No.

14-31405
consolidated w/ 14-31407

IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
MARK HEBERT,
Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana
USDC No. 2:13-CR-57-1
APPELLANTS BRIEF

CLAUDE J. KELLY
Federal Public Defender
Eastern District of Louisiana
JORDAN MARK SIVERD
Assistant Federal Public Defender
500 Poydras Street, Suite 318
Hale Boggs Federal Building
New Orleans, Louisiana 70130
(504) 589-7930
Jordan_Siverd@fd.org

CERTIFICATE OF INTERESTED PERSONS

United States v. Mark Hebert
No. 14-31405 consolidated w/ 14-31407
The undersigned counsel of record certifies that the following listed persons
and entities as described in the fourth sentence of Rule 28.2.1 have an interest in
the outcome of this case. These representations are made in order that the judges
of this Court may evaluate possible disqualification or recusal.
1.

Defendant-Appellant: Mr. Mark Hebert.

2.

Counsel for Plaintiff-Appellee: Mr. Vijay Shanker, Deputy

Chief of the Appellate Section, Criminal Division, U.S.
Department of Justice, and Assistant United States Attorney
Andre Jude Lagarde.
Former Counsel for Plaintiff-Appellee: United States Attorney
Kenneth Allen Polite, Jr., and Assistant United States Attorneys
Duane Evans and Fred P. Harper, Jr., and Dana Boente,
Stephen C. Parker, Shan P. Patel, and Tony Gordon Sanders,
Esqs.

3.

Counsel for Defendant-Appellant: Federal Public Defender

Claude J. Kelly and Assistant Federal Public Defender Jordan
Mark Siverd.
Former Counsel for Defendant-Appellant: Davidson S.
Ehle, III, Esq.
s/Jordan Mark Siverd
JORDAN MARK SIVERD
Assistant Federal Public Defender
Dated: July 24, 2015

ii

REQUEST FOR ORAL ARGUMENT

The appellant, Mr. Mark Hebert, respectfully requests oral argument in this
appeal of a 92-year sentence for murder. No jury convicted Mr. Hebert of murder.
He pleaded not guilty to the allegation that he committed murder and has persisted
in that plea to this day. When Mr. Hebert later pleaded guilty to a civil rights
misdemeanor, five counts of bank fraud with about $16,000 of actual losses, and
one count of aggravated identity theft, he did so pursuant to a written plea
agreement that acknowledged that he continued to deny the murder allegation.
Nevertheless, the district judge sentenced him for the murder to 92 years.

iii

TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS ....................................................... ii
REQUEST FOR ORAL ARGUMENT ................................................................... iii
STATEMENT OF JURISDICTION..........................................................................1
STATEMENT OF THE ISSUES...............................................................................2
STATEMENT OF THE CASE ..................................................................................3
SUMMARY OF THE ARGUMENT ......................................................................15
ARGUMENT ...........................................................................................................16
1. The Government failed to prove that Mr. Hebert killed
Mr. Bloch, much less that he did so under circumstances
amounting to second degree murder. .................................................. 16
a. Review is for clear error..................................................................... 16
b. The Government did not prove a killing, and certainly not
second degree murder. ....................................................................... 16
2. The cross-reference did not apply because the contested
murder allegation was not part of the count of conviction. .......... 18
a. Review is de novo. ............................................................................. 18
b. Because Mr. Hebert expressly denied the murder when
pleading guilty, it was not part of the count of conviction............. 18
3. Sentencing Mr. Hebert for murder without a murder
conviction violated his constitutional rights. ...................................... 22
a. Review is de novo. ............................................................................. 22
b. The due process and jury trial clauses of the Fifth and Sixth
Amendments prohibit what happened in this case............................. 23

iv

TABLE OF CONTENTS (Contd)

4. A 92-year sentence for a civil rights misdemeanor, $16,000 of
bank fraud, and aggravated identity theft is unconstitutionally
excessive.................................................................................................. 25
a. Review is de novo. ............................................................................. 25
b. The 92-year sentence does not fit the crime. ..................................... 25
CONCLUSION ........................................................................................................27
CERTIFICATES OF SERVICE AND COMPLIANCE

TABLE OF AUTHORITIES
Cases:
Alleyne v. United States,
133 S. Ct. 2151 (2013) ...................................................................................... 23
Apprendi v. New Jersey,
530 U.S. 466 (2000) .......................................................................................... 27
Atkins v. Virginia,
536 U.S. 304 (2002) .......................................................................................... 26
Gall v. United States,
552 U.S. 38 (2007) ............................................................................................ 23
Graham v. Florida,
560 U.S. 48 (2010) ............................................................................................ 26
Gregg v. Georgia,
428 U.S. 153 (1976) .................................................................................... 25, 26
Marlowe v. United States,
555 U.S. 963 (2008) (mem.) .............................................................................. 24
Omari v. Gonzales,
419 F.3d 303 (5th Cir. 2005) ......................................................................... 4, 19
Peugh v. United States,
133 S. Ct. 2072 (2013) ...................................................................................... 22
Rita v. United States,
551 U.S. 338 (2007) .......................................................................................... 23
Roper v. Simmons,
543 U.S. 551 (2005) .......................................................................................... 26
Solem v. Helm,
463 U.S. 277 (1983) .......................................................................................... 26
United States v. Aquino,
555 F.3d 124 (3d Cir. 2008) .............................................................................. 20
United States v. Bah,
439 F.3d 423 (8th Cir. 2005) ............................................................................. 18
vi

TABLE OF AUTHORITIES (Contd)

