1 NOT PRECEDENTIAL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 agai nst Lester Roberts, Keino Armstrong, and2 Mario Robles, charging them with violations of the Controlled Substances Act. On April 7, 2009, each of the defendants plead ed guilty to count two of the indictment, which alleged that they aided and abe tted 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 C ourt sentenced Roberts to 24 months of imprisonment, the low end of the guidelin e 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 betwee n his custodial sentence and that of his co-defendants violates his rights to due process and equa l protection under the Fifth Amendment to the United States Constitution. 2 In the absence of any evidence to suggest that the disparate se ntences were based on an impermissible factor such as race or gender, Roberts mu st 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 prov ided 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).3 456, 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 anothe r 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 Clau se only if it reflects disparate treatment of similarly situated defendant s 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 gro ss disparity in sentences violate[d] due process or equal protection lack[ed] me rit” as petitioner did not contend that sentencing was the result of discrimination based on an impermissible factor). Here, the record confirms that Robe rts was not similarly situated with Armstrong and Robles. Roberts, in contrast to his co-defendants, had difficulty complying with the conditions of his releas e 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 char ges 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 employe d. Accordingly, we conclude that Roberts’ argument that he is similarly situ ated to his codefendants lacks merit. We will affirm the judgment of the District Court.