                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          FEB 24 2000

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 99-1286
 v.                                                (D.C. No. 94-CR-275)
                                                      (COLORADO)
 MICHAEL E. LEWIS,

          Defendant-Appellant.



                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL and BRISCOE, 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 cause is

therefore ordered submitted without oral argument.

      Pro se appellant Michael Lewis appeals from the district court’s refusal to

reconsider his sentence for lack of jurisdiction. We grant Mr. Lewis’ motion to

proceed without payment of costs or fees and affirm.

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or 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.
      In January of 1995, Mr. Lewis was sentenced to serve eighty-seven months

for his commission of federal offenses pursuant to the U.S. Sentencing

Guidelines. Over four years later, Mr. Lewis wrote the sentencing court to

request a modification of his sentence based on his “post-conviction

rehabilitation.” The district court treated the letter as a “motion for

reconsideration,” which it denied holding it lacked jurisdiction to reconsider Mr.

Lewis’ sentence. After Mr. Lewis’ second request for reconsideration was

rejected, he appealed to this court. 1

      The precise question before us is whether the district court has jurisdiction

to modify Mr. Lewis’ sentence when he was convicted and sentenced four years

earlier and has no legal error for presentation other than his own wish to be re-

sentenced. Stated simply, the issue is whether the district court has jurisdiction to

re-sentence a defendant solely upon the defendant’s motion. We review de novo

the district court’s legal determination that it lacked jurisdiction to modify Mr.

Lewis’ sentence. See United States v. Smartt, 129 F.3d 539, 540 (10th Cir. 1997).

      The district court correctly held it lacked the power to re-sentence Mr.

Lewis. “A district court does not have inherent authority to modify a previously

imposed sentence; it may only do so pursuant to statutory authorization.” Id.



      Mr. Lewis moves for appointment of counsel in this case. Because our
      1

independent research satisfies us that the District Court was without jurisdiction
to modify his sentence, the motion is DENIED.

                                          -2-
(quoting United States v. Mendoza, 118 F.3d 707, 709 (10th Cir. 1997)).

Contrary to Mr. Lewis’ argument, his conviction and sentence constitute a final

judgment which the court “may not modify . . . once it has been imposed.” 18

U.S.C. § 3582(c) (1994) (emphasis added). This section’s mandate has only two

exceptions, 2 neither of which Mr. Lewis claims apply to his case.

      In making his argument, Mr. Lewis confuses the question of whether a

sentencing court may consider a certain factor when departing from the

guidelines, with whether a court has the power to sentence the defendant at all. It

is the later question that is before us here. Mr. Lewis relies on the holdings in

Koon v. United States, 518 U.S. 81 (1996), United States v. Whitaker, 152 F.3d

1238 (10th Cir. 1998), and United States v. Rhodes, 145 F.3d 1375 (D.C. 1998),

all of which hold a defendant’s post-conviction rehabilitation may be considered

as a factor for downward departure from the Sentencing Guidelines. In each of

those cases, the sentencing issue was properly before the court on direct appeal

from the sentencing or resentencing of the defendant. None of the cases discuss

whether the court had jurisdiction to impose the sentence, the issue we are faced

with here.

      Mr. Lewis alternatively argues the district court has jurisdiction to re-

sentence him under 28 U.S.C. § 2241, the general habeas corpus statute. To


      2
          The exceptions are set forth in 18 U.S.C. § 3582(c)(1) and (2).

                                           -3-
invoke that jurisdiction, however, Mr. Lewis must allege a constitutional

deprivation. To the extent he claims an Equal Protection violation, 3 we reject

this argument as well. Different treatment between those prisoners whose

convictions are held improper on appeal and all other prisoners is reasonable and

nondiscriminatory. See Rhodes, 145 F.3d at 1381 (such unequal treatment does

not contravene guidelines’ goal of treating similarly situated defendants alike).

Cf. Wright v. Altus Prod. Credit Ass’n, 468 F.2d 997, 999 (10th Cir. 1972)

(federal statute precluding the exercise of jurisdiction was not Equal Protection

violation because restriction was reasonable and nondiscriminatory).

      Mr. Lewis has argued throughout this litigation that a downward departure

should be available to all inmates who demonstrate post-conviction rehabilitation,

not merely those inmates “lucky enough” to be re-sentenced due to reversible

errors in their original sentencing. This is an argument that is properly addressed

to Congress, not to the judicial branch. See Mistretta v. United States, 488 U.S.

361, 364 (1989) (scope of judicial discretion with respect to sentencing criminal

defendants is subject to congressional control).




      Mr. Lewis argues repeatedly that his Equal Protection rights were violated
      3

because inmates lucky enough to have their case before the court on another error
may have their post-conviction rehabilitation considered for downward departure.

                                        -4-
The district court is AFFIRMED.

                             ENTERED FOR THE COURT


                             Stephanie K. Seymour
                             Chief Judge




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