United States v. Broussard

• Decision Date: 05 February 2018
• Docket Number: No. 17-30298,17-30298
• Citation: 882 F.3d 104
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Bret BROUSSARD, Defendant–Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

882 F.3d 104

UNITED STATES of America, Plaintiff–Appellee

v.Bret BROUSSARD, Defendant–Appellant

No. 17-30298

United States Court of Appeals, Fifth Circuit.

Filed February 5, 2018

Vikram Swaruup, Tovah Calderon, U.S. Department of Justice Civil Rights Div—Appellate Section, Washington, DC, Alexander Coker Van Hook, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Louisiana, Shreveport, LA, for Plaintiff–Appellee.

Brett Lester Grayson, Lafayette, LA, Jane Catherine Hogan, Hogan Attorneys, Hammond, LA, for Defendant–Appellant.

Before REAVLEY, ELROD, and SOUTHWICK, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge

Bret Broussard pled guilty to violating 18 U.S.C. § 242, which is the offense of depriving another of his rights while acting under color of law. Broussard, while serving as a lieutenant in a Louisiana Sheriff's Office, had failed to intervene while a prisoner in a parish jail was beaten by other officers. On appeal, Broussard argues that his guilty plea was invalid and that his sentence was procedurally and substantively unreasonable. We AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2011, Byron Lasalle used a baton to beat a handcuffed and compliant inmate in the chapel of the Iberia Parish Jail in New Iberia, Louisiana. Broussard outranked Lasalle and the other deputies in the chapel and knew he had a duty to intervene. Yet, Broussard stood silent in the chapel as Lasalle beat, kicked, and punched the inmate, S.S., for about ten minutes. Among the acts of brutality Broussard silently witnessed was Lasalle's placing one end of the baton between his legs and the other end into S.S.'s mouth, forcing S.S. to mimic fellatio. Once S.S. started choking from the baton in his mouth, Broussard left. Broussard never intervened in this violence against the inmate.

In the past, Broussard's unit brought at least five inmates into the chapel and beat them in retaliation for misconduct. The officers purposefully selected the chapel for beating inmates because there were no cameras there to document the abuse. This abuse occurred regularly and was primarily perpetrated by Broussard's unit, the narcotics unit. The officers were told by superiors to "take care" of inmates, which Broussard understood to mean taking the inmates to the chapel and beating them.

In February 2016, after a federal investigation into violations committed by officers at the Iberia Parish Jail, Broussard pled guilty to a bill of information for depriving the rights of prisoners under color of law. The bill of information was authorized by the United States Attorney for the Western District of Louisiana and by the Principal Deputy Assistant Attorney General of the Civil Rights Division. It was signed by an Assistant United States Attorney and two attorneys from the Department of Justice Civil Rights Division. In connection with these offenses, 12 employees of the Iberia Parish Sherriff's Office were charged with civil rights abuses. Ten officers pled guilty, including Broussard. In exchange for his plea, Broussard agreed to cooperate with the Government as a witness in a case against Sheriff Louis Ackal for similar federal offenses.

In February 2017, Broussard moved to dismiss the case and vacate his guilty plea, arguing that the district court lacked jurisdiction to hear the case because the prosecution was not properly authorized. The district court denied the motion. It held that the issue was likely waived, and even if not waived, the prosecution was properly authorized by the United States Attorney for the Western District of Louisiana.

In March 2017, the district court sentenced Broussard. Broussard's offense level was calculated under the United States Sentencing Guidelines as 26, and his criminal history category was I. The district court considered other sentencing factors, such as that Broussard is married and a father to four sons, including a special-needs son. The Government filed a Section 5K1.1 motion, asking the district court for a downward departure from the 63–78 month imprisonment range because Broussard had cooperated as a witness against Sheriff Ackal. At the hearing, the district court stated that it had considered all of these factors and sentenced Broussard to serve a term of 54 months' imprisonment and three years of supervised release.

