## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-2108

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Nebraska. Thomas Henry Navarez, * [UNPUBLISHED] * Appellant. *

___________ Submitted: November 3, 1998 Filed: November 10, 1998

___________ Before WOLLMAN, HANSEN, and MURPHY, Circuit Judges.

___________ PER CURIAM. Thomas Henry N avarez pleaded guilty to conspiring to distribute 100 grams or more o f methamphetamine from May through December 1995, in violation of 2 1 U.S.C. § 846. At the plea hearing, the gover nment agreed to recommend that Navarez receive a b ase offense level of 26 and a two-level reduction for acceptance o f res ponsibility--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. -2- Navarez & s presentence report (PSR) indicated a total offense level o f 26 resulting froma t wo-level increase for obstruction of justice, see U.S. Sentencing Guideline s Manual § 3C1.1 (1997), based on Navarez & s failure to appear for trial . Navarez did not objec t to the PSR, and the district court adopted the PSR & s Guidelines calculations

. 1 The district court then sentenced Nava rez to 63 months’ imprisonment and four years’ supervised release and granted the government & s motion to dismiss the fai lure-to-appear charge. Navarez appeals, arguing that (1) he should have been allowed to withdra w his guilty plea when the government “breached” the plea agreement; (2) the distric t courtshould have granted him a downward departure based on his age and lack o f criminalrecord; (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 p lea 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 State s v. Cohen , 60 F.3d 460, 462-63 (8th Cir. 1995); United States v

. Montanye , 99 6 F.2d 190, 192 (8th Cir. 1993) (en banc). We also conclude that n o plain e rror occurred. Navarez & s total offense level was two levels higher than anticipat edonly because the probation officer, not the government, recommended a two-level increase for obstruction of justice; moreover, the court wa rned Navarez at the plea hearing that it would not be bound by the parties & stipulated offense level. Se e 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 , 15 2 F.3d756, 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-3-

offense occurred between May and December 1995, see United States v. Cooper , 35 F.3d 1248, 1251 (8 th 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, 7 62-63 (8th Cir. 1995), cert. denied , 517 U.S. 1158 (1996). Finally, w e co ncludethat Navarez & s ineffective-assistance claim would be more appropriatel y addresse din a 28 U.S.C. § 2255 proceeding, where a record could be more full y 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.