1Pursuant 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should not be published and is not precedent except under the limited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.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

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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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.
4

***

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.