United States v. McAllister

Ninth Circuit

United States v. McAllister

95 F. App'x 872

CourtCourt of Appeals for the Ninth Circuit

DecidedApril 15, 2004

DocketNo. 03-10506

StatusPublished

This text of 95 F. App'x 872 (United States v. McAllister) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. McAllister, 95 F. App'x 872 (9th Cir. 2004).

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Opinion

MEMORANDUM

**

Nakuru McAlister appeals his 121-month sentence following his guilty plea to conspiracy to distribute cocaine base in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(l)(A)(iii). McAlister’s only [873]*873contention is that the government breached its plea agreement by acting in bad faith and refusing to recommend a downward departure pursuant to U.S.S.G. § 5K1.1. Because McAllister validly waived his right to appeal his conviction and sentence, we dismiss.

There is no support for McAllister’s contention that the government was under any legal obligation to move for a downward departure in good faith or otherwise. Cf. United States v. Khoury, 62 F.3d 1138, 1142 (9th Cir.1995) (noting that whether the government acted in bad faith was irrelevant to whether the court could compel the government to move for a downward departure; rather, the court could only do so if the government refused to file such a motion on an unconstitutional or arbitrary basis). The plea agreement leaves it to the government to decide, in its sole discretion, whether to recommend a downward departure for substantial assistance. Thus, any such failure by the government to move for such a departure could not be considered a breach of the plea agreement. See United States v. Schuman, 127 F.3d 815, 817-18 (9th Cir. 1997) (per curiam) (finding no breach where plea agreement did not obligate government to file substantial assistance motion).

In the absence of a breach by the government, or the district court’s rejection of a provision within the plea agreement, the appellate waiver must be enforced.¹

DISMISSED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

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MEMORANDUM

**

Nakuru McAlister appeals his 121-month sentence following his guilty plea to conspiracy to distribute cocaine base in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(l)(A)(iii). McAlister’s only [873]*873contention is that the government breached its plea agreement by acting in bad faith and refusing to recommend a downward departure pursuant to U.S.S.G. § 5K1.1. Because McAllister validly waived his right to appeal his conviction and sentence, we dismiss.

There is no support for McAllister’s contention that the government was under any legal obligation to move for a downward departure in good faith or otherwise. Cf. United States v. Khoury, 62 F.3d 1138, 1142 (9th Cir.1995) (noting that whether the government acted in bad faith was irrelevant to whether the court could compel the government to move for a downward departure; rather, the court could only do so if the government refused to file such a motion on an unconstitutional or arbitrary basis). The plea agreement leaves it to the government to decide, in its sole discretion, whether to recommend a downward departure for substantial assistance. Thus, any such failure by the government to move for such a departure could not be considered a breach of the plea agreement. See United States v. Schuman, 127 F.3d 815, 817-18 (9th Cir. 1997) (per curiam) (finding no breach where plea agreement did not obligate government to file substantial assistance motion).

In the absence of a breach by the government, or the district court’s rejection of a provision within the plea agreement, the appellate waiver must be enforced.¹

DISMISSED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

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95 F. App'x 872, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mcallister-ca9-2004.

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