Amendment 833 Is Substantive and Non-Retroactive; Pre-Amendment § 3B1.2 Minor-Role Claims Remain Governed by De Varon

1. Introduction

In United States v. Rafael Gutierrez (11th Cir. Sept. 14, 2026) (per curiam) (not for publication), the Eleventh Circuit affirmed a 108-month sentence imposed after Rafael Gutierrez pleaded guilty to a methamphetamine conspiracy under 21 U.S.C. § 846. The principal sentencing dispute was whether Gutierrez qualified for a minor-role reduction under U.S.S.G. § 3B1.2(b), given that he participated in two controlled-buy transactions: (1) delivering approximately 443.1 grams (pure) methamphetamine to an undercover officer when the main seller was unavailable, and (2) later driving that seller to a second transaction involving approximately 427.3 grams (pure).

The appeal raised two interrelated issues: (i) whether the district court clearly erred in denying the minor-role adjustment under the governing Eleventh Circuit framework; and (ii) whether the court should have accounted for Amendment 833—a 2025 guideline amendment that, in certain drug cases, instructs that the minor-role reduction is “generally warranted” for low-level trafficking functions such as couriers.

2. Summary of the Opinion

The Eleventh Circuit held:

  1. Amendment 833 does not apply retroactively on direct appeal to a defendant sentenced before its effective date, because it is a substantive (not merely “clarifying”) change; the court relied on its recent decision in United States v. Martinez, 172 F.4th 1306 (11th Cir. 2026).
  2. Under the pre-Amendment 833 framework—particularly Rodriguez De Varon, 175 F.3d 930 (11th Cir. 1999) (en banc)— the district court did not clearly err in denying a minor-role reduction. The district court permissibly focused on Gutierrez’s role in the relevant conduct attributed to him (about 870.4 grams pure methamphetamine across two transactions) and found that he knowingly performed key tasks (delivery; transportation to a delivery) and returned for a second transaction.

Disposition: Affirmed.

3. Analysis

3.1. Precedents Cited

3.1.1. U.S. v. Rodriguez De Varon, 175 F.3d 930 (11th Cir. 1999) (en banc)

The opinion treats Rodriguez De Varon as the controlling test for mitigating-role determinations in the Eleventh Circuit. De Varon established two “principles” (often described as a two-step factual inquiry):

  • Relevant-conduct focus: the defendant’s role is measured primarily against the conduct for which he is held accountable at sentencing. The court must not dilute the analysis by comparing the defendant to participants in a broader conspiracy beyond the defendant’s attributed conduct.
  • Participant comparison (limited): the defendant may be compared to other participants involved in the same relevant conduct.

The Gutierrez panel applied this approach by emphasizing that he was “held accountable for his own actions,” and that “without his participation ... the drug transaction may not have occurred,” tracking the De Varon insistence that a defendant’s importance to the attributed transaction can defeat a minor-role claim even if he is not an organizer.

The panel also echoed De Varon’s courier-specific considerations (drug amount, value, payment, equity interest, planning role, and distribution role), and approved the district court’s consideration of the “nature and extent” of Gutierrez’s participation and his return for a second transaction.

3.1.2. United States v. Martinez, 172 F.4th 1306 (11th Cir. 2026)

United States v. Martinez is the opinion’s linchpin on Amendment 833. Gutierrez relies on Amendment 833’s new instruction in U.S.S.G. § 2D1.1(e)(2)(B) that the minor-role reduction is “generally warranted” for low-level trafficking roles (e.g., a courier). But Martinez held Amendment 833 is substantive, not clarifying, for multiple reasons that Gutierrez reiterates and applies:

  • It changes guideline text (not merely commentary).
  • The Commission’s own explanation indicates a substantive change.
  • It expands availability of role reductions in drug cases in ways inconsistent with prior requirements.
  • It is not listed as retroactive.
  • It abrogates prior Eleventh Circuit precedent to the extent it makes other-participant involvement less relevant.

By treating Martinez as controlling, the Gutierrez panel solidifies the practical rule for pending appeals: defendants sentenced under an earlier manual cannot use Amendment 833 on direct review in this circuit.

