USA v. Marcus Westbrook
UNPUBLISHED OPINION FILED. [11-60660 Affirmed ] Judge: EHJ , Judge: FPB , Judge: JEG Mandate pull date is 05/23/2012 for Appellant Marcus Westbrook [11-60660]
Date Filed: 05/02/2012
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
May 2, 2012
Lyle W. Cayce
UNITED STATES OF AMERICA,
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:10-CR-163-4
Before JONES, Chief Judge, and BENAVIDES and GRAVES, Circuit Judges.
Marcus Westbrook pleaded guilty of aiding and abetting armed bank
robbery (Count 1) and of brandishing a firearm during and in relation to a crime
of violence (Count 2). The Government filed a motion for a downward departure
under U.S.S.G. § 5K1.1, which the district court granted in sentencing
Westbrook to a 28-month term of imprisonment on Count 1 and to a consecutive
statutory minimum 84-month term of imprisonment on Count 2.
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 05/02/2012
Westbrook contends that the sentence imposed was unreasonably harsh.
Because Westbrook did not object to the reasonableness of the sentence in the
district court, our review is for plain error. See Puckett v. United States,
556 U.S. 129, 134 (2009); United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir.
To the extent that Westbrook is complaining of the refusal of the district
court to depart downward in sentencing him for Count 2, that issue is not
reviewable. See United States v. Valencia-Gonzales, 172 F.3d 344, 346 (5th Cir.
1999). There is no reason to believe that the district court believed erroneously
that it lacked the authority to depart from the mandatory minimum sentence.
Westbrook contends that the extent of the district court’s downward
departure in sentencing him for Count 1 was insufficient considering the extent
of his assistance to the Government. “District courts have almost complete
discretion to determine the extent of a departure under § 5K1.1. The only
ground on which the defendant can appeal the extent of a departure is that the
departure was a violation of law.” United States v. Hashimoto, 193 F.3d 840, 843
(5th Cir. 1999) (internal citation omitted). Westbrook does not contend that the
district court committed a violation of law in determining the extent of its
downward departure. The judgment is
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