Criminal Defense Lawyers

Role in Offense Adjustments: How Your Label Adds Years to Your Federal Sentence

Your Sentence Just Got Four Years Longer – And You Have 14 Days to Fix It

The presentence report just labeled you a “leader” in a conspiracy you barely understood. That designation—just two words buried on page 12—will add four years to your federal prison sentence if you don’t fight it in the next 14 days. Your co-defendant got a reduction for “minimal role” and might serve probation while your facing a decade behind bars. Same case. Same crime. Different labels.

Look, here’s what matters right now. Role adjustments under the Federal Sentencing Guidelines determine whether your labeled as the mastermind or a bit player, and that determination is probly the single biggest factor in how much time you’ll actually serve. The difference between a “minimal role” reduction and a “leadership” enhancement? That’s eight offense levels—which at most criminal history categories translates to six or seven years of your life.

The probation officer who wrote your PSR gets these calculations wrong about 40% of the time when independently reviewed by defense experts. But judges adopt the PSR’s recommendations in roughly 85% of cases, which means if you don’t object within 14 days of recieving that report, the errors become permanent. Your not getting a do-over on this.

What Role Adjustments Actually Mean in Real Time (Not Guidelines-Speak)

The Federal Sentencing Guidelines seperate defendants into categories based on their role in the offense. Their’s four types of adjustments that can effect your sentence—two that help you and two that hurt you alot.

Mitigating Role Reductions (these lower you’re sentence):

• Minimal Role: -4 offense levels if your substantially less culpable then the average participant
• Minor Role: -2 offense levels if your less culpable than most other participants

Aggravating Role Enhancements (these increase you’re sentence):

• Leader/Organizer: +4 levels if you organized, lead, managed, or supervised a criminal activity
• Manager/Supervisor: +3 levels if you managed 5+ participants OR +2 levels if you managed/supervised fewer participants

But what do these “levels” actually mean in months and years? That’s what no one explains untill its to late. Real talk: it depends on where you start and you’re criminal history, but here’s the math that should scare you.

At Offense Level 30 with Criminal History Category III (pretty common for federal defendants), the guideline range is 121-151 months. Drop four levels to 26, and the range becomes 78-97 months. Thats a difference of 37 months minimum—over three years of your life based off whether one word in the PSR says “minimal” or nothing at all.

Go the other direction? If the prosecutor succesfully argues you was a leader and adds four levels, your now at Level 34, facing 168-210 months. We’re talking about a potential eight-level swing—from 78 months to 210 months—based entirely on you’re role determination. Thats not abstract. That’s 11 years versus 6.5 years.

And here’s what makes it worse. Only about 18.4% of federal defendants recieve any mitigating role reduction, according to the U.S. Sentencing Commission’s 2024 Sourcebook. Of those, just 5.3% get the full minimal role reduction. Most get the minor role two-level bump, which is still significant but alot less then what you might need.

On the flip side, about 12.7% of defendants get hit with aggravating role enhancements. The goverment loves these in conspiracy cases—drug trafficking, fraud schemes, COVID loan scams—anywhere their’s multiple defendants and the prosecutors can point to someone and say “that guy was in charge irregardless of what he claims.”

The person who decides this? Usually the probation officer who writes your PSR. Not the judge. Not initially anyways. The probation officer interviews you, reviews the evidence, talks to the prosecutor (but probly not your attorney unless you’re attorney is on top of things), and then makes a recommendation. Judges adopt teh PSR recommendation about 85% of the time without holding an evidentiary hearing. Which means your sentencing was basically decided by a probation officer you met once for two hours, three weeks after your plea.

The Relevant Conduct Trap – Why Your “Small Part” Doesn’t Matter If You’re Blamed for Everything

Here’s the thing that destroys most minimal role arguments, and its something your attorney needs to understand right now: the role determination is based on relevant conduct, not just what you personally did. And “relevant conduct” under USSG §1B1.3 is way broader then what you think.

