                                                  NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             _____________

                                  No. 09-3825
                                 _____________

                        UNITED STATES OF AMERICA

                                        v.

                              LESTER ROBERTS,
                                            Appellant
                                _____________

                        On Appeal from the District Court
                        of the United States Virgin Islands
                      District Court No. 1-08-cr-00012-002
                District Judge: The Honorable Raymond L. Finch

                Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                              December 16, 2010

      Before: McKee, Chief Judge, FUENTES and SMITH, Circuit Judges

                           (Filed: December 17, 2010)

                            _____________________

                                   OPINION
                            _____________________

SMITH, Circuit Judge.

      On May 20, 2008, a grand jury returned a three-count indictment in the

District Court of the Virgin Islands against Lester Roberts, Keino Armstrong, and

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Mario Robles, charging them with violations of the Controlled Substances Act. On

April 7, 2009, each of the defendants pleaded guilty to count two of the indictment,

which alleged that they aided and abetted the knowing and intentional manufacture

of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(vii) and 18

U.S.C. § 2. Thereafter, the District Court sentenced Roberts to 24 months of

imprisonment, the low end of the guideline range, and four years of supervised

release. Armstrong and Robles received variances from the guideline ranges of 24

to 30 months and were sentenced to four years of probation. Roberts filed this

timely appeal. 1

      Roberts asserts that the disparity between his custodial sentence and that of

his co-defendants violates his rights to due process and equal protection under the

Fifth Amendment to the United States Constitution.2 In the absence of any

evidence to suggest that the disparate sentences were based on an impermissible

factor such as race or gender, Roberts must show at the very least that he was

similarly situated to Armstrong and Robles. United States v. Armstrong, 517 U.S.


1
  The District Court exercised jurisdiction under 48 U.S.C. § 1612(a) and 18 U.S.C.
§ 3231. We exercise jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
Although Roberts, in his plea agreement, “knowingly waive[d] the right to appeal any
sentence within the maximum provided in the statute . . . or on any ground whatever[,]”
the government has not invoked the appellate waiver. For that reason, we proceed to
address the issue presented by Roberts’ appeal. See United States v. Goodson, 544 F.3d
529, 535 (3d Cir. 2008).
2
  Because Roberts contends that the District Court violated his constitutional rights, we
exercise plenary review. United States v. Lennon, 372 F.3d 535, 538 (3d Cir. 2004).
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456, 464-65 (1996) (instructing that the standard for an equal protection claim

alleging selective prosecution requires that the defendant demonstrate that a

similarly situated individual of another protected class was not prosecuted); United

States v. Pierce, 400 F.3d 176, 183 (4th Cir. 2005) (declaring that “[a] criminal

sentence violates the Equal Protection Clause only if it reflects disparate treatment

of similarly situated defendants lacking any rational basis”); Jones v.

Superintendent of Rahway State Prison, 725 F.2d 40, 43 (3d Cir. 1984) (stating

that habeas petitioner’s “contention that gross disparity in sentences violate[d] due

process or equal protection lack[ed] merit” as petitioner did not contend that

sentencing was the result of discrimination based on an impermissible factor).

      Here, the record confirms that Roberts was not similarly situated with

Armstrong and Robles. Roberts, in contrast to his co-defendants, had difficulty

complying with the conditions of his release prior to sentencing. He tested positive

for the use of marijuana on more than one occasion. In addition, he possessed a

firearm on two occasions, resulting in charges being filed for violating the Virgin

Islands Criminal Code. Furthermore, the record confirms that, unlike Roberts, his

co-defendants had families that relied upon them for financial support and that

both co-defendants were gainfully employed. Accordingly, we conclude that

Roberts’ argument that he is similarly situated to his codefendants lacks merit. We

will affirm the judgment of the District Court.

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