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    United States v. Westbrook, 4th Cir. (2011)

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    The defendant pled guilty to conspiracy to distribute cocaine and crack cocaine. He was sentenced to 360 months in prison. The defendant appealed his sentence and conviction. The court dismissed the appeal of his sentence because he had waived his right to appeal in his plea agreement. The court affirmed his conviction, finding that the plea was knowing and voluntary and that the government did not breach the plea agreement. Claims of ineffective assistance of counsel were not considered on direct appeal.

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    Public Domain
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    United States v. Westbrook, 4th Cir. (2011)

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    Scribd Government Docs
    25 views7 pages
    The defendant pled guilty to conspiracy to distribute cocaine and crack cocaine. He was sentenced to 360 months in prison. The defendant appealed his sentence and conviction. The court dismissed the appeal of his sentence because he had waived his right to appeal in his plea agreement. The court affirmed his conviction, finding that the plea was knowing and voluntary and that the government did not breach the plea agreement. Claims of ineffective assistance of counsel were not considered on direct appeal.

    Original Description:

    Filed: 2011-01-21 Precedential Status: Non-Precedential Docket: 09-5188

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    The defendant pled guilty to conspiracy to distribute cocaine and crack cocaine. He was sentenced to 360 months in prison. The defendant appealed his sentence and conviction. The court dismissed the appeal of his sentence because he had waived his right to appeal in his plea agreement. The court affirmed his conviction, finding that the plea was knowing and voluntary and that the government did not breach the plea agreement. Claims of ineffective assistance of counsel were not considered on direct appeal.

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    Public Domain
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    United States v. Westbrook, 4th Cir. (2011)

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    Scribd Government Docs
    The defendant pled guilty to conspiracy to distribute cocaine and crack cocaine. He was sentenced to 360 months in prison. The defendant appealed his sentence and conviction. The court dismissed the appeal of his sentence because he had waived his right to appeal in his plea agreement. The court affirmed his conviction, finding that the plea was knowing and voluntary and that the government did not breach the plea agreement. Claims of ineffective assistance of counsel were not considered on direct appeal.

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    of 7

    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

    written plea agreement, to conspiracy to possess with intent to


    distribute

    cocaine

    and

    cocaine

    base

    (crack).

    The

    statutory

    mandatory minimum sentence applicable to Westbrooks 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,

    Westbrooks

    counsel

    has

    filed

    brief

    pursuant to Anders v. California, 386 U.S. 738 (1967), stating


    that there are no viable grounds for appeal, but questioning
    whether

    Westbrooks

    whether

    the

    reduction

    appeal

    district

    for

    waiver

    court

    acceptance

    is

    erred

    of

    valid

    by

    and

    enforceable;

    denying

    responsibility

    Westbrook

    and

    Westbrooks

    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

    assistance;

    and

    whether

    ineffective

    assistance

    based

    on

    claims

    that

    may

    be

    Westbrooks

    raised

    counsel
    on

    substantial

    direct

    below

    provided

    appeal.

    The

    Government has moved to dismiss the appeal based on Westbrooks


    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 Governments
    potential

    breach

    ineffectiveness,

    of

    and

    the

    the

    plea

    validity

    agreement,
    of

    the

    counsels

    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

    courts

    the

    denial

    reduction

    for

    of

    variance

    acceptance

    of

    We therefore grant the Governments motion to

    dismiss in part and dismiss the appeal as to these issues and as


    to

    Westbrooks

    sentence.

    Although

    Westbrooks

    appeal

    waiver

    insulates his sentence from appellate review, the waiver does


    not preclude our consideration of the remaining claims raised by
    Westbrook

    and

    Westbrooks

    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 Westbrooks 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 courts acceptance of Westbrooks


    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 Westbrooks 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 Governments 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

    Governments

    assistance departure).
    by

    the

    Governments

    decision

    not

    to

    move

    for

    substantial

    We find no breach of the plea agreement


    decision

    not

    to

    move

    for

    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

    motion

    Supp.

    filed

    2010),

    pursuant

    to

    28

    unless

    counsels

    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
    the

    with

    record

    issues

    not

    Anders,

    in

    this

    Supreme

    case

    foreclosed

    by

    have
    and

    reviewed
    have

    Westbrooks

    found

    the
    no

    appellate

    We therefore affirm Westbrooks conviction and dismiss

    the appeal of his sentence.


    inform

    we

    Westbrook,
    Court

    Westbrook

    of

    This court requires that counsel

    in

    writing,

    the

    United

    requests

    that

    of

    the

    States
    petition

    right

    to

    for

    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

    Counsels 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

    materials

    before

    the

    court

    and

    argument

    would

    not

    aid

    the

    decisional process.
    DISMISSED IN PART;
    AFFIRMED IN PART

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