Taylor Dillard appeals from the dismissal of his petition for a writ of habeas corpus by the United States District Court for the Eastern District of New York, George C. Pratt, Judge. Dillard claims that his sentence as a second felony offender, pursuant to New York Penal Law § 70.06, violates the equal protection clause of the fourteenth amendment. We find no merit in this claim and affirm.

I.

In May, 1971 Dillard was convicted of the felony of operating a motor vehicle in an intoxicated condition, in violation of New York Vehicle and Traffic Law § 1192. This non-Penal Law felony is deemed to be a class E felony. New York Penal Law § 55.-10(l)(b). On February 3, 1975 he was convicted, after a jury trial, of the more serious class B felony of robbery in the 'first degree, in violation of New York Penal Law § 160.15.1 Judge Young, of the County Court of Nassau County, pursuant to .New York Penal Law § 70.06,2 sentenced Dillard as a second felony offender to imprisonment for 4V2 to 9 years. For a person who is not a second felony offender the sentence of imprisonment for a class B felony is a minimum of 1 year and a maximum of 25 years. New York Penal Law § 70.00(2)(b), (3).

The Appellate Division, Second Department, affirmed the conviction without opinion, 383 N.Y.S.2d 558 (1976), and on June 15, 1976 the New York Court of Appeals denied, without opinion, Dillard’s petition for permission to appeal.

On April 4, 1977 Judge Pratt denied Dillard’s petition for a writ of habeas corpus.

II.

Relying on United States v. Thompson, 147 U.S.App.D.C. 1, 452 F.2d 1333, 1340-41 (1971), cert. denied, 405 U.S. 998, 92 S.Ct. 1251, 31 L.Ed.2d 467 (1972), Dillard urges this court to strike down § 70.06 unless it serves a “compelling interest.” This reliance is misplaced. Thompson involved a challenge to the bail provisions of the District of Columbia Court Reform and Criminal Procedure Act of 1970, P.L. No. 91-358, 84 Stat. 473-668. Here we have a challenge to a sentencing statute. We hold that § 70.06 does not violate the fourteenth amendment if there is “some ‘rational basis’ for the statutory distinctions made.” Marshall v. United States, 414 U.S. 417, 422, 94 S.Ct. 700, 704, 38 L.Ed.2d 618 (1974). Dray-*875ton v. New York, 556 F.2d 644 (2d Cir. 1977); United States ex rel. Daneff v. Henderson, 501 F.2d 1180, 1183 (2d Cir. 1974).

Dillard notes that § 70.06 does not apply to non-Penal Law felonies, such as operating a motor vehicle while intoxicated. He argues “had he committed his offense in the reverse order, he would have been sentenced as a first offender. . . . This classification of multiple offenders based solely on the order in which offenses are committed has no rational basis. . . . ”3 (Brief for Appellant, at 6.)

The New York legislature could rationally decide that robbery in the first degree is a more serious crime than driving while intoxicated and classify the former as a Penal Law felony and the latter as a non-Penal Law felony.4 The legislature could also rationally decide to reduce the judge’s discretion in the sentencing of a Penal Law offender who, as here, has previously committed a less serious felony. This is a permissible sanction against committing crimes of increasing seriousness.

Dillard gives several illustrations in which it is possible, under New York’s current statutory scheme, for the second felony to be less serious than the first felony even when both are Penal Law felonies.5 For example, a person might be convicted of rape in the first degree, a class B felony, New York Penal Law § 130.35, and then be convicted of stealing a credit card, a class E felony, New York Penal Law § 155.30.6 We need not and do not, however, decide whether the application of § 70.06 in any of Dillard’s hypothetical examples would violate the fourteenth amendment. “Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.” Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973). United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960); United States ex rel. Daneff v. Henderson, supra, 501 F.2d 1185.

We hold that § 70.06, as applied to Dillard, is rational and does not violate the fourteenth amendment’s equal protection clause.

Affirmed.