Mitigating-Role Adjustment Turns on Relevant Conduct: Courts May Limit § 3B1.2 Comparisons to the Defendant’s Jointly Undertaken Local Node

Case: United States v. D.A. (10th Cir. Mar. 10, 2025)  |  Court: United States Court of Appeals for the Tenth Circuit  |  Guidelines: U.S.S.G. §§ 3B1.2, 1B1.3 (2021 Manual)

I. Introduction

United States v. D.A. addresses a recurring sentencing dispute in drug-conspiracy cases: when a defendant seeks a mitigating-role reduction under U.S.S.G. § 3B1.2, who counts as the “participants” against whom the defendant’s culpability must be measured?

Defendant-Appellant D.A. (“Mr. A.”) pleaded guilty to conspiracy to possess with intent to distribute 500 grams or more of methamphetamine under 21 U.S.C. § 846. The relevant conduct used at sentencing included seven pounds of methamphetamine that Mr. A. transported from Los Angeles to Topeka on a commercial flight. Both Mr. A. and the government requested a two-level “minor participant” reduction under § 3B1.2(b). The district court denied the reduction, reasoning that for role-comparison purposes the relevant criminal activity was the Topeka distribution node—not the broader Mexico/California supply chain.

On appeal, Mr. A. argued that the district court wrongly excluded California-based co-conspirators from the comparison pool and effectively “myopically” focused on Topeka. The Tenth Circuit affirmed, holding that the district court did not commit legal error (including so-called “Hill error”) and did not clearly err in fact-finding about the scope of Mr. A.’s jointly undertaken criminal activity.

II. Summary of the Opinion

The Tenth Circuit affirmed the sentence and upheld the denial of a mitigating-role adjustment. It framed three related questions: (1) whether the district court used an incorrect legal test in delineating relevant conduct; (2) whether the factual delimitation of the scope of jointly undertaken criminal activity was clearly erroneous; and (3) whether the resulting § 3B1.2 analysis was clearly erroneous.

The court held:

• No legal error: Even if the district court’s relevant-conduct delineation tracked the plea agreement, that does not establish “Hill error” (treating conviction facts as categorically identical to relevant conduct). The record showed the district court’s approach was fact-driven, not a per se legal rule.
• No clear factual error: The district court plausibly found that Mr. A.’s jointly undertaken activity was focused on Topeka distribution (despite the drugs being sourced via California) and that California co-conspirators were outside the scope of Mr. A.’s agreement.
• Consistency principle reinforced: A defendant cannot benefit from narrow relevant conduct for drug quantity while demanding a broader conspiracy universe for the mitigating-role comparison (“cannot have it both ways”).

III. Analysis

A. Precedents Cited (and How They Shaped the Decision)

1. Sentencing review framework and standards of review

• United States v. Nkome, 987 F.3d 1262 (10th Cir. 2021): The opinion’s main methodological template. Nkome provides (i) the procedural-reasonableness framing for Guidelines-calculation disputes, (ii) the “not monolithic” abuse-of-discretion structure, and (iii) the key rule that denial of a mitigating-role adjustment is typically a factual determination reviewed for clear error—while legal error occurs if the “wrong test” is applied. The panel repeatedly relies on Nkome to classify Mr. A.’s arguments and to reject the attempt to convert participant-identification into a legal issue.
• United States v. Alapizco-Valenzuela, 546 F.3d 1208 (10th Cir. 2008), United States v. Masek, 588 F.3d 1283 (10th Cir. 2009), United States v. Adams, 751 F.3d 1175 (10th Cir. 2014): Cited through Nkome to anchor reasonableness review and the “procedural component” focus (i.e., alleged errors in Guidelines calculations).
• United States v. Arias-Mercedes, 901 F.3d 1 (1st Cir. 2018): Used (via Nkome) for the proposition that “abuse of discretion” contains nested standards for law (de novo) and fact (clear error).
• United States v. Gantt, 679 F.3d 1240 (10th Cir. 2012): Supports the de novo/clear error split for legal conclusions vs factual findings in Guidelines disputes.
• United States v. Martinez, 512 F.3d 1268 (10th Cir. 2008): Reinforces that minor-role determinations are factual findings reviewed for clear error.
• United States v. Delgado-Lopez, 974 F.3d 1188 (10th Cir. 2020), United States v. Bowen, 437 F.3d 1009 (10th Cir. 2006): Provide the corrective principle: if the district court applies the wrong legal test, remand is required.
• United States v. Piper, 839 F.3d 1261 (10th Cir. 2016) and Anderson v. City of Bessemer City, 470 U.S. 564 (1985): Supply the clear-error lens—appellate courts must affirm plausible fact accounts even if they might weigh evidence differently.

