     Case: 17-30298    Document: 00514357607       Page: 1   Date Filed: 02/22/2018




                      REVISED February 22, 2018

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals

                                    No. 17-30298
                                                                          Fifth Circuit

                                                                        FILED
                                                                 February 5, 2018

UNITED STATES OF AMERICA,                                          Lyle W. Cayce
                                                                        Clerk
             Plaintiff - Appellee

v.

BRET BROUSSARD,

             Defendant - Appellant




                 Appeal from the United States District Court
                    for the Western District of Louisiana


Before REAVLEY, ELROD, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      Bret Broussard pled guilty to violating 18 U.S.C. § 242, which is the
offense of depriving another of his rights while acting under color of law.
Broussard, while serving as a lieutenant in a Louisiana Sheriff’s Office, had
failed to intervene while a prisoner in a parish jail was beaten by other officers.
On appeal, Broussard argues that his guilty plea was invalid and that his
sentence was procedurally and substantively unreasonable. We AFFIRM.
    Case: 17-30298     Document: 00514357607     Page: 2   Date Filed: 02/22/2018



                                  No. 17-30298
              FACTUAL AND PROCEDURAL BACKGROUND
      In April 2011, Byron Lasalle used a baton to beat a handcuffed and
compliant inmate in the chapel of the Iberia Parish Jail in New Iberia,
Louisiana. Broussard outranked Lasalle and the other deputies in the chapel
and knew he had a duty to intervene. Yet, Broussard stood silent in the chapel
as Lasalle beat, kicked, and punched the inmate, S.S., for about ten minutes.
Among the acts of brutality Broussard silently witnessed was Lasalle’s placing
one end of the baton between his legs and the other end into S.S.’s mouth,
forcing S.S. to mimic fellatio. Once S.S. started choking from the baton in his
mouth, Broussard left. Broussard never intervened in this violence against the
inmate.
      In the past, Broussard’s unit brought at least five inmates into the chapel
and beat them in retaliation for misconduct. The officers purposefully selected
the chapel for beating inmates because there were no cameras there to
document the abuse.       This abuse occurred regularly and was primarily
perpetrated by Broussard’s unit, the narcotics unit. The officers were told by
superiors to “take care” of inmates, which Broussard understood to mean
taking the inmates to the chapel and beating them.
      In February 2016, after a federal investigation into violations committed
by officers at the Iberia Parish Jail, Broussard pled guilty to a bill of
information for depriving the rights of prisoners under color of law. The bill of
information was authorized by the United States Attorney for the Western
District of Louisiana and by the Principal Deputy Assistant Attorney General
of the Civil Rights Division. It was signed by an Assistant United States
Attorney and two attorneys from the Department of Justice Civil Rights
Division. In connection with these offenses, 12 employees of the Iberia Parish
Sherriff’s Office were charged with civil rights abuses. Ten officers pled guilty,
including Broussard. In exchange for his plea, Broussard agreed to cooperate
                                        2
    Case: 17-30298    Document: 00514357607     Page: 3   Date Filed: 02/22/2018



                                 No. 17-30298
with the Government as a witness in a case against Sheriff Louis Ackal for
similar federal offenses.
      In February 2017, Broussard moved to dismiss the case and vacate his
guilty plea, arguing that the district court lacked jurisdiction to hear the case
because the prosecution was not properly authorized. The district court denied
the motion. It held that the issue was likely waived, and even if not waived,
the prosecution was properly authorized by the United States Attorney for the
Western District of Louisiana.
      In March 2017, the district court sentenced Broussard. Broussard’s
offense level was calculated under the United States Sentencing Guidelines as
26, and his criminal history category was I. The district court considered other
sentencing factors, such as that Broussard is married and a father to four sons,
including a special-needs son. The Government filed a Section 5K1.1 motion,
asking the district court for a downward departure from the 63–78 month
imprisonment range because Broussard had cooperated as a witness against
Sheriff Ackal. At the hearing, the district court stated that it had considered
all of these factors and sentenced Broussard to serve a term of 54 months’
imprisonment and three years of supervised release.
      Broussard was sentenced alongside 6 co-defendants who had all pled
guilty: Robert Burns, Jeremy Hatley, Jason Comeaux, David Hines, Wade
Bergeron, and Byron Lasalle.       Burns received a sentence of 6 months’
imprisonment for one count of violating Section 242 by failing to prevent an
assault. Hatley received a sentence of 6 months’ imprisonment for one count
of violating Section 242 by failing to prevent an assault and a consecutive 30
months’ imprisonment for one count of making false statements. Comeaux
received a sentence of 30 months’ imprisonment for one count of conspiracy to
obstruct; 40 months’ imprisonment for violating Section 242; and 40 months’
imprisonment for one count of conspiracy to injure or oppress with all
                                       3
     Case: 17-30298   Document: 00514357607     Page: 4   Date Filed: 02/22/2018



