## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 22 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. KERRY DEVIN O’BRYAN,

Defendant-Appellant. No. 99-3017 (D.C. No. 96-CR-10076-03-MLB)

(D. Kan.)

ORDER Filed February 22, 2001

Before TACHA , EBEL , and LUCERO , Circuit Judges.
This matter is before the court on appellant’s peti tion for rehearing with suggestion for rehearing en banc. The panel has vo ted to modify the order and judgment filed on November 29, 2000. On page four, the order and judgment is modified to reflect that the defendant did not show cause for his failure to raise the issue of selective prosecution before the trial court. The petition for rehearing is denied based on the modification. A copy of the modified order and judgment is attached. The suggestion for rehearing en banc was transmitte d to all of the-2-

judges of the court who are in regular active servi ce as required by Fed. R. App. P. 35. As no member of the panel and no judge in re gular active service on the court requested that the court be polled, the sugge stion is denied.

Entered for the Court Patrick Fisher, Clerk of Court By: Keith Nelson Deputy Clerk* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

1 After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 29 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. KERRY DEVIN O’BRYAN,

Defendant-Appellant. No. 99-3017 (D.C. No. 96-CR-10076-03-MLB)

(D. Kan.)

ORDER AND JUDGMENT *

Before TACHA , EBEL , and LUCERO , Circuit Judges.

Defendant Kerry Devin O’Bryan appeals his convictio n and sentence on the ground that he was selectively prosecuted and disparately sentenced based on his gender. We affirm. 1-2-

On December 18, 1996, a grand jury handed down an i ndictment charging defendant with one count of manufacturing counterfe it currency, one count of passing counterfeit currency, two counts of bank ro bbery, and two counts of carrying or using a firearm during the bank robberi es. In the same indictment, codefendant Amy Thomsen was charged with one count of manufacturing counterfeit currency, one count of passing counterf eit currency, and two counts of bank robbery, based on her participation in the rob beries as the getaway driver. Thomsen pled guilty to the four counts with which s he had been charged and received a fifty-seven month sentence. Defenda nt initially agreed to plead guilty to the charges of counterfeiting, two counts of bank robbery, and one count of using a firearm during a bank robbery. Based onthis plea, defendant would have been sentenced to between fifty-seven and seve nty-one months under the United States Sentencing Guidelines, with an additi onal five years for the firearm charge, as required by statute. See R. VI, doc. 152 at 14; 18 U.S.C. § 924(c). Alleging attorney incompetence and a lack of sleep the night before his plea hearing, defendant filed a pro se motion to withdraw his plea. In the first hearing on his motion, the district court allowed defendant ’s attorney to withdraw and appointed new counsel. The court then attempted to dissuade defendant from withdrawing his plea, during both the first and sec ond hearings on the motion, because he would face significantly more time if he went to trial and was-3-

convicted. See R. VI, doc. 152 at 6-8, 13-17; R. V, doc. 151 at 8-13. At defendant’s insistence, the district court permitte d him to withdraw the plea. Defendant was tried and convicted of all six counts of the original indictment. He was sentenced to a total of three h undred and fifty one months’ imprisonment, based on a guidelines sentence of fif ty-one months, plus a mandatory five years on the first firearm charge, a nd a mandatory twenty years on the second firearm charge, see 18 U.S.C. § 924(c) (1997) (amended in 1998 to increase mandatory sentence for second conviction t o twenty-five years). At the sentencing hearing, defendant’s attorney argued fora sentence reduction to remedy the disparity between defendant’s sentence and that of his codefendant. The district court denied the motion, stating that it had no authority to modify the mandatory statutory sentences and that defendant wa s responsible for the disparity by withdrawing his plea despite advice to the contr ary. After filing this appeal, defendant’s second attorn ey sought leave to withdraw. We granted the attorney’s motion and app ointed the federal public defender to represent defendant. After this third attorney filed an appellate brief, defendant sought leave to withdraw the brief, to di smiss the attorney, and to represent himself on appeal. We granted defendant’ s motion and he has now filed a pro se appellate brief.-4-

