                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 1, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-41794
                          Summary Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

HUNG THANH PHAN,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                      USDC No. 4:04-CR-88-2
                       --------------------

Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.

PER CURIAM:*

     Pursuant to a plea agreement, Hung Thanh Phan, federal

prisoner # 11429-078, pleaded guilty to conspiracy to distribute

or possess with intent to distribute methamphetamine.      He appeals

from the denial of a motion for sentence modification putatively

brought pursuant to 18 U.S.C. § 3582(c)(2).    He asserts that the

decision in United States v. Booker, 543 U.S. 220 (2005), met the

conditions precedent for an alternative sentence announced by the

district court.    He therefore requests that his sentence be

modified accordingly or that his case be remanded for

     *
       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this opinion should not be published and is not precedent except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. 05-41794
                                 -2-

resentencing.   The Government has moved to dismiss the appeal on

the ground that it is barred by the terms of an appeal waiver

contained in Phan’s plea agreement and, alternatively, requests

an extension of time in which to respond if Phan’s appeal is not

dismissed.

     The district court’s jurisdiction to correct or modify a

defendant’s sentence is limited to those specific circumstances

enumerated by Congress in 18 U.S.C. § 3582(b).     See United States

v. Bridges, 116 F.3d 1110, 1112 (5th Cir. 1997).    The record does

not show that his motion for resentencing in the district court

falls under any provision of § 3582.    Although the motion could

be construed as a 28 U.S.C. § 2255 motion, the district court did

not suggest that it was so construing the motion, and it did not

provide Phan notice.    See Castro v. United States, 540 U.S. 375,

383 (2003).   Consequently, the motion did not arise under § 2255.

     Phan’s motion was an unauthorized motion which the district

court correctly concluded that it was without jurisdiction to

consider.    See United States v. Early, 27 F.3d 140, 142 (5th Cir.

1994).   Phan’s appeal is without arguable merit and should be

dismissed as frivolous.    See 5TH CIR. R. 42.2; Howard v. King, 707

F.2d 215, 219-20 (5th Cir. 1983).    Therefore, Phan’s appeal is

DISMISSED as frivolous.    The Government’s motion to dismiss on

the basis of the appeal waiver is DENIED as unnecessary.    The

Government’s motion for an extension of time is DENIED as moot.

Phan’s motion to remand for resentencing is DENIED.
