OpenJurist

952 F2d 1049 United States v. J Ragan

952 F.2d 1049

UNITED STATES of America, Appellant,
v.
Bradley J. RAGAN, Appellee.

No. 91-2098.

United States Court of Appeals,
Eighth Circuit.

Submitted Nov. 12, 1991.
Decided Jan. 3, 1992.

Anita Mortimer, Asst. U.S. Atty., Kansas City, Mo., argued, for appellant.

Patrick O'Brien, Kansas City, argued, for appellee.

Before BOWMAN and BEAM, Circuit Judges, and VAN SICKLE,* District Judge.

PER CURIAM.

1

The government filed this appeal challenging the decision of the District Court1 to depart downward from the sentencing guidelines range when sentencing Bradley J. Ragan, who had pled guilty to three counts of distributing cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and (b)(1)(C) (1988). The District Court granted the downward departure because Ragan had stopped using drugs for over a year before his indictment and had maintained steady employment during that time. Further, the court noted that Ragan had been willing to provide substantial assistance to the government but, because he was not indicted until over a year after he committed the offenses, his information was no longer timely.

2

At the sentencing hearing, the government failed to object to the District Court's decision to grant a downward departure. Accordingly, the government has waived this issue, and may not raise it before this Court unless it can demonstrate that the downward departure was "plain error resulting in a miscarriage of justice." United States v. Carnes, 945 F.2d 1013, 1014 (8th Cir.1991); see also United States v. Houston, 892 F.2d 696, 707 (8th Cir.1989) ("The government could have articulated a clear objection at any point during these [sentencing] proceedings and preserved this argument for appeal. [It] did not do so, and thus, arguments raised for the first time on appeal shall not be considered."); United States v. Garcia-Pillado, 898 F.2d 36, 39-40 (5th Cir.1990); United States v. Prichett, 898 F.2d 130, 131 (11th Cir.1990). Here, the downward departure from the sentencing range, even if erroneous (a question we do not decide), did not result in a miscarriage of justice, and therefore was not plain error. The sentence imposed by the District Court is affirmed.

*

The HONORABLE BRUCE M. VAN SICKLE, Senior United States District Judge for the District of North Dakota, sitting by designation

1

The Honorable Scott O. Wright, Senior United States District Judge for the Western District of Missouri