IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-10058

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

SHAWN TRAVIS CATHEY,

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:15-CR-152-8

Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Shawn Travis Cathey challenges his 360-month, within-Guidelines 

sentence, imposed following his conviction for conspiring to possess, with 

intent to distribute, 50 grams or more of a mixture and substance containing 

methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1) & (b)(1)(B). 

The Guideline-sentencing range applicable to Cathey was 360-480 

months’ imprisonment. Before sentencing, the Government moved for a 

 

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5th Cir. 

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 11, 2016

Lyle W. Cayce

Clerk

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No. 16-10058

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downward departure, pursuant to Guideline § 5K1.1, because Cathey provided 

substantial assistance. That section provides: “Upon motion of the 

government stating that the defendant has provided substantial assistance in 

the investigation or prosecution of another person who has committed an 

offense, the court may depart from the guidelines”. U.S.S.G. § 5K1.1.

At sentencing, after the Government called a witness to testify in support 

of its § 5K1.1 motion, the court stated:

I find that the defendant did provide substantial 

assistance to the government in the investigation and 

prosecution of the criminal activities of others, and 

that he would be eligible for a sentence below the 

bottom of the advisory guideline range. Of course, 

there are a lot of other factors that enter into it, and so 

I’ll hear from [Cathey’s attorney] on that subject.

After hearing from Cathey’s attorney and Cathey, among others, the court 

reviewed Cathey’s criminal history and the leniency of his prior sentences. The 

court continued:

Were it not for the defendant’s cooperation, . . . I would 

be sentencing at the top of the advisory guideline 

range in this case, the 480 months of imprisonment.

I’m going to reduce what I otherwise would have done 

to take into account his cooperation with the 

government, and the sentence I’m going to impose also 

will take into account all of the factors the Court 

should consider in sentencing under 18 United States 

Code Section 3553(a). 

...

I’m going to sentence him at the bottom of the 

guideline range at . . . 360 months, which is really a 

120-month or 10-year reduction from what his 

sentence would have been had he not provided the 

cooperation to the government.

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Cathey objected to the sentence as procedurally unreasonable, for “failing to 

follow the three-step process” in United States v. Malone, ___ F.3d ___, No. 14-

31426, 2016 WL 3627319, 6 (5th Cir. July 6, 2016). (The original version of 

Malone relied upon by Cathey, 809 F.3d 251 (5th Cir. 2015), was subsequently 

withdrawn and superseded. However, the portion upon which Cathey relies 

remains unchanged. Compare 809 F.3d at 260–61 with 2016 WL 3627319, 6.) 

Although post-Booker, the Sentencing Guidelines are advisory only, and 

a properly preserved objection to an ultimate sentence is reviewed for 

reasonableness under an abuse-of-discretion standard, the district court must 

still properly calculate the Guideline-sentencing range for use in deciding on 

the sentence to impose. Gall v. United States, 552 U.S. 38, 48–51 (2007). In 

that respect, for issues preserved in district court, its application of the 

Guidelines is reviewed de novo; its factual findings, only for clear error. E.g., 

United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). 

Cathey contends the court properly granted the Government’s § 5K1.1 

motion but erred procedurally by simultaneously considering the extent of the 

§ 5K1.1 departure and the 18 U.S.C. § 3553(a) factors. 

In Malone, this court held a district court in granting the Government’s 

§ 5K1.1 motions erred, albeit harmlessly, by conflating the determination of 

the extent of the departures warranted under § 5K1.1 with consideration of the 

18 U.S.C. § 3553(a) factors. 2016 WL 3627319, 6. Cathey asserts the court 

similarly granted the instant § 5K1.1 motion but erred by considering the 

§ 5K1.1 departure and the § 3553(a) factors simultaneously, when it should 

have departed downward, before considering the § 3553(a) factors.

In the light of its comments, it is arguable the court did not grant a 

downward departure. In any event, Malone is distinguishable. There, the 

district court granted downward departures by sentencing defendants below 

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their respective sentencing ranges; at issue was whether the court’s procedure 

for determining those departures was erroneous. See 2016 WL 3627319 at 3, 

6. Our court held the error harmless. Id. at 6. While Cathey attempts to 

distinguish Malone’s harmlessness analysis, he ignores the court’s explanation 

for why the sentence was appropriate for Cathey, despite his cooperation with 

the Government.

In addition, Cathey claims the portion of Malone holding the sentencing 

error harmless is no longer good law in the light of Molina-Martinez v. United 

States. 136 S. Ct. 1338 (2016). There, however, the Court addressed only the 

showing a defendant must make, on plain-error review, to establish a 

Guidelines-calculation error affected his substantial rights; the Court did not 

address whether an error like the one claimed here may be deemed harmless. 

Id. at 1344–49. 

Here, even if the court intended to grant the § 5K1.1 motion, any error 

in imposing Cathey’s sentence is harmless: the court recognized its authority 

to depart below the guidelines range, and the intended sentence was

unambiguous. See United States v. Hashimoto, 193 F.3d 840, 844–45 (5th Cir. 

1999).

AFFIRMED.

 

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