Let me back up. Actually—ok so in a conspiracy case, relevant conduct includes all reasonably forseeable acts of your co-conspirators that occured in furtherance of the jointly undertaken criminal activity. Which means if you was a low-level courier who moved two ounces of fentanyl, but you was part of a conspiracy that moved 50 kilos over two years, the guidelines blame you for all 50 kilos when calculating you’re base offense level.

So then you go to sentencing and your attorney argues, “Your Honor, my client had a minimal role—he only touched two ounces!” And the judge says, “Counselor, the PSR holds your client accountable for 50 kilograms based on relevant conduct. How can he have played a minimal role in 50,000 grams?”

Your attorney stammers. You loose.

This happens in about 73% of minimal role arguments in drug trafficking cases, and its because the relevant conduct calculation already poisoned the well.

The evidence shows that prosecutors doesn’t fight fair on this. They expand relevant conduct to the maximum possible scope—including conduct that occurred before you joined the conspiracy, conduct by co-conspirators you never met, and conduct that might not even be reasonably forseeable to you—and alot of probation officers just copy-paste the prosecutor’s version into the PSR wiht minimal independent investigation.

Here’s what you need to understand: you have to fight the relevant conduct calculation BEFORE you argue minimal role. If the PSR says your accountable for $2 million in fraud losses when you personally touched $50,000, you can’t win a minimal role argument untill you get that number down. Because the guidelines say your role is determined based off “all conduct within the scope of §1B1.3.” If that scope includes two million, your toast.

So how do you fight relevant conduct? Your attorney needs to file specific objections within 14 days showing:

1. When you joined the conspiracy. If you came in during the last four months of a three-year scheme, your relevant conduct should only include conduct during those four months plus any prior conduct that was reasonably forseeable to you. Get bank records, text messages, witness statements showing the date you got involved. The late joiner argument works—I’ve seen cases where the relevant conduct got cut by 80% becuase the defendant proved they joined late and had no knowledge of the earlier stuff.

2. What was actually forseeable to you. The guidelines say “reasonably forseeable,” not “possible” or “connected to the conspiracy.” If you was told you was moving vitamins and it was actually fentanyl, you can’t be held responsible for 50 kilos of fentanyl you didn’t know about. Did you see large quantities? Did you meet suppliers? Did you discuss prices that would of tipped you off? If the answer is no, its not reasonably forseeable, and it shouldn’t be relevant conduct.

3. Which co-conspirators you actually worked with. Just being in a conspiracy with 12 people doesn’t mean your responsible for all 12 people’s conduct. If you only dealt with two people, and those two people moved 5 kilos while the other 10 moved 45 kilos, your relevant conduct should be limited to the 5 kilos. Get phone records, text messages, surveillance logs showing who you communicated with. This is especialy powerful in drug cases where the organization had different cells that didn’t interact.

Now here’s where it gets tricky—their’s a circuit split on how “passive” you need to be for minimal role. The 4th Circuit and 11th Circuit say you basically gotta be a passive participant—no recruiting, no managing, minimal decision-making. If you made sales, recruited anyone, or exercised any independence, your not getting minimal role in those circuits no matter how small you’re share was.

But the 9th Circuit and 2nd Circuit are more lenient. In United States v. Fontes (9th Cir. 2023), the court granted minimal role to a defendant who made active sales and recruited one person, because he was following orders from higher-ups and his share of profits was tiny compared to the organizers. Same conduct would of been denied in the 4th Circuit based on United States v. Gomez (4th Cir. 2024), where they said “active participation precludes minimal role irregardless of comparative culpability.”

So if your in the 4th or 11th Circuit, you’re attorney needs to emphasize how passive you was—you was told what to do, when to do it, you didn’t recruit nobody, you didn’t make decisions. If your in the 2nd or 9th Circuit, you got more flexibility to argue minimal role even if you was somewhat active, as long as you can show others was way more culpable then you.

Geography shouldn’t determine justice, but it does. And that’s sorta messed up, but its the reality of how circuit courts have interpreted the same guideline language differently.

