USA v. Robert John Jackaway

1The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
No. 00-1342WM
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United States of America, *
*
Appellee, * On Appeal from the United
* States District Court
v. * for the Western District
* of Missouri.
Henry T. Oberholtz, *
* [Not To Be Published]
Appellant. *
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Submitted: March 1, 2001
Filed: March 26, 2001
___________
Before RICHARD S. ARNOLD, FAGG, and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
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PER CURIAM.
Henry T. Oberholtz appeals from the final judgment entered in the District Court1
for the Western District of Missouri upon his guilty plea to attempting to manufacture
methamphetamine, in violation of 21 U.S.C. § 841(a)(1). The district court sentenced
appellant to 72 months imprisonment and 5 years supervised release. For reversal,
appellant argues that (1) the district court erred in applying an enhancement for

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possessing firearms in connection with the offense, and (2) the government--after
moving for a substantial-assistance downward departure, which the court granted--
breached the spirit of the plea agreement by bringing to the court’s attention adverse
information about Oberholtz’s conduct while the government was recommending the
appropriate extent of departure. For the reasons discussed below, we affirm.
We first conclude that Oberholtz’s challenge to the firearm enhancement is
unreviewable because the district court departed below the Guidelines range--the
statutory minimum of 120 months imprisonment--that would have resulted with or
without the enhancement. See United States v. Baker, 64 F.3d 439, 441 (8th Cir. 1995)
(allegedly erroneous application of weapon enhancement unreviewable where
defendant received sentence below applicable Guidelines range with or without
enhancement).
Second, we conclude that the plea agreement--which expressly reserved the
government’s right to bring to the district court’s attention any information about
Oberholtz’s conduct that was relevant to determining the appropriate extent of the
departure--was not breached. Cf. United States v. McKnight, 186 F.3d 867, 869 (8th
Cir. 1999) (per curiam) (plea agreement was not breached where government promised
to file downward-departure motion, and did so, but also disclosed to district court
information regarding defendant’s criminal conduct which led court to deny motion).
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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