Only Assistance Itself Is Relevant to Guideline-Based Substantial Assistance Departure

US v. Concha: Concha was convicted of conspiracy to distribute cocaine on the basis of 43 kilos of cocaine that were found in his tractor trailer. After his arrest, Concha worked with law enforcement to deliver his cargo, thus leading to the arrest of his co-conspirators. At sentencing, his advisory Guideline range was 168 to 210 months in prison. The Government moved for a departure for substantial assistance, "viewed Concha's assistance very favorably," and asked the court to depart 50% from the bottom of the Guideline range. The district court granted the departure, but balked at the 50% request due to "his involvement in these drug crimes, and it's huge" and a recognition that he was able to provide such valuable assistance precisely because he was so deep in the conspiracy. The district court eventually imposed a sentence of 126 months, a 40% reduction from the top of the advisory Guideline range.

The Fourth Circuit vacated Concha's sentence. Noting that it's review was based on the district court's error of law in giving the departure, not the amount of the departure itself, the court distinguished between assistance departures under Rule 35 and the Guidelines. Under Rule 35, a court may only consider the defendant's assistance in deciding whether to grant a departure, but may consider other factors in determining the extent of the departure. Under the Guidelines, however, the sentencing court may only consider assistance related factors when determining the extent of the departure. In Concha's case, the district court considered factors beyond his assistance in deciding the extent of the departure. Those factors were appropriate for the determination of what the non-departure sentence would have been (top of the Guideline range), but not the extent of a subsequent departure.