     Case: 14-31426   Document: 00513581047    Page: 1   Date Filed: 07/06/2016




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


                                No. 14-31426                           FILED
                                                                    July 6, 2016
                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                              Clerk

                                         Plaintiff - Appellee
v.

THOMAS WILLIAM MALONE, JR.,

                                         Defendant - Appellant
_____________________________

Cons w/ 15-30011

UNITED STATES OF AMERICA,

                                         Plaintiff - Appellee
v.

DREW T. GREEN,

                                         Defendant - Appellant


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


Before JOLLY, HIGGINBOTHAM, and SMITH, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      IT IS ORDERED that the petitions for panel rehearing and the petitions
for rehearing en banc are DENIED. We WITHDRAW Part II.B of the opinion
previously filed on December 11, 2015, and SUBSTITUTE the following
amended opinion.
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                                 No. 14-31426
      Thomas William Malone, Jr. and Drew T. Green pleaded guilty to one
count of conspiracy to distribute and possess with the intent to distribute
AM-2201, a controlled substance analogue, in violation of 21 U.S.C. §§ 846,
841(b)(1)(c), 813, 802(32)(A). The district court sentenced them both to 117
months of imprisonment followed by three years of supervised release. They
appeal their sentences on several different grounds. We AFFIRM.
                                       I.
      Thomas William Malone, Jr. and Drew T. Green were the owners of
NutraGenomics Mfg L.L.C. Prior to March 2011, NutraGenomics distributed
JWH-018 throughout the United States. When new federal and state laws
banned this substance, NutraGenomics discontinued its distribution and
began selling several new synthetic cannabinoids, one of which was AM-2201.
Malone and Green sold AM-2201 both in bulk and as part of a product called
“Mr. Miyagi”—a mixture of AM-2201 and vegetable material that visually
resembled marijuana.     Though Mr. Miyagi was, with a wink, labeled as
potpourri not fit for human consumption, the expectation was that the user
would smoke the product in order to get high off its active ingredient, AM-2201.
Malone and Green brought in Boyd A. Barrow and Joshua Espinoza to
manufacture and distribute Mr. Miyagi, both now co-defendants. They in turn
sold a large quantity of Mr. Miyagi to Richard Buswell, who distributed it at
stores throughout Louisiana.
      On September 4, 2012, a federal grand jury in the Western District of
Louisiana returned a superseding indictment charging Malone, Green, and
several co-defendants with one count of conspiracy to distribute and possess
with the intent to distribute AM-2201, a controlled substance analogue, one
count of conspiracy to introduce and cause to be introduced misbranded drugs
into interstate commerce, and one count of conspiracy to commit money
laundering. Within about two weeks, Malone and Green had reached plea
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                                       No. 14-31426
agreements with the Government in which they agreed to cooperate and plead
guilty to the count of conspiracy to distribute AM-2201 in exchange for the
dismissal of the remaining counts. They pled guilty to one count of conspiracy
to distribute and possess with the intent to distribute a Schedule I Controlled
Dangerous Substance, in violation of 21 U.S.C. §§ 846, 841(b)(1)(c), 813,
802(32)(A). As part of their pleas, Malone and Green admitted to distributing
not less than 1400 kilograms of AM-2201, and earning not less than
$10,000,000 from the conspiracy.
      The guilty pleas were accepted, and the probation office prepared
presentence reports (“PSRs”). Because AM-2201 is not listed in either the Drug
Quantity Table or the Drug Equivalency Tables, the PSRs had to “determine
the base offense level using the marihuana equivalency of the most closely
related controlled substance” to AM-2201. 1 The Sentencing Guidelines require
that three factors guide this inquiry:
            (A) Whether the controlled substance not referenced in this
      guideline has a chemical structure that is substantially similar to
      a controlled substance referenced in this guideline.
            (B) Whether the controlled substance not referenced in this
      guideline has a stimulant, depressant, or hallucinogenic effect on
      the central nervous system that is substantially similar to the
      stimulant, depressant, or hallucinogenic effect on the central
      nervous system of a controlled substance referenced in this
      guideline.
            (C) Whether a lesser or greater quantity of the controlled
      substance not referenced in this guideline is needed to produce a
      substantially similar effect on the central nervous system as a
      controlled substance referenced in this guideline. 2
Based upon the consideration of these factors, the PSRs determined that
Tetrahydrocannabinol, or THC, was the “most closely related controlled


