United States v. Thomas Malone, Jr.

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.

Case: 14-31426 Document: 00513581047 Page: 2 Date Filed: 07/06/2016

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

2

Case: 14-31426 Document: 00513581047 Page: 3 Date Filed: 07/06/2016

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.

3

Case: 14-31426 Document: 00513581047 Page: 4 Date Filed: 07/06/2016

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).

4

Case: 14-31426 Document: 00513581047 Page: 5 Date Filed: 07/06/2016

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).

5

Case: 14-31426 Document: 00513581047 Page: 6 Date Filed: 07/06/2016

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.

6

Case: 14-31426 Document: 00513581047 Page: 7 Date Filed: 07/06/2016

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).

7

Case: 14-31426 Document: 00513581047 Page: 8 Date Filed: 07/06/2016

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).

8

Case: 14-31426 Document: 00513581047 Page: 9 Date Filed: 07/06/2016

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).

9

Case: 14-31426 Document: 00513581047 Page: 10 Date Filed: 07/06/2016

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).

10

Case: 14-31426 Document: 00513581047 Page: 11 Date Filed: 07/06/2016

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

11

Case: 14-31426 Document: 00513581047 Page: 12 Date Filed: 07/06/2016

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).

12

Case: 14-31426 Document: 00513581047 Page: 13 Date Filed: 07/06/2016

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).

13

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

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).

14

Case: 14-31426 Document: 00513581047 Page: 15 Date Filed: 07/06/2016

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).

15

Case: 14-31426 Document: 00513581047 Page: 16 Date Filed: 07/06/2016

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))).

16