                            In the

United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 07-3770

U NITED S TATES OF A MERICA,
                                                 Plaintiff-Appellee,
                                v.

R AYMELL M OORE,
                                             Defendant-Appellant.
                         ____________
            Appeal from the United States District Court
               for the Eastern District of Wisconsin.
             No. 07 CR 13—J. P. Stadtmueller, Judge.
                         ____________

     A RGUED M AY 29, 2008—D ECIDED S EPTEMBER 10, 2008
                         ____________



  Before C UDAHY, P OSNER, and T INDER, Circuit Judges.
  T INDER, Circuit Judge. Raymell Moore pled guilty to
federal drug charges and was sentenced to a statutory
mandatory minimum term of 10 years’ imprisonment.
On appeal, he raises a “class of one” equal protection
challenge to his sentence. He contends that he was simi-
larly situated to a group of defendants charged in a state-
court drug conspiracy case and that the imposition of the
statutory mandatory minimum sentence was irrational
in light of its non-application to the state-court defendants.
2                                              No. 07-3770

                     I. Background
  On two occasions in April and June of 2005, Moore
and Curtis Jones sold crack cocaine to an undercover
Milwaukee police officer and a confidential informant.
On each occasion, Moore acted as the middleman in
arranging the purchase, and Jones was the supplier. The
two transactions involved a total of approximately 64
grams of crack cocaine and gave rise to the current federal
case, in which Moore and Jones were charged as co-
defendants.
  Meanwhile, during the same time period in the spring
of 2005, Wisconsin law enforcement officials were investi-
gating the activities of a Milwaukee street gang known
as “16 Deep/Flat Out” (“16-Deep”). That investigation
culminated in the May 2006 filing of state drug conspiracy
charges against some 17 individuals, including Jones.
Moore’s current challenge is based on a bit of overlap
between that case and the present federal one. In the 16-
Deep case, the state criminal complaint, in detailing the
alleged criminal activities of the drug conspiracy, de-
scribed as “Incident #6” the two sales of crack cocaine by
Moore and Jones in April and June 2005—the same transac-
tions that gave rise to the present federal case. Although
the state criminal complaint documented Moore’s partici-
pation in each of those transactions, he was not named as
a defendant in the state case. Each of the state criminal
defendants faced a potential maximum fine of $100,000
and a potential maximum imprisonment term of 40 years.
  Several months later, in January 2007, a federal grand
jury returned a three-count indictment against Jones and
No. 07-3770                                               3

Moore, charging each with conspiracy to distribute crack
cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1) (Count
One), and two counts of distributing crack cocaine in
violation of 21 U.S.C. § 841(a)(1) (Counts Two and Three).
The federal indictment described a narrow conspiracy
involving only Jones and Moore, alleging that they
“conspire[d] and agree[d] with each other” to distribute
50 or more grams of crack cocaine, with nary a mention
of the 16-Deep defendants or the broader set of drug-
conspiracy activities alleged in the state case. In light of
the federal prosecution of Jones, the state elected to drop
its charge against him in the 16-Deep case. The state
prosecution of the remaining 16-Deep defendants con-
cluded in a variety of dispositions, ranging from out-
right dismissal to 12 years’ imprisonment. In the present
federal case, Moore and Jones both eventually entered
into plea agreements with the government, and both
pled guilty to Count One.
  A few aspects of Moore’s plea agreement and hearing
bear mentioning here. First, in the plea agreement, the
government agreed to recommend a sentence “within the
sentencing guideline range, as determined by the court.”
The plea agreement also stipulated that the government
could prove beyond a reasonable doubt, if the case had
gone to trial, that the offense involved at least 50 grams
of crack cocaine, triggering a statutory mandatory mini-
mum 10-year sentence. See 21 U.S.C. § 841(b)(1)(A)(iii).
In this regard, the plea agreement stated:
    The parties understand and agree that the offense
    to which the defendant will enter a plea of guilty
4                                               No. 07-3770

