United States v. Serge Mezheritsky , 377 F. App'x 598 ( 2010 )

FILED
NOT FOR PUBLICATION APR 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50237
Plaintiff - Appellee, D.C. No. 2:01-cr-00434-RMT
v.
MEMORANDUM *
SERGE L. MEZHERITSKY,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Robert M. Takasugi, District Judge, Presiding
Submitted April 5, 2010 **
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
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.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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.
2 09-50237