US v. Michael Westbrook, No. 09-5188 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5188 UNITED STATES OF AMERICA, Plaintiff Appellee, v. MICHAEL GEROD WESTBROOK, Defendant Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Cameron McGowan Currie, District Judge. (3:09-cr-00714-CMC-2) Submitted: December 13, 2010 Decided: January 21, 2011 Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curiam opinion. William W. Watkins, Sr., WILLIAM W. WATKINS, P.A., Columbia, South Carolina, for Appellant. James Chris Leventis, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Michael Gerod Westbrook pled guilty, pursuant to a written plea agreement, to conspiracy to possess with intent to distribute cocaine and cocaine base (crack). The statutory mandatory minimum sentence applicable to Westbrook s offense was 240 months. The applicable guidelines range was 360 months to life imprisonment. The district court sentenced Westbrook to 360 months imprisonment. On appeal, Westbrook s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no viable grounds for appeal, but questioning whether Westbrook s whether the reduction appeal district for waiver court acceptance is erred of valid by and enforceable; denying responsibility Westbrook and a Westbrook s motion for a downward variance in sentence; whether the United States breached the plea agreement by not filing a motion for a reduction in sentence based on whether claims that assistance; and ineffective assistance may be Westbrook s raised counsel on substantial direct below provided appeal. The Government has moved to dismiss the appeal based on Westbrook s waiver of his right to appeal. Westbrook opposes the motion, noting that three of the five issues raised on appeal are not within the scope of the waiver. He asserts that claims of ineffective assistance of counsel and prosecutorial misconduct 2 are excepted from the appeal waiver, and therefore the appeal should not be dismissed as to the challenges to the Government s potential breach ineffectiveness, of and the the plea validity agreement, of the counsel s appeal waiver. Westbrook filed a supplemental pro se brief asserting that the Government breached the plea agreement, that the court erred in denying him the acceptance of responsibility reduction, and that the plea was unknowing and involuntary. We dismiss in part and affirm in part. A defendant may waive the waiver is knowing and intelligent. 492 F.3d 263, 270 (4th Cir. 2007). right to appeal if that United States v. Poindexter, Generally, if the district court fully questions a defendant regarding the waiver of his right to appeal during the plea colloquy performed in accordance with Fed. R. enforceable. Crim. P. 11, the waiver is both valid and See United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005); United States v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991). The question of whether a defendant validly waived his right to appeal is a question of law that this court reviews de novo. United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). Our review of the record leads us to conclude that Westbrook knowingly and voluntarily waived the right to appeal his sentence. He has therefore waived review by this court of 3 his challenge sentence and to the responsibility. the district denial of court s the denial reduction for of a variance acceptance of We therefore grant the Government s motion to dismiss in part and dismiss the appeal as to these issues and as to Westbrook s sentence. Although Westbrook s appeal waiver insulates his sentence from appellate review, the waiver does not preclude our consideration of the remaining claims raised by Westbrook and Westbrook s counsel, conviction and does pursuant not to prohibit our review of Anders. Consequently, we unwaived claims, deny the motion to dismiss in part. Turning then, to the because Westbrook did not move in the district court to withdraw his guilty plea, the adequacy of the Rule 11 hearing is reviewed for plain error. See United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). hearing leads us Our review of the transcript of the plea to conclude that the district court complied with Rule 11 in accepting Westbrook s guilty plea. fully The court ensured that Westbrook understood the charge against him and the potential sentence he faced; that he entered his plea knowingly and voluntarily; and that the plea was supported by an independent factual basis. See United States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991). Accordingly, we discern no plain error in the district court s acceptance of Westbrook s guilty plea. 4 Next, Westbrook and counsel argue that the Government breached the plea agreement by failing to move for a downward departure based on Westbrook s cooperation with the authorities, which they contend amounted to substantial assistance. Westbrook has the burden of showing by a preponderance of the evidence that the Government breached the plea agreement. See United States v. Snow, 234 F.3d 187, 189 (4th Cir. 2000). The determination of whether the defendant has provided substantial assistance is within the Government s discretion. Id. at 190. The record in this case fails to show that Westbrook provided substantial assistance. Additionally, the plea agreement did not obligate the Government to move for such a departure, and there is no evidence that the Government refused to make such a motion based on any unconstitutional motive. See Wade v. United States, 504 U.S. 181, 185-86 (1992) (holding that defendant must make substantial threshold showing of improper motive to obtain review of Government s assistance departure). by the Government s decision not to move for substantial We find no breach of the plea agreement decision not to move for a downward departure. The final claim asserted on appeal is that Westbrook received ineffective assistance of counsel at the district court level. Claims of ineffective assistance generally not cognizable on direct appeal. 5 of counsel are These claims are more appropriately U.S.C.A. raised § 2255 in (West a motion Supp. filed 2010), pursuant to 28 unless counsel s ineffectiveness conclusively appears on the record. See United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006); United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). review of counsel the record, rendered we find ineffective no conclusive assistance, After evidence and we that accordingly decline to consider these claims on direct appeal. In remainder of meritorious waiver. accordance with the record issues not Anders, in this Supreme case foreclosed by have and reviewed have Westbrook s found the no appellate We therefore affirm Westbrook s conviction and dismiss the appeal of his sentence. inform we Westbrook, Court Westbrook of This court requires that counsel in writing, of the United States requests that a the right to for petition further be filed, petition the review. If but counsel believes that such a petition would be frivolous, then counsel may move in representation. this court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Westbrook. We dispense with oral argument because the facts and legal contentions are adequately presented in the 6 materials before the court and argument would not aid the decisional process. DISMISSED IN PART; AFFIRMED IN PART 7

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