      1   U.S.S.G. § 2D1.1 cmt. n.6.
      2   Id.
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                                    No. 14-31426
substance” to AM-2201. The Drug Equivalency Tables specify a 1 to 167 ratio
for converting THC into marijuana; that is, the Sentencing Guidelines treat
one gram of THC as equivalent to 167 grams of marijuana. 3 Using this ratio,
the PSRs concluded that Appellants should be held responsible for 233,800
kilograms of marijuana 4—and that the base offense level for both should be set
at 38, the highest level set forth by the Drug Quantity Table. 5
      Appellants objected to the use of a 1:167 ratio to convert the 1400
kilograms of AM-2201 into marijuana. Instead, they argued that a 1:1 ratio
was appropriate because marijuana, not THC, is the “most closely related
controlled substance” to AM-2201. Alternatively, they asked the district court
to exercise its discretion under Kimbrough v. United States 6 to reject the 1:167
ratio. These objections prompted an evidentiary hearing. Two experts—one
for the Government and one for the defense—testified at length in the hearing
about the available scientific data on AM-2201. The Government’s expert, Dr.
Jordan Trecki, relied on five different categories of evidence to support his
opinion that THC is the “most closely related substance” to AM-2201: (1) a
“binding study” showing that THC and AM-2201 bind to the same cannabinoid
receptor; (2) a “functional assay” showing that THC and AM-2201 both activate
this receptor; (3) a drug discrimination study showing that (a) rats cannot tell
the difference between THC and AM-2201 and that (b) AM-2201 is more potent
than THC; (4) a “tetrad study” showing that rats react similarly to THC and
JWH-018, an analogue of AM-2201; and (5) case studies showing that THC and
AM-2201 have similar effects on human users.              The defense expert, Dr.



      3  U.S.S.G. § 2D1.1 cmt. n.8(D).
      4  To recap, the PSRs determined that 1400 kilograms of AM-2201 was equivalent to
1400 kilograms of THC. They then multiplied 1400 by 167 to calculate the equivalent
quantity of marijuana.
       5 U.S.S.G. § 2D1.1(c)(1).
       6 552 U.S. 85 (2007).

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                                         No. 14-31426
Nicholas Cozzi, devoted much of his testimony to criticizing the evidence relied
upon by Dr. Trecki. In particular, Dr. Cozzi criticized Dr. Trecki for relying on
animal studies—as opposed to human studies—and combining the results of
several different studies—each of which was inconclusive standing alone—to
form his opinion. When asked to provide his opinion, Dr. Cozzi remarked that
it was “kind of a nonscience question,” but testified that marijuana was the
“most closely related controlled substance” to AM-2201 because “it’s consumed
in the same way and it’s consumed for the same effect.” Both experts agreed,
however, that there was no scientific basis for the 1:167 ratio used to convert
THC into marijuana. 7
       The next day, the district court issued an oral ruling on Appellants’
objections. Citing the evidence relied upon by Dr. Trecki, the district court
concluded that the Government had demonstrated by a preponderance of the
evidence that THC was the “most closely related controlled substance” to
AM-2201. The court further declined to rely upon Kimbrough to reject the
1:167 ratio.       Though acknowledging that “the ratios in the sentencing
guidelines are often arbitrary,” the district court stated that these ratios “seek
to outline the relative harm of certain drugs.”                 The court also noted that
Kimbrough involved the comparison of “one ratio for one drug to another ratio
for another drug” while this case concerned just one ratio. The district court
then held separate, closed hearings on the two § 5K1.1 motions filed by the
Government on behalf of Appellants. After hearing brief testimony, the court
agreed to grant both § 5K1.1 motions, but withheld any ruling on the extent of
the sentencing reductions until it sentenced Malone and Green later that
afternoon.      The guideline range for both was the same: 135 to 168 months.


