813 F.3d 551 (5th Cir. 2015), 14-31405, United States v. Hebert

Docket Nº:14-31405, 14-31407
Citation:813 F.3d 551
Opinion Judge:KING, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee v. MARK HEBERT, Defendant - Appellant
Attorney:For United States of America, Plaintiff - Appellee (14-31405): Vijay Shanker, U.S. Department of Justice, Washington, DC. For Mark Hebert, Defendant - Appellant (14-31405): Claude John Kelly III, Federal Public Defender, Ada Phleger, Federal Public Defender's Office, New Orleans, LA. For United S...
Judge Panel:Before STEWART, Chief Judge, KING and HIGGINSON, Circuit Judges.
Case Date:December 23, 2015
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 551

813 F.3d 551 (5th Cir. 2015)

UNITED STATES OF AMERICA, Plaintiff - Appellee

v.

MARK HEBERT, Defendant - Appellant

Nos. 14-31405, 14-31407

United States Court of Appeals, Fifth Circuit

December 23, 2015

Appeals from the United States District Court for the Eastern District of Louisiana.

For United States of America, Plaintiff - Appellee (14-31405): Vijay Shanker, U.S. Department of Justice, Washington, DC.

For Mark Hebert, Defendant - Appellant (14-31405): Claude John Kelly III, Federal Public Defender, Ada Phleger, Federal Public Defender's Office, New Orleans, LA.

For United States of America, Plaintiff - Appellee (14-31407): Vijay Shanker, U.S. Department of Justice, Washington, DC.

For Mark Hebert, Defendant - Appellant (14-31407): Claude John Kelly III, Federal Public Defender, Ada Phleger, Federal Public Defender's Office, New Orleans, LA.

Before STEWART, Chief Judge, KING and HIGGINSON, Circuit Judges.

OPINION

KING, Circuit Judge.

Defendant--Appellant Mark Hebert was sentenced by the district court to a term of 92 years of imprisonment after pleading guilty to a series of counts involving bank fraud. The district court imposed the sentence following a detailed four-day hearing where it found that Hebert had committed second degree murder in connection with the bank fraud counts. Hebert appeals his sentence, arguing that the evidence before the district court was insufficient to prove second degree murder, that the district court improperly increased his sentence under the Federal Sentencing Guidelines, and that his sentence is unconstitutional under the Fifth, Sixth, and Eighth Amendments. We conclude that Hebert's evidentiary, statutory, and constitutional challenges are without merit. Accordingly, we AFFIRM the district court's sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Original Crime

The case before us stems from a series of fraudulent activities committed in 2007 by Defendant--Appellant Mark Hebert. Until late 2007, Hebert was a deputy sheriff employed by the Jefferson Parish Sheriff's Office in Louisiana. In the early morning hours of August 2, 2007, Hebert responded, in his official capacity, to a one-car accident involving Albert Bloch in Metairie, Louisiana. Emergency personnel were at the scene of the accident and gave Hebert, the lead law enforcement investigator at the scene, Bloch's wallet and its contents to file as evidence according to standard police protocol. Bloch was admitted to a hospital following the accident. But Hebert, rather than filing Bloch's items as evidence, began using Bloch's information, checks, and debit card to make a series of purchases and withdrawals in Bloch's name. On the day of the accident, August 2, Hebert purchased two global positioning system units with Bloch's debit card. Then from August 2 to August 9, 2007, Hebert used the debit card to make cash withdrawals totaling $2,634.60 and purchases totaling $7,627.12. The debit card was also used to move $16,000 from Bloch's savings account to his checking account during that same period. Following his hospitalization, Bloch reported the fraud to his bank, Chase Bank, and a fraud restriction was placed on the card, causing the bank to decline two further attempted cash withdrawals by Hebert on August 10 and August 11, 2007. Despite no longer being able to use Bloch's debit card, Hebert forged checks drawn on Bloch's Chase Bank checking account in order to purchase several thousand dollars' worth of racing car products from September 17 to October 3, 2007.

Chase Bank issued Bloch a replacement debit card, which Bloch used for his own personal expenses from August 20 until October 1, 2007. During this period, Bloch frequented a bar, Joe's Caddy Corner, where he used the replacement card. However, Bloch disappeared after last being seen on October 2, by one of the bartenders at Joe's Caddy Corner. From October 2, 2007, onwards there were no credible reported sightings of Bloch. Bloch no longer contacted case workers from an organization, Responsibility House, that had been providing him with financial assistance. A credit check later showed no further credit activity involving Bloch after October 2, and Bloch failed to refill medications he needed for his chronic obstructive pulmonary disease. Bloch's car, a 1995 Volvo sedan, was later discovered parked in a " secluded parking lot" near Bloch's apartment and Joe's Caddy Corner with its license plate removed and its vehicle identification number covered up.