    carries the following maximum term of imprison-
    ment and fine: life imprisonment and $4,000,000.
    The count also carries a mandatory minimum of
    10 years of imprisonment.
And finally, at the plea hearing, Moore confirmed his
understanding that the offense carried a mandatory
minimum 10-year sentence and maximum term of life
imprisonment.
  Moore’s post-plea sentencing memorandum further
reflected his understanding of the statutory mandatory 10-
year minimum sentence. That memorandum acknowl-
edged that the only possible statutory basis for a departure
from the mandatory minimum in this case was 18 U.S.C.
§ 3553(e), under which the government could move for
a lower sentence based upon “substantial assistance”
from the defendant. The government did not file a
§ 3553(e) motion.
  At sentencing, the district court determined that Moore’s
criminal history category was III and his offense level (net
acceptance of responsibility) was 23, yielding a guideline
sentencing range of 57 to 71 months’ imprisonment.
Because the high end of this range was lower than the
statutory mandatory minimum sentence, this calculation
was, as the court characterized it, somewhat “academic.”
Nonetheless, Moore argued that he was entitled to a two-
point offense level reduction, pursuant to U.S.S.G.
§ 3B1.2(b), as a minor participant in the offense. In sup-
port of this argument, Moore’s counsel attempted to paint
him, by reference to the state case, as a minor figure in
a large drug distribution scheme; he pointed out that,
No. 07-3770                                                5

despite the inclusion of “Incident #6”—detailing the two
sales of crack cocaine by Moore and Jones that gave rise
to this case—in the state criminal complaint, Moore had
not been charged in the 16-Deep case. Moreover, he
asserted that the 16-Deep defendants would likely face
shorter sentences than Moore; so, the argument goes, not
only was he so low in the 16-Deep drug-conspiracy hierar-
chy that state prosecutors apparently deemed him too
unimportant to prosecute, but he also faced a potentially
harsher sentence than the 16-Deep higher-ups simply
by virtue of his prosecution in federal court.
  In response to Moore’s § 3B1.2(b) argument, the govern-
ment attempted to clarify why Moore and Jones were
prosecuted in federal, rather than state, court:
   [T]o address counsel, what actually happened, the
   state complaint that he submits involves a group
   called 1617 [sic] Deep that the state began investi-
   gating in late 2006—or actually, I’m sorry, late 2005
   to early 2006. As they put their case together, they
   had been gathering names and some people. The
   buys off Mr. Jones and Moore that were done in
   2005, were done as a separate investigation by a
   different agency that had hoped that that investiga-
   tion would lead somewhere. Eventually it didn’t.
   The state in their investigation, when they came
   across the name Curtis Jones, had learned about
   these buys and incorporated it into their com-
   plaint, even though the other agency had been
   deciding they needed to clean up those cases and
   brought them here [to the federal prosecutor].
6                                                No. 07-3770

The government then pointed out that the evidence
against the defendants in the state case “differs wildly,”
and that “[t]o just comment that other people are getting
different sentences there for substantially the same thing
ignores the fact that the evidence in that case is very
different as to each defendant.” The government specu-
lated that the state did not charge Moore in the 16-Deep
state case because, although he was a known dealer,
his “name did not come up as being part of that group.”
  Notwithstanding the effectively “academic” nature of the
§ 3B1.2(b) issue (in light of Moore’s aim in arguing it—
to obtain a sentence lower than the guideline range pro-
jected in the presentence report, which was itself lower
than the statutory mandatory minimum), the court ad-
dressed this argument and rejected it because of Moore’s
“integral” role in facilitating the two drug transactions
involved in the present case. And with respect to the
potential disparity in sentences between those prosecuted
in state and federal court, the court offered the following:
    Obviously, in the large scheme of things, if we deal
    with all offenders who at one point or another may
    be linked because of common sources of supply
    or common use of storage facilities or drug houses
    or the like, Mr. Moore and Mr. Jones may be
    viewed as a rather small fish in a big pond which,
    again, really calls into question did this case really
    deserve to be in the federal courts as opposed to
    state court. And that’s a decision not for the court
    to make, but the executive branch of the govern-
    ment. . . . [O]nce again, these are all executive
No. 07-3770                                                 7

