What is Amendment 833?
Amendment 833, effective November 1, 2025, added a special instruction at U.S.S.G. § 2D1.1(e)(2) providing that a mitigating role adjustment “is generally warranted if the defendant’s primary function in the offense was performing a low-level trafficking function” — and that it applies regardless of whether other participants were involved or whether the defendant was substantially less culpable than the average participant.
On this page
Key takeaways on Amendment 833
- A mitigating role adjustment is now “generally warranted” in a drug case where the defendant’s primary function was a low-level trafficking function — courier, running errands, sending or receiving phone calls or messages, or acting as a lookout.
- The two hardest requirements no longer apply in § 2D1.1 cases. The adjustment applies “regardless of whether the offense involved other participants” and “regardless of whether the defendant was substantially less culpable than the average participant.”
- That opens the door in single-defendant cases. The Commission said so: the old provisions “may discourage a court from applying a mitigating role adjustment in single-defendant drug trafficking cases.”
- The § 2D1.1(a)(5) caps came down. Base offense levels above 34 now decrease to level 32; with the four-level § 3B1.2(a) reduction, a resulting level above 30 decreases to level 30.
- Courts are applying it with limits. In United States v. Rivas Contreras (S.D. Cal. 2026), a court held that driving 48.62 kg of cocaine across the border “is not ‘plainly among the lowest level of drug trafficking functions.'”
- It is not retroactive. Amendment 833 is not listed in U.S.S.G. § 1B1.10(d), so it does not support a sentence reduction under 18 U.S.C. § 3582(c)(2).
The new special instruction at § 2D1.1(e)(2), in full
This is the operative text, quoted from Amendment 833’s insertion instruction. It is short, and every clause in it does work:
“(2) Application of §3B1.2 (Mitigating Role) to §2D1.1 Cases
(A) Determine whether an adjustment under §3B1.2 (Mitigating Role) applies.
(B) In addition to the circumstances identified in §3B1.2, an adjustment under §3B1.2 is generally warranted if the defendant’s primary function in the offense was performing a low-level trafficking function.
(i) An adjustment under §3B1.2(a) is generally warranted if the defendant’s primary function in the offense was plainly among the lowest level of drug trafficking functions, such as serving as a courier, running errands, sending or receiving phone calls or messages, or acting as a lookout; or
(ii) an adjustment under §3B1.2(b) is generally warranted if the defendant’s primary function in the offense was performing another 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 familial 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.
(C) The mitigating role provisions at subsection (a)(5) and the 2-level reduction at subsection (b)(17) apply regardless of whether the defendant receives the required adjustment from §3B1.2 (Mitigating Role) by direct application of §3B1.2 or by use of the special instruction in subsection (e)(2)(B).”
Note the architecture. Subparagraph (A) preserves the ordinary § 3B1.2 route. Subparagraph (B) adds a second, independent route. As the Commission put it: “a defendant sentenced under § 2D1.1 may qualify for a mitigating role adjustment under § 3B1.2 by direct application of that adjustment or by use of the special instruction in § 2D1.1(e)(2)(B).” Two doors, not one narrowed door.
The two disapplications: the heart of the amendment
Everything else in Amendment 833 follows from a single sentence in the middle of the special instruction. Here is what it removes, and why each removal matters.
| What § 3B1.2’s commentary required | Why it defeated claims | What § 2D1.1(e)(2)(B) now says |
|---|---|---|
| A comparison to “other participants” in the criminal activity | A defendant charged and sentenced alone had no one to compare against. In practice this made a role reduction unavailable in single-defendant cases | The adjustment applies “regardless of whether the offense involved other participants in addition to the defendant” |
| That the defendant be “substantially less culpable than the average participant” | Where everyone below the leadership was doing similar low-level work, no one could be less culpable than the average of that group. The requirement defeated exactly the defendants it should have helped | The adjustment applies “regardless of whether the defendant was substantially less culpable than the average participant in the criminal activity” |
Table: the two requirements disapplied in § 2D1.1 cases by the special instruction at U.S.S.G. § 2D1.1(e)(2)(B), effective November 1, 2025.
The Commission was explicit about the problem it was solving:
“The Commission determined that these two provisions in the Commentary to §3B1.2 may discourage a court from applying a mitigating role adjustment in single-defendant drug trafficking cases or drug trafficking cases where the defendant performed a similar low-level function as other participants in the criminal activity, but an adjustment may nevertheless be appropriate. Accordingly, the Commission concluded that these provisions shall not apply in assessing whether a mitigating role adjustment is warranted.”
