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
2

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-fivemile-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
 

1The 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

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
1328.

4

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
5

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 codefendant. 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
6

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
7

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
8

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
9

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
10

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 codefendants 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 codefendant received a lesser sentence); United States v. CastilloRoman, 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
11

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
12

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 postconviction 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
 

2As 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

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
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

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. 
15

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
16

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 codefendants’ 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
17

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 codefendant 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
18

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 
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.