United States v. Beydoun,
469 F.3d 102 (5th Cir. 2006) ............................................................................... 9
United States v. Blackwell,
323 F.3d 1256 (10th Cir. 2003) ......................................................................... 20
United States v. Castillo-Martinez,
218 F. Appx 367 (5th Cir. 2007) ........................................................................ 4
United States v. Eakes,
783 F.2d 499 (5th Cir. 1986) ............................................................................... 4
United States v. Fields,
483 F.3d 313 (5th Cir. 2007) ............................................................................. 25
United States v. Arturo Garcia,
590 F.3d 308 (5th Cir. 2009) ................................................................. 18, 19, 22
United States v. Genao,
343 F.3d 578 (2d Cir. 2003) .............................................................................. 18
United States v. Gomez,
623 F.3d 265 (5th Cir. 2010) ............................................................................. 16
United States v. Greenough,
669 F.3d 567 (5th Cir. 2012) ....................................................................... 19, 21
United States v. Hernandez,
633 F.3d 370 (5th Cir. 2011) ............................................................................. 23
United States v. Morales-Martinez,
496 F.3d 356 (5th Cir. 2007) ............................................................................. 19
United States v. Rivera Juarez,
626 F.3d 246 (5th Cir. 2010) ............................................................................. 16
United States v. Romero-Cruz,
201 F.3d 374 (5th Cir. 2000) ............................................................................. 22
United States v. Shah,
453 F.3d 520 (D.C. Cir. 2006) .......................................................................... 20

vii

TABLE OF AUTHORITIES (Contd)

United States v. Trujillo,
502 F.3d 353 (5th Cir. 2007) ....................................................................... 16, 18
Constitutional Provisions:
U.S. CONST. art. III, 2 ........................................................................................... 9
U.S. CONST. amend. V ............................................................................................. 9
U.S. CONST. amend. VI ............................................................................................ 9
U.S. CONST. amend. VIII ....................................................................................... 25
Statutes:
18 U.S.C. 2 (2012) ................................................................................................ 3
18 U.S.C. 242 (2012) ............................................................................................ 3
18 U.S.C. 1030 (2012) .......................................................................................... 3
18 U.S.C. 1344 (2012) .......................................................................................... 3
18 U.S.C. 1519 (2012) .......................................................................................... 3
18 U.S.C. 3231 (2012) .......................................................................................... 1
18 U.S.C. 1028A (2012) ....................................................................................... 3
18 U.S.C. 3553(a) (2012) ...................................................................................... 8
18 U.S.C. 3742 (2012) .......................................................................................... 1
28 U.S.C. 1291 (2012) .......................................................................................... 1
LA. REV. STAT. 14:32 .......................................................................................... 17
LA. REV. STAT. 14:30.1 ....................................................................................... 17
Rules:
FED. R. CRIM. P. 35(a) .............................................................................................. 1
FED. R. EVID. 1101 ................................................................................................... 9
Sentencing Guidelines:
U.S.S.G. 1B1.1 cmt. n.1 ...................................................................................... 19
U.S.S.G. 1B1.2(a) ............................................................................................... 19
U.S.S.G. 1B1.2 cmt. n.1 ...................................................................................... 20

viii

TABLE OF AUTHORITIES (Contd)

U.S.S.G. 1B1.3 .................................................................................................... 19
U.S.S.G. 2A1.2 ...................................................................................................... 7
U.S.S.G. 2A1.4 .................................................................................................... 17
U.S.S.G. 2B1.1 ...................................................................................................... 7
U.S.S.G. 2B1.1(c)(3) ......................................................................... 2, 7, 8, 18, 21
U.S.S.G. 2H1.1 ...................................................................................................... 7
U.S.S.G. 2X5.1 .............................................................................................. 17, 21
U.S.S.G. 2X5.2 .................................................................................................... 21
U.S.S.G. Ch.5, Pt.A .................................................................................................. 7
U.S.S.G. 5G1.2 ................................................................................................ 7, 13
U.S.S.G. 5G1.2(a) ................................................................................................. 7
U.S.S.G. App. C ..................................................................................................... 20

ix

STATEMENT OF JURISDICTION
A.

The district court had jurisdiction of this criminal proceeding under

18 U.S.C. 3231.
B.

This Court has appellate jurisdiction under 28 U.S.C. 1291 and

18 U.S.C. 3742.
C.

The defendant-appellant, Mr. Mark Hebert, filed four notices of

appeal on the 22nd day of December, 2014.

ROA.426-33.

These notices

identified the following judgments or orders as those being appealed: the original
judgment, the amended judgment, the order denying relief under Federal Rule of
Criminal Procedure 35(a), and the order denying reconsideration of the sentence.
ROA.426-33. It was not clear that separate notices were necessary, but Mr. Hebert
filed them in an abundance of caution. ROA.437 n.1. Without deciding that
separate notices were truly necessary, the district court entered orders extending
the time to file some of the notices. ROA.395; ROA.446; see also Motion to
Consolidate p. 3 n.2, ECF dated 04/27/2015 (login may be required for ECF
hyperlink). This Court docketed the appeals under case numbers 14-31405 and
14-31407 and, on Mr. Heberts unopposed motion, consolidated the cases.
D.

This appeal is from final judgments and final orders in a criminal

case.

STATEMENT OF THE ISSUES

1)

Whether the Government proved that Mr. Hebert committed murder?

2)

Whether the district court erred in applying the cross-reference in

U.S.S.G. 2B1.1(c)(3) to the second degree murder guideline?

3)

Whether the district court violated Mr. Heberts Fifth Amendment due

process and Sixth Amendment jury trial rights by sentencing him for a crime that
he was never properly convicted of committing?
4)

Whether a 92-year sentence for a misdemeanor civil rights offense,

bank fraud involving about $16,000 of actual losses, and aggravated identity theft,
is excessive in violation of the Eighth Amendment?

