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101 F3d 706 United States v. Valenzuela-Cervantes

101 F.3d 706

UNITED STATES of America, Plaintiff-Appellee,
v.
Raul VALENZUELA-CERVANTES, Defendant-Appellant.

No. 96-50123.

D.C. No. CR-94-00754-MRP-01.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 21, 1996.*
Oct. 23, 1996.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before BEEZER, KOZINSKI, and KLEINFELD, Circuit Judges.

1

MEMORANDUM**

2

Valenzuela-Cervantes appeals his conviction after conditionally pleading guilty to illegal reentry in violation of 8 U.S.C. § 1326. Valenzuela-Cervantes contends the district court erred when, upon remand, it denied his motion for nationwide discovery to support his selective prosecution claim. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion, United States v. Marshall, 56 F.3d 1210, 1211 (9th Cir.1995), cert. denied, 116 S.Ct. 1830 (1996), and affirm.

3

Valenzuela-Cervantes contends that nationwide discovery is warranted because he has produced a study which allegedly shows that among all persons presented for prosecution by the Immigration and Naturalization Service for violations of 8 U.S.C. § 1326, the government prosecutes 88% of all Latinos as compared to 77% of non-Latinos. We disagree.

4

In order to obtain discovery on a selection prosecution claim based on race, defendant must make a credible showing that the Government declined to prosecute similarly situated suspects of other races. United States v. Armstrong, 116 S.Ct. 1480, 1489 (1996). Valenzuela-Cervantes, previously convicted of at least five offenses under California law, has made no showing that the non-Latinos whom the government declined to prosecute were similarly situated.

5

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3