Edwardo Toledo-rivera, Petitioner-appellant, v. United States of America, Respondent-appellee, 963 F.2d 380 (9th Cir. 1992)

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US Court of Appeals for the Ninth Circuit - 963 F.2d 380 (9th Cir. 1992) Submitted May 7, 1992. *Decided May 13, 1992

Before JAMES R. BROWNING and FARRIS, Circuit Judges, and MACBRIDE,**  District Judge.


Edwardo Toledo-Rivera appeals the district court's denial of his habeas petition. Toledo-Rivera argues that his sentence violates the Equal Protection Clause because: (1) his co-defendant, who received an identical sentence, has been released and (2) Toledo-Rivera remains incarcerated. We affirm.

In United States v. Vaccaro, 816 F.2d 443, 458 (9th Cir.), cert. denied, 484 U.S. 928 (1987), we held that " [i]t is within the discretion of the court to impose disparate sentences as long as the judge takes into account individual circumstances." The Eighth Circuit reached a similar conclusion regarding parole dates. See Patten v. N. Dakota Parole Bd., 783 F.2d 140, 141 (8th Cir. 1986) ("That co-defendants receive different parole dates does not violate a right of the one who gets the later date.").

Toledo-Rivera does not argue that his original conviction and sentence are infirm. Nor does he argue that he has not been released for improper reasons. The fact that a co-defendant merited an earlier release date, standing alone, does not entitle Toledo-Rivera to relief. The district court did not err.



Pursuant to Ninth Circuit Rule 34-4, the panel unanimously finds this case suitable for disposition without oral argument


Honorable Thomas J. MacBride, Senior Judge for the Eastern District of California, sitting by designation


This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by Ninth Circuit Rule 36-3