In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-3770

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RAYMELL MOORE,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 07 CR 13—J. P. Stadtmueller, Judge.

____________

ARGUED MAY 29, 2008—DECIDED SEPTEMBER 10, 2008

____________

Before CUDAHY, POSNER, and TINDER, Circuit Judges.

TINDER, Circuit Judge. Raymell Moore pled guilty to

federal drug charges and was sentenced to a statutory

mandatory minimum term of 10 years’ imprisonment.

On appeal, he raises a “class of one” equal protection

challenge to his sentence. He contends that he was similarly situated to a group of defendants charged in a statecourt drug conspiracy case and that the imposition of the

statutory mandatory minimum sentence was irrational

in light of its non-application to the state-court defendants.
2 No. 07-3770

I. Background

On two occasions in April and June of 2005, Moore

and Curtis Jones sold crack cocaine to an undercover

Milwaukee police officer and a confidential informant.

On each occasion, Moore acted as the middleman in

arranging the purchase, and Jones was the supplier. The

two transactions involved a total of approximately 64

grams of crack cocaine and gave rise to the current federal

case, in which Moore and Jones were charged as codefendants.

Meanwhile, during the same time period in the spring

of 2005, Wisconsin law enforcement officials were investigating the activities of a Milwaukee street gang known

as “16 Deep/Flat Out” (“16-Deep”). That investigation

culminated in the May 2006 filing of state drug conspiracy

charges against some 17 individuals, including Jones.

Moore’s current challenge is based on a bit of overlap

between that case and the present federal one. In the 16-

Deep case, the state criminal complaint, in detailing the

alleged criminal activities of the drug conspiracy, described as “Incident #6” the two sales of crack cocaine by

Moore and Jones in April and June 2005—the same transactions that gave rise to the present federal case. Although

the state criminal complaint documented Moore’s participation in each of those transactions, he was not named as

a defendant in the state case. Each of the state criminal

defendants faced a potential maximum fine of $100,000

and a potential maximum imprisonment term of 40 years.

Several months later, in January 2007, a federal grand

jury returned a three-count indictment against Jones and
No. 07-3770 3

Moore, charging each with conspiracy to distribute crack

cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1) (Count

One), and two counts of distributing crack cocaine in

violation of 21 U.S.C. § 841(a)(1) (Counts Two and Three).

The federal indictment described a narrow conspiracy

involving only Jones and Moore, alleging that they

“conspire[d] and agree[d] with each other” to distribute

50 or more grams of crack cocaine, with nary a mention

of the 16-Deep defendants or the broader set of drugconspiracy activities alleged in the state case. In light of

the federal prosecution of Jones, the state elected to drop

its charge against him in the 16-Deep case. The state

prosecution of the remaining 16-Deep defendants concluded in a variety of dispositions, ranging from outright dismissal to 12 years’ imprisonment. In the present

federal case, Moore and Jones both eventually entered

into plea agreements with the government, and both

pled guilty to Count One.

A few aspects of Moore’s plea agreement and hearing

bear mentioning here. First, in the plea agreement, the

government agreed to recommend a sentence “within the

sentencing guideline range, as determined by the court.”

The plea agreement also stipulated that the government

could prove beyond a reasonable doubt, if the case had

gone to trial, that the offense involved at least 50 grams

of crack cocaine, triggering a statutory mandatory minimum 10-year sentence. See 21 U.S.C. § 841(b)(1)(A)(iii).

In this regard, the plea agreement stated:

The parties understand and agree that the offense

to which the defendant will enter a plea of guilty
4 No. 07-3770

carries the following maximum term of imprisonment and fine: life imprisonment and $4,000,000.

The count also carries a mandatory minimum of

10 years of imprisonment.

And finally, at the plea hearing, Moore confirmed his

understanding that the offense carried a mandatory

minimum 10-year sentence and maximum term of life

imprisonment.