STATEMENT OF THE CASE

Mr. Mark Hebert appeals a murder sentence without a murder conviction.
The Government charged that Mr. Hebert committed murder as part of a bank
fraud scheme although there is no body or even a murder scene. Mr. Hebert
pleaded not guilty, and he persisted in his not-guilty plea to the murder allegation
even as he pleaded guilty to bank fraud and other charges. Without a trial, without
a jury, in disregard of constitutional rights like confrontation and due process,
untrammeled by the Federal Rules of Evidence or proper guideline calculations,
without proof beyond a reasonable doubt, the district judge found that Mr. Hebert
was guilty of murder and sentenced him on that basis to 92 years in prison.
Proceedings in the district court
In 2013, a 60-count indictment charged Mr. Hebert with several crimes:
Count 1

deprivation of civil rights (misdemeanor); 18 U.S.C. 242;

aiding and abetting
18 U.S.C. 2

Counts 2 49

bank fraud;
aiding and abetting

18 U.S.C. 1344
18 U.S.C. 2

Counts 50 53

computer fraud;
aiding and abetting

18 U.S.C. 1030
18 U.S.C. 2

Counts 54 55

aggravated identity theft;

aiding and abetting

18 U.S.C. 1028A
18 U.S.C. 2

Counts 57 60

obstruction of a federal investigation;

aiding and abetting

18 U.S.C. 1519
18 U.S.C. 2

ROA.17-38. Paragraph (j) of the section of the indictment captioned Counts 2

49 alleged that as part of the [bank fraud] scheme, Mr. 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. ROA.21. Mr. Hebert pleaded not guilty. ROA.48.
Months later, Mr. Hebert changed his plea as to only some of the charges.
He did not plead guilty to all counts of the indictment or even to all of the
allegations in the counts to which he did plead guilty. Rather, he pleaded guilty
pursuant to a written plea agreement and written factual basis to certain charges in
Counts 1, 2, 39-42, 44, and 54 only. ROA.1453-56; ROA.98-108. For example,
he did not plead guilty to the aiding-and-abetting allegations in those counts. See
ROA.1453 (plea agreement) (not naming that offense or listing 2 for any of the
guilty-plea counts); ROA.284-85 (amended judgment) (same and dismissing all
remaining charges).1

See also United States v. Castillo-Martinez, 218 F. Appx 367, 368 (5th Cir. 2007)
(citing United States v. Eakes, 783 F.2d 499, 507 (5th Cir. 1986)) (holding that failure to submit
aiding-and-abetting theory to the jury required deletion of 2 from the judgment); Omari v.
Gonzales, 419 F.3d 303, 308-09 & n.10 (5th Cir. 2005) (holding that the defendants guilty plea
did not necessarily involve one of three elements that were conjunctively pleaded in his federal
indictment).

With respect to the bank fraud charged in Counts 2, 39-42, and 44, the plea
agreement memorialized Mr. Heberts refusal to admit the murder allegation in
paragraph (j):
[W]hether the defendant is responsible for the death of Albert Bloch
and the appropriate guideline range [are] . . . contested matter[s] that
will have to be determined by the Court at the sentencing hearing.
ROA.1453. Although the plea agreement included language waiving some of
Mr. Heberts appellate rights, ROA.1454-55, Mr. Hebert reserved the right to
appeal the sentence: The defendant specifically does not waive, and retains the
right[,] to bring a direct appeal of any sentence imposed, ROA.1455.
a.

Admissions in the factual basis

Mr. Hebert signed an 11-page factual basis, agreeing that the Government
would establish several facts relating to his guilty pleas at trial. ROA.98-108.
In 2007, Mr. Hebert was a deputy with the Jefferson Parish Sheriffs Office.
ROA.99. In that capacity, he responded to a traffic accident on August 2, 2007,
that had injured Mr. Albert Bloch. ROA.99-100. A medical technician at the
scene handed Mr. Blochs wallet to Mr. Hebert, who then unreasonably seized
and converted to his personal use Mr. Blochs property. ROA.99. Specifically,
Mr. Hebert stole and unlawfully used Mr. Blochs debit card, personal
identification number (PIN), bank checks, and drivers license. ROA.100. Still in
uniform, he purchased two global positioning system (GPS) devices with the debit

card the day of the accident. ROA.100-01. Thereafter, he used the debit card to
make cash withdrawals totaling $2,634.60 and purchases totaling $7,627.12.
ROA.101.

Further attempts to withdraw cash were unsuccessful as the bank

locked the debit card and issued Mr. Bloch a replacement card. ROA.102.
From September 17, 2007, through October 3, 2007, Mr. Hebert forged
checks drawn on Mr. Blochs bank account and used Mr. Blochs drivers license
and social security number. ROA.102. He used the checks to buy thousands of
dollars of race car parts from various suppliers. ROA.103-04. An attempt to cash
a forged check on October 3 was unsuccessful. ROA.105-06.
Meanwhile, Mr. Bloch used the replacement debit card the bank had sent
him until October 1, 2007. ROA.105. Then, on October 2, 2007, Mr. Hebert
obtained the replacement card and the corresponding PIN. He used and attempted
to use the new card from that time until October 4, 2007. ROA.105. Mr. Hebert
withdrew $405 with the replacement card before the bank locked the new card, too.
ROA.105. An individual then called the bank on October 5, 2007, from Mr.
Heberts telephone and attempted to have the new card unfrozen. ROA.106.
Mr. Blochs drivers license and check book were found during a search of
Mr. Heberts house in November 2007, ROA.106, as were sales receipts for some
of the race car parts, ROA.103-04. Other race car products purchased with one of
Mr. Blochs forged checks were found under a pile of leaves in a wooded area next

to Mr. Heberts fathers residence after Mr. Hebert was seen leaving the area in a
suspicious manner. ROA.103-04.
b.

