                                                                           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                             NOT FOR PUBLICATION                            APR 21 2010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
