Mitigating Roles and Lower Federal Sentences



What if someone is caught with a kilogram of methamphetamine?  And let’s suppose further that they were acting only as a drug mule or courier and that the only job they had was to transport the drugs from location A to location B.  That is, the person arrested for this offense is not the leader or organizer of the conspiracy.

MITIGATING ROLE ADJUSTMENTS:  Low-level drug offenders may qualify for lower sentencing ranges if they can prove to the court that their conduct was substantially  less culpable than the average participant in the criminal offense they are charged with.

Should this low-level offender be treated differently than the more sophisticated defendant who organized the drug conspiracy, recruited members into the criminal enterprise, set the price, and marketed the drugs to end users?  Yes.

But how does it work in federal court? That’s what this post is about. More importantly, we will talk about changes to the sentencing guidelines that took effect on November 1, 2015.  These changes make it easier for certain low-level drug offenders (or defendants in other types of crimes like fraud, Ponzi schemes, or other economic crimes) to receive role adjustment that may may lead to a lower federal sentence.

The Mitigating Role Adjustment:

The mitigating-role adjustment reflects the idea that offenders who are “substantially less culpable than the average participant in a criminal activity” should receive a lower sentence.  It is not intended to apply to more culpable offenders  like Bernie Madoff–who orchestrate Ponzi schemes, recruit victims to give money, and then take extraordinary efforts to camouflage their criminal behavior.

The mitigating-role adjustment is found in U.S.S.G. § 3B1.2. This provision allows a district court to take into account the minor or minimal role, if any, a defendant played in a conspiracy—and then reduce his or her base offense level by 2, 3, or 4 levels.  This decision is based on the totality of the circumstances of the offense.

For example, let’s assume a defendant has a base offense level of 30 and a criminal history category of I. (Click here to view the sentencing table with corresponding sentencing ranges.)  The sentencing range for this category is 97-121 months imprisonment.

Now, what if the sentencing court determines that the defendant was only a “minimal” participant in the drug conspiracy and grants a 4 level reduction to the base offense level?  This corresponds to a sentencing range of 63-78 months imprisonment, which is a more favorable sentencing range for a defendant. This is a HUGE benefit if you can get the reduction.


So how do you get this benefit?  To answer that, we need to look at the law before November 1, 2015 and then discuss the changes that were made.  [Click here to read the changes that were made by the Commission to Section 3B1.2.]

Prior to November 1, 2015:

Before November 1, 2015, getting a mitigating-role reduction was darn near impossible.  That’s because of how district court’s evaluated this request. Specifically, in the Fifth Circuit—which includes Texas—courts were required to evaluate a defendant’s conduct relative to “average participants.” The meaning of “average participants” was interpreted broadly—to include the “entire universe of persons participating in similar crimes.”  Under this interpretation—district courts rarely granted mitigating role adjustments.

After November 1, 2015:

On April 30, 2015, the United States Sentencing Commission (USSC) changed how district courts should evaluate a defendant’s eligibility for a mitigating-role adjustment at sentencing. These changes became effective on November 1, 2015.

Now, district courts are directed to compare a defendant’s conduct to the conduct of his co-defendants rather than the “entire universe of persons participating in similar crimes.”   This makes it much easier for criminal defense attorneys to show their clients played either a minor or minimal role in an offense.

The USSC also provided district courts, prosecutors, probation officers, and defense counsel with a framework on how to analyze a mitigating-role adjustment. They did this by inserting the following factors to help trial courts make this determination:

1. The degree to which the defendant understood the scope and structure of the criminal activity;

2. The degree to which the defendant participated in planning or organizing the criminal activity;

3. The degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority;

4. The nature and extent of the defendant’s participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts; and

5. The degree to which the defendant stood to benefit from the criminal activity.

So what does this mean for you?

Minimal (or minor) participation in an offense by a defendant is a sophisticated-factual determination to be made by the sentencing judge.  The defendant bears the burden at sentencing to prove to the court that he or she was substantially less culpable than the average participant in the conspiracy.

This means that your attorney needs to aggressively use the five factors listed above to show the court that you had a minor or minimal role in the offense.  (If in fact you did.)  If your lawyer is successful, then your sentencing range could drop significantly.

But beware–court’s have authority to depart from this range and go either up or down depending on the facts of the  case.  But it is almost always better to start off with a lower sentencing range.  That’s what the mitigating role-adjustment does–it discounts a defendants culpability based on his or her role in the offense.   And the changes announced by the USSC make it more likely that this adjustment will be granted in appropriate cases.





