AMENDMENT 755
The Commentary to §3B1.2 captioned "Application Notes" is amended in Note 3(C) by inserting "is based on the totality of the circumstances and" after "adjustment,"; and by striking the last sentence as follows:
"As with any other factual issue, the court, in weighing the totality of the circumstances, is not required to find, based solely on the defendant’s bare assertion, that such a role adjustment is warranted.".
The Commentary to §3B1.2 captioned "Application Notes" is amended in Note 4 by striking the last sentence as follows:
"It is intended that the downward adjustment for a minimal participant will be used infrequently".
Reason for Amendment: This amendment deletes two sentences from the commentary to §3B1.2 (Mitigating Role). Specifically, in Application Note 3(C), the amendment deletes the statement that "[a]s with any other factual issue, the court, in weighing the totality of the circumstances, is not required to find, based solely on the defendant’s bare assertion, that such a role adjustment is warranted," while retaining the "totality of the circumstances" approach. In Application Note 4, the amendment deletes the sentence, "It is intended that the downward adjustment for a minimal participant will be used infrequently". The Commission determined that these two sentences are unnecessary and may have the unintended effect of discouraging courts from applying the mitigating role adjustment in otherwise appropriate circumstances.
Effective Date: The effective date of this amendment is November 1, 2011.