First and Second Presentence Reports

The first PSR calculated an offense level of 22 based largely on the financial
scale of the bank fraud offensesjust over $30,000. ROA.1482-83 (First PSR
pp. 22-23, 80) (citing U.S.S.G. 2H1.1; U.S.S.G. 2B1.1). With a criminal
history category of II, the guideline range of imprisonment was about six or seven
years. ROA.1490 (First PSR p. 30, 128) (46 to 57 months plus two consecutive
years for the aggravated identity theft); see also U.S.S.G. Ch.5, Pt.A (sentencing
table); U.S.S.G. 5G1.2(a).
A second version of the PSR, however, calculated a total offense level of 44
based primarily on a cross-reference in U.S.S.G. 2B1.1(c)(3) to the first degree
murder guideline in U.S.S.G. 2A1.2. ROA.1519-20 (Second PSR pp. 22-23,
80).

Although Mr. Hebert had specifically denied the murder allegation in

paragraph (j) of the indictment, the second PSR cited that paragraph in applying
the cross-reference. ROA.1519-20 (Second PSR pp. 22-23, 80). The new
guideline imprisonment range was life, which would be restricted by the statutory
maximums to 153 years. ROA.1527 (Second PSR p. 30, 128); see also U.S.S.G.
Ch.5, Pt.A (sentencing table); U.S.S.G. 5G1.2.

c.

Contested murder allegation

The district court scheduled a multi-day sentencing hearing to adjudicate the

murder allegation. ROA.143. The parties submitted pre-hearing memoranda.
ROA.1658-1720 (Governments Memorandum); ROA.1721-57 (Defendants
Memorandum);

ROA.1760-70

(Governments

Response);

ROA.1771-75

(Defendants Reply).
Mr. Hebert argued that the Government could not prove that he killed
Mr. Bloch under any standard of review. ROA.1723-34; ROA.1742-49. Also,
Mr. Hebert raised constitutional claims that the adjudication of the murder
allegation by the district judge, under a preponderance-of-the-evidence standard,
would violate his Fifth Amendment due process and Sixth Amendment jury trial
rights. ROA.1734-40; ROA.1771. Alternatively, he argued for application of
clear-and-convincing or beyond-a-reasonable-doubt standards, which he also
contended the Government could not satisfy. ROA.1740-42; ROA.1771-74. In
addition, Mr. Hebert challenged the application of the cross-reference in U.S.S.G.
2B1.1(c)(3), ROA.1749-51, and addressed the 18 U.S.C. 3553(a) factors,
ROA.1751-57.
The murder hearing lasted longer than the vast majority of federal criminal
trials but followed very different rules. Compare ROA.174-80 (four-day hearing),
with U.S. COURTS, LENGTHS OF CIVIL AND CRIMINAL TRIAL COMPLETED, NO. T-2

(Sept. 30, 2014) (86% of federal criminal trials last one to three days), available at
http://www.uscourts.gov/statistics/table/t-2/judicial-business/2014/09/30

(last

visited July 24, 2015). What did not happen is as important as what did happen.
Although the Constitution provides that all crimes shall be adjudicated by
trial with due process of law, U.S. CONST. art. III, 2; U.S. CONST. amend. V-VI,
the Federal Rules of Evidence and the Confrontation Clause, for example, were not
heeded at Mr. Heberts murder hearing, cf. FED. R. EVID. 1101 (rules of evidence
do not apply); United States v. Beydoun, 469 F.3d 102, 108 (5th Cir. 2006)
(confrontation clause does not apply). In fact, the Government adduced hearsay,
see, e.g., ROA.866, as well as the testimonial statements of several deceased
individuals who, obviously, could not be cross-examined, ROA.880-916;
ROA.1013-62. Although the Constitution provides that the trial of all crimes shall
be by an impartial jury, U.S. CONST. art. III, 2; U.S. CONST. amend. VI,
Mr. Heberts guilt of the murder for which he was sentenced was decided by a
judge, ROA.1390-1400.
In addition to the admissions noted above, the witnesses and other materials
presented at the murder hearing showed that Mr. Bloch had [s]ignificant COPD,
ROA.751, was a functional alcoholic, ROA.512, ROA.723-24, and struggled with
depression, whether due to post-traumatic stress disorder or the passing of his
common law wife, ROA.698, ROA.724.

He had been displaced and even

homeless after Hurricane Katrina, but a rehabilitation program arranged

transitional housing for him and helped him apply successfully for Social Security
benefits that more than doubled his monthly income, in addition to a lump sum
payment of past-due benefits. ROA.717-28.
He lived in an apartment by himself, ROA.855, and frequented area bars,
where he visited with a handful of friends, ROA.900-02; ROA.950; ROA.982.
Several friends reported last seeing him in late September or early October, see,
e.g., ROA.625 (Oct. 2); ROA.910 (Sept.); ROA.956 (Oct. 2); ROA.993 (Sept. 28);
ROA.1008 (late Sept.), while others said they last saw him in November,
ROA.928; ROA.963; ROA.1073.
There was no body or murder scene, but Mr. Blochs car was later found
down the street from his apartment.

ROA.642.

The license plate had been

removed and the vehicle identification number covered. ROA.651. An ATM

receipt in the car from a nearby bar that Mr. Bloch frequented was dated October 1,
2007. ROA.650-51. A key to Mr. Blochs car was found in Mr. Heberts police
unit. ROA.1202-04. His apartment was abandoned and his prescriptions went
unfilled. See, e.g., ROA.846.
The Government believed that a note in the car that had the name and phone
number of a sheriffs deputy for a paid security detail was a possible link to
Mr. Hebert, ROA.599-600, but a Government witness acknowledged that

10

Mr. Hebert did not work security details but only motorcycle escort details,
ROA.642-43. The Government also pointed to a television that was missing from
Mr. Blochs apartment in early October.

It was similar to a television that

Mr. Hebert brought into his house and then removed after police began
investigating him.

ROA.612-17; ROA.671; ROA.702; ROA.889-90.

