                    United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 00-2480
                                ________________

United States of America,                 *
                                          *
             Appellee,                    *
                                          *      Appeal from the United States
      v.                                  *      District Court for the
                                          *      District of Nebraska.
Adrian Murphy,                            *
                                          *
             Appellant.                   *

                                ________________

                                Submitted: February 14, 2001
                                    Filed: April 30, 2001
                                ________________

Before RICHARD S. ARNOLD, LAY, and HANSEN, Circuit Judges.
                        ________________

HANSEN, Circuit Judge.

       Adrian Murphy appeals from the sentence he received after he pleaded guilty to
distribution of a substance containing crack cocaine in violation of 21 U.S.C. §
841(a)(1). Murphy argues that the district court1 erred in failing to make a downward
departure based on the substantial assistance he provided to the government following
his arrest. Because Murphy waived this issue below, we affirm.


      1
      The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
                                          I.

       Murphy was arrested on September 18, 1998, after he sold crack cocaine on
three separate occasions to a government confidential informant. Murphy entered a
cooperation agreement with the government on October 16, 1998, as well as a plea
agreement in which he waived his right to an indictment by a grand jury. The plea
agreement also gave the government exclusive control over the timing of Murphy's
waiver of the indictment and plea entry. The government agreed to consider making
a motion for downward departure at sentencing under 18 U.S.C. § 3553(e) and under
Sentencing Guideline § 5K1.1 if the United States Attorney, in his sole discretion,
determined that Murphy provided substantial assistance in the investigation or
prosecution of one or more other persons and did not otherwise violate the plea
agreement. The cooperation agreement required Murphy to cooperate with law
enforcement for a period of 60 days.

       During the initial 60-day period, Murphy cooperated with the Drug Enforcement
Agency and made two controlled cocaine purchases. Following that 60-day period, the
government requested and received an extension of the cooperation agreement for an
additional 60 days. Ultimately, Murphy was unable or unwilling to identify the target
of the DEA’s investigation or make additional purchases from him. The DEA Special
Agent involved with Murphy's cooperation informed the United States Attorney’s
Office that Murphy was less dependable after the cooperation agreement was extended.

       On August 20, 1999, Murphy's waiver of indictment by a grand jury and guilty
plea were entered, and sentencing was set for November 9, 1999. Murphy absconded
prior to his sentencing and was finally arrested on March 22, 2000, in possession of
26.88 grams of crack cocaine. His sentencing was reset for May 24, 2000. The
government had made a recommendation to the presentence investigator for a three-
level reduction in Murphy's offense level based on his acceptance of responsibility as
of the time of Murphy's guilty plea and before he absconded. The government never

                                          2
moved for a downward departure based on substantial assistance. Because Murphy
fled prior to his initial sentencing date, the district court imposed a two-level upward
adjustment for obstructing justice rather than the three-level acceptance of
responsibility downward adjustment suggested by the government's earlier
recommendation. Murphy’s criminal history score and adjusted offense level resulted
in a sentencing range of 235 to 293 months. The district court did not depart from the
identified sentencing range and sentenced Murphy to 240 months of imprisonment.

                                          II.

       Murphy argues on appeal that the district court erred in not departing downward
from the identified sentencing range because he provided substantial assistance to the
DEA during the term of his cooperation agreement. It is well settled, however, that a
district court is without authority to make a downward departure based on substantial
assistance absent a motion from the government, unless the government's refusal to file
a motion is based on unconstitutional motives, is irrational, or is made in bad faith.
United States v. Kelly, 18 F.3d 612, 617-18 (8th Cir 1994).

       We need not delve into the government's reasons for failing to file a downward
departure motion because Murphy has waived the issue. Murphy failed to raise the
issue of a downward departure with the district court at his sentencing. Normally when
a defendant fails to raise an issue before the district court, the issue is not properly
preserved for appeal, and is thus subject to plain error review under Federal Rule of
Criminal Procedure 52(b). See United States v. White, 241 F.3d 1015, 1023 (8th Cir.
2001). However, we need not even conduct plain error review in this case because
Murphy waived his right to object in this court to the government's failure to make a
motion for downward departure. See United States v. Gutierrez, 130 F.3d 330, 332 (8th
Cir. 1997). When a defendant waives a right, that is intentionally relinquishes or
abandons it, the claim is extinguished altogether. Only when the right is inadvertently


                                           3
left unasserted is the defendant saved by Rule 52(b)'s plain error review. See United
States v. Olano, 507 U.S. 725, 733 (1993); Gutierrez, 130 F.3d at 332.

