* After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. This Order and Judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 28 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. NATHAN D. LUMMUS, Defendant-Appellant. No. 98-3255 (D.C. No. 98-10014-03-JTM) (District of Kansas)

ORDER AND JUDGMENT *

Before BRORBY , EBEL and LUCERO , Circuit Judges.
In this direct appeal, defendant-appellant Nathan D . Lummus argues that the district court erred “by allowing the governmen t to circumvent proper application of the United States Sentencing Guideli nes” through offering Lummus worse terms for a plea agreement than allegedly sim ilarly-situated coconspirators, thereby engendering a worse sentence for Lummus. As a result,- 2 -

Lummus prays that this court allow him to withdraw his guilty plea and to “ensure fair and equitable treatment in the lower court.” Because Lummus failed to raise any objections below to his plea or sentence, we fi nd his arguments waived. We therefore affirm Lummus’ conviction and sentence. On March 29, 1997, Lummus participated in a robbery of the Dog N’ Shake in Wichita, Kansas. Subsequently, Lummus was arres ted, charged in a multiple count indictment, and pled guilty to knowingly usin g and carrying a firearm during and in relation to a crime of violence, in v iolation of 18 U.S.C. § 924(c). After plea negotiations began but prior to his plea , Lummus fled the jurisdiction in violation of his conditions of release, but he w as re-arrested shortly thereafter. At his change of plea hearing, Lummus did not indic ate dissatisfaction in any regard with the terms of his plea. As part of the plea agreement, the government agree d “to advise the judge, at the time of sentencing, of the nature and extentof [Lummus’] cooperation.” The plea agreement also provided that, “[i]f . . . in the sole discretion of the United States, the defendant’s cooperation amounts to substantial assistance pursuant to § 5K1.1 of the United States Sentencing Guidelines, a motion for a departure from the guidelines will be filed.” The presentence report (PSR) recommended a sentence of 5 years, which is mandated by § 924(c)(1). The PSR noted that the go vernment had not filed a- 3 -

motion to depart pursuant to § 5K1.1. Neither Lumm us nor the government objected to the PSR. At sentencing, Lummus’s attorney noted the essentia ls of the plea agreement for the district court, stating interaliathat the United States “in its sole discretion” could move for a departure pursuant to § 5K1.1. The United States agreed with the characterization of the plea agreem ent, but did not move for a § 5K1.1 departure. The court sentenced Lummus to f ive years’ imprisonment followed by three years’ supervised release, withou t any objection from Lummus. In fact, when the court asked Lummus’ attorney for his position on the sentence, counsel replied: “For the first time in my career, Your Honor, I think I have almost nothing to say.” Counsel merely requested t hat Lummus be confined close to Wichita. On appeal, Lummus argues that the district court er red by allowing the government to “circumvent[] the purpose and goals o f the U.S.S.G. without reason.” Specifically, Lummus complains that co-co nspirators with allegedly equal or greater culpability received lesser senten ces based on more favorable plea agreements. Thus, notwithstanding the fact th at he fled the jurisdiction before his plea, Lummus contends that “the governme nt here arbitrarily determined that Mr. Lummus deserved a more stringen t punishment than did his similarly situated co-conspirators.” Consequently, Lummus concludes that the- 4 -

United States “thwarted Congress’ wish to eliminate unwarranted disparities in sentences,” and that the district court erred in al lowing the government to do so. Lummus also alleges that the government entered int o the plea agreement in bad faith because it did not advise the court of the extent of Lummus’ cooperation or move for a § 5K1.1 departure. We find Lummus’ arguments waived. Below, Lummus di d not raise even the slightest objection to the plea agreement, nor did he make any allegations that the government failed to abide by its terms. Indee d, the record below reveals without ambiguity that Lummus entered his plea know ingly and voluntarily, and that he had no quarrel with his sentence. Because Lummus did not make any of his instant arguments below, he failed to preserve them for appeal. See United
States v. Lee , 989 F.2d 377, 380 (10th Cir. 1993). “Moreover, w e will not review for plain error,” because “[p]lain error review is not appropriate for factual disputes, such as whether the government acted in g ood faith.” Id. Lummus’ conviction and sentence are AFFIRMED. The mandate shall issue forthwith.
ENTERED FOR THE COURT

David M. Ebel Circuit Judge