87 F.3d 1325
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Severo ZEPEDA-VALLES, Defendant-Appellant.
No. 95-56756.
United States Court of Appeals, Ninth Circuit.
Submitted June 11, 1996.*
Decided June 18, 1996.
Before: CANBY, NOONAN, and LEAVY, Circuit Judges.
MEMORANDUM**
Severo Zepeda-Valles, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion in which he sought to have his sentence of imprisonment reduced by six months. Zepeda-Valles argues that the district court erred by denying the motion because he was entitled to a downward departure under 18 U.S.C. § 3553(b) because as a deportable alien he is not eligible to serve the last six months of his sentence in a halfway house pursuant to 18 U.S.C. § 3624(c), and therefore his sentence is more severe than it would be if he was a United States citizen.
Zepeda-Valles' motion was properly denied because the district court did not have authority to modify the sentence imposed. See 18 U.S.C. § 3582(c) (listing limiting circumstances in which district court may modify a sentence imposed, none of which apply in this case). Moreover, the possibility of deportation is not a proper ground for departure. See United States v. Alvarez-Cardenas, 902 F.2d 734, 736-37 (9th Cir.1990).
To the extent that Zepeda-Valles' claim is cognizable under 28 U.S.C. § 2241, the district court properly declined to construe the § 2255 motion as a § 2241 habeas petition because the court did not have jurisdiction over either Zepeda-Valles or his custodian. See United States v. Giddings, 740 F.2d 770, 772 (9th Cir.1984).1
AFFIRMED.
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
Because we affirm the district court's denial of Zepeda-Valles' motion under the former version of 28 U.S.C. § 2255, we do not consider whether the Antiterrorism and Effective Death Penalty Act of 1996 applies to this appeal