The

Government also presented other things, like testimony from Mr. Heberts ex-wife
that he had a temper, ROA.658, statements from others regarding a hypothetical
comment he made about burying a body, ROA.1287-90, and testimony regarding
how much he perspired when discussing the missing person investigation with a
friend, ROA.1260.
The district court found by a preponderance of the evidence that the
Government established that Mr. Hebert killed Mr. Bloch:
While Mr. Blochs body has never been located, there is
substantial circumstantial evidence indicating that Mark Hebert
committed this murder. On October 1, Albert Bloch had his new debit
card on his person. On October 2, Albert Bloch visited Joes Caddy
Corner for drinks and gambling. He necessarily had on his person his
money and his wallet. On October 3, Mark Hebert was in possession
of the debit card. While this Court cannot say how Mr. Blochs debit
card was removed from his person by Mr. Hebert, removed it was.
Mr. Blochs car was last seen at his apartment in early October.
I believe, based on all of the evidence, that he was in his car on
October 2. Uncontradicted testimony reveals that the Volvo was
parked in a secluded parking lot, though near his home and Joes
Caddy Corner, with the license plate removed and the VIN number
covered in early October. The key to Mr. Blochs car was found in
the defendants police cruiser. I believe that after Mr. Hebert

11

murdered Mr. Bloch, he moved the car in an effort to thwart any

investigation of Mr. Blochs [dis]appearance.
Subsequent to October 3, 2007, Mark Hebert began in earnest
to divest Mr. Blochs account of all remaining funds. The evidence
revealed that Mark Hebert entered Albert Blochs apartment on
numerous occasion[s] following October 2, this Court believes to
intercept any attempt by Chase Bank to discover the fraud. However,
even this could not satisfy Mark Heberts insatiable desire to steal
from Mr. Bloch. In a final blow, Mark Hebert entered Mr. Blochs
apartment and stole his new television set.
Exactly how Mark Hebert murdered Mr. Albert Bloch we may
never know. There is no body and there is no clear crime scene.
There are scenarios that the Court believes make sense. Certainly
sometime during Mark Heberts shift from 10:00 p.m. on October 2
until 6:00 a.m. an October 3, Mark Hebert could have initiated a
traffic stop on Albert Bloch as he left Joes Caddy Corner. Mr. Bloch
could have been handcuffed and taken to another location where the
defendant murdered him and disposed of his body. The defendant
could have returned to the Volvo and abandoned it in the back of an
apartment complex. This logically explains the location of the
vehicle, the lack of physical evidence in the Volvo, and the apartment.
Other scenarios are possible, but under all scenarios it is clear that
Mark Hebert killed Albert Bloch.
In conclusion, I have considered all of the evidence and find
that the United States has proven beyond a preponderance of the
evidence that Mark Hebert murdered Albert Bloch. This Court finds
that the government has met this burden by clear and convincing
evidence.
I should add that in assessing all of the evidence, I could not
find a doubt to which I could assign reason. I do not find, however,
that the United States has proven that Mr. Hebert committed first
degree murder. Rather, I find that the evidence shows by clear and
convincing evidence that Mark Heberts conduct satisfies the elements
of second degree murder.
ROA.1398-1400.

12

d.

Final sentencing hearing

The final PSR reported the same guideline calculation as the second PSR
153 years.

ROA.1597 (Final PSR p. 30, 130); see 5G1.2.

At the last

sentencing hearing, Mr. Hebert expressed remorse for his financial crimes against
Mr. Bloch but continued to deny that he killed him. ROA.1424-28. In closing, he
stated: I pray, however, that I will not be required to serve a sentence for crimes
that I did not commit. ROA.1428.
When the Government, in turn, asked for a 153-year sentence, ROA.1432, it
argued that the most egregious part of this case was that the defendant killed
Mr. Bloch in furtherance of this scheme, ROA.1434. The Government also
argued that Mr. Hebert concealed the body to the point where even today, . . . we
do not know where it is. ROA.1434
The district court adopted the PSR, including the cross-reference, Statement
of Reasons (SOR) p. 1, and sentenced Mr. Hebert to 92 years of imprisonment,
ROA.1436. In selecting this sentence, the court reasoned that Mr. Hebert killed
Mr. Bloch and disposed of his body for his personal financial gain. ROA.1436.
Addressing Mr. Hebert, the court stated: You wanted everything that belonged to
Albert Bloch, even his life. . . . This heinous crime is beyond comprehension.
ROA.1437.

13

Mr. Hebert moved for correction or reconsideration of the sentence.

ROA.302-12; ROA.415-21. The district court denied those motions, ROA.382-83,
ROA.423-25, and the instant consolidated appeals followed, ROA.426-33.

14

SUMMARY OF THE ARGUMENT

Mr. Mark Hebert pleaded guilty to a misdemeanor civil rights offense, five
counts of bank fraud involving a total actual loss of about $16,000, and aggravated
identity theft. The district court held a four-day hearing and determined that he
was guilty of second degree murder in the disappearance of Mr. Albert Bloch.
Based on the murder finding, the court sentenced Mr. Hebert to 92 years in prison.
This Court should vacate the sentence due to procedural, legal, and
constitutional errors. First, the Government failed to prove that Mr. Bloch was
killed, much less that Mr. Hebert committed second degree murder. Second, the
guideline cross-reference did not apply and, even if it did, would not have pointed
to the offense guideline for second degree murder.

Third, the district judge

supplanted the role of the jury in our constitutional system of criminal justice by
finding facts that effectively increased Mr. Heberts statutory sentencing exposure.
Fourth, a 92-year prison sentence for the offenses of conviction is
unconstitutionally excessive.

15

ARGUMENT
1.

The Government failed to prove that Mr. Hebert killed

Mr. Bloch, much less that he did so under circumstances
amounting to second degree murder.
a.

Review is for clear error.

Over the course a four-day hearing and after, Mr. Hebert contested the
Governments claim that he committed murder.