       7R.2236 (Dr. Trecki testifying that there is “no literature . . . or expertise that explains
why the ratio is 1:167”); R.2347 (Dr. Cozzi testifying that there is no “scientific basis” for the
ratio).
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                                        No. 14-31426
Based on their cooperation, the district court awarded a 30% reduction from
the top of this range and sentenced them both to 117 months of imprisonment
followed by three years of supervised release.
                                            II.
      Appellants raise five claims of sentencing error: (1) the district court
erred in concluding that THC is the “most closely related controlled substance”
to AM-2201; (2) the district court did not recognize its discretion under
Kimbrough v. United States 8 to vary from the 1:167 ratio for converting THC
into marijuana; (3) the district court considered non-assistance-related factors
in reducing the extent of their § 5K1.1 departures; (4) the district court
awarded unreasonably small § 5K1.1 departures; and (5) the district court
erred in balancing the 18 U.S.C. § 3553(a) factors. We address each claim of
error in turn.
                                             A.
      Malone and Green challenge the district court’s conclusion that THC is
the “most closely related controlled substance” to AM-2201. Like Dr. Cozzi,
they criticize the animal studies cited by Dr. Trecki as unreliable and incapable
of providing meaningful insight into the effects of AM-2201 on human users.
Moreover, Appellants argue that this Court explicitly endorsed their
arguments in Allen v. Pennsylvania Engineering Corp. 9 In Allen, this Court
concluded that the animal studies relied upon by the plaintiffs were
“unreliable” and incapable of “furnish[ing] a scientifically valid basis for the
conclusion” that the plaintiffs wished to draw. 10 In effect, Appellants ask us to
do the same here.




      8 552 U.S. 85 (2007).
      9 102 F.3d 194 (5th Cir. 1996).
      10 Id. at 197-98 & n.5.

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                                       No. 14-31426
       We decline to do so. Allen concerned the admission of expert testimony
at trial—this is a sentencing case. “[T]he appropriate standard regarding the
admissibility of evidence at sentencing is substantially lower than that
governing admissibility at trial.” 11 Under the Sentencing Guidelines, evidence
admitted during sentencing need not meet the Daubert standard; 12 rather it
need only have “sufficient indicia of reliability to support its probable
accuracy.” 13    “This court has interpreted subsection 6A1.3(a)’s ‘sufficient
indicia of reliability’ language ‘to require that the facts used by the district
court for sentencing purposes be reasonably reliable’” 14—a standard not
intended to be onerous. “Even uncorroborated hearsay evidence,” for instance,
“may be sufficiently reliable.” 15         The studies relied upon by Dr. Trecki
undoubtedly meet this bar.           There is no dispute that these studies were
conducted by professional scientists using established methods and many were
subjected to peer review.         This is more than enough to qualify them as
“reasonably reliable.”
       Indeed, Appellants do not appear to take issue with the methods or
results of the studies—but instead with inferences the district court drew from
them concerning the effects of AM-2201 on human users. This argument goes
to the sufficiency of the evidence, not its reliability. Our review of such a
challenge is limited. The district court’s conclusion that THC is the “most
closely related controlled substance” to AM-2201 represents a finding of fact. 16



       11 United States v. McCaskey, 9 F.3d 368, 380 (5th Cir. 1993) (per curiam).
       12 See id.
       13 U.S.S.G. § 6A1.3(a).
       14 United States v. Cabrera, 288 F.3d 163, 170 (5th Cir. 2002) (per curiam) (quoting

United States v. Rogers, 1 F.3d 341, 343-44 (5th Cir. 1993)).
       15 United States v. Gaytan, 74 F.3d 545, 558 (5th Cir. 1996).
       16 See United States v. Figueroa, 647 F.3d 466, 469 (2d Cir. 2011); United States v.

Brey, 627 F. App’x 775, 779 n.4 (11th Cir. 2015); United States v. Lane, 616 F. App’x 328, 329
(9th Cir. 2015); United States v. Beckley, 515 F. App’x 373, 375 (6th Cir. 2013).
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                                       No. 14-31426
“We review the district court’s findings of fact at sentencing for clear error
. . . .” 17 “The court will find clear error . . . ‘only if, based on the entire evidence,
the court is left with the definite and firm conviction that a mistake has been
committed.’” 18 “If, after reviewing the record, the district court’s view of the
evidence is plausible, the district court’s decision must be affirmed even if the
judges on this Court, sitting as the trier of fact would have weighed the
evidence differently.” 19
       By this metric, we must affirm the district court’s conclusion that THC
is the “most closely related controlled substance” to AM-2201. It is significant
that the district court gave this matter studied attention. It held a day-long
evidentiary hearing during which two experts testified at length. 20 Both sides
were allowed to present scientific evidence and cross-examine the other side’s
expert. After carefully considering all of this evidence, the district court issued
a well-reasoned oral decision. While its inferences based upon the animal
studies are debatable, nothing in the record leaves us with “the definite and
firm conviction that a mistake has been committed.” To the contrary, we agree
with the district court that the assertion that we ought “compare an isolated
chemical with a leafy green substance” seems implausible on its face—an
uncertainty here not dispelled. Appellants sprayed AM-2201 onto a leafy herb
to create Mr. Miyagi. Just as THC is the active ingredient in the leafy plant of
marijuana, AM-2201 was the active ingredient in Mr. Miyagi. Indeed, any
contention that the 1400 kilograms of AM-2201 that Appellants admitted to



