     Case: 14-31405     Document: 00513320169   Page: 1   Date Filed: 12/23/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                      No. 14-31405 consolidated w/ 14-31407     United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                                               December 23, 2015
UNITED STATES OF AMERICA,                                         Lyle W. Cayce
                                                                       Clerk
             Plaintiff - Appellee

v.

MARK HEBERT,

             Defendant - Appellant



                Appeals from the United States District Court
                    for the Eastern District of Louisiana


Before STEWART, Chief Judge, KING and HIGGINSON, Circuit Judges.
KING, Circuit Judge:
      Defendant–Appellant Mark Hebert was sentenced by the district court
to a term of 92 years of imprisonment after pleading guilty to a series of counts
involving bank fraud. The district court imposed the sentence following a
detailed four-day hearing where it found that Hebert had committed second
degree murder in connection with the bank fraud counts. Hebert appeals his
sentence, arguing that the evidence before the district court was insufficient to
prove second degree murder, that the district court improperly increased his
sentence under the Federal Sentencing Guidelines, and that his sentence is
unconstitutional under the Fifth, Sixth, and Eighth Amendments.                        We
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                                No. 14-31405
conclude that Hebert’s evidentiary, statutory, and constitutional challenges
are without merit. Accordingly, we AFFIRM the district court’s sentence.
              I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Original Crime
      The case before us stems from a series of fraudulent activities committed
in 2007 by Defendant–Appellant Mark Hebert. Until late 2007, Hebert was a
deputy sheriff employed by the Jefferson Parish Sheriff’s Office in Louisiana.
In the early morning hours of August 2, 2007, Hebert responded, in his official
capacity, to a one-car accident involving Albert Bloch in Metairie, Louisiana.
Emergency personnel were at the scene of the accident and gave Hebert, the
lead law enforcement investigator at the scene, Bloch’s wallet and its contents
to file as evidence according to standard police protocol. Bloch was admitted
to a hospital following the accident. But Hebert, rather than filing Bloch’s
items as evidence, began using Bloch’s information, checks, and debit card to
make a series of purchases and withdrawals in Bloch’s name. On the day of
the accident, August 2, Hebert purchased two global positioning system units
with Bloch’s debit card. Then from August 2 to August 9, 2007, Hebert used
the debit card to make cash withdrawals totaling $2,634.60 and purchases
totaling $7,627.12. The debit card was also used to move $16,000 from Bloch’s
savings account to his checking account during that same period. Following
his hospitalization, Bloch reported the fraud to his bank, Chase Bank, and a
fraud restriction was placed on the card, causing the bank to decline two
further attempted cash withdrawals by Hebert on August 10 and August 11,
2007. Despite no longer being able to use Bloch’s debit card, Hebert forged
checks drawn on Bloch’s Chase Bank checking account in order to purchase
several thousand dollars’ worth of racing car products from September 17 to
October 3, 2007.


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                                 No. 14-31405
      Chase Bank issued Bloch a replacement debit card, which Bloch used for
his own personal expenses from August 20 until October 1, 2007. During this
period, Bloch frequented a bar, Joe’s Caddy Corner, where he used the
replacement card.    However, Bloch disappeared after last being seen on
October 2, by one of the bartenders at Joe’s Caddy Corner. From October 2,
2007, onwards there were no credible reported sightings of Bloch. Bloch no
longer contacted case workers from an organization, Responsibility House,
that had been providing him with financial assistance. A credit check later
showed no further credit activity involving Bloch after October 2, and Bloch
failed to refill medications he needed for his chronic obstructive pulmonary
disease. Bloch’s car, a 1995 Volvo sedan, was later discovered parked in a
“secluded parking lot” near Bloch’s apartment and Joe’s Caddy Corner with its
license plate removed and its vehicle identification number covered up.
      Around the time of Bloch’s disappearance, Hebert obtained Bloch’s
replacement debit card and began using it for withdrawals and purchases. On
October 3 and October 4, 2007, Hebert used the replacement card to make cash
withdrawals totaling $405. Hebert also initiated a telephone transfer that
“zeroed out” Bloch’s savings account. On October 3, 2007, a Chase Bank
employee refused to cash a forged check on Bloch’s behalf for over $2,600—
presented by Hebert—because the individual attempting to cash the check was
not the same person as depicted on Bloch’s driver’s license. This led to Chase
Bank placing a fraud restriction on Bloch’s accounts. Hebert further attempted
to make cash withdrawals totaling $607 after the fraud restriction was placed
on the card. And on October 5, 2007, an individual from Hebert’s telephone
called Chase Bank and attempted to have the fraud restriction removed.
      Around October 2007, Jefferson Parish detectives launched two parallel
investigations, one investigating Bloch’s disappearance and the other
investigating Hebert in connection with the burglary of a local Infiniti dealer.
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In the course of investigating the Infiniti burglary, detectives began connecting
Hebert to Bloch’s disappearance and discovered in Hebert’s possession: checks
belonging to Bloch, Bloch’s mail and bank correspondence, Bloch’s
identification cards, a key to Bloch’s Volvo, and a television set from Bloch’s
apartment. When confronted with evidence regarding Bloch’s disappearance
by law enforcement officers on November 20, 2007, Hebert claimed that he and
Bloch had become friends after Bloch’s accident and denied using Bloch’s ATM
card. 1 Hebert was not charged in state court for any fraud perpetrated against
Bloch, but he was arrested on December 11, 2007, in relation to a series of
frauds and thefts he had perpetrated against other individuals. Hebert later
pleaded guilty to state charges emanating from this conduct and was
incarcerated in the Louisiana Department of Corrections from May 19, 2008,
to May 12, 2010.
B. Hebert’s Federal Indictment and Ensuing Plea Agreement
      Following Hebert’s release from state prison, federal prosecutors
pursued charges against Hebert in relation to Bloch’s disappearance.                On
March 28, 2013, a grand jury returned a 60-count Indictment charging Hebert
with several different offenses, including deprivation of rights under color of
law, bank fraud, computer fraud, aggravated identity theft, and obstruction of
a federal investigation. Paragraph J of the Indictment alleged, with respect to
each bank fraud count, that Hebert:
      with specific intent, did kill, or participate in conduct that caused
      the death of, Albert Bloch to obtain VISA Replacement ATM/Debit
      Card #8461 and to prevent Albert Bloch from reporting to a law
      enforcement officer the scheme and artifice to defraud, deprivation




