U.S. Court of Appeals for the Eleventh Circuit, 2026

United States v. Rafael Gutierrez

U.S. Court of Appeals for the Eleventh Circuit · Decided September 14, 2026

Opinion

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NOT FOR PUBLICATION

In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 25-12261 Non-Argument Calendar ____________________ UNITED STATES OF AMERICA, Plaintiﬀ-Appellee, versus RAFAEL GUTIERREZ, a.k.a. Rafy, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:24-cr-60174-MD-8 ____________________ Before NEWSOM, BRASHER, and TJOFLAT, Circuit Judges.

PER CURIAM: USCA11 Case: 25-12261 Document: 43-1 Date Filed: 09/14/2026 Page: 2 of 11

2 Opinion of the Court 25-12261 Rafael Gutierrez and ten others were charged in Count 1 of a multi-count indictment with conspiring from February to Octo- ber 23, 2022, in violation of 21 U.S.C. § 846, to possess with intent to distribute 50 or more grams of methamphetamine in violation of 21 U.S.C. § 841(b)(1)(A)(viii). Guiterrez was also charged in Counts 4 and 6 with possessing with intent to distribute 50 grams or more of methamphetamine on July 19 and October 13, 2022, in violation of 21 U.S.C. § 841(a)(1). The statutory imprisonment term was ten years to life. Pursuant to a plea agreement, Guiterrez pleaded guilty to the Count 1 conspiracy, and the District Court sentenced him to a prison term of 108 months. 1 Guiterrez now appeals his sentence. He argues the District Court erred in denying his request for a minor-role participant ad- justment of his offense level pursuant to Section 3B1.2 of the Sen- tencing Guidelines, U.S.S.G. § 3B1.2, and in failing to consider the effect of Amendment 833 of the Guidelines on the application of § 3B1.2.

I. FACTS AND PROCEDURAL HISTORY In February 2022, law enforcement identiﬁed coconspirator Edgar Garcia-Velasquez as a prison inmate selling large quantities of methamphetamine and conducting controlled buys with his as- sociates. Many of the buys involved an undercover law enforce- ment oﬃcer (“UC”). Luis Portillo, a cousin of Gutierrez who had USCA11 Case: 25-12261 Document: 43-1 Date Filed: 09/14/2026 Page: 3 of 11

25-12261 Opinion of the Court 3 been introduced to the conspiracy by one of Garcia-Velasquez’ fel- low inmates, brought Gutierrez into the conspiracy. Portillo had access to large amounts of methamphetamine.

In May 2022, Portillo sold one pound of methamphetamine to a UC. In July 2022, Portillo agreed to sell another pound of meth- amphetamine to the UC. Because Portillo was unavailable to make the delivery, he sent Gutierrez to complete the transaction instead.

On July 19, Gutierrez and the UC met at a mall in Broward County.

Gutierrez entered the UC’s vehicle and delivered a vacuum-sealed bag containing methamphetamine. During the transaction, which was audio and video recorded, Gutierrez and the UC discussed Gutierrez’s involvement in drug sales and his relationship with Por- tillo. After Gutierrez exited the UC’s vehicle, a DEA laboratory de- termined that the methamphetamine had a pure substance weight of approximately 443.1 grams.

In October 2022, Portillo coordinated a buy with the UC for an additional pound of methamphetamine. On October 13, Gutierrez drove Portillo to the delivery site, the mall in Broward County, where Portillo entered the UC’s vehicle, delivered the methamphetamine, and received $2,800. Laboratory analysis re- vealed that the delivered methamphetamine had a pure substance weight of approximately 427.3 grams. For these two transactions, the probation oﬃcer determined that Gutierrez was accountable for 870.4 grams of pure methamphetamine.

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4 Opinion of the Court 25-12261 Gutierrez objected to the probation oﬃcer’s description of his involvement in these transactions and therefore in the conspir- acy. The probation oﬃcer described Gutierrez’s objection in her Addendum to the Presentence Report as follows: The defendant highlighted that the PSR established that he participated in the relevant conduct in this case on only two occasions: July 19, 2022 and October 13, 2022. He explained that on October 13, 2022, his role was to drive a codefendant to the narcotics trans- action, and that he did not otherwise participate in the transaction. On July 19, 2022, the defendant deliv- ered the narcotics on behalf of a codefendant who had negotiated and planned the sale, but could not at- tend the transaction himself, who then “sent” the de- fendant instead.

The defendant’s objection stated there are ﬁve factors for the Court to consider when determining whether a reduction at § 3B1.2 would apply, which are outlined in Application Note 3 of that guideline. The defend- ant opined that he meets all the criteria for a minor role reduction.