Moore’s post-plea sentencing memorandum further

reflected his understanding of the statutory mandatory 10-

year minimum sentence. That memorandum acknowledged that the only possible statutory basis for a departure

from the mandatory minimum in this case was 18 U.S.C.

§ 3553(e), under which the government could move for

a lower sentence based upon “substantial assistance”

from the defendant. The government did not file a

§ 3553(e) motion.

At sentencing, the district court determined that Moore’s

criminal history category was III and his offense level (net

acceptance of responsibility) was 23, yielding a guideline

sentencing range of 57 to 71 months’ imprisonment.

Because the high end of this range was lower than the

statutory mandatory minimum sentence, this calculation

was, as the court characterized it, somewhat “academic.”

Nonetheless, Moore argued that he was entitled to a twopoint offense level reduction, pursuant to U.S.S.G.

§ 3B1.2(b), as a minor participant in the offense. In support of this argument, Moore’s counsel attempted to paint

him, by reference to the state case, as a minor figure in

a large drug distribution scheme; he pointed out that,
No. 07-3770 5

despite the inclusion of “Incident #6”—detailing the two

sales of crack cocaine by Moore and Jones that gave rise

to this case—in the state criminal complaint, Moore had

not been charged in the 16-Deep case. Moreover, he

asserted that the 16-Deep defendants would likely face

shorter sentences than Moore; so, the argument goes, not

only was he so low in the 16-Deep drug-conspiracy hierarchy that state prosecutors apparently deemed him too

unimportant to prosecute, but he also faced a potentially

harsher sentence than the 16-Deep higher-ups simply

by virtue of his prosecution in federal court.

In response to Moore’s § 3B1.2(b) argument, the government attempted to clarify why Moore and Jones were

prosecuted in federal, rather than state, court:

[T]o address counsel, what actually happened, the

state complaint that he submits involves a group

called 1617 [sic] Deep that the state began investigating in late 2006—or actually, I’m sorry, late 2005

to early 2006. As they put their case together, they

had been gathering names and some people. The

buys off Mr. Jones and Moore that were done in

2005, were done as a separate investigation by a

different agency that had hoped that that investigation would lead somewhere. Eventually it didn’t.

The state in their investigation, when they came

across the name Curtis Jones, had learned about

these buys and incorporated it into their complaint, even though the other agency had been

deciding they needed to clean up those cases and

brought them here [to the federal prosecutor].
6 No. 07-3770

The government then pointed out that the evidence

against the defendants in the state case “differs wildly,”

and that “[t]o just comment that other people are getting

different sentences there for substantially the same thing

ignores the fact that the evidence in that case is very

different as to each defendant.” The government speculated that the state did not charge Moore in the 16-Deep

state case because, although he was a known dealer,

his “name did not come up as being part of that group.”

Notwithstanding the effectively “academic” nature of the

§ 3B1.2(b) issue (in light of Moore’s aim in arguing it—

to obtain a sentence lower than the guideline range projected in the presentence report, which was itself lower

than the statutory mandatory minimum), the court addressed this argument and rejected it because of Moore’s

“integral” role in facilitating the two drug transactions

involved in the present case. And with respect to the

potential disparity in sentences between those prosecuted

in state and federal court, the court offered the following:

Obviously, in the large scheme of things, if we deal

with all offenders who at one point or another may

be linked because of common sources of supply

or common use of storage facilities or drug houses

or the like, Mr. Moore and Mr. Jones may be

viewed as a rather small fish in a big pond which,

again, really calls into question did this case really

deserve to be in the federal courts as opposed to

state court. And that’s a decision not for the court

to make, but the executive branch of the government. . . . [O]nce again, these are all executive
No. 07-3770 7

branch decisions. And we can debate long and

hard as to whether they are wise, but that is not

for the court to do. . . . And again, all of this is

academic because at the end of the day he’s still

facing a statutory mandatory 120-month sentence.

And indeed, this discussion was largely academic,

because Moore faced a statutorily mandated minimum

sentence well in excess of the initial guidelines calculation.

