                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 10, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-40556
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

NATHAN GONZALES,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                  USDC No. 1:03-CR-197-1-TH-WCR
                       --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Nathan Gonzales appeals his 160-month sentence imposed

following his guilty plea to possession with intent to distribute

a controlled substance and carrying a firearm during and in

relation to a drug-trafficking offense.     Gonzales argues that his

codefendant received a lesser sentence than he did because the

codefendant was not charged under 18 U.S.C. 924(c) although he

had equal access to the firearm possessed during the offense.

Gonzales argues that he should have received equal punishment for


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                             No. 04-40556
                                  -2-

the same offense.   The district court denied Gonzales’ motion for

a downward departure, finding it unwarranted based on the facts

of the case.

     The court has jurisdiction to review a refusal to downwardly

depart from the guideline sentencing range only if the district

court based its decision on an erroneous belief that it lacked

the authority to depart.     United States v. Buck, 324 F.3d 786,

797 (5th Cir. 2003).   Gonzales does not argue, nor does the

record indicate, that the district court believed it did not have

the authority to make a downward departure.     See United States v.

Landerman, 167 F.3d 895, 899 (5th Cir. 1999).      This court lacks

jurisdiction to review the denial of Gonzales’ motion for a

downward departure.    See Buck, 324 F.3d at 797.    Accordingly,

Gonzales’ appeal of this issue is DISMISSED for lack of

jurisdiction.    See Landerman, 167 F.3d at 899.

     Gonzales also argues that it was a violation of

prosecutorial discretion to file an additional charge against him

which resulted in his receiving a more severe punishment than his

codefendant.    He argues that the prosecution violated his rights

under the Due Process Clause by not charging him in the same

manner as his codefendant.

     The Government has broad discretion in enforcing federal

criminal laws.    United States v. Armstrong, 517 U.S. 456, 464

(1996).   A “presumption of regularity” supports prosecutorial

decisions and courts presume prosecutors have properly discharged
                           No. 04-40556
                                -3-

their official duties absent clear evidence to the contrary.      Id.

(citation omitted).   To establish a selective-prosecution claim,

a defendant has a “heavy burden.”    United States v. Johnson, 577

F.2d 1304, 1308 (5th Cir. 1978) (quoting United States v.

Berrios, 501 F.2d 1207, 1211 (2nd Cir. 1974)).    First, a

defendant must make a prima facie showing that he was singled out

for prosecution while others similarly situated who committed the

same acts were not prosecuted.    United States v. Jennings,     724

F.2d 436, 445 (5th Cir. 1984).    Second, he must demonstrate that

the government’s selective prosecution was constitutionally

invidious in that it rested upon such impermissible

considerations as race, religion, or the desire to prevent his

exercise of constitutional rights.    Id; Johnson, 577 F.2d at

1308.

     Gonzales has presented no evidence to rebut the presumption

of regularity supporting the Government’s decision to prosecute

him under 18 U.S.C. § 924(c).    He does not assert that he was

prosecuted based on his race or religion or to prevent his

exercise of a particular constitutional right.    Gonzales has thus

not carried the “heavy burden” necessary to show that he was

selectively prosecuted.

     Gonzales’ appeal of the district court’s denial of his

motion for a downward departure is DISMISSED for lack of

jurisdiction.   His sentence is otherwise AFFIRMED.