      1 At this interview, detectives noticed that Hebert was sweating profusely and
appeared nervous. He also made the statement, regarding Bloch’s disappearance, that: “If
you had a body, I would already be in jail.”
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                                  No. 14-31405
        of rights under color of law, and any other crimes alleged in this
        Indictment.
Hebert pleaded not guilty to all counts at his initial arraignment on April 1,
2013.
        On November 20, 2013, Hebert pleaded guilty pursuant to a plea
agreement on seven counts: one count of deprivation of rights under color of
law, in violation of 18 U.S.C. § 242; five counts of bank fraud, in violation of 18
U.S.C. § 1344; and one count of aggravated identity theft, in violation of 18
U.S.C. § 1028A(a)(1).     With respect to the bank fraud counts, the plea
agreement specifically noted:
        Additionally, the parties understand that the issue of whether the
        defendant is responsible for the death of Albert Bloch and the
        appropriate guideline range is a contested matter that will have to
        be determined by the Court at the sentencing hearing. The
        Defendant understands that the Court will determine sentencing
        factors by a preponderance of the evidence.
Furthermore, the plea agreement memorialized that Hebert “specifically does
not waive, and retains the right to bring a direct appeal of any sentence
imposed.”
        An initial Presentence Investigation Report (PSR), filed on February 14,
2014, calculated an offense level of 22 for sentencing Hebert.          The PSR
calculated a Base Offense Level of 15 for bank fraud pursuant to U.S.S.G.
§ 2B1.1 because the underlying offense was bank fraud with a loss of more than
$30,000 but not more than $70,000. The PSR added that Hebert’s previous
state convictions placed him in criminal history category II so that his criminal
history and offense level set the guideline range of imprisonment at 46–57
months, plus two years running consecutively for the aggravated identity theft
count. As a result, the initial PSR recommended a total of six to seven years
of imprisonment. The initial PSR also noted that the government intended to


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                                 No. 14-31405
present evidence regarding Hebert’s involvement in the death of Albert Bloch
at sentencing and that this evidence could justify an upward variance.
      However, the second, revised PSR, filed on March 21, 2014, calculated
an offense level of 44, based on a Base Offense Level of 43 for first degree
murder pursuant to U.S.S.G. § 2A1.1.       The PSR stated that, because the
underlying offense of bank fraud involved the alleged murder of Albert Bloch,
U.S.S.G. § 2B1.1(c)(3) allowed a cross-reference to U.S.S.G. § 2A.1.1, which
resulted in the increased Base Offense Level. The revised PSR cited Paragraph
J of the Indictment in applying the cross-reference provision. Taking into
account the new Base Offense Level and Hebert’s criminal history, the PSR
recommended life imprisonment under the Federal Sentencing Guidelines,
restricted by the statutory maximums of the counts to which Hebert pleaded
guilty, which amounted to a total of 153 years.
      Following the submission of the revised PSR and before sentencing,
Hebert submitted pre-hearing memoranda arguing that there was insufficient
evidence to prove Bloch’s murder, that adjudication of the murder allegation
by the district court judge would violate his Fifth Amendment due process and
Sixth Amendment jury trial rights, and that it was improper to calculate his
Base Offense Level by cross-referencing U.S.S.G. § 2A1.1.
C. Hebert’s Federal Sentencing
      Beginning on July 21, 2014, the district court held a detailed four-day
evidentiary hearing to determine whether or not Hebert was responsible for
the death of Bloch as charged in the Indictment. During the four-day hearing,
the government proffered evidence supporting its theory that Hebert had
murdered Bloch. The government argued that Bloch had been murdered on or
around October 2, 2007, as, after that date, Bloch no longer patronized his local
bar in Metairie, Bloch no longer contacted his case workers, a credit report
showed no further credit activity by Bloch, and Bloch’s Volvo was later found
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                                      No. 14-31405
abandoned under suspicious circumstances.               The government argued that
Bloch could not have remained alive, despite his disappearance, because he
suffered from chronic obstructive pulmonary disease and needed medications
for the condition, which were not refilled after Bloch’s disappearance. The
government also         presented testimony from Bloch’s               case worker at
Responsibility House stating that Bloch had not shown any suicidal
tendencies, suggesting that he had not killed himself.
       The government then pointed to evidence linking Hebert to Bloch’s
disappearance. By 4:13 p.m. on October 3, 2007, Bloch’s replacement debit
card was in Hebert’s possession, which Hebert used to make a withdrawal in a
town neighboring Metairie. And Hebert would have been in the area of Bloch’s
apartment and neighborhood bar around the time of Bloch’s disappearance as
Hebert worked his normal shift as a traffic officer in Metairie, Louisiana from
10 p.m. on October 2 until 6:00 a.m. on October 3. The government also
provided evidence from the previous state investigation into Bloch’s
disappearance. That evidence showed that Hebert, at one point, had in his
possession Bloch’s checkbook, identification cards, television, replacement
debit card, car keys, and correspondence from Bloch’s bank that was dated
after October 3, 2007. And although Hebert had previously explained that he
had Bloch’s checkbook because he was Bloch’s “friend,” a later search of
cellphone records showed no communication between Hebert and Bloch. In
addition, it was shown that inside Bloch’s abandoned Volvo was a note
detailing a paid security detail at a Coca-Cola bottling plant that was available
only to Jefferson Parish Sheriff’s Office deputies. 2



