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.