                                 No. 17-30298
sentences to run concurrently.     Hines received a sentence of 40 months’
imprisonment for one count of violating Section 242 by assaulting a prisoner.
Bergeron received a sentence of 48 months’ imprisonment for one count of
violating Section 242 by assaulting a prisoner. Lasalle received a sentence of
54 months’ imprisonment each on two counts of violating Section 242 by
assaulting two prisoners, including S.S., and 54 months on one count of
conspiracy to injure or oppress with all sentences to run concurrently.
Broussard timely appealed.


                                DISCUSSION
      Broussard raises two points of error on appeal. First, he argues that his
guilty plea was void ab initio because the attorneys pressing charges lacked
authority to prosecute. Second, he argues that his sentence was procedurally
and substantively unreasonable on three grounds: his offense level was
improperly calculated, his sentencing hearing was improperly conducted, and
his sentence was unreasonably disproportionate to his offense.


I.    Validity of Broussard’s guilty plea
      We review de novo the validity of a guilty plea. United States v.
Hernandez, 234 F.3d 252, 254 (5th Cir. 2000). Broussard argues that his
conviction was void because the attorneys pressing charges and signing the
indictment lacked the authority to prosecute. By entering a knowing and
voluntary guilty plea, a defendant waives all non-jurisdictional defects in the
prior proceedings. United States v. Bell, 966 F.2d 914, 915 (5th Cir. 1992). A
jurisdictional defect raises questions about the court’s power to hear the case,
United States v. Scruggs, 691 F.3d 660, 666 (5th Cir. 2012), not the
government’s power to prosecute the case, see United States v. Cotton, 535 U.S.
625, 630 (2002).
                                       4
      Case: 17-30298   Document: 00514357607      Page: 5   Date Filed: 02/22/2018



                                  No. 17-30298
       Broussard’s argument about the validity of his guilty plea is unavailing
because he raises a non-jurisdictional question about the Government’s
authority to prosecute. Broussard waived any defect in the indictment when
he pled guilty, and thus we do not reach his argument under the Federal
Vacancy Reform Act or the Government’s argument that the United States
Attorney had independent authority to prosecute.


II.    Calculation of Broussard’s offense level
       The standard of review is de novo on a district court’s interpretation or
application of the Sentencing Guidelines; factual findings are reviewed for
clear error. United States v. Robinson, 741 F.3d 588, 598–99 (5th Cir. 2014).
       Broussard argues that the district court erroneously used aggravated
assault, which has an offense level of 14, as his base offense.           Instead,
Broussard’s base offense should have been “otherwise,” which has a base
offense level of six, because his wrongdoing was failing to intervene, not
aggravated assault. Next, Broussard argues that the 15-point enhancement
was wrong.     Broussard received the following enhancements: four points
because the assault was with a deadly weapon; three points because the inmate
sustained injuries; six points because he was a law enforcement officer; and
two points because the inmate was physically restrained during the assault.
While he concedes the six-point enhancement for being a law enforcement
officer is valid, Broussard argues that the other nine enhancement points do
not apply to his crime of failing to intervene. Last, Broussard argues that the
district court erroneously failed to reduce his offense level by four points as a
“minimal” participant or by two points as a “minor” participant because he
merely observed the assault on S.S.
       In response, the Government argues that there is no distinction in
criminal liability between an actor who willfully assaults an inmate and an
                                        5
    Case: 17-30298     Document: 00514357607       Page: 6   Date Filed: 02/22/2018