       2 Bloch was not eligible for the security detail. Hebert was eligible but did not work
that specific security detail; rather, Hebert often worked motorcycle details. An FBI agent
investigating the note found that none of the other deputies that had been in or around
Bloch’s car during the investigation recognized the note.
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                                      No. 14-31405
       Following the four-day hearing, the district court issued its factual
findings on July 29, 2014. The district court first recited the definition of
murder under 18 U.S.C. § 1111 and then summarized the evidence before it.
On the question of Bloch’s disappearance, the district court noted that, since
October 2, 2007, Bloch had no car, no medication, and had not been seen by
anyone since October 2, “despite a remarkably thorough search.” The district
court ultimately found that Bloch “was murdered sometime on the evening of
October 2 or early morning hours of October 3.” Despite two witnesses
testifying that they had seen Bloch following October 2, 2007, the court did not
credit this witness testimony stating that it would require the court “to ignore
common sense, logic, and the overwhelming evidence to the contrary.” 3 The
district court recognized that while “[t]here [was] no body and there [was] no
clear crime scene,” there were “scenarios that the Court believe[d] ma[d]e
sense” as to a finding of murder. According to the court, “under all scenarios
it [was] clear that Mark Hebert killed Albert Bloch.” In particular, the court
pointed to Hebert’s possession of Bloch’s debit card by October 3, 2007, the way
Bloch’s Volvo had been abandoned, and evidence showing that Hebert had
entered Bloch’s apartment following his disappearance. The court concluded
that the government had “proven beyond a preponderance of the evidence that
Mark Hebert murdered Albert Bloch” and “that the evidence show[ed] by clear
and convincing evidence that Mark Hebert’s conduct satisfie[d] the elements
of second degree murder.”
       After the hearing, a third PSR was filed on August 7, 2014, and then a
final revised PSR was filed on September 15, 2014. The final PSR calculated



       3 The court noted that one witness did not know Bloch personally and had testified
that he had only seen “a man who look[ed] similar to Albert Bloch.” The court found that the
other witness was “completely lacking in credibility” as that witness provided inconsistent
and varied statements as to seeing Bloch.
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                                  No. 14-31405
an offense level of 44, based on a Base Offense Level of 38 for second degree
murder pursuant to U.S.S.G. § 2A1.2, once again citing Paragraph J of the
Indictment in applying the cross-reference provision of U.S.S.G. § 2B1.1(c)(3).
The guideline imprisonment range remained restricted by the statutory
maximum so that Hebert could not have been sentenced to any term beyond
153 years. Like the initial PSR, the final PSR noted that an upward variance
might be justified in sentencing Bloch based on evidence at the sentencing
hearing demonstrating that Hebert murdered Bloch.
      On November 10, 2014, the district court held its sentencing hearing. At
this hearing, the court adopted the recommended findings of fact in the PSR
and found that Hebert’s Base Offense Level could be determined by a cross-
reference to U.S.S.G. § 2A1.2.      The court departed downward from the
recommendation of life imprisonment and ultimately sentenced Hebert to 92
years (1,104 months) of imprisonment, followed by three years of supervised
release.    The     court’s   sentence   was   based   on   the   cross-reference
recommendation included in the PSR, but the court noted that “the application
of the cross-reference in the context of a conviction for bank fraud is a matter
of first impression in the Fifth Circuit.” The court further stated “that in the
event it is found that the cross-reference does not apply, [it] would have applied
a substantial upward variance and [Hebert’s] sentence would have been
exactly the same.” Explaining the grounds for the upward variance, the court
stated to Hebert:
      I have no doubt that Mr. Hebert killed Mr. Bloch and disposed of
      his body for his personal financial gain. Mr. Hebert, you used your
      position of trust and authority to satisfy your insatiable desire for
      money and property of other people. For reasons that I will never
      understand, that was not enough. You wanted everything that
      belonged to Albert Bloch, even his life. Mr. Hebert, like many
      parents, I have taught my children from the time they were babies
      that they could rely on and trust police officers. Your violation of

