Gustavo Lucio, Appellant, v. United States of America, Appellee, 394 F.2d 511 (5th Cir. 1968)

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US Court of Appeals for the Fifth Circuit - 394 F.2d 511 (5th Cir. 1968) May 9, 1968

Gustavo Lucio, pro se.

Ralph H. Harris, III, Asst. U.S. Atty., San Antonio, Tex., Ernest Morgan, U.S. Atty., for appellee.

Before TUTTLE and SIMPSON, Circuit Judges, and BREWSTER, District Judge.


The appellant's post-conviction motion to vacate his federal court sentence for violation of the narcotics laws is predicated upon the sole ground that a disparity between his sentence and that of a co-defendant amounted to a violation of his rights under the due process and equal protection clauses of the Constitution of the United States.

The appellant was found guilty by a jury under two counts and received an eight year sentence on each count, to run concurrently. His co-defendant, an eighteen year old girl, pleaded guilty to one count and received a sentence under the Youth Corrections Act. She was subject to parole, 18 U.S.C. § 5010(b), while he was not, 26 U.S.C. § 7237(d).

The trial court had the duty to consider the character, background and extent of participation of each defendant in the transaction, and to treat them as individuals in arriving at a decision as to just sentences. The appellant is in no position to make his co-defendant's sentence a basis for complaint that his constitutional rights were violated.