Broussard was sentenced alongside 6 co-defendants who had all pled guilty: Robert Burns, Jeremy Hatley, Jason Comeaux, David Hines, Wade Bergeron, and Byron Lasalle. Burns received a sentence of 6 months' imprisonment for one count of violating Section 242 by failing to prevent an assault. Hatley received a sentence of 6 months' imprisonment for one count of violating Section 242 by failing to prevent an assault and a consecutive 30 months' imprisonment for one count of making false statements. Comeaux received a sentence of 30 months' imprisonment for one count of conspiracy to obstruct; 40 months' imprisonment for violating Section 242 ; and 40 months' imprisonment for one count of conspiracy to injure or oppress with all sentences to run concurrently. Hines received a sentence of 40 months' imprisonment for one count of violating Section 242 by assaulting a prisoner. Bergeron received a sentence of 48 months' imprisonment for one count of violating Section 242 by assaulting a prisoner. Lasalle received a sentence of 54 months' imprisonment each on two counts of violating Section 242 by assaulting two prisoners, including S.S., and 54 months on one count of conspiracy to injure or oppress with all sentences to run concurrently. Broussard timely appealed.

DISCUSSION

Broussard raises two points of error on appeal. First, he argues that his guilty plea was void ab initio because the attorneys pressing charges lacked authority to prosecute. Second, he argues that his sentence was procedurally and substantively unreasonable on three grounds: his offense level was improperly calculated, his sentencing hearing was improperly conducted, and his sentence was unreasonably disproportionate to his offense.

I. Validity of Broussard's guilty plea

We review de novo the validity of a guilty plea. United States v. Hernandez , 234 F.3d 252, 254 (5th Cir. 2000). Broussard argues that his conviction was void because the attorneys pressing charges and signing the indictment lacked the authority to prosecute. By entering a knowing and voluntary guilty plea, a defendant waives all non-jurisdictional defects in the prior proceedings. United States v. Bell , 966 F.2d 914, 915 (5th Cir. 1992). A jurisdictional defect raises questions about the court's power to hear the case, United States v. Scruggs , 691 F.3d 660, 666 (5th Cir. 2012), not the government's power to prosecute the case, see United States v. Cotton , 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002).

Broussard's argument about the validity of his guilty plea is unavailing because he raises a non-jurisdictional question about the Government's authority to prosecute. Broussard waived any defect in the indictment when he pled guilty, and thus we do not reach his argument under the Federal Vacancy Reform Act or the Government's argument that the United States Attorney had independent authority to prosecute.

II. Calculation of Broussard's offense level

The standard of review is de novo on a district court's interpretation or application of the Sentencing Guidelines; factual findings are reviewed for clear error. United States v. Robinson , 741 F.3d 588, 598–99 (5th Cir. 2014).

Broussard argues that the district court erroneously used aggravated assault, which has an offense level of 14, as his base offense. Instead, Broussard's base offense should have been "otherwise," which has a base offense level of six, because his wrongdoing was failing to intervene, not aggravated assault. Next, Broussard argues that the 15–point enhancement was wrong. Broussard received the following enhancements: four points because the assault was with a deadly weapon; three points because the inmate sustained injuries; six points because he was a law enforcement officer; and two points because the inmate was physically restrained during the assault. While he concedes the six-point enhancement for being a law enforcement officer is valid, Broussard argues that the other nine enhancement points do not apply to his crime of failing to intervene. Last, Broussard argues that the district court erroneously failed to reduce his offense level by four points as a "minimal" participant or by two points as a "minor" participant because he merely observed the assault on S.S.

In response, the Government argues that there is no distinction in criminal liability between an actor who willfully assaults an inmate and an actor who willfully fails to intervene in the assault. In both, the state actor is willfully depriving the inmate of his right to protection, and Section 242 prohibits the willful deprivation of rights. 18 U.S.C. § 242. Furthermore, regardless of criminal liability for aggravated assault, the Government argues that Broussard is accountable under the Guidelines for the aggravated assault of S.S. It is undisputed that Lasalle committed an aggravated assault.

First, Broussard is criminally liable for the aggravated assault. An inmate or pretrial detainee has a right to be free from lawless violence, and officers have a duty to protect against such violence: "[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." DeShaney v. Winnebago Cnty. Dep't of Soc. Servs. , 489 U.S. 189, 199–200, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). A law enforcement officer may be held liable under Section 242 for the substantive offense if the evidence shows awareness of a constitutional violation and no effort to prevent the violation. See United States v. McKenzie , 768 F.2d 602, 605–06 (5th Cir. 1985).

Broussard relies on a...