Date: Mar 11, 2025

Mitigating-Role Adjustments Must Track Relevant Conduct: No “Hill error” Where Topeka-Only Scope Is a Plausible Fact Finding

1. Introduction

In re: Sealed Opinion (United States v. D.A.) is a published Tenth Circuit decision addressing when a defendant in a drug-trafficking conspiracy qualifies for the mitigating-role adjustment under U.S.S.G. § 3B1.2 (minor participant). The appellant, D.A., pleaded guilty to conspiracy to possess with intent to distribute 500 grams or more of methamphetamine, 21 U.S.C. § 846. At sentencing, both D.A. and the government requested a two-level minor-role reduction, arguing D.A. was comparatively minor in a multi-state organization operating from California to Kansas.

The key issue was the proper universe for comparison under § 3B1.2: should D.A.’s culpability be measured against participants across the broader California-to-Kansas trafficking organization, or against the participants in the narrower Topeka-focused activity the district court treated as D.A.’s relevant conduct?

The district court denied the adjustment, focusing on a “conspiracy to distribute within Topeka,” and the Tenth Circuit affirmed—clarifying the line between (i) impermissibly equating relevant conduct with the count of conviction as a categorical legal matter (“Hill error”), and (ii) permissibly finding, as a matter of case-specific fact, that relevant conduct is approximately coterminous with the local portion of a broader conspiracy.

2. Summary of the Opinion

The Tenth Circuit affirmed the sentence, holding that:

The district court did not commit legal error (including “Hill error”) merely because it referenced the plea agreement and treated D.A.’s relevant conduct as Topeka-centered; the record supported that this was a case-specific determination rather than a categorical legal rule.
The district court did not clearly err in delimiting the scope of jointly undertaken criminal activity (U.S.S.G. § 1B1.3(a)(1)(B)) to exclude California co-conspirators’ conduct, given D.A.’s brief involvement, local focus, and lack of direct connection to California actors other than Mr. M.
Because mitigating-role analysis must be performed on the terrain of properly configured relevant conduct, it would have been error to compare D.A. to California participants if their conduct fell outside that relevant conduct.
The court emphasized coherence between drug quantity accountability and role adjustments: a defendant cannot accept a narrow relevant-conduct scope to reduce drug quantity while demanding a broad participant universe to obtain a role reduction—citing United States v. Harris and United States v. Rodriguez De Varon.

3. Analysis

3.1 Precedents Cited

A. Sentencing review framework (procedural reasonableness; nested standards of review)

United States v. Nkome: The decision’s principal template. The court relies on Nkome for (i) framing a mitigating-role challenge as one of procedural reasonableness, (ii) applying de novo review to legal conclusions and clear error review to factual findings, and (iii) emphasizing that participant-identification disputes typically attack the sufficiency of factual analysis rather than announcing legal error.
United States v. Alapizco-Valenzuela, United States v. Masek, United States v. Adams: Cited through Nkome to anchor the “reasonableness” framework and the procedural-substantive distinction.
United States v. Arias-Mercedes: Used (via Nkome) to stress that abuse-of-discretion is “not monolithic” when legal and factual sub-questions are embedded in a procedural reasonableness appeal.
United States v. Gantt: Supports the de novo / clear-error bifurcation for Guidelines legal conclusions versus factual findings.
United States v. Delgado-Lopez and United States v. Bowen: Stand for the proposition that applying the “wrong test” at sentencing is legal error requiring remand.
United States v. Martinez: Reinforces that denial of minor participant status is ordinarily a factual determination reviewed for clear error.

B. The § 3B1.2 “relative culpability” inquiry and its linkage to “relevant conduct”

United States v. Yurek: Cited for the “crux” of § 3B1.2 being relative culpability and for the benchmark “substantially less culpable than the average participant.”
United States v. Salas: Establishes the defendant’s burden to prove entitlement to the adjustment by a preponderance.
United States v. Ellis and United States v. Figueroa-Labrada: Critical for the conspiracy context: relevant conduct is not necessarily identical for every conspirator because the scope of jointly undertaken criminal activity differs by participant.
United States v. Green: Referenced regarding the “independent” nature of the “in furtherance” and “reasonably foreseeable” criteria (while clarifying they operate relative to the scope finding).

