UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-11472
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CEDRIC CLAYBORNE, aka “C,”
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
Fort Worth Division
(A19 122 733)
_________________________________________________________________
October 3, 1997
Before JONES, SMITH and STEWART, Circuit Judges.
PER CURIAM:1
Cedric Clayborne was named along with 18 other defendants
in a 31-count indictment charging various drug offenses arising
out of a conspiracy in Fort Worth, Texas. Clayborne appeals his
sentence, which was imposed at the bottom-end of the applicable
guideline range after the district court stated that it was
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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should not be published and is not precedent except under the limited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.
granting the Government’s motion for downward departure. Finding
no plain error, we affirm.
Clayborne pleaded guilty to distributing cocaine base and
aiding and abetting. The government agreed to move for a
downward departure pursuant to U.S.S.G. § 5K1.1, P.S., and 18
U.S.C. § 3553 if it determined that Clayborne provided
substantial assistance in the prosecution of his co-defendants.
After Clayborne cooperated with the government by providing
information and testifying at the trial of other defendants, the
Government concluded that he had provided substantial assistance
and, accordingly, filed a motion for downward departure.
The presentence investigation report (“PSR”) determined
that Clayborne’s offense level was 31 with a criminal history
category of IV, subjecting him to imprisonment for 151 to 188
months. Neither side objected to the PSR, and the court adopted
its recommendations. The court then stated that “I find that
there has been substantial assistance by this defendant and,
therefore, I grant the motion for downward departure.”
However, the ultimate sentence imposed was 151 months, a
sentence at the bottom of, but not a departure from, the
guideline range. The court’s extensive explanation for its
ruling was as follows:
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I told you at the outset that this was a
close case, as far as I was concerned, as to
whether the plea agreement should be
accepted. I was concerned with the fact that
this defendant apparently was involved in
this conspiracy from 1989 through some time
in 1994, and the only thing that we have that
we’re taking into account here are -- Well,
three transactions in 1994.
***
[In paragraph 88 of the PSR] it says, “Cedric
Clayborne began selling crack in 1989 and
received his supply from Frederick and
Evangela Asberry, Terry Reed, Stacey Wynn,
and Jesse Jackson. Bobby Reed was the source
of the supply for these individuals supplying
Clayborne.”
So it goes unchallenged that he was a part of
the conspiracy throughout, and it would occur
to me that he would be held accountable for
the entire amount of cocaine that -- or drugs
that were involved in that conspiracy. In
other words, that he would be faced with a
potential of a life sentence had it not been
for the plea agreement and if he had gone to
trial on the conspiracy count.
... I think the best way to approach how to
reward this defendant for his cooperation is
to say that I have accepted the plea
agreement to begin with, which in itself is a
reward in some sense. I’m going to sentence
him at the bottom of the guideline range.
Were it not for his cooperation, I might well
have not accepted the plea agreement, and if
I had accepted the plea agreement, probably
would have sentenced at the top of the
guideline range. So that’s the reward he’s
going to receive. I’m going to sentence him
at the bottom of the guideline range, and I
think that’s a very significant reward he has
received for his assistance to the government
in this case.
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***
Mr. Clayborne, you’re probably disappointed
in the sentence I’ve imposed because of the
fact that the government has filed a 5k1
Motion, and I have ruled that you did provide
substantial assistance. Let me explain
further why it’s turned out the way it is.
The presentence report has information that
you were in engaged in this conspiracy over a
period of five years, and that goes
unchallenged. That’s the information I have.
It goes on to say that the government simply
doesn’t have specific information about
transactions you engaged in, other than the
period of time that is mentioned in the
presentence report. I probably would not
have accepted your plea agreement if you had
been in a higher level in the organization,
and then it would have been a matter of a
trial over whether or not you were
accountable for the conduct of the others in
the conspiracy and for your own conduct
throughout that period of time.
But because of your level in the
organization, I did go ahead and accept the
plea agreement. And in my view you have been
very amply rewarded for your cooperation, and
part of that was taken into account when the
government decided to enter into the plea
agreement with you and thereby relieve you of
the possibility of being held accountable for
the consequences of being convicted as being
a part of the conspiracy.
Following the court’s pronouncement of the sentence,
defense counsel initiated the following sequence:
Mr. Amador: Does that mean that the court
denied, then, the motion for downward
departure?
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The Court: Well, you know what my rulings
are.
Mr. Amador: I understand, Your Honor.
The Court: Well, you interpret them however
you want to interpret them. Those are
my rulings, Mr. Amador. I have said
that he granted substantial assistance,
and my sentence is what I’ve imposed.
There was no objection from the defense to the court’s sentence.
For the first time on appeal, Clayborne asserts that the
court erred by granting the motion for departure and then failing
to choose a sentence below the guideline range. To obtain relief
for forfeited error, Clayborne must show that 1) there is an
error, 2) the error is clear or obvious, and 3) the error affects
his substantial rights. See United States v. Calverley, 37 F.3d
160, 162-24 (5th Cir. 1993) (en banc), cert. denied, 513 U.S.
1196 (1995). Once these showings are made, we exercise our
discretion to correct the error on appeal only if it seriously
affected the fairness, integrity or public reputation of judicial
proceedings. See id.
Clayborne argues that once a district court has made the
decision to grant a downward departure, it is bound to give a
sentence below the guideline ranges. Clayborne alleges that by
not choosing a sentence below the guideline range, the court
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violated the “spirit” of the sentencing guidelines and the Due
Process Clause of the United States Constitution.
However, Clayborne concedes that a government request for
departure does not entitle a defendant to a departure as a matter
of right. See United States v. Miro, 29 F.3d 194, 198-99 (5th
Cir. 1994). He also concedes that the decision to grant a
downward departure and the extent of the downward departure is
within the sound discretion of the trial court. See id.; United
States v. Alvarez, 51 F.3d 36, 38-39 (5th Cir. 1995). Indeed, a
sentencing court’s discretion regarding the extent of downward
departures is nearly absolute: we stated in Alvarez that “there
is simply no express limitation on the court’s discretion in
sentencing once it has validly decided to depart” and that “a
district court ... has almost complete discretion over sentencing
matters to which the federal law does not speak.” Alvarez, 51
F.3d at 40.
Given this background, we can not find error, especially
not error that is clear and obvious. Clayborne cites no
authority requiring a district court to sentence the defendant
below the applicable guideline range once the court finds
substantial assistance. The district court was convinced that
Clayborne, in having a lenient plea agreement accepted, had
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received sufficient reward for his cooperation with the
government. The court sentenced Clayborne to the minimum length
available in the applicable guideline range. Although the court
could have followed a cleaner path by explicitly denying the
motion for downward departure, we can not say that the district
court abused its discretion in effectively granting a downward
departure of “zero.”
AFFIRMED.
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