United States of America, Plaintiff-appellee, v. Steven Lee Gilbert, Defendant-appellant, 9 F.3d 110 (6th Cir. 1993)

Defendant appeals his sentence after pleading guilty under a Rule 11 agreement to conspiracy to distribute heroin. The plea agreement explicitly stated that the defendant was facing a ten-year statutory minimum. The statutory minimum was required if the conspiracy involved over one kilogram of heroin. The presentence report described the offense conduct in detail and disclosed that over three kilograms of heroin were distributed by the members of the conspiracy. Defendant not only did not object to any of the factual assertions in the presentence report, he said he was not aware of any factual errors or omissions. We find no error in the District Court's conclusion that over one kilogram of heroin was involved in the conspiracy.

Under the plea agreement, the government agreed to move for a downward departure to 96 months based on defendant's cooperation. It so moved, recommending a sentence of 96 months (8 years). The District Court chose to depart 6 months more, to 90 months or 7 1/2 years. Defendant may not appeal the degree of downward departure. United States v. Gregory, 932 F.2d 1167, 1169 (6th Cir. 1991).

Further, none of the issues now raised by defendant were raised in the District Court. Failure to object to a guideline sentence in the District Court waives those issues that could have been raised there. United States v. Nagi, 947 F.2d 211 (6th Cir. 1991), cert. denied, 112 S. Ct. 2309 (1992).

For the aforementioned reasons, defendant's sentence is AFFIRMED.