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United States v. Concha

United States Court of Appeals, Fourth Circuit

June 26, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
MARK ULISSES CONCHA, Defendant-Appellant.

          Argued: May 10, 2017

         Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Loretta C. Biggs, District Judge. (1:15-cr-00141-LCB-3)

         ARGUED:

          Milton Bays Shoaf, Jr., Salisbury, North Carolina, for Appellant.

          Randall Stuart Galyon, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

         ON BRIEF:

          Ripley Rand, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

          Before TRAXLER, FLOYD, and HARRIS, Circuit Judges.

         Vacated and remanded by published opinion.

         Judge Traxler wrote the opinion, in which Judge Floyd and Judge Harris joined.

          TRAXLER, Circuit Judge:

         Pursuant 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.

         I.

         Concha 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 ...


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