2. Relevant conduct and the conspiracy-specific “jointly undertaken” inquiry

• United States v. Ellis, 23 F.4th 1228 (10th Cir. 2022): A central authority for the proposition that “the scope of the ‘jointly undertaken criminal activity’ is not necessarily the same as the scope of the entire conspiracy,” and for the idea that subsidiary findings (especially scope under § 1B1.3(a)(1)(B)(i)) are factual and reviewed for clear error. The panel uses Ellis to rebut the notion that the district court had to treat all conspiracy members as the relevant comparison group.
• United States v. Figueroa-Labrada, 720 F.3d 1258 (10th Cir. 2013): Supports individualized scope: each conspirator may have different jointly undertaken scope and thus different relevant conduct.
• United States v. Green, 175 F.3d 822 (10th Cir. 1999): Cited with Ellis to clarify the “independent” (but scope-referential) nature of “in furtherance” and “reasonably foreseeable.”
• United States v. Garcia, 946 F.3d 1191 (10th Cir. 2020) and United States v. Craig, 808 F.3d 1249 (10th Cir. 2015): Provide the panel’s approach of “assuming without deciding” that the ultimate relevant-conduct determination is reviewed de novo, while maintaining that subsidiary scope findings are factual.
• United States v. Diaz, 884 F.3d 911 (9th Cir. 2018) and United States v. Rojas-Millan, 234 F.3d 464 (9th Cir. 2000): Used to underscore that in conspiracy cases the mitigating-role inquiry measures the defendant against participants within the relevant conduct/jointly undertaken activity, not necessarily the full conspiracy universe.

3. The opinion’s “Hill error” discussion (legal missteps to avoid)

• United States v. Hill, 563 F.3d 572 (7th Cir. 2009): The opinion coins and develops the label “Hill error” to describe a legal mistake where the sentencing court treats relevant conduct as categorically limited to the count of conviction and “divorce[s] the offense of conviction from the surrounding facts.” The Tenth Circuit uses Hill as the foil for Mr. A.’s legal argument—and rejects that such an error occurred because the district court acted on case-specific facts, not a categorical legal belief.
• United States v. Lopez-Avila, 665 F.3d 1216 (10th Cir. 2011): Cited for de novo review of the legal-standard challenge.

4. Participant identification as fact, not law

• United States v. Aptt, 354 F.3d 1269 (10th Cir. 2004), United States v. Anderson, 189 F.3d 1201 (10th Cir. 1999), United States v. Cruz Camacho, 137 F.3d 1220 (10th Cir. 1998): Cited to reject Mr. A.’s claim of a per se rule that multi-state conspiracies require inclusion of all nodes in the role comparison. The panel reads these cases as fact-specific role-adjustment applications rather than articulations of the categorical rule Mr. A. proposed.
• United States v. Dominguez-Caicedo, 40 F.4th 938 (9th Cir. 2022) and Rojas-Millan, 234 F.3d 464: Distinguished as cases where the district court applied the wrong legal test by arbitrarily excluding participants who were plainly within relevant conduct; by contrast, the district court here did not commit a comparable legal misstep.

