     Case: 17-30749      Document: 00514742566         Page: 1    Date Filed: 11/30/2018




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

                                      No. 17-30749                         FILED
                                                                   November 30, 2018
                                                                      Lyle W. Cayce
UNITED STATES OF AMERICA,                                                  Clerk

              Plaintiff - Appellee

v.

BRODERICK D. MATHES,

              Defendant - Appellant




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:14-CR-69-6


Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:*


       This case represents the rare instance when both the defendant and the
Government agree that the district court abused its discretion in fashioning a
sentence for the defendant. Despite Defendant-Appellant Broderick Mathes’
(“Mathes”) extraordinary cooperation with the Government at the risk of his
life, the district court gave him a variant sentence more than ten years above


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 17-30749
the United States Sentencing Guidelines (“Guidelines”) recommended maxi-
mum. While explaining the reasons for the sentence, the district court noted
that Mathes would have been considered an armed career criminal if the Gov-
ernment had not dismissed a firearm charge against him. Because the district
court improperly based the upward variance in part on the dismissed firearm
charge, even though the dismissal did not affect his Guidelines sentencing ex-
posure, the sentence is substantively unreasonable. Accordingly, the sentence
is VACATED and this case is REMANDED for resentencing.
                                       I
      Mathes signed a plea agreement, pleading guilty to conspiracy to possess
with intent to distribute 500 grams or more of cocaine, possession with intent
to distribute cocaine, possession of a firearm by a convicted felon, and using a
telephone to facilitate a drug-trafficking crime. The revised presentence report
(PSR) indicated that the firearm conviction exposed Mathes to a 15-year man-
datory minimum sentence, as it was determined he was an armed career crim-
inal under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4.
      After Mathes pleaded guilty, the Government discovered evidence that
Mathes did not commit the firearm offense, and successfully moved to dismiss
that charge. The probation office then prepared a second revised PSR. The dis-
missal of the firearm charge removed the threat of the 15-year mandatory min-
imum but did not change the Guidelines range, which recommended a sentence
of 188 to 235 months. The total offense level was 31, which included a two-level
enhancement for possession of the gun on which the dismissed firearm charge
had been based. See U.S.S.G. § 2D1.1(b)(1) (providing for a two-level increase
when a firearm “was possessed”).
      Mathes objected to the two-level enhancement for possession of the fire-
arm, contending that the evidence and the Government’s dismissal of the


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                                      No. 17-30749
charge confirmed he was unaware of the presence of a gun. The probation of-
ficer opposed Mathes’ objection in a supplemental addendum to the second re-
vised PSR.1 The probation officer also noted that, because Mathes was a career
offender under U.S.S.G. § 4B1.1, the two-level enhancement did not affect his
Guidelines range.
       The Government filed a U.S.S.G. § 5K1.1 substantial assistance motion
seeking an 11-level reduction in Mathes’ Guidelines offense level. The motion
described his extensive cooperation with the Government at the risk of his life
and his familial relationships. Following his arrest and continuing through to
his trial, Mathes provided the Government with reliable information about
other drug traffickers and murders, assisting agents in deciphering inter-
cepted phone calls, purchasing heroin from a dangerous drug trafficker as part
of a crime task force, and testifying on behalf of the Government at his
brother’s trial.
       At the sentencing hearing, the district court was skeptical of the Govern-
ment’s stated reason for dismissing the firearm charge. While discussing
Mathes’ cooperation with law enforcement and the determination that he was
not guilty of the firearm offense, the Government noted that the dismissal of
the firearm charge did not affect his advisory Guidelines range. The district
court called the Government’s position “disingenuous” because the dismissal
removed the 15-year mandatory minimum sentence. The district court sug-
gested the Government dismissed the gun charge in exchange for Mathes’ tes-
timony against other defendants, and further suggested the parties made “an
end around” 18 U.S.C. § 3553. The district court did not accuse the lawyers of




