UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-30522
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TROY A. LAWRENCE,
Defendant-Appellant.
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Appeal from the United States District Court for the
Western District of Louisiana
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June 23, 1999
Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.
BENAVIDES, Circuit Judge:
Troy A. Lawrence appeals the district court’s denial of his
petition for a writ of habeas corpus and his motion for
reconsideration of that denial. We affirm.
Pursuant to 28 U.S.C. § 2255, Lawrence moved the district
court to vacate his conviction and sentence under 18 U.S.C.
§ 924(c)(1) for using and carrying a firearm during and in relation
to a drug trafficking crime. Lawrence’s co-defendant at trial,
Sylvester Tolliver, filed essentially the same motion several
months earlier. The government did not oppose Tolliver’s motion,
and the court granted it, vacating Tolliver’s conviction and the
corresponding sentence. Lawrence argues that the government’s
opposition to and the district court’s denial of his motion
violates his right to equal protection under the Fifth Amendment
and that the disparate treatment is fundamentally unfair. We
disagree because we view the government’s decision whether to
oppose a motion to vacate as a matter within its discretion and
because Lawrence has suggested no impermissible ground for the
government’s opposition to and the district court’s denial of his
motion.
I
Lawrence and Tolliver came to the attention of authorities
when a law enforcement officer clocked their two vehicles traveling
one behind the other at seventy-one miles per hour in a fifty-five-
mile-per-hour zone. During the course of the ensuing stop, the
officer asked Lawrence if he had any weapons in his car. Lawrence
told the officer that he had a pistol on the front seat, and the
officer then located the loaded weapon in the vehicle. Tolliver
carried a firearm in his car, which also contained thirty-one
kilogram-sized bricks of cocaine hidden in a secret compartment of
the vehicle.
On January 24, 1992, a jury convicted Lawrence and Tolliver of
conspiracy to possess with intent to distribute fifty grams of
cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A);
of possession, aided and abetted by each other, with intent to
distribute approximately fifty grams of cocaine in violation of 21
U.S.C. § 841(a)(1), (b)(1)(A) and 18 U.S.C. § 2; and of using and
carrying a firearm during and in relation to a drug trafficking
2
crime in violation of 18 U.S.C. § 924(c)(1). For the conspiracy
and possession offenses, both Lawrence and Tolliver received
concurrent sentences of imprisonment for 216 months. They also
received consecutive sixty-month terms of imprisonment for the
§ 924(c)(1) count. In an unpublished opinion, this Court upheld
the convictions. See United States v. Tolliver, No. 93-4438 (5th
Cir. Mar. 18, 1994).
Thereafter, in Bailey v. United States, 516 U.S. 137, 150, 116
S.Ct. 501, 509 (1995), the Supreme Court held that the “use” prong
of § 924(c)(1) “denotes active employment.” Bailey thereby
invalidated the type of instruction--allowing for a passive
conception of “use”--given during the trial of Lawrence and
Tolliver.
On May 20, 1996, Tolliver filed a motion to dismiss the count
charged under § 924(c)(1), which the district court construed as a
motion pursuant to 28 U.S.C. § 2255. The government did not oppose
Tolliver’s motion and conceded that his conviction under
§ 924(c)(1) should be vacated. In taking this position, the
government relied on Bailey and on United States v. Fike, 82 F.3d
1315, 1328 (5th Cir. 1996), overruled by United States v. Brown,
161 F.3d 256 (5th Cir. 1998) (en banc), which reversed a
§ 924(c)(1) conviction that involved a pre-Bailey passive “use”
instruction.1 On July 8, 1996, the district court vacated
1
The Fike panel found the evidence in that case to be
sufficient to support a “carry” conviction, but not a “use”
conviction. Concerned that the jury might have based its verdict
on the pre-Bailey “use” prong of the instructions, the panel
remanded for retrial on the “carry” theory. See Fike, 82 F.3d at
3
Tolliver’s § 924(c)(1) conviction and the corresponding sixty-month
sentence.
