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May 23, 2006

Substantial discussions of substantial assistance

Two recent rulings from the Fifth and DC Circuits have extended discussions of reductions based on substantial assistance under the federal sentencing guidelines.  In US v. Desselle, No. 05-30401 (5th Cir. May 22, 2006) (available here), the government objected to the sizable sentence reduction the defendant received from the district court based on his cooperation, whereas in In re: Sealed Case, No. 04-3015 (D.C. Cir. May 23, 2006) (available here), the defendant complained that did not receive a sufficient reduction for his cooperation.

Regular followers of circuit sentencing jurisprudence will not be surprised to learn that the government prevails in both cases: the Fifth Circuit reverses the district court's decision to grant a sizable reduction for substantial assistance in Desselle, whereas the DC Circuit affirms the district court's decision to grant a spartan reduction for substantial assistance in Sealed Case.  Both opinions are interesting reads for anyone dealing with cooperation issues and 5K1.1, though I find Desselle a bit troubling for its failure to integrate post-Booker realities into its analysis. 

The district court in Desselle addressed 3553(a) factors at some length to justify the sentence imposed, but the Fifth Circuit panel reverses because of the district court's failure to discuss expressly the factors listed in 5K1.1.  Beyond the fact that the provisions of 5k1.1 are now only advisory, it would seem the district court could (and perhaps should and will?) now impose the same sentence upon remand simply by explaining that part of the reduction was due to cooperation and part was due to 3553(a) factors.  Put another way, in light of Booker, the Desselle court might have readily decided that any error below was harmless, but instead it gives the government another bite at the harsh sentencing apple.

May 23, 2006 at 11:28 AM | Permalink


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Desselle assumed that he could provide substantial assistance in measures he could control and receive the benefit of 5K1.1 by supplying redacted statements, which undoubtedly left out major portions of his involvement in the drug business. The district court judge considered Desselle’s age and medical condition in fashioning a sentence of 87 months, a two-thirds reduction from the Guidelines 262 month lower range sentence.
What happened to Desselle is not exceptional, most snitches have family and friends; those they seek to protect and therefore try to limit their testimony. But if you have sold your soul in making a deal, the devil wants his due. Desselle will probably die in prison before he could serve the 87 months, but the devil wants to be sure and seeks a 262 month sentence for the 57 year old funeral director, who luckily has an insiders discount for burial as he forfeited everything; his money, his integrity and now his life.

Posted by: Barry Ward | May 23, 2006 11:52:34 AM

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