5. Preservation and “waiver of waiver”

• Sawyers v. Norton, 962 F.3d 1270 (10th Cir. 2020), United States v. Walker, 918 F.3d 1134 (10th Cir. 2019), United States v. Kunzman, 54 F.3d 1522 (10th Cir. 1995): Cited for the principle that appellate arguments cannot be merely perfunctory, but also that courts do not require “magic words.”
• Okland Oil Co. v. Conoco Inc., 144 F.3d 1308 (10th Cir. 1998) and Lyons v. Jefferson Bank & Trust, 994 F.2d 716 (10th Cir. 1993), Richison v. Ernest Grp., Inc., 634 F.3d 1123 (10th Cir. 2011): Used to acknowledge that new theories raised for the first time on appeal can be forfeited, but then the panel finds Mr. A. sufficiently challenged the operative facts even without using the precise Guidelines phrase “jointly undertaken criminal activity.”
• Abernathy v. Wandes, 713 F.3d 538 (10th Cir. 2013) and United States v. Reider, 103 F.3d 99 (10th Cir. 1996): Support the “waiver of waiver” concept—the government’s inadequate preservation challenge means the court will reach the merits.

6. Quantity attribution and role: the “cannot have it both ways” theme

• United States v. Harris, 148 F. App'x 690 (10th Cir. 2005) (persuasive), and United States v. Engles, 779 F.3d 1161 (10th Cir. 2015) (citation practice): The panel borrows Harris’s framing that once relevant conduct is set, the same relevant conduct governs role adjustments; defendants cannot narrow relevant conduct for drug quantity yet broaden it for minor-role comparisons.
• United States v. Rodriguez De Varon, 175 F.3d 930 (11th Cir. 1999): Quoted for the analytic coherence principle: role must be assessed against the relevant conduct attributed; otherwise defendants could argue narrow conduct for base level and broad conduct for role reduction.

B. Legal Reasoning

1. The court’s sequencing: relevant conduct first, role second

The opinion emphasizes an implicit order of operations in conspiracy sentencing:

1. Delimit the “scope of the jointly undertaken criminal activity” under U.S.S.G. § 1B1.3(a)(1)(B)(i) (fact-finding; clear-error review).
2. Decide whether others’ conduct was in furtherance and reasonably foreseeable within that scope (also factual, typically).
3. Only then evaluate the defendant’s relative culpability under § 3B1.2’s five-factor framework, comparing the defendant to the “average participant” within the delineated relevant conduct.

This sequencing matters because Mr. A.’s appellate theory tried to jump to Step 3 (compare me to the “big California people”) without first establishing that the California actors’ conduct properly belonged to Mr. A.’s relevant conduct at Steps 1–2.

2. Why the district court did not commit “Hill error”

The panel’s “Hill error” discussion supplies a practical diagnostic for sentencing appeals: it distinguishes a court that categorically equates relevant conduct with conviction facts (legal error) from a court that finds, on the specific record, that relevant conduct happens to align with the plea’s described conspiracy.

Mr. A. pointed to the district court’s repeated references to the plea agreement and its “Topeka prong” framing. The Tenth Circuit held this did not show a mistaken legal belief. The district court stated the Topeka-focused conspiracy was “consistent with” the plea agreement, and it indicated it had “considered all” participants but was “comfortable” with the Topeka focus as the factual scope relevant to Mr. A.

3. The decisive factual finding: Mr. A.’s agreement was Topeka-centered

On the factual merits, the panel held the district court plausibly found that Mr. A.’s agreement—and thus jointly undertaken criminal activity—was limited to Topeka distribution with Mr. M. The opinion highlights record features supporting that inference:

• Mr. A. entered the enterprise due to his addiction and personal sourcing needs, supporting an inference of local, consumption-driven participation.
• His participation was brief (months), limiting the opportunity for the scope of his agreement to expand to upstream operations.
• With the exception of Mr. M., Mr. A. could not connect himself to California co-conspirators; the conspiracy chart linked him to Californians only through Mr. M.
• He took one short trip to Los Angeles and did not show he met the California participants.

4. Quantity attribution as an internal consistency check

The panel treated the drug-quantity finding as reinforcing the scope finding: the district court attributed to Mr. A. the seven pounds he carried (and Mr. A. did not object). If California-node transactions were within Mr. A.’s jointly undertaken scope, one would expect materially greater attributed quantities. That narrow attribution supported the Topeka-limited relevant-conduct delineation and, correspondingly, the exclusion of California participants for role comparison.

