Argued: May 10, 2017
from the United States District Court for the Middle District
of North Carolina, at Greensboro. Loretta C. Biggs, District
Bays Shoaf, Jr., Salisbury, North Carolina, for Appellant.
Randall Stuart Galyon, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
Rand, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.
TRAXLER, FLOYD, and HARRIS, Circuit Judges.
and remanded by published opinion.
Traxler wrote the opinion, in which Judge Floyd and Judge
TRAXLER, Circuit Judge:
to a plea agreement, Mark Ulisses Concha pleaded guilty to
conspiracy to distribute at least five kilos of cocaine. The
district court sentenced Concha to 210 months'
imprisonment, which the court then reduced to 126 months
after granting the government's motion for a downward
departure under U.S.S.G. § 5K1.1 and 18 U.S.C. §
3553(e) based on Concha's substantial assistance. Concha
appeals, arguing that the district court abused its
discretion by considering factors unrelated to his assistance
when imposing sentence. We agree that the district court
erred, and we therefore vacate and remand for resentencing.
was arrested in 2014 after Arkansas State Police found 43
kilos of cocaine hidden in the tractor trailer he was
driving. After his arrest, Concha agreed to cooperate with
law enforcement in a controlled delivery of the drugs in
North Carolina. After a series of monitored phone calls
between Concha and his contacts, Concha delivered six kilos
of cocaine from the original shipment and 37 kilos of
counterfeit cocaine to Armando Perez at the meeting point
near High Point, North Carolina. Officers observed the
transaction, followed Concha after the delivery, and tracked
the whereabouts of the drugs through a GPS unit ...