Posted by [By Jaster Francis]
At our recent St. Crispin’s Day Celebration, our illustrious colleagues Colin Garrett and Sean Young told us all about the hot topics in federal criminal law. This blog post touches on one of those hot topics: The recent expansion of the mitigating role adjustment under U.S.S.G. § 2D1.1(e)(2) and § 3B1.2. We’ve been burned a few times when we’ve sought this adjustment, but the First Circuit’s recent decision in United States v. Vizcaino, No. 26-1187, 2026 WL 3082932 (1st Cir. Oct. 15, 2026), should help make us a little more fireproof.
Yeiron Vizcaino Vizcaino pleaded guilty to conspiracy to distribute and to possess with intent to distribute forty grams or more of fentanyl, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B)(vi). Mr. Vizcaino was a street-level distributor for a fentanyl and cocaine distribution organization in Boston. Here’s how it worked: Leaders of the organization would take orders over the phone and send those orders to street dealers like Mr. Vizcaino. Mr. Vizcaino and the other street-level distributors would each receive a car full of drugs, make deliveries using those cars, and collect payment from the customers. Think of it like Uber Eats but with a lot more mandatory minimums.
Importantly, Mr. Vizcaino was one of thirteen street-level dealers charged in the conspiracy. That group was objectively less culpable than the eleven superiors who were also charged as co-conspirators. And Mr. Vizcaino only worked for the organization for about two months.
Mr. Vizcaino entered a straight-up guilty plea. In the PSR, the probation officer gave him a two-level adjustment under U.S.S.G. § 3B1.2(b), finding that he was a “minor participant” in the conspiracy. But both the government and Mr. Vizcaino objected, albeit for different reasons. Mr. Vizcaino contended that he was a “minimal participant,” and as such, was entitled to a four-level adjustment under § 3B1.2(a). The government thought Mr. Vizcaino was entitled to nothing. And when the probation officer stood by its two-level recommendation, Mr. Vizcaino withdrew his objection and expressed support for the two-level adjustment.
At sentencing, the trial court shifted the focus to U.S.S.G. § 2D1.1(e)(2)(B). That provision provides that, in addition to the circumstances identified in § 3B1.2, such downward adjustments are generally warranted “if the defendant’s primary function in the offense was performing a low-level trafficking function.” And of particular relevance here, the guideline states that § 3B1.2(b)’s minor participant adjustment “is generally warranted if the defendant’s primary function in the offense was performing another low-level trafficking function, such as distributing controlled substances in user-level quantities for little or no monetary compensation or with a primary motivation other than profit (e.g., the defendant was otherwise unlikely to commit such an offense and was motivated by an intimate or familial relationship, or by threats or fear to commit the offense).” § 2D1.1(e)(2)(B)(ii). Finally, when making any § 3B1.2 determination in § 2D1.1 cases, “the extent of the adjustment shall be based on the totality of the circumstances and involves a determination that is heavily dependent upon the facts of the particular case.” § 2D1.1(e)(2)(B).
Mr. Vizcaino argued that he was entitled to the adjustment under this provision. Because § 2D1.1(e)(2)(B)(ii) focuses on the defendant’s primary function, he argued, the adjustment should be applied “independent of whether the defendant is substantially less culpable than the average participant.” Accordingly, he contended, the fact that other co-conspirators served a similar function should not doom his request.
The district court disagreed, concluding that Mr. Vizcaino was ineligible for the adjustment because “he possessed more than a user-level quantity of drugs in the car he was driving when he was arrested.” The trial court also noted that Mr. Vizcaino was ineligible because (1) he was not substantially less culpable than the average participant, and (2) he willingly joined the organization for profit. Mr. Vizcaino appealed that decision.
The First Circuit agreed with Mr. Vizcaino. Contrary to the district court’s analysis, the fact that a defendant possessed more than a user-level of drugs “does not by itself place the defendant outside the universe of those ‘distributing controlled substances in user-level quantities.’” Disqualifying someone who possessed more than a user-level quantity of drugs while making user-level deliveries was contrary to the guideline’s text.
The First Circuit also rejected the alternative conclusion that Mr. Vizcaino was ineligible because he willingly joined the organization’s business model. While that fact might inform the trial court’s ultimate decision, it did not automatically disqualify Mr. Vizcaino from receiving the adjustment. Categorical disqualifiers are inappropriate: “Instead, the central question is the ‘primary function’ of the defendant in the conspiracy ‘based on the totality of the circumstances.’”
This helpful decision was made possible through the incredible advocacy of Christine DeMaso, Mr. Vizcaino’s federal defender. Christine wielded these new changes to the guidelines to fight for her client and make positive precedent. Bee like Christine! Bee litigious!
