United States Court of Appeals
For the First Circuit
No. 26-1187
UNITED STATES,
Appellee,
v.
YEIRON VIZCAINO VIZCAINO, a/k/a Boli,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Gelpí, Rikelman, and Aframe,
Circuit Judges.
Christine DeMaso, Assistant Federal Public Defender, for
appellant.
Karen L. Eisenstadt, Assistant United States Attorney, with
whom Leah B. Foley, United States Attorney, was on brief, for
appellee.
October 15, 2026
AFRAME, Circuit Judge. Yeiron Vizcaino Vizcaino
("Vizcaino") pleaded guilty to conspiracy to possess with intent
to distribute and to distribute forty grams or more of fentanyl,
in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B)(vi).
The district court calculated the applicable Guidelines Sentencing
Range ("GSR") to be forty-six to fifty-seven months but imposed a
downwardly variant sentence of thirty-six months. In imposing
this sentence, the court denied Vizcaino's request for a two-level
minor-role reduction under U.S.S.G. § 3B1.2(b). Vizcaino appeals
that decision, arguing that the court misconstrued
U.S.S.G. § 2D1.1(e)(2)(B)(ii), a newly added provision to the
United States Sentencing Guidelines which expands the availability
of minor-role adjustments under § 3B1.2 in cases such as this. We
agree that the court interpreted this new provision too narrowly.
Therefore, we vacate and remand for resentencing.
I.
The following facts are uncontested. Vizcaino worked as
a street-level drug distributor for a fentanyl and cocaine
distribution organization based in and around Boston,
Massachusetts. The leader of the organization was Yulial
Cuello-Reynoso. The organization's modus operandi involved
Cuello-Reynoso and others taking orders by telephone from
customers and relaying them to street-level distributors like
Vizcaino, who were provided cars packed with a day's supply of
- 2 -drugs. The distributors then traveled around the area in the cars
to deliver drugs in user-level quantities to customers and to
collect payments.
Vizcaino was one of thirteen street-level distributors
charged in the conspiracy, all of whom had approximately the same
level of culpability. These thirteen distributors were less
culpable than the eleven other co-conspirators charged in the
indictment. Vizcaino distributed for the organization for
approximately two months, from October 2023 until his arrest on
December 8, 2023.
Law-enforcement officers intercepted telephone calls on
October 15, October 16, November 14, and November 17, 2023, in
which Cuello-Reynoso provided delivery instructions to Vizcaino.
The government estimated from these interceptions that Vizcaino
had distributed over 257 grams of fentanyl, 33 grams of powder
cocaine, and 94 grams of crack cocaine in total on these four
dates. Then, on December 8, 2023, officers with the Dedham Police
Department stopped Vizcaino's car after they saw him engage in
apparent drug-distribution activity. Vizcaino initially did not
comply with the order to stop and, when he eventually did stop,
police saw him put something in his mouth and gulp water. Vizcaino
also refused to comply with a subsequent order to roll down his
car window. Believing that Vizcaino was swallowing drugs, the
police broke the window and removed him from the car. Thereafter,
- 3 -the police seized 53.2 grams of fentanyl and 22 grams of cocaine
that had been hidden within the car. Ultimately, based on the
four intercepted telephone conversations and the drugs seized from
the car, the government alleged that Vizcaino was responsible for
310.2 grams of fentanyl, 94 grams of crack cocaine, and 55 grams
of powder cocaine.
II.
On October 15, 2025, Vizcaino pleaded guilty to the
charged conspiracy without a plea agreement. In both its draft
and revised presentence reports ("PSR"), the U.S. Probation Office
calculated Vizcaino's total offense level to be twenty-one and his
GSR to be thirty-seven to forty-six months. In conducting its
total-offense-level assessment, probation recommended that
Vizcaino receive a two-level adjustment under § 3B1.2(b) for being
a "minor participant in [the] criminal activity." Probation
explained its recommendation as follows: "In this case, [Vizcaino]
was working at Cuello[-]Reynoso's instruction and direction and
did not have any of his own volition in orders, location, etc."
Both Vizcaino and the government objected to probation's
§ 3B1.2(b) recommendation. Vizcaino argued that he should receive
a four-level adjustment under § 3B1.2(a) for being "a minimal
participant in [the] criminal activity," rather than the mere
two-level adjustment for being "a minor participant." The
government argued that Vizcaino was neither a minimal nor a minor
- 4 -participant in the charged offense and that he should receive no
adjustment under § 3B1.2. Probation disagreed with both parties
and, in the final PSR, reiterated its recommendation for a
two-level minor-participant adjustment under § 3B1.2(b). Vizcaino
subsequently withdrew his objection and, in his sentencing
memorandum, expressed support for probation's recommendation.
