Unpublished Disposition, 878 F.2d 387 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 387 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Antonio Ocampo CASTENEDA, Defendant-Appellant.

No. 88-3097.

United States Court of Appeals, Ninth Circuit.

Submitted June 21, 1989.* Decided June 23, 1989.

Owen M. Panner, District Judge, Presiding.

Before: HUG, SCHROEDER and LEAVY, Circuit Judges.


MEMORANDUM** 

Antonio Ocampo Casteneda appeals the denial of his Fed. R. Crim. P. 35(b) motion to reduce his sentence following his district court conviction, based upon a guilty plea, of distribution of cocaine. The district court sentenced Casteneda and his codefendant to five-year prison terms, followed by three-year special parole terms, with a requirement that they each serve one-third of the prison term before becoming eligible for parole. Casteneda argues that his five-year prison term is too severe considering that his more culpable codefendant received the same sentence and that the district court could have invoked its power to grant lenity.

Although the district court could have imposed a shorter sentence, the district court's sentencing decision and its denial of a Rule 35 motion are within its discretion. United States v. Meyers, 847 F.2d 1408, 1416 (9th Cir. 1988); United States v. Gonzales, 765 F.2d 1393, 1396 (9th Cir. 1985), cert. denied, 474 U.S. 1068 (1986). Absent constitutional concerns, we generally do not review a sentence which is within the statutory limits. Meyers, 847 F.2d at 1416.

Here, Casteneda's sentence is within the statutory limit. See 21 U.S.C. § 841(b) (1) (C) (1987). Casteneda also does not assert a constitutional claim. Even assuming that Casteneda's codefendant was more culpable than Casteneda, as Casteneda asserts, the district court's imposition of identical sentences upon the two codefendants was not an abuse of discretion here. See United States v. Endicott, 803 F.2d 506, 510 (9th Cir. 1986).

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Circuit R. 36-3