United States v. Mark Hebert
813 F.3d 551
5th Cir.2015Background
- Defendant Mark Hebert, a former Jefferson Parish deputy, used accident victim Albert Bloch’s identification, checks, and debit cards after responding to Bloch’s car crash in August 2007 and thereafter committed multiple frauds and identity thefts.
- Bloch disappeared after being last credibly seen October 2, 2007; his Volvo was later found abandoned under suspicious circumstances, and Bloch’s medications and financial activity ceased.
- Federal indictment charged Hebert with multiple counts including bank fraud; Paragraph J alleged Hebert killed Bloch to obtain a replacement ATM/debit card and to prevent reporting.
- Hebert pleaded guilty to seven counts (deprivation of rights, five bank fraud counts, aggravated identity theft) but denied the murder allegation; plea reserved sentencing factfinding to the court.
- After a four-day evidentiary sentencing hearing, the district court found by a preponderance that Hebert murdered Bloch (second-degree murder) and applied a Guidelines cross-reference to the murder guideline, or alternatively imposed a large upward variance, sentencing Hebert to 92 years.
- On appeal Hebert challenged (1) sufficiency of evidence for murder, (2) application of the Guidelines cross-reference, (3) Fifth and Sixth Amendment limits on judge-found facts increasing punishment, and (4) Eighth Amendment disproportionality; the Fifth Circuit affirmed.
Issues
| Issue | Hebert's Argument | Government's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for murder at sentencing | Evidence (no body, no DNA, witness sightings) insufficient to prove murder by preponderance | Circumstantial evidence (last credible sighting Oct. 2, possession of replacement card/keys, abandoned car, failure to refill meds, cell/possession evidence) supports murder finding | District court’s finding of second-degree murder plausible and not clearly erroneous; affirmed |
| Applicability of U.S.S.G. §2B1.1(c)(3) cross-reference to murder guideline | Cross-reference improper: murder was not a count of conviction and state homicide not specifically covered by §2A1.2 | Cross-reference produced guideline range but court alternatively justified sentence by upward variance | Court avoided deciding first-impression cross-reference question; any Guideline error harmless because same 92-year sentence supported by a substantively reasonable upward variance |
| Fifth and Sixth Amendment challenge to judge-found murder fact | Judicial factfinding that made sentence reasonable infringes Sixth Amendment jury right and Alleyne (mandatory-minimum) concerns | Precedent permits judge-found facts for sentencing so long as sentence is within statutory maximum; Alleyne applies only to facts increasing mandatory minimum | Rejected; judge-found facts permissible here because sentence fell within the statutory maximum and did not raise Alleyne issue |
| Eighth Amendment proportionality | 92-year term is grossly disproportionate given convictions and use of murder as sentencing factor outside convictions | Offense gravity (murder + identity theft + serial fraud by police officer) justifies long sentence; sentence within statutory maximum | Rejected; sentence not grossly disproportionate under narrow Eighth Amendment review |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (district court must consider §3553(a) factors and appellate review looks at procedural and substantive reasonableness)
- Booker v. United States, 543 U.S. 220 (mandatory Guidelines struck; judge may engage in factfinding for sentencing within statutory maximum)
- Apprendi v. New Jersey, 530 U.S. 466 (facts increasing penalty beyond prescribed statutory maximum must be submitted to a jury)
- Alleyne v. United States, 133 S. Ct. 2151 (facts that increase mandatory minimums must be found by a jury)
- Rummel v. Estelle, 445 U.S. 263 (Eighth Amendment proportionality analysis; life sentence for repeated nonviolent felonies upheld)
- United States v. Mares, 402 F.3d 511 (5th Cir.: judge may find sentencing facts by preponderance)
- United States v. Hernandez, 633 F.3d 370 (5th Cir.: as-applied Sixth Amendment challenges to within-statutory-maximum sentences based on judge-found facts are foreclosed)
- United States v. Smith, 440 F.3d 704 (upward variance standards; court must articulate fact-specific §3553(a) reasons)
- United States v. Brantley, 537 F.3d 347 (affirms substantial upward variance as reasonable)