See, e.g., ROA.1374-83;

ROA.1742-49. This Court reviews the district courts factual findings for clear
error. United States v. Trujillo, 502 F.3d 353, 356 (5th Cir. 2007). A factual
finding is clearly erroneous if it is implausible in light of the record as a whole.
United States v. Gomez, 623 F.3d 265, 267-68 (5th Cir. 2010).
b.

The Government did not prove a killing, and certainly not second
degree murder.

Although the Government has the burden of proving a sentencing

enhancement by a preponderance of the evidence, United States v. Juarez, 626
F.3d 246, 251 (5th Cir. 2010), it failed to do so here. There was no body. There
was no murder scene. No DNA or blood evidence indicated that Mr. Bloch was
killed. He had severe COPD and used inhalers. ROA.846. Only weeks before,
Mr. Bloch had totaled his car in a single-car accident. ROA.541; ROA.883.
Several witnesses reported seeing Mr. Bloch after the time the Government
claims he was killed. See, e.g., ROA.1073. Although there was some interruption

16

of his routines, second degree murder by Mr. Hebert is not the only logical
explanation.
In any event, not only was there insufficient evidence to find that Mr. Hebert
was responsible for the death of Mr. Bloch, as discussed above, but even assuming
that finding could be affirmed, there was no evidentiary basis for choosing to
cross-reference to a guideline involving second degree murder. See LA. REV.
STAT. 14:30.1.

The record is devoid of evidence establishing Mr. Heberts

mental state at the time of the alleged killing, whenever that was. The event could
just as easily have involved manslaughter or negligent homicide. If applied, the
cross-reference in 2B1.1(c)(3) should have led to U.S.S.G. 2X5.1. See also
2X1.1, cmt. n.3 (If the substantive offense is not covered by a specific
guideline, see 2X5.1 (Other Offenses).). That section, in turn, should have led
to U.S.S.G. 2A1.4 (Involuntary Manslaughter), which is the most analogous
offense guideline for the Louisiana offense of negligent homicide. See 2X5.1;
LA. REV. STAT. 14:32. The cross-reference to a guideline for offenses involving
intent to commit second degree murder was wholly unfounded. This Court should
therefore vacate the sentence imposed within the resulting guideline range and
remand the case to the district court for resentencing.

17

2.

The cross-reference did not apply because the contested

murder allegation was not part of the count of conviction.
a.

Review is de novo.

Mr. Hebert objected to the cross-reference.

ROA.1412-15, esp.

ROA.1414:16-1415:9 (quoting United States v. Genao, 343 F.3d 578, 583 (2d Cir.
2003); ROA.1749-51; ROA.309-11 see also ROA.1622-23. This Court reviews
the district courts interpretation or application of the Sentencing Guidelines
de novo. Trujillo, 502 F.3d at 356.
b.

Because Mr. Hebert expressly denied the murder when pleading

guilty, it was not part of the count of conviction.

This cross-reference is applicable only if the conduct alleged in the count

of the indictment of which the defendant is convicted establishes the elements of
another offense.

United States v. Bah, 439 F.3d 423, 427 (8th Cir. 2006)

(quoting Genao, 343 F.3d at 583); see United States v. Arturo Garcia, 590 F.3d
308, 315 (5th Cir. 2009) (same). The district court erred in cross-referencing to the
federal murder guideline pursuant to U.S.S.G. 2B1.1(c)(3). Specifically, the
district court failed to appreciate that because Mr. Hebert expressly refused to
admit the murder allegation in paragraph (j) of the Counts 2 - 49 section of the
indictment, this alleged conduct was not part of the count of conviction as that
term is used in 2B1.1(c)(3) (emphasis added). See ROA.98-108; ROA.1453.

18

Federal indictments may be proved disjunctively even if worded

conjunctively. In Omari v. Gonzales, 419 F.3d 303, 308 n.10 (5th Cir. 2005), this
Court recognized that [i]ndictments often allege conjunctively elements that are
disjunctive in the corresponding statute, and this does not require either that the
government prove all of the statutorily disjunctive elements or that a defendant
admit to all of them when pleading guilty. See also United States v. MoralesMartinez, 496 F.3d 356, 359 n.1 (5th Cir. 2007). Here, the additional elements
that the Government sought to embroider onto the count of conviction do not even
appear in the statute of conviction. In any event, Mr. Hebert expressly refused to
admit the additional allegations in paragraph (j), and those charges thus do not
form part of any count of conviction. See Omari, at 308-09 & n.10; see also
Arturo Garcia, 590 F.3d at 315.
The Sentencing Guidelines distinguish the term offense from the term
offense of conviction. U.S.S.G. 1B1.1, cmt. n.1(H). The former generally
includes both the offense of conviction and all relevant conduct under 1B1.3
(Relevant Conduct). Id. The latter, means the offense conduct charged in the
count of the indictment . . . of which the defendant was convicted. U.S.S.G.
1B1.2(a). Furthermore, the Guidelines use count of conviction and offense of
conviction interchangeably. Id. Courts have recognized the distinction. United
States v. Greenough, 669 F.3d 567, 574-75 (5th Cir. 2012); United States v.

19

Aquino, 555 F.3d 124, 129 (3d Cir. 2009); United States v. Blackwell, 323 F.3d
1256, 1260 (10th Cir. 2003).
Accordingly, when identifying the guideline that applies to an offense of
conviction, [t]he court is to use the Chapter Two guideline section referenced in
the Statutory Index (Appendix A) for the offense of conviction. 1B1.2, cmt.
n.1.

This language was specifically added to the Guidelines Manual to stop

sentencing courts from using a defendants relevant conduct to select an offense

guideline other than that referenced in the statutory index. U.S.S.G. App. C,
amend. 591. It is unsurprising, then, that the commentary contemplates that the
2B1.1(c)(3) cross-reference will trigger the application of a Chapter Two
guideline for a distinct yet similarly fraudulent offense. 2B1.1, cmt. n.16
(stating that (c)(3) provides a cross-reference . . . in cases in which the defendant
is convicted of a general fraud statute, and the count of conviction establishes an
offense involving fraudulent conduct that is more aptly covered by another
guideline (emphasis added)).
[A]n exception to this general rule is that if a plea agreement (written or
made orally on the record) contains a stipulation that establishes a more serious
offense than the offense of conviction, the guideline section applicable to the
stipulated offense is to be used. Id.; see, e.g., United States v. Shah, 453 F.3d 520
(D.C. Cir. 2006).