                                    No. 17-30298
actor who willfully fails to intervene in the assault. In both, the state actor is
willfully depriving the inmate of his right to protection, and Section 242
prohibits the willful deprivation of rights. 18 U.S.C. § 242. Furthermore,
regardless of criminal liability for aggravated assault, the Government argues
that Broussard is accountable under the Guidelines for the aggravated assault
of S.S. It is undisputed that Lasalle committed an aggravated assault.
      First, Broussard is criminally liable for the aggravated assault. An
inmate or pretrial detainee has a right to be free from lawless violence, and
officers have a duty to protect against such violence: “[W]hen the State takes a
person into its custody and holds him there against his will, the Constitution
imposes upon it a corresponding duty to assume some responsibility for his
safety and general well-being.” DeShaney v. Winnebago Cnty. Dep’t of Soc.
Servs., 489 U.S. 189, 199–200 (1989). A law enforcement officer may be held
liable under Section 242 for the substantive offense if the evidence shows
awareness of a constitutional violation and no effort to prevent the violation.
See United States v. McKenzie, 768 F.2d 602, 605–06 (5th Cir. 1985).
      Broussard relies on a different precedent where we held that law
enforcement officers cannot be held liable simply because a detainee is abused
while in custody; the law enforcement officer must willfully deprive a detainee
of his rights. Lynch v. United States, 189 F.2d 476, 480 (5th Cir. 1951).
Broussard argues he should not be liable for aggravated assault because there
is “no evidence of [Broussard’s having] a willful intention to deprive S.S. of his
civil rights.” The facts are against him. Broussard pled guilty to Count I,
which states that “Broussard, while acting under color of law and while aided
and abetted by others, willfully deprived S.S., . . . of the right . . . to be free
from the use of excessive force.”
      Second, Broussard is also accountable for the substantive offense.
Section 1B1.3, which provides the general application principles for the
                                         6
    Case: 17-30298     Document: 00514357607     Page: 7   Date Filed: 02/22/2018



                                  No. 17-30298
Sentencing Guidelines, outlines the process for determining the base offense
level when more than one base offense level could apply. If more than one base
offense level could apply, the court should determine the base offense level
based on all of the “acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the defendant.” U.S.S.G.
§ 1B1.3(a)(1)(A). If the case involved “jointly undertaken criminal activity,”
then the defendant is accountable for “all acts and omissions of others that
were – (i) within the scope of the jointly undertaken criminal activity, (ii) in
furtherance of that criminal activity, and (iii) reasonably foreseeable in
connection with that criminal activity.”     § 1B1.3(a)(1)(B).    The Guidelines
comment that “the focus is on the specific acts and omissions for which the
defendant is to be held accountable in determining the applicable guideline
range, rather than on whether the defendant is criminally liable for an offense
as a principal, accomplice, or conspirator.” § 1B1.3. cmt. n.1.
      Part H of the Guidelines, which applies to offenses involving individual
rights, instructs the sentencing court to apply the greatest base offense level
from among the following options: “(1) the offense level from the offense
guideline applicable to any underlying offense; (2) 12, if the offense involved
two or more participants; (3) 10, if the offense involved (A) the use or threat of
force against a person; or (B) property damage or the threat of property
damage; or (4) 6, otherwise.” § 2H1.1. The base offense level for aggravated
assault is 14. § 2A2.2.
      Broussard engaged in a criminal civil rights violation alongside multiple
other deputies. In his PSR statement, Broussard admitted his knowledge of
the violence committed against inmates by his squad, the narcotics unit. It is
also undisputed that the underlying crime committed against S.S. was
aggravated assault.       This aggravated assault was within the scope, in
furtherance of, and reasonably foreseeable, given that this group of deputies
                                        7
    Case: 17-30298    Document: 00514357607        Page: 8   Date Filed: 02/22/2018



