He Cooperated and Got 10 Years Over the Range. The Fifth Circuit Said No

A judge cannot ignore years of risky cooperation and impose a sentence far above the guideline range without a sound reason. On November 30, 2018, in United States v. Mathes, the Fifth Circuit threw out a sentence more than 10 years above the top of a cooperating defendant's range. Even the government agreed it was unreasonable.

What happened

Broderick Mathes pleaded guilty to cocaine trafficking and related charges, including a gun charge. He was accused of helping run a large drug ring that made cocaine in Houston and shipped it to Baton Rouge to be sold. His brother, Wilbert Mathes, led the operation.

Mathes cooperated for years, at the risk of his life. According to the court, he gave reliable information about other drug traffickers and murders, helped agents understand intercepted phone calls, made a controlled heroin buy, and testified at his brother's trial. He did this despite risks to his safety and having to admit facts that hurt him. He also faced threats of violence meant to stop him from cooperating.

According to the original article, Broderick was key to explaining the ring's complex money laundering network and shipping logistics, and in 2016 Wilbert Mathes was sentenced to 27 years in federal prison with the help of Broderick's information and testimony.

Cooperate with the Government

After the plea, the government found evidence that Mathes did not commit the gun offense, and it dismissed that charge. That removed a 15-year mandatory minimum under the Armed Career Criminal Act, but it did not change his guideline range of 188 to 235 months.

The government then filed a motion under U.S.S.G. § 5K1.1 for "substantial assistance," which lets a judge go below the range for someone who helped the government. The judge granted it, and the range dropped to 70 to 87 months.

But the judge then imposed 210 months, or 17.5 years. That was 123 months above the top of the range. The judge pointed to Mathes's record, the fact that he was on work release when he committed the crimes, and the dismissed gun charge.

What the Fifth Circuit held

The Fifth Circuit held the sentence was substantively unreasonable, and that a variance of 123 months above the top of the range was an abuse of discretion. The court noted the threats Mathes faced to discourage his cooperation. The judge had based the upward variance (a sentence above the range) partly on the dismissed gun charge, even though dropping that charge did not change the guideline range. The sentence was vacated and the case sent back for resentencing more in line with the guideline range.

The opinion is unpublished, so it is not binding precedent in the Fifth Circuit. United States v. Mathes, No. 17-30749 (5th Cir. Nov. 30, 2018).

Why it matters

Cooperation can put a person and his family at real risk. A sentence far above what even the prosecutor thinks is fair can discourage others from cooperating. Why would anyone risk violence and retaliation to help the government, only to get a sentence far longer than even the government thinks is reasonable?

Here, the appeals court stepped in. By refusing to let the sentence stand, the Fifth Circuit kept a real incentive in place for defendants to cooperate or accept a plea deal, and signaled that they should not be misled once they do.

Deciding whether to cooperate is a serious choice. Work closely with your lawyer at every stage of the investigation and case, talk it through before you decide, and make sure every mitigating factor is in front of the judge at sentencing. Keep in mind that the judge, not the prosecutor, decides the final sentence. And don't discuss cooperation, or any part of the case, on recorded jail phones or the prison email system, because those calls and messages are monitored.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.