Federal Sentencing: How to Obtain a Mitigating Role Offense Level Adjustment Pursuant to §3B1.2
An overview of guideline §3B1.2 (Mitigating Role), which can reduce the offense level based on the defendant's role in the offense. In federal court, convincing the judge that the defendant was a minimal or minor participant can shave several months off of the sentence.
How does federal sentencing work?
Arriving at a federal sentence is a complicated process. There are two components: (1) offense level; (2) criminal history. This guide deals with the offense level, specifically, the defendant's mitigating role in the criminal activity. Where the defendant is accused of a crime with at least one other participant, the defendant can significantly reduce the offense level if the court determines that the defendant played a minor or minimal role according to §3B1.2.
By how much can §3B1.2 (Mitigating Role) decrease the offense level?
§3B1.2. provides for 2-, 3-, and 4-level decreases to offense level. If the defendant was a minimal participant, decrease by 4 levels. If the defendant was a minor participant in any criminal activity, decrease by 2 levels. In cases falling between minimal and minor, decrease by 3 levels.
What goes into determining whether to apply §3B1.2(a) or (b)?
According to Application Note 3(A), the court is looking for the defendant to be "substantially less culpable than the average participant in the criminal activity." The court will look at the totality of the circumstances. The defendant bears the burden of proving by a preponderance of the evidence that he or she is entitled to a mitigating role adjustment.
How do courts determine the "average participant?"
The court will only look at the other participants in the specific criminal activity of the case. The court will not look at "typical" offenders who committed similar crimes in other cases.
What factors does the court look at to determine the minimal or minor participant adjustment?
(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;
(4) the nature and extent of the defendant's participation in the commission of the criminal activity;
(5) the degree to which the defendant stood to benefit from the criminal activity.
How do you distinguish between "minimal" and "minor" participant?
The court will look at the factors above and make a judgment call. A minimal participant is someone who lacks the knowledge or understanding of the scope and structure of the enterprise and of the activities of others. A minor participant is someone who is clearly less culpable but cannot be described as minimal.
By how many months can this adjustment reduce a sentence?
It depends on where on the sentencing matrix the offense level is before the court finds that the defendant is a minimal participant. If the offense level is 24 before the reduction, then the defendant would save 18 months. The higher the offense level is, the more significant the sentencing guideline reduction will be.
When is the determination of the minimal/minor role adjustment made?
At sentencing. Evidence is required to prove the relatively minimal/minor role of the defendant, which will be presented at the hearing.
What are some examples of cases where the minimal/minor role adjustment would apply?
This role adjustment is important in any case where there is at least one other participant in any crime. The most typical example is in drug trafficking organization prosecutions. The courts will distinguish between the kingpin and the person who carried a bag of drugs on one or two occasions.