United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-2108

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United States of America, *

 *

Appellee, *

 * Appeal from the United States

v. * District Court for the

 * District of Nebraska. 

Thomas Henry Navarez, * [UNPUBLISHED]

 *

Appellant. *

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 Submitted: November 3, 1998

 Filed: November 10, 1998

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Before WOLLMAN, HANSEN, and MURPHY, Circuit Judges.

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PER CURIAM.

Thomas Henry Navarez pleaded guilty to conspiring to distribute 100 grams or

more of methamphetamine from May through December 1995, in violation of 21

U.S.C. § 846. At the plea hearing, the government agreed to recommend that Navarez

receive a base offense level of 26 and a two-level reduction for acceptance of

responsibility--for a total offense level of 24--and also to move for dismissal of a

related failure-to-appear charge. The district court warned Navarez that the court might

sentence him more severely than the sentencing range applicable to a total offense level

of 24.
The Honorable Richard G. Kopf, United States District Judge for the District 1

of Nebraska. 

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Navarez&s presentence report (PSR) indicated a total offense level of 26 resulting

from a two-level increase for obstruction of justice, see U.S. Sentencing Guidelines

Manual § 3C1.1 (1997), based on Navarez&s failure to appear for trial. Navarez did not

object to the PSR, and the district court adopted the PSR&s Guidelines calculations.

1

The district court then sentenced Navarez to 63 months’ imprisonment and four years’

supervised release and granted the government&s motion to dismiss the failure-to-appear

charge. Navarez appeals, arguing that (1) he should have been allowed to withdraw

his guilty plea when the government “breached” the plea agreement; (2) the district

court should have granted him a downward departure based on his age and lack of

criminal record; (3) the district court failed to use the Guidelines in effect at the time

the offense was committed; and (4) his attorney was ineffective. We affirm.

Because Navarez neither moved below to withdraw his plea based on an alleged

breach of the plea agreement nor objected to the PSR, we conclude that his first three

arguments were not preserved for appeal and can be reviewed only for plain error. See

United States v. Cohen, 60 F.3d 460, 462-63 (8th Cir. 1995); United States v.

Montanye, 996 F.2d 190, 192 (8th Cir. 1993) (en banc). We also conclude that no

plain error occurred. Navarez&s total offense level was two levels higher than

anticipated only because the probation officer, not the government, recommended a

two-level increase for obstruction of justice; moreover, the court warned Navarez at the

plea hearing that it would not be bound by the parties& stipulated offense level. See

United States v. Hager, 985 F.2d 945, 946 (8th Cir. 1993). 

The district court also did not plainly err by failing to depart downward based

on Navarez&s age and lack of criminal history, see United States v. Hildebrand, 152

F.3d 756, 767 (8th Cir. 1998); United States v. Big Crow, 898 F.2d 1326, 1331 (8th

Cir. 1990), and the district court properly applied the 1995 Guidelines, because the
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offense occurred between May and December 1995, see United States v. Cooper, 35

F.3d 1248, 1251 (8th Cir. 1994) (with conspiracy it is completion date of offense that

controls version of Guidelines to be applied), vacated, 514 U.S. 1094, reinstated, 63

F.3d 761, 762-63 (8th Cir. 1995), cert. denied, 517 U.S. 1158 (1996). Finally, we

conclude that Navarez&s ineffective-assistance claim would be more appropriately

addressed in a 28 U.S.C. § 2255 proceeding, where a record could be more fully

developed. See United States v. Mitchell, 136 F.3d 1192, 1193 (8th Cir. 1998).

The judgment is affirmed. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.