United States of America, Plaintiff-appellee, v. Enrique Delgado-encinas, Defendant-appellant, 21 F.3d 1116 (9th Cir. 1994)

MEMORANDUM^** 

Enrique Delgado-Encinas appeals his 121-month sentence imposed following entry of a guilty plea to conspiracy to possess with intent to distribute heroin in violation of 21 U.S.C. § 841. Delgado-Encinas contends the government breached his plea agreement by failing to inform the district court of his cooperation and to move for a downward departure due to his substantial assistance to authorities. The government counters that Delgado-Encinas has waived this argument by failing to raise it below. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

Our decision in United States v. Flores-Payon, 942 F.2d 556, 558 (9th Cir. 1991), is controlling in the instant case. In Flores-Payon, we declined to address for the first time on appeal defendant-appellant's claim that the government breached the plea agreement because this fact-specific claim is the sort which a defendant will recognize immediately and which is best resolved in the first instance by the district court. Id. at 560. We discern no reason why this rule should not apply in the instant case. Accordingly, we hold Delgado-Encinas waived his breach of the plea agreement claim by failing to raise it before the district court. See id.

AFFIRMED.