Akana
United States v. Akana
Opinion
Lead Opinion
Hawkins, J.
MEMORANDUM **
Defendant-Appellant Thomas Kaimanu Akana (“Akana”) seeks specific performance of his plea agreement in which he explicitly waived his rights to appeal and to attack his sentence collaterally. The government concedes that it failed to assert this waiver in district court. Akana’s failure to challenge the government’s conduct at sentencing and his failure to appeal the sentence directly, however, constitute valid waivers of his right to attack his sentence collaterally. Accordingly, we do not reach the merits of his argument.
Akana’s motion to not publish this disposition is denied as moot.
APPEAL DISMISSED.
Even if we could reach the merits of Akana’s claim, the government was under no obligation to move for the downward departure that Akana seeks. See United States v. Vences, 169 F.3d 611, 613 (9th Cir.1999); United States v. Flores-Payon, 942 F.2d 556, 561-62 (9th Cir.1991). Any obligation to file such a motion was entirely discretionary on the part of the government, which had legitimate and non-diseriminatory reasons for declining to so move: Akana’s promised cooperation was less than complete, and he was indicted on unrelated drug charges shortly before his…