Downward Departure Upheld: Recent Opinion

Departures ( 5K )

United States v. Pepper
2007 U.S. App. LEXIS 11885 (8th Cir. 2007)

40% downward departure for substantial
assistance upheld

The defendant pled guilty to conspiracy to distribute more than 500 grams of methamphetamine. He qualified for the safety valve and his sentencing range was calculated at 97 to 121 months. Based on his assistance, the government recommended a 15% downward departure. The district court departed downward 75% and imposed a sentence of 24 months. the Eighth Circuit reversed, finding the district court erred by considering factors unrelated to the defendant’s assistance in granting the 5K1.1 motion. On remand, the district court found the defendant’s assistance merited a 40% downward departure, which reduced the bottom of the advisory sentencing range to 58 months. Then, under 18 U.S.C. 3553(a), the district court granted a downward variance of 59%, based on the defendant’s post-sentencing rehabilitation, lack of “violent” history, and, to a lesser degree, on the need to avoid unwarranted sentencing disparity among co-defendants. The district court again imposed a sentence of 24 months and the government appealed again, arguing that the 40% departure was excessive given the “pedestrian nature” of the defendant’s assistance. The government did however acknowledge that the defendant was the main witness against one of tow co-defendants. The court upheld the departure, noting that “although there is no bright line percentage or mathematical formula to determine when the extent of a substantial assistance departure becomes unreasonable, some proportionality must exist between the defendant’s assistance and the extent of the departure;’ for example, an extraordinary departure must be supported by extraordinary departure must be supported by extraordinary circumstances. We believe reasonable proportionality exists here between [the defendan’ts] assistance and the downward departure. The district court properly identified only assistance-related factors and noted, although [the defendnat’s] assistance was ‘pedestrian or average,’ it was timely, truthful, honest, helpful, and important.” The district court considered the 5K.1 factors and found the assistance was worth more than the recommended 15% downward departure. “Although we believe it is a close call, we cannot say the district court abused its discretion by the extent of the 5K.1 departure.”

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