     Case: 16-10058       Document: 00513712180         Page: 1     Date Filed: 10/11/2016




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


                                     No. 16-10058                               FILED
                                   Summary Calendar                      October 11, 2016
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

SHAWN TRAVIS CATHEY,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-152-8


Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Shawn Travis Cathey challenges his 360-month, within-Guidelines
sentence, imposed following his conviction for conspiring to possess, with
intent to distribute, 50 grams or more of a mixture and substance containing
methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1) & (b)(1)(B).
       The Guideline-sentencing range applicable to Cathey was 360-480
months’ imprisonment.          Before sentencing, the Government moved for a


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
    Case: 16-10058    Document: 00513712180       Page: 2    Date Filed: 10/11/2016


                                  No. 16-10058

downward departure, pursuant to Guideline § 5K1.1, because Cathey provided
substantial assistance.     That section provides:          “Upon motion of the
government stating that the defendant has provided substantial assistance in
the investigation or prosecution of another person who has committed an
offense, the court may depart from the guidelines”. U.S.S.G. § 5K1.1.
      At sentencing, after the Government called a witness to testify in support
of its § 5K1.1 motion, the court stated:
            I find that the defendant did provide substantial
            assistance to the government in the investigation and
            prosecution of the criminal activities of others, and
            that he would be eligible for a sentence below the
            bottom of the advisory guideline range. Of course,
            there are a lot of other factors that enter into it, and so
            I’ll hear from [Cathey’s attorney] on that subject.

After hearing from Cathey’s attorney and Cathey, among others, the court
reviewed Cathey’s criminal history and the leniency of his prior sentences. The
court continued:
            Were it not for the defendant’s cooperation, . . . I would
            be sentencing at the top of the advisory guideline
            range in this case, the 480 months of imprisonment.

            I’m going to reduce what I otherwise would have done
            to take into account his cooperation with the
            government, and the sentence I’m going to impose also
            will take into account all of the factors the Court
            should consider in sentencing under 18 United States
            Code Section 3553(a).
            …
            I’m going to sentence him at the bottom of the
            guideline range at . . . 360 months, which is really a
            120-month or 10-year reduction from what his
            sentence would have been had he not provided the
            cooperation to the government.




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                                 No. 16-10058

Cathey objected to the sentence as procedurally unreasonable, for “failing to
follow the three-step process” in United States v. Malone, ___ F.3d ___, No. 14-
31426, 2016 WL 3627319, 6 (5th Cir. July 6, 2016). (The original version of
Malone relied upon by Cathey, 809 F.3d 251 (5th Cir. 2015), was subsequently
withdrawn and superseded. However, the portion upon which Cathey relies
remains unchanged. Compare 809 F.3d at 260–61 with 2016 WL 3627319, 6.)
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding on
the sentence to impose. Gall v. United States, 552 U.S. 38, 48–51 (2007). In
that respect, for issues preserved in district court, its application of the
Guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      Cathey contends the court properly granted the Government’s § 5K1.1
motion but erred procedurally by simultaneously considering the extent of the
§ 5K1.1 departure and the 18 U.S.C. § 3553(a) factors.
      In Malone, this court held a district court in granting the Government’s
§ 5K1.1 motions erred, albeit harmlessly, by conflating the determination of
the extent of the departures warranted under § 5K1.1 with consideration of the
18 U.S.C. § 3553(a) factors. 2016 WL 3627319, 6. Cathey asserts the court
similarly granted the instant § 5K1.1 motion but erred by considering the
§ 5K1.1 departure and the § 3553(a) factors simultaneously, when it should
have departed downward, before considering the § 3553(a) factors.
      In the light of its comments, it is arguable the court did not grant a
downward departure. In any event, Malone is distinguishable. There, the
district court granted downward departures by sentencing defendants below



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                                No. 16-10058

their respective sentencing ranges; at issue was whether the court’s procedure
for determining those departures was erroneous. See 2016 WL 3627319 at 3,
6. Our court held the error harmless. Id. at 6. While Cathey attempts to
distinguish Malone’s harmlessness analysis, he ignores the court’s explanation
for why the sentence was appropriate for Cathey, despite his cooperation with
the Government.
      In addition, Cathey claims the portion of Malone holding the sentencing
error harmless is no longer good law in the light of Molina-Martinez v. United
States. 136 S. Ct. 1338 (2016). There, however, the Court addressed only the
showing a defendant must make, on plain-error review, to establish a
Guidelines-calculation error affected his substantial rights; the Court did not
address whether an error like the one claimed here may be deemed harmless.
Id. at 1344–49.
      Here, even if the court intended to grant the § 5K1.1 motion, any error
in imposing Cathey’s sentence is harmless: the court recognized its authority
to depart below the guidelines range, and the intended sentence was
unambiguous. See United States v. Hashimoto, 193 F.3d 840, 844–45 (5th Cir.
1999).
      AFFIRMED.




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