    branch decisions. And we can debate long and
    hard as to whether they are wise, but that is not
    for the court to do. . . . And again, all of this is
    academic because at the end of the day he’s still
    facing a statutory mandatory 120-month sentence.
  And indeed, this discussion was largely academic,
because Moore faced a statutorily mandated minimum
sentence well in excess of the initial guidelines calculation.
The court concluded that it had “to do the only thing
that the court can do and that is impose a sentence of
120 months for the conduct charged in count one.” There-
fore, the court sentenced Moore to 10 years of imprison-
ment, 5 years of supervised release, and monetary penal-
ties in the form of a $100 assessment and $2200 of restitu-
tion. Jones, who was likewise subject to the mandatory
minimum because of the quantity of crack cocaine
involved in Count One, see 21 U.S.C. § 841(b)(1)(A)(iii),
also received a 120-month sentence.
  Moore timely appealed. On appeal, he contests only his
sentence, contending that the district court’s imposition
of the statutory mandatory minimum sentence denied
him both equal protection and due process in violation
of the Fifth Amendment to the Constitution. We take
up Moore’s arguments below.


                      II. Discussion
  The crux of Moore’s appeal is his contention that the
government committed a “class of one” equal protection
violation. In this vein, Moore argues that § 3553(e) is
8                                                No. 07-3770

unconstitutional as applied in this case because, in allow-
ing a sentence below the statutory mandatory minimum
only upon government motion to reflect a defendant’s
substantial assistance, the statute forced the district court
to single him out for arbitrary and irrational treatment.
Moore’s equal protection and due process arguments
turn on the same assertion—that the government arbi-
trarily and irrationally singled him out for differential
treatment from the defendants in the 16-Deep case. He
does not articulate a due process argument independent
of his equal protection argument, and it seems possible
that he mentions due process only because equal protec-
tion constraints on the federal government are imposed
by the Due Process Clause of the Fifth Amendment. See
Bolling v. Sharpe, 347 U.S. 497, 498-99 (1954) (recognizing
equal protection component of Fifth Amendment Due
Process Clause). Because we discern no independent due
process argument, we evaluate Moore’s challenge as a
single constitutional argument premised on a class-of-one
equal protection theory.
  Turning to that class-of-one theory, we note that this is
not a garden-variety equal protection challenge; such
challenges are “typically . . . concerned with govern-
mental classifications that affect some groups of citizens
differently from others.” See Engquist v. Or. Dep’t of Agric.,
128 S. Ct. 2146, 2152 (2008) (emphasis added and quota-
tion omitted) (citing collected cases). Therefore, individuals
pursuing equal protection challenges ordinarily “allege
that they have been arbitrarily classified as members of
an ‘identifiable group.’ ” Id. In contrast, a class-of-one
equal protection challenge asserts that an individual has
No. 07-3770                                                 9

been “irrationally singled out,” without regard for any
group affiliation, for discriminatory treatment. Id. at 1253.
A class-of-one equal protection claim is cognizable where
an individual alleges that he has been “intentionally
treated differently from others similarly situated and that
there is no rational basis for the difference in treatment.”
Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per
curiam).
  Before discussing this theory, we should note that
Moore made no such constitutional argument before the
district court. His arguments about the 16-Deep case, both
in his sentencing memorandum and at the sentencing
hearing, focused on whether he should receive a minor-
participant reduction under the Sentencing Guidelines
or similar consideration under 18 U.S.C. § 3553(a)
because his criminal conduct was less culpable than
most of the 16-Deep defendants. His sentencing argu-
ments did not even hint at a constitutional basis. That
means that his argument was forfeited (if not waived) and
should be reviewed here, if at all, only under the exacting
plain error standard. United States v. Allen, 529 F.3d 390,
395 (7th Cir. 2008) (“To establish plain error, [the defen-
dant] has to demonstrate a clear error that affects a sub-
stantial right and, moreover, impacts the fairness, integrity,
or public reputation of judicial proceedings.” (quotation
omitted)). Nevertheless, the standard of review is incon-
sequential to the outcome here; as explained below,
Moore’s challenge lacks any merit even if reviewed de
novo.
  In order to establish a class-of-one equal protection
violation, Moore must first show that he was “intentionally
10                                              No. 07-3770

