"He gets no acceptance of responsibility, period."
That is what a federal judge in San Francisco said from the bench after Fernando Aguilera moved to suppress evidence, moved twice to dismiss the indictment, lost both times, and then asked to preserve those issues for appeal. On August 24, 2026, the Ninth Circuit held that this reasoning was not the law. In United States v. Aguilera, No. 25-3366, a published panel opinion, the court affirmed Aguilera's conviction for possession of ammunition by a felon under 18 U.S.C. § 922(g)(1), vacated his 45-month sentence, and remanded for resentencing.
Judge Jennifer G. Zipps, Chief District Judge for the District of Arizona sitting by designation, wrote for the majority and was joined by Judge Gabriel P. Sanchez. Judge Johnnie B. Rawlinson dissented in part. The case came from the Northern District of California, District Court No. 3:23-cr-00217-WHA-1, where Judge William Alsup presided. It was argued and submitted in San Francisco on December 1, 2025.
The Fourth Amendment portion of the appeal went against Aguilera. The sentencing portion is the news, and it is now binding across the nine states and two territories of the Ninth Circuit.
What Aguilera Actually Did, Stated Precisely
The shorthand version of this case is that Aguilera "went to trial." That framing is technically accurate and substantively misleading, and getting it right is the whole point of the opinion.
Aguilera first offered a conditional guilty plea under Federal Rule of Criminal Procedure 11(a)(2), which would have let him plead guilty while reserving his suppression issue for appeal. That route requires the consent of both the court and the government. He did not get it. What he took instead was a stipulated-testimony bench trial that lasted 48 minutes. He cross-examined no witnesses. He put on no defense. He then cooperated at his presentence interview and submitted a written statement through counsel taking, in the statement's words, "full responsibility for this offense."
In other words, he did every single thing the Ninth Circuit's own case law tells defendants to do when they want to preserve a legal challenge without fighting the facts. Footnote 6 of the opinion cites United States v. Gambino-Ruiz, 91 F.4th 981, 991 (9th Cir. 2024), for the proposition that pursuing "less rigorous avenues of preserving legal challenges" such as a conditional plea, a bench trial, or stipulating to facts can demonstrate sincerity while a legal challenge moves forward. The panel wrote: "Here, Aguilera did all of these things, and he did not put on a defense at trial or cross-examine any of the government's witnesses."
The Money Question: What Two Levels Are Worth
This is the part readers came for, so here is the arithmetic.
Probation calculated a total offense level of 18 with no acceptance-of-responsibility reduction. At Criminal History Category V, the Sentencing Table puts level 18 at 51 to 63 months. With the two-level reduction under U.S.S.G. § 3E1.1(a), the offense level drops to 16, and level 16 at Category V is 41 to 51 months.
Two levels, at this defendant's criminal history category, are worth exactly ten months off the top of the range and ten months off the bottom.
The court imposed 45 months. Measured against 51 to 63, that is a below-range sentence and looks like leniency. Measured against 41 to 51, it is a middle-of-the-range sentence. Probation had recommended 41 months, the bottom of the lower range. That gap between what the judge imposed and what the correct range would have made available is what drives the harmless-error holding discussed below.
One correction to how this case is being described elsewhere: only the two-level reduction under § 3E1.1(a) was at issue. The third level under § 3E1.1(b) requires a government motion plus timely notice of an intent to plead guilty, which a defendant who tries the case cannot satisfy. Aguilera was not denied three levels, and a defendant in his position is realistically litigating over two.
What the District Court Said
The panel quoted the sentencing transcript at length, and the quotations are why this was treated as a legal error rather than a discretionary judgment call. The district court explained its denial this way:
"[T]o me, acceptance of responsibility is somebody comes in and says: I did it. I'm sorry. I'm going to make amends... But when somebody comes in and says, 'I want to suppress under the Fourth Amendment,' lose, and now, 'I want to dismiss because I don't think the statute applies to me,' or 'It's unconstitutional.' And then they lose, and then they come in and say, 'Well, I want to preserve all that for appeal, but I otherwise will plead guilty.' It's not acceptance of responsibility. So all of this is denied. He gets no acceptance of responsibility, period."