The court concluded that it had “to do the only thing

that the court can do and that is impose a sentence of

120 months for the conduct charged in count one.” Therefore, the court sentenced Moore to 10 years of imprisonment, 5 years of supervised release, and monetary penalties in the form of a $100 assessment and $2200 of restitution. Jones, who was likewise subject to the mandatory

minimum because of the quantity of crack cocaine

involved in Count One, see 21 U.S.C. § 841(b)(1)(A)(iii),

also received a 120-month sentence.

Moore timely appealed. On appeal, he contests only his

sentence, contending that the district court’s imposition

of the statutory mandatory minimum sentence denied

him both equal protection and due process in violation

of the Fifth Amendment to the Constitution. We take

up Moore’s arguments below.

II. Discussion

The crux of Moore’s appeal is his contention that the

government committed a “class of one” equal protection

violation. In this vein, Moore argues that § 3553(e) is
8 No. 07-3770

unconstitutional as applied in this case because, in allowing a sentence below the statutory mandatory minimum

only upon government motion to reflect a defendant’s

substantial assistance, the statute forced the district court

to single him out for arbitrary and irrational treatment.

Moore’s equal protection and due process arguments

turn on the same assertion—that the government arbitrarily and irrationally singled him out for differential

treatment from the defendants in the 16-Deep case. He

does not articulate a due process argument independent

of his equal protection argument, and it seems possible

that he mentions due process only because equal protection constraints on the federal government are imposed

by the Due Process Clause of the Fifth Amendment. See

Bolling v. Sharpe, 347 U.S. 497, 498-99 (1954) (recognizing

equal protection component of Fifth Amendment Due

Process Clause). Because we discern no independent due

process argument, we evaluate Moore’s challenge as a

single constitutional argument premised on a class-of-one

equal protection theory.

Turning to that class-of-one theory, we note that this is

not a garden-variety equal protection challenge; such

challenges are “typically . . . concerned with governmental classifications that affect some groups of citizens

differently from others.” See Engquist v. Or. Dep’t of Agric.,

128 S. Ct. 2146, 2152 (2008) (emphasis added and quotation omitted) (citing collected cases). Therefore, individuals

pursuing equal protection challenges ordinarily “allege

that they have been arbitrarily classified as members of

an ‘identifiable group.’ ” Id. In contrast, a class-of-one

equal protection challenge asserts that an individual has
No. 07-3770 9

been “irrationally singled out,” without regard for any

group affiliation, for discriminatory treatment. Id. at 1253.

A class-of-one equal protection claim is cognizable where

an individual alleges that he has been “intentionally

treated differently from others similarly situated and that

there is no rational basis for the difference in treatment.”

Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per

curiam).

Before discussing this theory, we should note that

Moore made no such constitutional argument before the

district court. His arguments about the 16-Deep case, both

in his sentencing memorandum and at the sentencing

hearing, focused on whether he should receive a minorparticipant reduction under the Sentencing Guidelines

or similar consideration under 18 U.S.C. § 3553(a)

because his criminal conduct was less culpable than

most of the 16-Deep defendants. His sentencing arguments did not even hint at a constitutional basis. That

means that his argument was forfeited (if not waived) and

should be reviewed here, if at all, only under the exacting

plain error standard. United States v. Allen, 529 F.3d 390,

395 (7th Cir. 2008) (“To establish plain error, [the defendant] has to demonstrate a clear error that affects a substantial right and, moreover, impacts the fairness, integrity,

or public reputation of judicial proceedings.” (quotation

omitted)). Nevertheless, the standard of review is inconsequential to the outcome here; as explained below,

Moore’s challenge lacks any merit even if reviewed de

novo.

In order to establish a class-of-one equal protection

violation, Moore must first show that he was “intentionally
10 No. 07-3770

treated differently from others similarly situated.” Vision

Church v. Vill. of Long Grove, 468 F.3d 975, 1002 (7th Cir.