treated differently from others similarly situated.” Vision
Church v. Vill. of Long Grove, 468 F.3d 975, 1002 (7th Cir.
2006); McDonald v. Vill. of Winnetka, 371 F.3d 992, 1001 (7th
Cir. 2004). Moore argues, of course, that he was
similarly situated to the defendants charged in the
“16 Deep/Flat Out” state case. To be considered “similarly
situated,” the class-of-one challenger and his comparators
must be “prima facie identical in all relevant respects or
directly comparable . . . in all material respects.” Racine
Charter One, Inc. v. Racine Unified Sch. Dist., 424 F.3d 677,
680 (7th Cir. 2005) (internal citation and quotations omit-
ted); see also Purze v. Vill. of Winthrop Harbor, 286 F.3d
452, 455 (7th Cir. 2002). Although this is not a “precise
formula,” it is nonetheless “clear that similarly situated
individuals must be very similar indeed.” McDonald,
371 F.3d at 1002.
  Moore apparently regards the fact that he and the
state defendants were charged and prosecuted by
separate sovereigns in different fora as immaterial to the
similarly-situated analysis; indeed, his similarly-situated
argument depends on this premise. However, it is a
premise that we reject. First, we note that Moore’s dif-
ferential treatment from the state defendants cannot be
attributed to a single decision-maker. Rather, the separate
federal and state prosecutions necessarily involved at
least two decision-makers, one federal and one state; this
alone works against a finding of similarity. See Radue v.
Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir. 2000)
(explaining that where “different decision-makers are
involved, two decisions are rarely similarly situated in
all relevant respects” (quotation omitted)); see also Purze,
No. 07-3770                                              11

286 F.3d at 455 (finding that class-of-one plaintiffs were
not similarly situated to comparators in part because
their zoning-related requests were acted upon by dif-
ferent decision-makers). Moreover, it is well-established
that “under principles of dual sovereignty, both the state
and the federal government may sentence a defendant
for actions criminal under both state and federal law.” Reed
v. United States, 985 F.2d 880, 882 (7th Cir. 1993) (citing
Heath v. Alabama, 474 U.S. 82, 88 (1985)). And it goes
without saying that Congress and the state legislatures
are free to fashion their own, differing approaches to
criminal problems and sentencing. Thus, two defendants,
one charged in federal court and the other in state
court, who are otherwise identical in all material respects,
are not similarly situated at the sentencing stage, where
they may face very different penalties. That the federal
defendant may face harsher punishment than his state
counterpart, or vice versa, simply does not raise equal
protection concerns.
   Of course, this does not preclude the possibility that
our two hypothetical defendants might have been sim-
ilarly situated at an earlier stage in the process—most
notably, when the charging decision was made. So a
challenge to the initial charging decision might have
some merit, if, for example, some aspect of that decision
was based on an impermissible criterion, such as race or
religion. See United States v. Armstrong, 517 U.S. 456, 464
(1996). But Moore does not allege invidious discrimina-
tion in the charging decision, so we need not elaborate
on this point.
12                                              No. 07-3770

   Even if we were to accept Moore’s initial premise—that
prosecution by separate sovereigns in different fora is
an immaterial difference for purposes of the “similarly
situated” analysis—he still fails to show that he was
similarly situated to the state defendants. As already
noted, Moore argues that he was similarly situated to
the state defendants because their offenses involved
similar crack cocaine amounts (40-100 grams) and “because
they were all named and charged as such by Wisconsin
prosecutors, and Jones and Moore were charged by the
United States Attorney’s Office as coconspirators, too.”
Even if we assume for the moment that Moore’s dubious
characterization of the state defendants as his
“coconspirators” is correct—dubious because the fed-
eral indictment alleged a narrow conspiracy involving
only Jones and Moore—and that the factual details of
their offenses are largely similar, that alone would not
render them similarly situated. The Sentencing Guide-
lines and § 3553(a) incorporate a host of considerations
that make sentencing an individualized process going
well beyond the details of the defendant’s instant offense.
See, e.g., § 3553(a)(1) (directing the court to consider “the
history and characteristics of the defendant” in choosing
an appropriate sentence). In this regard, Moore’s failure
to present any criminal history background on the state-
court defendants is particularly glaring. This is a critical
federal sentencing factor, see § 3553(a)(1), (4), and presum-
ably Wisconsin courts also weigh criminal history heavily.
Moore, at the relatively young age of 26, had already
earned enough criminal history points to land in Category
III in the federal sentencing guidelines formula. This
No. 07-3770                                                13

