
    UNITED STATES of America, v. Aguile POLANCO, a/k/a Chamaco, a/k/a William, Aguile Polanco, Appellant.
    No. 02-2585.
    United States Court of Appeals, Third Circuit.
    Submitted Pursuant to Third Circuit LAR 34.1(a) Sept. 15, 2003.
    Decided Sept. 22, 2003.
    Pamela Foa, Office of United States Attorney, Philadelphia, PA, for Appellee.
    Jose L. Ongay, Philadelphia, PA, for Appellant.
    Before McKEE, SMITH, and COWEN, Circuit Judges.
   OPINION OF THE COURT

McKEE, Circuit Judge.

Aquile Polanco appeals the sentence the district court imposed following his plea of guilty to numerous charges arising from his involvement in a conspiracy to distribute cocaine, heroin and crack cocaine. For the reasons that follow, we will affirm.

Inasmuch as we are writing only for the parties who are familiar with the factual and procedural background of this case, we need not reiterate the facts except as may be helpful to our brief discussion. Polanco argues that the district court erred in sentencing him more severely than his equally culpable female partner and the district court’s sentencing therefore constituted sex discrimination in violation of the equal protection component of the Fifth Amendment. We disagree.

The district court disagreed with Polanco’s attempt to characterize himself and codefendant Burgos as equal partners with equal culpability and indistinguishable sentencing factors.

Although the district court conceded that Burgos and Polanco were partners, the court noted that it was Polanco who had access to the source of supply and who controlled the other persons involved in the conspiracy, including codefendant Bur-gos. The court stated, “this man is at the top ... everybody else worked for him.” App. 136. The court noted that the codefendant “was an administrative leader here, but not sort of a chief executive officer. That’s Mr. Polanco.” Id. at 151. Because of Polanco’s position at the top of the conspiracy and his access to the illegal drugs that the conspiracy was selling, the court concluded that the conspiracy could not have existed without him. It may, however, have been able to exist without Burgos. Polanco “was a key to this conspiracy. [Burgos] was pretty helpful, but may be fungible.” Defense counsel did not disagree with that assessment. On the contrary, counsel indicated his agreement with the court’s factual conclusion during the sentencing procedures. Moreover, even now counsel does not seriously argue that the court erred in its conclusion.

Inasmuch as the court’s conclusions adequately supported the difference in the sentences of Polanco and codefendant Bur-gos, and since that factual distinction was not clearly erroneous, it is clear that Polanco’s belated attempt to hang an appeal on the constitutional hook of the Fifth Amendment is without merit. Accordingly, we will affirm.  