FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                    UNITED STATES COURT OF APPEALS                   March 10, 2008
                                                                   Elisabeth A. Shumaker
                                 TENTH CIRCUIT                         Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 07-3322
          v.                                             (D. of Kan.)
 VICTOR MANCILLAS,                              (D.C. No. 02-CR-10140-MLB)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges. **


      Victor Mancillas, a federal prisoner appearing pro se, appeals the district

court’s denial of his motion for reduction of sentence under Rule 35 of the

Federal Rules of Criminal Procedure. For the reasons set forth below, we

AFFIRM the district court’s order.




      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                          I.

      This is Mancillas’s fourth time in our court, and his third visit related to

sentencing. The last time we considered Mancillas’s 97-month term of

imprisonment for a litany of drug-related offenses, we found no error with the

district court’s sentence and affirmed. United States v. Mancillas, 180 F. App’x

820, 823 (10th Cir. 2006). Repeating the argument he previously asserted, and

supplying a couple of new claims, Mancillas filed a motion in the district court

seeking to reduce his 97-month sentence pursuant to Rule 35. 1

                                         II.

      Rule 35 authorizes the district court to reduce a defendant’s sentence only

in one of two instances: 2 (1) “Within 7 days after sentencing, the court may

correct a sentence that resulted from arithmetical, technical, or other clear error,”

Fed. R. Crim. P. 35(a); or (2) “Upon the government’s motion . . . , the court may

reduce a sentence if the defendant, after sentencing, provided substantial

assistance in investigating or prosecuting another person,” 

States v. Green, 

, 1184–85 (10th Cir. 2005) (same). Because

Mancillas filed his motion well past the seven-day limitations period, and because



      1
         Because Mancillas is proceeding pro se, we construe his petition
liberally. See Haines v. Kerner, 

, 520 (1972).
      2
        Mancillas specifically requested relief under Rule 35, and thus we need
not address other grounds listed in 18 U.S.C. § 3582(c) that provide district courts
with authority to reduce sentences.

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the motion was not initiated by the government, we agree the district court did not

have authority under Rule 35 to reduce Mancillas’s sentence.

      To the extent Mancillas appears to raise an ineffective assistance of counsel

claim, we remind him of what we said the first time he appealed his sentence:

      This court has repeatedly stated that ineffective assistance claims
      should be brought in collateral proceedings, not on direct appeal. . . .
      Such claims brought on direct appeal are presumptively dismissible,
      and virtually all will be dismissed. . . . Mr. Mancillas has failed to
      show his claim qualifies as one of those rare instances in which we
      should hear an ineffective counsel challenge on direct review.

United States v. Mancillas, 132 F. App’x 780, 783 (10th Cir. 2005) (internal

citations and quotation marks omitted). Because he again failed to demonstrate

why we should consider his ineffective assistance claim on this appeal, we again

decline to address it.

                                         III.

      Accordingly, we AFFIRM the district court’s order denying Mancillas’s

Rule 35 motion for reduction of sentence. But even though he did not prevail on

appeal, we remind Mancillas of his obligation to pay the filing fee.

                                                     Entered for the Court

                                                     Timothy M. Tymkovich
                                                     Circuit Judge




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