     Case: 19-30084      Document: 00515273627         Page: 1    Date Filed: 01/15/2020




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

                                      No. 19-30084
                                                                           Fifth Circuit

                                                                         FILED
                                                                  January 15, 2020

UNITED STATES OF AMERICA,                                           Lyle W. Cayce
                                                                         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, JONES, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Broderick Mathes appeals for the second time the sentence imposed
following his guilty plea. We again VACATE his sentence and REMAND for
re-sentencing consistent with this opinion.
                                             I.
       Mathes pled guilty to conspiracy to possess with intent to distribute 500
grams or more of cocaine as well as other charges. After the plea, the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-30084
Government dismissed one of the charges—possession of a firearm by a
convicted felon—because it discovered evidence that Mathes had not
committed the offense. A revised presentence investigation report (“PSR”) was
prepared to reflect the dismissal of that charge. The dismissal removed the
possibility of a 15-year mandatory minimum sentence but did not affect the
Guidelines range. The Government also filed a substantial assistance motion
under U.S.S.G. § 5K1.1 and requested an 11-level reduction because of Mathes’
extensive cooperation with the Government, which was done at the risk of his
safety.
      The district court expressed skepticism regarding the Government’s
decision to dismiss the firearm charge and accused the Government of being
“disingenuous.” The court further suggested that the parties had made “an end
around” 18 U.S.C. § 3553. Nevertheless, the court granted the Government’s
5K1.1 motion. The court then adopted the undisputed facts in the revised PSR
and concluded that the applicable Guidelines range was 70 to 87 months.
      But the court also stated that there were reasons for an upward variance,
which it proceeded to impose. It sentenced Mathes to 210 months’
imprisonment, a variance of over 10 years above the top end of the Guidelines
range. On appeal, we vacated the sentence and remanded for resentencing
because we concluded that the district court had “improperly based the upward
variance in part on the dismissed firearm charge, even though the dismissal
did not affect [Mathes’] Guidelines sentencing exposure.” See United States v.
Mathes, 759 F. App’x 205, 206 (5th Cir. 2018) (unpublished).
      On remand, the district court held a new sentencing hearing, during
which Mathes expressed remorse for his criminal conduct. His counsel noted
that Mathes was working on his GED while incarcerated, as well as taking
parenting and career planning classes. Counsel also highlighted the fact that
Mathes had no record of disciplinary actions while incarcerated. Mathes’
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                                  No. 19-30084
counsel argued that, under Pepper v. United States, 562 U.S. 476 (2011), the
district court could take those factors into consideration when “considering a
lower guideline range.” His counsel also noted that, because of the previous
appeal in the case, Mathes’ safety was now at even greater risk than before.
The Government agreed.
      The district court acknowledged that Mathes had behaved well in prison
and that he was taking steps to prepare himself for reintegration into society.
However, the court remained “of the opinion . . . that a variance sentence is
called for in this case for a number of reasons.” After noting that Mathes had
prior drug trafficking convictions, the court concluded that “a 3553(a) variance
is warranted also to take into account or to avoid unwarranted sentencing
disparities. Mr. Mathes’ brother was sentenced to 324 months for essentially
the same conduct in the same criminal conspiracy.” For those reasons, the
district court imposed a sentence of 160 months.
      Mathes objected “to the court’s basis for variances upward.” The
Government also objected because, in its view, the sentence imposed “does not
give Mr. Mathes sufficient credit for all that he has done and all the substantial
assistance given to the government in this matter and to others.” Mathes
timely appealed. The government filed a letter noting its agreement that the
district court had relied on an irrelevant or improper factor in imposing
sentence.
                                       II.
      We consider the “substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 51
(2007); United States v. Taffaro, 919 F.3d 947, 948 (5th Cir. 2019). This is a
“highly deferential” review. Taffaro, 919 F.3d at 948. “When conducting a
review of substantive reasonableness, we consider the totality of the


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                                 No. 19-30084
circumstances, including the extent of any variance from the Guidelines
range.” United States v. Churchwell, 807 F.3d 107, 123 (5th Cir. 2015).
                                      III.
      “The factors enumerated in 18 U.S.C. § 3553(a), . . . guide appellate
courts . . . in determining whether a sentence is unreasonable.” United States
v. Candia, 454 F.3d 468, 472 (5th Cir. 2006) (quotation marks and citation
omitted). Under § 3553(a), courts must consider “the need to avoid
unwarranted sentence disparities among defendants with similar records who
have been found guilty of similar conduct[.]” 18 U.S.C. § 3553(a)(6). But
“Congress intended that certain disparities be caused by application of the
federal guidelines, and a sentencing disparity intended by Congress is not
unwarranted.” Candia, 454 F.3d at 476 (emphasis added) (quotation marks
omitted).
      If an above-Guidelines range “gives significant weight to an irrelevant
or improper factor” or “represents a clear error of judgment in balancing the
sentencing factors,” it “unreasonably fails to reflect the statutory sentencing
factors.” Churchwell, 807 F.3d at 123 (quotation marks and citation omitted).
      Mathes contends that the district court erred by giving significant weight
to what it viewed as an unwarranted disparity between his sentence and his
brother’s. He asserts that, because his 70-to-87-month Guidelines range
resulted in large measure from the 11-level reduction he received due to his
cooperation with the government, the disparity between the two sentences was
warranted. The Government agrees.
      So do we. The transcript of the re-sentencing hearing makes it clear that,
while it was not the only factor the district court relied on in varying from the
Guidelines range, the disparity the court perceived as unwarranted was a
major factor in its decision. But that disparity was warranted here—Mathes
risked his life by cooperating with the government. “Disparity in sentences
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                                 No. 19-30084
between a defendant who provided substantial assistance and one who
provided no assistance is not unwarranted.” United States v. Duhon, 541 F.3d
391, 397 (5th Cir. 2008) (cleaned up) (quoting United States v. Gallegos, 480
F.3d 856, 859 (8th Cir. 2007)). Further, Mathes pled guilty and accepted
responsibility. His brother did not. This earned Mathes a 3-level reduction. See
U.S.S.G. § 3E1.1. Again, “Congress intended that certain disparities be caused
by application of the federal guidelines, and a sentencing disparity intended by
Congress is not unwarranted.” Candia, 454 F.3d at 476 (quotation marks
omitted).
      Because the district court gave significant weight to an improper factor—
a warranted disparity—the sentence it imposed “unreasonably fail[ed] to
reflect the statutory sentencing factors.” Churchwell, 807 F.3d at 123. For
these reasons, we VACATE the sentence and REMAND the case for
resentencing in accordance with this opinion.




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