history included a Wisconsin conviction for a serious
battery which was committed after the drug sales on
which this federal prosecution was based. We have no
way to compare the variety and seriousness of Moore’s
criminal background with the 16-Deep defendants, and
thus cannot begin to assess whether he was irrationally
treated differently. See Racine Charter One, 424 F.3d at 680
(explaining that comparators must be directly comparable
in all material respects). And this need for a more
detailed comparison is magnified in light of the variety
of punishments—ranging from outright dismissal to
12 years’ imprisonment—that the state defendants re-
ceived; Moore could hardly base an equal protection
claim on a comparator who received a sentence more
harsh than his own. For all these reasons, Moore’s class-of-
one challenge never gets off the ground.
  In seeking to show a class-of-one equal protection
violation based solely upon purported irrationality, rather
than illegitimate animus, Moore faces other, even more
intractable problems. Under one line of cases in this
Circuit, Moore’s failure to allege illegitimate animus
would foreclose his class-of-one challenge. See Racine,
424 F.3d at 684 (citing collected Seventh Circuit cases
requiring proof of illegitimate animus for a successful
class-of-one challenge); see also Crowley v. McKinney, 400
F.3d 965, 972 (7th Cir. 2005); Purze, 286 F.3d at 455; Cruz v.
Town of Cicero, 275 F.3d 579, 587 (7th Cir. 2001); Hilton v.
City of Wheeling, 209 F.3d 1005, 1008 (7th Cir. 2000). How-
ever, another line of cases would allow a successful class-
of-one challenge upon proof that the differential treat-
ment was either simply irrational or motivated by illegiti-
14                                                 No. 07-3770

mate animus. See Racine, 424 F.3d at 684 (citing collected
Seventh Circuit cases holding “that a class of one equal
protection claim is established where the defendant has
intentionally treated the plaintiff differently than others
similarly situated either without any rational basis for
doing so or out of some totally illegitimate animus”
(quotation omitted)); see also Vision Church, 468 F.3d at
1002; Lunini v. Grayeb, 395 F.3d 761, 768 (7th Cir. 2005);
Levenstein v. Salafsky, 414 F.3d 767, 775-76 (7th Cir. 2005);
McDonald, 371 F.3d at 1001; Nevel v. Vill. of Schaumburg,
297 F.3d 673, 681 (7th Cir. 2002); Albiero v. City of Kankakee,
246 F.3d 927, 932 (7th Cir. 2001). The more narrow formula-
tion represented by the former line of cases reflects, at
least in part, a concern that allowing a remedy under the
equal protection clause for merely “irrational and wholly
arbitrary adverse treatment by government,” without
proof of something more (such as illegitimate animus),
would open “[b]reathtaking vistas of liability.” Tuffendsam
v. Dearborn County Bd. of Health, 385 F.3d 1124, 1127 (7th
Cir. 2004) (quotation omitted); see also Bell v. Duperrault, 367
F.3d 703, 712 (7th Cir. 2004) (Posner, J., concurring) (point-
ing out that “irrational differences in treatment having
nothing to do with discrimination against a vulnerable
class abound at the bottom rung of law enforcement” and
offering the example of a policeman exercising the dis-
cretion inherent in dispensing traffic tickets). In holding
that class-of-one challenges have no place in the public
employment context, 128 S. Ct. at 2148-49, and in sug-
gesting that such challenges may be inapplicable to any
governmental action that is the product of a highly dis-
cretionary decision-making process, id. at 2154-55, the
No. 07-3770                                                 15

