                                                                            FILED
                            NOT FOR PUBLICATION                              FEB 19 2010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. 09-50104

             Plaintiff - Appellee,               D.C. No. 3:86-CR-00824-BTM-3

  v.
                                                 MEMORANDUM *
SALVADOR ALONSO-ALDAMA,

             Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Southern District of California
                   Barry T. Moskowitz, District Judge, Presiding

                      Argued and Submitted January 12, 2010
                               Pasadena, California

Before: CANBY, HALL, and O’SCANNLAIN, Circuit Judges.

       On May 11, 1987, Appellant Salvador Alonso-Aldama was convicted of (1)

conspiracy to import a Schedule I Controlled Substance into the United States; (2)

importation of a Schedule I Controlled Substance into the United States; (3)

conspiracy to possess, with the intent to distribute, a Schedule I Controlled



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Substance; and (4) possession, with the intent to distribute, a Schedule I Controlled

Substance. On June 25, 2008, Appellant filed a motion to reconsider his sentence

under the pre-1987 version of Federal Rule of Criminal Procedure 35(b). The

district court denied his motion, and Appellant timely appealed. This court has

jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

      Appellant’s Rule 35(b) motion was due by September 16, 1988, 120 days

after the district court received the Ninth Circuit mandate affirming his conviction

and sentence. Rule 35(b)’s filing deadline is jurisdictional and has been

characterized as mandatory and rigid in this circuit. United States v. Stump, 914

F.2d 170, 172 (9th Cir. 1990); United States v. Smith, 650 F.2d 206, 209 n.2 (9th

Cir. 1981); Sanchez v. United States, 572 F.2d 210, 211 (9th Cir. 1977).

      Although other circuits have extended the 120-day deadline in narrow

circumstances, Gov’t of the Virgin Islands v. Gereau, 603 F.2d 438, 442 (3rd Cir.

1979); Dodge v. Bennett, 335 F.2d 657, 658 (1st Cir. 1964); Warren v. United

States, 358 F.2d 527, 530-31 (D.C. Cir. 1965), Appellant is not entitled to

equitable tolling even under the standards set forth in those cases. Although he

was deported to Mexico prior to the denial of his appeal, nothing prevented him

from filing a Rule 35(b) motion to reduce his sentence while he was in Mexico.

He was obligated as a condition of his bond pending appeal to remain apprised of


                                          2
the status of his appeal, to remain in contact with the clerk’s office, and to remain

in the state of California. He was in contact with his lawyer and his ex-wife—who

lived in California—after he was deported, and he made no effort to reduce his

sentence through them.

         Even if this circuit were to recognize an equitable tolling doctrine under the

former Rule 35(b), Appellant made no effort to file a Rule 35 motion, and the

government did not prevent him from doing so. United States v. Peltier, 312 F.3d

938, 941 (8th Cir. 2002); United States v. Blanton, 739 F.2d 209, 213 (6th Cir.

1984).

         The district court therefore lacked jurisdiction to reconsider Appellant’s

sentence. Whether Appellant’s changed physical condition merits early release is a

matter within the purview of the Parole Commission. United States v. Addonizio,

442 U.S. 178, 189 (1979).

         AFFIRMED.




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