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.



Author: Genaro Cortez

Hi! I am Genaro Cortez, a DWI Attorney in San Antonio, Texas. This blog provides information on frequently asked questions about DWI charges and criminal defense.