Defendant argues that his convictions should be rev ersed because he was selectively prosecuted based on his gender, or thathis sentence should be modified because of the disparity between his sente nce and that of codefendant Thomsen. We review the disposition of a selective prosecution claim for an abuse of discretion. See United States v. Furman , 31 F.3d 1034, 1037 (10th Cir. 1994). The district court’s interpretation and application of the sentencing guidelines and statutes are reviewed de novo. See United States v. Archuleta , No. 00-4014, ___ F.3d ___, 2000 WL 1597338, at *2 (10th Cir. Oct. 26, 2000) (guidelines); United States v. Gigley , 213 F.3d 503, 505 (10th Cir. 2000) (statute). After reviewing the record, we conclude defendant h as waived his claim of selective prosecution. A claim of selective prosec ution is an “objection[] based on defects in the institution of the prosecution,” which must be raised prior to trial. Fed. R. Crim. P. 12(b)(1); see United States v. Bryant , 5 F.3d 474, 476 (10th Cir. 1993) (holding selective prosecution cla im waived if not raised before trial); United States v. Mann , 884 F.2d 532, 539-40 (10th Cir. 1989) (same). Here, defendant certainly did not raise the issue b efore trial and has not shown cause for his failure to do so, and despite his ass ertion to the contrary, his attorney’s argument at sentencing concerned a downw ard departure to lessen the disparity between sentences, not a motion to dismis s for selective prosecution2 We note that even if we were to decide the merits o f defendant’s claim, he

could not succeed, as he has not met the “demanding ” standard of showing by “clear evidence” that he and his female codefendantwere “similarly situated,” and that the decision not to charge her with the firear m enhancement was due to her gender. United States v. Armstrong , 517 U.S. 456, 463-465 (1996). Although they participated in the same robberies, on both oc casions it was defendant who carried the firearm into the bank, threatened the b ank’s occupants with the firearm, and obtained money based on those threats, while codefendant Thomsen simply drove the getaway car. Thus defendant and T homsen were not similarly situated, and the prosecutor and/or grand jury coul d have relied on the difference in their roles when indicting defendant for carryin g or using a firearm during the commission of a felony, but not indicting Thomsen o n the same charge. -5- based on gender. Accordingly, defendant’s selectiv e prosecution claim is waived by raising it for the first time on appeal. 2 Defendant argues that his sentence should have beenreduced to eliminate the disparity between his sentence and that of code fendant Thomsen. It is not clear whether defendant is referring to his sentenc e under the sentencing guidelines or under § 924(c). We are without autho rity to review the district court’s decision under the guidelines, however, bec ause the sentence was within the guideline range and the court was aware of its legal authority to grant a downward departure but simply declined to do so. See United States v. Fagan , 162 F.3d 1280, 1282 (10th Cir. 1998). We note in p assing that we have held it to be an abuse of discretion to depart from the guidel ines when a disparity between a defendant’s sentence and that of a codefendant is due to a plea agreement. See United States v. Gallegos , 129 F.3d 1140, 1143 (10th Cir. 1997).-6-

As for the mandatory sentences for carrying or usin g a firearm under § 924(c), the district court correctly held that itlacked authority to grant a downward departure to remedy the disparity between sentences. See United States v. Campbell , 995 F.2d 173, 175 (10th Cir. 1993) (holding courtlacks power to depart from a statutory minimum sentence f or any reason other than that identified by statute, which is expressly limited b y 18 U.S.C. § 3553(e) to reductions based on a defendant’s substantial assis tance). Defendant has moved this court to supplement the re cord with documents and transcripts from the grand jury proceedings andfrom proceedings related to his codefendants’ convictions and sentences, which he believes might support his selective prosecution claim. In light of our concl usion that defendant waived that claim, his motion is denied as moot. Defendant’s m otion to amend the error in his opening brief is granted. The judgment is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Carlos F. Lucero Circuit Judge