United States v. Mark Concha
2017 U.S. App. LEXIS 11301
4th Cir.2017Background
- Mark Concha pleaded guilty to conspiracy to distribute at least five kilograms of cocaine after Arkansas police found 43 kg in the trailer he was driving.
- Concha cooperated in a controlled delivery and provided information identifying other participants and stash houses; the government moved for a substantial-assistance reduction under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e).
- The presentence report established an advisory Guidelines range of 168–210 months; the district court adopted the PSR and set a pre-departure sentence of 210 months.
- The government requested a downward departure of roughly 50% based on Concha’s assistance; the district court found Concha had provided substantial assistance but expressed reluctance to grant the full reduction because of Concha’s high culpability and the large drug quantities involved.
- The court ultimately granted a departure and imposed a 126-month sentence (a 40% reduction), but its reasoning referenced Concha’s culpability and the scope of the underlying conspiracy when explaining the departure extent.
Issues
| Issue | Concha's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the district court abused its discretion by considering non-assistance factors when determining the extent of a §5K1.1/§3553(e) departure | District court relied on Concha's culpability and offense magnitude—factors unrelated to assistance—so the extent of the departure was unlawfully influenced | District court properly used offense facts to set the pre-departure sentence; any discussion of culpability did not affect the assistance-based departure decision | Court held the district court abused its discretion: extent of a §5K1.1/§3553(e) departure must be based only on assistance-related factors; vacated and remanded for resentencing |
Key Cases Cited
- United States v. Clawson, 650 F.3d 530 (4th Cir. 2011) (district court may consider only assistance-related factors when making the threshold decision to grant a Rule 35 departure)
- United States v. Davis, 679 F.3d 190 (4th Cir. 2012) (district court may consider other factors when determining extent of a Rule 35 departure)
- United States v. Pearce, 191 F.3d 488 (4th Cir. 1999) (for §5K1.1 departures, any factor considered must relate to the nature, extent, and significance of the defendant's assistance)
- United States v. Spinks, 770 F.3d 285 (4th Cir. 2014) (extent of a §3553(e) departure below a statutory minimum must be based solely on substantial assistance and factors related to that assistance)
- United States v. Hood, 556 F.3d 226 (4th Cir. 2009) (district court determining extent of a §3553(e) departure should look to the §5K1.1(a) assistance factors)
- United States v. Shaw, 313 F.3d 219 (4th Cir. 2002) (appellate review of a downward departure is available when the defendant alleges the district court misapplied the law)