USA v. Vazquez et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
UNITED STATES OF AMERICA,
Plaintiff,
v.
[4] JOHAN TIRADO-AGUEDA,
Defendant.
CRIM. NO. 23-125-4 (RAM)
OPINION AND ORDER
RAÚL M. ARIAS-MARXUACH, United States District Judge.
Pending before the Court is Defendant Johan Tirado-Agueda’s
(“Tirado” or “Defendant”) Objection to Presentence Investigation
Report (the “Objection”). (Docket No. 379). Defendant specifically
objects to the Amended Presentence Investigation Report (PSR)
filed by the US Probation Office (USPO) at Docket No. 369
eliminating the mitigating role adjustment under USSG 3B1.2(b) and
the concomitant additional reductions in the offense level under
USSG 2D1.1(a)(5) that were originally given in the First PSR at
Docket No. 344. The Government filed a Response to Objection to
the Amended PSR and Sentencing Memorandum (Docket No. 380). Having
considered the parties’ written submissions, the Court DENIES the
Defendant’s objections.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case arises from the arrest of Tirado, who was part of
a pickup crew that retrieved approximately 467 kilograms of cocaine
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Criminal No. 23-125-4 (RAM) 2
from a yola-type vessel at a beach in Las Picuas, Rio Grande,
Puerto Rico.
According to the Amended PSR’s unobjected description of the
offense conduct, on March 17, 2023, at approximately 11:20 a.m.,
law enforcement received information from a confidential source of
the presence of a drug-smuggling offload crew at Las Picuas, a
known smuggling area at a beach located in Rio Grande, Puerto Rico.
(Docket No. 369 ¶ 13).
Law enforcement agents observed a silver Ford F150 parked in
the brush near the beach. Id. ¶ 15. As the agents approached the
vehicle, individuals opened the doors and ran. Id. When law
enforcement arrived at and secured the vehicle, they saw what
appeared to be, based on their training and experience, bales of
cocaine on the floor of the rear passenger area and in the bed of
the truck. Id.
Simultaneous to the stop of the Ford F150, law enforcement
observed a white Dodge Caliber, bearing two individuals, traveling
down a dirt road to the beach. Id. ¶ 16. When law enforcement
approached attempting to conduct a stop of the Caliber, the Caliber
attempted to flee. Id. Law enforcement agents then ordered the
occupants to exit the vehicle. Id. The occupants were identified
as Tirado and co-defendant Wilfre Manuel Reyes-Pimentel. Id. Law
enforcement recovered approximately 12 bales containing
approximately 467 kilograms of cocaine.
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On February 24, 2026, this Court held a Change of Plea hearing
where Tirado entered into a “straight plea” with the Government.
(Docket No. 138). During the presentence interview with probation,
Tirado avers that he accepted as true the same facts that co-
defendants Montilla, Cespedes, Marte, and Vazquez admitted in
their respective plea agreements. (Docket No. 379 at 2).
On April 17, 2026, the probation officer issued the original
PSR which started with a base offense level of 38. (Docket No.
344). The offense level computation started with a base offense
level of 38 because the offense involved 450kg or more of cocaine
pursuant to U.S.S.G. § 2D1.1(b)(1). (Docket No. 344 ¶ 35). The PSR
awarded a 4-level minimal participant mitigating role downward
adjustment under U.S.S.G. § 3B1.2 reporting a total offense level
of 34, above 30 thus necessitating a further downward adjustment
to 30 under U.S.S.G. § 2D1.1(a)(5)(ii). Id. After the 3-point
acceptance of responsibility deduction in U.S.S.G. § 3E.1.(a) &
(b) and the zero-point offender adjustment in U.S.S.G. §
4C1.1(a)(1)-(11), the resulting total adjusted offense level was
21. Id. ¶ 45. The resulting guideline sentencing range was from 37
to 46 months. (Docket No. 379 at 1).