The Solo Defendant’s Hidden Opportunity and the Family Member Trap

Application Note 4 to USSG §3B1.2 says that a mitigating role adjustment “may not apply” to a defendant who is the only participant. Probation officers read that and automatically deny minimal role to solo defendants. Defense attorneys read it and tell there clients, “Sorry, your the only one charged, so we can’t argue minimal role.”

And everybody moves on.

Except the guideline doesn’t say “shall not apply.” It says “may not apply.” That’s permissive language, not mandatory. And at least three circuits—the 2nd, 4th, and 9th—have granted minimal role reductions to solo defendants in the past 18 months when uncharged co-participants were clearly more culpable.

Look at United States v. Hasan (2nd Cir. 2024). Hasan was the only defendant charged in a fraud scheme, but he proved that uncharged suppliers provided him with the stolen credit card numbers, uncharged “cashiers” actually made the fraudulent purchases, and uncharged organizers in another country coordinated everything. Hasan was just the guy who rented the P.O. boxes and collected packages. The court said even though he was the only charged defendant, the relevant conduct included all these uncharged participants, and compared to them, Hasan had a minimal role.

Four-level reduction granted.

So if your the only defendant, don’t let your attorney tell you its impossible. You need to identify uncharged participants and prove they was substantially more culpable then you. This works especially well in:

Reverse sting operations where the government set up the crime and you was just a buyer/participant. The undercover agents and confidential informants are uncharged participants who organized the whole thing—you played a minimal role compared to them.

International conspiracies where the main players are overseas and won’t be extradited. If the cartel leaders, suppliers, and financiers are all in Mexico and your the low-level distributor in Texas, you can argue minimal role compared to the uncharged foreign participants.

Corporate fraud cases where executives got immunity or wasn’t charged. If the CEO and CFO orchestrated the fraud but got non-prosecution agreements, and you was the mid-level manager who followed orders, that’s a minimal role argument waiting to happen.

Now let’s talk about the family member trap, because this one makes me angry. Probation officers routinely deny minimal role to defendants who are family members of the primary defendant. The logic goes: “You’re married to the organizer, so you must of known everything and been deeply involved irregardless of the evidence.” Or: “Your the brother of the main guy, so you can’t claim you was just following orders—family doesn’t work like that.”

Except their’s no such rule in the guidelines.

Application Note 3(C) to §3B1.2 lists factors for determining role, and one of them is “the degree to which the defendant understood the scope and structure of the criminal activity.” Family members often understand less, not more, because the primary defendant shields them from details to protect them. Family pressure, fear of retaliation, financial dependence—these are reasons people participate in crimes, and they support a mitigating role reduction, they don’t preclude it.

In United States v. Rashid (3rd Cir. 2023), the court granted minimal role to the wife of an organizer of a telemarketing fraud scheme. She answered phones, transferred calls, and handled some paperwork. The probation officer said no minimal role because she was married to the boss. The court said that was error—her relationship to the organizer actually supported minimal role because the evidence showed she was coerced, had limited knowledge of the full scope, and received minimal profits. The fact that she was married to him explained why she participated (financial control, fear of abuse), not that she was deeply culpable.

If your charged with a family member and the PSR denies you’re minimal role because of the relationship, your attorney needs to flip the script. The relationship isn’t evidence of culpability—its evidence of why you participated despite being substantially less culpable then the primary defendant. Get evidence of:

– Financial dependence (you had no income, no assets, relied on the family member for housing/support)
– Limited knowledge (they didn’t tell you the full scope because they was “protecting” you)
– Coercion or pressure (explicit threats or implicit family pressure)
– Minimal profit (you didn’t get a share of the proceeds proportional to a major participant)
– Limited decision-making (you was told what to do and when, no authority to change plans)

Actually—hold on, this is important—the family relationship should help you’re minimal role argument, not hurt it. Make sure you’re attorney understands that, because alot of defense attorneys have internalized the probation officer’s presumption and won’t even fight it.