Supreme Court’s recent Engquist decision seems to go
a long way toward alleviating this problem without
reliance on a possibly difficult-to-apply motive test. See
Bell, 367 F.3d at 713 (Posner, J., concurring) (noting that
motive tests are “not very satisfactory and are therefore
sparingly employed” but nonetheless acknowledging that
there might not be a “better way of reining in the class-of-
one cases”); see also Engquist, 128 S. Ct. at 2154 (invoking
the same traffic-ticket hypothetical used by Judge Posner
in Bell to illustrate the difficulty with class-of-one chal-
lenges in discretionary decision-making contexts;
“[A]llowing an equal protection claim on the ground
that a ticket was given to one person and not others,
even if for no discernible or articulable reason, would be
incompatible with the discretion inherent in the chal-
lenged action.”). We discuss the Engquist decision and its
application to the current case in more detail later in this
opinion; for now, it is enough to note that Moore’s class-of-
one challenge is premised solely on irrationality, and
because his challenge ultimately fails, we need not
attempt a comprehensive reconciliation of the two lines
of authority in this Circuit discussed above. See RJB
Props., Inc. v. Bd. of Educ., 468 F.3d 1005, 1010 n.2 (7th Cir.
2006) (declining to reach this issue for similar reason);
Smith v. City of Chi., 457 F.3d 643, 652-53 (7th Cir. 2006)
(same).
  Turning again to Moore’s challenge, the purported
irrationality he identifies is his prosecution in federal,
rather than state, court solely for reasons of administra-
tive convenience. But this highlights a peculiar discon-
nect in Moore’s argument; the irrationality that he objects
16                                              No. 07-3770

to cannot be fairly attributed to the judicial action (the
district court’s failure to depart from the mandatory
minimum sentence), or even the entity responsible for
that action (the district court), that he ostensibly chal-
lenges. In this respect, Moore’s argument is quite unlike
the typical class-of-one claim, in which the purported
irrationality is part and parcel of the challenged govern-
mental (usually executive or legislative) action. See, e.g.,
Olech, 528 U.S. at 565 (involving class-of-one claim based
on village’s demand for easement more than twice as
long as the village demanded of similarly situated
property owners); McDonald, 371 F.3d at 1003 (involving
class-of-one claim based on fire department’s departure
from its ordinary fire-investigation operating procedure);
Hilton, 209 F.3d at 1007-08 (involving class-of-one claim
premised on failure to provide plaintiff with the same
police protection afforded to others similarly situated).
Indeed, the purported irrationality identified by
Moore—the decision to prosecute him, perhaps solely
for reasons of administrative convenience, in federal,
rather than state, court—originated with a decision that
was made in the prosecutorial sphere. Thus, despite his
attempt to cloak his argument in terms of an as-applied
challenge to § 3553(e), his argument is nakedly aimed
at the exercise of prosecutorial discretion.
  In challenging an exercise of the broad prosecutorial
discretion that inheres in our criminal justice system,
Moore faces a formidable obstacle. Indeed, “[i]n the
ordinary case, so long as the prosecutor has probable
cause to believe that the accused committed an offense
defined by statute, the decision whether or not to prose-
No. 07-3770                                                  17

cute, and what charge to file or bring before a grand jury,
generally rests entirely in his discretion.” United States v.
Armstrong, 517 U.S. 456, 464 (1996) (quotation omitted); see
also Wayte v. United States, 470 U.S. 598, 607 (1985);
Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). Of course,
this broad discretion is subject to constitutional
restraints, and cannot be based upon invidious criteria
such as race or religion. Armstrong, 517 U.S. at 464; Wayte,
470 U.S. at 608; Bordenkircher, 434 U.S. at 364. But an
exercise of prosecutorial discretion cannot be success-
fully challenged merely on the ground that it is irrational
or arbitrary; in the realm of prosecutorial charging deci-
sions, only invidious discrimination is forbidden. See
United States v. Smith, 502 F.3d 680, 691 (7th Cir. 2007), cert.
denied, 128 S. Ct. 1270 (2008); United States v. Duncan, 479
F.3d 924, 928 (7th Cir.) (per curiam) (“Absent a showing
of invidious discrimination, we shall not second-guess a
prosecutor’s decision regarding the charges it chooses to
bring.”), cert. denied, 128 S. Ct. 189 (2007); United States v.
Roberson, 474 F.3d 432, 434 (7th Cir. 2007) (“The judiciary
has no authority to second-guess the government’s choice
of which crimes to charge unless the choice is based on
an invidious ground . . . .” (internal citations omitted));
United States v. Smith, 953 F.2d 1060, 1063 (7th Cir. 1992)
(“Arbitrariness—that is, unjustified disparities in the
treatment of similarly situated persons—is not among the
grounds on which to contest an exercise of prosecutorial
discretion.”). Moore’s challenge is premised on irrational-
ity, not invidious discrimination; because a no-rational-
basis challenge to the exercise of prosecutorial discretion
is doomed to failure, his class-of-one argument is fore-
18                                                No. 07-3770