On August 5, 2026, the probation officer issued an Amended
PSR which started with the same base offense level of 38. (Docket
No. 369). This PSR, however, removed the 4-level minimal
participant mitigating role downward adjustment under U.S.S.G. §
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Criminal No. 23-125-4 (RAM) 4
3B1.2, preserving the other adjustments, reporting a total offense
level of 33. Id. ¶ 35. The Second Addendum stated that the
Probation Office found that there was not sufficient evidence to
determine that Defendant was less culpable than the co-defendants
or than the average participant and that the defense, who has the
burden of proof, has not provided any documentation to support a
mitigating role adjustment. (Docket No. 373).
Tirado filed his Objection to the Amended PSR on September 9,
2026. (Docket No. 379). Tirado argued that none of the underlying
facts as delineated in the PSR had changed despite having given a
“straight plea” and none of the actions highlighted by the
Government justify denying Tirado a minimal role adjustment
pursuant to United States v. Guía-Sendeme, 134 F.4th 611 (1st Cir.
2025) or the November 1, 2025, amendments. Id. at 5-9. The crux of
Tirado’s argument was that he was substantially less culpable than
the average participant, as he was a loader, or a mere “laborer[,]
with no planning role, no navigational authority, no
organizational knowledge, and no direct responsibility for
narcotics,” while the average was more akin to “recruiter(s) or
the at-sea transfer crew.” Id. at 7, 11. Tirado further highlights
that under the November 1, 2025, amendments, the four-level
reduction is “‘generally warranted’ when a defendant’s primary
function was ‘plainly among the lowest level of drug trafficking
functions, such as serving as a courier, running errands, sending
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Criminal No. 23-125-4 (RAM) 5
or receiving phone calls or messages, or acting as a lookout,’”
and that this applies “regardless of whether the defendant was
substantially less culpable than the average participant in the
criminal activity.” Id. at 6 (citing U.S.S.G. § 2D1.1(e)(2)(B)).
The Government, in its Response filed on September 15, 2026,
argued that Defendant cannot meet his burden to show that he is
entitled to the mitigating role adjustment because Tirado’s
primary function in the offense was not “plainly among the lowest
level of drug trafficking functions,” as Tirado was a loader and
unloader of bales of hundreds of kilograms of cocaine over
international borders. (Docket No. 380 at 5-6). Moreover, Tirado
had done this similar task on no less than five prior occasions
for the organization. Id. at 6. On one of those occasions, Tirado
reported that firearms were intended to be sent back to the
Dominican Republic, and Tirado housed and fed some of the captains
of these maritime drug smuggling ventures. Id. at 6-7.
Additionally, the Government argued that Tirado’s role here
was very similar to that of the defendant in Acosta, who was also
a loader of hundreds of kilograms of cocaine. United States v.
Acosta, No. CR 22-380 (RAM), 2026 WL 1991722 (D.P.R. July 2, 2026).
In Acosta, this Court denied the mitigating role adjustment to the
defendant because a loader of hundreds of kilograms of cocaine is
not akin to a courier or another “low-level drug trafficking
function,” like “distributing controlled substances in user level
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Criminal No. 23-125-4 (RAM) 6
quantities for little or no monetary compensation or with a primary
motivation other than profit” to qualify for a 2-point deduction
under the special instruction in U.S.S.G. 2D1.1(e)(2)(B)(ii). Id.
Based on the five, non-exhaustive factors in U.S.S.G. § 3B1.2,
the Government argued that Tirado did not qualify for a mitigating
role. Id. at 8-9. The Government, highlighting three of the five
factors, contends that: (A) Tirado’s actions show he understood
the scope and structure of the criminal activity by his status as
a “veteran drug-smuggler,” someone who thus understood that the
organization was moving hundreds of kilograms of cocaine on
multiple occasions; (B) the nature and extent of Tirado’s
participation in the criminal activity and the discretion he
exercised is shown by this being his sixth drug-smuggling venture,
and that he has housed and fed captains of the drug smuggling boats
and found engines for those boats; and (c) Tirado stood to receive
between $4,000 and $13,000 from the criminal activity. Id. The
Government further pointed to the value of the cocaine, in the
millions, as evidence that Defendant was a trusted member of the
drug trafficking organization. Id. at 5-6. The Government also
argued that assisting in the transport of 467 kilograms of cocaine
is not a low-level trafficking function. Id.
