Equal Protection Claim Not Preserved

U.S. v. Magallon-Maldonado, 2015 WL 452319 (2/4/15) (Kan.) (unpub'd) - The defense did not preserve an equal-protection challenge by arguing in the district court that giving Hispanic co-conspirators more severe sentences than the non-Hispanic conspirators violated § 3553(a)(6) [the anti-disparity factor]. The same legal theory must be presented below, not a theory that falls under the same general category as the issue on appeal. On appeal Mr. Magallon-Maldonado argued the court should have required the government to explain the disparate treatment. But any such error was not plain because there was no law imposing such a requirement except in the Batson context and, besides, at oral argument defense counsel admitted with "commendable candor" that any error wouldn't be plain.