       Murphy did not object to the presentence investigation report, which did not
identify substantial assistance as a factor warranting departure. When the government
did not make the motion, he made no departure motion of his own nor did he otherwise
indicate to the district court at the time of his sentencing that a departure for substantial
assistance was something to which he felt entitled. After explaining to the district court
the extent of Murphy's cooperation with the government pursuant to the cooperation
agreement, Murphy's counsel asked only that he be sentenced at the bottom of the
sentencing range. "We're asking that the Court enter a sentence imposing a sentence
toward the lower end of the guidelines. Mr. Murphy has been already sentenced on the
obstruction and ask that the Court consider his cooperation with the government in this
case." (Sent. Tr. at 7-8.) The sentencing transcript belies Murphy's contention that he
did not voluntarily relinquish or abandon his right to object in this court to the
government's failure to file a motion for downward departure because he anticipated
that the government would make the motion at sentencing or later. Not only did he not
object when that anticipation did not come to pass, he asked only to be sentenced at the
low end of the sentencing range. He cannot now complain when he received what he
asked for. See United States v. Nguyen, 46 F.3d 781, 783 (8th Cir. 1995) (A defendant
who "merely receive[s] what he bargained for" in a plea agreement "may not challenge
that punishment on appeal."). On these facts, we hold that Murphy waived his right to
object now to the government's failure to move for a downward departure. See United
States v. Hipolito-Sanchez, 998 F.2d 594, 596 (8th Cir. 1993) (defendant who withdrew
objections to drug quantities contained in the presentence report waived his right to
challenge the amount on appeal); United States v. Scanga, 225 F.3d 780, 783 (7th Cir.
2000) (defendant intentionally relinquished his right to appeal guidelines calculations




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when he did not object to PSR addendum and stated at sentencing that "'everything
seems to be correct'"), cert. denied, 121 S. Ct. 827 (2001).2

       Even if we were to conduct plain error review, Murphy's sentence must be
affirmed. The plea agreement provided that the government would make the motion
if the United States Attorney determined, in his sole discretion, that Murphy provided
substantial assistance AND if Murphy did not otherwise violate the plea agreement.
The plea agreement required that Murphy "not commit any crimes whatsoever." (R.
at 3, Plea Agreement ¶ 5.) Murphy nullified any obligation the government had to file
the downward departure motion when he absconded and was later arrested in
possession of over 26 grams of crack cocaine. There was no plain error.

                                          III.

      We affirm the sentence imposed by the district court.



      2
        Though neither party addresses it in their briefs, we note that in the plea
agreement, Murphy "knowingly and voluntarily agree[d] to waive any right which he[]
may have to challenge the government's decision to not file or seek a downward
departure pursuant to Title 18 U.S.C. 3553(e), Rule 35(b), or §5K1.1 USSG, except
upon a substantial threshold showing by the defendant that any such decision was
based upon an unconstitutional motive related to the defendant's race, religion, gender,
or national origin." (R. at 4, Plea Agreement ¶ 7.) Murphy claims on appeal that the
government acted irrationally and in bad faith, but he does not argue the one basis
reserved in the plea agreement, that the government's actions were based on
unconstitutional motives. "Generally, we do not consider issues that a defendant
knowingly and voluntarily waived in a plea agreement." United States v. Goings, 200
F.3d 539, 543 (8th Cir. 2000); see also United States v. Stuttley, 103 F.3d 684, 686 (8th
Cir. 1996), cert. denied, 522 U.S. 824 (1997). We do not base our holding today solely
on Murphy's waiver in his plea agreement because the government did not raise it. It
does bolster our holding, however, that Murphy has waived the issues raised in this
appeal.
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A true copy.

      Attest:

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




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