Both Tirado and the Government performed the U.S.S.G. § 3B1.2
mitigating role analysis required by the First Circuit in Guía-
Sendeme, 134 F.4th at 611 and the special instruction on the
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Criminal No. 23-125-4 (RAM) 7
application to U.S.S.G. § 3B1.2 to U.S.S.G. § 2D1.1 cases that is
part of the November 1, 2025, amendments to the Sentencing
Guidelines. (Docket Nos. 379 and 380); USSG § 2D1.1 (e)(2)
(Application of § 3B1.2 (Mitigating Role) to § 2D.1.1. Cases).
Unsurprisingly, the two parties disagree on whether Tirado is
eligible for the mitigating role adjustment.
II. APPLICABLE LAW
A. Mitigating Role Adjustment under U.S.S.G. § 3B1.2.
Under the United States Sentencing Guidelines, downward
adjustments are available for defendants who played a mitigating
role in the relevant criminal activity. Section 3B1.2 of the
Guidelines allows a sentencing court to decrease a defendant’s
offense level by four if he is deemed a minimal participant, two
levels if he is deemed a minor participant, and three levels if
his role in the offense falls somewhere in between. See U.S.S.G.
§ 3B1.2; see also United States v. Andino-Rodríguez, 79 F.4th 7,
31 (1st Cir. 2023); United States v. De la Cruz-Gutiérrez, 881
F.3d 221, 225 (1st Cir. 2018). These adjustments apply to
“defendants whose role in the offense make them ‘substantially
less culpable than the average participant in the criminal
activity.’” United States v. Mendoza-Maisonet, 962 F.3d 1, 23 (1st
Cir. 2020) (quoting U.S.S.G. § 3B1.2 cmt. n.3(A)).
The designation of “minimal” participant is “intended to
cover defendants who are plainly among the least culpable of those
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Criminal No. 23-125-4 (RAM) 8
involved in the conduct of a group.” U.S.S.G. § 3B1.2 cmt. n.4. A
“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 a minimal participant.” Id. Alternatively,
a “minor” participant is a defendant “who is less culpable than
most other participants in the criminal activity, but whose role
could not be described as minimal.” Id. cmt. n.5.
The Commentary notes that a “defendant who does not have a
proprietary interest in the criminal activity and who is simply
being paid to perform certain tasks should be considered for an
adjustment under this guideline.” Id. cmt. n.3. Furthermore, the
“fact that a defendant performs an essential or indispensable role
in criminal activity is not determinative.” Id. (emphasis added).
While a defendant may receive an adjustment if he or she is
“substantially less culpable than the average participant in the
criminal activity,” this does not mean that “every such offender
is entitled to a mitigating role adjustment; it merely instructs
that every such offender ‘should be considered for a mitigating
role adjustment.’” United States v. Arias-Mercedes, 901 F.3d 1, 9
(1st Cir. 2018) (quoting U.S.S.G. App. C, Amend. 794).
The determination of whether to apply an adjustment, and the
level of which, is “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. § 3B1.2 cmt. n.3(C); see United
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Criminal No. 23-125-4 (RAM) 9
States v. Pérez, 819 F.3d 541, 545 (1st Cir. 2016) (“Role-in-the-
offense determinations are notoriously fact specific.”). A
“defendant seeking the mitigating role adjustment ‘bears the
burden of proving, by a preponderance of the evidence, that he is
entitled to the downward adjustment.’” Mendoza-Maisonet, 962 F.3d
at 23 (quoting Arias-Mercedes, 901 F.3d at 5).
In assessing whether a defendant has met this burden, the
Court should engage in a four-part analysis: (1) identifying the
universe of participants involved in the relevant criminal
activity; (2) ordering each participant along a continuum of
culpability; (3) identifying the average participant across all
likely participants; and (4) comparing the defendant’s role in the
criminal activity to the average participant’s role. See Guía-
Sendeme, 134 F.4th at 617.
At step one, the Court “must identify the ‘relevant conduct
as a whole’ . . . a legal determination requiring a court to
identify the ‘scope of the conduct for which the defendant is being
held accountable.’” Id. at 622 (quoting Arias-Mercedes, 901 F.3d
at 6-7). “Any determination as to a ‘defendant’s role in the
offense is to be made on the basis of all conduct within the scope
of [U.S.S.G.] § 1B1.3 (Relevant Conduct) . . . and not solely on
the basis of elements and acts cited in the count of conviction.’”