Why should I hire an attorney? That’s one of the most frequent questions I get from prospective clients. The short answer to this question in my opinion has two parts.

SCOTUSbuildingFirst, the consequences of a criminal conviction are extreme.  That’s why every criminal defendant in America has the right to hire and “be represented by an otherwise qualified attorney whom that defendant can afford to hire.” This right is embedded in your Sixth Amendment Right to Effective Assistance of Counsel.

Apart from facing jail time, convicted defendants also face fines, loss of the right to purchase firearms, possible deportation if you are not a U.S. Citizen, and loss of certain government benefits–just to name a few of the collateral consequences of a criminal conviction.

Hiring an attorney gives criminal defendants the opportunity to use their  resources to help establish their innocence and avoid and unjust conviction.

The second reason is trust. Trust is the most important element in any relationship. When you hire an attorney of your choice, you are taking control of your case and hiring a professional who not only has the skill, experience, and expertise to represent you in court, but also the temperament and personality to work with you to help resolve your case in a favorable manner.

These issues were addressed by the Supreme Court on Wednesday, March 30, 2016, in its opinion styled Silas v. United States, Case No. 14-419.

If you are facing a felony or misdemeanor charge and are considering hiring an attorney—you should definitely read this opinion. Click here for a link to that case.

Click here (scotusblog) and here (NYTimes article) for discussions on the case by ScotusBlog and the NYTimes. Below is also a summary of the case and why it is important.

SILA LUIS v. UNITED STATES (Docket No. 14-419)


A federal grand jury indicted Sila Luis (hereinafter “Luis”) on charges of committing a $ 45 million dollar healthcare fraud. However, before Luis was charged with the crime, she spent the $45 million. After she was arrested and indicted, Luis had $2 million that was unrelated (and untainted) to the healthcare fraud. That is the $2 million dollars was from legitimate and legal income and therefore “innocent” property that she wanted to use to hire an attorney of her choice.

But the trial court, at the Government’s request, prohibited Luis from using the $ 2 million dollars to hire an attorney of her choice, which effectively barred her from hiring an attorney to defend her of the serious charges. The Eleventh Circuit Court of Appeals affirmed this ruling. Luis then appealed to the United States Supreme Court.

The issue on appeal was: whether the pretrial restraint of a criminal defendant’s legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violate the Fifth and Sixth Amendments of the United States Constitution.

The Supreme Court reversed the trial and lower appellate court and ruled for Luis and allowed her to use the $ 2 million to hire an attorney of her choice. The Supreme Court cited Gideon v. Wainwright, 372 U.S. 335 (1963) which explained the important role defense counsel plays in the criminal justice system:

“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.

Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence.

Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one.

He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not … know how to establish his innocence.’” Id., at 344– 345 (quoting Powell v. Alabama, 287 U. S. 45, 68–69 (1932)) “

This is very powerful stuff. The idea that a criminal defendant needs a skilled lawyer to defend him or her in court is strongly embedded in our constitution and case law. (By the way—for the reasons stated above—this is also a good explanation of why it is almost always a bad idea to represent yourself (i.e., go pro se) if you are accused of a crime.  This is also why the Gideon court held that a defendant has a right to a court-appointed attorney if he or she cannot afford to hire one)

The Court also noted the limitations of court-appointed counsel. They are at times overworked, underpaid, and lack the resources to adequately defend a defendant accused of a crime.

[IMPORTANT NOTE: The Supreme Court was not bashing or knocking the role of court-appointed counsel.  It was only explaining why the right of a criminal defendant to hire counsel of his or her choice should be scrupulously guarded and defended. Further, this post is not intended as an attack on court-appointed counsel. They do important work and successfully defend criminal defendants every day.]

The Court also explained that the consequences of a criminal conviction can be severe—in addition to jail time—Luis also faced substantial fines, fees, and restitution. This was another reason that the Court found should favor her ability to use the $ 2 million dollars to hire an attorney of her choice.

In short, the Supreme Court held that a defendant accused of a crime has a Sixth Amendment Right to use “innocent” property to pay a reasonable fee for the assistance of counsel.


What does this case mean for me?

“[T]he Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire.” Untainted assets can be used by a Defendant to hire counsel of his or her choice.

What if I cannot afford an attorney?

If you are charged with a crime and cannot afford to hire your own attorney—DO NOT PANIC! The law is clear on what happens in these situations: the right to counsel is “fundamental” and the Government is required to provide a criminal defendant an attorney in all but “the least serious of crimes.”

What if I can afford to hire an attorney?

If you are charged with a crime and are able to hire an attorney of your choice—I strongly urge you to consider this option for the reasons stated in Luis v. United States.

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