                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 22 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,

 v.                                                     No. 99-3017
                                              (D.C. No. 96-CR-10076-03-MLB)
 KERRY DEVIN O’BRYAN,                                     (D. Kan.)

               Defendant-Appellant.


                                      ORDER
                              Filed February 22, 2001


Before TACHA , EBEL , and LUCERO , Circuit Judges.


      This matter is before the court on appellant’s petition for rehearing with

suggestion for rehearing en banc. The panel has voted to modify the order and

judgment filed on November 29, 2000. On page four, the order and judgment is

modified to reflect that the defendant did not show cause for his failure to raise

the issue of selective prosecution before the trial court. The petition for rehearing

is denied based on the modification. A copy of the modified order and judgment

is attached.

      The suggestion for rehearing en banc was transmitted to all of the
judges of the court who are in regular active service as required by Fed. R. App.

P. 35. As no member of the panel and no judge in regular active service on the

court requested that the court be polled, the suggestion is denied.



                                                    Entered for the Court
                                                    Patrick Fisher, Clerk of Court

                                                    By:
                                                           Keith Nelson
                                                           Deputy Clerk




                                         -2-
                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         NOV 29 2000
                            FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                 No. 99-3017
                                             (D.C. No. 96-CR-10076-03-MLB)
    KERRY DEVIN O’BRYAN,                                 (D. Kan.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT          *




Before TACHA , EBEL , and LUCERO , Circuit Judges.




         Defendant Kerry Devin O’Bryan appeals his conviction and sentence on the

ground that he was selectively prosecuted and disparately sentenced based on his

gender. We affirm.   1




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
       On December 18, 1996, a grand jury handed down an indictment charging

defendant with one count of manufacturing counterfeit currency, one count of

passing counterfeit currency, two counts of bank robbery, and two counts of

carrying or using a firearm during the bank robberies. In the same indictment,

codefendant Amy Thomsen was charged with one count of manufacturing

counterfeit currency, one count of passing counterfeit currency, and two counts of

bank robbery, based on her participation in the robberies as the getaway driver.

       Thomsen pled guilty to the four counts with which she had been charged

and received a fifty-seven month sentence. Defendant initially agreed to plead

guilty to the charges of counterfeiting, two counts of bank robbery, and one count

of using a firearm during a bank robbery. Based on this plea, defendant would

have been sentenced to between fifty-seven and seventy-one months under the

United States Sentencing Guidelines, with an additional five years for the firearm

charge, as required by statute.   See R. VI, doc. 152 at 14; 18 U.S.C. § 924(c).

Alleging attorney incompetence and a lack of sleep the night before his plea

hearing, defendant filed a pro se motion to withdraw his plea. In the first hearing

on his motion, the district court allowed defendant’s attorney to withdraw and

appointed new counsel. The court then attempted to dissuade defendant from

withdrawing his plea, during both the first and second hearings on the motion,

because he would face significantly more time if he went to trial and was


                                           -2-
convicted. See R. VI, doc. 152 at 6-8, 13-17; R. V, doc. 151 at 8-13. At

defendant’s insistence, the district court permitted him to withdraw the plea.

      Defendant was tried and convicted of all six counts of the original

indictment. He was sentenced to a total of three hundred and fifty one months’

imprisonment, based on a guidelines sentence of fifty-one months, plus a

mandatory five years on the first firearm charge, and a mandatory twenty years on

the second firearm charge,   see 18 U.S.C. § 924(c) (1997) (amended in 1998 to

increase mandatory sentence for second conviction to twenty-five years). At the

sentencing hearing, defendant’s attorney argued for a sentence reduction to

remedy the disparity between defendant’s sentence and that of his codefendant.

The district court denied the motion, stating that it had no authority to modify the

mandatory statutory sentences and that defendant was responsible for the disparity

by withdrawing his plea despite advice to the contrary.

      After filing this appeal, defendant’s second attorney sought leave to

withdraw. We granted the attorney’s motion and appointed the federal public

defender to represent defendant. After this third attorney filed an appellate brief,

defendant sought leave to withdraw the brief, to dismiss the attorney, and to

represent himself on appeal. We granted defendant’s motion and he has now filed

a pro se appellate brief.