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                                 No. 14-31405
      that sacred trust is unconscionable. This heinous crime is beyond
      comprehension. Accordingly, while [the sentence] appears to be a
      downward variance from the guideline with indeed the cross-
      reference, it would be a considerable upward variance if the cross-
      reference is not applied. So considering the factors in 18 U.S.C. §
      3553 that require the Court to impose a sentence that is sufficient
      but not greater than necessary to comply with its purposes and
      that the Court consider the nature and circumstances of the
      offense and the history and characteristics of the defendant, this
      sentence would reflect the seriousness of the offense, would
      promote respect for the law, and would provide just punishment
      for the offense. It would also protect the public from further crimes
      of the defendant and deter further criminal conduct.
On November 23, 2014, Hebert moved for reconsideration or correction of his
sentence under Federal Rule of Criminal Procedure 35 and the court’s inherent
authority, repeating his pre-hearing arguments and adding an Eighth
Amendment challenge to his 92-year sentence. The district court denied the
motion in orders dated November 24, 2014, and December 19, 2014.              On
December 19, 2014, Hebert filed notices of appeal from the final judgment, the
final amended judgment, the November 24 order, and the December 19 order.
On appeal, Hebert argues that the district court committed the following
errors: the district erred in finding second degree murder on the evidence
before it; the district court improperly increased his sentence by applying a
cross-reference; the district court violated his Fifth and Sixth Amendment
rights by making a finding of second degree murder at sentencing; and the
district court rendered a sentence that is unconstitutionally excessive under
the Eighth Amendment. Hebert preserved the errors for appeal and timely
appealed.
                        II. STANDARD OF REVIEW
      On review of “a district court’s sentencing decision,” our analysis
proceeds “in two steps.” United States v. Robinson, 741 F.3d 588, 598 (5th Cir.
2014). First, we must “ensure that the district court committed no significant
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                                  No. 14-31405
procedural error, such as failing to calculate . . . the Guidelines range, treating
the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a)
factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38,
51 (2007). “Second, if the sentence is procedurally sound or if the procedural
error is harmless, this Court ‘consider[s] the substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard.’” Robinson, 741 F.3d
at 598 (alteration in original) (quoting United States v. Neal, 578 F.3d 270, 273
(5th Cir. 2009)).
      In this two-step review, “[w]e review the district court’s interpretation or
application of the Guidelines de novo and its factual findings for clear error.”
United States v. Trujillo, 502 F.3d 353, 356 (5th Cir. 2007). On review of a
district court’s factual findings, “[w]e ‘will deem the district court’s factual
findings clearly erroneous only if, based on the entire evidence, [we are] left
with the definite and firm conviction that a mistake has been committed.’”
United States v. Valdez, 453 F.3d 252, 262 (5th Cir. 2006) (quoting United
States v. Cabrera, 288 F.3d 163, 168 (5th Cir. 2002)). And “when faced with a
preserved constitutional challenge to the Guidelines’ application, our review is
de novo.” United States v. Preciado–Delacruz, 801 F.3d 508, 511 (5th Cir.
2015), petition for cert. pending, No. 15-7360 (Sept. 15, 2015).
    III. HEBERT’S CHALLENGE TO THE SUFFICIENCY OF THE
               EVIDENCE SUPPORTING HIS SENTENCE
      Hebert first challenges his sentence on evidentiary grounds.              In
particular, Hebert argues that the government failed to prove that he
murdered Bloch by a preponderance of the evidence and that the district court
erred in finding second degree murder as a result. Hebert argues that there is
no DNA or blood evidence indicating that Bloch was killed and points to
witness testimony suggesting that Bloch may still be alive. Moreover, Hebert
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                                      No. 14-31405
argues that the record is devoid of evidence establishing his mental state or
motivations for the murder. At the outset we note that neither party disputes
that Hebert’s 92-year sentence cannot be sustained without a finding of second
degree murder.      The finding of murder was integral to the sentence because
otherwise the district court could not have applied the cross-reference to
U.S.S.G. § 2A1.2 and could not have applied an upward variance. 4                    For the
reasons below, however, we find that the court did not clearly err in making a
finding of second degree murder.
      “Findings of fact for sentencing purposes need only be found by a
preponderance of the evidence.” United States v. Simpson, 741 F.3d 539, 556
(5th Cir. 2014). On appellate review of judicial factfinding at sentencing, we
will not find “clear error if the district court’s finding is plausible in light of the
record as a whole.” United States v. Odom, 694 F.3d 544, 547 (5th Cir. 2012)
(quoting United States v. Cisneros–Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008)). And under clear error review, even “[w]here there are two permissible
views of the evidence, the factfinder’s choice between them cannot be clearly
erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985).
      The district court’s finding of murder is plausible in light of the record
as a whole. The court was careful to recite the elements of murder under
federal law 5 and recounted substantial circumstantial evidence suggesting



      4 The government concedes that the 92-year sentence would not be substantively
reasonable without a finding of murder.
      5 The statute provides, in relevant part:



      (a) Murder is the unlawful killing of a human being with malice aforethought.
      Every murder perpetrated by poison, lying in wait, or any other kind of willful,
      deliberate, malicious, and premeditated killing; or committed in the
      perpetration of, or attempt to perpetrate, any arson, escape, murder,
      kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual
      abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or
      practice of assault or torture against a child or children; or perpetrated from a
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                                         No. 14-31405
that Hebert killed Bloch. The court noted that the last credible sighting of
Bloch was on October 2, 2007, that Hebert was on shift in Metairie around that
time, that Hebert later came into possession of Bloch’s debit card and car keys,
and that Bloch’s vehicle was later found abandoned under suspicious
circumstances.       Moreover, the court reached its ultimate conclusion—that
Hebert murdered Bloch—after a thorough and fact-specific four-day hearing.
       Although Hebert argues that that there were witnesses who reported
seeing Bloch after October 2, the district court addressed that testimony and
did not find it persuasive, particularly in light of Bloch’s failure to return home
or obtain his medication after October 2.                 Moreover, we cannot fault the
factfinder’s choice between “two permissible views of the evidence.”                           Id.
Hebert’s other argument—that the lack of a body, crime scene, or DNA
evidence does not support a murder finding—also fails. Courts have noted that
murder may be found on the basis of circumstantial evidence in the absence of
a body. See Gov’t of V.I. v. Harris, 938 F.2d 401, 408 (3d Cir. 2008) (“Courts
have relied on circumstantial evidence in proving the corpus delicti for first
degree murder in both federal and state court cases . . . .” (footnotes omitted)).
The district court here identified substantial circumstantial evidence, which
convinced the court that, under all scenarios, Hebert killed Bloch sometime
around October 2. Finally, and contrary to Hebert’s assertions otherwise, the
record contains evidence suggesting Hebert’s intent in committing the murder.



       premeditated design unlawfully and maliciously to effect the death of any
       human being other than him who is killed, is murder in the first degree.

       Any other murder is murder in the second degree.

18 U.S.C. § 1111. The term “malice aforethought,” as used in the statute “encompasses three
distinct mental states: (1) intent to kill; (2) intent to do serious bodily injury; and (3) extreme
recklessness and wanton disregard for human life (‘depraved heart’).” Lara v. U.S. Parole
Comm’n, 990 F.2d 839, 841 (5th Cir. 1993).
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                                      No. 14-31405
The district court also found that “Mr. Hebert killed Mr. Bloch and disposed of
his body for his personal financial gain.” On this evidence, we cannot say that
the district court’s finding of second degree murder was “illogical or
implausible.” Anderson, 470 U.S. at 577.
    IV. HEBERT’S GUIDELINES CHALLENGE TO HIS SENTENCE
       Hebert’s primary challenge to his sentence is that the district court erred
in calculating his Base Offense Level under the Guidelines when the court
cross-referenced the guideline in U.S.S.G. § 2A1.2, the second degree murder
guideline. The cross-reference here had the effect of increasing Hebert’s Base
Offense Level to 38 and authorizing a life term of imprisonment under the
Guidelines. Hebert argues that the application of this cross-reference to his
sentence was procedural error for two reasons. First, he argues that U.S.S.G.
§ 2B1.1(c)(3)—the sentencing guideline on bank fraud, which allows for cross-
referencing—only allows cross-references for the “count of conviction,” and
murder was not in Hebert’s counts of conviction because he expressly refused
to admit the additional allegation of murder in Paragraph J of his Indictment.
Second, Hebert argues that U.S.S.G. § 2B1.1(c)(3) only permits cross-
references if “the conduct set forth in the count of conviction establishes an
offense specifically covered by another guideline in Chapter Two (Offense
Conduct).” U.S.S.G. § 2B1.1(c)(3). Because the alleged offense committed by
Hebert is a state law killing and is not specifically covered by another
guideline, Hebert contends that the cross-reference is improper for this
additional reason. 6 Hebert argues that this procedural error was not harmless




       6 Hebert notes that while there is a federal murder statute, this statute applies to
murder “[w]ithin the special maritime and territorial jurisdiction of the United States.” 18
U.S.C. § 1111. He argues that the federal murder statute is the offense covered in U.S.S.G.
§ 2A1.2 and that state murder offenses are not covered by this guideline.
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                                 No. 14-31405
because his sentence, prior to the application of the cross-reference, would have
been only six to seven years of imprisonment.
      As the district court noted, whether a federal bank fraud offense permits
a cross-reference to the second degree murder guideline is an issue of first
impression in the Fifth Circuit. However, we need not reach this issue of first
impression because Hebert’s sentence may be affirmed on the district court’s
alternate basis for the sentence—that the sentence is appropriate as an
upward variance based on Bloch’s murder. See United States v. Bonilla, 524
F.3d 647, 656–59 (5th Cir. 2008) (affirming a non-guideline sentence as an
upward variance despite the lower court’s error in calculating a guideline
sentence when the court imposed the non-guideline sentence as an
alternative); see also United States v. Urbina, 542 F. App’x 398, 399 (5th Cir.
2013) (per curiam) (unpublished) (“We need not consider the propriety of [a]
sentence as an upward departure . . . because the sentence may be affirmed on
the court's alternate basis as an upward variance justified by the 18 U.S.C.
§ 3553(a) sentencing factors.”). Assuming, without holding, that the district
court could have made a procedural error in applying the cross-reference, the
error would be harmless given this alternate basis for the sentence, which was
also premised on Bloch’s murder. See United States v. Groce, 784 F.3d 291,
296 (5th Cir. 2015) (“An erroneous guidelines range calculation is harmless if
‘(1) [ ] the district court would have imposed the same sentence had it not made
the error, and (2) [ ] it would have done so for the same reasons it gave at the
prior sentencing.’” (alterations in original) (quoting United States v. Ibarra–
Luna, 628 F.3d 712, 714 (5th Cir. 2010))).
      We find that the upward variance in Hebert’s sentence is substantively
reasonable. Absent the application of the cross-reference, Hebert’s 92-year
sentence falls within the statutory maximum of 153 years he could have
received but is higher than the six to seven year sentence his initial PSR
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                                        No. 14-31405
calculated based on the Guidelines.             While we have noted that a within-
Guideline sentence is afforded a rebuttable presumption of reasonableness, “a
court may impose a non-Guideline sentence,” otherwise known as an upward
variance, that is “higher . . . than the relevant Guideline Sentence.” United
States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). In imposing an upward
variance, “the district court must more thoroughly articulate its reasons . . .
than when it imposes a sentence under authority of the Sentencing
Guidelines.” Id. “These reasons should be fact-specific and consistent with the
sentencing factors enumerated in [18 U.S.C. §] 3553(a),” 7 and “[t]he farther a


