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United States v. Hebert

United States District Court, E.D. Louisiana

July 9, 2019

UNITED STATES OF AMERICA
v.
MARK HEBERT

         SECTION: “H”

          ORDER AND REASONS

          JANE TRICHE MILAZZO UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Mark Hebert's Petition for Relief under 28 U.S.C. § 2255 (Doc. 171). For the following reasons, the Petition is DENIED.

         BACKGROUND

         On March 28, 2013, the Government charged Defendant Mark Hebert, a former Jefferson Parish sheriff's deputy, with numerous federal offenses in a 60-count Indictment. Among the charges in the Indictment were one count of deprivation of rights under the color of law, forty-eight counts of bank fraud, four counts of computer fraud, two counts of aggravated identity theft, and five counts of obstruction of a federal investigation.[1] None of the charged offenses included murder as an element of the offense. One of the bank fraud counts, however, included the following allegation:

It was further part of the scheme and artifice to defraud that the defendant, Mark 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.[2]

         On November 20, 2013, Hebert pleaded guilty to Counts 1 (deprivation of rights under color of law); 2, 39, 41, 42, and 44 (bank fraud); and 54 (aggravated identity theft).[3] Between July 21 and July 24, 2014, the Court held a sentencing hearing.[4] The focus of that hearing was to determine whether Hebert killed Bloch. The Court heard testimony from many witnesses and admitted a significant amount of physical evidence into the record during the hearing. Ultimately, the Court found that the Government had shown by clear and convincing evidence that Hebert killed Bloch.

         On November 10, 2014, the Court sentenced Hebert to 92 years in prison. The Court justified Hebert's sentence on two independent grounds. The first involved application of the “cross reference” provision of the U.S. Sentencing Guidelines. The Guidelines provide that when a defendant is convicted under a statute proscribing “fraudulent statements or representations generally” and “the conduct set forth in the count of conviction establishes an offense specifically covered by another guideline in Chapter Two [of the Guidelines], ” the court should apply the other guideline-not the fraud guideline-when calculating the sentence for the fraud conviction.[5] That is, the Court must cross reference the non-fraud guideline to determine a defendant's sentence for a fraud conviction.

         Here, Hebert pleaded guilty to five counts of bank fraud under 18 U.S.C. § 1344, which proscribes “obtain[ing] any of the money, funds, credits, assets, securities, or other property owned by . . . a financial institution, by means of false or fraudulent pretenses, representations, or promises.”[6] Thus, Hebert was convicted under a statute that prohibited fraudulent representations. Additionally, the Court interpreted “count of conviction” to mean the Indictment; the Indictment set forth a charge that Hebert intentionally killed Bloch; an intentional killing constitutes second degree murder; and Chapter Two of the Guidelines covers second degree murder.[7] Thus, the Court applied the Guidelines for second degree murder to Hebert's bank fraud convictions, which resulted in a within-Guidelines sentence of 92 years.[8]

         The Court also explained that “in the event it is found that the cross-reference does not apply, [the Court] would have applied a substantial upward variance and this sentence would have been exactly the same.”[9] The Court detailed the reasons for the upward variance as follows:

I have no doubt that Mr. Hebert killed Mr. Bloch and disposed of his body for his personal financial gain. Mr. Hebert, you used your position of trust and authority to satisfy your insatiable desire for money and property of other people. For reasons that I will never understand, that was not enough. You wanted everything that belonged to Albert Bloch, even his life. Mr. Hebert, like many parents, I have taught my children from the time they were babies that they could rely on and trust police officers. Your violation of that sacred trust is unconscionable. This heinous crime is beyond comprehension.[10]

         The Court continued,

considering the factors in 18 U.S.C. § 3553 that require the Court to impose a sentence that is sufficient but not greater than necessary to comply with its purposes and that the Court consider the nature and circumstances of the offense and the history and characteristics of the defendant, this sentence would reflect the seriousness of the offense, would promote respect for the law, and would provide just punishment for the offense. It would also protect the public from further crimes of the defendant and deter further criminal conduct.[11]

         Hebert asked the Court to reconsider his sentence, but the Court rejected his request.[12]

         Hebert subsequently appealed this Court's judgment to the Fifth Circuit, arguing that: the Government failed to prove that Hebert killed Bloch; the Court erred in applying the Sentencing Guidelines to Hebert; the Court violated Hebert's Fifth and Sixth Amendment rights by sentencing him based on a killing that a jury never convicted him of committing; and Hebert's sentence violated the Eighth Amendment. The Fifth Circuit rejected Hebert's arguments, affirming the Court's 92-year sentence.[13] The U.S. Supreme Court denied Hebert's petition for writ of certiorari.[14]

