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Toledo-Rivera v. United States

filed*fn*: May 13, 1992.

EDWARDO TOLEDO-RIVERA, PETITIONER-APPELLANT,
v.
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Central District of California. D.C. No. CV 90-2606-WMB(S). Wm. Matthew Byrne, Jr., District Judge, Presiding.

Before: Browning and Farris, Circuit Judges, and Macbride,*fn** District Judge.

MEMORANDUM

Edwardo Toledo-Rivera appeals the district court's denial of his habeas petition. Toledo-Rivera argues that his sentence violates the Equal Protection Clause because: (1) his co-defendant, who received an identical sentence, has been released and (2) Toledo-Rivera remains incarcerated. We affirm.

In United States v. Vaccaro, 816 F.2d 443, 458 (9th Cir.), cert. denied, 484 U.S. 928 (1987), we held that "it is within the discretion of the court to impose disparate sentences as long as the Judge takes into account individual circumstances." The Eighth Circuit reached a similar Conclusion regarding parole dates. See Patten v. N. Dakota Parole Bd., 783 F.2d 140, 141 (8th Cir. 1986) ("That co-defendants receive different parole dates does not violate a right of the one who gets the later date.").

Toledo-Rivera does not argue that his original conviction and sentence are infirm. Nor does he argue that he has not been released for improper reasons. The fact that a co-defendant merited an earlier release date, standing alone, does not entitle Toledo-Rivera to relief. The district court did not err.

AFFIRMED.

Disposition

AFFIRME ...


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