Elsewhere the court said Aguilera "insisted on taking an appeal, and it's like a conditional acceptance of responsibility... he's picking and choosing the things that he wants to contest," and described a conditional plea as different because "you're still hoping to stay out of prison by getting the Ninth Circuit to say that... all the evidence should be suppressed, and he walks free."
The exchange that most clearly marks this as a misapprehension came when defense counsel pointed the court to Application Note 2 of § 3E1.1. The judge responded, "I didn't realize that," then followed with, "That doesn't call out suppression motions, does it?" The government, for its part, conceded it had found no Ninth Circuit guidance on the question. The record shows the governing standard was genuinely in doubt in that courtroom, and that is the difference between an unreviewable weighing of facts and a reversible legal error.
The Doctrine, in Plain Terms
Three lines of authority did the work.
First, the guideline itself. Application Note 2 to § 3E1.1 says: "Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct)." That description fits Aguilera's two motions to dismiss almost word for word.
Second, a suppression motion is itself constitutionally protected conduct. In United States v. Vance, 62 F.3d 1152, 1157 (9th Cir. 1995), the court held a district judge erred by "holding it against [the defendant] that he moved to suppress evidence before pleading guilty."
Third, the categorical rule. As the panel put it, quoting United States v. Hernandez, 894 F.3d at 1109, "We have repeatedly emphasized that a sentencing court cannot consider against a defendant any constitutionally protected conduct," and "a judge cannot rely upon the fact that a defendant refuses to plead guilty and insists on his right to trial as the basis for denying an acceptance of responsibility adjustment." The inquiry "must be on the defendant's personal contrition, rather than on his exercise of his constitutional rights." United States v. Tuan Ngoc Luong, 965 F.3d 973, 991 (9th Cir. 2020).
The panel also noted that the district court never addressed Aguilera's written acceptance statement or his cooperation with probation at all. That echoed Hernandez, which reversed where the court's comments about the decision to go to trial "comprised virtually the entirety of the explanation for the sentence."
Two limits are worth stating clearly. Whether a district court misapprehended the legal standard is reviewed de novo, but whether a defendant actually accepted responsibility is a factual finding reviewed only for clear error. And the defendant bears the burden of proving entitlement to the reduction. The panel fixed the standard. It did not order the reduction. On remand, a judge applying the correct standard can still deny it.
The Catch-22 in Footnote 8
For defense counsel, footnote 8 may be the single most useful paragraph in the opinion.
Both the district court and the government faulted Aguilera for declining to stipulate to all the facts and elements of the offense. The panel pointed out why that criticism was impossible to satisfy: under United States v. Larson, 302 F.3d 1016, 1019 to 1020 (9th Cir. 2002), stipulating to every element would have mooted the very suppression appeal Aguilera was trying to preserve. A defendant cannot simultaneously give the government everything it asks for and keep the appellate issue alive. Penalizing him for that, the panel held, "improperly penalized Aguilera for exercising his constitutional rights to trial and against self-incrimination."
If you are litigating this issue, that is the footnote to put in front of the sentencing judge.
What the Ninth Circuit Did Not Say
This is a sentencing win, not a suppression win, and readers should not overread it.
The panel affirmed the denial of the motion to suppress on reasonable-suspicion grounds, applying the collective-knowledge doctrine and the totality of the circumstances. The facts: two ShotSpotter gunshot-detection alerts near the El Trebol Bar at 22nd and Capp shortly before 2:00 a.m. on April 7, 2023; an eyewitness who described the shooter as a Hispanic male in a blue jacket heading west on 22nd; a second bystander pointing the same direction; Aguilera fleeing when ordered to stop and making what an officer believed was a shooting motion; and his discovery at 2:08 a.m. hiding in weeds behind a fence two blocks away, after a restaurant patron pointed officers toward him. He matched the broadcast description except that he wore tan boots rather than black shoes. Officers recovered a gun with a bullet jammed in the chamber, a malfunction caused by the wrong-sized ammunition, along with ammunition in a crossbody bag and a magazine in his pocket.