On November 26, 1996, Lawrence, with the assistance of
counsel, filed a § 2255 motion to vacate his sentence, arguing that
the government had not demonstrated “use” of a firearm as required
under § 924(c)(1) according to Bailey. The government opposed this
motion. In opposing Lawrence’s § 2255 motion, the government
relied on Fifth Circuit cases interpreting § 924(c)(1)’s “carry”
prong where the firearm was found in a vehicle driven by the
defendant and argued that the evidence demonstrated that Lawrence
had carried a firearm during and in relation to a drug trafficking
crime. The government acknowledged that Fike, 82 F.3d at 1328, had
reversed a § 924(c)(1) conviction despite evidence showing
“carrying,” but the government attempted to distinguish Fike by
relying on other circuits’ case law. The government focused on
cases in which various courts had upheld § 924(c)(1) convictions,
despite erroneous “use” instructions, because the convictions were
clearly based only on the “carry” prong of § 924(c)(1). According
to the government, these cases offered a way to distinguish Fike
and to preserve Lawrence’s conviction. On February 12, 1997, the
district court denied Lawrence’s motion. The court noted that the
indictment charged that Lawrence “used and carried” a firearm in
violation of § 924(c)(1). Because the conjunctive nature of the
charge meant that the government could succeed if it proved either
“use” or “carrying,” the jury received an instruction that it could
1328.
4
find Lawrence guilty if he “knowingly used or carried” a firearm.
The district court observed that there was no evidence of mere
possession such that the jury might have found the type of passive
“use” rejected by Bailey. Because the record was clear that the
jury could only have found that Lawrence had “carried” the firearm,
the court concluded that the improper “use” instruction did not
require it to vacate the § 924(c)(1) conviction.
Lawrence then filed a motion to reconsider, arguing that the
Equal Protection Clause and fundamental fairness required that his
motion be treated the same as the motion brought by his co-
defendant. Lawrence also argued that the federal Sentencing
Guidelines required that he and Tolliver be sentenced similarly.
According to Lawrence, the grant of Tolliver’s motion and the
denial of Lawrence’s motion were inconsistent, resulting in “an
absurdity.” The district court granted the motion to reconsider
and addressed Lawrence’s arguments but denied the motion to vacate,
concluding that Lawrence lacked legal support for his claim that
the disparate treatment violated equal protection principles.
According to the district court, there was sufficient evidence to
support a “carry” conviction for both defendants and the fact that
Tolliver’s motion was unopposed “was a fortuitous turn of events
for Tolliver” but did not require the court to reach the same
conclusion with respect to Lawrence’s motion. Lawrence filed a
timely notice of appeal, and this Court granted a certificate of
appealability.
Soon after we heard arguments in this case, our Court, sitting
5
en banc, decided United States v. Brown, 161 F.3d 256, 259 (5th
Cir. 1998) (en banc), which held that an improper “use” instruction
is harmless if, in concluding that the defendant “used” a firearm
according to a pre-Bailey “use” instruction, the jury necessarily
found that he “carried” the firearm. Under Brown, we would affirm
the district court’s initial denial of Lawrence’s § 2255 motion, as
the record in this case reveals that “the jury’s finding of passive
‘use’ amounted to a finding of ‘carrying.’” Id.
On appeal, however, Lawrence does not challenge the
substantive basis of the district court’s denial of his motion to
vacate. Instead, Lawrence argues, as he did in his motion for
reconsideration, that the disparate treatment of his § 2255 motion,
in relation to the same motion by his co-defendant, violates his
right to equal protection. In support of his argument, Lawrence
relies on the Fifth Amendment’s equal protection component, the
United States Sentencing Guidelines, the doctrine of the law of the
case, and notions of “fundamental fairness.” The government
counters that the constitutional guarantee of equal protection does
not require that similarly situated defendants be treated in the
same way, as long as their sentences fall within the Sentencing
Guidelines.
II
In our criminal justice system, the decision whether to
prosecute an individual is vested with the government. See Wayte
v. United States, 470 U.S. 598, 607, 105 S. Ct. 1524, 1530 (1985);
United States v. Sparks, 2 F.3d 564, 580 (5th Cir. 1993). That
6
decision “is within the United States Attorney’s substantial
discretion and is generally not subject to judicial review absent
a showing of actual vindictiveness or an equal protection
violation.” United States v. Ballard, 779 F.2d 287, 295 (5th Cir.