C. Out-of-circuit authority on sequencing: relevant conduct first, then role comparison

United States v. Diaz and United States v. Rojas-Millan: Cited to support the proposition that the court assesses role relative to participants within relevant conduct as configured by jointly undertaken activity.

D. “Hill error” and the distinction between categorical legal mistake and case-specific fact finding

United States v. Hill: Provides the conceptual error the Tenth Circuit labels “Hill error”—an inclination to “divorce the offense of conviction from the surrounding facts” by treating relevant conduct as categorically limited to the count of conviction. This decision adopts Hill as a diagnostic category and then draws a line: it is not error if, on the facts of a particular case, relevant conduct happens to be approximately coterminous with the count/plea facts.

E. Deference to factual findings and record-plausibility

United States v. Piper and Anderson v. City of Bessemer City: Provide the clear-error standard’s key formulation—if the district court’s account is plausible in light of the whole record, an appellate court will not reverse.
United States v. Garcia and United States v. Craig: Used to note (without deciding) that the “ultimate” relevant conduct determination is sometimes assumed to be reviewed de novo, while subsidiary findings (scope) remain clear-error territory.

F. Preservation, waiver, and “waiver of waiver”

Sawyers v. Norton, United States v. Walker, United States v. Kunzman: Cited for the principle that appellate arguments must be more than perfunctory, but do not require “magic words.”
Okland Oil Co. v. Conoco Inc., Lyons v. Jefferson Bank & Trust, Richison v. Ernest Grp., Inc.: Discuss changing theories on appeal; used to frame (but ultimately avoid) a preservation bar.
Abernathy v. Wandes and United States v. Reider: Support the doctrine that the government can “waive the waiver” by not adequately pressing a preservation argument.

G. Participant-identification is generally factual; misuse of cited authorities rejected

United States v. Aptt, United States v. Anderson, United States v. Cruz Camacho: The appellant cited these cases for a purported per se rule about multi-state conspiracies, but the panel explained they actually treat participant questions as factual.
United States v. Dominguez-Caicedo: Distinguished; there the district court committed a legal error by excluding participants unambiguously within relevant conduct—unlike the fact-bound scope finding here.

H. Quantity-role coherence; “you can’t have it both ways”

United States v. Harris (unpublished, persuasive per United States v. Engles): Used for the core insight: the same relevant conduct guides base offense level and role adjustments; defendants cannot claim narrow relevant conduct for quantity while claiming broad relevant conduct for role.
United States v. Rodriguez De Varon: Cited for the analytical coherence principle and for recognizing drug quantity as a material (sometimes dispositive) indicator of role in extreme cases.

3.2 Legal Reasoning

A. The Guidelines’ sequencing: scope → relevant conduct → role

The opinion is unusually explicit about the sequencing implicit in the Guidelines:

First, the district court must determine the scope of jointly undertaken criminal activity under U.S.S.G. § 1B1.3(a)(1)(B)(i). This is a defendant-specific agreement inquiry—distinct from the full conspiracy’s breadth.
Second, it must refine relevant conduct by assessing whether others’ acts were in furtherance and reasonably foreseeable as to that jointly undertaken activity.
Third, only on that configured terrain does the court apply § 3B1.2’s five-factor framework and compare the defendant to the “average participant.”

This ordering matters because D.A.’s appeal attempted to reverse the flow: he sought to expand the participant pool (to California) at the role stage even though the district court’s scope/relevant-conduct findings did not include California actors.

B. No “Hill error” without a categorical legal premise

The panel’s key doctrinal move is its clarification of “Hill error.” The court agrees it would be legal error if the district court believed relevant conduct must always match the elements/acts in the count of conviction. But it finds no such premise here. The district court’s references to the plea agreement were read as evidentiary and case-specific: the Topeka-centered scope was found “consistent with” the plea agreement—not dictated by it as a categorical legal rule.

