Sentencing; Procedural reasonableness; Applicable version of the Guidelines; Waiver; Loss calculation under USSG § 2B1.1; United States v Wala; United States v You; Application Note 3(F)(v); Obstruction-of-justice enhancement (§ 3C1.1); Plea agreement appellate waiver clause; Two-level enhancement under § 2B1.1(b)(16)(A) (underlying offense involved “the conscious or reckless risk of death or serious bodily injury”); State of mind element; Argument for a variance based on immigration status; The district court’s discretion

The court held that defendant-Basalyga waived his argument that the district court should have applied the 2024 Guidelines in making its loss calculation, and it upheld the district court’s loss calculation under § 2B1.1. It also concluded that the obstruction-of-justice enhancement was properly applied, and that he voluntarily waived his right to challenge his forfeiture judgment in his plea agreement. As to defendant-Chirinos de Urena, it upheld her enhancement under § 2B1.1(b)(16)(A), and found no abuse of discretion in the district court’s declining to grant her a variance based on her immigration status. Defendants participated in “a drug operation that sold millions of fake generic Xanax pills on the dark web.” They pled guilty to conspiracy and substantive counterfeiting of drugs. Basalyga was sentenced to 80 months. Chirinos de Urena was sentenced to 45 months. As to Basalyga’s appeal and his loss calculation claim, the court had to first determine the controlling version of the Guidelines. While he now suggested “the district court should have applied the 2024 version,” the court concluded that “by agreeing that the pre-2024 Guidelines governed his sentence and then arguing accordingly, Basalyga waived any argument with respect to the 2024 Guidelines.” As to the loss calculation itself, “You held that because the term ‘loss’ in the pre-2024 Guidelines is ambiguous, we may defer to the Sentencing Commission’s interpretation of ‘loss’ in the Guidelines commentary.” This understanding “continues to control[.]” The court understood “the loss to be the ‘fraud against the buyer,’ as measured by what the buyer actually paid for the pills.” And the district court’s understanding of loss “fell within the ‘wide’ ‘goalposts’ established by the Guidelines’ text.” Next, the court upheld the obstruction enhancement, which was based on text messages “that suggested Basalyga began clearing his electronic devices upon hearing” of Chirinos de Urena’s arrest. As to Chirinos de Urena’s § 2B1.1(b)(16)(A) enhancement, based “on the nature, length, and scope of the scheme, including the ‘inherency of the danger presented,’ the district court sensibly concluded that the risks were known to” her. The circumstantial evidence, including her “conduct, sufficiently satisfied the state of mind element . . . .” Affirmed.