1986) (footnotes omitted). The broad discretion afforded a
prosecutor “rests largely on the recognition that the decision to
prosecute is particularly ill-suited to judicial review.” Wayte,
470 U.S. at 607, 105 S. Ct. at 1530; see United States v.
Armstrong, 517 U.S. 456, 465, 116 S. Ct. 1480, 1486 (1996). As a
general rule, then, substantial deference is accorded decisions
requiring the exercise of prosecutorial discretion. We view the
decision whether to oppose a § 2255 motion as intrinsically related
7
to the decision whether to prosecute in the first instance or to a
decision regarding the level of punishment to be sought in a
prosecution. Because the government’s response to a § 2255 motion
is the product of its exercise of prosecutorial discretion, it
ought to be afforded the same deference as other enforcement
decisions.
In keeping with the need to avoid judicial second-guessing of
prosecutorial decisions, we have never held that similarly situated
defendants must be treated identically. We allow the government
discretion to decide which individuals to prosecute, which offenses
to charge, and what measure of punishment to seek. Cf. United
States v. Batchelder, 442 U.S. 114, 124, 99 S. Ct. 2198, 2204
(1979) (“Whether to prosecute and what charge to file or bring
before a grand jury are decisions that generally rest in the
prosecutor’s discretion.”). Specifically, the Supreme Court has
sanctioned prosecutors’ decisions to seek the imposition of
disparate sentences among individuals committing similar offenses.
See, e.g., Williams v. Illinois, 399 U.S. 235, 243, 90 S. Ct. 2018,
2023 (1970) (“The Constitution permits qualitative differences in
meting out punishment and there is no requirement that two persons
convicted of the same offense receive identical sentences.”). In
United States v. LaBonte, 520 U.S. 751, 117 S. Ct. 1673 (1997), the
Court addressed the argument that a challenged statutory
interpretation resulted in a sentencing guideline that allowed
“unwarranted disparity” in sentences. The potential for disparate
sentences arose from the government’s discretionary power to
8
provide notice that it would seek enhanced penalties based on prior
convictions. In response to the criticism of the challenged
interpretation, the Court explained:
Insofar as prosecutors, as a practical matter, may be
able to determine whether a particular defendant will be
subject to the enhanced statutory maximum, any such
discretion would be similar to the discretion a
prosecutor exercises when he decides what, if any,
charges to bring against a criminal suspect. Such
discretion is an integral feature of the criminal justice
system, and is appropriate, so long as it is not based
upon improper factors. Any disparity in the maximum
statutory penalties between defendants who do and those
who do not receive notice is a foreseeable--but hardly
improper--consequence of the statutory notice
requirement.
Id. at 762, 117 S. Ct. at 1679 (citations omitted).
This Court has similarly rejected equal protection challenges
arising from disparate sentences imposed on co-defendants. In
Russell v. Collins, 998 F.2d 1287 (5th Cir. 1993), for example, we
addressed the claim that the disparity between the appellant’s
death sentence and the sixty-year sentence of his accomplice, who
pleaded guilty, violated the Equal Protection Clause. In rejecting
this argument, we noted:
It is well established that a prosecutor has discretion
to enter into plea bargains with some defendants and not
with others. Absent a showing of vindictiveness or use
of an arbitrary standard . . . the prosecutor’s decision
is not subject to constitutional scrutiny.
Id. at 1294 (footnote omitted); see also United States v. Garcia,
693 F.2d 412, 417 (5th Cir. 1982) (“A district judge enjoys broad
discretion in imposing sentence; the sentence of a codefendant need
not be considered.”). In United States v. Ryan, 874 F.2d 1052 (5th
Cir. 1989), we dealt with a claim that the district court’s order
9
of restitution, imposed on the appellant but not on a number of
other co-defendants, constituted an equal protection violation. We
noted that the restitution ordered was less than the amount due to
the government and was within the limits set by the statute dealing
with restitution. We upheld the restitution order, reasoning:
District courts are accorded broad discretion in ordering
restitution. Generally, “once it is determined that a
sentence is within the limitations set forth in the
statute under which it is imposed, appellate review is at
an end.”. . . The simple fact that like punishment was
not imposed on other defendants does not offend the
constitution. The court has complete discretion to
consider the relative degrees of responsibility of co-
defendants in imposing restitution obligations but this
is not a necessary factor either as a constitutional or
statutory requirement.
