Unpublished Disposition, 936 F.2d 581 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 936 F.2d 581 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Hugo Armando RODRIGUEZ, Defendant-Appellant.

No. 90-50683.

United States Court of Appeals, Ninth Circuit.

Submitted June 18, 1991.* Decided June 21, 1991.

Before BEEZER, WIGGINS and FERNANDEZ, Circuit Judges.


MEMORANDUM** 

Hugo Armando Rodriguez appeals pro se the denial of his 28 U.S.C. § 2255 motion. Rodriguez contends that the district court's denial of his motion to reduce his sentence violates his right to equal protection because the sentences of two of his codefendants have been reduced. We review de novo, United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir. 1990), and we affirm.

In 1987, Rodriguez pleaded guilty to one count of conspiracy to import, possess, and distribute cocaine, in violation of 21 U.S.C. § 846. On November 9, 1987, the district court sentenced him to an 8-year term of imprisonment and recommended that the Attorney General allow Rodriguez to serve his federal sentence concurrently with a state sentence that had been imposed previously for drug trafficking. Pursuant to this recommendation, Rodriguez has been serving his sentence in state custody.

On October, 24, 1990, Rodriguez filed a section 2255 motion seeking a reduction of his federal sentence for time served in state custody before his federal sentence was imposed and alleging that he had been denied equal protection because two of his codefendants had received such credit. After the district court denied his section 2255 motion, Rodriguez filed a motion for reconsideration which also was denied.

The district court did not err in denying Rodriguez's section 2255 motion and his motion for reconsideration of the denial. The fact that Rodriguez's codefendants obtained reduction of their sentences by timely filing motions under Fed. R. Crim. P. 35(b) does not violate Rodriguez's right to equal protection. See United States v. Endicott, 803 F.2d 506, 510 (9th Cir. 1986) ("absent an infringement of defendant's constitutional right to stand trial, a district court judge is not required to explain the basis for disparate sentences, within statutory limits, imposed upon similar codefendants"). Here, Rodriguez was not denied his right to stand trial and his sentence is within the statutory limit.

Finally, Rodriguez argued in his motion for reconsideration that because the district court ruled on his codefendants' Rule 35(b) motions after the 120-day filing period had run, the court's granting of these motions must be construed as a determination under Rule 35(a) that their sentences were illegal, and therefore his sentence also is illegal. This argument fails because the district court retained jurisdiction over the timely filed Rule 35(b) motions for a reasonable time beyond the 120-day filing deadline. See United States v. Smith, 650 F.2d 206, 209 (9th Cir. 1981).1 

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision 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 Cir.R. 36-3

 1

Moreover, in granting Rodriguez's codefendants' motions to reduce their sentences, the court expressly stated that the motions were made and considered under Rule 35(b). Nor did the district court have discretion to construe Rodriguez's section 2255 motion as a Fed. R. Crim. P. 35(b) motion because the 120-day period for filing Rule 35(b) motions is jurisdictional. See Smith, 650 F.2d at 208