United States of America, Plaintiff-appellee, v. Jesus Felix-rodriguez, Defendant-appellant, 104 F.3d 366 (9th Cir. 1996)

MEMORANDUM^** 

Jesus Felix-Rodriguez, a federal prisoner, appeals pro se the denial of his 28 U.S.C. § 2255 motion and motion for reconsideration. We have jurisdiction pursuant to 28 U.S.C. § 2255, and we affirm in part and vacate and remand in part.

In his section 2255 motion, Felix-Rodriguez sought a sentence reduction based on the erroneous assumption that the Sentencing Guidelines had amended U.S.S.G. § 2D1.1 by eliminating the distinction between "cocaine base" and "cocaine." After the district court denied his motion, Felix-Rodriguez filed a motion for reconsideration seeking leave to withdraw his section 2255 motion or, in the alternative, to have the district court construe the motion as a motion under 18 U.S.C. § 3582. The district court denied both requests. We agree that Felix-Rodriguez's motion should have been construed as a motion under 18 U.S.C. § 3582. See Hamilton v. United States, 67 F.3d 761, 763-64 (9th Cir. 1995) (construing pro se section 2255 motion as a motion under 18 U.S.C. § 3582 where defendant sought reduction in sentence based on subsequent amendment to guidelines). Accordingly, we remand this case back to the district court for the limited purpose of amending the judgment to deny relief under 18 U.S.C. § 3582.

AFFIRMED in part; VACATED and remanded in part. Each party shall bear its own costs.