Around the time of Bloch's disappearance, Hebert obtained Bloch's replacement debit card and began using it for withdrawals and purchases. On October 3 and October 4, 2007, Hebert used the replacement card to make cash withdrawals totaling $405. Hebert also initiated a telephone transfer that " zeroed out" Bloch's savings account. On October 3, 2007, a Chase Bank employee refused to cash a forged check on Bloch's behalf for over $2,600--presented by Hebert--because the individual attempting to cash the check was not the same person as depicted on Bloch's driver's license. This led to Chase Bank placing a fraud restriction on Bloch's accounts. Hebert further attempted to make cash withdrawals totaling $607 after the fraud restriction was placed on the card. And on October 5, 2007, an individual from Hebert's telephone called Chase Bank and attempted to have the fraud restriction removed.

Around October 2007, Jefferson Parish detectives launched two parallel investigations, one investigating Bloch's disappearance and the other investigating Hebert in connection with the burglary of a local Infiniti dealer. In the course of investigating the Infiniti burglary, detectives began connecting Hebert to Bloch's disappearance and discovered in Hebert's possession: checks belonging to Bloch, Bloch's mail and bank correspondence, Bloch's identification cards, a key to Bloch's Volvo, and a television set from Bloch's apartment. When confronted with evidence regarding Bloch's disappearance by law enforcement officers on November 20, 2007, Hebert claimed that he and Bloch had become friends after Bloch's accident and denied using Bloch's ATM card.1 Hebert was not charged in state court for any fraud perpetrated against Bloch, but he was arrested on December 11, 2007, in relation to a series of frauds and thefts he had perpetrated against other individuals. Hebert later pleaded guilty to state charges emanating from this conduct and was incarcerated in the Louisiana Department of Corrections from May 19, 2008, to May 12, 2010.

B. Hebert's Federal Indictment and Ensuing Plea Agreement

Following Hebert's release from state prison, federal prosecutors pursued charges against Hebert in relation to Bloch's disappearance. On March 28, 2013, a grand jury returned a 60-count Indictment charging Hebert with several different offenses, including deprivation of rights under color of law, bank fraud, computer fraud, aggravated identity theft, and obstruction of a federal investigation. Paragraph J of the Indictment alleged, with respect to each bank fraud count, that Hebert:

with specific intent, did kill, or participate in conduct that caused the death of, Albert Bloch to obtain VISA Replacement ATM/Debit Card #8461 and to prevent Albert Bloch from reporting to a law enforcement officer the scheme and artifice to defraud, deprivation of rights under color of law, and any other crimes alleged in this Indictment.

Hebert pleaded not guilty to all counts at his initial arraignment on April 1, 2013.

On November 20, 2013, Hebert pleaded guilty pursuant to a plea agreement on seven counts: one count of deprivation of rights under color of law, in violation of 18 U.S.C. § 242; five counts of bank fraud, in violation of 18 U.S.C. § 1344; and one count of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). With respect to the bank fraud counts, the plea agreement specifically noted:

Additionally, the parties understand that the issue of whether the defendant is responsible for the death of Albert Bloch and the appropriate guideline range is a contested matter that will have to be determined by the Court at the sentencing hearing. The Defendant understands that the Court will determine sentencing factors by a preponderance of the evidence.

Furthermore, the plea agreement memorialized that Hebert " specifically does not waive, and retains the right to bring a direct appeal of any sentence imposed."

An initial Presentence Investigation Report (PSR), filed on February 14, 2014, calculated an offense level of 22 for sentencing Hebert. The PSR calculated a Base Offense Level of 15 for bank fraud pursuant to U.S.S.G. § 2B1.1 because the underlying offense was bank fraud with a loss of more than $30,000 but not more than $70,000. The PSR added that Hebert's previous state convictions placed him in criminal history category II so that his criminal history and offense level set the guideline range of imprisonment at 46-57 months, plus two years running consecutively for the aggravated identity theft count. As a result, the initial PSR recommended a total of six to seven years of imprisonment. The initial PSR also noted that the government intended to present evidence regarding Hebert's involvement in the death of Albert Bloch at sentencing and that this evidence could justify an upward variance.

However, the second, revised PSR, filed on March 21, 2014, calculated an offense level of 44, based on a Base Offense Level of 43 for first degree murder pursuant to U.S.S.G. § 2A1.1. The PSR stated that, because the underlying offense of bank fraud involved the alleged murder of Albert Bloch, U.S.S.G. § 2B1.1(c)(3) allowed a cross-reference to U.S.S.G. § 2A1.1, which resulted in the...

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