Two consequences worth stating plainly. First, a single-defendant drug case is no longer structurally excluded from a role reduction. Second, being one of several people doing the same low-level work is no longer a disqualifier — which was the position of a great many couriers and street-level distributors under the old commentary. Both consequences reach the same population the downward departure framework used to serve before amendment 836 deleted it in the same November 2025 cycle — with the difference that a role adjustment operates inside the guideline calculation rather than as a request to leave it.
The Commission also explained where it put the instruction, and why: “The amendment places the special instruction in § 2D1.1 instead of § 3B1.2 to highlight that the rules for determining § 3B1.2 eligibility are different in § 2D1.1 cases.” So this is a drug-case rule. It does not change the § 3B1.2 analysis in a fraud case, an immigration case, or anywhere else.
The two routes, and what separates them
| § 2D1.1(e)(2)(B)(i) — 4 levels | § 2D1.1(e)(2)(B)(ii) — 2 levels | |
|---|---|---|
| Adjustment | § 3B1.2(a) — minimal participant, 4 levels | § 3B1.2(b) — minor participant, 2 levels |
| Standard | Primary function “plainly among the lowest level of drug trafficking functions” | Primary function was “another low-level trafficking function” |
| Illustrative examples | “serving as a courier, running errands, sending or receiving phone calls or messages, or acting as a lookout” | “distributing controlled substances in user-level quantities for little or no monetary compensation or with a primary motivation other than profit” |
| Motivation examples | — | “the defendant was otherwise unlikely to commit such an offense and was motivated by an intimate or familial relationship, or by threats or fear to commit the offense” |
| Also available | The three-level middle ground under § 3B1.2 where a case “fall[s] between (a) and (b)” | Same |
Table: the two routes created by the special instruction at § 2D1.1(e)(2)(B). The Commission stated that “the examples listed in § 2D1.1(e)(2)(B) are illustrative rather than a definitive list.”
Two textual features control how this is argued.
“Primary function,” not “any function.” The Commission chose that phrase deliberately, “[t]o ensure courts focus on a defendant’s predominant trafficking-related activities.” A defendant who mostly ran errands and once did something more significant is arguing about what the predominant activity was — which is a factual argument built from the discovery, not a label.
“Generally warranted,” not “shall apply.” The instruction creates a strong presumption, not an entitlement. The extent of any 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.” This page states the instruction; it does not tell any reader that they qualify, because that determination belongs to a court applying it to a specific record.
The lowered caps at § 2D1.1(a)(5)
Alongside the special instruction, Amendment 833 rewrote the mitigating-role cap in § 2D1.1(a)(5) — the provision that limits the base offense level for defendants who receive a § 3B1.2 adjustment.
| Base offense level from the Drug Quantity Table | Before Nov. 1, 2025 | After Amendment 833 |
|---|---|---|
| Level 32 | decrease by 2 levels | decrease by 2 levels (unchanged) |
| Level 34 | decrease by 3 levels | decrease by 3 levels (unchanged) |
| Level 36 | decrease by 3 levels | decrease to level 32 |
| Level 38 | decrease by 4 levels | decrease to level 32 |
| Any resulting level above the cap, with the 4-level § 3B1.2(a) reduction | decrease to level 32 | decrease to level 30 |
Table: the change to the § 2D1.1(a)(5) mitigating-role cap made by Amendment 833. Quoted from the amendment’s striking and inserting instructions.
Two related changes complete the picture:
§ 2D1.1(b)(17) was amended by striking “(‘minimal participant’).” The 2-level reduction there is no longer limited to defendants receiving the four-level minimal-participant adjustment.
§ 2D1.1(e)(2)(C) makes both provisions route-neutral. The (a)(5) cap and the (b)(17) reduction “apply regardless of whether the defendant receives the required adjustment from § 3B1.2 … by direct application of § 3B1.2 or by use of the special instruction in subsection (e)(2)(B).” A court in the Southern District of New York put it this way in United States v. Jaramillo-Aguilar, No. 1:16-cr-00388 (S.D.N.Y. Apr. 23, 2026): “these instructions certify that any individual who receives a mitigating role adjustment, regardless of the mechanism, may also receive the reductions in § 2D1.1(a)(5)” and § 2D1.1(b)(17).
Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: The argument this amendment makes possible is a function argument, and function arguments are built out of the discovery rather than out of the client’s description of events. What the wiretaps show the person doing. What the surveillance shows. Who directed whom. Whether the person was paid a wage, a flat fee, or a share. Those details decide whether “primary function” lands on the courier side of the line. They are also details a defense team has to go looking for, because the presentence report is usually written around quantity, not function. That is why the PSR objections are the document that matters most here, and why they have to be written from the discovery rather than from the report.
Where cooperation is part of the picture, the sequencing matters too: what a defendant says in a proffer agreement session about their own day-to-day activities can support or undercut a function argument, and U.S.S.G. § 1B1.8 governs whether self-incriminating information given under a cooperation agreement can be used in the guideline calculation at all.
Why the Commission did it: Amendment 794 did not work
The Commission’s reasoning is worth reading, because it establishes that the change is meant to be substantive rather than cosmetic.
Section 3B1.2 already provided a range of reductions: four levels for a “minimal participant,” two for a “minor participant,” and three where a case “fall[s] between (a) and (b).” In 2015 the Commission amended the § 3B1.2 commentary specifically to increase how often it was applied — that was Amendment 794, effective November 1, 2015.
It did not take. From the Reason for Amendment:
“The Commission previously amended the Commentary to §3B1.2 to increase its usage (see, e.g., USSG App. C, amend. 794 (effective Nov. 1, 2015)). However, Commission data shows that the prior amendment did not result in a sustained increase in application of the mitigating role adjustment in §2D1.1 cases. Commission data show that when §3B1.2 is applied in §2D1.1 cases, the vast majority of these cases receive only a 2-level reduction; 3- and 4-level reductions are rarely applied. Furthermore, Commission data shows variations across districts in application of §3B1.2 to §2D1.1 cases.”
Three findings drove the 2025 amendment: application did not increase in a sustained way; where it did apply, it was overwhelmingly at the 2-level tier; and outcomes varied by district. The stated purpose of the new instruction is “to address the inconsistent application of § 3B1.2 in § 2D1.1 cases and to encourage broader use of § 3B1.2 in these cases.”
One thing Amendment 833 took away: § 3B1.2 Application Note 3(A)
The amendment also struck a familiar passage from the commentary to § 3B1.2. The old Note 3(A) contained a drug-transport illustration:
“For example, a defendant who is convicted of a drug trafficking offense, whose participation in that offense was limited to transporting or storing drugs and who is accountable under §1B1.3 only for the quantity of drugs the defendant personally transported or stored may receive an adjustment under this guideline.”
That example was struck. The health-care-fraud illustration in the same note was kept.
Do not read the deletion as a narrowing. The Commission removed the drug example from § 3B1.2 because it moved the ground to § 2D1.1(e) — where it now sits in stronger form, as an instruction that an adjustment is “generally warranted” rather than an example of a defendant who “may receive” one. But it means a brief citing § 3B1.2 Application Note 3(A) for the transporting-or-storing example is citing text that no longer exists. Cite § 2D1.1(e)(2)(B) instead.
What the courts have actually done in the first year
Published district decisions began appearing within months, and they show a real amendment being applied with real limits. This section exists so the page does not over-promise.
Courts are quoting the instruction as written. In United States v. Salazar Amaya, No. 1:25-cr-00879 (D.N.M. Mar. 4 and Mar. 31, 2026), and in United States v. Acosta, No. 3:22-cr-00380 (D.P.R. June 29 and 30, 2026), courts set out the two routes and the illustrative examples in the course of deciding role questions.
But “courier” is not a magic word. United States v. Rivas Contreras, No. 3:25-cr-04185 (S.D. Cal. Feb. 13, 2026), is the most developed published analysis so far, and it denied a four-level adjustment to a defendant who drove 48.62 kilograms of cocaine across the U.S.–Mexico border. The court’s reasoning:
“[T]he term ‘courier’ as used in § 2D1.1(e)(2)(B)(i) is a term of art that must be read in the context of, and harmoniously with, the accompanying examples of roles which the Sentencing Commission co-designates as ‘plainly among the lowest level of drug trafficking functions.'”
Applying that: “for § 2D1.1(e)(2)(B)(i) to apply, the ‘courier’ role performed by Defendant … must be functionally equivalent to the other tasks listed — ‘running errands, sending or receiving phone calls or messages, or acting as a lookout[.]'” And: “transporting a large quantity of drugs across the international border between the United States and Mexico is not ‘plainly among the lowest level of drug trafficking functions.’ Indeed, successfully crossing narcotics across the international border is one of the most critical and risky drug trafficking functions.”
