                                                             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opinion should not be published and is not precedent except under the limited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
