United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 10, 2005
Charles R. Fulbruge III
Clerk
No. 04-40556
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NATHAN GONZALES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CR-197-1-TH-WCR
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Nathan Gonzales appeals his 160-month sentence imposed
following his guilty plea to possession with intent to distribute
a controlled substance and carrying a firearm during and in
relation to a drug-trafficking offense. Gonzales argues that his
codefendant received a lesser sentence than he did because the
codefendant was not charged under 18 U.S.C. 924(c) although he
had equal access to the firearm possessed during the offense.
Gonzales argues that he should have received equal punishment for
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-40556
-2-
the same offense. The district court denied Gonzales’ motion for
a downward departure, finding it unwarranted based on the facts
of the case.
The court has jurisdiction to review a refusal to downwardly
depart from the guideline sentencing range only if the district
court based its decision on an erroneous belief that it lacked
the authority to depart. United States v. Buck, 324 F.3d 786,
797 (5th Cir. 2003). Gonzales does not argue, nor does the
record indicate, that the district court believed it did not have
the authority to make a downward departure. See United States v.
Landerman, 167 F.3d 895, 899 (5th Cir. 1999). This court lacks
jurisdiction to review the denial of Gonzales’ motion for a
downward departure. See Buck, 324 F.3d at 797. Accordingly,
Gonzales’ appeal of this issue is DISMISSED for lack of
jurisdiction. See Landerman, 167 F.3d at 899.
Gonzales also argues that it was a violation of
prosecutorial discretion to file an additional charge against him
which resulted in his receiving a more severe punishment than his
codefendant. He argues that the prosecution violated his rights
under the Due Process Clause by not charging him in the same
manner as his codefendant.
The Government has broad discretion in enforcing federal
criminal laws. United States v. Armstrong, 517 U.S. 456, 464
(1996). A “presumption of regularity” supports prosecutorial
decisions and courts presume prosecutors have properly discharged
No. 04-40556
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their official duties absent clear evidence to the contrary. Id.
(citation omitted). To establish a selective-prosecution claim,
a defendant has a “heavy burden.” United States v. Johnson, 577
F.2d 1304, 1308 (5th Cir. 1978) (quoting United States v.
Berrios, 501 F.2d 1207, 1211 (2nd Cir. 1974)). First, a
defendant must make a prima facie showing that he was singled out
for prosecution while others similarly situated who committed the
same acts were not prosecuted. United States v. Jennings, 724
F.2d 436, 445 (5th Cir. 1984). Second, he must demonstrate that
the government’s selective prosecution was constitutionally
invidious in that it rested upon such impermissible
considerations as race, religion, or the desire to prevent his
exercise of constitutional rights. Id; Johnson, 577 F.2d at
1308.
Gonzales has presented no evidence to rebut the presumption
of regularity supporting the Government’s decision to prosecute
him under 18 U.S.C. § 924(c). He does not assert that he was
prosecuted based on his race or religion or to prevent his
exercise of a particular constitutional right. Gonzales has thus
not carried the “heavy burden” necessary to show that he was
selectively prosecuted.
Gonzales’ appeal of the district court’s denial of his
motion for a downward departure is DISMISSED for lack of
jurisdiction. His sentence is otherwise AFFIRMED.