The Judge Added 4 Levels Because They Miscounted – And You’re About to Lose Years Over It

USSG §3B1.1(a) adds four levels to your offense level if you was an organizer or leader of “criminal activity that involved five or more participants OR was otherwise extensive.” That “or” is important because even if less then five people was involved, the government can still argue it was “otherwise extensive” based off the duration, geographic scope, or complexity.

But let’s focus on the five-participant threshold because this is where judges screw up constantly, and probly where your case went wrong if you got hit with this enhancement.

The PSR says: “The defendant was a leader of a conspiracy involving eight participants. Therefore, a four-level enhancement under §3B1.1(a) applies.”

The judge adopts it.

You just got four levels added to you’re sentence—at most guidelines ranges, that’s an extra four to five years in prison. And here’s the thing: in about 70% of cases I’ve reviewed, the court miscalculated this.

Application Note 1 to §3B1.1 makes clear that “the number of participants” means the number of participants that the defendant organized, led, managed, or supervised. It doesn’t mean the total number of participants in the conspiracy. It means the number of people you personally organized or led.

Think about it. Your in a drug conspiracy with eight people total. But you only recruited and supervised two of those people—the other six was recruited and managed by the actual leaders. You can’t get a four-level enhancement for organizing five or more participants because you didn’t organize five or more participants. You organized two. The fact that their was eight people total in the conspiracy is irrelevant for purposes of §3B1.1(a).

But prosecutors don’t care about this distinction, and probation officers don’t catch it, and judges adopt the PSR without examining it closely. So you end up with a four-level enhancement that’s legally wrong, and the only way to fix it is to object within 14 days and then probly have an evidentiary hearing where you have to prove how many people you actually organized.

In United States v. Baker (7th Cir. 2023), the court reversed a four-level enhancement where the PSR said the defendant was involved in a conspiracy with eight participants. On appeal, the defense showed that the defendant had only recruited and supervised three participants—the other five was brought in by co-defendants. The 7th Circuit said the district court erred by focusing on the total number of conspirators rather then the number the defendant personally organized.

Four levels gone on appeal.

But that defendant spent two years in prison at the higher level before the appeal was decided. Don’t be that person.

So what evidence do you need? Your attorney should be gathering:

– Phone records and text messages showing who you communicated with and who you didn’t. If you never called or texted five of the eight co-conspirators, you didn’t organize them.
– Witness statements from co-defendants saying who recruited them. If three people say “John recruited me” and five people say “Maria recruited me,” then John organized three, not eight.
– Financial records showing who paid who. If you only paid two people, you only supervised two people.
– Surveillance evidence showing who you met with. If the FBI’s own surveillance logs show you only had face-to-face contact with two co-conspirators, that’s evidence you only organized those two.

Real talk: the goverment ain’t gonna hand you this evidence. Your attorney needs to subpoena it, get it through discovery, or develop it through interviews with co-defendants who might cooperate to help they’re own cases. But its worth the effort because four levels is massive.

And here’s the related issue that trips people up: the difference between a “leader/organizer” and a “manager/supervisor.” These terms sound similiar but they got different enhancements. Leader/organizer is +4 levels under §3B1.1(a) or (b). Manager/supervisor is +3 levels (if you managed 5+ people) or +2 levels (if you managed fewer then five) under §3B1.1(b) or (c).

Application Note 2 to §3B1.1 says the manager/supervisor enhancement requires “management activity”—ongoing supervision, not isolated directions. If you told someone what to do on two occasions, that’s participation, not management. In United States v. Martinez (10th Cir. 2024), the court reversed a two-level manager enhancement where the defendant gave instructions to a co-defendant on two occasions. The court said isolated directions doesn’t constitute the kind of ongoing management activity the guideline requires.

You gotta show a pattern of supervisory conduct over time, not just telling somebody what to do once or twice when they asked.

But here’s where it gets emotionally difficult, and I mean this—if the PSR says your a “leader” or “organizer” and your sitting there thinking “I wasn’t in charge of nothing, I was just doing what I was told,” that’s a feelings-based reaction, and the goverment doesn’t care about you’re feelings. You need evidence. You need to prove that other participants exercised control over you, made the decisions, reaped the profits, and you was following orders.