       17 United States v. Burns, 526 F.3d 852, 859 (5th Cir. 2008).
       18 United States v. Nava, 624 F.3d 226, 229 (5th Cir. 2010) (quoting United States v.
Rose, 449 F.3d 627, 633 (5th Cir. 2006)).
       19 Burns, 526 F.3d at 859.
       20 As with lay testimony, “[a] district court’s assessment of the relative credibility of

opposing expert witnesses is entitled to deference.” Henderson v. Norfolk S. Corp., 55 F.3d
1066, 1069 (5th Cir. 1995).
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                                       No. 14-31426
possessing would have been used to produce only 1400 kilograms of Mr.
Miyagi—a product intended to mimic marijuana—is defied by the record; it
reflects that the various participants in the conspiracy would have used this
quantity of AM-2201 to produce at least twenty times as much Mr. Miyagi.
       Appellants also presented little in the way of counterevidence at the
evidentiary hearing. 21 Their expert, Dr. Cozzi, testified only briefly about his
opinion regarding the “most closely related controlled substance” to AM-2201—
ultimately choosing marijuana because “it’s consumed in the same way and it’s
consumed for the same effect.” But neither of these points are persuasive.
Marijuana is not consumed in the same way as AM-2201; there is no evidence
in the record that a user would smoke the pure form of AM-2201—just as a
user would not smoke pure THC. And while smoking marijuana may give
users effects similar to consuming AM-2201, so also does THC. We are not
persuaded that the district court erred in determining that THC is the “most
closely related controlled substance” to AM-2201.
       To the extent Appellants challenge the district court’s reliance on the
1:167 ratio for converting THC into marijuana, their arguments are similarly
unavailing. Even though both experts testified that the 1:167 ratio has no
scientific basis, this Court has squarely held that district courts are not
required to engage in “a piece-by-piece analysis of the empirical grounding
behind each part of the sentencing guidelines” and ignore those parts that do
not pass empirical muster. 22 We fully agree with the Seventh Circuit that a


       21 Accordingly, unlike United States v. Hagman, this is not a case where “the evidence
appears to be equally balanced, or we cannot say upon which side it weighs heavier.” 740
F.3d 1044, 1052 (5th Cir. 2014). We also note that Hagman may no longer be good law in the
wake of this Court’s decision in United States v. Vargas-Ocampo, which rejected the
applicability of the “equipoise rule” in the related context of sufficiency of the evidence to
support a conviction. See 747 F.3d 299, 301 (5th Cir. 2014) (en banc).
       22 United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009); see also United States

v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.2009).
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                                         No. 14-31426
rule to the contrary would render “sentencing hearings . . . unmanageable, as
the focus shifts from the defendant’s conduct to the ‘legislative’ history of the
guidelines.” 23     As we have said before, “[e]mpirically based or not, the
Guidelines remain the Guidelines. It is for the Commission to alter or amend
them.” 24
                                                B.
       Appellants’ next claim is that the district court did not recognize its
discretion under Kimbrough v. United States to vary from the 1:167 ratio for
converting THC into marijuana. In Kimbrough, the Supreme Court held that
district courts have discretion to vary from the Sentencing Guidelines based
solely upon policy disagreement. 25 And a defendant “is entitled to have his
sentence set by a judge aware of the discretion that Kimbrough has
announced.” 26      That is, a district judge is never required to vary under
Kimbrough, 27 but every defendant is entitled to be sentenced by a judge who
knows that she could vary under Kimbrough if she was so inclined. This Court
has reaffirmed this holding on several occasions. 28
       Appellants argue that the district court’s comments during sentencing
indicate that it did not appreciate its discretion to vary under Kimbrough.
Three sets of comments are relevant: First, prior to the evidentiary hearing on
Appellants’ Kimbrough objection, the district court said the following:




       23     United States v. Aguilar-Huerta, 576 F.3d 365, 368 (7th Cir. 2009).
       24     United States v. Miller, 665 F.3d 114, 121 (5th Cir. 2011).
           25 552 U.S. 85, 109 (2007); see also Spears v. United States, 555 U.S. 261, 264 (2009)

(per curiam) (“That was indeed the point of Kimbrough: a recognition of district courts’
authority to vary from the crack cocaine Guidelines based on policy disagreement with them
. . . .”).
           26 United States v. Burns, 526 F.3d 852, 862 (5th Cir. 2008).
           27 See Duarte, 569 F.3d at 530-31.
           28 See, e.g., United States v. Clay, 787 F.3d 328, 332 (5th Cir. 2015); United States v.

Garcia, 655 F.3d 426, 432-34 (5th Cir. 2011).
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                                       No. 14-31426
               The Court would tell counsel, just so you know how the Court
       is leaning, that although the Court might be persuaded, the Court
       is of the mind that the tables in the sentencing guidelines are what
       they are, and that that issue may be an issue for a higher court.
       And I definitely would allow everyone to make their record on that
       issue, but that my leaning at this point in the morning, before I’ve
       heard the evidence, is not to vary or depart from those sentencing
       guidelines as they’re written, or the chart as it’s written in the
       sentencing guideline manual, because I’m just the district court
       judge.
Second, during the direct examination of Dr. Cozzi, the district court made this
comment: “There seems to be no rhyme or reason to any of the stuff in the
guidelines as to how the equivalent is to marijuana. It all seems to be a
relativity type of assessment made by Congress to show the relative harm of
these drugs.” 29 And third, in ruling on Appellants’ Kimbrough objection, the
district court gave this explanation:
             The defendants have relied on the Kimbrough case in urging
       the Court to throw out this guideline. This Court will not do so for
       several reasons.
             First of all, the sentencing guidelines are the expression of
       Congress that this is what should be done.              The Court
       acknowledges that the ratios in the sentencing guidelines are often
       arbitrary and present a relative -- by converting everything to
       marijuana, they seek to outline the relative harm of certain drugs.
              In Kimbrough, what the Court -- what the Supreme Court
       and the Court was doing was comparing one ratio for one drug to
       another ratio for another drug and pointing out the unfairness of
       those two ratios. In this case that’s not what the defendants have
       asked us to do. They have simply asked us to throw out the ratio
       of 1:167 based on its arbitrary nature, and this Court would decline
       to do so. 30



       29  See also R.2350 (“What you’re talking about there is the relativity of one conversion
-- as we all know, 2D1.1(d) converts everything to marijuana. It’s the coin of the realm.”).
        30 See also R.2351 (“[B]ut still in Kimbrough -- and, here again, I invite contradiction

-- the conversion is between one equivalency to another equivalency and saying that that is
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                                       No. 14-31426
       Our initial opinion declined to resolve whether the district court properly
understood its discretion under Kimbrough. Instead, we concluded that any
error was harmless.          After Appellants filed petitions for rehearing and
rehearing en banc, the Government moved for a limited remand to allow the
district court to clarify its comments. 31 We granted this unopposed motion and
remanded “for the limited purpose of clarifying the district court’s
understanding of its discretion under Kimbrough and, if appropriate, its
willingness to deviate from the advisory range on such grounds.” The district
court held a non-evidentiary hearing on May 18, 2016. At the conclusion of
this hearing, the district court issued an oral ruling acknowledging that it had
the discretion to vary from the 1:167 ratio under Kimbrough—but declining to
do so. We now withdraw our harmless error analysis and reaffirm our rejection
of Appellants’ Kimbrough claim.
                                              C.
       Appellants’ third claim is that the district court considered non-
assistance-related factors in reducing the extent of their § 5K1.1 departures.
In United States v. Desselle, this Court held “that the extent of a § 5K1.1 or
§ 3553(e) departure must be based solely on assistance-related concerns.” 32
Appellants argue that an exchange during sentencing demonstrates that the
district court ignored this rule.          Following the pronouncement of Green’s
sentence, his counsel asked the district court why it had chosen to depart 30%
from the top of his guideline range when the Government had recommended a




the ratio that’s unfair. It seems that the 1:167 is not that. That’s going across the page and
not up and down the page if you get what I’m saying.”).
         31 Cf. Molina-Martinez v. United States, 136 S. Ct. 1338, 1348 (2016) (“Courts have

