United States of America, Plaintiff-appellee, v. Joseph S. Janectic, Defendant-appellant, 981 F.2d 1260 (9th Cir. 1992)

MEMORANDUM^** 

Joseph S. Janectic, Jr. timely appeals his conviction and sentence following entry of a guilty plea to conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a) (1) and 846. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

Janectic pleaded guilty pursuant to a written plea agreement. The offense charged carried a minimum penalty of five years imprisonment and a maximum of forty years imprisonment. The plea agreement provided that Janectic would cooperate with the government, and in exchange, the government would advise the court of the nature and extent of his cooperation and make a sentencing recommendation accordingly.

At the sentencing hearing, the government requested a downward departure to four years imprisonment based on Janectic's cooperation. The district court departed further and sentenced Janectic to three years imprisonment.

Janectic maintains on appeal that the government's failure to recommend a sentence of no custody in light of his cooperation constituted a breach of the plea agreement, and further, that this breach rendered his guilty plea involuntary and unintelligent.

A review of the record indicates, however, that Janectic did not present the issue of an alleged breach of the plea agreement to the district court. Moreover, this case does not warrant application of an exception to the general prohibition against considering issues for the first time on appeal. Therefore, this court may not consider Janectic's contention that the government breached the plea agreement. United States v. Flores-Payton, 942 F.2d 556, 558-60 (9th Cir. 1991).

AFFIRMED.