       1  The probation officer presented three arguments in opposition to Mathes’ objection.
However, we need not address those arguments because Mathes did not appeal the applica-
tion of the two-level enhancement to his sentence.
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                                 No. 17-30749
lying, but stated “the optics don’t look good.” For its part, the Government de-
nied the existence of a deal to dismiss the firearm charge and indicated that it
would have moved for a sentence below the 15-year mandatory minimum un-
der § 3553(e) if the charge had not been dismissed. Despite the unveiled skep-
ticism, the district court granted the Government’s § 5K1.1 motion.
      The district court denied Mathes’ objection to the two-level enhancement
for possession of the gun. The district court cited the preponderance of the ev-
idence standard, noting that there was contradictory evidence and information
in part because Mathes originally stated that he was aware of the presence of
the gun during the plea agreement stage, but later denied such awareness in
subsequent testimony. As a result, the district court determined it is improba-
ble the firearm was not connected to the offense. After sustaining the two-level
enhancement and granting the § 5K1.1 motion, the district court adopted the
undisputed facts in the second revised PSR and found that the adjusted Guide-
lines range was 70 to 87 months.
      Nevertheless, the district court announced it had identified reasons for
an upward variance. In support of the variant sentence, the court provided: (1)
Mathes was on work release when he committed the crimes at issue in this
case; (2) Mathes’ history of illegally carrying weapons; (3) Mathes’ four previ-
ous drug trafficking convictions; and (4) the dismissal of the firearms charge,
which allowed Mathes to avoid being deemed an armed career criminal—and
subject to the 15-year mandatory minimum. Based on that information and the
totality of the circumstances, the district court sentenced Mathes to 210
months’ imprisonment.
      The sentence represented an upward variance of over ten years above
the recalculated Guidelines range top-end of 87 months and was within the




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                                  No. 17-30749
original Guidelines range of 188 to 235 months. Mathes objected to the vari-
ance. The district court filed a statement of reasons, adopting the PSR without
change. Mathes timely appealed the variant sentence.
                                        II
      Mathes objected to the variance. Accordingly, the reasonableness of the
sentence is reviewed under an abuse-of-discretion standard following a two-
step analysis. See Gall v. United States, 552 U.S. 38, 46 (2007); United States
v. Teel, 691 F.3d 578, 585 (5th Cir. 2012).
      This court first determines whether the district court committed any
“significant procedural error, such as failing to calculate (or improperly calcu-
lating) the Guidelines range, . . . failing to consider the § 3553(a) factors, se-
lecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” Gall, 552 U.S. at 51. We review the district
court’s application of the Sentencing Guidelines de novo and its factual find-
ings for clear error. Teel, 691 F.3d at 585 (quoting United States v. Delgado-
Martinez, 564 F.3d 750, 751 (5th Cir. 2009)).
      If no procedural error occurred, this court considers the “substantive rea-
sonableness of the sentence imposed under an abuse-of-discretion standard.”
Gall, 552 U.S. at 51. An above-Guidelines sentence is substantively unreason-
able “where it ‘(1) does not account for a factor that should have received sig-
nificant weight, (2) gives significant weight to an irrelevant or improper factor,
or (3) represents a clear error of judgment in balancing the sentencing factors.’”
United States v. Churchwell, 807 F.3d 107, 123 (5th Cir. 2015) (quoting United
States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006)). When a district court im-
poses a variant sentence, the reviewing court “must give due deference to the
district court’s decision that the § 3553(a) factors, on a whole, justify the extent
of the variance.” Gall, 552 U.S. at 51. A substantial variance “should be sup-
ported by a more significant justification than a minor one.” Id. at 50.
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                                 No. 17-30749
                                       A
      Although Mathes and the Government agree that this court should va-
cate Mathes’ sentence and remand this case for resentencing, the parties differ
in their reasoning to have this court reach that conclusion. Mathes asserts that
the variant sentence is procedurally and substantively unreasonable, while the
Government contends only that it is substantively unreasonable. Because
Mathes frames his challenge to the reasonableness of the sentence in terms of
procedural error in part, we first address that argument.
      Mathes asserts that the district court failed to adequately explain its
misplaced reliance on the dismissed firearm charge in imposing a substantial
upward variance. He directs this court to statutory language governing up-
ward departures that allows a departure to be based on a dismissed count if
the conduct underlying the dismissed count was not factored into the applica-
ble Guidelines range. See U.S.S.G. § 5K2.21. He argues that requirement was
not met in this case because the PSR applied a two-level enhancement under
§ 2D.1.1(b)(1), therefore, the dismissed firearm charge was already accounted
for in the Guidelines range. Mathes further contends that the district court
procedurally erred because it relied on the dismissed firearm charge without
finding that he knew of the presence of the gun.
      Mathes’ arguments in support of finding procedural error are inapposite
for three reasons.
      First, “an upward departure and an upward variance are not one and the
same.” United States v. Jacobs, 635 F.3d 778, 782 (5th Cir. 2011). The process
a sentencing court must follow to impose a variance differs from the process
required to impose a departure, and the court’s power to impose either derives
from distinct provisions of the U.S. Code. See id. Statutory language governing
departures does not necessarily apply to variances. Mathes’ argument prem-
ised on statutory language governing departures lacks merit.
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                                 No. 17-30749
      Second, Mathes’ contentions are more aptly analyzed under the substan-
tive unreasonableness inquiry. Mathes contends the district court placed un-
due weight on the dismissed firearm charge and had no rational reason to im-
pose the ten-year upward variance. This court has previously addressed anal-
ogous assertions under the substantively unreasonable analysis. For example,
in United States v. Chandler, this court concluded the district court imposed a
sentence that was substantively unreasonable and abused its discretion by
basing an upward variance on the defendant’s position as a police officer where
there was no evidence his position facilitated the underlying offense. 732 F.3d
434, 439–40 (5th Cir. 2013). The sentence was substantively unreasonable be-
cause the district court had placed significant reliance on an improper factor.
Id. at 440. Similarly, in United States v. Gerezano-Rosales, this court concluded
that a three-year upward variance based on the defendant’s disrespect to the
court was a clear error in judgment in balancing the sentencing factors, and
amounted to a substantively unreasonable sentence and an abuse of discretion.
692 F.3d 393, 401–02 (5th Cir. 2012).
      Third, the district court made the necessary factual finding to use the
firearm charge in sentencing. Mathes is correct that, during its ruling on his
objection to the two-level enhancement under § 2D1.1(b)(1), the district court
did not explicitly find that he knew about the presence of the firearm. However,
the second revised PSR included a supplemental addendum that concluded
there was a “preponderance of the evidence that [Mathes] was aware of the
presence of the firearm.” The district court did not reject that finding, and
noted in its statement of reasons (SOR) that it adopted the undisputed factual
statements in the second revised PSR without change. Further, the district
court announced the preponderance of the evidence standard and concluded
that it was probable or likely that the firearm was present and connected with