closed for this reason as well. As the district court correctly
pointed out at sentencing, under ordinary circumstances,
the federal charging decision is solely for the executive
branch to make without fear of second-guessing by the
judiciary.
  Our conclusion is consistent with and reinforced by the
Supreme Court’s recent explanation in Engquist that class-
of-one equal protection theory is a “poor fit” where the
challenged governmental action is the product of a broadly
discretionary decision-making process. See 128 S. Ct. at
2155. In holding that class-of-one claims have “no applica-
tion in the public employment context,” id. at 2156, the
Court explained:
       There are some forms of state action . . . which by
     their nature involve discretionary decisionmaking
     based on a vast array of subjective, individualized
     assessments. In such cases the rule that people
     should be “treated alike, under like circumstances
     and conditions” is not violated when one person is
     treated differently from others, because treating
     like individuals differently is an accepted conse-
     quence of the discretion granted. In such situa-
     tions, allowing a challenge based on the arbitrary
     singling out of a particular person would under-
     mine the very discretion that such state officials
     are entrusted to exercise.
     ....
       Thus, the class-of-one theory of equal protec-
     tion—which presupposes that like individuals
     should be treated alike, and that to treat them
No. 07-3770                                                19

    differently is to classify them in a way that must
    survive at least rationality review—is simply a
    poor fit in the public employment context. To treat
    employees differently is not to classify them in a
    way that raises equal protection concerns. Rather,
    it is simply to exercise the broad discretion that
    typically characterizes the employer-employee
    relationship. A challenge that one has been treated
    individually in this context, instead of like every-
    one else, is a challenge to the underlying nature of
    the government action.
Id. at 2154-55. Thus, the class-of-one theory is better
suited to those contexts involving “a clear standard
against which departures, even for a single [individual],
could be readily assessed.” Id. at 2153 (citing Olech, 528
U.S. at 564-65 (involving class-of-one challenge to
zoning board’s departure from standard easement length
requirement); Allegheny Pittsburgh Coal Co. v. County
Comm’n of Webster County, 488 U.S. 336, 339-42 (1989)
(involving equal protection challenge to county’s de-
parture from market-value standard in conducting
some property assessments)).
   This logic is equally applicable to the exercise of pros-
ecutory discretion. To treat like individuals differently
in this context, even without a strictly rational justifica-
tion, “is not to classify them in a way that raises equal
protection concerns,” Engquist, 128 S. Ct. at 2155; the
discretion conferred on prosecutors in choosing whom
and how to prosecute is flatly inconsistent with a presump-
tion of uniform treatment. Indeed, in this context, there
is no readily apparent standard against which departures
20                                                No. 07-3770

can be assessed for arbitrariness. Therefore, a class-of-one
equal protection challenge, at least where premised solely
on arbitrariness/irrationality, is just as much a “poor fit” in
the prosecutorial discretion context as in the public em-
ployment context. Accordingly, Moore’s class-of-one
challenge fails for this reason as well.
  In closing, we briefly address one additional nuance to
Moore’s argument. He contends that his sentencing
outcome is particularly irrational in light of the govern-
ment’s promise, pursuant to the plea agreement, to re-
commend a sentence within the guideline range. As
already discussed, the originally calculated guideline
sentencing range was lower than the statutory mandatory
120-month minimum sentence. However, because the
Sentencing Guidelines stipulate that, in this scenario, the
mandatory minimum becomes the guideline sentence,
see U.S.S.G. § 5G1.1(b), this argument has no traction at all.


                      III. Conclusion
  For the foregoing reasons, Moore’s sentence is A FFIRMED.




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