The court also relies on the sentencing colloquy, where the district judge rejected the defense’s framing that the ruling was a “legal question” about who counts as a participant, and emphasized it was a fact-bound scope focus.

C. The scope finding excluding California actors was plausible on this record

Applying clear-error review to the subsidiary scope finding, the panel held the district court could plausibly find D.A.’s agreed-upon criminal activity was essentially local: D.A. joined to feed addiction, operated as a Topeka distributor, had only one brief California trip, and had no shown direct relationship with California actors beyond Mr. M. The DEA chart linked D.A. to California participants only through Mr. M., reinforcing the district court’s inference that D.A. did not jointly undertake the California suppliers’ trafficking activities.

D. Drug quantity as a consistency check on the scope and role framework

The panel treats the unchallenged attribution of seven pounds (the single suitcase load) as reinforcing the Topeka-only scope finding. If D.A.’s jointly undertaken activity truly encompassed California operations, one would expect the attributed quantity to reflect at least substantial portions of those broader transactions. Instead, D.A. effectively benefited from a narrow attribution and could not, at the role stage, insist on a broader conspiracy comparison to obtain a reduction.

3.3 Impact

Clarified “Hill error” boundary in the Tenth Circuit. The decision operationalizes Hill as a caution against categorical conflation of relevant conduct with the offense of conviction, while protecting district courts’ ability to find factually that relevant conduct is coterminous in a given case.
Reinforced that participant-pool disputes are usually factual, not legal. By leaning on United States v. Nkome, the court signals that many appellate “legal error” labels are really disagreements with the district court’s scope findings and participant identification—reviewed for clear error.
Promoted internal coherence between quantity attribution and role reductions. The “can’t have it both ways” reasoning—supported by United States v. Harris and United States v. Rodriguez De Varon—is likely to be cited by prosecutors and courts to resist role reductions where defendants accept narrow relevant-conduct attributions.
Practical sentencing consequences in multi-node conspiracies. Defendants in geographically distributed conspiracies will need to develop evidence that they actually agreed to jointly undertake broader upstream/downstream activities (not merely knew about them, or interacted with an intermediary who did).

4. Complex Concepts Simplified

Mitigating-role adjustment (U.S.S.G. § 3B1.2): A reduction (typically 2 levels for “minor”) if the defendant is substantially less culpable than the average participant in the criminal activity that counts for sentencing purposes.
Relevant conduct (U.S.S.G. § 1B1.3): The set of acts used to calculate the Guidelines range. In conspiracies, it includes certain acts by others, but only if they satisfy all three criteria: within the scope of jointly undertaken activity, in furtherance, and reasonably foreseeable.
Jointly undertaken criminal activity: The specific plan the defendant agreed to carry out with others. It can be narrower than the full conspiracy charged. Two people can be in the same conspiracy but have different jointly undertaken scopes (and thus different relevant conduct).
“Participants”: People criminally responsible for the offense conduct (conviction not required). But the key is: the participant pool for a § 3B1.2 comparison comes from the relevant conduct universe, not necessarily from everyone in the broader conspiracy narrative.
“Hill error”: A legal mistake: treating relevant conduct as always limited to the offense-of-conviction facts (or the plea’s factual basis), as a categorical rule. This decision stresses that it is not Hill error when a district court, on the facts, finds the relevant conduct is (roughly) the same as the offense conduct.
Clear error review: A highly deferential appellate standard. Even if an appellate court might have weighed evidence differently, it must affirm if the district court’s account is plausible on the whole record.

5. Conclusion

The Tenth Circuit’s decision affirms that § 3B1.2’s minor-role inquiry is anchored to properly configured relevant conduct under § 1B1.3, beginning with a defendant-specific finding about the scope of jointly undertaken criminal activity. The court rejects a claimed “Hill error” where the district court’s Topeka-centered approach reflected a plausible, fact-specific scope finding rather than a categorical legal conflation of relevant conduct with the count of conviction. Finally, the opinion underscores a coherence principle: defendants cannot leverage a narrow scope to limit drug quantity while demanding a broad scope to broaden the comparison group for a role reduction.