5. Participant identification is not a separate legal question

A notable clarification is doctrinal: Mr. A. tried to recharacterize the dispute as a legal error about “which participants” must be compared. The court, relying heavily on United States v. Nkome, treated this as a factual sufficiency dispute. In other words, participant inclusion flows from fact-based relevant-conduct delimitation, not a categorical legal requirement triggered by a multi-state conspiracy label.

C. Impact

1. Practical rule for § 3B1.2 in multi-node conspiracies. The decision strengthens the principle that “conspiracy” as charged may be geographically broad, but mitigating-role comparisons can properly be geographically and functionally narrower—bounded by what the defendant agreed to jointly undertake under § 1B1.3(a)(1)(B).

2. Litigation consequences for joint recommendations. Even where the government supports a minor-role reduction (as here, via the plea agreement), district courts retain independent authority to deny it based on their own scope and culpability findings. This case signals that appellate courts will defer where the district court’s scope findings are plausible.

3. “No double-arguing” strategy constraint. The opinion operationalizes a coherence constraint: defendants cannot accept narrow relevant conduct for quantity (lower base offense levels) while demanding a broad conspiracy universe for role mitigation. Expect prosecutors and probation offices to invoke this case when defendants attempt that asymmetry.

4. Appellate framing. The decision provides a roadmap for appealing or defending § 3B1.2 determinations:

• To win reversal on legal grounds, appellants must show true “Hill error”—a categorical legal misunderstanding—rather than mere overlap with the plea narrative.
• To win on factual grounds, appellants must directly attack the scope of jointly undertaken activity with record evidence connecting them to the broader actors/transactions.

IV. Complex Concepts Simplified

A. “Relevant conduct” (U.S.S.G. § 1B1.3)

Relevant conduct is the set of acts the sentencing court counts when calculating Guidelines consequences. It includes the defendant’s own acts and, in conspiracies, certain acts of others—but only if they satisfy the three-part test: within the scope of jointly undertaken criminal activity, in furtherance of it, and reasonably foreseeable.

B. “Jointly undertaken criminal activity” vs. “the whole conspiracy”

A defendant can be guilty of a broad conspiracy, yet for sentencing be accountable only for a narrower slice that the defendant actually agreed to carry out with others. This case illustrates that the sentencing slice may be a local distribution node even when supply originates elsewhere.

C. The mitigating-role adjustment (U.S.S.G. § 3B1.2)

Section 3B1.2 reduces offense levels for defendants who are “substantially less culpable than the average participant” in the criminal activity. The court uses five factors (scope/structure understanding; planning; decision-making authority; nature/extent of participation; expected benefit).

D. “Clear error” vs. “de novo” review

“De novo” means the appellate court decides the legal question fresh. “Clear error” is highly deferential: if the district court’s view of the evidence is plausible, it stands. Here, the key battleground—scope of jointly undertaken activity—was treated as factual, so Mr. A. needed to show implausibility, not merely that another view was possible.

E. “Hill error”

The opinion’s shorthand “Hill error” describes a legal mistake where a court believes relevant conduct is always limited to the conviction’s elements/acts and therefore excludes surrounding facts by rule rather than by fact-driven scope findings.

V. Conclusion

United States v. D.A. crystallizes a controlling, practice-shaping principle for mitigating-role litigation in the Tenth Circuit: the § 3B1.2 comparison group is determined by § 1B1.3 relevant conduct, with the scope of “jointly undertaken criminal activity” as the critical factual gatekeeper. In multi-state drug conspiracies, district courts may—based on plausible record findings—limit role comparisons to a local distribution node and exclude upstream out-of-state participants.

The decision also sharpens appellate doctrine: participant identification and jointly undertaken scope are primarily factual determinations reviewed for clear error; “Hill error” requires proof of a categorical legal misunderstanding, not merely a sentencing court’s reliance on the plea’s factual narrative where that narrative aligns with the court’s fact findings.