. . . developed mechanisms short of a full remand to determine whether a district court in fact
would have imposed a different sentence absent the error.” (citing United States v. Currie,
739 F.3d 960, 967 (7th Cir. 2014))).
         32 450 F.3d 179, 182 (5th Cir. 2006).

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                                       No. 14-31426
50% departure from the bottom of his guideline range. The district court gave
the following explanation:
             The Court has not accepted that recommendation for the low
       end of the guidelines.
             As the Court has noted, I am struck by the seriousness of the
       offense. I am struck by the harm, both potential and actual, from
       what were very reckless actions on the part of the defendant. It
       was reckless actions taken solely for the purpose of making a large
       amount of money. It was a huge risk taken by the defendants
       which didn’t work out so well.
Appellants argue that this comment clearly demonstrates that the district
court based the extent of their § 5K1.1 departures on non-assistance-related
factors.
       The Government does not argue otherwise. Conceding that the district
court considered non-assistance-related factors, the Government asserts that
Desselle should be read as imposing a “one-way ratchet.” 33                   That is, the
Government argues that Desselle only prohibits a district court from
considering non-assistance-related factors when increasing the extent of a
defendant’s § 5K1.1 departure, not when limiting the extent of a defendant’s
§ 5K1.1 departure. Although this argument may find support in case law from
other circuits, 34 it finds none in this Court’s case law. In Desselle, this Court
reasoned that the plain language of § 5K1.1 prohibits a district court from



       33 Government’s Brief at 65.
       34 See United States v. Davis, 679 F.3d 190, 195-97 (4th Cir. 2012); United States v.
Rublee, 655 F.3d 835, 839 (8th Cir. 2011); United States v. Grant, 636 F.3d 803, 817 (6th Cir.
2011) (en banc); United States v. Chapman, 532 F.3d 625, 629-30 (7th Cir. 2008); United
States v. Casiano, 113 F.3d 420, 430 (3d Cir. 1997); United States v. Manella, 86 F.3d 201,
204-05 (11th Cir. 1996) (per curiam); United States v. Mariano, 983 F.2d 1150, 1155-57 (1st
Cir. 1993); United States v. Mendoza-Haro, 595 F. App’x 829, 833-34 (10th Cir. 2014)
(collecting cases).
        Many of these cases concern reductions under Federal Rule of Criminal Procedure
35(b), not § 5K1.1, but this Court has held that “Rule 35(b) incorporates the standards set
out in § 5K1.1.” United States v. Grant, 493 F.3d 464, 467 n.1 (5th Cir. 2007).
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                                       No. 14-31426
considering non-assistance-related factors in determining the extent of a
§ 5K1.1 departure. 35 There is nothing in the plain language of § 5K1.1 that
hints at any distinction between increasing and decreasing the extent of a
§ 5K1.1 departure. The relevant portions of this provision are phrased in
absolute terms—just like this Court’s holding in Desselle. Accordingly, we are
bound by this Court’s previous statement of the law. 36
       That said, we conclude that any error committed by the district court
was harmless.        “The Guidelines set out a three-part framework for the
imposition of sentences: the district court (1) calculates the advisory sentencing
range; (2) considers the specific offender characteristics and grounds for
departure enumerated in the Guidelines; and (3) weighs the applicable factors
in 18 U.S.C. § 3553(a) as a whole.” 37 The district court erred in this case by
mixing steps two and three; rather than determining the extent of Appellants’
§ 5K1.1 departures and then considering whether their overall sentences
required adjustment in light of the § 3553(a) factors, it jumped ahead and
adjusted the § 5K1.1 departures themselves. This was error, but it was limited
to “how the district court’s analysis was sequenced.” 38 If we were to remand,
we are confident that the result would be the same—the district court would
simply grant Appellants larger § 5K1.1 departures and then adjust their
overall sentences downward in light of the § 3553(a) factors. The district court
essentially said as much at sentencing. Though the district court’s comments
muddled the steps, they establish that the court does not believe a sentence



       35  See 450 F.3d at 182.
       36  See Netsphere, Inc. v. Baron, 799 F.3d 327, 333 (5th Cir. 2015) (“A statement is not
dictum if it is necessary to the result or constitutes an explication of the governing rules of
law.”).
        37 United States v. Jacobs, 635 F.3d 778, 782 (5th Cir. 2011) (per curiam) (citing

U.S.S.G. § 1B1.1(a)-(c)).
        38 United States v. Troyer, 677 F.3d 356, 360 (8th Cir. 2012).