At the sentencing hearing, the district court began by
recognizing the parties' disagreement over the application of
§ 3B1.2(b). The court noted that it had received and reviewed the
parties' sentencing memoranda, in which each side had developed
arguments. The court also noted that it had previously denied
§ 3B1.2(b) adjustments to three of Vizcaino's co-defendants who
shared approximately the same level of culpability. But the court
stated that it would nevertheless entertain further argument.
Reiterating the position taken in its sentencing
memorandum, the government began by arguing that § 3B1.2 should
not directly apply because Vizcaino had failed to demonstrate by
a preponderance of the evidence that he was "substantially less
culpable than the average participant in the criminal activity in
which [he] was involved." United States v. Arias-Mercedes, 901
F.3d 1, 5-6 (1st Cir. 2018) (citation modified) (citing
U.S.S.G. § 3B1.2, cmt. n.3(A)). Vizcaino did not develop a
responsive argument in his sentencing memorandum, and his counsel
stated the following after the government repeated its argument
- 5 -that § 3B1.2(b) did not directly apply: "Without sort of just
repeating what I already sort of laid out in my sentencing memo,
I don't disagree necessarily with anything the government is
saying."1
The hearing's focus then shifted to whether Vizcaino
should receive a two-level minor-role adjustment pursuant
to § 2D.1(e)(2)(B)(ii). This provision is part of a recently
adopted amendment that became effective on November 1, 2025, which
we have not previously considered. It is intended to "encourage
broader use of § 3B1.2" and to "expand[] the circumstances in which
an adjustment under § 3B1.2 is warranted" in drug offense cases.
U.S.S.G. Manual app. C, amend. 833, at 297 (U.S. Sent'g Comm'n
2025) ("Guidelines Manual"). The Sentencing Commission explained
that, while it had previously amended the commentary to § 3B1.2 in
2015 "to increase . . . usage" of the provision, "data shows that
the prior amendment did not result in a sustained increase in
application of the mitigating role adjustment in [such] cases."
Id.
Section 2D1.1(e)(2)(B)(ii), which governs two-level,
minor-role adjustments under § 3B1.2(b), states:
1 On appeal, Vizcaino argues that the district court erred
in concluding that § 3B1.2(b) does not directly warrant a
mitigating-role reduction. The government responds that Vizcaino
has both waived and forfeited this argument. We do not resolve
this disagreement because we vacate and remand for resentencing on other grounds.
- 6 -[A]n adjustment under § 3B1.2(b) is generally
warranted if the defendant's primary function
in the offense was performing [a] low-level
trafficking function, such as distributing
controlled substances in user-level
quantities for little or no monetary
compensation or with a primary motivation
other than profit (e.g., the defendant was
otherwise unlikely to commit such an offense
and was motivated by an intimate or familiar
relationship, or by threats or fear to commit
the offense).
For purposes of subsection (e)(2)(B), the
provisions of § 3B1.2 apply in determining
whether a mitigating role adjustment is
warranted, except that the adjustment shall
apply regardless of whether the offense
involved other participants in addition to the
defendant, and regardless of whether the
defendant was substantially less culpable than
the average participant in the criminal
activity. The extent of the adjustment shall
be based on the totality of the circumstances
and involves a determination that is heavily
dependent upon the facts of the particular
case.
U.S.S.G, § 2D1.1(e)(2)(B)(ii); see also Guidelines Manual app. C,
vol. IV, amend. 833, at 297 ("To ensure courts focus on a
defendant's predominant trafficking-related activities, the [U.S.
Sentencing Commission] selected 'primary function' to guide courts
in determining whether an adjustment is appropriate.").
Vizcaino's counsel argued that this provision makes
a § 3B1.2 mitigating-role adjustment available in drug trafficking
cases like this one, where a defendant is one of a relatively large
number of similarly culpable low-level distributors. Prior to the
adoption of § 2D1.1(e)(2), such distributors often did not receive
- 7 -an adjustment because they could not show that they were
"substantially less culpable than the average participant" in the
offense, § 3B1.2, cmt. n.3(A), as they were not "plainly among the
least culpable of those involved," id. cmt. n.4 (for those seeking
a minimal-participant adjustment), or "less culpable than most
other participants," id. cmt. n.5 (for those seeking a
minor-participant adjustment). See also, e.g., United States v.
Guía-Sendeme, 134 F.4th 611, 617 (1st Cir. 2025); United States v.
Walker, 89 F.4th 173, 185-86 (1st Cir. 2023). Now, Vizcaino's
counsel argued, § 2D1.1(e)(2)(B)(ii) places the focus on the
defendant's primary function independent of whether the defendant
is substantially less culpable than the average participant.
