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

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

MEMORANDUM^*** 

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.

AFFIRMED.