Unpublished Disposition, 865 F.2d 265 (9th Cir. 1988)

MEMORANDUM^** 

Joaquin Hernandez appeals his sentence of one year in prison, three years on probation, and departure from the United States after his release, following his conviction for mail theft and possession of stolen mail in violation of 18 U.S.C. § 1708. Hernandez contends that there is an irrebuttable inference that the district court impermissibly utilized its sentencing authority to penalize him for exercising his right to stand trial. He further contends that in imposing a greater sentence on Hernandez than upon his codefendants, who pleaded guilty, the court denied him equal protection under the law.

The sentence is affirmed. Although the government contends that the appeal is moot since Hernandez's prison term has been terminated, he is still on probation and hence may challenge his sentence. See Aaron v. Pepperas, 790 F.2d 1360, 1362 (9th Cir. 1986); see also Lane v. Williams, 455 U.S. 624, 631 (1982). Second, the trial court did not penalize Hernandez for standing trial in setting sentence, but instead legitimately considered its evaluation of Hernandez's lack of remorse, demeanor and truthfulness in testifying under oath. See United States v. Grayson, 438 U.S. 41, 53 (1978); see also United States v. Malquist, 791 F.2d 1399, 1402-03 (9th Cir.), cert. denied, 479 U.S. 954 (1986); United States v. Paris, 827 F.2d 395, 403 (9th Cir. 1987). Third, the court did not abuse its discretion in imposing a longer sentence upon Hernandez than his codefendants, since it gave legitimate reasons for the disparity. See United States v. Endicott, 803 F.2d 506, 510 (9th Cir. 1986); Paris, 827 F.2d at 402; see also United States v. Beecroft, 608 F.2d 753, 761 (9th Cir. 1979).

AFFIRMED.