Rodriguez

MEMORANDUM **

James Rodriguez appeals his conviction and sentence of 15 months imprisonment for violating the conditions of his supervised release. Rodriguez argues, for the first time on appeal, that the district court violated his right to equal protection by imposing the statutory maximum prison term when it would have allowed a person with financial means an opportunity to attend a private drug rehabilitation program.

Because this claim was not raised before the district court, we review for plain error. United States v. Vences, 169 F.3d 611, 613 (9th Cir.1999). See also United States v. Olano, 507 U.S. 725, 733-34 , 113 *716 S.Ct. 1770 , 123 L.Ed.2d 508 (1993) (plain error is “clear” or “obvious” error that affected the defendant’s substantial rights and the fairness of the district court’s proceeding).

The record does not establish that the Rodriguez would have received a lighter sentence had he been able to pay for a private inpatient treatment program. At the revocation hearing, the district court questioned whether Rodriguez would be able to succeed at “one more drug treatment program.” Rodriguez had failed at two prior inpatient treatment programs while on supervised…