In U.S. v. Concha, the Court reversed the sentence of a person who cooperated because his sentencing court abused their discretion by considering factors unrelated to his assistance.

Concha was arrested and agreed to cooperate by delivering both real and counterfeit cocaine.  After the delivery, two people were indicted for conspiracy to distribute.  A 5k1.1 motion was filed.

The court granted the government’s 5k1.1 motion but indicated that they were struggling with this because it showed his involvement in these drug crimes.  The court determined that his involvement was “huge” and that other people have been sent to jail for extended periods of time with less culpability.  The court went on to say things like “he’s dumping that crap [here].”

The court noted that his range was 168-210 months and that a 210-month sentence was appropriate.  When determining the factors, the court indicated that the crime was serious and there was damage to the community.  The court also noted that the description of the cooperation showed that he was involved in a much larger conspiracy and that his conduct was in greater magnitude.  The court sentenced him to 126 months, a 40% reduction from the 210 month sentence.  Concha appealed stating that the district court abused their discretion by considering factors unrelated to his cooperation when determining the extent of the departure.

The court noted that the for a 5k1.1 departure, the court can only consider assistance related factors only.  When a court is using 3553(e) to reduce a sentence below a statutory minimum they can only consider assistance-related factors when determining the extent of the departure.

The court noted that the district court considered factors unrelated to assistance when determining the extent of the departure.  The facts that they considered were relevant to the pre-departure sentencing determination and the court properly took those factors into account when selecting the 210-month sentence.  But the court also took them into account when determining the substantial-assistance departure.

The court determined that the district court abused its discretion when considering facts relating to his culpability for the charged conspiracy when determining ow much they would depart from the guidelines’s sentence.

The Fourth Circuit Vacated and Remanded the Sentence.


My office handles matters involving cooperation including matters where people do not get time cuts at all or get less than what is appropriate for the cooperation that they have engaged in.  If you did not receive the amount of time off that you should have for your cooperation then please reach out to my office.  You need an experienced Federal Defense Lawyer who can help fight for your freedom. Because we are good at what we do, we have clients from all over the country to count on us to provide them with competent and reasonably priced services.

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