Here, the opposite is truethe plea agreement contains a

20

stipulation that establishes that the allegations of paragraph (j) are not admitted and
therefore do not form part of the count of conviction. ROA.1453. By considering
conduct that did not form part of the count of conviction when deciding whether to
apply the cross-reference in 2B1.1(c)(3), this Court erred. See Greenough, 669
F.3d at 573-75.
Moreover, the cross-reference provision only applies if the conduct set
forth in the count of conviction establishes an offense specifically covered by
another guideline in Chapter Two (Offense Conduct). 2B1.1(c)(3). A state-law
killing is not specifically covered by another guideline as state crimes do not
appear in Appendix A. Instead of being specifically covered by a Chapter Two
guideline, a state-law killing would instead fall under either U.S.S.G. 2X5.1
(Other Felony Offenses), which pertains to a felony for which no guideline
expressly has been promulgated, or U.S.S.G. 2X5.2 (Class A Misdemeanors
(Not Covered by Another Specific Offense Guideline)).

The background

commentary to 2X5.1 notes that [m]any offenses, especially assimilative

crimes defined by state law, are not listed in the Statutory Index or in any of the
lists of Statutory Provisions that follow each offense guideline. Because such
crimes are not specifically covered, courts are required to determine if there is a
sufficiently analogous offense guideline. Id.

21

In short, Mr. Hebert expressly denied that he was responsible for

Mr. Blochs death. Killing Mr. Bloch, therefore, could not form part of any count
of conviction. Arturo Garcia, 590 F.3d at 315. The cross-reference did not
apply, and without it, the advisory range would have been about six or seven years
rather than 153 years. See ROA.1490 (First PSR p. 30, 128). Accordingly, this
Court should vacate the 92-year murder sentence and remand the case for
resentencing. See Peugh v. United States, 133 S. Ct. 2072, 2080 (2013) ([A]
major departure [from the Guidelines] should be supported by a more significant
justification than a minor one. (alterations in original) (quoting Gall v. United
States, 552 U.S. 38, 49 (2007)).
3.

Sentencing Mr. Hebert for murder without a murder

conviction violated his constitutional rights.
a.

Review is de novo.

Mr. Hebert raised as-applied constitutional challenges to being sentenced for

murder after pleading guilty to a different crime. ROA.1734-42; ROA.306-07. He
invoked both the due process and jury trial rights. E.g., ROA.1735 (due process
right); ROA.1738 (right to trial by jury); ROA.306 (both). Accordingly, this Court
reviews the constitutional claims de novo. United States v. Romero-Cruz, 201 F.3d
374, 377 (5th Cir. 2000).

22

b.

The due process and jury trial clauses of the Fifth and Sixth
Amendments prohibit what happened in this case.

Only a jury applying a reasonable doubt standard can make findings that
increase a statutory punishment range. Alleyne v. United States, 133 S. Ct. 2151,
2156 (2013). Here, the district judges murder finding increased the effective
statutory range of punishment for Mr. Heberts offenses. But for the judges
finding of murder, the 92-year sentence would be substantively unreasonable and
therefore unlawful. Resentencing is warranted.
In Rita v. United States, 551 U.S. 338 (2007), Justice Scalia presciently
observed that there w[ould] inevitably be some constitutional violations under
[the post-Booker] system of substantive reasonableness review, because there
w[ould] be some sentences that w[ould] be upheld as reasonable only because of
the existence of judge-found facts. Id. at 374 (Scalia, J., concurring in part and
concurring in the judgment). And, in Gall v. United States, 552 U.S. 38 (2007),
Justice Scalia noted that the [Supreme] Court has not foreclosed as-applied
constitutional challenges to sentences. The door therefore remains open for a
defendant to demonstrate that his sentence . . . would not have been upheld but for
the existence of a fact found by the sentencing judge and not by the jury. Id. at
602-03 (Scalia, J., concurring); but cf. United States v. Hernandez, 633 F.3d 370,
373-74 (5th Cir. 2011).

23

In a later case, Justice Scalia found a constitutional violation of the type that
he had predicted in Rita and Gall. See Marlowe v. United States, 555 U.S. 963,
963-64 (2008) (mem.) (Scalia, J., dissenting from denial of certiorari).

In

Marlowe, the defendant was convicted of a civil-rights violation involving

involuntary manslaughter by criminal negligence. The sentencing court, however,
found that the defendant had possessed the malice aforethought required to
elevate the homicide to second-degree murder. This judicial finding elevated the
Guideline offense level from 10 to 33, producing a Guideline-recommended
sentence of life imprisonment, which the sentencing court imposed. On appeal,
the Sixth Circuit found the life sentence lawful solely because of the judge-found
fact that Marlowe had acted with malice aforethought. Id. at 964 (Scalia, J.,
dissenting from denial of certiorari). This, said Justice Scalia, falls short of
what we have held the right to jury trial demands . . . . Id. (Scalia, J., dissenting
from denial of certiorari).
This case raises precisely the sort of constitutional violation identified by
Justice Scalia, in a context even starker than that presented in Marlowe.2 Here, but
for the judicial finding that Mr. Hebert committed second degree murder by killing
Mr. Bloch, Mr. Heberts offenses of conviction would have produced a guideline

In Marlowe, the defendant was at least convicted of some homicide offense; the judicial
finding concerned merely the grade of the homicide. Here, Mr. Hebert was not convicted of any
homicide offense.