         On October 17, 2017, Hebert timely filed the instant Petition seeking relief under 28 U.S.C. § 2255. He seeks relief from his sentence on four grounds: (1) that his “jury trial rights were violated when he was subjected to a pseudo-trial at sentencing;” (2) that “[t]he Guidelines cross-reference was applied in error;” (3) that his trial counsel was constitutionally deficient “for failing to present mitigation evidence at sentencing;” and (4) that his trial counsel's “defense against the uncharged murder was constitutionally deficient.”[15] The Government opposes Hebert's Petition.[16]

         LEGAL STANDARD

         28 U.S.C. § 2255(a) provides a prisoner four grounds upon which he may seek relief from his sentence: (1) “that the sentence was imposed in violation of the Constitution or laws of the United States;” (2) “that the court was without jurisdiction to impose such sentence;” (3) “that the sentence was in excess of the maximum authorized by law;” or (4) that the sentence “is otherwise subject to collateral attack.”[17] If a court finds that any of the four grounds exist, the court “shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.”[18] Nevertheless, “[r]elief under § 2255 is ‘reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.'”[19] “A district court may deny a § 2255 motion without conducting any type of evidentiary hearing if ‘the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.'”[20]

         LAW AND ANALYSIS

         I. Hebert cannot now claim that his “jury trial rights were violated” or that this Court misapplied the Sentencing Guidelines because in his plea agreement he waived his right to make those types of challenges in a § 2255 petition

          “[A] defendant may waive his right to direct appeal and collateral attack of a conviction and sentence by means of a plea agreement, so long as the waiver is both knowing and voluntary.”[21] “A waiver is both knowing and voluntary if the defendant indicates that he read and understood the agreement and the agreement contains an ‘explicit, unambiguous waiver'” of the relief sought by the defendant.[22]

         Hebert indicated to this Court that he read and understood his plea agreement. The agreement was signed by Hebert and his trial counsel on November 20, 2013, the date of Hebert's rearraignment.[23] During the rearraignment, the following exchange occurred:

THE COURT: Do you fully understand that by pleading guilty you're waiving your right to an appeal and to contest your sentence in any post-conviction proceeding except under the very limited circumstances outlined in the plea agreement?
THE DEFENDANT: Yes.[24]

         When a prosecutor asked Hebert whether he “sign[ed] [the plea agreement] freely and voluntarily, ” Hebert said “[y]es, sir.”[25] When the Court again asked Hebert whether he “fully underst[ood] the consequences of [his] guilty plea” and whether he was “pleading guilty voluntarily and of [his] own free will, ” Hebert answered “[y]es, ma'am.”[26] Thus, Hebert clearly indicated that he read and understood his plea agreement.

         Furthermore, the plea agreement contains an explicit and unambiguous waiver of Hebert's right to seek the relief he currently seeks in his § 2255 Petition. The agreement provides:

Acknowledging these rights, subject only to the exceptions indicated in subsection (d) below, the defendant, in exchange for the promise(s) and agreement(s) made by the United States in this plea agreement, knowingly and voluntarily: . . .
(c) Waives and gives up any right to challenge his sentence collaterally, including but not limited to any and all rights which arise under Title 28, United States Code, Sections 2255 . . .
(d) The defendant specifically does not waive, and retains the right to bring a direct appeal of any sentence imposed. The defendant also retains the right to bring a post-conviction challenge if he establishes that ineffective assistance of counsel directly affected the validity of this waiver of appeal and collateral challenge rights or the validity of the guilty plea itself.[27]

         By the agreement's terms, Hebert waived his right to challenge his sentence excepted on very limited grounds. It is clear that the first two challenges raised in Hebert's petition-that his Sixth Amendment right to a jury trial was violated and that this Court erroneously applied the Sentencing Guidelines to Hebert-fell within the waiver.[28]

         When a § 2255 petition fails to allege that a plea agreement was signed unknowingly or involuntarily, “and the record contains no indication that ratification of the plea agreement was not ‘voluntary' or knowledgeable, the Court will hold the defendant to the bargain that he made . . . .”[29] Other sections of this court have interpreted the exact language in Hebert's plea agreement as a bar to a § 2255 petition.[30] As such, this Court finds that Hebert knowingly and voluntarily waived his right to challenge his sentence on the first two grounds raised in his Petition.[31]

         II. Hebert did not receive ineffective assistance of counsel during his sentencing hearing

          “The Sixth Amendment requires effective assistance of counsel at critical stages of a criminal proceeding, ” including “during sentencing in both noncapital and capital cases.”[32] Nevertheless, “the ...


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