Id. at 1054-55 (citations omitted); see also United States v. Boyd,
885 F.2d 246, 249 (5th Cir. 1989) (holding that a defendant could
not base a challenge to his sentence solely on fact that his co-
defendant received a lesser sentence); United States v. Castillo-
Roman, 774 F.2d 1280, 1284 (5th Cir. 1985) (noting that a judge
need not consider the sentences of co-defendants in imposing
sentence on a defendant and stating that a “defendant cannot rely
upon his codefendants’ sentences as a yard-stick for his own”);
United States v. Cortez, 521 F.2d 1, 4 (5th Cir. 1975) (finding
that the imposition of a lengthier sentence than that imposed on a
co-defendant did not constitute an equal protection or due process
violation where the sentence was within the statutory limit and the
appellant had not demonstrated an abuse of judicial discretion that
would have entitled him to relief).
Although these cases do not address the precise situation
10
here--that is, the government’s taking contrary positions with
respect to co-defendants’ § 2255 motions involving identical facts
and legal issues--their underlying rationale is indistinguishable
from the principle that must guide this case. If the equal
protection and due process guarantees do not divest the government
of its discretionary authority to select which individuals it will
prosecute, what charges it will bring, and what punishment it will
seek, then the decision whether to oppose a § 2255 motion surely
must rest with the government. Had the government in the first
instance charged Lawrence but not Tolliver under 18 U.S.C.
§ 924(c)(1), absent a constitutionally impermissible motive, we
would have rejected an equal protection challenge as too great an
incursion into the government’s prosecutorial authority. The
imposition of a requirement of equal post-conviction treatment for
similarly situated defendants would constitute no less an
unwarranted intrusion into the decisionmaking authority necessarily
reserved for the administrative branch.
This is not to say that the government may wield its
prosecutorial power in an invidious or arbitrary manner. Although
prosecutorial discretion is broad, it is not unbounded. See Wayte,
470 U.S. at 608, 105 S. Ct. at 1531. “In particular, the decision
to prosecute may not be deliberately based upon an unjustifiable
standard such as race, religion, or other arbitrary classification,
including the exercise of protected statutory and constitutional
rights.” Id. (internal quotes and citations omitted); see
Armstrong, 517 U.S. at 464-65, 116 S. Ct. at 1486. We ascertain
11
whether a particular enforcement decision is impermissible by
applying equal protection standards. See Wayte, 470 U.S. at 608,
105 S. Ct. at 1531. To succeed with a selective prosecution claim,
a defendant must demonstrate that the enforcement had a
discriminatory effect and was motivated by an invidious purpose.
See id.; Sparks, 2 F.3d at 580; United States v. Hoover, 727 F.2d
387, 389 (5th Cir. 1984); Johnson, 577 F.2d at 1308.
In this case, the appellant has not claimed that the
government’s opposition to (or the court’s denial of) his motion
was motivated by any type of animus or by any characteristic unique
to him. The only significant difference between appellant and his
co-defendant is the point in time at which they each filed their
respective § 2255 motions. According to Lawrence, this temporal
difference is an insufficient basis for the disparate treatment.
Notwithstanding Lawrence’s protestations, the government had
a rational and proper basis for its decision to oppose a motion
identical to one that it had earlier conceded. The state of the
law regarding the “use” component of § 924(c)(1) was evolving
during the period in which Tolliver and Lawrence filed their post-
conviction motions. See United States v. Brown, 161 F.3d 256, 258
n.4 (5th Cir. 1998) (en banc) (reviewing circuit courts’
development of harmless-error analysis for pre-Bailey convictions
under § 924(c)(1)). Tolliver’s § 2255 motion was apparently one of
the first such motions filed in the Western District of Louisiana
after the Bailey decision. After Tolliver’s motion, a prevailing
trend emerged, which dictated that a conviction involving an
12
improper “use” instruction coupled with a proper “carry”
instruction should stand if the evidence demonstrated that a jury
necessarily had to have found that the defendant “carried” a
firearm in order to have found that he “used” one under the
improper instruction. See, e.g., United States v. Robinson, 96
F.3d 246, 250 (7th Cir. 1996); United States v. Gonzalez, 93 F.3d
311, 320-22 (7th Cir. 1996).