The court also drew a structural point that will matter in argument: because the four-level route in (i) sits above the two-level route in (ii), “a ‘courier,’ as that term is used in subsection (i), must be even less involved than someone performing what subsection (ii) labels ‘another low-level trafficking function.'”
What follows for practice. The amendment did not create a per-se rule that anyone who transported drugs receives four levels. It created a presumption tied to primary function, and at least one court has read the four-level tier as reserved for functions genuinely equivalent to running errands or acting as a lookout. That reading is not binding anywhere, and other courts may go differently — but a brief that treats the courier example as self-executing is a brief that has not read Rivas Contreras.
Is Amendment 833 retroactive?
No. A guideline amendment reduces an already-imposed sentence only if the Commission lists it in U.S.S.G. § 1B1.10(d), which is the provision identifying amendments given retroactive effect. Amendment 833 is not on that list.
The Eastern District of Tennessee addressed it directly in United States v. Flenniken, No. 3:22-cr-00078 (E.D. Tenn. Aug. 12, 2026): “To determine whether Amendment 833 applies retroactively, the Court must look to § 1B1.10(d). … Amendment 833 is not listed in § 1B1.10(d). … Therefore, Amendment 833 is not retroactive, and defendant is not eligible for a sentencing reduction pursuant to 18 U.S.C. § 3582(c)(2).”
The practical line, then:
| Where your case is | Does Amendment 833 apply? |
|---|---|
| Sentencing on or after November 1, 2025 | Yes — the 2025 Manual governs under § 1B1.11(a), subject to the Ex Post Facto Clause |
| Sentenced before November 1, 2025, still on direct appeal | A question for appellate counsel on the specific procedural posture — see federal appeals |
| Sentence final, seeking a reduction under § 3582(c)(2) | No — not listed in § 1B1.10(d) (Flenniken) |
| Awaiting resentencing after a remand | Depends on the scope of the remand; the Manual in effect at the new sentencing generally governs |
Table: how Amendment 833’s November 1, 2025 effective date interacts with a case’s procedural posture.
If a sentence is already final, the ordinary routes to revisiting it — covered on the federal sentence reduction and compassionate release pages — are separate mechanisms with their own standards. Amendment 833 does not open a door in any of them by itself.
Role findings still cut both ways
A mitigating role finding is favorable. But role findings in drug cases are also load-bearing for the safety valve, and that has not changed.
18 U.S.C. § 3553(f)(4) conditions safety-valve relief on the court finding that “the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise.” Section 3553(f)(5) separately requires that, not later than sentencing, the defendant “has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.”
Amendment 833 did not touch either. So the same evidence that establishes a low-level primary function generally reinforces the safety-valve position, and evidence tending to show direction of others cuts against both at once. The full criteria, the case law on what counts as a complete disclosure, and the interaction with mandatory minimum sentences belong to the safety valve federal sentencing page.
One further note for completeness: Amendment 833 has a second part that is not defense-favorable. Part B amended § 2D1.1(b)(13)(B), replacing the requirement that a defendant “acted with willful blindness or conscious avoidance of knowledge” that a substance was not the legitimately manufactured drug with “reckless disregard” of that fact. In a case involving fentanyl or a fentanyl analogue represented as a legitimate pharmaceutical, that change is worth reading carefully alongside Part A.
Applied Insight — Christopher Zoukis, JD, MBA, Managing Director: People serving drug sentences hear about a guideline change and reasonably ask whether it reaches them. On this one the answer is a date: sentencings on or after November 1, 2025. It is not on the Commission’s retroactivity list, so a § 3582(c)(2) motion built on it will not succeed on that basis alone — and filing one that does is a wasted filing that can complicate later ones. For anyone still awaiting sentencing, the useful work is documentary: assembling what the record actually shows about what the person did day to day.
Why work with Elizabeth Franklin-Best, P.C.
Elizabeth Franklin-Best, P.C. is a boutique federal criminal defense and appellate firm founded in 2019, running a national federal practice on an intentionally small caseload. Elizabeth Franklin-Best has more than 20 years of federal and appellate criminal defense experience and has handled more than 330 federal proceedings, over 100 of them appeals, with sixteen published decisions as counsel of record. She is admitted to the U.S. Supreme Court and twelve of the thirteen U.S. Courts of Appeals — every regional circuit (1st–11th) plus the D.C. Circuit — and is recognized by Best Lawyers in America 2026 for Appellate Practice and by Chambers USA 2026 for Litigation: White-Collar Crime & Government Investigations.