2006); McDonald v. Vill. of Winnetka, 371 F.3d 992, 1001 (7th

Cir. 2004). Moore argues, of course, that he was

similarly situated to the defendants charged in the

“16 Deep/Flat Out” state case. To be considered “similarly

situated,” the class-of-one challenger and his comparators

must be “prima facie identical in all relevant respects or

directly comparable . . . in all material respects.” Racine

Charter One, Inc. v. Racine Unified Sch. Dist., 424 F.3d 677,

680 (7th Cir. 2005) (internal citation and quotations omitted); see also Purze v. Vill. of Winthrop Harbor, 286 F.3d

452, 455 (7th Cir. 2002). Although this is not a “precise

formula,” it is nonetheless “clear that similarly situated

individuals must be very similar indeed.” McDonald,

371 F.3d at 1002.

Moore apparently regards the fact that he and the

state defendants were charged and prosecuted by

separate sovereigns in different fora as immaterial to the

similarly-situated analysis; indeed, his similarly-situated

argument depends on this premise. However, it is a

premise that we reject. First, we note that Moore’s differential treatment from the state defendants cannot be

attributed to a single decision-maker. Rather, the separate

federal and state prosecutions necessarily involved at

least two decision-makers, one federal and one state; this

alone works against a finding of similarity. See Radue v.

Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir. 2000)

(explaining that where “different decision-makers are

involved, two decisions are rarely similarly situated in

all relevant respects” (quotation omitted)); see also Purze,
No. 07-3770 11

286 F.3d at 455 (finding that class-of-one plaintiffs were

not similarly situated to comparators in part because

their zoning-related requests were acted upon by different decision-makers). Moreover, it is well-established

that “under principles of dual sovereignty, both the state

and the federal government may sentence a defendant

for actions criminal under both state and federal law.” Reed

v. United States, 985 F.2d 880, 882 (7th Cir. 1993) (citing

Heath v. Alabama, 474 U.S. 82, 88 (1985)). And it goes

without saying that Congress and the state legislatures

are free to fashion their own, differing approaches to

criminal problems and sentencing. Thus, two defendants,

one charged in federal court and the other in state

court, who are otherwise identical in all material respects,

are not similarly situated at the sentencing stage, where

they may face very different penalties. That the federal

defendant may face harsher punishment than his state

counterpart, or vice versa, simply does not raise equal

protection concerns.

Of course, this does not preclude the possibility that

our two hypothetical defendants might have been similarly situated at an earlier stage in the process—most

notably, when the charging decision was made. So a

challenge to the initial charging decision might have

some merit, if, for example, some aspect of that decision

was based on an impermissible criterion, such as race or

religion. See United States v. Armstrong, 517 U.S. 456, 464

(1996). But Moore does not allege invidious discrimination in the charging decision, so we need not elaborate

on this point.
12 No. 07-3770

Even if we were to accept Moore’s initial premise—that

prosecution by separate sovereigns in different fora is

an immaterial difference for purposes of the “similarly

situated” analysis—he still fails to show that he was

similarly situated to the state defendants. As already

noted, Moore argues that he was similarly situated to

the state defendants because their offenses involved

similar crack cocaine amounts (40-100 grams) and “because

they were all named and charged as such by Wisconsin

prosecutors, and Jones and Moore were charged by the

United States Attorney’s Office as coconspirators, too.”

Even if we assume for the moment that Moore’s dubious

characterization of the state defendants as his

“coconspirators” is correct—dubious because the federal indictment alleged a narrow conspiracy involving

only Jones and Moore—and that the factual details of

their offenses are largely similar, that alone would not

render them similarly situated. The Sentencing Guidelines and § 3553(a) incorporate a host of considerations

that make sentencing an individualized process going

well beyond the details of the defendant’s instant offense.

See, e.g., § 3553(a)(1) (directing the court to consider “the

history and characteristics of the defendant” in choosing

an appropriate sentence). In this regard, Moore’s failure

to present any criminal history background on the statecourt defendants is particularly glaring. This is a critical

federal sentencing factor, see § 3553(a)(1), (4), and presumably Wisconsin courts also weigh criminal history heavily.