      7   The federal sentencing statute provides, in relevant part:

      (a) Factors to be considered in imposing a sentence.—The court shall impose a
      sentence sufficient, but not greater than necessary, to comply with the
      purposes set forth in paragraph (2) of this subsection. The court, in
      determining the particular sentence to be imposed, shall consider—
             (1) the nature and circumstances of the offense and the history
             and characteristics of the defendant;
             (2) the need for the sentence imposed—
                     (A) to reflect the seriousness of the offense, to
                     promote respect for the law, and to provide just
                     punishment for the offense;
                     (B) to afford adequate deterrence to criminal
                     conduct;
                     (C) to protect the public from further crimes of the
                     defendant; and
                     (D) to provide the defendant with needed
                     educational or vocational training, medical care,
                     or other correctional treatment in the most
                     effective manner;
             (3) the kinds of sentences available;
             (4) the kinds of sentence and the sentencing range established
             for [the applicable category of offense issued by the Sentencing
             Commission];
             ...
             (5) any pertinent policy statement [issued by the Sentencing
             Commission];
             ...
             (6) the need to avoid unwarranted sentence disparities among
             defendants with similar records who have been found guilty of
             similar conduct; and
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                                       No. 14-31405
sentence varies from the applicable Guidelines sentence, ‘the more compelling
the justification based on factors in section 3553(a)’ must be.” Id. (quoting
United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005)). Nonetheless, “a
checklist recitation of the section 3553(a) factors is neither necessary nor
sufficient,” and “[t]he purpose of the district court’s statement of reasons is to
enable the reviewing court to determine whether, as a matter of substance, the
sentencing factors in section 3553(a) support the sentence.”                        Id.   And
“[u]ltimately,    our    ‘review    for    substantive      reasonableness         is   “highly
deferential,” because the sentencing court is in a better position to find facts
and judge their import under the § 3553(a) factors with respect to a particular
defendant.’” United States v. Diehl, 775 F.3d 714, 724 (5th Cir. 2015) (quoting
United States v. Hernandez, 633 F.3d 370, 375 (5th Cir. 2011)); see also id.
(“Even a significant variance from the Guidelines does not constitute an abuse
of discretion if it is ‘commensurate with the individualized, case-specific
reasons provided by the district court.’” (quoting United States v. McElwee, 646
F.3d 328, 338 (5th Cir. 2011))).
       The district court here conducted a fact-specific, four-day hearing where
it heard evidence on Bloch’s murder and Hebert’s background. At sentencing,
the district court stated that it was considering a number of the 18 U.S.C.
§ 3553(a) factors in imposing the upward variance, including the nature and
circumstances of the offense, Hebert’s history and characteristics, the
seriousness of the offense, just punishment, and the need to protect the public.
While the 92-year sentence was a significant upward variance from the
recommendation in the PSR, the court specifically noted that the 18 U.S.C.
§ 3553(a) factors merited an upward variance because Hebert had abused his


