United States of America, Plaintiff-appellee, v. William Neal Lanter, Defendant-appellant, 141 F.3d 1181 (9th Cir. 1998)

Appeal from the United States District Court for the District of Montana Jack D. Shanstrom, District Judge, Presiding.

Before ALARCON and HAWKINS, Circuit Judges, and BREWSTER,^**  District Judge.

MEMORANDUM^* 

William Neal Lanter ("Lanter") appeals his jury conviction and sentence for distributing marijuana (21 U.S.C. § 841(a) (1)), aiding and abetting in the distribution of methamphetamine and marijuana (21 U.S.C. § 841(a) (1)), and using or carrying a firearm during or in relation to a drug trafficking crime (18 U.S.C. § 924(c)). Following a conviction, Lanter was sentenced to 318 months imprisonment to be followed by nine years supervised release. We AFFIRM.

The parties are familiar with the facts so we shall not recite them here.

* Lanter argues that he was the victim of sentencing entrapment. At his sentencing hearing, Lanter asked the district court to depart from the sentence recommended by the government. In particular, Lanter focused on Count V, the second 18 U.S.C. § 924(c) (1) violation for which he received an extra twenty-year sentence.

We reject this argument because we find that Lanter is unable to state a claim for sentencing entrapment as it relates to Count V. Under Count V, Lanter was found to have violated 18 U.S.C. § 924(c) (1), a statute which imposes a minimum sentence of five years for a first offense and minimum sentence of twenty years for each subsequent offense. Because Count V charged Lanter with a second conviction under that statute, the statute directs that he be sentenced for an additional twenty years.

Generally, a district court does "not have the authority to impose a sentence below a statutory minimum absent a motion pursuant to 18 U.S.C. § 3553(e) based upon a defendant's substantial assistance." United States v. Castaneda, 94 F.3d 592, 594 (9th Cir. 1996). No such motion was made in this case.

In some limited situations a district court can disregard a statutory minimum when a defendant has proven sentencing entrapment. See Castaneda, 94 F.3d at 595 (district court has discretion to reduce amount of drugs attributable to defendant by any amount tainted by sentencing entrapment). Relevant to this case, we have previously held that a district court has some discretion in sentencing under § 924(c) (1). See United States v. Ramirez-Rangel, 103 F.3d 1501, 1507-08 (9th Cir. 1997). Under that case, we held that a district court has discretion to reduce a § 924(c) (1) sentence if it determines that a defendant was entrapped into carrying a specific type of firearm which would result in an increased sentence.

As these cases show, a district court can only depart from a minimum sentence for sentencing entrapment when a defendant shows that, although he is guilty of a violation of a particular statute, he is not guilty to the extent alleged by the government. Here, Lanter is either guilty of Count V or he is not--there is no question of the degree of his culpability.

Thus, in order to avoid the twenty-year sentence for Count V, Lanter would need to argue that he is not guilty at all under Count V. This is not an argument of sentencing entrapment, but of standard entrapment. Lanter does not argue standard entrapment. Without such a claim or a § 3553(e) motion, we conclude that the district court lacked discretion to reduce Lanter's sentence.

II

Sufficient evidence supports Lanter's conviction for using or carrying a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (1). Lanter's conduct fits under both the "use" and the "carry" prongs of the statute. He "used" or actively employed a firearm, see Bailey v. United States, 516 U.S. 137, ----, 116 S. Ct. 501, 506, 133 L. Ed. 2d 472 (1996), by (1) openly displaying the firearm on his person while asking Guy whether he trusted Agent Cornell "with his life," and (2) when he took the pistol back from Cornell, replaced the magazine and placed the gun in his waistband upon the arrival of his marijuana source. See United States v. Washington, 106 F.3d 1488, 1490 (9th Cir. 1997) (holding that "displaying a gun during a crime is active employment under Bailey "). Likewise, the facts show that Lanter "carried" a firearm in violation of § 924(c) (1) because, on both occasions, his weapon was " 'about' his person, within reach and immediately available for use." United States v. Staples, 85 F.3d 461, 464 (9th Cir.), cert. denied, --- U.S. ----, 117 S. Ct. 318, 136 L. Ed. 2d 233 (1996).

Finally, the facts support a conviction under § 924(c) (1) because Lanter used or carried his firearm "in relation to" a drug trafficking crime. Lanter's use or carrying of his pistol facilitated or had the potential to facilitate his sale to Agent Cornell. See Smith v. United States, 508 U.S. 223, 238, 113 S. Ct. 2050, 124 L. Ed. 2d 138 (1993). Moreover, as the jury found, Lanter could well have been "emboldened" by his "use" or "carrying" of the firearm. United States v. Loaiza-Diaz, 96 F.3d 1335, 1337 (1996).¹ 

III

The Speedy Trial Act (the "Act"), 18 U.S.C. §§ 3161-3174, requires that a defendant's "trial commence within 70 days from the latter of the filing of an indictment or his first appearance, barring excludable time." United States v. George, 85 F.3d 1433, 1436 (citing 18 U.S.C. § 3161(c) (1)).

Although 182 days passed between Lanter's June 14, 1996 arraignment and his January 13, 1997 trial, 125 of these days are excludable under the Act. Accordingly, the district court properly denied Lanter's pre-trial motion to dismiss for a violation of the Act.

IV

To show selective prosecution, a defendant must prove that "the prosecutorial policy had a discriminatory effect and was motivated by a discriminatory purpose." United States v. Armstrong, 517 U.S. 456, ----, 116 S. Ct. 1480, 1487, 134 L. Ed. 2d 687 (1996). Specifically, a defendant must establish that (1) other similarly situated individuals have not been prosecuted for conduct similar to his, and (2) the government's selection of him was based on discriminatory grounds such as race, religion, or the exercise of constitutional rights. See Wayte v. United States, 470 U.S. 598, 604, 105 S. Ct. 1524, 84 L. Ed. 2d 547 (1985). Lanter can show neither.

First, Lanter has not shown that similarly situated individuals have not been prosecuted as he was. Lanter, without supporting evidence, suggests that the federal government normally does not prosecute individuals for trafficking in drugs for the small amounts with which he was charged. We need not consider the sufficiency of Lanter's evidence on this point because his allegation focuses on a group not similarly situated to him. Rather, the proper group consists of individuals who are charged under the § 924(c) (1) weapons provision for drug crimes which involve a small amount of drugs.

Moreover, Lanter fails to allege a discriminatory purpose. Rather, he seems to argue that the discriminatory purpose is that the federal government sought to convict him of a federal crime when there is no corresponding state crime. This is not a claim of selective prosecution, but of a preference for a smaller sentence.

V

For the reasons stated above, the conviction and sentence are AFFIRMED.