United States of America, Plaintiff-appellee, v. Daniel Smith, Defendant-appellant, 891 F.2d 296 (9th Cir. 1989)

MEMORANDUM^* 

Daniel Smith appeals his sentence, after pleading guilty to engaging in sexual contact with a person who had not attained the age of twelve in violation of 18 U.S.C. § 1153.

The only issue is whether appellant should have been sentenced under 18 U.S.C. § 2242(2), which provides for a maximum penalty of three years, as opposed to being sentenced under 18 U.S.C. § 2241(c), which provides for a maximum penalty of five years. Both statutes were applicable to the defendant's conduct, and the prosecutor chose to prosecute under the more serious one. The prosecutor clearly had discretion to do so. Under our system of separation of powers, the decision whether to prosecute rests with those members of the executive branch charged with prosecutorial functions. United States v. Edmonson, 792 F.2d 1492, 1497 (9th Cir. 1986). "The discretion to prosecute carries with it the discretion to choose the statute that will be charged" and where, as here, "conduct violates more than one criminal statute [,] the government may generally elect which statute it wishes to charge." Id., citing United States v. Batchelder, 442 U.S. 114, 123-25 (1979). Appellant's suggestion that the prosecutor must always charge the less serious of two applicable offenses is inimicable to the concept of prosecutorial discretion.

AFFIRMED.