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                                        No. 14-31426
reflecting a 50% departure from the bottom of Appellants’ guideline range—68
months—would be appropriate for either Appellant. As a result, we conclude
that here the district court’s error was harmless. We caution, however, that
this conclusion should not be read to dismiss the importance of the segmented
process, avoiding as it does the unnecessary difficulties illustrated by this case.
                                               D.
       In the alternative, Appellants claim that the § 5K1.1 departures
awarded by the district court were unreasonably small given their substantial
assistance to the Government. This Court, however, lacks jurisdiction over an
unadorned challenge to the extent of a § 5K1.1 departure. 39 As we held in
Hashimoto, “[d]istrict courts have almost complete discretion to determine the
extent of a departure under § 5K1.1. The only ground on which the defendant
can appeal the extent of a departure is that the departure was a violation of
law.” 40 Appellants cannot evade this rule by framing the district court’s failure
to award bigger departures as an error of law. Unlike other phases of the
sentencing process, we do not review the district court’s decision to limit a
§ 5K1.1 departure for reasonableness.                The district court is vested with
complete discretion to determine the size of such a departure, as long as it does
not commit an independent violation of law. Other than the Desselle claim
discussed above, Appellants do not allege such an independent violation—only
that their departures were too small.




       39 See United States v. Hashimoto, 193 F.3d 840, 843 (5th Cir. 1999) (per curiam) (“We
would thus clearly lack jurisdiction over Hashimoto’s case if he was challenging . . . the extent
of a departure that was made . . . .”); see also United States v. Alvarez, 51 F.3d 36, 39 (5th
Cir. 1995); United States v. McKinley, 32 F.3d 566, at *1 (5th Cir. 1994) (precedential under
5th Cir. R. 47.5.3).
       40 193 F.3d at 843 (citation omitted).

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                                         No. 14-31426
                                                E.
       Appellants’ final claim is that the district court committed clear error in
balancing the 18 U.S.C. § 3553(a) sentencing factors. In particular, Appellants
argue that the district court gave undue weight to negative factors—such as
the seriousness of the crime and the potential for harm—while ignoring
positive factors—such as their extensive cooperation and lack of criminal
intent. This claim is not supported by the record. The district court explicitly
considered a number of mitigating factors at sentencing, including Green’s
expression of remorse, Malone’s health and alleged lack of intent, and the
“overall tragedy” of sentencing two young men to lengthy prison terms. 41 The
district court also necessarily considered Appellants’ substantial cooperation
in granting them both § 5K1.1 departures. Though Appellants may disagree
with how the district court balanced the § 3553(a) factors, their argument that
these factors should have been weighed differently is not a sufficient ground
for reversal. 42
                                               III.
       For the reasons stated above, we AFFIRM.




       41  Even if the district court had not provided these reasons, there likely would be no
reversible error given that both Appellants received a “Guidelines sentence.” See United
States v. Mares, 402 F.3d 511, 519 & n.7 (5th Cir. 2005) (“When the judge exercises her
discretion to impose a sentence within the Guideline range and states for the record that she
is doing so, little explanation is required.”).
        42 See, e.g., United States v. Aldawsari, 740 F.3d 1015, 1021-22 (5th Cir. 2014)

(“Appellant cites no cases that would require this court ‘to reweigh the section 3553(a)
sentencing factors’ in Appellant’s favor.”); United States v. Heard, 709 F.3d 413, 435 (5th Cir.
2013); United States v. Kippers, 685 F.3d 491, 500 (5th Cir. 2012) (“The mere fact that we
‘might reasonably have concluded that a different sentence was appropriate’ is insufficient to
justify reversal of the district court’s sentence . . . .” (quoting Gall v. United States, 552 U.S.
38, 51 (2007))).
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