Moore, at the relatively young age of 26, had already

earned enough criminal history points to land in Category

III in the federal sentencing guidelines formula. This
No. 07-3770 13

history included a Wisconsin conviction for a serious

battery which was committed after the drug sales on

which this federal prosecution was based. We have no

way to compare the variety and seriousness of Moore’s

criminal background with the 16-Deep defendants, and

thus cannot begin to assess whether he was irrationally

treated differently. See Racine Charter One, 424 F.3d at 680

(explaining that comparators must be directly comparable

in all material respects). And this need for a more

detailed comparison is magnified in light of the variety

of punishments—ranging from outright dismissal to

12 years’ imprisonment—that the state defendants received; Moore could hardly base an equal protection

claim on a comparator who received a sentence more

harsh than his own. For all these reasons, Moore’s class-ofone challenge never gets off the ground.

In seeking to show a class-of-one equal protection

violation based solely upon purported irrationality, rather

than illegitimate animus, Moore faces other, even more

intractable problems. Under one line of cases in this

Circuit, Moore’s failure to allege illegitimate animus

would foreclose his class-of-one challenge. See Racine,

424 F.3d at 684 (citing collected Seventh Circuit cases

requiring proof of illegitimate animus for a successful

class-of-one challenge); see also Crowley v. McKinney, 400

F.3d 965, 972 (7th Cir. 2005); Purze, 286 F.3d at 455; Cruz v.

Town of Cicero, 275 F.3d 579, 587 (7th Cir. 2001); Hilton v.

City of Wheeling, 209 F.3d 1005, 1008 (7th Cir. 2000). However, another line of cases would allow a successful classof-one challenge upon proof that the differential treatment was either simply irrational or motivated by illegiti-
14 No. 07-3770

mate animus. See Racine, 424 F.3d at 684 (citing collected

Seventh Circuit cases holding “that a class of one equal

protection claim is established where the defendant has

intentionally treated the plaintiff differently than others

similarly situated either without any rational basis for

doing so or out of some totally illegitimate animus”

(quotation omitted)); see also Vision Church, 468 F.3d at

1002; Lunini v. Grayeb, 395 F.3d 761, 768 (7th Cir. 2005);

Levenstein v. Salafsky, 414 F.3d 767, 775-76 (7th Cir. 2005);

McDonald, 371 F.3d at 1001; Nevel v. Vill. of Schaumburg,

297 F.3d 673, 681 (7th Cir. 2002); Albiero v. City of Kankakee,

246 F.3d 927, 932 (7th Cir. 2001). The more narrow formulation represented by the former line of cases reflects, at

least in part, a concern that allowing a remedy under the

equal protection clause for merely “irrational and wholly

arbitrary adverse treatment by government,” without

proof of something more (such as illegitimate animus),

would open “[b]reathtaking vistas of liability.” Tuffendsam

v. Dearborn County Bd. of Health, 385 F.3d 1124, 1127 (7th

Cir. 2004) (quotation omitted); see also Bell v. Duperrault, 367

F.3d 703, 712 (7th Cir. 2004) (Posner, J., concurring) (pointing out that “irrational differences in treatment having

nothing to do with discrimination against a vulnerable

class abound at the bottom rung of law enforcement” and

offering the example of a policeman exercising the discretion inherent in dispensing traffic tickets). In holding

that class-of-one challenges have no place in the public

employment context, 128 S. Ct. at 2148-49, and in suggesting that such challenges may be inapplicable to any

governmental action that is the product of a highly discretionary decision-making process, id. at 2154-55, the
No. 07-3770 15

Supreme Court’s recent Engquist decision seems to go

a long way toward alleviating this problem without

reliance on a possibly difficult-to-apply motive test. See

Bell, 367 F.3d at 713 (Posner, J., concurring) (noting that

motive tests are “not very satisfactory and are therefore

sparingly employed” but nonetheless acknowledging that

there might not be a “better way of reining in the class-ofone cases”); see also Engquist, 128 S. Ct. at 2154 (invoking

the same traffic-ticket hypothetical used by Judge Posner

in Bell to illustrate the difficulty with class-of-one challenges in discretionary decision-making contexts;

