                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-2108
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Nebraska.
Thomas Henry Navarez,                    * [UNPUBLISHED]
                                         *
             Appellant.                  *
                                    ___________

                            Submitted: November 3, 1998

                                Filed: November 10, 1998
                                    ___________

Before WOLLMAN, HANSEN, and MURPHY, Circuit Judges.
                          ___________

PER CURIAM.

       Thomas Henry Navarez pleaded guilty to conspiring to distribute 100 grams or
more of methamphetamine from May through December 1995, in violation of 21
U.S.C. § 846. At the plea hearing, the government agreed to recommend that Navarez
receive a base offense level of 26 and a two-level reduction for acceptance of
responsibility--for a total offense level of 24--and also to move for dismissal of a
related failure-to-appear charge. The district court warned Navarez that the court might
sentence him more severely than the sentencing range applicable to a total offense level
of 24.
       Navarez&s presentence report (PSR) indicated a total offense level of 26 resulting
from a two-level increase for obstruction of justice, see U.S. Sentencing Guidelines
Manual § 3C1.1 (1997), based on Navarez&s failure to appear for trial. Navarez did not
object to the PSR, and the district court1 adopted the PSR&s Guidelines calculations.
The district court then sentenced Navarez to 63 months’ imprisonment and four years’
supervised release and granted the government&s motion to dismiss the failure-to-appear
charge. Navarez appeals, arguing that (1) he should have been allowed to withdraw
his guilty plea when the government “breached” the plea agreement; (2) the district
court should have granted him a downward departure based on his age and lack of
criminal record; (3) the district court failed to use the Guidelines in effect at the time
the offense was committed; and (4) his attorney was ineffective. We affirm.

       Because Navarez neither moved below to withdraw his plea based on an alleged
breach of the plea agreement nor objected to the PSR, we conclude that his first three
arguments were not preserved for appeal and can be reviewed only for plain error. See
United States v. Cohen, 60 F.3d 460, 462-63 (8th Cir. 1995); United States v.
Montanye, 996 F.2d 190, 192 (8th Cir. 1993) (en banc). We also conclude that no
plain error occurred. Navarez&s total offense level was two levels higher than
anticipated only because the probation officer, not the government, recommended a
two-level increase for obstruction of justice; moreover, the court warned Navarez at the
plea hearing that it would not be bound by the parties& stipulated offense level. See
United States v. Hager, 985 F.2d 945, 946 (8th Cir. 1993).

       The district court also did not plainly err by failing to depart downward based
on Navarez&s age and lack of criminal history, see United States v. Hildebrand, 152
F.3d 756, 767 (8th Cir. 1998); United States v. Big Crow, 898 F.2d 1326, 1331 (8th
Cir. 1990), and the district court properly applied the 1995 Guidelines, because the


      1
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.

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offense occurred between May and December 1995, see United States v. Cooper, 35
F.3d 1248, 1251 (8th Cir. 1994) (with conspiracy it is completion date of offense that
controls version of Guidelines to be applied), vacated, 514 U.S. 1094, reinstated, 63
F.3d 761, 762-63 (8th Cir. 1995), cert. denied, 517 U.S. 1158 (1996). Finally, we
conclude that Navarez&s ineffective-assistance claim would be more appropriately
addressed in a 28 U.S.C. § 2255 proceeding, where a record could be more fully
developed. See United States v. Mitchell, 136 F.3d 1192, 1193 (8th Cir. 1998).

      The judgment is affirmed.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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