Always Compare the Defendant to Actual Participants:
United States v. Berryhill and the Clarified Duty to Perform a Relative-Culpability Analysis Under U.S.S.G. § 3B1.2

Introduction

United States v. Berryhill, No. 24-7008 (10th Cir. 2025), presents a detailed exploration of the Sentencing Guidelines’ mitigating-role provision, U.S.S.G. § 3B1.2. David Glenn Berryhill appealed the denial of a two-level “minor participant” reduction after pleading guilty to possession with intent to distribute nearly three kilograms of methamphetamine. The district court rejected the reduction, calling him “a lot more than a mule” and comparing him to a hypothetical average courier. On review, the Tenth Circuit held that this comparison was legally erroneous because § 3B1.2 demands a comparison with actual participants in the same criminal activity, not with an abstract average offender.

Although the panel ultimately affirmed the 168-month sentence on plain-error grounds—concluding that the error was not “clear or obvious” under pre-existing case law—the opinion decisively clarifies future obligations: a district court must conduct a relative-culpability analysis whenever a defendant seeks a mitigating-role adjustment, even if it finds the defendant’s self-description incredible.

Summary of the Judgment

• Error Identified: The district court erred by comparing Berryhill to a hypothetical average courier rather than to the real coconspirators revealed in the record and phone data.
• Plain-Error Outcome: The error was not “clear or obvious” at the time because ambiguities in United States v. Delgado-Lopez, 974 F.3d 1188 (10th Cir. 2020), muddied the law. Therefore, prong two of plain-error review failed and the sentence was affirmed.
• Key Holding (Precedential Clarification): Going forward, Tenth Circuit precedent unmistakably requires district courts to perform the § 3B1.2 relative-culpability analysis regardless of credibility findings. Failure to do so will now constitute “clear and obvious” error.

Analysis

Precedents Cited and Their Influence

1. U.S.S.G. § 3B1.2 & Amendment 794 (2015)
   Amendment 794 clarified that eligibility for a mitigating-role adjustment hinges on comparison with “other participants in the criminal activity,” repudiating earlier “average offender” approaches. Berryhill re-emphasises this textual command.
2. United States v. Delgado-Lopez, 974 F.3d 1188 (10th Cir. 2020)
   Contained ambiguous language suggesting that if a court disbelieves the defendant, it “is not required to proceed” to the comparative step. Berryhill addresses and confines that ambiguity, explaining Delgado-Lopez was never meant to create a two-step threshold test.
3. United States v. Yurek, 925 F.3d 423 (10th Cir. 2019)
   Established that § 3B1.2 requires comparison to actual participants. Berryhill relies heavily on Yurek to show the correct framework.
4. United States v. Nkome, 987 F.3d 1262 (10th Cir. 2021)
5. United States v. Salazar-Samaniega, 361 F.3d 1271 (10th Cir. 2004)
   Earlier case emphasizing the necessity of evaluating defendant’s role relative to others, even with scant evidence.

Legal Reasoning

The panel applied the four-part plain-error test (error, plainness, effect on substantial rights, and impact on judicial integrity).

1. Error (Prong 1): The district court failed to perform a required comparative analysis and instead used a hypothetical benchmark.
2. Plainness (Prong 2): Because Delgado-Lopez’s wording arguably suggested a “credibility gate,” the law was not well settled; hence the error was not “clear or obvious.”
3. Prongs 3 & 4: Not reached; the lack of plainness sufficed to affirm.

Crucially, the court takes the unusual step of issuing a prospective clarification: future district courts cannot invoke uncertainty; Berryhill itself resolves Delgado-Lopez’s ambiguities.

Impact of the Judgment

• Prospective Bright-Line Rule: In every Guidelines case where § 3B1.2 is at issue, judges must compare the defendant to actual participants. Disbelief of the defendant’s testimony does not eliminate the analysis; it only shapes the factual findings.
• Sentencing Practice: Presentence Investigation Reports (PSRs) must now collect sufficient facts about other participants to allow meaningful comparison; defense counsel should marshal such facts, and prosecutors should be prepared to rebut them.
• Appeals Landscape: After Berryhill, failure to undertake the comparative analysis will almost certainly meet prong 2 of plain-error review; the government will have a harder time defending such sentences.
• Clarification of Delgado-Lopez: The opinion harmonises prior decisions, preventing defendants or the government from cherry-picking Delgado-Lopez language to bypass the comparative step.

Complex Concepts Simplified

• Mitigating-Role Adjustment (§ 3B1.2): A reduction of 2–4 offense-level points available to defendants who are substantially less culpable than most other participants in their crime. Think of it as acknowledging a getaway driver versus the mastermind.
• Relative-Culpability Analysis: The sentencing judge must ask: “Among all the real people involved in this scheme, where does this defendant rank?” It is not a comparison to an abstract “typical drug dealer.”
• Plain-Error Review: An appellate standard applied when the defense failed to object below. The error must be (1) wrong, (2) obvious, (3) harmful, and (4) seriously damaging to judicial reputation for the conviction or sentence to be reversed.
• Credibility Determination: Judges may disbelieve a defendant’s story, but under Berryhill they must still examine independent record evidence (e.g., phone extractions, PSR details) to see if a mitigating role is otherwise warranted.

Conclusion

United States v. Berryhill is both an affirmance and a warning. While Berryhill loses his individual appeal, future defendants gain a fortified procedural safeguard: district courts can no longer shortcut the § 3B1.2 inquiry by dismissing a defendant’s self-serving testimony and stopping there. Instead, courts must always widen the lens to the entire cast of offenders actually involved and undertake a relative-culpability assessment. This clarification promotes uniformity, transparency, and proportionality in federal sentencing, aligning practice with the Sentencing Commission’s intent and eliminating the confusion sown by selective readings of Delgado-Lopez. In sum, Berryhill cements the principle that mitigating-role decisions must be grounded in real-world comparisons, not hypothetical benchmarks.