Egger

MEMORANDUM *

Mickey Egger appeals his sentence following his plea of guilty to conspiracy to distribute controlled substances and possession with intent to distribute controlled substances. He claims the government acted arbitrarily and in bad faith by failing to file a substantial assistance motion, and that his sentence violated Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). Because the parties are familiar with the facts, we do not repeat them here.

I. Failure to move for a downward departure for substantial assistance

The government did not move for a downward departure based on the assistance provided by Egger, and Egger argues that this failure violated his cooperation agreement with the Federal Bureau of Investigation.

Ordinary contract principles apply to an agreement to cooperate. See United States v. Carrillo, 709 F.2d 35, 36 (9th Cir.1983). Factual determinations are reviewed for clear error, and whether the facts establish a violation of the contract is a legal question reviewed de novo. See United States v. Plummer, 941 F.2d 799, 803 (9th Cir.1991).

The district court found that Egger voluntarily signed the federal Cooperation…