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                                   No. 17-30749
the offense. The district court determined by a preponderance of the evidence
that the firearm was present and Mathes was aware of that fact.
         Mathes has not demonstrated that the district court committed a proce-
dural error in imposing the variant sentence. Next, we address whether the
district court abused its discretion under the substantively unreasonable in-
quiry.
                                         B
         Both Mathes and the Government agree that his sentence is substan-
tively unreasonable. The Government argues there was no rational basis for
the upward variance. Even so, this court is not bound by the Government’s
concession, but independently reviews the sentence. United States v. Cas-
taneda, 740 F.3d 169, 171 (5th Cir. 2013) (per curiam) (quoting United States
v. Hope, 545 F.3d 293, 295 (5th Cir. 2008)); see also United States v. Claiborne,
132 F.3d 253, 254–55 (5th Cir. 1998) (per curiam) (affirming defendant’s sen-
tence despite the Government asserting that the district court erred in apply-
ing the Sentencing Guidelines).
         Mathes’ sentence is substantively unreasonable because it gives signifi-
cant weight to an irrelevant or improper factor and represents a clear error of
judgment in balancing the sentencing factors. The emphasis the district court
placed on the dismissed firearm charge led it astray.
         Mathes’ sentence gives significant weight to the dismissal of the firearm
charge when that dismissal did not affect his Guidelines range—making the
dismissal an irrelevant or improper factor. At sentencing, the district court de-
termined that an upward variance was appropriate because the dismissal of
the firearm charge allowed Mathes to avoid being considered an armed career
criminal. The record indicates that the district court believed the elimination
of the 15-year statutory minimum, due to the reclassification of Mathes, was
an unjustified benefit accruing to him.
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                                      No. 17-30749
       The dismissal of the firearm charge did not provide any real benefit to
Mathes at sentencing. The dismissal did not affect Mathes’ Guidelines range.
Both before and after the dismissal, Mathes’ Guidelines range was 188 to 235
months’ imprisonment, eight months above the previous 15-year statutory
minimum. Furthermore, the Government indicated at sentencing and in its
brief that it would have sought relief from the statutory minimum under 18
U.S.C. § 3553(e) because of Mathes’ extensive cooperation with law enforce-
ment. The court would thus have had the discretion to impose a sentence below
the statutory 15-year minimum.2 Contrary to the district court’s implication
that Mathes received a benefit from the dismissal of the firearm charge,
Mathes was in the same position with the dismissal as he would have been in
without it.
       The dismissal caused Mathes to be in a worse position than if he had
been convicted of the firearm charge. Ostensibly, if the Government had not
dismissed the charge, it would have filed a successful § 5K1.1 substantial as-
sistance motion and sought relief from the statutory minimum under § 3553(e).
The district court would have sentenced Mathes according to the 70 to 87
months Guidelines range without being skeptical of the optics regarding the
Government’s dismissal. Instead, the dismissal resulted in a ten-year upward
variance and no realized benefit.
       Without the inference that Mathes unjustifiably benefited from the dis-
missal, there is no basis for punishing Mathes for the dismissed firearm
charge, and the dismissal represents an irrelevant or improper factor. The Gov-
ernment contends that it dismissed a charge it could not prove beyond a rea-
sonable doubt. In addition, the Government believed that Mathes was innocent


