United States of America, Plaintiff-appellee, v. John Charles Robichaud, Defendant-appellant.united States of America, Plaintiff-appellee, v. Gina Sue Black, Aka Regina Black, Defendant-appellant, 956 F.2d 1169 (9th Cir. 1992)

MEMORANDUM^** 

Robichaud raises two issues; Black four.

A. Robichaud pled guilty to possession with intent to distribute 448 grams of at least 29% pure methamphetamine, which converts to over 100 grams pure methamphetamine. U.S.S.G. § 2D1.1(c) (Nov. 1, 1989); cf. United States v. Alfeche, 942 F.2d 697, 698-99 (9th Cir. 1991). In determining the base offense level, the court must use "the offense level determined by the entire weight of the mixture or substance or the offense level determined by the weight of the pure PCP or methamphetamine, whichever is greater." U.S.S.G. § 2D1.1(c). Here, the pure weight results in the greater base offense level--32.¹  Application Note 9 to section 2D1.1, on which Robichaud pins his argument, is relevant for departure, not for determination of the base offense level.² 

B. Robichaud contends that the district court was bound by the original plea agreement, even though the court had never accepted it. Robichaud did not argue to the district court that it was bound to apply the original plea agreement instead of the subsequent one; therefore, we will not consider this contention. See United States v. Flores-Payon, 942 F.2d 556, 558-60 (9th Cir. 1991); United States v. Edwards, 800 F.2d 878, 884 (9th Cir. 1986).

A. A loaded gun was found in the trunk of the car in which Black and Robichaud were transporting methamphetamine--and Black knew the gun was there and admitted it was hers. It is far from "clearly improbable" that the gun was connected with Black's offense. See U.S.S.G. § 2D1.1(b) (1) commentary (note 3); United States v. Heldberg, 907 F.2d 91, 93 (9th Cir. 1990).

B. Black challenges the two-level increase for possession of a firearm because it was not part of the plea agreement. But the government did not bargain away the district court's right to consider all relevant facts in applying the Sentencing Guidelines. Even where the defendant pleads guilty following a plea agreement, the district court must consider whether specific offense characteristics require adjustment of the base offense level.

C. Black did not challenge her criminal history category in the district court; in fact, she agreed that it should be category III. Therefore, we will not consider her argument to the contrary now. See United States v. Visman, 919 F.2d 1390, 1393-94 (9th Cir. 1990), cert. denied, 112 S. Ct. 442 (1991).

D. Black's counsel was not " 'so inadequate' " that " 'the trial court's failure to take notice sua sponte of the problem' amount [s] to plain error." United States v. Laughlin, 933 F.2d 786, 789 n. 1 (quoting United States v. Wagner, 834 F.2d 1474, 1482 (9th Cir. 1987)). Therefore, we do not consider her claim under Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Black may raise an ineffective assistance claim in a collateral attack under 28 U.S.C. § 2255.

AFFIRMED.