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United States v. Westbrook

United States District Court, D. South Carolina, Columbia Division

April 9, 2019

United States of America,
v.
Michael Gerod Westbrook, Defendant.

          OPINION AND ORDER

          CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE

         This case comes before the court on Defendant's Motions for Relief Under First Step Act of 2018.[1] ECF No. 434, 440. The United States Probation Office filed a Sentence Reduction Report indicating Defendant does not qualify for relief under the Act. ECF No. 437. The Government filed a Motion to Dismiss in Response (ECF No. 435).

         The court has reviewed the above filings as well as Defendant's Indictment (ECF No. 2), Plea Agreement (ECF No. 49), Transcript of Rule 11 hearing (ECF No. 57), and PreSentence Report (“PSR”) (ECF No. 437-1), and concludes that Defendant is not entitled to relief under the First Step Act.

         Defendant entered a guilty plea to Count 1 of the Indictment[2], which charged:

That beginning in or around 2002, and continuing thereafter, up to and including the date of this Indictment, in the District of South Carolina and elsewhere, the Defendants, Dwayne Roderick Ross and Michael Gerod Westbrook, knowingly and intentionally did combine, conspire, agree and have tacit understanding with each other and with others, both known and unknown to the grand jury, to knowingly, intentionally, and unlawfully possess with intent to distribute and distribute cocaine and cocaine base (commonly known as “crack” cocaine), both Schedule II controlled substances, said conspiracy involved 5 kilograms or more of cocaine and 50 grams or more of “crack” cocaine, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(A); All in violation of Title 21, United States Code, Section 846.

ECF No. 2. The Plea Agreement provided:

The Defendant agrees to plead guilty to Count 1 of the Superseding Indictment now pending, which charges conspiracy to possess with intent to distribute 5 kilograms or more of cocaine and 50 grams or more of “crack” cocaine in violation of Title 21, United States Code, Sections 846, 841(a)(1), and 841(b)(1)(A).
In order to sustain its burden of proof as to this offense, the Government is required to prove the following:
Count One - Drug Conspiracy
(A) The conspiracy described in Count 1 was knowingly and willfully formed and was in existence on or about the dates set forth in Count 1;
(B) The defendant joined the conspiracy with knowledge of its unlawful purpose; and (C) The defendant personally distributed 5 kilograms or more of cocaine or 50 grams or more of “crack” cocaine, specifically agreed to the distribution of those threshold quantities, or the distribution of those quantities were reasonably foreseeable to the defendant and within the scope of his agreement.
Possible Penalties for 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A) In a case involving 5 kilograms or more of cocaine and 50 grams or more of “crack” cocaine and one prior felony drug conviction - a minimum term of imprisonment of 20 years and a maximum term of life imprisonment, no probation, no parole, a maximum fine of $8, 000, 000 and a term of supervised release of at least ten (10) years in addition to any term of imprisonment, plus a special assessment of $100.

ECF No. 49 at 1-2.

         At the Rule 11 hearing, the court inquired ...


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