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25-12261 Opinion of the Court 5 The probation oﬃcer disagreed with Gutierrez’s objection.

Her response quoted Application Notes 3, 2 4, 3 and 5 4 and summa- rized Gutierrez’s involvement in the charged conspiracy:

2 The Addendum to the Presentence Report states: Pursuant to § 3B1.2, comment. [n.3(A)], an adjustment under this section is “for a defendant who plays a part in committing the oﬀense that makes him substantially less culpable than the average participant in the criminal activity.” The Court is not required to ﬁnd, based solely on the defendant’s bare assertion, that such a role adjustment is warranted, but rather, should base such a determination on the facts of the case and the to- tality of the circumstances, § 3B1.2, comment. [n.3(C)] Application note four states: Minimal Participant—Subsection (a) applies to a defendant de- scribed in Application Note 3(A) who plays a minimal role in the criminal activity. It is intended to cover defendants who are plainly among the least culpable of those involved in the con- duct of a group. Under this provision, the defendant’s lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as minimal participant.

U.S.S.G. § 3B1.2, comment. (n.4).

4 Application note five states: Minor Participant—Subsection (b) applies to a defendant de- scribed in Application Note 3(A) who is less culpable than most other participants in the criminal activity, but whose role could not be described as minimal.

U.S.S.G. § 3B1.2, comment. (n.5) USCA11 Case: 25-12261 Document: 43-1 Date Filed: 09/14/2026 Page: 6 of 11

6 Opinion of the Court 25-12261 Gutierrez was aware of his involvement in the oﬀense by coordinating with Portillo to deliver narcotics in Portillo’s place, of which one could assume that he was aware of the amount of drugs he was supposed to deliver; and a few months later, his involvement of knowingly transporting Portillo to commit a drug transaction. For the instant case, the defendant was held accountable for his own actions. Without his par- ticipation in the oﬀense, speciﬁcally on July 19, 2022, the drug transaction may not have occurred.

The probation oﬃcer then restated the two factors set out in our opinion, U.S. v. Rodriguez De Varon, 175 F.3d 930, 943 (11th Cir. 1999) (en banc): [T]he defendant always bears the burden of proving a mitigating role in the oﬀense by a preponderance of the evidence. The Court’s ultimate determination of the defendant’s role is based on two principles dis- cerned from the guidelines: the defendant’s role in the relevant conduct for which he has been held ac- countable for at sentencing and his role as compared to that of other participants in his relevant conduct.

The probation oﬃcer concluded: “[T]his issue is unresolved.”

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25-12261 Opinion of the Court 7 II. LEGAL STANDARD “[A] district court’s determination of a defendant’s role in the offense is a finding of fact to be reviewed only for clear error.”

Rodriguez De Varon, 175 F.3d at 937. We will not overturn the de- termination unless we are left with a “definite and firm conviction that a mistake” was made. United States v. Martinez, 172 F.4th 1306, 1311 (11th Cir. 2026) (quoting United States v. Cruickshank, 837 F.3d 1182, 1192 (11th Cir. 2016)). Whether Amendment 833 of the Guidelines is applicable here is a question of law which we review de novo.

III. DISCUSSION Section 2D1.1 of the Guidelines specified a base offense level of 34 for the Count 1 conspiracy. U.S.S.G. § 2D1.1(a)(5),(c)(3). Sec- tion 3B1.2 provided for a two-level reduction of the offense level if the defendant was a “minor participant” in the criminal activity.

U.S.S.G. § 3B1.2(b). A minor participant is one “who is less culpable than most other participants, but whose role could not be de- scribed as minimal.” U.S.S.G. § 3B1.2 comment. (n.5).

A. Amendment 833 is not Retroactively Applicable While this case was pending on appeal, Amendment 833 amended U.S.S.G. § 2D1.1 by adding a special instruction regarding the application of the § 3B1.2 mitigating role adjustments to § 2D1.1 cases. See U.S.S.G. App. C, amend. 833 (eff. Nov. 1, 2025).

As we recently explained in United States v. Martinez: USCA11 Case: 25-12261 Document: 43-1 Date Filed: 09/14/2026 Page: 8 of 11

8 Opinion of the Court 25-12261 [Amendment 833] inserted new language into U.S.S.G. § 2D1.1(e)(2)(B) expanding the circum- stances under which courts should apply the minor- participant reduction under § 3B1.2. The new instruc- tion states that the minor-participant reduction is “generally warranted” for defendants whose primary function is a low-level traﬃcking role, like a courier, lookout, small-scale distributor.

