               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 15a0160n.06

                                          No. 14-3285

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                      FILED
                                                                                Mar 02, 2015
UNITED STATES OF AMERICA,                              )                    DEBORAH S. HUNT, Clerk
                                                       )
       Plaintiff-Appellee,                             )
                                                       )     ON APPEAL FROM THE UNITED
v.                                                     )     STATES DISTRICT COURT FOR
                                                       )     THE SOUTHERN DISTRICT OF
AMIRE T. SMITH,                                        )     OHIO
                                                       )
       Defendant-Appellant.                            )


                                                                                       *
       BEFORE: GRIFFIN and STRANCH, Circuit Judges; STEEH, District Judge.


       PER CURIAM. Amire T. Smith appeals the district court’s judgment of conviction and

sentence.

       Smith pleaded guilty to possessing with intent to distribute more than 28 grams of

cocaine base, in violation of 21 U.S.C. § 841(a)(1), and possessing a firearm in furtherance of a

drug trafficking crime, in violation of 18 U.S.C. § 924(c).        Because Smith’s drug offense

involved more than 28 grams of cocaine base, he was subject to a 60-month statutory minimum

prison term under 21 U.S.C. § 841(b)(1)(B)(iii).           The district court sentenced Smith to

consecutive 60-month prison terms.

       On appeal, Smith argues that his trial counsel rendered ineffective assistance by failing to

argue that the government selectively prosecuted him on account of his race by charging him

with a drug crime that carried a statutory minimum sentence. Smith contends that the charge

       *
         The Honorable George Caram Steeh III, United States District Judge for the Eastern
District of Michigan, sitting by designation.
No. 14-3285
United States v. Smith

was improper based on a memorandum issued by the Attorney General that directed federal

prosecutors to refrain from charging the drug quantity necessary to trigger a mandatory

minimum sentence where a defendant meets each of several specific criteria, including that the

defendant’s relevant conduct does not involve the possession of a weapon and the defendant does

not have a significant criminal history.

         Although we generally will not review an ineffective-assistance claim on direct appeal,

we choose to do so here because the parties have adequately developed the record relevant to

Smith’s claim. See United States v. Ferguson, 669 F.3d 756, 762 (6th Cir. 2012). To prevail on

his ineffective-assistance claim, Smith must show that his counsel performed deficiently and that

he suffered prejudice as a result. See Dawson v. United States, 702 F.3d 347, 350 (6th Cir.

2012).    To demonstrate selective prosecution based on race, a defendant must show that

prosecutorial policy was motivated by a discriminatory purpose and that similarly situated

individuals of another race were treated differently. United States v. Armstrong, 517 U.S. 456,

465 (1996); United States v. Lawrence, 735 F.3d 385, 439 (6th Cir. 2013), cert. denied, 135 S.

Ct. 753 (2014).

         Smith’s counsel did not perform deficiently by failing to argue that Smith was selectively

prosecuted because the argument is meritless. Smith has presented no evidence showing that the

prosecutor’s charging decision was motivated by a discriminatory purpose or that similarly

situated defendants of another race were treated differently.          In addition, given Smith’s

significant criminal history and the fact that his crimes involved a firearm, he did not satisfy each

of the criteria that were identified by the Attorney General as a basis for declining to charge an

offense with a mandatory minimum sentence.

         Accordingly, we affirm the district court’s judgment.


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