Torre-Ortega

MEMORANDUM **

Federal prisoner Manuel De La TorreOrtega 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…