                                    No. 17-30298
had committed multiple such violations in the past. In the language of the
Guidelines, Broussard was accountable for his “omission” in failing to protect
S.S. from the aggravated assault committed by Broussard’s criminal cohorts.
§ 1B1.3(a)(1)(B). Thus, the district court correctly found that the base offense
level of 14 applies to Broussard.
      Because the district court correctly found that aggravated assault was
the underlying offense, the aggravated offense section applies. Section 2A2.2
on Aggravated Assault provides for a base offense level of 14 and identifies
enhancements based on specific characteristics, e.g., four points for use of a
dangerous weapon and three points for bodily injury. § 2A.2. Then, in Chapter
Three of the Guidelines, there are victim-related adjustments, such as a two-
point increase if the victim is physically restrained during the incident.
§ 3A1.3. The district court correctly found that all of these enhancements or
adjustments applied to Broussard’s offense.
      Finally, the district court found that Broussard was not a minor or
minimal participant in this offense; accordingly, he was not entitled to a role
reduction in his offense level. The Government argues that plain error review
applies to whether Broussard should have received a point reduction for his
minor or minimal role in the incident because this argument was not raised in
the district court. See United States v. Lopez, 923 F.2d 47, 49 (5th Cir. 1991).
To receive a two-point or four-point role-based reduction, a defendant must
have been “substantially less culpable than the average participant in the
criminal activity.” U.S.S.G. § 3B1.2 cmt. n.3(A). A “minimal participant” is
someone who lacks knowledge or understanding about the scope or structure
of the enterprise; a “minor participant” is someone who is less culpable than
most participants but more culpable than a minimal participant. United States
v. Angeles-Mendoza, 407 F.3d 742, 753 (5th Cir. 2005).


                                         8
       Case: 17-30298   Document: 00514357607    Page: 9   Date Filed: 02/22/2018



                                  No. 17-30298
        Broussard was not a minimal or minor participant. His crime was an
omission, but his role was significant given that Broussard was the direct
supervisor of Lasalle, the officer who actually assaulted S.S. Furthermore,
Broussard understood what was about to happen to S.S. The district court did
not err, let alone commit plain error, in refusing a role reduction when
calculating Broussard’s offense level.


III.    Procedural reasonableness of the sentencing hearing
        This issue is reviewed for plain error because Broussard failed to raise
any objections in the district court to the procedural aspects of his sentencing.
Broussard must show: (1) error; (2) that is plain; (3) that affects substantial
rights; and (4) that warrants discretionary review by this court because the
harm so severely affects the fairness of the proceedings. United States v.
Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012).
        Broussard presents three arguments for why the district court
committed procedural error. First, the district court failed to give adequate
consideration to the Section 3553(a) factors. Second, the district court failed
to explain its reasoning for the downward departure from the Guidelines
range. Third, the district court failed to conduct an individualized sentencing
hearing because Broussard was sentenced alongside six other co-defendants.
        The Government contends that Broussard’s below-Guidelines sentence
was presumptively reasonable given that a sentence within the Guidelines
range is presumptively reasonable. In challenging the reasonableness of a
sentence, generally the Government contests downward departures from the
Guidelines while defendants contest upward departures from the Guidelines.
This makes Broussard’s challenge to the downward departure in his sentence
quite unusual because the variance worked to his benefit. Notwithstanding
the novelty of his argument, Broussard has not overcome the presumption of
                                         9
   Case: 17-30298     Document: 00514357607       Page: 10   Date Filed: 02/22/2018



