U.S.S.G. §3B1.2

Based on the defendant’s role in the offense, decrease the offense level as follows:

(a) If the defendant was a minimal participant in any criminal activity, decrease by 4 levels.

(b) If the defendant was a minor participant in any criminal activity, decrease

by 2 levels.

In cases falling between (a) and (b), decrease by 3 levels.

Commentary

Application Notes:

1. Definition.—For purposes of this guideline, “participant” has the meaning given that term in

Application Note 1 of §3B1.1 (Aggravating Role).

2. Requirement of Multiple Participants.—This guideline is not applicable unless more than

one participant was involved in the offense. See the Introductory Commentary to this Part (Role

in the Offense). Accordingly, an adjustment under this guideline may not apply to a defendant

who is the only defendant convicted of an offense unless that offense involved other participants

in addition to the defendant and the defendant otherwise qualifies for such an adjustment.

3. Applicability of Adjustment.—

(A) Substantially Less Culpable than Average Participant.—This section provides a

range of adjustments for a defendant who plays a part in committing the offense that makes

him substantially less culpable than the average participant in the criminal activity.

A defendant who is accountable under §1B1.3 (Relevant Conduct) only for the conduct in

which the defendant personally was involved and who performs a limited function in the

criminal activity may receive an adjustment under this guideline. For example, a defendant

who is accountable under §1B1.3 for a loss amount under §2B1.1 (Theft, Property Destruction, and Fraud) that greatly exceeds the defendant’s personal gain from a fraud offense or

who had limited knowledge of the scope of the scheme may receive an adjustment under

this guideline. For example, a defendant in a health care fraud scheme, whose participation

in the scheme was limited to serving as a nominee owner and who received little personal

gain relative to the loss amount, may receive an adjustment under this guideline.

(B) Conviction of Significantly Less Serious Offense.—If a defendant has received a lower

offense level by virtue of being convicted of an offense significantly less serious than warranted by his actual criminal conduct, a reduction for a mitigating role under this section

ordinarily is not warranted because such defendant is not substantially less culpable than

a defendant whose only conduct involved the less serious offense. For example, if a defendant whose actual conduct involved a minimal role in the distribution of 25 grams of cocaine

(an offense having a Chapter Two offense level of level 12 under §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy)) is convicted of simple possession of cocaine

(an offense having a Chapter Two offense level of level 6 under §2D2.1 (Unlawful Possession; Attempt or Conspiracy)), no reduction for a mitigating role is warranted because the

defendant is not substantially less culpable than a defendant whose only conduct involved

the simple possession of cocaine.

(C) Fact-Based Determination.—The determination whether to apply subsection (a) or subsection (b), or an intermediate adjustment, is based on the totality of the circumstances and

involves a determination that is heavily dependent upon the facts of the particular case.

In determining whether to apply subsection (a) or (b), or an intermediate adjustment, the

court should consider the following non-exhaustive list of factors:

(i) the degree to which the defendant understood the scope and structure of the criminal

activity;

(ii) the degree to which the defendant participated in planning or organizing the criminal

activity;

(iii) the degree to which the defendant exercised decision-making authority or influenced

the exercise of decision-making authority;

(iv) 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;

(v) the degree to which the defendant stood to benefit from the criminal activity.

For example, a defendant who does not have a proprietary interest in the criminal activity

and who is simply being paid to perform certain tasks should be considered for an adjustment under this guideline.

The fact that a defendant performs an essential or indispensable role in the criminal activity is not determinative. Such a defendant may receive an adjustment under this guideline

if he or she is substantially less culpable than the average participant in the criminal activity.

4. Minimal Participant.—Subsection (a) applies to a defendant described in Application

Note 3(A) who plays a minimal role in the criminal activity. It is intended to cover defendants

who are plainly among the least culpable of those involved in the conduct of a group. Under this

provision, the defendant’s lack of knowledge or understanding of the scope and structure of the

enterprise and of the activities of others is indicative of a role as minimal participant.

5. Minor Participant.—Subsection (b) applies to a defendant described in Application Note 3(A)

who is less culpable than most other participants in the criminal activity, but whose role could

not be described as minimal.

6. Application of Role Adjustment in Certain Drug Cases.—In a case in which the court applied §2D1.1 and the defendant’s base offense level under that guideline was reduced by operation of the maximum base offense level in §2D1.1(a)(5), the court also shall apply the appropriate

adjustment under this guideline.