              (7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a).
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                                  No. 14-31405
position of trust and authority as a police officer to take Bloch’s life. And this
court as well as other courts have approved of similarly significant upward
variances where appropriate. See, e.g., United States v. Brantley, 537 F.3d 347,
348 (5th Cir. 2008) (affirming a sentence of incarceration 253% higher than the
top of the Guidelines range); United States v. Smith, 417 F.3d 483, 492–93 (5th
Cir. 2005) (affirming a sentence of incarceration nearly 300% higher than the
top of the Guidelines range); see also United States v. Sebolt, 598 F. App’x 159,
161–62 (4th Cir. 2015) (per curiam) (unpublished) (affirming an upward
variance to life imprisonment following a conviction for advertising child
pornography). In light of our deferential review and the thorough findings
made by the district court, we cannot say that the district court abused its
discretion and imposed a substantively unreasonable sentence when it
imposed the upward variance of 92 years based on Bloch’s murder.
 V. HEBERT’S FIFTH AND SIXTH AMENDMENT CHALLENGES TO
                                HIS SENTENCE
      Hebert’s primary constitutional challenge to his sentence is that it
violates the Due Process Clause of the Fifth Amendment and his jury trial right
under the Sixth Amendment. Hebert argues that the district court engaged in
improper factfinding that increased his sentence when the court, rather than
a jury, found that Hebert murdered Bloch. While Hebert does not claim that
all judicial factfinding at sentencing is improper, Hebert claims that the fact of
murder found by the district court is a fact “that the law makes essential to his
punishment.” United States v. Booker, 543 U.S. 220, 232 (2005). This is
because   Hebert’s    92-year   sentence    would   have    been   substantively
unreasonable under the post-Booker sentencing regime absent a judicial
finding of murder. Hebert then cites to concurrences from Supreme Court
opinions and dissents from denials of certiorari suggesting that judicial
factfinding violates a defendant’s constitutional right to a jury trial where the
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                                    No. 14-31405
factfinding renders reasonable an otherwise substantively unreasonable
sentence. See, e.g., Jones v. United States, 135 S. Ct. 8 (2014) (Scalia, J.,
dissenting from denial of certiorari); Marlowe v. United States, 555 U.S. 963
(2008) (Scalia, J., dissenting from denial of certiorari); Rita v. United States,
551 U.S. 338, 374 (2007) (Scalia, J., concurring) (“There will inevitably be some
constitutional violations under a system of substantive reasonableness review,
because there will be some sentences that will be upheld as reasonable only
because of the existence of judge-found facts.”). Hebert argues further that the
district court’s judicial factfinding effectively increased his mandatory
minimum sentence in violation of Alleyne v. United States, 133 S. Ct. 2151
(2013), 8 because the federal sentencing statute, 18 U.S.C. § 3553(a) requires a
judge to impose a “sufficient” sentence and his 92-year sentence would not have
been sufficient absent the judicial factfinding of murder.            See id. at 2163
(“[F]acts that increase mandatory minimum sentences must be submitted to
the jury.”).
      Hebert’s Fifth and Sixth Amendment challenges are foreclosed by our
precedent, however, because we have held that courts can engage in judicial
factfinding where the defendant’s sentence ultimately falls within the
statutory maximum term. Following Booker, we noted that “[t]he sentencing
judge is [still] entitled to find by a preponderance of the evidence all the facts
relevant to the determination of a Guideline sentencing range and all facts
relevant to the determination of a non-Guidelines sentence.” United States v.
Mares, 402 F.3d 511, 519 (5th Cir. 2005).            And in Hernandez our circuit
“foreclosed as-applied Sixth Amendment challenges to sentences within the
statutory maximum that are reasonable only if based on judge-found facts.”


      8 In Alleyne, the Supreme Court held “that any fact that increases the mandatory
minimum [sentence] is an ‘element’ that must be submitted to the jury” and must be “found
beyond a reasonable doubt.” Alleyne, 133 S. Ct. at 2155, 2163.
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                                         No. 14-31405
633 F.3d at 374. We added that a “within-guidelines and above-guidelines
sentence [imposed within the statutory maximum can be] reasonable solely
based on judge-found facts.” Id. 9 As a result, the judicial factfinding that made
Hebert’s 92-year sentence substantively reasonable does not violate the Fifth
and Sixth Amendments because his sentence was ultimately within the 153-
year statutory maximum he could have received for the seven counts to which
he pleaded guilty. 10
       Hebert’s Alleyne challenge also fails under our precedent. As we held in
United States v. Tuma, 738 F.3d 681 (5th Cir. 2013), “[t]he Alleyne decision
applies only to facts that increase a statutory mandatory minimum sentence,”
so that judicial factfinding at sentencing does not pose an Alleyne problem
where a defendant’s sentence “d[oes] not expose him to a mandatory minimum
sentence.”      Id. at 693.      Hebert does not point to any of his underlying
convictions in arguing that the court’s factfinding has increased his mandatory
minimum sentence.           Instead, Hebert’s argues that any sentence must be
“sufficient” under 18 U.S.C. § 3553(a), the federal sentencing statute, and that
any judicial factfinding making the sentence “sufficient” effectively increases
the mandatory minimum. But 18 U.S.C. § 3553(a) only provides a number of
sentencing factors for courts to consider and imposes no mandatory
minimum. 11        Therefore, Hebert fails to demonstrate that the judicial


       9    Our precedent, in this respect, comports with the Supreme Court’s holding in
Apprendi v. New Jersey, 530 U.S. 466 (2000), that “other than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490.
         10 Hebert’s citations to non-binding concurrences and dissents from denial of certiorari

have no bearing on our analysis. See, e.g., Am. Airlines, Inc. v. Dep’t of Transp., 202 F.3d
788, 802 n.10 (5th Cir. 2000) (“We note in passing that . . . a denial of petition for certiorari .
. . is not binding authority.”).
         11 Indeed, if Hebert were correct that 18 U.S.C. § 3553(a) provided a mandatory