3.1.3. United States v. Cruickshank, 837 F.3d 1182 (11th Cir. 2016)

United States v. Cruickshank appears as authority for the articulation of clear-error review—the deferential standard under which appellate courts overturn role findings only when left with a “definite and firm conviction” that a mistake was made. This matters because it narrows the scope of appellate relief in fact-bound § 3B1.2 disputes.

3.2. Legal Reasoning

3.2.1. Amendment 833: Substantive vs. Clarifying (and Why That Controls Retroactivity on Appeal)

The court separates two questions: (1) which Guidelines manual governs (typically, the manual in effect at sentencing), and (2) whether an intervening amendment can be applied on appeal. Under Eleventh Circuit practice (as described through Martinez), an intervening amendment is considered on direct review only if it is clarifying; if it is substantive, it does not retroactively affect pre-amendment sentences.

Applying Martinez, the panel holds Amendment 833 is substantive and therefore declines to apply it. This is the opinion’s key “precedential” move (even if unpublished): it operationalizes Martinez to foreclose defendants’ attempts to reframe older courier-like conduct using the more defendant-friendly “generally warranted” instruction.

3.2.2. Minor-Role Denial Under § 3B1.2 Using the De Varon Framework

With Amendment 833 excluded, the court applies § 3B1.2’s existing commentary and De Varon. It emphasizes:

  • Totality of the circumstances: the district court expressly addressed the § 3B1.2 factors (scope/structure understanding, planning, decision-making authority, nature/extent of participation, and expected benefit).
  • Role in the attributed conduct: Gutierrez personally delivered a large quantity in one transaction and facilitated another by driving the seller to the deal site; the court treated this as significant participation in the very conduct used to set his base offense level.
  • Knowledge and repeat participation: the district court relied on the recorded interaction and criminal history to reject any portrayal of Gutierrez as naïve, and it viewed his second appearance as probative that he was not merely incidentally involved.

Given clear-error review, the panel finds the district court’s weighing of these facts permissible and affirms.

3.3. Impact

  • Direct-appeal limitation for pre-2025 sentences: In the Eleventh Circuit, defendants sentenced before Amendment 833’s effective date face a strong barrier to invoking it on appeal; the controlling categorization of the amendment as “substantive” keeps older sentences anchored to pre-amendment § 3B1.2 doctrine.
  • Continued centrality of “relevant conduct”: Gutierrez reinforces that even courier-like defendants may be denied minor-role relief when their attributed conduct is limited to (and coextensive with) transactions in which their participation was operationally important.
  • Practical litigation consequence: Role arguments remain highly fact-driven and deferentially reviewed; absent a legal error, appellants must overcome a steep clear-error standard.
  • Forward-looking effect: For defendants sentenced under post-Amendment 833 manuals, the “generally warranted” language may materially shift district-court analysis in courier and other low-level function cases. Gutierrez, however, signals that those benefits are prospective in this circuit.

4. Complex Concepts Simplified

  • “Minor participant” (§ 3B1.2(b)): a defendant who is less culpable than most others involved in the criminal activity, but not among the least culpable (“minimal”).
  • “Relevant conduct”: the specific conduct and drug quantities the sentencing court attributes to the defendant for guideline calculation. Under De Varon, this is the main yardstick for role.
  • Clear error (appellate standard): a very deferential review of factual findings; the appellate court does not reweigh evidence but asks whether the district court’s view was plainly mistaken.
  • Clarifying vs. substantive guideline amendment: “Clarifying” amendments explain existing meaning and may be consulted on appeal; “substantive” amendments change the rule and generally apply only going forward unless made retroactive.
  • Retroactivity (Guidelines context): even if a new guideline is more lenient, it typically does not benefit defendants already sentenced unless it is treated as clarifying on direct review or designated retroactive by the Sentencing Commission.

5. Conclusion

United States v. Rafael Gutierrez applies United States v. Martinez to hold that Amendment 833 is substantive and therefore not retroactively applicable on direct appeal to pre-amendment sentences. It then reaffirms that, under Rodriguez De Varon and § 3B1.2’s totality-of-the-circumstances inquiry, a defendant who directly delivers a substantial drug quantity and later facilitates another delivery may be denied a minor-role reduction—especially under clear-error review. The decision’s broader significance lies in its firm demarcation between pre- and post-Amendment 833 sentencing regimes and its continued emphasis on relevant-conduct-centric role analysis in the Eleventh Circuit.