Case: 20-30183 Document: 00515696249 Page: 1 Date Filed: 01/06/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 6, 2021
No. 20-30183
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
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 Jones, Smith, and Elrod, Circuit Judges.
Per Curiam:*
This is the third appeal of Broderick Mathes’s sentence for
distribution of cocaine. Both Mathes and the government contend that his
sentence is substantively unreasonable. Because the district court failed to
consider an important sentencing factor and clearly erred in balancing the
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-30183
sentencing factors, we VACATE Mathes’s sentence and REMAND for
resentencing consistent with this opinion.
I.
While on work release for an unrelated sentence, Broderick Mathes
distributed cocaine out of his workplace for his brother Wilbert. When
federal and state law enforcement officers knocked on the door to conduct a
workplace inspection, Mathes delayed answering. Mathes used those
moments to flush five ounces of cocaine down the toilet. After briefly
denying flushing cocaine, Mathes admitted what he had done. Thus began
Mathes’s years-long cooperation with the government.
Mathes gave the government a comprehensive overview of the drug-
distribution scheme operated by his brother. Mathes then pleaded guilty to
all charges pending against him in connection with that scheme and entered
into a formal cooperation agreement. For the next four years, Mathes
assisted the government by testifying against his brother, arranging
controlled drug purchases, interpreting phone calls, and providing
information about murders and other drug-distribution activities in the area.
In response, his brother twice threatened to kill him and once claimed he
“had put a ‘hit out’” on Mathes.
At Mathes’s first sentencing, the government credited him for his
substantial assistance and moved to reduce his sentencing level by eleven
levels. The government also moved to dismiss one of the charges to which
Mathes had pleaded guilty—possession of a firearm in furtherance of a drug-
trafficking offense—because it determined that Mathes did not know about
the firearm. The district court granted both motions. In doing so it accused
the government of being “disingenuous” as to its reasons for dismissing the
firearm count. The district court said “I’m not going to call you a liar, and
I’m not going to call [Mathes’s counsel] a liar. I’m just telling you the optics
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don’t look good.” The district court expressed further skepticism by saying,
“And as we stand here today, that all worked out. So you [Mathes] pled to
something that you didn’t do. And you [the government] got what you
wanted, i.e., testimony from Mr. Mathes and then presto-bingo, the charges
get dismissed.”
After the grants of the government’s motions, the sentencing range
recommended by the United States Sentencing Guidelines was between 70
and 87 months. The district court imposed a sentence of 210 months—an
upward variance of ten years—in part because the dismissal of the firearm
count prevented Mathes from being sentenced as an armed career criminal.
The district court did not discuss Mathes’s cooperation. We vacated the
210-month sentence as substantively unreasonable because the district court
gave undue weight to the dismissed firearm charge in weighing the
sentencing factors. United States v. Mathes, 759 F. App’x 205, 211–12 (5th
Cir. 2018) (“Mathes I”). The district court’s stated justifications—
“Mathes’ criminal history and the dismissal of the firearm charge”—
“fail[ed] to meet the high bar for such a substantial deviation.” Id. at 211.
Though we gave the district court “due deference” in its sentencing
decision, we determined it was necessary to vacate and remand for
resentencing. Id. at 212.
At Mathes’s second sentencing, the district court imposed a sentence
of 160 months—an upward variance of six years. The district court justified
this upward variance on two grounds: (1) Mathes’s criminal history, and (2)
the “unwarranted” disparity between the range recommended for Mathes,
70 to 87 months, and the sentence imposed on Mathes’s brother Wilbert, 324
months. We vacated that sentence because any disparity in sentence was
warranted—“Mathes risked his life by cooperating with the government. . . .
Mathes pled guilty and accepted responsibility.” United States v. Mathes, 790
F. App’x 6, 8 (5th Cir. 2020) (“Mathes II”). Again, after our “highly
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deferential review,” we determined it was necessary to vacate and remand
once more for resentencing “in accordance with [our] opinion.” Id. at 7–8.
At Mathes’s third sentencing, both parties reemphasized Mathes’s
substantial cooperation, but the district court imposed the same 160-month
sentence. The district court noted the quantity of cocaine attributable to
Mathes, and it explained that it considered Mathes an “undeterred” “career
offender” because of his criminal history. The district court also said that
Mathes’s act of flushing cocaine down the toilet “demonstrates a lack of
respect for the law.” Both the government and Mathes objected to the 160-
month sentence.
II.
On appeal, Mathes contends that his sentence is once again
substantively unreasonable. As it did in the previous two appeals, the
government agrees. Mathes I, 759 F. App’x at 208; Mathes II, 790 F. App’x
at 8. As before, we are “not bound by the Government’s concession, but
independently review[] the sentence.” Mathes I, 759 F. App’x at 209–10
(citing United States v. Castaneda, 740 F.3d 169, 171 (5th Cir. 2013)).