172 F.4th 1306, 1315 (11th Cir. 2026).

Generally, in reviewing a district court’s application of the Sentencing Guidelines, we apply the version of the Guidelines in effect at the time of the defendant’s sentencing. Id. We consider new amendments on appeal only if they are “clarifying” rather than “substantive.” Id. In Martinez, we held that Amendment 833 is sub- stantive because: (1) it altered the text of the Guidelines rather than merely adding commentary; (2) the amendment commentary re- flected that it was a substantive change; (3) the amendment made the role adjustments applicable in drug-trafficking cases even if the offense did not involve other participants and even if the defendant was not substantially less culpable than the average participant in the criminal activity; (4) the Sentencing Commission did not list Amendment 833 as a retroactive amendment; and (5) to the extent that the amendment made the involvement of other participants irrelevant to whether a defendant can receive a role decrease, it ab- rogated our precedent. Id. at 1316.

Because Amendment 833 is substantive, it is not retroac- tively applicable. Thus we do not consider it in our analysis here.

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25-12261 Opinion of the Court 9 B. Section 3B1.2 Minor Role Adjustment Having determined that Amendment 833 does not apply ret- roactively, the question before us is whether the District Court clearly erred in denying Gutierrez a two-level minor role adjust- ment under § 3B1.2. In denying the adjustment, the Court relied on the facts its probation officer presented in her presentence re- port.

Whether a defendant is entitled to a minor role reduction is “based on the totality of the circumstances and involves a determi- nation that is heavily dependent upon the facts of the particular case.” U.S.S.G. § 3B1.2, comment. (n.3(C)). The commentary in- cludes the following non-exhaustive list of factors to consider: (i) the degree to which the defendant understood the scope and structure of the criminal activity; (ii) the degree to which the defendant participated in plan- ning or organizing the criminal activity; (iii) the de- gree to which the defendant exercised decision-mak- ing authority or inﬂuenced the exercise of decision- making authority; (iv) the nature and extent of the defendant’s participation in the commission of the criminal activity, including the acts the defendant per- formed and the responsibility and discretion the de- fendant had in performing those acts; and (v) the de- gree to which the defendant stood to beneﬁt from the criminal activity.

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10 Opinion of the Court 25-12261 As the probation officer stated in her Addendum to the Presentence Report, the defendant bears the burden of establishing by a preponderance of the evidence that he qualifies for a minor- role reduction. Rodriguez De Varon, 175 F.3d at 943. We have set forth a two-step factual inquiry for district courts to determine a defendant’s role: (1) the defendant’s role in the relevant conduct for which he has been held accountable at sentencing and (2) his role as compared to that of other participants in his relevant conduct.

Rodriguez De Varon, 175 F.3d at 940. The comparison is to be made against the conduct the defendant is being held accountable for ra- ther than against the conduct of a larger criminal conspiracy for which the defendant is not being sentenced. Id. at 941, 944. In De Varon, we identified additional factors to consider for drug couriers, including the “amount of drugs, fair market value of drugs, amount of money to be paid to the courier, equity interest in the drugs, role in planning the criminal scheme, and role in the distribution.” Id. at 945.

In sentencing Gutierrez, the District Court properly consid- ered those factors: THE COURT: And as you know, I am taking into con- sideration the degree to which . . . Mr. Gutierrez un- derstood the scope and structure of just the transac- tions that he was involved in, the degree to which he participated in those, including in the planning, the degree to which he exercised any decision-making au- thority or inﬂuenced the exercise of decision-making authority, which, I think, [defense counsel], is your greatest point.

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25-12261 Opinion of the Court 11 And I don’t know that he had any decision-making authority except, you know, that he did show up with the drugs, and he did drive somebody who showed up with the drugs; but, you know, I would agree that the third factor is the weakest.

And the nature and extent of his participation in the criminal activity at issue, which is just these 900-and- some-odd grams, and the degree to which he stood the beneﬁt—I don’t know. But why—you know, he did show up a second time.

He’s not a stranger to being involved in narcotics transactions from what I can see in his criminal his- tory; so this isn’t a doe-eyed person who didn’t know what was going on. Now, the facts really are what need to be considered; but, you know, this isn’t the— to me, I’m comfortable that this isn’t the person that the minor role adjustment was intended to apply to even as a member. So I’m denying the objection. I’m overruling the objection as to minor role.

We find no clear error in the District Court’s determination of Gutierrez’s role in the charged conspiracy. The Court’s judg- ment is accordingly affirmed.

AFFIRMED.

1 The Court dismissed Counts 4 and 6 at sentencing as provided in the plea agreement.

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