IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-51189

Summary Calendar

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.

United States Court of Appeals

Fifth Circuit

FILED

October 4, 2016

Lyle W. Cayce

Clerk

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No. 15-51189

2

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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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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