Because Mathes objected in the district court, we review the
substantive reasonableness of his sentence for abuse of discretion, based on
the “totality of the circumstances.” Gall v. United States, 552 U.S. 38, 51
(2007); United States v. Teel, 691 F.3d 578, 585 (5th Cir. 2012). Abuse-of-
discretion review is “highly deferential” to the district court. Mathes II, 790
F. App’x at 7.
A district court has discretion to vary from the recommended
guidelines range by considering factors set forth in 18 U.S.C. § 3553(a). The
district court abuses its discretion, however, when it imposes a sentence
outside the recommended guidelines range and the sentence “‘(1) does not
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account for a factor that should have received significant 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.
Gerezano-Rosales, 692 F.3d 393, 400–01 (5th Cir. 2012) (quoting United
States v. Broussard, 669 F.3d 537, 551 (5th Cir. 2012)).
Because the 160-month sentence falls outside the recommended
guidelines range of 70 to 87 months, we do not presume that the sentence is
reasonable. Gall, 552 U.S. at 51; United States v. Hoffman, 901 F.3d 523, 554–
55 (5th Cir. 2018) (“Even sentences like these that are outside the Guidelines
range are reviewed with deference, though they are not entitled to the
presumption of reasonableness that a within-Guidelines sentence may be
afforded on appellate review.”), cert. denied, 139 S. Ct. 2615 (2019); United
States v. Mondragon-Santiago, 564 F.3d 357, 366–67 (5th Cir. 2009) (stating
that a presumption of reasonableness applies to within-guidelines sentences).
We may also consider the degree of the variance, so long as we eschew “rigid
mathematical formula[e]” and give due deference to the district court. Gall,
552 U.S. at 47, 51; United States v. Bolton, 908 F.3d 75, 96 (5th Cir. 2018),
cert. denied, 140 S. Ct. 47 (2019).
The 160-month sentence in this case constitutes an upward variance
of 73 months, or just over six years, above the top of the recommended
guidelines range of 70 to 87 months. The 160-month sentence also more than
doubles the median sentence under that range, meaning that the variance
constitutes about half of Mathes’s current sentence. We have previously
considered an eleven-month sentence enhancement, which constituted a
quarter of the defendant’s total sentence, to be significant in degree. United
States v. Santillan-Molina, 756 F. App’x 382, 385 (5th Cir. 2018). We have
also vacated a 37-month upward variance, which constituted about one third
of the total sentence. Gerezano-Rosales, 692 F.3d at 400–01. The six-year
upward variance in this case, approximately doubling Mathes’s sentence, is
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certainly significant in degree. The significance of the degree of the variance
from the 70-to-87-months range is emphasized by our prior holding that the
reduction to that range was “warranted” by Mathes’s cooperation and
acceptance of guilt. Mathes II, 790 F. App’x at 8. The degree of the variance
alone, however, is not dispositive. See, e.g., United States v. Brantley, 537 F.3d
347, 349–50 (5th Cir. 2008).
A “significant variance” is permitted when it is justified by “‘the
individualized case-specific reasons provided by the district court.’” United
States v. Nguyen, 854 F.3d 276, 283 (5th Cir. 2017) (quoting United States v.
Diehl, 775 F.3d 714, 724 (5th Cir. 2015)). “[T]he farther a sentence varies
from the applicable Guidelines sentence, the more compelling the
justification based on factors in section 3553(a) must be.” United States v.
Smith, 440 F.3d 704, 707 (5th Cir. 2006) (internal quotation marks omitted).
A significant variation must be supported by a significant justification—“a
major departure should be supported by a more significant justification than
a minor one.” Gall, 552 U.S. at 50.
In Mathes I, we determined that “Mathes’ criminal history and the
dismissal of the firearm charge” could not justify the significant upward
variance imposed to arrive at the 210-month sentence. Mathes I, 759 F.
App’x at 211. While the 160-month sentence we now consider is the product
of a smaller variance than the 210-month sentence—six years rather than ten
years—the variance remains significant. Our prior decision in this case,
therefore, casts doubt on the proposition that Mathes’s criminal history is
significant enough to justify the significant upward variance.
Given further statements in our two prior opinions in Mathes’s case,
and given our caselaw on upward variances, we cannot conclude that the
upward variance was justified. The 160-month sentence fails to account for
a significant sentencing factor—Mathes’s “years-long reliable and
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substantial cooperation with the Government”—and it “represents a clear
error of judgment in balancing the sentencing factors.” Mathes I, 759 F.
App’x at 210–11; Gerezano-Rosales, 692 F.3d at 401; see also United States v.
Chandler, 732 F.3d 434, 437 (5th Cir. 2013).
