Filed: Jul. 23, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS July 23, 2007 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 06-10842 Summary Calendar JOSE PEREZ-MARTINEZ, Petitioner-Appellant, versus UNITED STATES OF AMERICA, Respondent-Appellee. - Appeal from the United States District Court for the Northern District of Texas USDC No. 6:06-CV-56 - Before JONES, Chief Judge, and JOLLY and OWEN, Circuit Judges. PER CURIAM:* Jose Perez-Martinez, federal priso
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS July 23, 2007 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 06-10842 Summary Calendar JOSE PEREZ-MARTINEZ, Petitioner-Appellant, versus UNITED STATES OF AMERICA, Respondent-Appellee. - Appeal from the United States District Court for the Northern District of Texas USDC No. 6:06-CV-56 - Before JONES, Chief Judge, and JOLLY and OWEN, Circuit Judges. PER CURIAM:* Jose Perez-Martinez, federal prison..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 23, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-10842
Summary Calendar
JOSE PEREZ-MARTINEZ,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:06-CV-56
--------------------
Before JONES, Chief Judge, and JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
Jose Perez-Martinez, federal prisoner # 09381-031, pleaded
guilty to reentering the United States after deportation following
a conviction for aggravated felony. Perez-Martinez is in custody
pursuant to a judgment and sentence in the United States District
Court for the District of Kansas.
Perez-Martinez filed the instant 28 U.S.C. § 2241 petition in
the United States District Court for the Northern District of
Texas, where he is incarcerated. He sought a downward departure
because he was not eligible for various rehabilitative programs and
sentence-reduction incentives due to his status as a deportable
*
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opinion should not be published and is not precedent except under the limited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.
alien, and he alleged that the conditions of his imprisonment were
more onerous because of his alienage and in violation of his right
to equal protection. The district court determined that Perez-
Martinez was challenging aspects of his conviction and sentence
that should have been raised in a § 2255 motion, and it dismissed
his sentencing claims for lack of jurisdiction. The district court
also held that Perez-Martinez had not shown that his sentencing
claims satisfied either the
§ 2255 savings clause or 18 U.S.C. § 3582(c). Finally, the
district court concluded that to the extent Perez-Martinez’s claims
properly raised issues under § 2241, he had failed to show that the
conditions of his incarceration were unconstitutional or violated
his equal protection rights.
Perez-Martinez now appeals the district court’s dismissal of
his § 2241 petition. He challenges the finding that he was not
entitled to downward departure based on his alienage and
specifically disputes the holding that his exclusion as a
deportable alien from eligibility for a drug-rehabilitation program
under 18 U.S.C. § 3621 does not violate equal protection.
Additionally, for the first time on appeal, Perez-Martinez contends
that he should receive a sentence adjustment based on the fact this
his previous state conviction of simple possession of a controlled
substance was not an aggravated felony to warrant a 16-level
enhancement pursuant to Lopez v. Gonzales, 127 S. Ct. 625 (2006).
Perez-Martinez has not shown that the district court erred in
determining that his sentencing arguments should have been raised
2
in a § 2255 motion over which it lacked jurisdiction. See Reyes-
Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001); Cox v.
Warden, Fed. Det. Ctr.,
911 F.2d 1111, 1113 (5th Cir. 1990);
Solsona v. Warden, F.C.I.,
821 F.2d 1129, 1132 (5th Cir. 1987).
Perez-Martinez also has not established that his sentencing claims
fall under the § 2255 savings clause or that his sentence should be
modified under § 3582.
Reyes-Requena, 243 F.3d at 904 (savings
clause); United States v. Miller,
903 F.2d 341, 349 (5th Cir.
1990)(§ 3582). Moreover, we decline to consider Perez-Martinez’s
claim that he is entitled to a revised sentence under Lopez because
he has raised this claim for the first time on appeal of a habeas
petition. Leggett v. Fleming,
380 F.3d 232, 236 (5th Cir. 2004).
Perez-Martinez’s equal protection claim also fails because he
does not show that he is being treated differently than similarly
situated persons or that the restrictions on INS detainees’
participation in the drug-treatment program are irrational. See
Samaad v. City of Dallas, 940 F.2d 925 (5th Cir. 1991) (equal
protection claim fails absent comparison to similarly situated
others);
Rublee, 160 F.3d at 214, 217 (flight risk is rational
basis for ineligibility for community-based programs); Wottlin v.
Fleming, 136 F.3d at 1037 (“rational basis” review of early-release
claim).
The judgment of the district court is AFFIRMED.
3
