                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 10, 2003

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 03-20522
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MARVIN GIBBS, JR.,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. H-97-CR-36-25
                       --------------------

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Marvin Gibbs, federal prisoner # 75279-079, appeals from the

district court’s denial of his post-conviction motion filed under

18 U.S.C. § 3742(a).   The district court construed the motion as

an unauthorized successive 28 U.S.C. § 2255 motion.

     Gibbs argues that the district court erred in recharacterizing

his motion as a successive 28 U.S.C. § 2255 motion.     As the

district court correctly determined, Gibbs cannot seek post-

conviction relief pursuant to 18 U.S.C. § 3742(a) because he has

already filed a direct criminal appeal.   See United States

     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                           No. 03-20522
                                -2-

v. Early, 27 F.3d 140, 142 (5th Cir. 1994).   Because Gibbs has

previously filed a 28 U.S.C. § 2255 motion and because the

instant motion raises issues that could have been raised in the

prior motion, the district court did not err in construing his

post-conviction motion as an unauthorized successive 28 U.S.C.

§ 2255 motion.   See In re Cain, 137 F.3d 234, 235 (5th Cir.

1998).   Accordingly, the judgment of the district court is

AFFIRMED.