The constitutional challenges to § 922(g)(1) went nowhere and were summarily affirmed as foreclosed by United States v. Duarte, 137 F.4th 743, 748 (9th Cir. 2025) (en banc), in which the en banc court [rejected an as-applied Second Amendment challenge](https://www.fd.org/news/en-banc-ninth-circuit-rejects-applied-second-amendment-challenge-922g1) to the felon-in-possession statute, and by United States v. Latu, 479 F.3d 1153, 1156 (9th Cir. 2007). There is no Second Amendment opening in this case.
The Partial Dissent, Presented Fairly
Judge Rawlinson's partial dissent is not a defense of trial penalties. It is a disagreement about what the record showed.
In her reading, the district court did not misapprehend the law. The court expressly said that denying acceptance did not mean it would refuse to sentence below the range, calling that "a different thing altogether," and it limited its comments about the trial to "the starting point." It then discussed the offense conduct, Aguilera's background, the statutory factors, and contrition, saying "I don't see where the contrition is. He still thinks he should walk free," and rejecting the poverty mitigation argument with "There's nothing about that poverty and that terrible upbringing that should excuse that." Under Hernandez and United States v. Rojas-Pedroza, 716 F.3d 1253, 1270 (9th Cir. 2013), the dissent argued, "a district court does not commit reversible error simply because it notes the fact that the defendant went to trial, so long as the court bases its final decision on the facts of the case and record as a whole."
The majority's answer is footnote 7, and it is about sequencing. Guidelines calculation is step one under United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc), and United States v. Ramos-Medina, 706 F.3d 932, 941 (9th Cir. 2013). That the court later conducted "a separate analysis of the length of the final sentence" weighing § 3553(a) factors "does not affect our holding." A sound step-two analysis does not cure a step-one error.
Why the Harmless-Error Holding May Matter as Much
Finding the error was only half the work. The government bore the burden of showing that "it is more probable than not" the error did not affect the sentence.
Under Molina-Martinez v. United States, 578 U.S. 189, 198 (2016), sentencing under an incorrect Guidelines range "can, and most often will, be sufficient to show a reasonable probability of a different outcome." And under United States v. Munoz-Camarena, 631 F.3d 1028 (9th Cir. 2011), a sentencing court must actually analyze both ranges. Mere acknowledgment of the alternative range does not count, and neither does a statement that the court would impose the same sentence regardless. A court must explain the reason for the extent of a variance, and that reason "necessarily is different when the range is different."
Here the district court analyzed only the higher 51 to 63 month range. It never conducted a separate analysis of the correct 41 to 51 month range. The dissent countered that the court said 45 months was "the lowest sentence that will take into account the statutory factors" and "could have not been any plainer," invoking the portion of Molina-Martinez recognizing that an error may be harmless where the record shows the judge thought the sentence appropriate irrespective of the range. The majority disagreed.
The practical consequence for district judges in the circuit: you cannot immunize a contested Guidelines calculation by gesturing at the alternative range or announcing that the sentence would be the same either way. Both ranges have to be analyzed on the record.
Preserving Both the Motion and the Reduction
If you are facing a federal charge where a suppression issue is worth litigating, here is what this opinion and the guideline text support:
- Ask for a conditional plea first. Rule 11(a)(2) permits a guilty plea that reserves a specified pretrial issue in writing, and lets you withdraw the plea if you win on appeal. The catch is that it requires "the consent of the court and the government." Government consent is the real chokepoint, and it is why Aguilera ended up in a bench trial instead.
- If consent is refused, propose a stipulated-testimony bench trial. Do not cross-examine. Do not put on a defense. That is the Gambino-Ruiz path.
- Do not stipulate to every element. Under Larson, that moots the appeal you are preserving. Footnote 8 of Aguilera now says so explicitly.