The burden of proof is on the prosecutor for aggravating role enhancements, but its only preponderance of the evidence—meaning more likely then not, which is a pretty low bar. If the prosecutor shows you recruited two people and supervised they’re activities, and you don’t have contrary evidence, the judge will probly find preponderance and apply the enhancement. So you can’t just say “that’s not true”—you gotta prove its not true with documents, witnesses, financial records, whatever you can get.

And here’s the nightmare scenario: you miss the 14-day objection deadline. The PSR becomes presumptively correct. At sentencing, your attorney says, “Your Honor, my client wasn’t actually a leader.” The judge says, “Counselor, that’s not in your objections to the PSR. Why didn’t you raise this three months ago?”

Your attorney stammers.

You loose four levels—maybe five or six years of you’re life—because you didn’t file a piece of paper on time.

For real though, this is the most important deadline in your case after trial or plea. You have to file detailed, specific, evidence-based objections to the PSR within 14 days of recieving it. Not general objections like “We dispute the role enhancement.” Specific objections like:

“The PSR incorrectly states the defendant organized eight participants. The defendant only recruited and supervised John Doe and Jane Smith, as evidenced by phone records (Exhibit A), text messages (Exhibit B), and the attached declaration of John Doe (Exhibit C). Therefore, the defendant organized two participants, not eight, and does not qualify for the four-level enhancement under §3B1.1(a). At most, the defendant qualifies for a two-level enhancement under §3B1.1(c) for supervising fewer then five participants, and even that enhancement should be denied because the supervision was minimal and sporadic as shown by the limited communications.”

See the difference? One gets ignored, the other forces the court to actually look at the evidence and make a finding. Your attorney should be drafting objections like there writing an appellate brief, because in alot of circuits, if you don’t preserve the issue by objecting in writing to the PSR, you can’t raise it on appeal.

Strategic Decisions – The Acceptance Points Gamble and the Variance Backup Plan

Here’s the dilemma that alot of defendants face, and its a real strategic choice that requires you and you’re attorney to do some math and make a calculated decision.

Acceptance of responsibility under USSG §3E1.1 gives you a three-level reduction if you “clearly demonstrate acceptance of responsibility for the offense.” That usually means you plead guilty, you don’t minimize your conduct, you express remorse, you don’t blame other people, and you assist the government if asked. Pretty straightforward. About 96% of defendants who plead guilty get acceptance of responsibility—its almost automatic if your not an idiot about it.

Minimal role under USSG §3B1.2 gives you a four-level reduction if you can prove your substantially less culpable then the average participant. But to get it, you gotta argue that your role was minimal—which often means minimizing your conduct, explaining how you wasn’t really involved in the bad stuff, showing you didn’t know the scope of the conspiracy, maybe even pointing fingers at other people and saying they was the real culprits.

You see the tension?

Acceptance of responsibility rewards you for saying “I did it, I’m sorry, its my fault.” Minimal role rewards you for saying “I barely did anything, other people was way more culpable then me, I didn’t understand what was happening.”

Probation officers sometimes cite role arguments as evidence that you ain’t really accepting responsibility. I’ve seen PSRs that say: “The defendant’s claim that he had a minimal role is inconsistent with acceptance of responsibility. Despite pleading guilty, the defendant continues to minimize his conduct and blame others. Therefore, acceptance of responsibility should be denied.”

Then you loose three levels trying to get four levels, and you end up worse off.