As we noted in Mathes II, “Mathes risked his life by cooperating with
the government.” 790 F. App’x at 8. In each of the three sentencing
hearings, the district court did not once mention Mathes’s cooperation. In
Broussard, we vacated an above-guidelines sentence in part because the
district court “eschewed, in determining the length of the sentence, the
§ 3553(a)(6) factor” supporting a sentence within the recommended
guidelines range. 669 F.3d at 552. Here the district court eschewed even
mentioning Mathes’s substantial cooperation. The district court abused its
discretion because the sentence does not take into account Mathes’s
extraordinary cooperation. See Hoffman, 901 F.3d at 558–59 (vacating a
sentence which failed to account for the defendant’s culpability for thwarted
fraudulent claims); cf. United States v. Robinson, 741 F.3d 588, 601, 603 (5th
Cir. 2014) (vacating a sentence for harmful procedural error when the district
court refused to consider evidence of cooperation on the mistaken belief that
it did not have the authority to do so).
Further, it was a “clear error of judgment” for the district court to
focus solely on aggravating sentencing factors without even addressing
Mathes’s cooperation in its balancing. Gerezano-Rosales, 692 F.3d at 401.
Indeed, it appears from the transcript of the third sentencing hearing that the
district court did not “balance” the sentencing factors at all. Instead, it listed
all the aggravating factors applicable against Mathes and ignored the central
factor in this case: Mathes’s cooperation.
As we stated in Mathes I, “[t]he district court’s reliance on [the
relevant aggravating factors alleged] is a weak basis for a variance in Mathes’
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case because of his years-long reliable and substantial cooperation with the
Government,” which the district court did not even consider. Mathes I, 759
F. App’x at 211; see also Broussard, 669 F.3d at 552. Even if the aggravating
factors addressed by the district court were to justify some degree of upward
variance, the district court clearly erred by not engaging in any meaningful
balancing against Mathes’s substantial cooperation with the government.
Simply put, “there was no rational basis for the court to impose such a
substantial variance.” Mathes I, 759 F. App’x at 211.
III.
Mathes requests that we exercise our discretion to direct
reassignment to a different district judge for resentencing. Notably, the
government does not oppose, or even respond to, that request. We agree:
On remand, the district court shall reassign this case to another judge. Our
authority to order reassignment is “an extraordinary power and should rarely
be invoked.” United States v. Winters, 174 F.3d 478, 487 (5th Cir. 1999).
Reassignment is necessary in this case not only to ensure that justice is done,
but also to maintain the appearance of justice. See Johnson v. Sawyer, 120
F.3d 1307, 1333 (5th Cir. 1997).
We have two guiding tests to determine when reassignment is needed,
and we have not expressly adopted one over the other. In re DaimlerChrysler
Corp., 294 F.3d 697, 701 (5th Cir. 2002). Under the first test, we ask if there
is actual bias or an objective appearance of bias. Johnson, 120 F.3d at 1333.
Under the second test, we ask three questions: (1) would “the original judge
. . . reasonably be expected upon remand to have substantial difficulty in
putting out of his or her mind previously-expressed views or findings
determined to be erroneous”; (2) is “reassignment . . . advisable to preserve
the appearance of justice”; and (3) would “reassignment . . . entail waste and
duplication out of proportion to any gain in preserving the appearance of
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fairness”? Id.; see also DaimlerChrysler Corp., 294 F.3d at 700–01. Both tests
are satisfied in this case. 1
We do not question the good faith or integrity of the sentencing judge.
See DaimlerChrysler Corp., 294 F.3d at 701. Nonetheless, under these rare
and unusual circumstances, we instruct the district court to reassign the case
to another judge for resentencing.
* * *
For the reasons set forth above, we VACATE the sentence imposed
by the district court, REMAND for resentencing, and INSTRUCT the
district court to reassign this case to a different judge.
1
Cf. United States v. Andrews, 390 F.3d 840, 853 (5th Cir. 2004) (“The original
judge appears to have been motivated in part by a desire to hammer [the defendant] with a
long sentence one way or the other.”); Johnson, 120 F.3d at 1337 (“We know that the
district judge agrees that an appearance of partiality or bias must be remedied.”); Cooper
Tire & Rubber Co. v. Farese, 248 F. App’x 555, 561 (5th Cir. 2007) (“[G]iven the history of
this case on remand, we find that it is reasonable to expect the original judge to have
substantial difficulty in putting out of his mind his previously-expressed views.”); United
States ex rel. Little v. Shell Expl. & Prod. Co., 602 F. App’x 959, 976 (5th Cir. 2015) (“In this
case, . . . reassignment to a different judge should offer a reduction in waste because if we
were simply to remand, we could reasonably expect more appeals of this nature.”).
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