
    UNITED STATES of America, Plaintiff-Appellee, v. Javier LOPEZ-SANTOS, Defendant-Appellant.
    No. 03-30501.
    D.C. No. CR-02-02202-RHW.
    United States Court of Appeals, Ninth Circuit.
    Submitted Aug. 9, 2004.
    
    Decided Aug. 16, 2004.
    George JC Jacobs, III, Office of the U.S. Attorney, Spokane, WA, for Plaintiff-Ap-pellee.
    Gerald R. Smith, Federal Public Defender’s Office, Spokane, WA, for Defendant-Appellant.
    Before SCHROEDER, Chief Judge, RAWLINSON and CALLAHAN, Circuit Judges.
    
      
       This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Javier Lopez-Santos appeals his 188-month sentence following his guilty plea to conspiracy to distribute heroin in violation of 21 U.S.C § 846. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part and dismiss in part.

Lopez-Santos contends that the district court erred when it denied his motion to compel the government to move for a downward departure based on substantial assistance pursuant to U.S.S.G. § 5K1.1 as contemplated in the plea agreement. Because the government’s stated reasons for declining to move for a downward departure were neither arbitrary nor unconstitutional, the district court did not clearly err in denying Lopez-Santos’ motion to compel. See United States v. Burrows, 36 F.3d 875, 884 (9th Cir.1994).

Lopez-Santos also contends that the district court erred in denying his requests for downward departures based on his status as a deportable alien and based on an over-representation of his criminal history. Because we lack jurisdiction to review a district court’s discretionary decision not to depart, see United States v. Pinto, 48 F.3d 384, 389 (9th Cir.1995) (‘We have held that decisions to deny downward departure will be considered discretionary unless the district court indicates that its refusal to depart rests on its view that it could not as a matter of law do so.”), we dismiss this portion of the appeal.

AFFIRMED IN PART, DISMISSED IN PART. 
      
       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.
     