     Case: 12-60781       Document: 00512287734         Page: 1     Date Filed: 06/26/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 26, 2013
                                     No. 12-60781
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

UNDRAKE LAWMARCO LANE,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                            USDC No. 2:10-CR-160-10


Before REAVLEY, JOLLY, and OWEN, Circuit Judges.
PER CURIAM:*
       Undrake Lawmarco Lane appeals the 68-month sentence he received as
a result of his guilty plea conviction for distribution of over 28 grams of cocaine
base. The district court granted Lane a downward departure pursuant to
U.S.S.G. § 5K1.1 in light of his substantial assistance to the Government. Lane
contends that the court erred in determining the extent of the downward
departure because it incorrectly took into account the potential sentences that



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 12-60781

his codefendants would receive. Additionally, he asserts that the sentence is
substantively unreasonable under the factors set forth in 18 U.S.C. § 3553(a).
      This court typically reviews a sentence for reasonableness, under an abuse
of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007); United
States v. Desselle, 450 F.3d 179, 182 (5th Cir. 2006). Although Lane challenged
the substantive reasonableness of the imposed sentence before the district court,
he did not argue that the court improperly considered factors in determining the
extent of the downward departure. Accordingly, we review that argument for
plain error only. See United States v. Mondragon-Santiago, 564 F.3d 357, 361
(5th Cir. 2009).   Although the district court may not consider sentencing
disparities to determine whether to grant a downward departure, Lane may not
challenge the consideration of the sentences received by other defendants in
assessing the appropriate extent of that departure. See United States v. Alvarez,
51 F.3d 36, 39-41 (5th Cir. 1995); see also Desselle, 450 F.3d at 182 (noting that
a district court could consider other factors to determine the amount and
significance of the assistance provided, as long as the ultimate extent of the
departure was based solely on assistance-related factors). Thus, Lane is unable
to show a clear or obvious error affecting his substantial rights. See Puckett v.
United States, 556 U.S. 129, 135 (2009). Because Lane does not allege a legal
error in the district court’s assessment of the departure, his challenge to the
extent of that departure is not reviewable under § 5K1.1. See United States v.
Hernandez, 457 F.3d 416, 424 (5th Cir. 2006).
      With respect to his challenge to substantive reasonableness, Lane asserts
that the district court should have granted a greater departure in light of his
substantial and significant assistance and should not have taken into account
the sentences likely to be received by his codefendants. The district court was
in a superior position to find facts and assess their import, and the district
court’s determination of the appropriate sentence is entitled to deference. See
United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). “The

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                                  No. 12-60781

fact that the appellate court might reasonably have concluded that a different
sentence was appropriate is insufficient to justify reversal of the district court.”
Gall, 552 U.S. at 51. Morever, as explained above, the district court was entitled
to consider the sentences of other defendants in assessing the extent of the
departure. See Alvarez, 51 F.3d at 39-41. Because Lane has failed to show that
the district court abused its discretion in imposing the sentence, the judgment
of the district court is AFFIRMED. See Gall, 552 U.S. at 51.




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