Appeal from the United States District Court for the Central District of California. DC No. CR-90-0435-WDK-1. William D. Keller, District Judge, Presiding.
Before: Pregerson, Canby and Rymer, Circuit Judges
Gary Louis Nettles appeals his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Nettles also challenges the sentence imposed for that conviction. We affirm the conviction, but vacate the sentence and remand for resentencing.
This case arises out of Nettles' visit to a crack house in January 1989. Nettles had gone there to find a woman who owed him money for a previous drug deal. When the two met, they began to argue. During the argument, Nettles picked up a 20-gauge shotgun and "caused it to fire into the wall." Three days later, Nettles returned to the residence and remained within it for a time; during this period, he repeatedly answered the door armed with a shotgun.
As a result of this incident, the state prosecuted Nettles for robbery. After his acquittal, state officials referred his case to the Bureau of Alcohol, Tobacco and Firearms (BATF). They informed the BATF that a search of Nettles' home had produced a shotgun. Court records also confirmed that Nettles, a convicted felon, had admitted to possessing a similar weapon. BATF agent Barry Holden accordingly submitted a report incorporating this information and recommending prosecution. A federal grand jury thereafter indicted Nettles as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
Nettles' arrest coincided with Operation Streetsweep, a multi-agency operation designed to deter the spread of gangs. According to the Los Angeles Times, the BATF targeted the Crips and Bloods gangs because their level of violence had increased with the spread of drugs. The Los Angeles operation led to the arrests of more than 100 alleged gang members during June 14-15, 1990. The BATF decided to arrest Nettles in the operation because agency resources would be concentrated in his area at that time. Nettles and nine other black suspects ultimately faced prosecution on federal firearms charges.*fn1
Referring to these other charges against black defendants, Nettles moved to dismiss his indictment on the ground of selective prosecution. He also requested extensive discovery concerning the government's internal procedures and charging decisions. At a subsequent hearing, Nettles' attorney told the court that his motion should be deemed a discovery request and not a motion to dismiss. The court denied the motion and related discovery request, finding that the operation was not racially motivated and had a legitimate law enforcement purpose.
Nettles then stipulated to the preparation of a pre-sentence report. The report recommended that he be classified as a career offender pursuant to section 4B1.1 of the United States Sentencing Guidelines. Upon receipt of the report, the government and Nettles entered into a plea agreement under which Nettles reserved his right to appeal the denial of his selective prosecution motion.
On January 25, 1991, the district court held a hearing on the career offender issue. Relying on United States v. O'Neal, 937 F.2d 1369 (9th Cir. 1991), the court determined that Nettles qualified under the Guidelines. The court accordingly imposed a sentence of 96 months, within the Guideline range of 84 to 105 months. Nettles appeals.
Nettles challenges the district court's denial of his motion for discovery. We review this decision for abuse of discretion. United States v. Bourgeois, No. 90-50595, slip. op. 5747, 5752-53 (9th Cir. May 19, 1992). To obtain discovery, Nettles must identify specific facts giving rise to a colorable claim that: (1) similarly situated persons have not been prosecuted; and (2) his prosecution is based on an impermissible motive. United States v. Balk, 706 F.2d 1056, 1060 (9th Cir. 1983). Bare assertions do not suffice. Bourgeois, slip. op. at 5756.
Our decision is controlled by Bourgeois, and we accordingly conclude that Nettles has failed to carry his burden on the first element. Prosecutorial practices must be tested against a broader universe of cases than a two-day crime sweep. See id. at 5758-59. Moreover, Nettles has failed to identify a single instance in which the government intentionally ...