United States v. Felipe Gutierrez

Felipe Gutierrez was convicted of possession with intent to distribute approximately 243 grams of cocaine within 1000 feet of a school in violation of 21 U.S.C. §§ 841 (a)(1) & 860 (formerly § 845a). Gutierrez appeals the district court’s failure to grant his motion to dismiss for selective prosecution, and its failure to instruct the jury on the lesser included offense of simple possession. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

I.

On September 13, 1989, Los Angeles Police Department officers conducted a search of Pedro Calzada’s home, which was located within 1000 feet of a school. This search was a parole search authorized by the Parole Board of California. The officers forcibly entered the house and found Calzada pouring cocaine down the toilet. The officers then arrested Calzada and asked him to cooperate in an effort to arrest his supplier. Calzada agreed to cooperate.

Calzada arranged over the phone to purchase some cocaine. Shortly thereafter, Felipe Gutierrez arrived at Calzada’s house. The LAPD officers arrested Gutierrez and found that he was carrying 243 grams of cocaine base. The officers also verified that the telephone number used by Calzada…