     Case: 15-51189      Document: 00513704558         Page: 1    Date Filed: 10/04/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 15-51189                                 FILED
                                  Summary Calendar                         October 4, 2016
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DERRICK DEWAYNE COOPER, also known as Red, also known as Derrick
Cooper,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 6:14-CR-189-11


Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges.
PER CURIAM: *
       Derrick Dewayne Cooper pleaded guilty without a plea agreement to
conspiring to possess with intent to distribute 50 grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(B).
The district court imposed a within-guidelines sentence of 84 months in prison,




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-51189

five years of supervised release, a $ 1000 fine, and the mandatory $ 100 special
assessment.
      Cooper contends that the district court erred in denying him an offense
level adjustment or reduction under U.S.S.G. § 3B1.2 (Nov. 1, 2014), for his
minor or minimal role in the offense.         Although Cooper employs them
interchangeably, the terms “reduction” or “downward adjustment,” “downward
departure,” and “downward variance” are not synonymous.            See U.S.S.G.
§ 1B1.1(a)-(c) (Nov. 1, 2014); United States v. Brantley, 537 F.3d 347, 349 (5th
Cir. 2008). Because Cooper is represented by counsel on appeal, his brief is not
entitled to liberal construction. See Beasley v. McCotter, 798 F.2d 116, 118 (5th
Cir. 1986). Cooper has not adequately briefed and, thus, has abandoned any
argument that the district court erred by refusing to depart downwardly or
vary from the advisory guidelines range based on his mitigating role in the
offense. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); see also
FED. R. APP. P. 28(a)(8).
      At sentencing, Cooper confirmed that he was not seeking a § 3B1.2
adjustment but, instead, was seeking a downward departure or variance based
on his role in the offense. Accordingly, we review his appellate argument for
plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009). “Whether
a defendant was a minor or minimal participant is a factual determination.”
United States v. Gomez-Valle, ___ F.3d ___, No. 15-41115, 2016 WL 3615688,
at 2 (5th Cir. July 5, 2016). Whether Cooper waived or merely forfeited his
argument, he cannot show error because waived error is completely
unreviewable, see United States v. Ceballos, 789 F.3d 607, 613 (5th Cir. 2015),
and “[q]uestions of fact capable of resolution by the district court upon proper
objection at sentencing can never constitute plain error,” United States v.
Lopez, 923 F.2d 47, 50 (5th Cir. 1991).



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                                  No. 15-51189

      Next, Cooper argues that the district court erred by failing to expressly
rule on his objection to the denial of a downward departure based on his
mitigating role in the offense. Because Cooper did not object to this alleged
failure in the district court, ordinarily we would review this issue for plain
error. See Puckett, 556 U.S. at 135. However, unless the record indicates that
the district court held an erroneous belief that it lacked authority to depart,
this court will not review a district court’s refusal to depart downwardly.
United States v. Hernandez, 457 F.3d 416, 424 & n.5 (5th Cir. 2006). We have
extended this review bar to include arguments that the district court failed to
expressly rule on or state its reasons for denying a motion for a downward
departure. See, e.g., United States v. Zavala-Acosta, No. 15-50154, 2016 WL
1295116, at 1 (5th Cir. Apr. 1, 2016) (unpublished); United States v. Alcala,
165 F. App’x 333, 334 (5th Cir. 2006) (unpublished). Under the Sentencing
Guidelines, the district court was prohibited from departing downwardly based
on Cooper’s mitigating role in the offense. See U.S.S.G. § 5K2.0(d)(3) (Nov. 1,
2014). Thus, any belief by the district court that it lacked authority to depart
was not erroneous. Cf. Hernandez, 457 F.3d at 424 n.5. Accordingly, we do not
review Cooper’s claim of error.
      AFFIRMED.




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