McAllister

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 contention 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…