Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Page 50.
Michael Joseph Fica, Esq., Office of the U.S. Attorney, Pocatello, ID, for Plaintiff-Appellee.
Manuel De La Torre-Ortega, California City, CA, pro se.
Appeal from the United States District Court for the District of Idaho, B. Lynn Winmill, District Judge, Presiding. D.C. Nos. CV-03-00255-BLW, CR-02-00123-BLW.
Before: O'SCANNLAIN, CALLAHAN and BEA, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Federal prisoner Manuel De La Torre-Ortega appeals pro se the district court's order denying his 28 U.S.C. § 2255 motion. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a). Reviewing de novo, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), we affirm.
Ortega contends that his sentence violates equal protection because, as a result of his deportation status, he is unable to participate in a variety of prison programs available to American citizens. We affirm for the reasons set forth in the relevant portion of the district court's March 26, 2004, order.
Ortega next contends that his attorney provided constitutionally deficient representation by failing to seek a downward departure based upon the different treatment he would receive in prison as a result of his status as an alien subject to deportation. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, the departure based on alienage that Ortega's counsel failed to pursue was, as an 18 U.S.C. § 3553(b) departure, purely discretionary. The decision to grant or to deny such a reduction, had counsel made the request, was entirely within the discretion of the court. Accordingly, we agree with the district court that, even assuming counsel's failure to request the departure satisfied the first prong of Strickland, Ortega is unable to show that there is a "reasonable probability, that but for" the error, the result would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
AFFIRMED.