- Put contrition in writing, early, to probation. A cooperative presentence interview and a written acceptance statement gave the panel something concrete the district court had failed to address.
- Cite Application Note 2 and Gambino-Ruiz in the sentencing memorandum, before the hearing, not in reaction to a denial. The transcript in this case shows how quickly the argument gets lost when it surfaces for the first time at the podium.
- Quote § 3E1.1(b)'s own text. The guideline states that "[p]reparations for pretrial proceedings (such as litigation related to a charging document, discovery motions, and suppression motions) ordinarily are not considered 'preparing for trial.'" Suppression litigation should not cost the third level for a defendant who then pleads guilty in time.
- Be honest with the client about the third level. Section 3E1.1(b) requires a government motion and timely notice of intent to plead guilty. A defendant who tries the case, even on stipulated testimony, is fighting for two levels, not three.
The Scale Behind This
The numbers explain why cases like this one are so rare and why a published decision matters.
According to the U.S. Sentencing Commission's [2025 Sourcebook of Federal Sentencing Statistics](https://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-and-sourcebooks/2025/2025_Sourcebook.pdf), of 66,662 federal cases in fiscal year 2025, 65,099 (97.7 percent) resolved by guilty plea and 1,563 (2.3 percent) by trial. For firearms offenses specifically, 8,041 cases split 97.3 percent plea and 2.7 percent trial.
Total denials of acceptance are rarer still. Of 61,245 cases with complete guideline application data, 2,370 (3.9 percent) received no acceptance reduction, 21,887 (35.7 percent) received two levels, and 36,988 (60.4 percent) received three. Among firearms cases, 4.2 percent received nothing, 13.5 percent got two levels, and 82.2 percent got three.
Aguilera landed in the roughly four percent bucket, and the reason given for putting him there was that he had filed motions. The National Association of Criminal Defense Lawyers, an advocacy organization, has documented this dynamic at length under the heading of the trial penalty. Its report is advocacy rather than neutral data, but the Sourcebook figures above tell a compatible story about how federal cases actually end.
The Narrow but Real Reach of the Holding
This decision does not abolish the trial penalty. It does not entitle Aguilera to a lower sentence. A judge who articulates permissible grounds, grounded in the defendant's conduct and statements rather than his motions practice, can still deny the reduction on remand, and the burden of proof stays with the defendant.
What the opinion forecloses is the shortcut: treating the act of litigating a Fourth Amendment claim, or preserving an appeal, as itself proof that a defendant has failed to accept responsibility. In the Ninth Circuit, that reasoning is now identified in a published opinion as a misapprehension of the law, and a sentence built on it will not survive harmless-error review unless the court has separately analyzed the correct range.
Related reading
-
[Federal Judges No Longer Have to Put You on Supervised Release: The November 1 Rewrite That Ended Automatic Post-Prison Supervision](/news/federal-judges-no-longer-required-supervised-release-november-rewrite)
Sources
- United States v. Aguilera, No. 25-3366 (9th Cir. Aug. 24, 2026) (published opinion, full text)
- U.S.S.G. Chapter 3 (Nov. 1, 2024 Guidelines Manual), § 3E1.1 and commentary
- U.S.S.G. Chapter 5, Part A, Sentencing Table
- [U.S. Sentencing Commission, 2025 Sourcebook of Federal Sentencing Statistics](https://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-and-sourcebooks/2025/2025_Sourcebook.pdf)
- United States v. Duarte, No. 22-50048 (9th Cir. May 9, 2025) (en banc)
- Federal Defenders: En Banc Ninth Circuit Rejects As-Applied Second Amendment Challenge to § 922(g)(1)
- Federal Rule of Criminal Procedure 11 (Cornell LII)
- [NACDL, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It](https://www.nacdl.org/getattachment/95b7f0f5-90df-4f9f-9115-520b3f58036a/the-trial-penalty-the-sixth-amendment-right-to-trial-on-the-verge-of-extinction-and-how-to-save-it.pdf) (advocacy report)
Note: This article contains AI-assisted content and has been reviewed by our editorial team.
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