Id. at 619 (quoting U.S.S.G. ch.3, pt. B, introductory cmt.). The
scope of relevant conduct defined by U.S.S.G. § 1B1.3 for a
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“jointly undertaken criminal activity” is “all acts and omissions
of others that were – (i) within the scope of the jointly
undertaken criminal activity, (ii) in furtherance of that criminal
activity, and (iii) reasonably foreseeable in connection with that
criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). This includes not
only the activities “‘that occurred during the commission of the
offense of conviction,’ but also all those undertaken ‘in
preparation for that offense, or in the course of attempting to
avoid detection or responsibility for that offense.’” Guía-
Sendeme, 134 F.4th at 619 (quoting U.S.S.G. § 1B1.3(a)(1)(B)).
Importantly, “the scope of the ‘jointly undertaken criminal
enterprise’ is not necessarily the same as the scope of the entire
conspiracy.” U.S.S.G. § 1B1.3, cmt. n.3(B). For example, as
applied to a drug distribution conspiracy case, “relevant conduct
constitutes only those drug shipments with which the defendant is
personally aware, not other shipments facilitated by the broader
conspiracy for which the defendant is unaware.” Guía-Sendeme, 134
F.4th at 619. Therefore, when performing a mitigating role
assessment, the Guidelines require the sentencing court “to limit
the scope of the inquiry to the drug shipments for which the
defendant is accountable.” Id. at 620 (citing U.S.S.G. § 1B1.3,
cmt. n.3(b), n.4(A)(i)). Within that relevant conduct, a court
“must compare the defendant against all likely participants
involved with the shipment, including those involved with the
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Criminal No. 23-125-4 (RAM) 11
shipment’s preparation and efforts to avoid detection.” Id. at 620
(citing U.S.S.G. § 3B1.3(a)(1)(B)).
Next, the Court conducts a fact-specific inquiry “to identify
the universe of participants involved in the particular conduct.”
Guía-Sendeme, 134 F.4th at 622. A “participant” is someone “who is
criminally responsible for the commission of the offense, but need
not have been convicted.” Arias-Mercedes, 901 F.3d at 6 (quoting
U.S.S.G. § 3B1.1 cmt. n.1). “To be considered a participant, there
must be sufficient evidence of the person’s existence and
involvement in the crime.” Guía-Sendeme, 134 F.4th at 617; see
also United States v. Flores-Álvarez, No. 23-1163, 2025 WL 1369300,
*2 (1st Cir. May 12, 2025) (stating a participant’s “involvement
in the crime must be identifiable or discernable from the record”).
A sentencing court cannot assess a mitigating role adjustment
“based on suppositions woven entirely out of gossamer strands of
speculation and surmise.” Arias-Mercedes, 901 F.3d at 7 (citations
omitted). But it should consider the broader universe of reasonably
discernible participants. See Guía-Sendeme, 134 F.4th at 619
(“Courts must consider a universe composed of those involved in
the defendant’s relevant conduct as a whole.”) (cleaned up).
At step two, the Court must order each participant along a
continuum based on their degree of culpability in the criminal
activity. Id. at 617; see Andino-Rodríguez, 79 F.4th at 34 (finding
First Circuit “case law is clear that all parties engaged in a
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Criminal No. 23-125-4 (RAM) 12
criminal enterprise can be located on a continuum”). “Those who
are primarily responsible stand on one end, while the least
culpable participants . . . stand at the opposite end.” United
States v. Walker, 89 F.4th 173, 185 (1st Cir. 2023) (cleaned up).
“When a defendant stands somewhere in the middle [of the
continuum] . . . a district court may reasonably infer the
defendant is not substantially less culpable than the average
participant.” Andino-Rodríguez, 79 F.4th at 34 (cleaned up).