“[A]llowing an equal protection claim on the ground

that a ticket was given to one person and not others,

even if for no discernible or articulable reason, would be

incompatible with the discretion inherent in the challenged action.”). We discuss the Engquist decision and its

application to the current case in more detail later in this

opinion; for now, it is enough to note that Moore’s class-ofone challenge is premised solely on irrationality, and

because his challenge ultimately fails, we need not

attempt a comprehensive reconciliation of the two lines

of authority in this Circuit discussed above. See RJB

Props., Inc. v. Bd. of Educ., 468 F.3d 1005, 1010 n.2 (7th Cir.

2006) (declining to reach this issue for similar reason);

Smith v. City of Chi., 457 F.3d 643, 652-53 (7th Cir. 2006)

(same).

Turning again to Moore’s challenge, the purported

irrationality he identifies is his prosecution in federal,

rather than state, court solely for reasons of administrative convenience. But this highlights a peculiar disconnect in Moore’s argument; the irrationality that he objects
16 No. 07-3770

to cannot be fairly attributed to the judicial action (the

district court’s failure to depart from the mandatory

minimum sentence), or even the entity responsible for

that action (the district court), that he ostensibly challenges. In this respect, Moore’s argument is quite unlike

the typical class-of-one claim, in which the purported

irrationality is part and parcel of the challenged governmental (usually executive or legislative) action. See, e.g.,

Olech, 528 U.S. at 565 (involving class-of-one claim based

on village’s demand for easement more than twice as

long as the village demanded of similarly situated

property owners); McDonald, 371 F.3d at 1003 (involving

class-of-one claim based on fire department’s departure

from its ordinary fire-investigation operating procedure);

Hilton, 209 F.3d at 1007-08 (involving class-of-one claim

premised on failure to provide plaintiff with the same

police protection afforded to others similarly situated).

Indeed, the purported irrationality identified by

Moore—the decision to prosecute him, perhaps solely

for reasons of administrative convenience, in federal,

rather than state, court—originated with a decision that

was made in the prosecutorial sphere. Thus, despite his

attempt to cloak his argument in terms of an as-applied

challenge to § 3553(e), his argument is nakedly aimed

at the exercise of prosecutorial discretion.

In challenging an exercise of the broad prosecutorial

discretion that inheres in our criminal justice system,

Moore faces a formidable obstacle. Indeed, “[i]n the

ordinary case, so long as the prosecutor has probable

cause to believe that the accused committed an offense

defined by statute, the decision whether or not to prose-
No. 07-3770 17

cute, and what charge to file or bring before a grand jury,

generally rests entirely in his discretion.” United States v.

Armstrong, 517 U.S. 456, 464 (1996) (quotation omitted); see

also Wayte v. United States, 470 U.S. 598, 607 (1985);

Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). Of course,

this broad discretion is subject to constitutional

restraints, and cannot be based upon invidious criteria

such as race or religion. Armstrong, 517 U.S. at 464; Wayte,

470 U.S. at 608; Bordenkircher, 434 U.S. at 364. But an

exercise of prosecutorial discretion cannot be successfully challenged merely on the ground that it is irrational

or arbitrary; in the realm of prosecutorial charging decisions, only invidious discrimination is forbidden. See

United States v. Smith, 502 F.3d 680, 691 (7th Cir. 2007), cert.

denied, 128 S. Ct. 1270 (2008); United States v. Duncan, 479

F.3d 924, 928 (7th Cir.) (per curiam) (“Absent a showing

of invidious discrimination, we shall not second-guess a

prosecutor’s decision regarding the charges it chooses to

bring.”), cert. denied, 128 S. Ct. 189 (2007); United States v.