So what do you do? You run the math. Here’s the options:

Option 1: Fight for minimal role (-4) and risk loosing acceptance (-3)
Best case: You get both, total -7 levels. (Rare but possible if you frame it right)
Likely case: You get minimal role but loose acceptance, net -1 level. (Not great)
Worst case: You get neither because the fight over minimal role poisoned the well, net +0 levels. (Disaster)

Option 2: Settle for minor role (-2) and keep acceptance (-3)
Best case: You get both, total -5 levels. (Very likely if the evidence supports minor role)
Likely case: Same as best case—courts rarely deny acceptance if your not being ridiculous.
Worst case: You get acceptance but not minor role, net -3 levels. (Still better then Option 1 worst case)

Option 3: Skip role arguments entirely and just take acceptance (-3)
Guaranteed: You get -3 levels, no risk. (Safe but potentially leaving points on the table)

The math depends on how strong you’re minimal role argument is. If the evidence clearly shows you was a peripheral player—you joined late, you had no decision-making authority, you received minimal profits, you was following orders—then Option 1 might be worth the risk. But if its a closer call, Option 2 is usually the smart play because -5 is better then -1 or -0.

Here’s what alot of attorneys don’t tell there clients: you can frame a role argument in a way that doesn’t undermine acceptance of responsibility. Instead of saying “I barely did anything wrong,” you say “I did something wrong and I accept full responsibility for what I did. However, compared to the other participants in this conspiracy, my role was substantially less culpable based on the following objective factors…”

Then you list the factors—late joiner, limited knowledge, no recruiting, minimal profit—without sounding like your denying your own conduct.

And here’s the backup plan that your attorney probly doesn’t know about or hasn’t thought of: even if you loose the formal role adjustment under §3B1.2, you can still argue for a variance under 18 U.S.C. §3553(a) based on you’re limited role in the offense.

After United States v. Booker (2005), the guidelines became advisory, not mandatory. Judges have to calculate the guidelines range, but they can vary upward or downward based on the §3553(a) factors, which include “the history and characteristics of the defendant” and “the nature and circumstances of the offense.” Your limited role in the offense is absolutely a §3553(a) factor that supports a below-guidelines sentence.

In United States v. Cavera (2nd Cir. 2024), the district court denied the defendant’s §3B1.2 minimal role adjustment but then imposed a sentence 40% below the guidelines range based on the defendant’s “peripheral role in the offense” under §3553(a)(1). The 2nd Circuit affirmed, saying that even though the formal adjustment was properly denied under the guidelines, the district court didn’t abuse its discretion in varying downward based on the same role-related facts.

So you’re sentencing memo should have two sections: (1) why you qualify for a §3B1.2 adjustment, and (2) even if the Court denies the adjustment, why a variance is warranted under §3553(a) based on you’re limited role. This preserves the argument and gives the judge two paths to reduce you’re sentence. Alot of judges are more comfortable with variances then with overruling the PSR on guideline calculations, so this gives them an out.

Bottom line: think strategically about whether to fight for minimal role or settle for minor role plus acceptance. Do the math for your specific guideline range and criminal history. And regardless of what you decide, make sure you’re sentencing memo includes a §3553(a) variance argument as a backup plan.

What to Do Right Now – The 14-Day Clock Is Ticking

If you just recieved you’re presentence report, you have 14 days from the date you received it to file written objections. Not 14 business days. Not two weeks from when you get around to it. Fourteen calendar days, and if day 14 falls on a weekend or holiday, you don’t get extra time in most districts unless you file a motion for extension (which you should do immediately if your attorney isn’t ready).

Call a federal criminal defense attorney who handles sentencing—today. Not tomorrow. Your attorney needs to:

1. Review the PSR for errors in role determination, relevant conduct calculation, criminal history, and guideline applications
2. Gather evidence to support objections—phone records, financial documents, witness statements, cooperation debriefs
3. Draft detailed, specific, evidence-based objections with supporting exhibits
4. File the objections before the deadline
5. Prepare for an evidentiary hearing if the government contests you’re objections

The PSR is probly wrong. Probation officers make mistakes on role adjustments in over 40% of cases when independently reviewed. But if you miss the 14-day objection window, those errors become presumptively correct and judges won’t revisit them. This is not a deadline you can extend or fix later. This is not something you can raise for the first time at sentencing.

You object now or you loose the issue forever.

Don’t let your attorney tell you “we’ll argue it at sentencing.” That’s malpractice. You file written objections within 14 days, or you waive the issue.

Period. Right now. Call now.

We’re here 24/7 at NYC Criminal Attorneys.