The firm has offices in Columbia and Mount Pleasant, South Carolina, and represents clients nationwide. A role argument under Amendment 833 sits inside the broader federal sentence mitigation work — the guideline objections, the presentence report response, and the sentencing presentation, including the character letters a family assembles.
What to do next under Amendment 833
If a sentencing date falls on or after November 1, 2025 in a drug case, the presentence report should be read against § 2D1.1(e)(2), and the response should address primary function directly with record support. If the report frames the role question under the pre-2025 commentary — comparing the defendant to other participants, or asking whether they were substantially less culpable than average — that framing is now wrong for a § 2D1.1 case, and saying so in writing is the first step. What happens at the federal sentencing hearing largely follows from what was put on paper before it.
Call (843) 620-1100, or schedule a consultation directly.
This page is general legal information, not legal advice, and reading it does not create an attorney-client relationship. Whether a mitigating role adjustment applies in any case is a determination “heavily dependent upon the facts of the particular case,” made by the sentencing court. No outcome is promised or implied.
Frequently Asked Questions About Amendment 833
What is Amendment 833?
Amendment 833 is the U.S. Sentencing Commission amendment, effective November 1, 2025, that added a special instruction at U.S.S.G. § 2D1.1(e)(2) making a mitigating role adjustment “generally warranted” where a drug defendant’s primary function was a low-level trafficking function. It also lowered the § 2D1.1(a)(5) caps and amended § 2D1.1(b)(17) and § 2D1.1(b)(13)(B).
Does a courier get a role reduction now?
Not automatically. Section 2D1.1(e)(2)(B)(i) lists “serving as a courier” as an example of a function “plainly among the lowest level,” and an adjustment is “generally warranted” where that was the defendant’s primary function. But in United States v. Rivas Contreras (S.D. Cal. 2026), a court held that transporting a large quantity of drugs across the international border is not among the lowest-level functions. It is a fact-specific determination.
What is the § 2D1.1(e)(2) special instruction?
It is a drug-case-specific instruction telling courts that, “[i]n addition to the circumstances identified in § 3B1.2, an adjustment under § 3B1.2 is generally warranted if the defendant’s primary function in the offense was performing a low-level trafficking function” — and that the adjustment applies regardless of whether other participants were involved or whether the defendant was substantially less culpable than the average participant.
Can I get a role reduction if I was charged alone?
The structural barrier is gone. The instruction states that the adjustment applies “regardless of whether the offense involved other participants in addition to the defendant,” and the Commission explained that the old provisions “may discourage a court from applying a mitigating role adjustment in single-defendant drug trafficking cases.” Whether one applies in any case still depends on the facts and on the court.
Is Amendment 833 retroactive?
No. It is not listed in U.S.S.G. § 1B1.10(d), the provision identifying amendments given retroactive effect. In United States v. Flenniken, No. 3:22-cr-00078 (E.D. Tenn. Aug. 12, 2026), the court held that “Amendment 833 is not retroactive, and defendant is not eligible for a sentencing reduction pursuant to 18 U.S.C. § 3582(c)(2).”
What happened to the § 3B1.2 transporting-or-storing example?
Amendment 833 struck it from § 3B1.2 Application Note 3(A). The ground did not disappear — it moved to § 2D1.1(e)(2)(B) in stronger form, as an instruction that an adjustment is “generally warranted” rather than an example of a defendant who “may receive” one. A brief still citing the old Note 3(A) example is citing deleted text.
Does Amendment 833 change the safety valve?
No. 18 U.S.C. § 3553(f)(4) still requires that the defendant “was not an organizer, leader, manager, or supervisor of others in the offense,” and § 3553(f)(5) still requires truthful disclosure by sentencing. The evidence supporting a low-level primary function generally supports the safety-valve position as well, but the safety valve criteria are separate and unchanged.
How much of a reduction does it produce?
The instruction routes to § 3B1.2’s existing tiers — four levels under § 3B1.2(a), two under § 3B1.2(b), three where a case falls between them — and the § 2D1.1(a)(5) cap may apply on top. The guideline itself says the extent “shall be based on the totality of the circumstances and involves a determination that is heavily dependent upon the facts of the particular case.” No page can tell you what any of that produces in a specific case.
Reviewed for legal accuracy by Elizabeth Franklin-Best, Esq., Principal Attorney·September 2026