                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            APR 22 2003
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                 Plaintiff-Appellee,

    v.                                                    No. 02-2271
                                                      (D.C. No. CR-95-104)
    HECTOR ALVARADO-CARRILLO,                               (D. N.M.)

                 Defendant-Appellant.


                             ORDER AND JUDGMENT           *




Before TACHA , Chief Judge, PORFILIO and BALDOCK , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

         Hector Alvarado-Carrillo appeals from the district court’s order denying his

motion for a downward departure of his sentence. We have jurisdiction over this


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
appeal by virtue of 28 U.S.C. § 1291. Because the district court concluded that it

lacked authority to modify appellant’s sentence under the applicable procedural

facts, we review that decision de novo.    United States v. Smartt , 129 F.3d 539, 540

(10th Cir. 1997).

      Appellant’s motion for downward departure was neither a direct appeal from

his conviction nor a collateral attack on his sentence. Accordingly, “the viability

of his motion depends entirely on 18 U.S.C. § 3582(c).”       Id. (quotation and

alteration omitted). On appeal, appellant contends that the district court had the

authority to consider the downward departure factor he argues, i.e.,

post-conviction rehabilitation. Some courts have held that post-conviction

rehabilitation may be considered in sentencing,     see United States v. Bradstreet   ,

207 F.3d 76, 81 (1st Cir. 2000) (collecting cases on the issue). Nonetheless, all of

these cases involved either initial sentencing or resentencing after a successful

direct appeal or collateral attack. Therefore, these decisions are inapt in this case.

      “Section 3582(c) provides that a court      may not modify a term of

imprisonment once it has been imposed except in three limited circumstances.”

Smartt , 129 F.3d at 540-41 (quotation omitted) (emphasis in original). This statute

allows modification 1) upon motion by the Director of the Bureau of Prisons or

2) to the extent it is allowed by statute or under the provisions of

Fed. R. Crim. P. 35; or 3) if the applicable sentencing range was subsequently


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lowered by the Sentencing Commission. As the district court noted, appellant’s

arguments implicate no statutory basis for his downward departure request, and his

arguments do not fall within the purview of Rule 35. He filed the motion for

downward departure, and he does not argue that the applicable sentencing range

has been lowered. Therefore, we conclude that the district court correctly denied

appellant’s motion for downward departure.

      The judgment of the United States District Court for the District of New

Mexico is AFFIRMED.



                                                   Entered for the Court



                                                   John C. Porfilio
                                                   Circuit Judge




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