Roberson, 474 F.3d 432, 434 (7th Cir. 2007) (“The judiciary

has no authority to second-guess the government’s choice

of which crimes to charge unless the choice is based on

an invidious ground . . . .” (internal citations omitted));

United States v. Smith, 953 F.2d 1060, 1063 (7th Cir. 1992)

(“Arbitrariness—that is, unjustified disparities in the

treatment of similarly situated persons—is not among the

grounds on which to contest an exercise of prosecutorial

discretion.”). Moore’s challenge is premised on irrationality, not invidious discrimination; because a no-rationalbasis challenge to the exercise of prosecutorial discretion

is doomed to failure, his class-of-one argument is fore-
18 No. 07-3770

closed for this reason as well. As the district court correctly

pointed out at sentencing, under ordinary circumstances,

the federal charging decision is solely for the executive

branch to make without fear of second-guessing by the

judiciary.

Our conclusion is consistent with and reinforced by the

Supreme Court’s recent explanation in Engquist that classof-one equal protection theory is a “poor fit” where the

challenged governmental action is the product of a broadly

discretionary decision-making process. See 128 S. Ct. at

2155. In holding that class-of-one claims have “no application in the public employment context,” id. at 2156, the

Court explained:

There are some forms of state action . . . which by

their nature involve discretionary decisionmaking

based on a vast array of subjective, individualized

assessments. In such cases the rule that people

should be “treated alike, under like circumstances

and conditions” is not violated when one person is

treated differently from others, because treating

like individuals differently is an accepted consequence of the discretion granted. In such situations, allowing a challenge based on the arbitrary

singling out of a particular person would undermine the very discretion that such state officials

are entrusted to exercise.

. . . .

Thus, the class-of-one theory of equal protection—which presupposes that like individuals

should be treated alike, and that to treat them
No. 07-3770 19

differently is to classify them in a way that must

survive at least rationality review—is simply a

poor fit in the public employment context. To treat

employees differently is not to classify them in a

way that raises equal protection concerns. Rather,

it is simply to exercise the broad discretion that

typically characterizes the employer-employee

relationship. A challenge that one has been treated

individually in this context, instead of like everyone else, is a challenge to the underlying nature of

the government action.

Id. at 2154-55. Thus, the class-of-one theory is better

suited to those contexts involving “a clear standard

against which departures, even for a single [individual],

could be readily assessed.” Id. at 2153 (citing Olech, 528

U.S. at 564-65 (involving class-of-one challenge to

zoning board’s departure from standard easement length

requirement); Allegheny Pittsburgh Coal Co. v. County

Comm’n of Webster County, 488 U.S. 336, 339-42 (1989)

(involving equal protection challenge to county’s departure from market-value standard in conducting

some property assessments)).

This logic is equally applicable to the exercise of prosecutory discretion. To treat like individuals differently

in this context, even without a strictly rational justification, “is not to classify them in a way that raises equal

protection concerns,” Engquist, 128 S. Ct. at 2155; the

discretion conferred on prosecutors in choosing whom

and how to prosecute is flatly inconsistent with a presumption of uniform treatment. Indeed, in this context, there

is no readily apparent standard against which departures
20 No. 07-3770

can be assessed for arbitrariness. Therefore, a class-of-one

equal protection challenge, at least where premised solely

on arbitrariness/irrationality, is just as much a “poor fit” in

the prosecutorial discretion context as in the public employment context. Accordingly, Moore’s class-of-one

challenge fails for this reason as well.

In closing, we briefly address one additional nuance to

Moore’s argument. He contends that his sentencing

outcome is particularly irrational in light of the government’s promise, pursuant to the plea agreement, to recommend a sentence within the guideline range. As

already discussed, the originally calculated guideline

sentencing range was lower than the statutory mandatory

120-month minimum sentence. However, because the

Sentencing Guidelines stipulate that, in this scenario, the

mandatory minimum becomes the guideline sentence,

see U.S.S.G. § 5G1.1(b), this argument has no traction at all.

III. Conclusion

For the foregoing reasons, Moore’s sentence is AFFIRMED.

9-10-08