Appeal from the United States District Court for the Eastern District of Wisconsin. No. 07 CR 13-J. P. Stadtmueller, Judge.
The opinion of the court was delivered by: Tinder, Circuit Judge
Before CUDAHY, POSNER, and TINDER, Circuit Judges.
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 similarly 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.
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 investigating 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, described as "Incident #6" the two sales of crack cocaine by Moore and Jones in April and June 2005-the same transactions that gave rise to the present federal case. Although the state criminal complaint documented Moore's participation 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 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 concluded in a variety of dispositions, ranging from outright 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 minimum 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 carries the following maximum term of imprisonment 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 acknowledged 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 support 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, 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 hierarchy 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 government attempted to clarify why Moore and Jones were prosecuted in ...