Unpublished Disposition, 933 F.2d 1015 (9th Cir. 1989)

MEMORANDUM^** 

Appellant Charles Roby filed a motion to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255. The district court denied the motion on February 13, 1989. We affirm.

On August 26, 1987, Roby and Herb McCall escaped from the United States Prison Camp at Boron, California. Roby and McCall were arrested on August 30, 1987, and charged with violating 18 U.S.C. § 751. Roby pled guilty pursuant to a plea agreement on October 19, 1987. Roby was sentenced by Judge Manuel Real to three years to run consecutively to the sentence he was already serving. On January 19, 1988, McCall was sentenced by Judge Stephen Wilson to six months to run consecutively to the sentence he was already serving.

On February 2, 1988, Roby filed a motion to reduce his sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure. This motion was denied on February 22, 1988. Roby did not appeal this denial. On February 8, 1989, Roby filed the present motion under 28 U.S.C. § 2255. The district court denied the motion on February 13, 1989, and Roby filed a timely appeal.

When a criminal defendant fails to directly appeal an alleged error then raises the same grounds in a subsequent motion under Section 2255 he must show cause for his failure to appeal and prejudice resulting from the alleged error. United States v. Dunham, 767 F.2d 1395, 1397 (9th Cir. 1985) (citing United States v. Frady, 456 U.S. 152, 168 (1982)). Roby claims that he did not learn that his Rule 35 motion was denied until January 17, 1989. This was beyond the time for filing a direct appeal. We need not decide if this constitutes "cause" for failing to appeal because we find that Roby suffered no prejudice by his claimed error.

Roby claims that his sentence was so disproportionate to that of McCall as to be a violation of equal protection.¹  In United States v. Meyer, 802 F.2d 348 (9th Cir. 1986), cert. denied, 484 U.S. 817 (1987), the appellant argued that his sentence, though within the statutory limits, was unconstitutionally disproportionate when compared to sentences imposed by other courts for the same crime. We rejected this argument stating,

a district court "is not required to harmonize its view of appropriate sentencing with that of other district courts...." Because individual circumstances may vary from one offender to another, persons convicted of the same crime need not receive similar sentences. The district judge was not required to reconcile appellant's sentence with the sentences that other courts have imposed on other defendants.

Id. at 353 (citations omitted). In United States v. Endicott, 803 F.2d 506 (9th Cir. 1986), the appellant was sentenced to two years in jail plus three years probation. A codefendant, who the appellant contended was more culpable than he, was sentenced to six months in jail plus five years probation. The appellant argued in a direct appeal from his conviction that this disparate sentencing was an abuse of discretion. We disagreed stating,

"a disparity in the sentences imposed upon codefendants does not indicate that the sentencing judge has abused his discretion or that review is required." United States v. Garrett, 680 F.2d 650, 652 (9th Cir. 1982). A sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review.

Id. at 510. Roby presents no argument that his sentence was outside the statutory limit and has therefore shown no prejudice to him by the imposition of his sentence. Accordingly, this ground was improperly raised in a Section 2255 motion. For the same reasons, Roby cannot show that his sentence was "imposed in violation of the Constitution or laws of the United States" as required by Section 2255. 28 U.S.C. § 2255.

The judgment of the district court is affirmed.

AFFIRMED.