USA v. Jesse Westbrook

Filing

UNPUBLISHED OPINION FILED. [12-10007 Affirmed ] Judge: RHB , Judge: EBC , Judge: JEG Mandate pull date is 10/01/2012 [12-10007]

Case: 12-10007

Document: 00511980445

Page: 1

Date Filed: 09/10/2012

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 12-10007
Summary Calendar

September 10, 2012
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JESSE RAY WESTBROOK,
Defendant - Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:04-CR-40-1

Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
Proceeding pro se and in forma pauperis, Jesse Ray Westbrook, federal
prisoner # 32916-177, challenges the denial of his 18 U.S.C. § 3582(c)(2) motion
to modify his 2005 sentence of, inter alia, 211-months’ imprisonment for his
guilty-plea conviction for possession of cocaine with intent to manufacture
cocaine base.
Reduction vel non of a sentence pursuant to § 3582(c)(2) is reviewed for
abuse of discretion. E.g., United States v. Evans, 587 F.3d 667, 672 (5th Cir.
*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Case: 12-10007

Document: 00511980445

Page: 2

Date Filed: 09/10/2012

No. 12-10007
2009). The court determines: (1) whether, and to what extent, a sentence
modification is authorized; and (2) whether any reduction is warranted in the
light of any applicable 18 U.S.C. § 3553(a) sentencing factors. Dillon v. United
States, 130 S. Ct. 2683, 2691-92 (2010).
The district court implicitly determined Westbrook was eligible for a
reduction, but concluded it was not warranted in the light of the § 3553(a)
factors and the circumstances of his case. E.g., United States v. Larry, 632 F.3d
933, 936 (5th Cir. 2011). The court was under no obligation to reduce his
sentence. Evans, 587 F.3d at 673. It properly considered the § 3553(a) factors,
the motion and other papers, and Westbrook’s post-sentencing conduct, positive
and negative, in making its decision. Id. at 672-73; U.S.S.G. § 1B1.10 cmt.
n.1(B)(i)-(iii) (discussing factors to consider when determining whether reduction
is warranted). Accordingly, it did not abuse its discretion.
Westbrook contends, for the first time on appeal, that the court had the
authority and discretion to apply retroactively the Fair Sentencing Act of 2010
(FSA) to correct the inequalities, clear error, and manifest injustice arising from
the Guidelines in crack-cocaine cases. If a § 3582(c)(2) movant raises an issue
for the first time on appeal, review is only for plain error: “[T]he appellant must
show a forfeited error that is clear or obvious and that affects his substantial
rights” (reversible plain error). United States v. Jones, 596 F.3d 273, 276 (5th
Cir. 2010).

Even for reversible plain error, we retain discretion whether to

correct it and generally will do so only if it “seriously affects the fairness,
integrity, or public reputation of judicial proceedings”. Id. Because Westbrook
was sentenced in 2005, long before the FSA’s 3 August 2010 effective date, the
new lower statutory minimums are inapplicable to his sentence, and his
contention is without merit. Dorsey v. United States, 132 S. Ct. 2321, 2335
(2012). Accordingly, the district court did not commit reversible plain error in
not applying the FSA retroactively. Jones, 596 F.3d at 276.
AFFIRMED.
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