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 NOT PRECEDENTIAL 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 against Lester Roberts, Keino Armstrong, and 
2 

 

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). 
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 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.