US v. Mark Concha (4th Cir. 6/16/17): Factors the Sentencing Judge May NOT Consider under USSG §5K1.1 and 18 U.S.C. §3553(e).

This is an important case for lawyers representing clients on federal drug charges and whose clients have cooperated with the government (so, just about all of us). Concha was a big dawg drug dealer, and when he was busted he cooperated completely and with abandon. He offered very, very substantial assistance, so much so that the Government recommend the judge sentence him at the low end of the Guidelines, and then with an additional 50% off that. Concha’s advisory sentencing range was 168-210 months. But the judge had very serious reservations about this sweet deal. He noted the seriousness of his crimes and the injury to the community caused by them. He noted that the amount of drugs attributed to Concha was “vastly understated.” In the end, the district court judge sentenced him to 126 months, which was 40% below the Guidelines. Concha appealed.

The Court looked at the three avenues by which a cooperating defendant can get his sentence reduced; the Rule 35(b), the §5K1.1, and the §3553(e). Regarding departures under Rule 35(b), the court notes that when making the threshold decision of whether to grant a departure, the district court may consider only factors related to the defendant’s assistance, see US v. Clawson, 650 F.3d 530,537 (4th Cir. 2011), but that the court may take other factors into account when determining the extent of the departure, see US v. Pearce, 191 F.3d 488, 492 (4th Cir. 1999) A court, pursuant to §3553(e) must also only consider assistance-related factors when determining the extent of a departure. See US v. Spinks, 770 F.3d 285, 287 (4th Cir. 2014). So, more discretion on the part of the judge for the Rule 35(b); virtually no discretion with the §5K1.1 or the §3553(e).

In this case, the government sought a sentence reduction under §5K1.1 and 18 U.S.C. §3553(e), but the district court judge considered factors unrelated to Concha’s assistance. Instead, he looked at his culpability in the conspiracy, and referenced the “junk” that Concha was “dumping” on the community. The district court judge therefore abused his discretion, and the Fourth Circuit vacated Concha’s sentence and remanded the case for resentencing.