2025 Mitigating-Role Cap Is Not Retroactive

If you are already serving a federal drug sentence, or you are helping someone who is, the 2025 change to the mitigating-role cap will not lower that sentence through a guideline-reduction motion. On August 6, 2025, the U.S. Sentencing Commission voted on making the change retroactive, and the motion failed.

The 2025 drug amendment changed how the drug guideline treats a person with a small role, such as a courier or a lookout. It took effect November 1, 2025, for people sentenced on or after that date. It is Amendment 833, Part A, Subpart 1. The Commission's amendment page has the text. The minutes of the August 6 meeting record the retroactivity vote.

What the cap changed in the drug guideline

The mitigating-role adjustment is USSG §3B1.2. A person who is a minor or minimal participant can receive a decrease of 2 to 4 levels. A minimal participant receives 4 levels off under §3B1.2(a). That adjustment was already in the Manual. Amendment 833 did not create it. The amendment capped the base offense level that sits on top of the adjustment, in USSG §2D1.1(a)(5), for a defendant who receives a §3B1.2 adjustment:

• If the level from the drug quantity table is 32, it decreases by 2.
• If that level is 34, it decreases by 3.
• If that level is above 34, it decreases to 32.
• If the person also receives the 4-level minimal-participant reduction, anything above 30 drops to 30.

The cap matters when the drug quantity would otherwise produce a very high base offense level for someone who played a small part. It is part of the guideline calculation. It is not a variance, and it is not a departure.

A later cleanup, which took effect November 1, 2026, renumbered some §2D1.1(b) paragraphs because one of them was deleted. It did not repeal this cap. The 2026 amendments took effect as scheduled and are part of the 2026 Guidelines Manual. Our note on the 26 deleted rules explains the renumbering. If a presentence report written before that date cites an old paragraph number, check that the cap in §2D1.1(a)(5) is still being applied to the right level.

Why the retroactivity vote failed

At the August 6, 2025 public meeting, Chair Reeves and Vice Chairs Mate and Restrepo voted to make the cap retroactive. Vice Chair Murray and Commissioner Wong voted no. That is 3-2. The Commission needs four votes, so the motion failed.

No one moved to make two other 2025 changes retroactive. The meeting record identifies them as Amendment 832 and Part A, Subpart 2 of Amendment 833, described when this vote was first reported as the circuit-conflict amendment and a second drug subpart. A failed motion and a missing motion have the same result for people already sentenced. The amendment is not listed in USSG §1B1.10(d), the roster of amendments that can support a reduction.

What § 3582(c)(2) requires

A court may reduce a sentence based on a guideline change only as 18 U.S.C. § 3582(c)(2) allows. The statute requires that the person have been sentenced to a term based on a range the Commission later lowered, and that the reduction be consistent with the applicable policy statements. The policy statement, USSG §1B1.10, limits those reductions to the amendments named in §1B1.10(d).

Because the cap is not on that list, a § 3582(c)(2) motion that relies on Amendment 833's mitigating-role cap is not available for a sentence imposed before November 1, 2025. Filing one does not extend any other deadline. Our page on how a final sentence can be reduced separates this motion from the others.

Paths that are not this vote

The failed vote does not repeal statutes that were already there. Whether any of them fits is a separate question, decided on the judgment, the dates, and the facts.

• Compassionate release, § 3582(c)(1)(A), asks whether extraordinary and compelling reasons warrant a reduction. A non-retroactive guideline change is not, by itself, that reason. Rutherford v. United States, 608 U.S. 454 (2026), held that when Congress declines to make a sentencing change retroactive, the disparity cannot serve as an extraordinary and compelling reason. A medical condition or another ground in USSG §1B1.13 is a different claim. Do not recast this failed vote as a compassionate-release case.
• A motion under 28 U.S.C. § 2255 attacks the legality of the conviction or sentence. The ordinary deadline is one year after the conviction becomes final. A policy choice about retroactivity is not, standing alone, a § 2255 claim.
• Clemency is a decision by the President under Article II, not a guideline motion.
• A direct appeal is due within 14 days of judgment under Federal Rule of Appellate Procedure 4(b). For a 2025 sentence, that window is long closed unless a later event restarted it, which this amendment does not do.

The guide to sentence reductions puts these side by side.

Role at a sentencing on or after November 1, 2025

For a sentencing on or after November 1, 2025, the cap is part of the Manual the court uses, subject to the one-book rule in USSG §1B1.11. If the newer Manual would raise the range above the Manual in effect on the date of the offense, Peugh v. United States, 569 U.S. 530 (2013), requires the older Manual as a whole. A cap that lowers a range does not create that problem. A different 2026 amendment that raises a range can.

The role adjustment has to be proved. Section 3B1.2 looks at the person's tasks, discretion, and share of the profit, not at a job title. A courier is not automatically a minimal participant. The facts belong in the presentence report and in the objections to it.

The presentence report and the hearing

Federal Rule of Criminal Procedure 32 requires the probation officer to calculate the guideline range. In a drug case that calculation includes drug type and quantity, any §3B1.2 role adjustment, and then §2D1.1(a)(5) if the adjustment applies. The report is due to the parties at least 35 days before sentencing. Written objections are due within 14 days. At least 7 days before the hearing, the court receives the final report and an addendum of disputes.

If the report denies a mitigating role, or applies the role but skips the cap, object in that 14-day window. Waiting until the hearing is a request for leave to make a new objection, which Rule 32(i)(1)(D) allows only for good cause. Our guide to the presentence report lists the clocks.

The hearing still has a second step. Since November 1, 2025, USSG §1B1.1 tells the judge to calculate the range, including this cap when it applies, and then to choose a sentence under 18 U.S.C. § 3553(a). Amendment 836 removed nearly all departures. A further reduction, below the capped range, is a variance, not a departure. Substantial assistance remains available under §5K1.1 if the government files the motion. See departures and variances and the sentencing hearing, including the defendant's right to speak.

Write down the sentencing date, whether §3B1.2 was applied, and the base offense level before and after §2D1.1(a)(5). Those three facts decide whether this amendment is a live calculation or a closed retroactivity vote.