreted this conjunctive language broadly to include con-
siderations beyond the preservation of trial resources—spe-
cifically, to permit the government to withhold the § 3E1.1(b)
motion if a defendant’s objection to a guidelines enhancement
requires it to allocate resources to preparing to prove the con-
tested matter at sentencing. Amendment 775 did not unequiv-
ocally displace those decisions.
Orona resists this conclusion, arguing that other language
in § 3E1.1’s application notes demonstrates that subsection (b)
is concerned only with saving trial resources. He points, for
example, to the PROTECT Act’s amendment to application
note 6, which explains that the third-level reduction requires
a motion from the government “[b]ecause the [g]overnment
is in the best position to determine whether the defendant has
assisted authorities in a manner that avoids preparing for trial.”
§ 3E1.1 cmt. n.6 (emphasis added). Application note 6 also ex-
plains that the defendant’s notice of his intention to plead
guilty must come “at a sufficiently early point in the process
so that the government may avoid preparing for trial and the court
may schedule its calendar efficiently.” Id. (emphasis added).
This language, however, predates Nurek and Sainz-Preci-
ado. Nothing in Amendment 775 requires us to reconsider
those decisions. No one disagrees that the defendant’s notice
of his intention to plead guilty must permit “the government
to avoid preparing for trial.” § 3E1.1(b). But subsection (b)

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No. 21-1734 19
goes on to state that the defendant’s acceptance of responsi-
bility must also permit “the government and the court to allo-
cate their resources efficiently.” Id. This language expands the
considerations that may permissibly inform the government’s
exercise of its § 3E1.1(b) discretion. Amendment 775 said very
generally that the government should not withhold the mo-
tion based on “interests not identified in § 3E1.1.” § 3E1.1 cmt.
n.6. (2013) (deleted by U.S.S.G. supp. to app. C, amend. 820
(2023)). But § 3E1.1 as a whole refers to efficiency considera-
tions that go beyond just those related to trial preparation. See
also id. cmt. n.1(A).
And even after Amendment 775, the circuits continued to
disagree over whether the government may withhold the
§ 3E1.1(b) motion based on a defendant’s challenge to guide-
lines enhancements. Compare United States v. Castillo, 779 F.3d
318, 325 (5th Cir. 2015) (endorsing Lee, at least for good-faith
challenges to the PSR, in light of Amendment 775), with United
States v. Jordan, 877 F.3d 391, 395–96 (8th Cir. 2017) (disagree-
ing with Castillo and holding that the Commission was aware
of Lee’s holding but did not expressly endorse it in Amend-
ment 775). Overruling Nurek and Sainz-Preciado would not re-
solve the conflict. So we stay put, because “it is rarely
appropriate to overrule circuit precedent just to move from
one side of a conflict to another.” United States v. Corner, 598
F.3d 411, 414 (7th Cir. 2010) (en banc).
We note for completeness that while this appeal has been
pending, the Third Circuit held that Amendment 775 exceeds
the Commission’s delegated powers. See United States v. Adair,
38 F.4th 341, 358–61 (3d Cir. 2022). The Commission thereafter
amended § 3E1.1(b) and its application notes again. See

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20 No. 21-1734
§ 3E1.1, amend. 820 (effective Nov. 1, 2023). The latest amend-
ments are not retroactive, so we do not address them here.
Because Amendment 775 did not clearly abrogate Nurek
and Sainz-Preciado, the government permissibly declined to
file a § 3E1.1(b) motion based on Orona’s frivolous objection
to the intended loss amount. The judge correctly overruled
Orona’s objection. The judgment is therefore AFFIRMED.

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