                                         -3-
       Defendant argues that his convictions should be reversed because he was

selectively prosecuted based on his gender, or that his sentence should be

modified because of the disparity between his sentence and that of codefendant

Thomsen. We review the disposition of a selective prosecution claim for an abuse

of discretion.   See United States v. Furman , 31 F.3d 1034, 1037 (10th Cir. 1994).

The district court’s interpretation and application of the sentencing guidelines and

statutes are reviewed de novo.      See United States v. Archuleta , No. 00-4014, ___

F.3d ___, 2000 WL 1597338, at *2 (10th Cir. Oct. 26, 2000) (guidelines);         United

States v. Gigley , 213 F.3d 503, 505 (10th Cir. 2000) (statute).

       After reviewing the record, we conclude defendant has waived his claim of

selective prosecution. A claim of selective prosecution is an “objection[] based

on defects in the institution of the prosecution,” which must be raised prior to

trial. Fed. R. Crim. P. 12(b)(1);    see United States v. Bryant , 5 F.3d 474, 476

(10th Cir. 1993) (holding selective prosecution claim waived if not raised before

trial); United States v. Mann , 884 F.2d 532, 539-40 (10th Cir. 1989) (same).

Here, defendant certainly did not raise the issue before trial and has not shown

cause for his failure to do so, and despite his assertion to the contrary, his

attorney’s argument at sentencing concerned a downward departure to lessen the

disparity between sentences, not a motion to dismiss for selective prosecution




                                             -4-
based on gender. Accordingly, defendant’s selective prosecution claim is waived

by raising it for the first time on appeal.   2



       Defendant argues that his sentence should have been reduced to eliminate

the disparity between his sentence and that of codefendant Thomsen. It is not

clear whether defendant is referring to his sentence under the sentencing

guidelines or under § 924(c). We are without authority to review the district

court’s decision under the guidelines, however, because the sentence was within

the guideline range and the court was aware of its legal authority to grant a

downward departure but simply declined to do so.        See United States v. Fagan ,

162 F.3d 1280, 1282 (10th Cir. 1998). We note in passing that we have held it to

be an abuse of discretion to depart from the guidelines when a disparity between a

defendant’s sentence and that of a codefendant is due to a plea agreement.      See

United States v. Gallegos , 129 F.3d 1140, 1143 (10th Cir. 1997).



2
       We note that even if we were to decide the merits of defendant’s claim, he
could not succeed, as he has not met the “demanding” standard of showing by
“clear evidence” that he and his female codefendant were “similarly situated,” and
that the decision not to charge her with the firearm enhancement was due to her
gender. United States v. Armstrong , 517 U.S. 456, 463-465 (1996). Although
they participated in the same robberies, on both occasions it was defendant who
carried the firearm into the bank, threatened the bank’s occupants with the
firearm, and obtained money based on those threats, while codefendant Thomsen
simply drove the getaway car. Thus defendant and Thomsen were not similarly
situated, and the prosecutor and/or grand jury could have relied on the difference
in their roles when indicting defendant for carrying or using a firearm during the
commission of a felony, but not indicting Thomsen on the same charge.

                                              -5-
      As for the mandatory sentences for carrying or using a firearm under

§ 924(c), the district court correctly held that it lacked authority to grant a

downward departure to remedy the disparity between sentences.        See United

States v. Campbell , 995 F.2d 173, 175 (10th Cir. 1993) (holding court lacks

power to depart from a statutory minimum sentence for any reason other than that

identified by statute, which is expressly limited by 18 U.S.C. § 3553(e) to

reductions based on a defendant’s substantial assistance).

      Defendant has moved this court to supplement the record with documents

and transcripts from the grand jury proceedings and from proceedings related to

his codefendants’ convictions and sentences, which he believes might support his

selective prosecution claim. In light of our conclusion that defendant waived that

claim, his motion is denied as moot. Defendant’s motion to amend the error in his

opening brief is granted.

      The judgment is AFFIRMED. The mandate shall issue forthwith.


                                                      Entered for the Court


                                                      Carlos F. Lucero
                                                      Circuit Judge




                                           -6-