Vizcaino's counsel asserted that Vizcaino was such an individual
because "[h]e was delivering to other people essentially userlevel quantities."
The district court responded that, in its view,
§ 2D1.1(e)(2)(B)(ii) was inapplicable to Vizcaino, given that he
possessed more than a user-level quantity of drugs in the car he
was driving when he was arrested. Focusing on the provision's
illustrative examples, the court stated its understanding that
§ 2D1.1(e)(2)(B)(ii) applies only to those who are "distributing
controlled substances in user-level quantities . . . which is, I
think, different than what is here." Vizcaino's counsel responded
that, while the car Vizcaino was driving had been loaded with a
- 8 -quantity of drugs that exceeded user-level amounts, Vizcaino was
delivering those drugs to individual customers in user-level
increments. But the court disputed that this was enough to
bring § 2D1.1(e)(2)(B)(ii) into play: "I think a reasonable
reading of 'user level' is user-level, not quantities going to
multiple users."
Vizcaino's counsel responded by reiterating that the
availability of a minor-role adjustment should turn on Vizcaino's
primary function, not on matters unmentioned in
§ 2D1.1(e)(2)(B)(ii), like the aggregate quantity of drugs that a
defendant possessed over time while serving as a street-level
distributor making multiple user-level deliveries. But the
district court did not engage further with counsel's argument for
application of § 2D1.1(e)(2)(B)(ii). Instead, after announcing
that a § 3B1.2 role adjustment was not directly warranted "under
the totality of the circumstances . . . largely because Mr.
Vizcaino, I don't think, was substantially less culpable than the
average participant," the court added a second reason why it did
not think that Vizcaino was entitled to an adjustment under
§ 2D1.1(e)(2)(B)(ii):
I think it's a reasonable reading of
[§ 2D.1(e)(2)(B)(ii)] . . . that the
adjustment that is anticipated there is
anticipated for folks that perhaps sort of
fall or were pushed into this role. And I
don't find based on the record before
me . . . that is Mr. Vizcaino's role here. I
- 9 -think the government used the term "business
model." I think that's more akin to what the
evidence here reveals as to [Vizcaino]'s role
and the codefendants, the 12 others, three of
whom I've already sentenced fall into. So I
will not apply the two-level downward
adjustment.
After the district court rejected probation's
recommendation for a two-level minor-role adjustment, the court
accepted its remaining proposed Guidelines calculations. As a
result, the court determined that Vizcaino's total offense level
was twenty-three and his GSR was forty-six to fifty-seven months.
The court then imposed a downwardly variant sentence of thirty-six
months' imprisonment. This appeal followed.
III.
The parties disagree about the proper standard of
review. Vizcaino argues, inter alia, that the district court
committed two legal errors in construing § 2D1.1(e)(2)(B)(ii).
First, the court erred in reading the provision's statement that
"an adjustment . . . is generally warranted if the defendant's
primary function in the offense was performing [a] low-level
trafficking function, such as distributing controlled substances
in user-level quantities" to exclude defendants who possessed more
than user-level quantities despite only delivering user-level
increments to individual users. Second, the court erred in
concluding that, while the adjustment may be available to
individuals who fall or were pushed into the role of street-level
- 10 -distributor, it is not available to those who are hired and paid
to fill the role as part of a drug trafficking organization's
business model. Vizcaino contends that, because he challenges the
court's interpretation of the meaning and scope
of § 2D1.1(e)(2)(B)(ii), our review is de novo. See, e.g., United
States v. Daniells, 79 F.4th 57, 89 (1st Cir. 2023) (observing
that we review de novo a district court's interpretation of the
"legal meaning and scope" of a guideline).
The government counters that these arguments
mischaracterize the district court's conclusions. In the
government's view, the court reached a fundamentally fact-bound
determination, under the totality of the circumstances, that
Vizcaino was more culpable than the persons described in
§ 2D1.1(e)(2)(B)(ii)'s illustrative examples. Therefore, the
government asserts that our review should be deferential. See
Buford v. United States, 532 U.S. 59, 64-66 (2001) (affirming
deferential review of a sentencing court's application of a
guideline to facts where the determination is "fact-bound," even
if the underlying facts are undisputed).
Vizcaino has the better argument. As we read the record,
the district court's principal reason for denying Vizcaino an
adjustment pursuant to § 2D1.1(e)(2)(B)(ii) was based not on a
totality-of-the-circumstances analysis, but rather on its
interpretation of the provision's illustrative examples involving
- 11 -someone "distributing controlled substances in user-level
quantities." As we have explained, the court first stated its
view that Vizcaino was doing something "different" than
"distributing controlled substances in user-level quantities."
