United States v. Mays

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 22, 2026
• Docket: 25-6107
• Status: Unpublished

Opinion

Appellate Case: 25-6107 Document: 37-1 Date Filed: 04/22/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 22, 2026 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 25-6107 (D.C. No. 5:24-CR-00389-J-1) BRIAN KEITH MAYS, (W.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before TYMKOVICH, PHILLIPS, and FEDERICO, Circuit Judges. _________________________________

Brian Keith Mays argues that his sentence violated his Sixth Amendment right

to a jury trial by penalizing his decision to go to trial. Because our precedent

forecloses his argument, we exercise jurisdiction under 28 U.S.C. § 1291 and

AFFIRM.

Brian Keith Mays was charged with armed bank robbery, in violation of 18

U.S.C. § 2113(a) and (d), as well as possessing and brandishing a firearm in

After examining the briefs and appellate record, this panel has determined *

unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 25-6107 Document: 37-1 Date Filed: 04/22/2026 Page: 2

furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i) and

(ii). Mays maintained his innocence and proceeded to trial, after which a jury

convicted him of both counts. The probation officer’s presentence report (PSR)

calculated a total offense level of 22 under the United States Sentencing Guidelines.

The PSR did not include a downward adjustment under § 3E1.1(a), which provides a

two-level reduction if a “defendant clearly demonstrates acceptance of responsibility

for his offense.” 1

During sentencing, Mays objected to the PSR’s omission of a § 3E1.1(a)

reduction. Mays did not claim that he had accepted responsibility. Rather, he

asserted that the denial of the reduction unconstitutionally punished criminal

defendants who exercise their Sixth Amendment right to a jury trial. 2 After noting

that the cases Mays relied on do not address § 3E1.1(a), the district court overruled

Mays’s objection.

Mays timely filed his appeal. He argues that § 3E1.1(a) violates the Sixth

Amendment by increasing the Sentencing Guidelines’ baseline offense level when

defendants exercise their right to a jury trial. Mays contends that the “Constitution

1 In almost all cases, “[t]his adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt.” U.S. Sent’g Guidelines Manual § 3E1.1(a) cmt. n. 2 (U.S. Sent’g Comm’n 2025). But a defendant who enters a guilty plea is not “entitled to [this] adjustment . . . as a matter of right.” Id. § 3E1.1(a) cmt. n. 3.

2 The Sixth Amendment guarantees that criminal defendants “shall enjoy the right to a speedy and public trial, by an impartial jury.” U.S. Const. amend. VI. 2 Appellate Case: 25-6107 Document: 37-1 Date Filed: 04/22/2026 Page: 3

forbids legal frameworks that attach adverse consequences to the exercise of a

protected right, including the right to a jury trial.” Appellant Br. at 8 (citing United

States v. Jackson, 390 U.S. 570, 581–83 (1968)). In other words, for defendants like

Mays who exercise their Sixth Amendment rights, § 3E1.1(a) acts to impermissibly

increase the “functional baseline” that guides sentencing. Id. at 10.

Our precedent forecloses Mays’s argument. In United States v. Portillo-

Valenzuela, this court explained that “denying the [§ 3E1.1(a)] reduction for

acceptance of responsibility is not a penalty” for exercising one’s right to trial.

20 F.3d 393, 395 (10th Cir. 1994). Instead, the “reduction is simply a reward for

those who take full responsibility,” so a court “may constitutionally deny the

reduction if the defendant’s exercise of a constitutional right is inconsistent with

acceptance of responsibility.” Id. (citing United States v. Gordon, 4 F.3d 1567, 1573

(10th Cir. 1993)). Put differently, exercising one’s right to a trial does not mandate

an increase to the Guidelines’ offense level (and thus penalize defendants) but instead

precludes a reduction (and thus withholds a reward).

That is precisely the case here. 3 Rather than penalizing Mays for exercising

his Sixth Amendment rights, the district court “constitutionally den[ied] the

reduction” and withheld the reward embedded in § 3E1.1(a) because Mays’s

3 Mays does not address Portillo-Valenzuela—or any other case that directly examines § 3E1.1(a)—in his brief. He does note that a district court recently ruled § 3E1.1(b) unconstitutional. See United States v. Tavberidze, 769 F. Supp. 3d 264, 272–73 (S.D.N.Y. 2025). But that court expressly refused to reach the constitutionality of § 3E1.1(a), see id., which is the provision Mays challenges. 3 Appellate Case: 25-6107 Document: 37-1 Date Filed: 04/22/2026 Page: 4

“exercise of [his Sixth Amendment] right [was] inconsistent with acceptance of

responsibility.” See id. In other words, Mays has it backwards: he did not, as he

asserts, suffer adverse consequences for exercising his right to trial; instead, he did

not benefit from an unwarranted reward. 4

We affirm Mays’s sentence.

Entered for the Court

Timothy M. Tymkovich Circuit Judge

4 Precedent from other circuits supports this conclusion. See, e.g., United States v. White, 869 F.2d 822, 826 (5th Cir. 1989) (stating that the “fact that a more lenient sentence is imposed upon a contrite defendant does not establish a corollary that those who elect to stand trial are penalized”); United States v. Benitez, 531 F.3d 711, 717 (8th Cir. 2008) (declining to “declare [§ 3E1.1] unconstitutional on the ground that it has a chilling effect on a defendant’s exercise of his Sixth Amendment right to trial”). 4