                                   No. 17-30298
reasonableness in his sentence and shown plain error.           The Government
further argues that the district court adequately considered the Section 5K1.1
factors and did not blindly defer to its recommendation.             Finally, the
Government argues that the district court did provide Broussard with an
individualized sentencing hearing. The court heard testimony from Janet
Franks in support of Broussard, an apology from Broussard to S.S., and a
Section 5K1.1 motion from the Government about the assistance provided by
Broussard as a cooperating witness.
      Section 3553(a) provides seven factors that the district court should
consider in sentencing. 18 U.S.C. § 3553(a). The court is not required to
provide a detailed explanation of its reasoning on each factor. See United
States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). On a Section 5K1.1 motion,
the district court has nearly “complete discretion to determine the extent of a
departure.” United States v. Cooper, 274 F.3d 230, 248 (5th Cir. 2001). If the
district court grants a downward departure from the Guidelines range, it
should provide its reason for the departure. See United States v. Johnson, 33
F.3d 8, 10 (5th Cir. 1994).
      The district court here adopted the findings of the PSR and sentenced
Broussard “after considering all of the factors of [Section] 3553, [his] history,
[his] characteristics, [his] involvement in this offense, as well as the statutory
provisions and the 5K motion.”         On the Section 5K1.1 argument, the
Government states it is unusual for the defendant to challenge an unexplained
downward departure. The record makes clear, however, that the district court
granted the downward departure based on the Government’s Section 5K1.1
motion. Broussard is wrong when he writes that there is a “lack of any stated
reasons for departure.”       The argument that Broussard did not receive an
individualized sentencing hearing is likewise without merit. The record shows
that the district court heard testimony, heard an apology, and heard a Section
                                        10
      Case: 17-30298      Document: 00514357607     Page: 11   Date Filed: 02/22/2018



                                    No. 17-30298
5K1.1 motion before sentencing Broussard. Broussard has not shown error,
much less plain error, in the procedural reasonableness of his sentencing.


IV.     Substantive reasonableness of Sentence
        The standard of review on a challenge to the substantive reasonableness
of a sentence is abuse of discretion. United States v. Duhon, 541 F.3d 391, 399
(5th Cir. 2008).
        Broussard argues that his 54-month sentence was substantively
unreasonable because he was a passive rather than an active participant, yet
he received a longer sentence than officers who were more active participants
in beating S.S.        He also argues that the district court failed to give full
consideration to his being the father to a special needs child, his cooperation
with the Government, his lack of criminal history, and the impact of his
conduct on S.S.
        In response, the Government argues that Broussard failed to rebut the
presumption of reasonableness given to a sentence within or below the
Guidelines range. The Government further argues that Broussard relied on
the wrong standard to claim that the disparity between his sentence and that
of his co-defendants was unwarranted.             Instead of focusing on sentence
disparities between co-defendants, Broussard must show that disparities exist
between his sentence and the sentences of similarly situated defendants
nationwide.
        A sentence below the Guidelines range is presumptively reasonable. See
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).            To rebut the
presumption, the defendant must show the sentence fails to account for a factor
that should receive substantial weight, the court gave substantial weight to an
irrelevant or improper factor, or the sentence represents a clear error in
balancing the Section 3553(a) factors. Id. This presumption is not overcome
                                          11
      Case: 17-30298   Document: 00514357607       Page: 12    Date Filed: 02/22/2018



                                   No. 17-30298
just by showing a disparity between the sentences received by co-defendants.
Id.    The defendant must show a disparity between his sentence and the
sentences of similarly situated defendants nationwide.            United States v.
Guillermo Balleza, 613 F.3d 432, 435 (5th Cir. 2010).
        Broussard’s sentence was not substantively unreasonable, nor was there
an unwarranted disparity between his sentence and the sentences received by
his co-defendants.      Broussard has not made the requisite showing of
unwarranted      sentencing    disparity     to   similarly   situated   defendants
nationwide.     Indeed, Broussard has not even attempted to compare his
sentence to the sentences received by similarly situated defendants
nationwide. Even in comparing his sentence to his co-defendants, Broussard
has not shown that he was similarly situated. Unlike the others, Broussard
was a senior officer with direct supervisory authority over Lasalle.
        The district court did not abuse its discretion in sentencing Broussard to
54 months’ imprisonment.
        AFFIRMED.




                                        12
