United States v. Serge Mezheritsky

377 F. App'x 598

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 21, 2010
• Docket: 09-50237
• Status: Unpublished

Opinion

MEMORANDUM **

Serge L. Mezheritsky appeals pro se from the district court’s denial of his motion to reduce his sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Mezheritsky contends that re-sentencing is required pursuant to Fed.R.Crim.P. 35 or 18 U.S.C. § 3582(c)(2) because the district court erred by assigning him criminal history points from a sentence that was related to the instant conviction. This contention fails because the district court lacked authority to reconsider his sentence. See United States v. Marler, 527 F.3d 874, 878 n. 1 (9th Cir.2008) (noting that Amendment 709 concerning criminal history calculations does not apply retroactively); see also United States v. Hetrick, 644 F.2d 752, 756 (9th Cir.1980) (stating that the timely filing of Rule 35 motion is jurisdictional).

Mezheritsky also contends for the first time in his reply brief that he is entitled to relief pursuant to Fed.R.Crim.P. 36. Even if it is preserved, this contention lacks merit. See United States v. Kaye, 739 F.2d 488, 491 (9th Cir.1984) (“Rule 36 applies to clerical errors only.”).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.