Then, when Vizcaino's counsel resisted that conclusion, the court
explained its view that the phrase "distributing controlled
substances in user-level quantities" does not encompass those who
possess more than user-level quantities while delivering small
amounts to multiple users. Because this is an interpretation of
the scope of the guideline, our review is de novo. See Daniells,
79 F.4th at 89.
We do not think this is a proper interpretation. While
a defendant's possession of more than a user-level quantity of
drugs might well factor into a sentencing court's decision whether
to grant a minor-role adjustment pursuant to § 2D1.1(e)(2)(B)(ii),
it does not by itself place the defendant outside the universe of
those "distributing controlled substances in user-level
quantities." The guideline's language focuses on distribution in
user-level quantities, not on possession amounts. But the court
seems to have read into the provision a disqualifier for someone
who possesses more than a user-level quantity of drugs while making
user-level deliveries. Such a disqualifier does not appear in the
guideline.
- 12 -We reach a similar conclusion regarding the district
court's second reason for denying Vizcaino an adjustment under
§ 3B1.2 pursuant to § 2D1.1(e)(2)(B)(ii): that he was hired and
paid as part of the drug trafficking organization's business model
and neither fell nor was pushed into his role. Again, this fact
might well inform a court's decision whether to apply an
adjustment. But on its own, it does not automatically disqualify
a defendant from receiving the adjustment. The court's explanation
for its ruling suggests that it thought otherwise.
In sum, we conclude that the district court incorrectly
read these categorical disqualifiers into § 2D1.1(e)(2)(B)(ii).
Instead, the central question is the "primary function" of the
defendant in the conspiracy "based on the totality of the
circumstances." § 2D1.1(e)(2)(B)(ii).
Our conclusion that Vizcaino should be resentenced is
reinforced by several additional factors. First, the district
court focused exclusively on whether Vizcaino's conduct and role
in the offense fall within § 2D1.1(e)(2)(B)(ii)'s illustrative
examples. But the Sentencing Commission has indicated that the
illustrative examples do not prescribe elements that defendants
must satisfy to benefit from the provision. See Guidelines
Manual app. C, vol. IV, amend. 833 at 297 ("Due to the wide
variety of functions performed by individuals in drug trafficking
offenses, the examples listed in § 2D1.1(e)(2)(B) are illustrative
- 13 -rather than a definitive list.").2 Second, the court never
acknowledged that the availability of an adjustment pursuant to
§ 2D1.1(e)(2)(B)(ii) turns on an analysis of the defendant's
primary function in the drug trafficking conspiracy, that the
purpose of § 2D1.1(e)(2)(B) is to "expand[] the circumstances in
which an adjustment under U.S.S.G. § 3B1.2 is warranted" on behalf
of those "performing a low-level trafficking function," or that
Vizcaino was among those performing the lowest-level trafficking
function in the charged conspiracy. Id.3 These factors all may
bear on whether a § 2D1.1(e)(2)(B) adjustment is warranted.
2 The government argues that Vizcaino invited the court's
exclusive focus on the illustrative examples by failing to develop an argument that he was entitled to a reduction for a reason other than that he was "distributing controlled substances in user-level quantities for little or no monetary compensation." § 2D1.1(e)(2)(B)(ii). We disagree. In his opening brief, Vizcaino goes beyond attempting to fit his case
within the illustrative examples by emphasizing that he worked for the drug trafficking organization for only a limited period; that he performed the lowest-level trafficking function described in
the indictment; and that he did not go to the stash houses, package the drugs, or use his own car. Vizcaino also made these points in his sentencing memorandum. He therefore has broadened the issue
beyond whether the facts of his case fit entirely within
§ 2D1.1(e)(2)(B)(ii)'s illustrative examples.
3 We have recognized that "there may be instances when
none of the participants [in a conspiracy] qualifies" for a minorrole adjustment. Walker, 89 F.4th at 186 (citing United States v. De la Cruz-Gutiérrez, 881 F.3d 221, 226 (1st Cir. 2018) (denying
adjustment where participants were "equal partners in the criminal activity")). But it is not apparent on the present record why
this case would present such an instance.
- 14 -IV.
We recognize that the district court varied downward in
selecting Vizcaino's sentence and that the sentence imposed was
one month less than the bottom of the resulting GSR if the court
had applied a two-level minor-role adjustment. But the court did
not say that it would impose the same sentence even if Vizcaino
had received that adjustment. See Guía-Sendeme, 134 F.4th at 624-25 (explaining when an error in calculating the GSR can be
harmless). Moreover, the government does not argue that any error
was harmless. Under the circumstances, we cannot say that
Vizcaino's sentence was unaffected by the error. See Walker, 89
F.4th at 189. Resentencing is therefore required. Of course, we
do not suggest what sentence the court should impose on remand.
Vacated and remanded.
- 15 -