At step three, from that continuum, courts must “identify the
average participant across all likely participants in the criminal
scheme.” Guía-Sendeme, 134 F.4th at 617. In determining this
average, “the court need not identify a single average participant
among the universe of discernable participants involved in the
relevant conduct” nor “engage in a precise, numerical
calculation.” Id. (cleaned up). Rather, courts should seek a
“ballpark average among those involved in the relevant conduct.”
Id.
At step four, when comparing the defendant’s role in the
criminal activity to the average participant’s role, courts have
a two-part inquiry. A defendant must first demonstrate, as a
threshold matter, they are “substantially less culpable than the
average participant in the criminal activity.” Mendoza-Maisonet,
962 F.3d at 23 (quoting U.S.S.G. § 3B1.2 cmt. n.3(A)). “If that
requirement is met, then a district court must evaluate the
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Criminal No. 23-125-4 (RAM) 13
defendant’s classification among the pool of defendants eligible
for an adjustment.” Walker, 89 F.4th at 185 (internal citations
omitted). Defendants must either demonstrate they are “less
culpable than most other participants in the criminal activity”
for a minor participant reduction or “plainly among the least
culpable of those involved” for a minimal participant adjustment.
Guía-Sendeme, 134 F.4th at 617 (quoting U.S.S.G. § 3B1.2 cmt. n.4
and 5). “[T]he fact that someone else might have been more culpable
than [the] defendant] does not necessarily mean that [the
defendant’s] participation was minor [or minimal].” De la Cruz-
Gutiérrez, 881 F.3d at 226.
When measuring the defendant’s culpability against that of
the average participant, the Commentary Notes state that a court
should consider the following non-exhaustive list of factors when
assessing a defendant’s role:
(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
planning or organizing the criminal activity;
(iii) the degree to which the defendant exercised
decision-making 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
performed and the responsibility and discretion the
defendant had in performing those acts;
(v) the degree to which the defendant stood to benefit
from criminal activity.
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U.S.S.G. § 3B1.2 cmt. n.3(C).
The purpose of the five factors is not to establish guilt,
but “to help a court decide whether to apply leniency because a
defendant, while guilty, played a substantially subordinate role
in the criminal activity.” Guía-Sendeme, 134 F.4th at 624; Flores-
Álvarez, 2025 WL 1369300, at *3 (“The purpose of these five factors
is to ultimately measure a defendant’s culpability against that of
the average participant who took part in the criminal activity.”).
“An evaluation of these factors does not require extensive
analysis, but it does require both a judgment about the defendant’s
own conduct and a comparison to the other participants.” Walker,
89 F.4th at 187 (internal citations omitted).
B. Application of U.S.S.G. § 3B.1.2 to U.S.S.G. § 2D1.1 Cases.
Under the November 1, 2025, Amendments to the Sentencing
Guidelines, the Guía-Sendeme gauntlet is but the beginning in drug
trafficking cases. Now, even if the Defendant cannot establish
that he is “substantially less culpable than the average
participant” under an ordinary application of § 3B.1.2 and Guía-
Sendeme, a mitigating role adjustment may be available in cases
covered by U.S.S.G. § 2D.1. See U.S. Sent'g Comm'n, Guidelines
Manual § 2D.1 (Nov. 2025). This means that a sentencing court must
now evaluate defendant’s role under both 3B1.2 (and Guía-Sendeme)
and under the special instructions to U.S.S.G. § 2D.1.
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The special instructions in § 2D.1(e)(2)(B) provide that a
mitigating role adjustment is generally warranted for “low-level”
and “lowest level” drug trafficking functions “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” is “based on the totality of the circumstances
and involves a determination that is heavily dependent upon the
facts of the particular case.” Federal Sentencing Guidelines
Manual § 2D1.1 (“FCJ-FSG § 2D1.1”) (emphasis added).
The special instructions establish that a 4-point minimal
participant deduction under U.S.S.G. § 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.” U.S.S.G. §
2D.1(e)(2)(B)(i). The special instructions alternatively provide
that a 2-point minor participant deduction under §3B1.2(b) is
warranted if:
[T]he 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).
U.S.S.G. § 2D1.1(e)(2)(B)(ii).
