United States v. Castelan ( 2003 )

United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT F I L E D
June 24, 2003
No. 02-51384 Charles R. Fulbruge III
Conference Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE CASTELAN, JR, also known as Jose Carmen Castelan-Carbajal,
also known as Peter Garcia, also known as Jose Catellan,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-01-CR-109-ALL-JN
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Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Castelan, federal prisoner # 79424-080, appeals the
district court’s denial of his post-conviction motion for a
reduction of his sentence or downward departure from the
guidelines range based on his cultural assimilation. Castelan
relies on United States v. Rodriguez-Montelongo, 263 F.3d 429(5th Cir. 2001), which was issued after he was sentenced and
held for the first time in a published opinion that cultural
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-51384
-2-
assimilation is a “permissible basis for downward departure”
under U.S.S.G. § 5K2.0.
This court has a continuing duty to consider, sua sponte if
necessary, the basis of the district court’s jurisdiction.
Solsona v. Warden, F.C.I., 821 F.2d 1129, 1132 n.2. The district
court is prohibited from modifying a term of imprisonment once it
has been imposed except in certain limited circumstances. 18
U.S.C. § 3582(c). Castelan’s post-conviction motion for a
sentence reduction or downward departure does not fall under any
provision of 18 U.S.C. § 3582(c) and, thus, was unauthorized and
without a jurisdictional basis. See United States v. Early, 27
F.3d 140, 141-42 (5th Cir. 1994). Although the district court
considered the motion on its merits, it should have denied the
motion for lack of jurisdiction. See id. at 142. On that
alternative basis, the district court’s order is
AFFIRMED.