       2 This point contradicts the sentencing court’s belief that the Government’s dismissal
was engineered to be an end around § 3553(e). The dismissal did not result in any sentence
that the Government could not have achieved with a § 3553(e) motion.
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                                       No. 17-30749
of the alleged offense. There was no rational basis to punish Mathes for the
dismissal.
       Mathes’ sentence also represents a clear error in judgment in balancing
the sentencing factors. The Supreme Court has instructed sentencing courts to
support major variances with significant justifications and appellate courts to
consider the extent of a deviation. Gall, 552 U.S. at 50–51. An examination of
the degree of Mathes’ variant sentence is helpful. The sentencing court im-
posed an upward variance of 123 months above the 87-month upper end of
Mathes’ Guidelines range—an increase of over ten years. The 210-month sen-
tence is triple the 70-month lower end of the Guidelines range and over two
times the upper end. The variant sentence falls in the 188 to 235 months
Guidelines range that applied to Mathes before the Government’s successful
11-level downward departure for substantial assistance, meaning Mathes re-
alized no benefit from his years of assistance to law enforcement at the sub-
stantiated risk of his life and the deterioration of his familial relationships.3
       The district court’s justifications for the upward variance fail to meet the
high bar for such a substantial deviation. The district court justified its vari-
ance based on Mathes’ criminal history and the dismissal of the firearm
charge.4 However, as explained above, the dismissal provided no realized ben-




       3  As a direct result of his cooperation with the Government, Mathes has been shunned
by his family and Mathes’ brother has threatened his life on at least two occasions.
        4 The Government also asserts that the district court made a clear error of judgment

in balancing the sentencing factors by relying on criminal history that was already accounted
for in the Guidelines range to impose the upward variance. However, “[i]n imposing a non-
guidelines sentence, the district court may rely on factors already taken into account by the
Guidelines,” including criminal history. United States v. Carrillo, 696 F. App’x 167, 168 (5th
Cir. 2017) (per curiam); see also United States v. Key, 599 F.3d 469, 475 (5th Cir. 2010) (ex-
plaining that “giving extra weight to circumstances already incorporated in the guidelines . .
. is within the discretion of the sentencing court”); United States v. Brantley, 537 F.3d 347,
350 (5th Cir. 2008) (rejecting defendant’s argument that “factors included in the Guidelines
range calculation,” including criminal history, “cannot support a non-Guidelines sentence,”
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                                       No. 17-30749
efit to Mathes and the Government believed that he was not guilty of the fire-
arm charge. Therefore, there was no rational basis for the court to impose such
a substantial variance.
       The district court’s reliance on the dismissal is a weak basis for a vari-
ance in Mathes’ case because of his years-long reliable and substantial cooper-
ation with the Government. This is especially true in light of the district court’s
determination that his cooperation warranted an 11-level downward departure
for substantial assistance. The Government—the actor with the most experi-
ence and knowledge regarding Mathes’ cooperation—asserts that the depar-
ture was warranted given the assistance he provided. Consequently, any de-
termination that the dismissal gave Mathes a disproportionate benefit was not
commensurate with the upward variance the district court imposed. The vari-
ance eliminated any benefit Mathes received for his cooperation and placed
him in the same position, or worse,5 than he would have been in without coop-
erating at all. Reviewing the facts of Mathes’ case, and the justifications the
sentencing court gave for its substantial upward variance, the upward vari-
ance represents a clear error in judgment in balancing the sentencing factors.
                                             III
       Considering the totality of the circumstances, including the extent of the
significant upward variance from the Guidelines range, and giving due defer-
ence to the district court’s decision that the § 3553 factors justify the extent of




id. at 348–49, and explaining that “a district court may rely upon factors already incorporated
by the Guidelines to support a non-Guidelines sentence”). Though the Fifth Circuit previously
considered the Government’s argument meritorious, see, e.g., United States v. Perrin, 478
F.3d 672, 678 (5th Cir. 2007), United States v. Williams recognized the abrogation of those
cases by subsequent Supreme Court precedent, 517 F.3d 801, 810–11 & n.55 (5th Cir. 2008).
        5 Mathes may not have received threats on his life or damaged his familial relation-

ships if he had not cooperated with the Government.
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                                No. 17-30749
the variance, the district court abused its discretion by imposing a substan-
tively unreasonable sentence.
     Accordingly, Mathes’ sentenced is VACATED, and this case is RE-
MANDED to the district court for resentencing.




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