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Criminal No. 23-125-4 (RAM) 16
If the Defendant qualifies for a mitigating role adjustment,
then additional downward adjustments flow from U.S.S.G. §
2D.1(a)(5) “regardless of whether the defendant receives the
required [mitigating role] adjustment from by direct application
of §3B1.2 or by use of the special instruction in subsection
(e)(2)(B).” See U.S.S.G. § 2D1.1(E)(2)(C) (emphasis added).
III. ANALYSIS
A. Tirado did not perform a low-level drug trafficking function
and does not qualify for a mitigating role adjustment under
the special instructions for application of U.S.S.G. § 3B1.2
to U.S.S.G. § 2D1.1 cases.
Under the special instructions in Section 2D.1(e)(2)(B), the
key question is whether Tirado’s primary function of loading
hundreds of kilograms of cocaine falls within the definition of
being “plainly among the lowest level of drug trafficking
functions,” found in U.S.S.G. § 2D.1.(e)(2)(B)(i). The Court’s
view is no, based on the examples of “lowest level of drug
trafficking functions” that follow, including “courier, running
errands, sending or receiving phone calls or messages, or acting
as lookout.” These roles are defined by their “menial and
peripheral nature.”1 Acosta, 2026 WL 1991722, at *7.
Considering the totality of the circumstances and narrowing
it to its essence, Tirado’s primary function was loading hundreds
1 For a more fulsome discussion of why these roles are substantially similar in
their simplicity and low-level culpability, See Acosta, 2026 WL 1991722, at *7-
*8.
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Criminal No. 23-125-4 (RAM) 17
of kilograms of cocaine for transport. The Court rejects calling
this role undertaken by Tirado in six separate drug smuggling
ventures as akin to the menial, “lowest level” roles mentioned in
the Guidelines. U.S.S.G. § 2D1.1(e)(2)(B)(i); See, e.g., Acosta,
2026 WL 1991722, at *7 (finding that a defendant who loaded and
transported hundreds of kilograms of cocaine was not akin to a
“courier” or other examples of the “lowest level of drug
trafficking functions”).
Likewise, Tirado’s primary function cannot be minimized and
equated to the examples of “another low-level drug trafficking
function” like “distributing controlled substances in user level
quantities for little or no monetary compensation or with a primary
motivation other than profit” to qualify for a 2-point deduction
under the special instruction in U.S.S.G. § 2D1.1(e)(2)(B)(ii).
See Rivas Contreras, 2026 WL 412482, at *3 (holding that U.S.S.G.
§ 2D1.1(e)(2)(B)(i) must be read in harmony with U.S.S.G. §
2D1.1(e)(2)(B)(ii) and thus a defendant under the former special
instruction must be less involved than a defendant under the
latter). Obviously, 467 kilograms of cocaine are not a “user level
quantity.”
The Court’s conclusion that Tirado does not qualify for the
mitigating role under the special instructions to U.S.S.G. § 2D1.1
is bolstered by First Circuit case law under U.S.S.G. § 3B1.2,
which considers the quantity and value of drugs transported as
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Criminal No. 23-125-4 (RAM) 18
factors in assessing the defendant’s role. See, e.g., De la Cruz-
Gutierrez, 881 F.3d at 227 (upholding district court’s inference
that defendant was a person of trust within the drug trafficking
organization due to his participation as a crew member aboard a
small vessel smuggling millions of dollars in cocaine); United
States v. Vargas, 560 F.3d 45, 51 (1st Cir. 2009) (“[T]he large
quantity of drugs hauled by the defendant was a relevant datum in
assessing role in conspiracy.”).
B. Tirado is not less culpable than the average participant under
analysis mandated by Guía-Sendeme and thus does not qualify
for a mitigating role adjustment under the standard U.S.S.G.
§ 3B1.2 analysis.
Similarly, Tirado does not qualify for a mitigating role
adjustment under the standard U.S.S.G. § 3B1.2 analysis mandated
by Guía-Sendeme, 134 F.4th at 620-22.
First, the scope of the conduct for which the Defendant is
being held accountable is the drug smuggling venture that occurred
on March 17, 2023. See id. at 622. This includes activities
undertaken in preparation for that offense, to “compare the
defendant against all likely participants involved with the
shipment.” Id. at 620.