24

imprisonment range of only six or seven years. See ROA.1490 (First PSR p. 30,
128). But, with that finding, Mr. Hebert was sentenced to 92 years in prison.
There can be no doubt that Mr. Heberts 92-year sentence could not be considered
substantively reasonable without the judicial finding of murder. Accordingly,
Mr. Heberts sentence violates the Fifth and Sixth Amendments. The sentence
should therefore be vacated and remanded for resentencing.
4.

A 92-year sentence for a civil rights misdemeanor, $16,000 of

bank
fraud,
and
aggravated
identity
theft
is
unconstitutionally excessive.
a.

Review is de novo.

Mr. Hebert preserved an objection to his sentence under the Eighth

Amendment. ROA.305-08. This Court reviews constitutional claims de novo.
United States v. Fields, 483 F.3d 313, 340 (5th Cir. 2007).
b.

The 92-year sentence does not fit the crime.

The Eighth Amendment to the United States Constitution expressly prohibits

excessive sanctions, U.S. CONST. amend. VIII, which the Supreme Court has
interpreted to mean that punishment must not be grossly out of proportion to the
severity of the crime, Gregg v. Georgia, 428 U.S. 153, 173 (1976) (internal
quotation marks and citations omitted).

The Eighth Amendments ban on

excessive sanctions is rooted in the precept of justice that punishment for crime

25

should be graduated and proportioned to [the] offense. Roper v. Simmons, 543

U.S. 551, 560 (2005) (quoting Atkins v. Virginia, 536 U.S. 304, 311 (2002)).
In the non-capital sentencing context, a courts proportionality analysis
under the Eighth Amendment should be guided by objective criteria, including
(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences
imposed on other criminals in the same jurisdiction; and (iii) the sentences
imposed for commission of the same crime in other jurisdictions. Solem v. Helm,
463 U.S. 277, 284 (1983). Indeed, [t]he concept of proportionality is central to
the Eighth Amendment, Graham v. Florida, 560 U.S. 48, 59 (2011), because it is
necessary to comport[ ] with the basic concept of human dignity at the core of the
[Eighth Amendment], Gregg, 428 U.S. at 182.
Mr. Hebert pleaded guilty to violating three federal statutesmisdemeanor
civil rights, bank fraud, and aggravated identity theftbut was sentenced based on
a different crimemurder.

The consequences were devastating: a 92-year

sentence driven by a sentencing factor outside the facts of his conviction.

Permitting the criminal justice process to function in this way blows a gaping
loophole in the Bill of Rights, allowing an end-run around its critical protections
for the accused in criminal cases. See also Apprendi v. New Jersey, 530 U.S. 466,
562-63 (2000) (Breyer, J., dissenting) (recognizing that sentences such as this
present unusual and serious procedural unfairness). This Court should vacate

26

Mr. Heberts sentence because it is a disproportionate and excessive punishment

that violates the constitutional prohibition against cruel and unusual punishment.
CONCLUSION
The district court sentenced Mr. Hebert for murder though he was never
convicted of that crime. Moreover, the Government failed to prove the murder
even by a preponderance of the evidence, and the bank fraud guideline did not
support a cross-reference to that offense. The result is a 92-year prison sentence
that is procedurally erroneous and unconstitutional. This Court should vacate the
sentence and remand the case for resentencing according to law.
Respectfully submitted this 24th day of July, 2015,
CLAUDE J. KELLY
Federal Public Defender
Eastern District of Louisiana
s/Jordan Mark Siverd
JORDAN MARK SIVERD
Assistant Federal Public Defender
500 Poydras Street, Suite 318
Hale Boggs Federal Building
New Orleans, Louisiana 70130
(504) 589-7930
Jordan_Siverd@fd.org

27

CERTIFICATE OF SERVICE
The undersigned certifies that on this 24th day of July, 2015, the foregoing
Appellants Brief was filed with the Clerk of Court via the electronic filing system,
which will send an electronic Notice of Docket Activity to the following Filing
Users:
Mr. Vijay Shanker
Deputy Chief
Appellate Section, Criminal Division
U.S. Department of Justice
vijay.shanker@usdoj.gov

Mr. Andre Jude Lagarde

Assistant United States Attorney
U.S. Attorneys Office for the
Eastern District of Louisiana
andre.lagarde@usdoj.gov

The courts electronic Notice of Docket Activity constitutes service of the filed
document on all Filing Users. 5TH CIR. R. 25.2.5.
s/Jordan Mark Siverd
JORDAN MARK SIVERD
Assistant Federal Public Defender

CERTIFICATE OF COMPLIANCE
The undersigned certifies that:
1.

This brief complies with the type-volume limitation of FED. R.

APP. P. 32(a)(7)(B) because this brief contains 5,771 words,
excluding the parts of the brief exempted by FED. R. APP.
P. 32(a)(7)(B)(iii).

2.

This brief complies with the typeface requirements of FED. R.

APP. P. 32(a)(5) and 5TH CIR. R. 32.1 and the type style
requirements of FED. R. APP. P. 32(a)(6) because this brief has
been prepared in a proportionally spaced typeface using
Microsoft Word 2010 in Times New Roman, 14-point font for
text and 12-point font for footnotes.

3.

This brief complies with the privacy redaction requirement of

FED. R. APP. P. 25(a)(5), 5TH CIR. R. 25.2.13, and FED. R. CRIM.
P. 49.1, because it has been redacted of personal data
identifiers.

4.

This electronic submission is an exact copy of the paper

document, in compliance with 5TH CIR. R. 25.2.1.

5.

This brief is free of viruses because it has been scanned for

viruses with the most recent version of Symantec Endpoint
Protection, in compliance with 5TH CIR. ECF FILING
STANDARD A(6).
s/Jordan Mark Siverd
JORDAN MARK SIVERD
Assistant Federal Public Defender
Dated: July 24, 2015