Unpublished Disposition, 923 F.2d 864 (9th Cir. 1990)

MEMORANDUM^** 

Tami M. Kicklighter was charged with (1) manufacturing of methamphetamine; (2) conspiracy to manufacture and distribute methamphetamine; and (3) use of a firearm in the commission of a drug crime. In exchange for dismissal of the indictment, Kicklighter pled guilty to using a gun during and in relation to a drug felony in violation of 18 U.S.C. § 924(c) (1). Kicklighter's counsel at the sentencing hearing did not object to the contents or recommendations of the presentence report. Judge Edward J. Garcia of the Eastern District of California sentenced Kicklighter to a mandatory five year prison term pursuant to Sec. 924(c) (1) and Sec. 2K2.4 of the Sentencing Guidelines. He also imposed a three year period of supervised release after Kicklighter's imprisonment, the maximum allowed under Sec. 5D1.2 of the Guidelines.

Kicklighter filed an appeal challenging her sentence. Lawrence F. Salisbury, Kicklighter's court-appointed counsel on appeal, found no appealable issues and filed an opening brief pursuant to Anders v. California, 386 U.S. 738, 744 (1967). Salisbury served Kicklighter with a copy of the brief by mail and advised her of her right to request leave to file a supplemental brief and to have counsel relieved. Kicklighter did not exercise her right to file a pro se brief. Salisbury moved for withdrawal on June 28, 1990, stating that he "was unable to find any issues which could, in good faith, be presented to the Court."

Merits of Kicklighter's Appeal.

Kicklighter appeals the sentence imposed by Judge Garcia. Kicklighter's failure to object at the sentencing hearing effectively waives her right to later appeal the judge's sentencing decision. Of course, we may review her sentence for plain error or miscarriage of justice. See United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.), cert. denied, --- U.S. ----, 110 S. Ct. 179 (1989). Kicklighter would not prevail because her five year prison sentence is mandatory under Sec. 924(c) (1) and the Guidelines. Moreover, Judge Garcia's imposition of the maximum three year supervised release was not an abuse of discretion. The judgment of the district court is AFFIRMED.