United States of America, Plaintiff-appellee, v. Miguel Almarez-rivera, Defendant-appellant, 972 F.2d 1343 (9th Cir. 1992)

MEMORANDUM^** 

Almarez-Rivera appeals his sentence under the Sentencing Guidelines. He was convicted for possession with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a) (1), (b) (1) (B) (vii), 952(a), 960(a) (1) and (b) (2) (G). He contends that the prosecutor's denial of his motion to plead guilty to a lesser included offense, and the prosecutor's refusal to depart from the mandatory minimum sentence was a violation of his due process rights. He argues that this resulted in a more severe sentence than that received by prisoners who had committed similar offenses.

"Although a defendant has a due process right to be free of arbitrary or capricious charging decisions, there is no judicial remedy available to correct such violations." United States v. Redondo-Lemos, 955 F.2d 1296, 1300 (9th Cir. 1992). We limit our inquiry of prosecutorial decisions to determining "whether the prosecutor is abusing her awesome power to favor or disfavor groups defined by their gender, race, religion or similar characteristics." Redondo-Lemos, 955 F.2d at 1301. Because Almarez-Rivera has not alleged a discriminatory purpose in the prosecutor's decision to refuse his plea and request the mandatory minimum, he has no remedy.

AFFIRMED.