United States of America, Plaintiff-appellee, v. Lewis Edward Franklin, Defendant-appellant, 103 F.3d 141 (9th Cir. 1996)

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US Court of Appeals for the Ninth Circuit - 103 F.3d 141 (9th Cir. 1996) Submitted Dec. 2, 1996. *Decided Dec. 06, 1996

Before: SNEED, TROTT, and THOMAS, Circuit Judges.

MEMORANDUM** 

Federal prisoner Lewis Edward Franklin appeals pro se the district court's denial of his third 21 U.S.C. § 2255 motion to vacate his conviction and sentence for possession with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a) (1) and (b) (1) (A) (iii). Franklin contends that the district court erred by rejecting his contention that he was selectively prosecuted based on his race. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2255. We review de novo the district court's denial of Franklin's motion, Sanchez v. United States, 50 F.3d 1448, 1451-52 (9th Cir. 1995), and affirm.

A defendant who claims that he was selectively prosecuted "must demonstrate that the federal prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose." United States v. Armstrong, 116 S. Ct. 1480, 1487 (1996) (citation omitted). "To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted." Id.; see also United States v. Buffington, 815 F.2d 1292, 1305 (9th Cir. 1987).

Here, Franklin has failed to show that the decision to prosecute him was based upon his race, nor has he shown that the government does not prosecute similarly situated individuals of a different race. See Armstrong, 116 S. Ct. at 1487; Buffington, 815 F.2d at 1305. Accordingly, the district court did not err by denying Franklin's section 2255 motion.1 

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4. Because we affirm under the former version of 28 U.S.C. § 2255, we do not address whether the Antiterrorism and Effective Death Penalty Act of 1996 applies to this appeal

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

As part of his reply brief, Franklin proffers documents that were not presented to the district court. Because these documents are not part of the record in this case, we will not consider them. See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (documents not presented to district court are not part of record on appeal); see also Fed. R. App. P. 10(a)

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