This is a canard. Sutton's office did not have to impose that charge, they chose to. In fact they did not put it on the table while they were plea bargaining for just a couple of years. It is on the back's of Sutton and his minions that they utilized a law in a way it was not intended. They used it in a vengeful way!
There are limits to prosecutorial discretion. If the evidence before you supports a charge, you bring it. A US Attorney is sworn to uphold the laws of the land as they are on the books.