minimum, then essentially any judicial factfinding at sentencing would pose an Alleyne
problem. This cannot be so given that the Alleyne Court was careful to note: “Our ruling . . .
does not mean that any fact that influences judicial discretion must be found by a jury. We
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                                      No. 14-31405
factfinding of murder violates his due process right and constitutional right to
a jury trial.
      VI. HEBERT’S EIGHTH AMENDMENT CHALLENGE TO HIS
                                      SENTENCE
       Hebert’s final challenge to his sentence is that his 92-year term is a cruel
and unusual punishment that violates the Eighth Amendment because the
term is an excessive sanction that is grossly disproportionate to the underlying
crime. Hebert’s Eighth Amendment challenge wades partly into his other
arguments against his sentence.            He argues that his sentence is grossly
disproportionate because he was convicted of violating three federal statutes,
but his sentence was driven by a finding of murder, which was “a sentencing
factor outside the facts of his conviction.”
       We have recognized that the Eighth Amendment “preclude[s] a sentence
that is greatly disproportionate to the offense, because such sentences are
‘cruel and unusual.’” McGruder v. Puckett, 954 F.2d 313, 315 (5th Cir. 1992).
Following this principle, in Eighth Amendment challenges, we “initially make
a threshold comparison of the gravity of [the defendant’s] offenses against the
severity of [the defendant’s] sentence.”          Id. at 316.     If we infer from this
comparison “that the sentence is grossly disproportionate to the offense,” then
we “compare the sentence received to (1) sentences for similar crimes in the
same jurisdiction and (2) sentences for the same crime in other jurisdictions.”
Id. In determining whether a sentence is grossly disproportionate this court
has frequently used the Supreme Court’s decision in Rummel v. Estelle, 445
U.S. 263 (1980), as a benchmark. See, e.g., United States v. Woods, 576 F. App’x
309, 309 (5th Cir. 2014) (per curiam) (unpublished); United States v. Gonzales,



have long recognized that broad sentencing discretion, informed by judicial factfinding, does
not violate the Sixth Amendment.” Alleyne, 133 S. Ct. at 2163.
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                                       No. 14-31405
121 F.3d 928, 943–44 (5th Cir. 1997), overruled on other grounds by United
States v. O’Brien, 560 U.S. 218 (2010). In Rummel, the Supreme Court upheld
a mandatory life sentence under a Texas recidivist statute for a defendant
convicted of three separate non-violent felony offenses, the last of which was a
felony offense of obtaining $120.75 under false pretenses. Rummel, 445 U.S.
at 284–85.
       In light of this framework, we have noted that “[o]ur review of Eighth
Amendment challenges is narrow.” United States v. Parker, 505 F.3d 323, 330
(5th Cir. 2007). This is because “[o]n review . . . this court does not ‘substitute
its judgment for that of the legislature nor of the sentencing court as to the
appropriateness of a particular sentence; it should decide only if the sentence
is within the constitutional limitations.’” United States v. Thomas, 627 F.3d
146, 160 (5th Cir. 2010) (quoting United States v. Harris, 566 F.3d 422, 436
(5th Cir. 2009)).      As a result, “[w]e have previously recognized, following
guidance from the Supreme Court, that successful Eighth Amendment
challenges to prison-term lengths will be rare.”               Harris, 566 F.3d at 436
(alteration in original) (quoting United States v. Looney, 532 F.3d 392, 396 (5th
Cir. 2008)).
       When compared to the sentence in Rummel, Hebert’s 92-year term is not
grossly disproportionate. Hebert’s sentence is, in fact, more proportionate to
his underlying offenses than the sentence was in Rummel. Like the defendant
in Rummel, Hebert’s 92-year sentence is the functional equivalent of life
imprisonment. But Hebert’s offense here is graver as Hebert murdered Bloch
and committed identity theft and a series of bank frauds while abusing his
authority as a sheriff’s deputy. 12 See United States v. Rogers, 551 F. App’x 174,



        Although Hebert suggests that there is an Eighth Amendment problem with Bloch’s
       12

murder acting as the basis for Hebert’s sentence, he does not identify any law to support this
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                                       No. 14-31405
176 (5th Cir. 2014) (per curiam) (unpublished) (finding a sentence was not
grossly disproportionate because “[t]he gravity of [the defendant’s] offense
[was] greater, and the sentence less severe, than in Rummel”); see also Looney,
532 F.3d at 396–97 (finding that a 548-month sentence for non-violent drug
and gun offenses, which was the functional equivalent of a life sentence for the
defendant, was not grossly disproportionate).                 Moreover, Hebert’s 92-year
sentence was within the statutory maximum of 153 years he could have
received for the crimes to which he pleaded guilty. We have previously upheld
sentences under the Eighth Amendment, like Hebert’s, that were the result of
upward variances but still came within statutory limits. See United States v.
Forester, 557 F. App’x 380, 381 (5th Cir. 2014) (per curiam) (unpublished)
(“[W]e are unpersuaded that [the defendant’s] sentence of 81 months for a
fraud    crime    with    a maximum          penalty     of    ten   years    was    ‘grossly
disproportionate.’”). 13 In light of the following and given our narrow review of
Eighth Amendment proportionality challenges, we find that Hebert’s sentence
is not grossly disproportionate under the Eighth Amendment.
                                  VII. CONCLUSION
        For the foregoing reasons, we AFFIRM the sentencing decision of the
district court.




point. As we note above, there are no other constitutional or statutory issues with the court’s
consideration of Bloch’s murder in determining Hebert’s 92-year sentence.
       13 In this context, a sister circuit has noted that “[i]n general, a sentence within the

limits imposed by statute is neither excessive nor cruel and unusual under the Eighth
Amendment.” United States v. Delacruz–Soto, 414 F.3d 1158, 1168 (10th Cir. 2005).
                                              23