Lawrence complains that the government, in opposing his
motion, relied on decisions from the Seventh Circuit in the absence
of intervening Fifth Circuit case law. This is a baseless
objection--one that essentially would place the government in a
position in which it could not oppose any Bailey-based motions
owing to the lack of favorable circuit precedent, the development
of which would in turn be stymied by the government’s consequent
inability to press post-Bailey arguments. Lawrence cannot estop
the government from changing its position as the evolving nature of
the law encourages the government (as well as defendants) to seek
new pronouncements from the courts. In fact, with respect to the
substantive issue raised by Lawrence’s § 2255 motion, we
reconsidered the matter, reversed our initial position, and adopted
a harmless-error analysis for convictions under improper “use”
instructions. See Brown, 161 F.3d at 259 (finding a pre-Bailey
“use” instruction to be harmless where “the jury’s finding of
passive ‘use’ amounted to a finding of ‘carrying’”).2 Lawrence
2
As we noted earlier, Brown thus dictates that Lawrence’s
conviction be upheld, notwithstanding the improper “use”
instruction. The circumstances of his offense demonstrate that a
13
cannot turn back the clock to a time when the law was less
developed simply because his co-defendant filed his motion earlier
and consequently gained the benefit of the government’s uncertainty
regarding the viability of convictions involving pre-Bailey
instructions.
In sum, there is nothing in the record to indicate that an
impermissible purpose led the government to oppose Lawrence’s
motion. Instead, the government merely re-evaluated its position
and advanced a different argument than the one to which it had
acceded in Tolliver’s case. Lawrence had no ground to preclude the
government from doing so, as it is beyond peradventure that the
decision to advance a theory not developed in earlier cases does
not offend the constitution. Although it is little comfort for
Lawrence that he will remain in prison five years longer than his
equally culpable co-defendant, in this case, timing did mean all
the difference.
III
Lawrence offers several addition arguments to support his
equal protection claim. We address each in turn.
A
First, Lawrence argues that the doctrine of the law of the
case dictates that his motion be treated in the same manner as the
motion made by his codefendant.
jury’s finding of “use” was the functional equivalent of “carry.”
See Muscarello v. United States, – U.S. –, 118 S. Ct. 1911 (1998)
(holding that knowing possession and vehicular transport of a
firearm constitute “carrying” under § 924(c)(1)).
14
The doctrine of the law of the case “expresses the
practice of courts generally to refuse to reopen what has
been decided.” The doctrine “posits that when a court
decides upon a rule of law, that decision should continue
to govern the same issues in subsequent stages of the
same case. While not as inflexible as the rules of issue
and claim preclusion, the law of the case doctrine
nonetheless creates a strong presumption of finality
within the case, resting “on the salutary and sound
public policy that litigation should come to an end.”
United States v. Mendez, 102 F.3d 126, 131 (5th Cir. 1996)
(citations omitted).
Although Lawrence was tried jointly with Tolliver, the
doctrine of the law of the case does not govern his claim.
Tolliver’s § 2255 motion is not the same “case” as Lawrence’s
§ 2255 motion. The conviction and its appeal constituted a
discrete case. The subsequent post-conviction motions are distinct
both from the initial proceeding, which became final with our
affirmance of the convictions, and from each other. Thus, there is
no law of the case that binds the instant motion to vacate, and the
doctrine did not require the district court to reach the same
result in considering the respective motions filed by Lawrence and
Tolliver in separate proceedings.
B
Lawrence also argues that the disparate treatment in this case
contravenes the policy underlying the United States Sentencing
Guidelines, which were intended to achieve “reasonable uniformity
in sentencing by narrowing the wide disparity in sentences imposed
for similar criminal offenses committed by similar offenders.”
U.S.S.G., Ch.1, Pt. A(3); see 28 U.S.C. § 991(b)(1)(B) (identifying
the Guidelines’ purpose of “avoiding unwarranted sentencing
15
disparities”).
