1The Honorable Jimm Larry Hendren, Chief Judge, United States District Court

for the Western District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 99-2487

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United States of America, *

 *

Appellee, *

 * Appeal from the United States

v. * District Court for the

 * Western District of Arkansas. 

James Dennie, *

 * [UNPUBLISHED]

Appellant. *

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 Submitted: March 7, 2000

 Filed: March 10, 2000

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Before RICHARD S. ARNOLD, BOWMAN, and BEAM, Circuit Judges. 

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PER CURIAM.

James Dennie appeals his conviction and sentence in the district court,1 entered

upon a guilty plea, for wire fraud and money laundering; the court sentenced Dennie

to 57 months imprisonment and 3 years supervised release. He argues the district court

erred in not sentencing him to 19 months imprisonment, as he had been promised such

a sentence by an FBI agent during his plea discussions. Alternatively, Dennie requests

that he be allowed to withdraw his guilty plea. In his pro se supplemental brief, Dennie
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contends resentencing is necessary because the district court failed to acknowledge its

authority to depart downward under U.S. Sentencing Guidelines Manual § 4A1.3

(1999) on the basis that his criminal history category overrepresented the seriousness

of his criminal history.

We conclude that the record is devoid of any evidence to support Dennie’s

assertion that an FBI agent promised he would be sentenced to 19 months

imprisonment if he pleaded guilty, especially in light of plea agreement statements and

Dennie’s plea-hearing testimony disavowing any other promises. Further, any promise

the FBI agent made regarding the calculation of Dennie’s Guidelines range is

unenforceable, as Dennie failed to demonstrate the agent was authorized to make such

a promise. See United States v. Streebing, 987 F.2d 368, 372 (6th Cir.), cert. denied,

508 U.S. 961 (1993); United States v. Kettering, 861 F.2d 675, 678 (11th Cir. 1988).

We conclude the district court did not abuse its discretion in denying Dennie’s

motion to withdraw his guilty plea based on his belief that he was promised a shorter

sentence. Dennie’s plea agreement informed him that the Guidelines were applicable,

and that any prior discussions of the applicable Guidelines range were attempts to

“guess” the range; the agreement further provided that he would not have the right to

withdraw his guilty plea should the ultimate Guidelines imprisonment range exceed the

parties’ expectations. Moreover, during his change-of-plea hearing, the district court

cautioned Dennie that it would ultimately determine his Guidelines range. See United

States v. Mahler, 984 F.2d 899, 902 (8th Cir. 1993).

Finally, we decline to address Dennie’s contention that his case should be

remanded to the district court to determine the appropriateness of a downward

departure under section 4A1.3, because he did not present this argument--or any other

argument for a downward departure--below, the district court was aware of his criminal

history, and no gross miscarriage of justice is present. See United States v. Williams,

994 F.2d 1287, 1294 (8th Cir. 1993).
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Accordingly, we affirm.

A true copy.

Attest:

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