Next, based on the Amended PSR and the safety valve interview
provided by the Government (Docket Nos. 369 and 380-1), the Court
can identify the following participants in this drug-smuggling
event: (a) the supplier of the cocaine; (b) the receiver who would
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Criminal No. 23-125-4 (RAM) 19
take possession of the cocaine; (c) the recruiters known as
“Ronny”, “Potro”, and “Yandriel”; (d) the boat crew; and (e) the
loaders, such as Tirado himself, co-defendant Wilfre Manuel Reyes-
Pimentel, and “Pachango.”
Second, based on the facts provided, the Court views the
continuum of culpability as follows: (a) the supplier of the
cocaine; (b) the receiver who would take possession of the cocaine;
(c) “Ronny”, “Potro”, and “Yandriel” who were recruiters; (d) the
boat crew; and (e) the loaders, such as Tirado himself, co-
defendant Wilfre Manuel Reyes-Pimentel, and “Pachango”.
Third, based on the established continuum, the Court
identifies the boat crew as the average participants.
Fourth, the Court compares Tirado’s role to the average
participant’s role. A defendant must demonstrate as a threshold
matter that they are “substantially less culpable than the average
participant in the criminal activity.” Mendoza-Maisonet, 962 F.3d
at 23 (quoting U.S.S.G. § 3B1.2 cmt. n.3(A)).
Turning to the non-exhaustive list of factors in U.S.S.G.
§ 3B1.2 cmt. n.3(C) to measure Tirado’s culpability against the
average participant, both the boat crew members and the Caliber
occupants, including Tirado, understood that the scope of the
criminal activity they undertook was transportation of a bulk
shipment of cocaine for compensation. See Acosta, 2026 WL 1991722,
at *9 (holding that a loader as well as the boat crew knew the
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Criminal No. 23-125-4 (RAM) 20
scope of the drug smuggling venture). Tirado, like the other co-
conspirators apprehended on March 17, 2023, exercised some
discretion to perform their functions as they were all entrusted
with the same large quantity of highly valuable, illegal cargo,
emphasized further by the fact that this was Tirado’s sixth such
venture. (Docket No. 380 at 9).2 But there is very little evidence
to compare the remaining factors such as participation in planning
the criminal activity, their degree of decision-making authority
or the influence in the exercise of such authority, or the degree
to which they stood to benefit.3 Accordingly, those factors cannot
be used to differentiate between Tirado and the average
participants, much less conclude that he is substantially less
culpable. While the supplier, the receiver, and the recruiters are
more culpable than Tirado, that “does not necessarily mean that
[the defendant’s] participation was minor [or minimal].” De la
Cruz-Gutiérrez, 881 F.3d at 226.
2 The Court can consider evidence from the safety valve interview to assess
Defendant’s contention that he qualifies for a mitigating role. See United
States v. Miller, 151 F.3d 957, 962 (9th Cir. 1998).
3 See Docket No. 380-1 (safety valve interview). In Tirado’s safety valve
interview given on 6/24/2026, Tirado explains more intimate knowledge of the
drug smuggling venture than was previously known. Id. at 3 (explaining that
Tirado had not been completely truthful with the information he had provided in
the first part of the interview). Tirado went on to describe his knowledge of
the roles of various recruiters, fellow loaders, and other members of his past
drug smuggling ventures, and how much he was paid and expected to be paid. Id.
at 3-5. There is no information on how much the boat crew or recruiters were to
earn for their roles. Beyond naming some other members, no new facts were
developed such that the Court can compare the remaining factors.
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Criminal No. 23-125-4 (RAM) 21
All told, Tirado is not less culpable than the average
participant under analysis mandated by Guía-Sendeme and thus does
not qualify for a mitigating role adjustment under the standard
3B1.2 analysis.
IV. CONCLUSION
For the foregoing reasons, the Court DENIES Tirado’s
Objections to the Amended PSR. (Docket No. 379). Defendant’s Total
Offense Level is thus 31 as per the Government’s Response. (Docket
No. 380).
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 13th day of October 2026.
s/Raúl M. Arias-Marxuach_________
UNITED STATES DISTRICT JUDGE
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