There are a number of problems with appellant’s invocation of
the Sentencing Guidelines. First, it was 18 U.S.C. § 924(c)(1),
the statutory provision under which Lawrence was convicted, that
set the mandatory sentence imposed on him by the court. Thus, as
a technical matter, the Sentencing Guidelines had no bearing on his
sentence. Second, Lawrence’s comparison of the sentences imposed
on him and Tolliver is inapt: The district court vacated Tolliver’s
§ 924(c)(1) conviction and its attendant sentence; Lawrence cannot
now claim that he received a longer sentence for the same crime, as
he is the only one who now stands convicted of that offense.
Although Congress intended that the Guidelines result in a
sentencing regime that eschews unwarranted disparities, it is
hardly “unwarranted” that a convicted defendant be sentenced to the
statutorily prescribed term while a different defendant with a
vacated conviction not be similarly sentenced. See United States
v. Rhodes, 145 F.3d 1375, 1381 (D.C. Cir. 1998) (“Distinguishing
between prisoners whose convictions are reversed on appeal and all
other prisoners hardly seems ‘unwarranted.’”). Finally, the
Sentencing Guidelines themselves do not require equalization of co-
defendants’ sentences. See, e.g., United States v. Pierce, 893
F.2d 669, 678 (5th Cir. 1990); United States v. Boyd, 885 F.2d 246,
249 (5th Cir. 1980). We have held that “disparity of sentences
among co-defendants simply cannot be deemed an aggravating or
mitigating circumstance. As such, it is not a proper basis for
departure, either upward or downward.” United States v. Ives, 984
16
F.2d 649, 651 (5th Cir. 1993). Thus, the Sentencing Guidelines, if
they were to suggest a resolution to the instant matter, would not
dictate that Lawrence receive the same sentence as that imposed on
his co-defendant.
C
Finally, Lawrence complains that it is not “fair” that his
§ 2255 motion was treated differently solely because he filed it a
few months after his co-defendant filed his same motion. He has
not indicated, however, why it would be any less unfair to grant
him the relief he seeks based solely on the success of his co-
defendant while other defendants convicted by juries receiving
improper “use” instructions will have, or have had, their motions
opposed and denied. Cf. Baker v. Director, United States Parole
Commission, 916 F.2d 725, 727 (D.C. Cir. 1990) (rejecting an equal
protection argument based on the fact that persons who committed
similar crimes after implementation of the Sentencing Guidelines
would receive shorter sentences and noting that the defendant was
“in no worse position than those who were sentenced at the same
time as he under the laws applicable at that time”). Lawrence has
not suggested that his motion was treated differently than other
defendants’ Bailey-based § 2255 motions filed at the same time as
and subsequent to his motion. Nor has he argued that his motion
warranted relief on the merits. By narrowing the focus to a simple
comparison between Lawrence and Tolliver alone, Lawrence fails to
grasp that he is being accorded the statutorily prescribed penalty
for the offense that he committed. Lawrence has not persuaded us
17
that fairness--to Lawrence, to similarly situated defendants, or to
the public--dictates that he share in his co-defendant’s windfall.
IV
The district court did not err in denying Lawrence’s motion
to vacate the conviction and sentence under 18 U.S.C. § 924(c)(1).
Nor did it err in rejecting the arguments raised in Lawrence’s
motion for reconsideration. Accordingly, the judgment of the
district court is AFFIRMED.
ENDRECORD
18
EMILIO M. GARZA, Circuit Judge, specially concurring:
I concur in the judgment and the opinion, except with respect
to Part II. Lawrence argues that the district court’s disparate
treatment of him and co-defendant Tolliver violated the Equal
Protection Clause. I agree with the majority that this claim fails
because Lawrence has not asserted that the court’s denial of his
motion was motivated by animus or some impermissible criteria. I
would decline to address whether the Government’s opposition to his
motion violated the Equal Protection Clause. Lawrence has not
raised this argument—his basic assertion that the Government’s
change in position was “unjustified” is not tantamount to a
constitutional challenge. Thus, I concur in the reasoning of Part
II insofar as it addresses Lawrence’s Equal Protection claim
against the district court.