Gustavo Lucio v. United States

394 F.2d 511, 1968 U.S. App. LEXIS 7008

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 9, 1968
• Docket: 25672
• Status: Published

Opinion

PER CURIAM:

The appellant’s post-conviction motion to vacate his federal court sentence for violation of the narcotics laws is predicated upon the sole ground that a disparity between his sentence and that of a co-defendant amounted to a violation of his rights under the due process and equal protection clauses of the Constitution of the United States.

The appellant was found guilty by a jury under two counts and received an eight year sentence on each count, to run concurrently. His co-defendant, an eighteen year old girl, pleaded guilty to one count and received a sentence under the Youth Corrections Act. She was subject to parole, 18 U.S.C. § 5010(b), while he was not, 26 U.S.C. § 7237(d).

The trial court had the duty to consider the character, background and extent of participation of each defendant in the transaction, and to treat them as individuals in arriving at a decision as to just sentences. The appellant is in no position to make his co-defendant’s sentence a basis for complaint that his constitutional rights were violated.

Affirmed.