Unpublished Disposition, 921 F.2d 281 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 921 F.2d 281 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Michael David FARBER, Defendant-Appellant.

No. 89-50639.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 13, 1990.* Decided Dec. 20, 1990.

Before GOODWIN, Chief Judge, and WALLACE and NELSON, Circuit Judges.


Farber appeals from the sentence imposed after he pleaded guilty to unlawful use of a communication facility in violation of 21 U.S.C. § 843(b). He claims that the district court erred by failing to reduce his sentence to reflect his minor role in the offense, and by incorrectly calculating his criminal history. The district judge had jurisdiction over the criminal proceeding pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

We decline to reach the merits of Farber's appeal because he failed to object to the sentence in the court below. When Farber pled guilty, his counsel assured the court that " [w]e have discussed that ... because of his prior record, he falls within the range of 10 to 16 months...." Similarly, both Farber and his defense counsel spoke at the sentencing hearing, and neither objected to the range of the sentence as calculated under the Guidelines. Instead, counsel stated that "we have reviewed the report ... and the minimum [sentence] of this case is ten months...."

In United States v. Smith, 905 F.2d 1296 (9th Cir. 1990), we considered a defendant's argument that he should be able to raise an objection to the calculation of his sentence for the first time on appeal. There we stated that:

It is well-settled that " [a] party must raise an objection initially to the trial court to preserve it for appeal." We have held that we may consider an issue raised for the first time on appeal if

(1) there are "exceptional circumstances" why the issue was not raised in the trial court,

(2) the new issue arises while the appeal is pending because of a change in the law, or

(3) the issue presented is purely one of law....

Id. at 1302 (citations omitted). We then found that the judge's failure to grant a reduction for role in the offense could not be raised for the first time on appeal, because none of the exceptions to the prohibition of appellate review applied.

The reasoning of Smith is applicable here. Farber does not allege "exceptional circumstances" that explain his failure to challenge his sentence at the trial level. See id. Moreover, there has been no change in the law during the course of the appeal. Id. Finally, both issues raised here--failure to grant a role reduction and calculation of the criminal history score--may depend on facts not developed in the record. As pointed out in Smith, the determination of whether a defendant was a minor or minimal participant is "a fact-dependent inquiry." Id. Moreover, although the calculation of criminal history score is essentially a question of law, United States v. Gross, 897 F.2d 414, 416 (9th Cir. 1990), resolution may depend on facts not developed below. Therefore, we decline to exercise our discretion to consider these issues. See Bolker v. Commissioner, 760 F.2d 1039, 1042 (9th Cir. 1985) (declining to address an issue because "there may be facts relevant to the issue which were not developed in the record"); Mathes v. The Clipper Fleet, 774 F.2d 980, 983 n. 3 (9th Cir. 1985) ("Because [appellant] has failed to demonstrate exceptional reasons why the issue was not raised below, we decline to consider it."); Animal Protection Institute of America v. Hodel, 860 F.2d 920, 927 (9th Cir. 1988) ("no circumstances support suspending the application of the general rule disfavoring review of issues first raised on appeal ... the parties did not argue this issue below, and the record is not fully developed"); Alexopulus by Alexopulus v. Riles, 784 F.2d 1408, 1411 (9th Cir. 1986) (no manifest injustice in declining to review issue, because the appellants did not provide reasons for their failure to raise the issue before the district court); United States v. Visman, No. 89-10630, slip op. 14693, 14700-02 (9th Cir. Nov. 28, 1990) (defendant waives a challenge to a presentence report by failing to object in the district court).

We conclude that Farber has waived the opportunity to appeal his sentence by failing to challenge it below.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4